Lord Lloyd of Berwick
To ask Her Majesty’s Government what action they plan to take following the decision by the European Court of Human Rights on 18 September in the case of James v UK that the detention of prisoners serving an Indeterminate Sentence for Public Protection beyond their tariff without access to parole is a breach of their rights under Article 5(1) of the European Convention on Human Rights.
The Minister of State, Ministry of Justice (Lord McNally)
My Lords, the Government are still considering whether to appeal against this decision. The Government have three months from the date of the judgment to submit an application to the Grand Chamber which will effectively be appealing the decision.
Lord Lloyd of Berwick
My Lords, the noble Lord will know the figures because he was kind enough to give them to me last night. There are currently 6,000 people serving IPP sentences, 3,500 of whom have already passed their tariff date and are currently waiting to appear before the Parole Board. Of those 3,500, 2,000 have been waiting for more than two years and 350 have been waiting for more than four years. The court has held in no uncertain terms that their detention in these circumstances is arbitrary and therefore unlawful. Does the noble Lord recognise the scale of this continuing disaster? Does he accept that the Government must do something now to get these wretched people out of prison?
Lord McNally
My Lords, the Government have done something. IPPs were abolished by the LASPO Act, but unwinding the system has to be done very carefully. We are not talking about people who are innocent, but people who have been sentenced for long periods for serious crimes. The IPP system was introduced by the previous Government with, I think, a genuine intent to deal with this problem. We are bringing in a more flexible approach and we have both the Parole Board and NOMS working closely on it. However, it is not simply a matter of throwing open the gates of the prison because in some cases we are dealing with very dangerous people, so we must have public protection in mind when deciding how to deal with them.
Lord Wigley
My Lords, does the Minister accept that there could well be implications arising from the James case for the 3,500 prisoners who have passed their tariff that could lead to them claiming compensation against the Government either under tort or under Section 8 of the 1998 Act? In those circumstances, do the Government accept that they may have to pay compensation?
Lord McNally
One of the reasons why we are studying the judgment is to make sure that we get this right. There are three very early cases which go back to before the reforms brought in by the previous Administration in 2008 in order to bring in more flexibility. It is interesting to note that the court did not find that IPPs themselves were in breach of the Human Rights Act. The weakness that quickly became apparent was the Catch 22 whereby the prisoners were supposed to carry out certain restorative and rehabilitative programmes that were not available. After 2008, the Government brought in some reforms and we have had further discussions with the Parole Board and NOMS to try to speed them up. But I emphasise again that we are not dealing with innocent people. These are people who have been before a court and found guilty of the crimes which have brought forward this programme. We are trying to manage them out of the system as quickly as possible, but with due care for public safety.
Lord Marks of Henley-on-Thames
My Lords, one of the main grounds for the judgment against the United Kingdom was that there are, as my noble friend has said, insufficient facilities for courses to enable prisoners serving IPP sentences to qualify for release. Can the Minister say what extra rehabilitation facilities are now to be put in place to ensure that such prisoners can be released safely and quickly into the community?
Lord McNally
My Lords, one of the things that we have been discussing with both NOMS and the Parole Board is moving away from a system of box-ticking specific narrow training programmes to a more flexible judgment about whether a particular prisoner is suitable for release. Giving both NOMS and the Parole Board greater flexibility in treating, assessing and managing these prisoners will enable the Parole Board to make a balanced judgment, at the right time, about whether these prisoners should be released.
Lord Dubs
My Lords, does the Minister agree that when these sentences were first brought in, nobody expected that they would apply to more than a very small number of exceptional cases? Since then, they have been used on a wide scale. Does that not cast doubt on the propriety of keeping these people in jail beyond the sentences they would otherwise have had?
Lord McNally
Whether there was a misjudgment or not when IPPs were brought in, the fact is that we have reached the figure that the noble and learned Lord quoted of 6,000, which is far more than was anticipated by the initiators of the Bill. However, we now have to go through a proper process of assessing whether these prisoners, who have been sentenced for serious crimes, are fit for release, always keeping in mind public safety as well as the progress they have made. We have taken on board the fact that, as it was, the system was too rigid and too tick-box and we have given it greater flexibility. However, we have to manage release into the community; we cannot just open the prison doors.
Lord Faulks
My Lords, the decision in the James case was another reversal by the European court of decisions about our domestic legislation reached by the Court of Appeal and the House of Lords. Does the Minister agree that, despite the Brighton declaration, there seems to be very little sign of the European court affording us the margin of appreciation that it is supposed to do? In the light of this case, and another recent case that would have attracted the House’s attention, is it not time to consider cutting the links with Strasbourg?
Lord McNally
I would very much regret that. We get enormous benefits from being part of a wider regime of human rights. However, I am equally proud of the reforms that were brought through by the Brighton declaration. I would also say that we have not exhausted the Strasbourg system with this case and are considering whether to appeal. As I reminded the noble and learned Lord, the actual judgment was a very narrow one that did not disown IPPs or say that they breached the Human Rights Act.