Prisoners (Disclosure of Information About Victims) Bill
Tuesday 28th April 2020
(4 years, 6 months ago)
Lords ChamberPrisoners (Disclosure of Information About Victims) Act 2020 View all Prisoners (Disclosure of Information About Victims) Act 2020 Debates Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: Committee of the whole House Amendments as at 3 March 2020 - large print version - (3 Mar 2020)
The Advocate-General for Scotland (Lord Keen of Elie) (Con)
My Lords, this Bill will stipulate in statute an obligation on the Parole Board to ensure that the non-disclosure of information is always considered when making a release assessment. The Bill will put established practice on a statutory footing and respond directly to real-life issues that have caused immense pain to the families of victims of serious crimes.
The Bill, sometimes referred to as “Helen’s Law”, is a result of the work of Helen’s mother, Marie McCourt, who has campaigned tirelessly for this change. I take the opportunity to pay tribute to Mrs McCourt’s resolve. It is in large part thanks to her that we have reached this point.
Helen McCourt was a 22 year-old insurance clerk from the village of Billinge, near St Helens in Merseyside. On the evening of 9 February 1988, Helen disappeared while on her way home from work. The following year, Ian Simms was convicted of Helen’s murder and ordered to serve a minimum of 16 years in prison. Ian Simms has since been released but has never revealed where Helen’s body is and, despite extensive searches, her remains have never been found. This has compounded the unimaginable suffering of the McCourt family.
We will all appreciate the closure and comfort that can come from laying a loved one to rest. The McCourt family, and others like them, have been wilfully and cruelly denied this comfort. Mrs McCourt has campaigned for a change in the law to represent this, to acknowledge the added distress this causes for the families of victims, and there is wide public support for such a change.
I would like to take a moment to reflect on another case which has shaped the development of the Bill. In 2009, Vanessa George was convicted for multiple counts of sexual abuse against children at the Plymouth nursery where she worked. She did not stop at the abuse of the children but photographed these horrendous acts in order to share them with other depraved individuals. Her abuse of the trust placed in her by the families of the children she was meant to care for and protect is truly shocking.
The pain felt by the victims and their families has been compounded by the fact that the children she photographed cannot be identified from the images she produced, and she has hitherto refused to disclose their identities. Many families who placed their trust in Vanessa George do not know, and may never know, if their children fell victim to her cruelty. She was released by the Parole Board after serving 10 years in prison.
When considering the release of an offender like Vanessa George or Ian Simms, the Parole Board must always take into account this withholding of such significant information. That is why we are legislating, through this Bill, to directly address this current gap, and to seek to bring some small solace to victims and families.
Clause 1 will amend the release provisions that apply to life sentences for murder and manslaughter, and sentences of imprisonment for public protection for manslaughter and the offence of taking or making indecent images of children. This places a statutory obligation upon the Parole Board to consider a non-disclosure of information about a victim’s remains or the identity of a victim in an indecent image when making a public protection decision, being a decision to release, about such a prisoner.
Clause 2 of the Bill effectively replicates what Clause 1 achieves but in relation to the release provisions that apply to an extended determinate sentence which has been imposed for manslaughter or the offence of taking or making indecent photographs of children. Functioning in the same way as Clause 1, it will place a statutory obligation on the Parole Board to consider the non-disclosure of information about the location of a victim’s remains or the identities of a child or children featured in indecent images when making a public protection decision, including a decision to release.
In order for the Bill to apply, the Parole Board must not know the location of a victim’s remains or the identity of a victim in an indecent image but must believe that the prisoner has information about this that they have not disclosed to the board. This is the essence of the prisoner’s non-disclosure, and it is this that must be taken into account by the board when assessing whether a prisoner can safely be released on licence.
Furthermore, the Parole Board must particularly take account of what, in its view, are the reasons for this non-disclosure. This subjective approach will enable the board to differentiate between circumstances such as when, for example, the non-disclosure is due to a prisoner’s mental illness, and cases when a prisoner makes a deliberate decision not to say where a victim’s remains are located.
Subjectivity is fundamental to the proper functioning of the Bill. It is for the Parole Board, as an independent, court-like body, to decide what bearing such information has on the risk that a prisoner may present and whether that risk can be managed safely in the community. The Bill reflects the established practice of the Parole Board but goes a step further and puts a legal duty on the board to take the non-disclosure into account.
While, as I have set out, the measures in this Bill may seem relatively small or technical, I cannot stress enough the importance of this Bill and the support it has from victims and families. The crimes of the likes of Ian Simms and Vanessa George are harrowing, and families affected by these crimes deserve the peace of some element of closure, whether that is the opportunity to lay a loved one to rest, or the certainty of whether or not they were abused. This Bill offers families and victims a chance to achieve that.
I hope that the “Helen’s Law” Bill will attract support from all sides of the House and enter into the statute book as soon as possible. I beg to move.
Baroness Kennedy of Cradley (Lab)
My Lords, I add my voice to the tributes paid to Marie McCourt. Her campaign to secure this legislation was formidable and supported by her local Member of Parliament, my honourable friend the Member for St Helens North, whose 10-minute rule Bill tabled in support of Marie’s campaign back in 2016 informed the legislation we have before us today.
The Bill has been a long time coming—in the other place it was noted that it has taken over three years, two general elections and two Prime Ministers for the Government to offer their own variation of Helen’s law—but thanks to the campaigners’ persistence and the Government’s constructive approach to this legislation, the Bill is now before us. It rightly has an enormous amount of cross-party support.
The first part of the Bill, introducing a new statutory obligation on the Parole Board to consider the non-disclosure of information about a victim’s remains when making a public protection decision, is a welcome step forward. It is not a “no body, no parole” Bill, so it is not everything the campaigners wanted, but it sends a clear message to Parole Board panels that the Government’s view is that a refusal to give information that can ease a relative’s pain, such as non-disclosure of remains, should be a significant factor in their decision-making.
In taking this legislation forward in practice, will guidance be issued to Parole Board panels on this new duty? For this legislation to work, it is vital that Parole Board panels view this new duty as a critical part of the eligibility criteria and not as a peripheral addition. How will the Government ensure that this happens? Even though it is not a “no body, no parole” Bill, that is the aim of this legislation, so will the impact of the legislation be subject to its own review?
I move briefly now to the second case that has shaped the Bill and to which the Minister referred: the horrific crimes of Vanessa George, who was convicted of multiple counts of sexual abuse against children at the Plymouth nursery where she worked. I pay tribute to my honourable friend the Member of Parliament for Plymouth, Sutton and Devonport, who has spoken out on behalf of the distressed parents of George’s child victims. To protect their children, the parents rightly wanted to stay private, so the support of their local MP has been critical, especially as he has ensured that this Bill includes a statutory obligation on the Parole Board to consider the non-disclosure of information about the identity of a child or children featured in such images.
It is tragic that this legislation is not in place in time to deliver for the victims in the George case. She has refused to disclose to the authorities the identities of the children she photographed, but she has been released, so already distressed parents not knowing whether their children were abused will continue to live in fear, pain and concern for their children. At this point, we must acknowledge that for Marie McCourt, too, the timing of this Bill is heartbreaking, as Helen’s murderer has been released, as the Minister said, without providing information on her whereabouts.
It would be remiss not to mention in this Second Reading that much more needs to be done to support victims in the parole process. Can the Government give assurances that the needs and experiences of the victims will be put at the heart of the root and branch review of the parole system which the Government have promised?
The way in which victims give evidence to the Parole Board needs to be modernised. It is daunting for a victim or their family member to travel, sometimes hundreds of miles, to give evidence in the prison holding the abuser or murderer in question. Making victims go through the necessary security to read out their statement seems an undesirable way to treat them. Can the use of video conferencing from a local court be adopted as standard practice for Parole Board panels?
There is also a lack of support and help for victims in compiling and presenting their evidence to Parole Board panels, which should be addressed. Support and clear advice in plain English is particularly important if you are a young person having to give evidence.
Sadly, many of the parents involved in the George case found out about her release on Facebook or via the local paper. I am sure every effort was made to contact the parents in this instance, but in general the change of contact details over time and the opt-in approach of the victim contact scheme cause issues. Again, technology should be developed to modernise this scheme so that victims can opt in and opt out at any time and update their contact details easily. The Government should also consider changing the law so that victims are automatically included in the scheme unless they opt out. Will the Government consider that option?
Finally, measures to increase the transparency of how decisions are made and how the Parole Board works are to be welcomed. In this area, simple changes can take place without the need to wait for a review or legislation. For example, victims should be given the high-level summaries of decisions without having to apply for them.
Today’s Bill is a welcome and positive step in the right direction, but we have to do more to support victims in the parole process, and put mechanisms in place to make sure that the aim of the Bill becomes a reality and gives victims and their families the information they rightly seek.
Baroness Bull (CB)
My Lords, it is a privilege to speak in support of a Bill that is perhaps largely technical but one that has been shaped by and responds to the most profound and challenging of human experiences. I commend the Government for their manifesto commitment to the Bill and for progressing it to this stage, despite the circumstances in which we find ourselves. Like the noble Baroness, Lady Kennedy, I pay tribute to honourable Members in the other place who have championed its cause over several years, in particular the Member for St Helens North, Conor McGinn, and the Member for Plymouth, Sutton and Devonport, Luke Pollard. Despite elections, changes of leadership, Brexit, Dissolutions and Prorogations, they have not allowed this issue to be sidelined.
I join in the tributes, which I know will continue, to Marie McCourt, whose tireless campaigning not only attracted nationwide support, but, as importantly, helped other families in similar situations to her own to realise that they were not alone. Her loss was unfathomable; her courage, tenacity and resolve over many decades is remarkable.
The Bill will be vital in helping bereaved families come to terms with their grief and to deal with what for most people will, mercifully, remain unimaginable. It will also be important in restating the Government’s commitment to the safety of our communities and their willingness to take steps, as and when they are necessary, to evolve institutions whose core function is to protect society.
The Bill enshrines in law what is already the practice in parole boards, which is to fully consider the failure by the prisoner to disclose information about the victim’s remains, or the identity of child victims of indecent imagery. Given this, on the surface it might appear to change little. However, it will make decisions more consistent and fair across the system. Importantly, it responds to the pleas of victims’ families, demonstrating that they have been heard. It means that the Parole Board no longer has discretion to disregard non-disclosure in making its decisions—a distinct change, and one that Parliament alone will have the power to reverse.
The Bill can also be seen as part of a wider and necessary process to increase the efficiency, transparency and accountability of the parole system. The review of Parole Board Rules, presented to Parliament in February 2019, made welcome improvements, including enhanced engagement and communication with victims, the new reconsideration mechanism, and standard practice documents to ensure a more robust, transparent and consistent approach to decision-making.
The review also recognised the importance of ensuring a fair hearing for prisoners with mental health needs and learning disabilities, and noted the need for explicit provision in relation to
“the procedure that should be followed in cases where the prisoner is found to lack mental capacity to participate in the parole process.”
I would welcome reassurance from the Minister that he is content that the need for this explicit provision for prisoners lacking mental capacity is adequately addressed in new Section 28A(2), which states:
“When making the public protection decision about the life prisoner, the Parole Board must take into account … the prisoner’s non-disclosure; and … the reasons, in the Parole Board’s view, for the prisoner’s nondisclosure.”
At Second Reading in the other place, the Lord Chancellor and Secretary of State for Justice said:
“This subjective approach will allow the board to differentiate between circumstances in which, for example, the non-disclosure is due to a prisoner’s mental illness.”—[Official Report, Commons, 11/2/20; col. 747.]
Is the Minister fully confident that this provides adequate protection for prisoners with mental health issues and effectively balances the imperative for justice with respect for human rights? I would also be grateful if, in winding up, he could give some indication of the timetable for the tailored review of the Parole Board, and for the root-and-branch review promised in the manifesto and reiterated at Second Reading in the other place by the Parliamentary Under-Secretary of State for Justice.
Amidst a crisis such as the one we currently face, it would be easy to put to one side numerous other pressing problems that afflict society. This makes it doubly commendable that the Government have moved forward with the Bill, fulfilling a manifesto promise and, more importantly, demonstrating a strong commitment to victims of crime and their families. It is a reminder that, while Covid-19 and the suffering it is causing is front of mind in many of our deliberations, other sorrows and tragedies continue to play out in communities, families and the lives of individuals. The Bill will never take away their loss but, in putting the support of victims and their needs at the centre of the justice system, it may help grieving families to achieve some kind of closure and finally to lay loved ones to rest.
Lord Garnier (Con)
My Lords, I have read the debates on the Bill in the other place, and I can well understand the alacrity with which it was approved. I can also understand the sense of outrage and distress felt by those close to the victims of killers, be they convicted of murder or manslaughter, when they are denied knowledge of where their loved ones have been abandoned by the criminal. To be denied a funeral because the person responsible for the death will not tell the relevant authorities where the remains are unquestionably adds to the distress and grief of the family.
We know of the cases which have been the catalyst for the Bill. There will be, I have no doubt, examples of the heinous behaviour that predated the Moors murders in the 1960s. More recent cases have been cited and in all of them, the simple recitation of the killer’s name is enough to reawaken the revulsion and hideous sense of loss that these foul people have aggravated by refusing to disclose the whereabouts of their victim’s body. For the parents of children who may have been sexually abused, the horror they have to contend with in not knowing whether the convicted sex offender abused their child is only to some miniscule amount mitigated by their child being alive and with them at home. Imagine the fear these parents must harbour that later, in adolescence or adulthood, their child will be traumatised by remembering or coming to realise what happened either to them or their classmates many years before.
The Bill is designed to mark in public policy the revulsion that right-thinking members of society feel for these serious offenders who, not content with killing or abusing their victims, add to the pain and suffering of their victims’ families and friends by keeping secret information which, if they had a scintilla of remorse or empathy, they would give up to the police. No doubt there will be some killers and sex offenders who take a perverse pleasure in prolonging the agony caused by their crimes by refusing to say where they have abandoned the body of their victim, or withholding the identities of those whom they have abused.
The Bill, as has been explained by my noble and learned friend and by the noble Baronesses, Lady Kennedy and Lady Bull, concerns the obligations of the Parole Board when it considers whether an offender merits release from prison. It places a statutory duty on the board to consider circumstances where the offender does not disclose the sort of information I have referred to as part of its assessment of whether they should be released from custody. The board is already subject to non-statutory guidance to the same effect so the Bill, when enacted, will promote that to a statutory duty. Although I understand the welcome the Bill was given in the other place and congratulate the Members of Parliament who have campaigned on behalf of victims and their families to bring it into law, I am not sure that the approach adopted by the Bill goes far enough.
The Parole Board has always had the power to consider the release date of long-term prisoners and, although its decisions are in certain circumstances amenable to judicial review, its procedures are essentially held in private. The public and the media do not attend its hearings and its reasoned decisions are not, as a rule, published. Decisions about the liberty of the subject, especially concerning the future of offenders imprisoned for very serious violent or sex crimes, should be made in public, or at least the reasons for the Parole Board’s decisions, be it to release or not, should be available to the public. I can see that there may be certain facts or details about the victim and the case as a whole that may need to be kept confidential but, by and large, the default position should be for open justice.
I have a further concern about what is proposed by the Bill. I am not convinced that it is right to revise this aspect of the criminal justice system by guidance, even when that guidance is imposed through the medium of a statutory duty. In my judgment, if a prisoner is to be faced with a longer period in custody, it should be through a statutory arrangement, but that arrangement should not be administrative. Rather than telling the Parole Board that it must take into account that an offender has not provided certain details about their offences, it should be a discrete criminal offence, subject to appropriate defences, for a convicted defendant not to inform the police or other proper authority where or how a victim’s remains were disposed of.
The trial of the defendant for this additional offence would take place in open court before the same judge who presided over the murder, manslaughter or sex offence trial or, if the offender had pleaded guilty to the killing but none the less refused to say what had been done with the body, before the same judge sentencing for the original offence. The trial of the offence of non-disclosure could take place immediately after the finding or plea of guilty of the killing or sex crime, or later, depending on the facts of the case. There might, for example, need to be a delay while a co-defendant who had pleaded not guilty to the murder, manslaughter or sex abuse, as the case may be, was tried before dealing with the offence of non-disclosure.
The trial of the allegation of non-disclosure should not just be before the same judge who tried the murder or sex abuse case; the judge should try it without a jury. That would be quicker, of course, but would also avoid any deliberate or unwitting bias against the convicted killer or sex offender in the mind of the jury which had only just reached a guilty verdict, or of a new jury which will know of the first and highly prejudicial conviction. It would also enable the judge to be sure that the facts proved to his satisfaction in the first trial could, where relevant to the issue of non-disclosure, be available without re-proof in the non-disclosure trial. There would be a reasoned and dispassionate judgment which explained what the judge had found and why the facts applied to the relevant law led to the verdict of guilty or not guilty.
If there were a verdict of guilty, the judge could then first sentence the defendant for the original offence and, secondly, impose a consecutive sentence for the crime of non-disclosure. If sentenced to life imprisonment for murder, the defendant would be told that the minimum tariff for the murder would be, for example, 25 years and that the determinate sentence for non-disclosure was five years, to run consecutively from the end of the tariff, making a total of 30 years before release on licence could be considered. If the offence merited an extended determinate sentence, the judge would add the two sentences together, making sure that the overall number of years was neither unduly lenient nor manifestly excessive and that the two sentences would run consecutively and not concurrently.
There is no doubt a good deal of procedural and legal detail that will need to be thought through, but I suggest that the scheme I have advanced, if only in outline, better fits the purpose intended but not achieved by the Bill before us. I ask the Government to see whether what I have proposed might not better deal with the very real concerns of those who have so enthusiastically and rightly supported this Bill.
Lord Kennedy of Southwark (Lab Co-op)
My Lords, I first welcome my noble friend Lord Ponsonby to the Opposition Front Bench and make it clear that I fully support this Bill and its aims. I pay tribute to the campaigners, including, as we have heard, the McCourt family, led by Marie McCourt. They have sought this change to the legislation and, along with the families of the victims of Vanessa George, have enabled this to happen. It is thanks to them that the Bill is here. Hopefully, when it soon becomes an Act of Parliament, it will be able to give some comfort to the families of victims in future.
I also pay tribute, as have other noble Lords have, to my honourable friends in the other place—the Members for Plymouth Sutton and Devonport and for St Helens North—for their work campaigning with the families of victims, which has helped bring this legislation forward today. I also pay tribute to the Government for bringing the legislation forward, for putting it in their manifesto and following that through —we are all very pleased it is here. The Bill is fairly short, of course. It has two clauses that amend the Crime (Sentences) Act 1997 and address the release of prisoners under the Criminal Justice Act 2003. The noble and learned Lord, Lord Garnier, made a number of points. He is a respected lawyer and I am sure that the noble and learned Lord, Lord Keen, will respond to those points. These detailed questions of law need to be addressed and I hope we will get a response to them.
In respect of the crime of murder, as we have heard, the Bill brings into force provisions which have become known as Helen’s law. The noble and learned Lord, Lord Keen, referred to that in his opening remarks. In responding to the debate, will he set out in more detail for the House how this process will work, compared to the guidance given to the Parole Board previously, and this new statutory obligation to consider the non-disclosure about a victim’s remains? Would the Parole Board always have considered this question—I think it probably would—or might it not have considered the non-disclosure of victim’s remains because it had the discretion not to consider that matter?
Will the noble and learned Lord also address the situation where someone is convicted of the crime of manslaughter but is given a determinate sentence of some years in prison? Does he believe that the issue would not in effect arise, in that someone who was convicted of the crime of manslaughter and had refused to disclose what happened to the body would expect to receive a life sentence from the court, as opposed to an ordinary determinate sentence or an extended determinate sentence, which are, of course, covered in the Bill? For anybody given an ordinary determinate sentence, one would assume that the victim’s remains had been recovered, due to the nature of the crime they had committed attracting that type of sentence.
Will the noble and learned Lord, Lord Keen, address the fact that the Bill requires the Parole Board to consider the issue but does not prevent it deciding that someone is still suitable for release? In such a case, will he confirm that the powers of the Secretary of State in these circumstances have not changed but will stay as they are at present? Will he also set out where we are in respect of people convicted of murder but who do not admit their guilt and, in some cases, protest their innocence? What happens to them? Are they, in effect, in denial and not allowed to be considered? It would be interesting to find out.
My noble friend Lady Kennedy of Cradley made an important point about contacting victims and their families to seek their views before somebody is considered for release. Again, I hope the noble and learned Lord can address that point. It is very important because people move away over what can be a period of many years and contact with them can be lost. The possibility of their finding out through the media, including social media, is not something we would want to see in the future.
The Bill is important in helping the families of victims come to terms with the hurt and the grief. In that sense, the Government should be congratulated on bringing the legislation forward. On the other side, there is the issue of the mental health of some prisoners, and that of human rights, which must be a concern for all of us at all times. These are of course rights that murderers deny their victims and their victims’ families, but human rights are still important. Perhaps the noble and learned Lord can address that in his remarks. I look forward to his response in due course.
Lord Hastings of Scarisbrick (CB)
My Lords, I remind the House of my interest in the register as founder and chairman of Crime Concern, which gave birth to Victim Support. All of us agree that the Bill is much needed and timely. It may be simple in the paragraphs contained in it, but it is profoundly essential. It is a dignity measure for victims—a measure that strips bare those vindictive and harsh offenders who wish to hide behind their crimes and the mask that an illusion will eventually pass over our concerns. These vulgar and violent crimes cannot and should not be forgotten.
I am conscious that the seriousness and importance of this legislation reflects a great effort on the part of the Ministry of Justice and the Government to tighten the law. We cannot disagree, given the cases involved that have set the boundaries for the Bill, that it is vital and necessary. When the Minister comes to wrap up the debate, will he indicate whether the Government have an interest in bringing forward any further legislation to tighten up other aspects of the law on the release of prisoners? Whether they are appropriate or not, there may be further dimensions for consideration by the Parole Board, or even by those with wider sentencing or probation powers.
Yesterday, we heard in the other place that just 33 prisoners have been released out of the proposed 4,000 in the decision of the Ministry of Justice on 4 April. This would imply that the release procedure has gone wrong somewhere. We know that a few offenders were released and then recalled. It also suggests that the promise of release for good reason, as agreed by many in this House and the other place, as well as by public campaigners, means that sometimes too many people are allowed to languish for too long in our system. That is itself an element of injustice. How will the Government fulfil their responsibility, set out on 4 April, to release prisoners who pose no harm to wider society, in particular as they have done not only for pregnant women prisoners but for those with disabilities, of great age or who are suffering from other illnesses? Can the Minister comment on that aspect or, if it is not in his brief, will he write to the House? This is a matter of dignity. While the Bill is about dignity for victims, the entire criminal justice system needs to have that element of dignity about it.
My noble friend Lord Hogan-Howe, who is not in his place today, and I have been looking at a number of cases involving miscarriages of justice relating to offenders that are of serious concern. We are here to pass a vital Bill because it will place further duties on the Parole Board and on the structure of how considerations of parole and possible release are brought forward. What consideration is the Ministry of Justice now giving to beefing up the need for enhanced legal aid to support those in need of better consideration of their cases? What thought is being given to the Criminal Cases Review Commission, which seems to have been consistently weakened over decades so that its ability to bring forward cases of genuine need—to see that justice is done—is now much reduced? In particular, perhaps I may highlight what seems to be the number of IPP prisoners who are languishing while being held in our prison system, given that the current number is around 2,400. They are serving indeterminate sentences with no notice of release.
I am raising these issues because the Bill is about justice for victims but, at the same time, we should not make others the victims of injustice by allowing miscarriages of justice to be disregarded. I hope, as would we all, that as the Bill passes on to the statute book—as it should, so that families, in particular the McCourt family, get some sense of peace at long last because the right thing has been done—we do not allow the wrong thing to continue simply because it does not make for a good headline. I ask instead that justice is comprehensive and that the Ministry of Justice takes account of all those affected by the criminal justice system.
Lord Balfe (Con)
My Lords, I would not imagine that there is anyone in this House who does not support this Bill; we extend our sympathy to those who sadly gave rise to it and our congratulations to those in the other House who have brought it this far. I fully support the Bill, but I have some questions, which I will address to the Minister and the House.
The briefing note says that the Bill puts into statute already established guidance for the Parole Board. The delegated powers memorandum says that where
“the offender has not disclosed the location of the victim’s remains, the Parole Board must take that into account in determining that prisoner’s suitability for release.”
I do not think that anyone could disagree with that, but it leads to the question: why is this necessary? Why do we need to guide the Parole Board—unless we believe that maybe it has lost its way?
If we are going to have greater transparency for the Parole Board, which I think is a good thing, we also need to know—from the Minister, I hope—when the review that was indicated in the Conservative Party manifesto is expected to report and to lead to some changes. It could be argued that part of the problem is, first, the personnel on the Parole Board, and, secondly, the omerta that surrounds much of its proceedings. Both of these things I have no answer for, but they need to be looked at.
I note that the Bill does not extend to Scotland and Northern Ireland. Is it envisaged that within the devolved Administrations settlement it will be discussed with them, with a view to then bringing matters into line?
The provisions for reviewing convictions also probably need to be looked at. As has been mentioned, some people in prison maintain very rigidly that they are innocent. They may be guilty but have convinced themselves that they are innocent, or they may think that they have been wronged. I am not against a tough system on release, but there has to be an adequate system for reviewing the convictions of those who maintain their innocence—at least the evidence should be looked at again. It is in no way a comparable series of offences, but one thinks of Guildford and Birmingham and the way in which miscarriages of justice were carried through in the past. It is possible, in a very febrile atmosphere, that a conviction might be upheld; the Parole Board may meet in secret but trials are conducted in public, and it is possible for people to be carried away.
The noble and learned Lord, Lord Garnier, mentioned wilful non-disclosure. There is a certain amount of wilful non-disclosure, but we also need to be careful of what I think of as “mind-blanking”: in other words, the psychiatric condition where people just cannot face the fact that they have done something, or their mind goes completely blank. There is a condition where you just forget everything that has happened.
I have often thought that Ian Brady, who led the police and the judicial authorities a merry dance for many years over the location of the Moors murders bodies, had probably forgotten where they were. But it was an excuse for him to get a day out from time to time, and maybe he realised that he was never going to be released. I have never been convinced that he actually knew where the bodies were. I may well be wrong, and I am certainly not suggesting that he should ever have been released, but it is possible for people to completely blank out things in their lives.
I also have a slight reservation about the child abuse provisions. Is it possible that people could name the wrong children? I think it is, particularly if the crime was some time ago. The offender is presented with a list of children who may have been in that nursery. He then thinks, “Well, if I name some, it will help me to get out, but I can’t really remember whether it was X or Y. I think it was X, so I’ll name X”—but if they are wrong, that also has a very severe impact on the child who is wrongly named. I do not have the solution, but I think the question needs looking at.
My final point is that there is a need for the Parole Board to see some psychiatric evidence and to have some independent people before it. I am certainly not advocating a legal aid bonanza of prisoners being able to hire QCs and have full hearings, but I think provision should be made for the Parole Board to call independent expert witnesses, particularly in areas such as mind blanking and the like, to advise it. We probably need also to look at the membership of the Parole Board and the degree of secrecy within which it is able to work.
Can the Minister say when it is envisaged that this law will come into force? I note that the decision is left to the department. Does he have any idea when the department will aim to bring it in?
Lord Adonis (Lab)
My Lords, we all share the distress of the victims of the appalling crimes which have given rise to this Bill, and I associate myself with all the remarks that have been made in that regard. However, the key speech of this debate was made by the noble and learned Lord, Lord Garnier, about how much the approach taken in the Bill changes things in practice. As he rightly said, all the Bill does is impose a statutory duty in place of the current requirement on the Parole Board to consider these matters in any event.
That being the case, will the Advocate-General tell us what difference in practice the Bill will make to the operation of the system? The noble and learned Lord, Lord Garnier, made the point very well that, given the public importance of these issues and the huge emotive and personal importance to the relatives of the victims, having a process in open court and creating a new statutory offence seems a more logical and justifiable way forward.
Perhaps I could ask a related question. Since it appears that this Bill does not change the way the Parole Board operates, might it be possible for relatives of the victims in question to address the Parole Board? Given that in the Bill Parliament is seeking to highlight one particular factor among others which the Parole Board must consider when deciding on release and the significance of that factor, might victims be allowed to address the Parole Board directly? Can the Minister say whether that was considered by the Government—and, if it was considered, why it has not been allowed?
Baroness Finn (Con)
My Lords, I wholeheartedly support this important Bill and pay tribute to those who have worked so hard to bring it to Parliament. Justice delayed is justice denied. Since Helen McCourt was tragically murdered in 1988, her mother Marie has been searching for justice and peace, and while Helen’s law will at least help bring justice to others, this Bill must be only the start of putting victims’ views at the heart of the criminal justice system.
This Bill is a critical step in the right direction, yet if we stop here our criminal justice system will continue to let down the victims of crime. I believe passionately in the rehabilitation of offenders and declare my interest as a member of the development committee of the superb charity Clean Break. But victims of serious crime should always be on our list of priorities. I welcome the fact that the Bill puts victims first by placing a statutory duty on the Parole Board to ensure that there is proper consideration of whether there has been a failure to disclose the location of the victim’s remains in the case of murder or the identity of a child when it comes to taking or making indecent images of children. This is a positive and welcome move and it is hard to understand how any convicted criminal can claim to be rehabilitated if they continue to withhold such information. Failure to do so shows a lack of understanding, remorse and compassion. It shows that they are not willing to do what it takes to redress wrongs and accept responsibility for what they have done.
However, we should also consider what else we can do to support victims. Justice is not a single moment in time; it is a process of rehabilitation that victims too have to go through before they can come to terms with what has happened to them and take back control of their lives. My concern is that this Bill will not fundamentally change current practice and that families in such cases will continue to have to rely on the discretion of the Parole Board. There are too many concerns about the lack of transparency and accountability in the Parole Board’s processes, and some serious question marks hang over its duties in relation to responsibilities towards victims.
Never has there been a more courageous, compassionate and passionate advocate for victims’ rights than my noble friend—I am very proud to call her a friend—Lady Newlove. Not only did she and her young family have to come to terms with the most base and horrific of crimes, but she has lent her voice to support others. However, even she has been let down by the system. Unbeknown to her and her family, the perpetrators of the crime that left her a widow and her daughters without their father have variously been recommended for parole, early release and a place in open prisons with home visitation privileges at the weekend. Why was she not told? Does she not have an inalienable right to feel safe and secure?
Noble Lords might be aware of the victim contact scheme. This is supposed to allow for a victim whose offender is sentenced to 12 months or more to be kept informed of the progression of the sentence and any associated parole. However, victims have told of being contacted by the scheme only to be informed of Parole Board decisions that have already been made. One victim even discovered a decision on Twitter before being informed by the scheme.
Let us take the case of John Worboys, the black cab rapist, recommended for early release from his life sentence by the Parole Board. More victims of Worboys’s heinous crimes had to bravely come forward for the Parole Board to reverse its decision. Why were the victims not part of the Parole Board hearing in the first place, or at least fully aware of it? Instead, they were forced to come forward by fear itself to stop what was nothing less than the undermining of the justice that they thought had already been done.
That tells us that, for the victims of crime, sentencing and conviction are just the beginning of justice. If sentences are altered or shortened, or the terms and conditions of release are changed, victims have a right to know and a right to their say. It is not okay that my noble friend Lady Newlove and her family were not told that the subjects of their own personal nightmares could be walking the streets of their home town without their knowledge.
My noble friend has called for a victims’ advocate unit to level the playing field. Her point is that, once a victim’s impact statement has been read, victims cease to exist as the process of justice continues to wind its course. Victims should be given training and legal aid so that they too can continue to hold the courts and the Parole Board to account, continue to advocate for their needs as victims, and get access to any information they need about the terms of parole or release or the location of offenders.
Alongside a victims’ advocate unit, we also need comprehensive reform of the Parole Board. This is the same Parole Board that released John Worboys, even though he remained a danger to society, released Garry Newlove’s killers without telling his family when and where, and released Helen’s killer, even though he had it in his gift to bring peace to the victim’s family but declined to do so. It is time to embed the rights of victims alongside those of offenders, recognising that the Parole Board’s decisions impact both.
Everyone deserves a second chance, and so too do victims of crime—a chance to rebuild their shattered lives, to restore confidence, self-esteem and self-worth, and to try again to live the life that was taken away from them. Justice needs to focus far more on the rights, wishes and needs of the victims. For that reason, and notwithstanding some serious concerns about the Parole Board’s decisions, I support and welcome the Bill and commend it to the House.
Lord Mann (Non-Afl)
My Lords, I am regularly nervous when legislation on criminal justice emerges from the Home Office via politicians. Much of it over the last 20 years that I have participated in through debate and discussion, and have voted on, has struggled to pass the test: does it do what it is meant to do? I will not repeat the very eloquent argument put by the noble and learned Lord, Lord Garnier, but the question of whether something that goes in the right direction and is done in the right spirit does what it is meant to do is fundamental; otherwise, in several years’ time we will find that a piece of legislation is not fit for purpose, and has no purpose other than to placate a general and valid viewpoint and a demand from individuals and society.
I hope that the Minister can persuade me, and other noble Lords, that this Bill will do what it says on the tin. The noble Lord, Lord Balfe, raised the question of Ian Brady. However, Brady was in Broadmoor: would this legislation have applied to him? That case scarred the whole of the north of England. In some ways, it still does to this day, particularly regarding Keith Bennett, so horrifically unfound and his mother unable to be reunited with her son before her death. The case captured the anger of whole segments of society that the law was not doing what it should. Will those determined by the law to be unfit for prison and put in special hospitals —I live just a few miles from another one, Rampton, which has had equally notorious cases—be covered?
The question of whether the law goes far enough in the right direction is also very important. I have had the honour—but not the pleasure—of being involved in detail with the independent child abuse inquiry. I have been a witness and will be again in the near future. I spent four weeks representing people in the Nottinghamshire strand of the inquiry. I sat, both inside and outside sessions, with those who had survived the most horrific abuse, often as small children. I tried to work through what it was that they actually wanted. Of course they wanted a conviction, if they could get one, but what else were they after? What was the key thing, above all else? I was able to dissect the cases of the 30 individuals I was representing. We had some successes: one case got reopened and someone got 19 years in prison; we had a celebratory party to see him off. Criminal justice and the sanction of prison was important, but at the heart of what those victims of child abuse wanted was the truth. The conclusion I drew was that the fundamental motive and critical thing to look for is power relations. Is the law sufficiently well framed in these cases? I would accept an argument from the Minister that currently it is not.
How do we deal with the misuse of power relations? In the Brady case, and in others that have been cited, it seems clear that the misuse and retention of power, by refusing to give information that victims require, is part of the criminality involved. When it comes to the images of child abuse that have led to a rather modest inclusion in the Bill, again, the fundamental question that has to be asked every time is: what is the power relation—the misuse of power? It seems to me that this opens up a healthy area for consideration, whether through amendments to this Bill or other legislation. Be it the murderer, the rapist or the child abuser, of whatever kind, misuse of power is the fundamental question, which the current law does not adequately address. It addresses acts, which can be properly adjudicated on, but the concept of power and how it is misused is much more difficult—as is, therefore, the question of silence and the refusal to give information. I hope that the Minister will give some consideration as to whether this Bill can be extended.
Lord Naseby (Con)
My Lords, I live in Bedfordshire and represented Northampton for the best part of a quarter of a century. The prison serving that community is Bedford prison, which has difficulties made worse by the overcrowding that it has always had. Ironically, the situation we find ourselves in today with coronavirus has brought this issue into my focus; it is a heavily overcrowded prison. The argument and discussion that took place during the short debate last Thursday, in which I took part, concerned which prisoners should be put on temporary release and how many. The question was debated fully and, I think, successfully.
This Bill deals with the same subject of prisons. I have read it. A comment was made that it is only a short Bill, with three clauses. I remember chairing the Maastricht Bill, which was one clause longer at four clauses. It took 25 days to reach Committee stage, so the length of a Bill is not necessarily a determinant of its importance. I have a few questions, as a layman and someone who takes a public interest. The first question, which arises from the debate last Thursday, was raised by my noble friend Lord Balfe behind me. I note that the Bill applies only to England and Wales. Is there any difference between England, Wales, Scotland and Northern Ireland in what takes place currently, and is it the intention that those other two important parts of the United Kingdom are to follow suit?
Secondly, I have listened in particular to my noble and learned friend Lord Garnier and it is not entirely clear to me why the Government have so far rejected the concept of “no body, no release”. Is it based on the evidence that has arisen from Australia, or on mental health concerns in that area? I hope that the Minister who spoke in the other place—I have read the whole of that debate—was correct to say that
“there is a danger that if we proceed too far along that path”
—of no body, no release—
“we could inadvertently create an artificial incentive for people to mislead the authorities and to feign co-operation or remorse.”—[Official Report, Commons, 11/2/20; col. 747.]
I would have thought that part of the skill of life for those who work in interrogation is to pull out an answer from whoever they are interrogating. However, the Minister may be right; personally, I have my doubts, but I hope he is correct.
My third question concerns the Parole Board. From listening to my noble friends and other noble Lords, one realises that the assessment as to why an offender is withholding information is, in essence, subjective. Again, it ends up as an assessment of risk. I am used to risk—I have been in the commercial world for the best part of 50 years. Some risks are relatively low; some relate to areas in which, by definition, the risks are quite high. We know that ourselves today, in dealing with the coronavirus. Murder, manslaughter and the other area we have discussed this afternoon are high-risk areas and I wonder whether such cases can be left to the interpretation of a body such as the current Parole Board.
I understand that there is to be a review of the Parole Board. Obviously, if that is the case, then somebody, somewhere, is uncomfortable with the current situation. The inference is that, somehow or other, the Parole Board has to be made more accountable and transparent. Certainly, transparency is vital in today’s society, as the public really do take an interest. Unless we have that transparency, the public will turn against us as the legislators.
My fourth question concerns the case of Vanessa George. I have read only the evidence and the discussions from the other place. Coming to it fresh, for the first time, I have to ask the Minister: does he really think that, for one reason or another, the wrong decision was made regarding her release?
I come to my fifth question—it is my last, although I also have one comment to make. Is the review still likely to take place, bearing in mind the challenge we are currently facing with coronavirus and the huge challenge of Brexit, which has to be dealt with in less than 12 months?
Lastly, I turn to an area which I am perhaps more comfortable in, namely the future of the word incentivisation. From reading the reports and the discussions from the other place, this does not seem to be part of people’s judgment. I have worked in the commercial world. I have lived in India and Sri Lanka; much of the law of those countries is determined by a combination of Buddhism and Hinduism. In the 50 years that I have worked in the commercial world, I have always taken a keen interest in incentives. Based on that experience, it seems that if incentives are correctly targeted, they can achieve a major positive response, which is sometimes way beyond what was expected or forecast. I simply ask my noble friend on the Front Bench: what are the incentives for the convicted person to provide the key information that they are withholding? Or, to put it another way, what other incentives, other than those that are there already, could we think about using, to try to find an answer to this very challenging area of the law?
Baroness Barker (LD)
My Lords, on behalf of my colleagues on these Benches, I welcome this Bill. I was due to speak on it before the Recess, as was the Minister, the noble and learned Lord, Lord Keen of Elie. In the intervening period, I had the opportunity to talk to Helen McCourt’s mother, Marie McCourt. She is an amazing woman. One cannot but be moved by her tenacious diligence in pursuing this matter over 32 years and, I would say, doing so without personal malice, which is really remarkable in the circumstances.
I will perhaps strike a slightly different note from other noble Lords. I believe that the Parole Board’s work is very necessary and very difficult and that it is one of those public bodies that tends to come in for undue criticism, as the reasons for the decisions it makes, and indeed some of the limitations under which it works, are not always fully understood. While much of the criticism of it is legitimate, it can also sometimes find itself on the end of concerted campaigns.
That said, this Bill has some merit—although I quite understand the questions that have come from around the Chamber about how much of a difference it will make. I believe it is right that we do not adopt a no body, no release rule. I do so for two reasons. First, there are people who will perhaps lack mental capacity and be unable to give the information that at some point they may well have known. Secondly, there are miscarriages of justice and we cannot therefore bring in an absolute rule.
I listened carefully to the speech by the noble Lord, Lord Mann. My family lives on the edge of the Pennines. I remember as vividly as yesterday 1987, the appalling effect that had on the people of the area and the terrible effect it had on Keith Bennett’s family. We do not want to put the wrong sort of incentives in place.
I understand the Bill, the two different sets of offences to which it applies and the approach the Government have taken in strengthening the obligation on the Parole Board to take matters into account. I want to reflect on a point made in another place. I understand that, at the point of sentencing, a court would have to have taken into account the fact that the person had not disclosed. Having said that, I bow to the superior knowledge of the noble and learned Lord, Lord Garnier, and I would like to reconsider some of the points he made. I think we will get to a point at which we discover that this Bill is not tough enough, and at that point we might well wish to follow his proposals.
One of the questions I have for the Minister is: given that there will be a slightly stronger obligation on the Parole Board to take these matters into account, how will the effect of this Bill be monitored? How will we know whether it is working? I have a great deal of sympathy with victims’ families who make the point that this is usually only one indicator of a more general lack of participation in the rehabilitative programmes that exist in prison.
For example, Ian Simms, who has been mentioned—the killer of Helen McCourt—has never taken part in any kind of rehabilitative classes. He has never attended a Parole Board hearing at which Helen’s family have been present. They are therefore left to wonder on what basis the Parole Board has come to a conclusion that he is safe to be let out. That is another question I have to put to the Minister. How confident are the Government that this law will strengthen the Parole Board’s overall remit to determine that somebody has given absolutely no indication of rehabilitation and therefore that they still pose a serious risk on release?
We have focused today on the two cases that have directly given rise to this law, but there are others. I wonder if the Minister, in summing up, could say just how many people in the criminal justice system he thinks this is likely to apply to.
My final question to the Minister is this. When this law reaches the statute book—I sincerely hope that, with cross-party support, it does—will it be open to victims’ families to apply for judicial review of decisions to release that have already been made, or will it not?
It is fair to say that we all wish that this law could be made a great deal stronger. I am not sure that it is possible, to use the words of the noble Lord, Lord Naseby, to incentivise people for whom the withholding of information is an act of powerful callousness that some of us may find hard to credit. All we can do is give as many different tools as possible to those who seek to erode the ability of such people to go on meting out continuing punishment to the families of their victims. I hope that this Bill is passed.
Lord Ponsonby of Shulbrede (Lab)
My Lords, this is a short Bill, with just three clauses, but it should not be underestimated because of its length. Unsurprisingly, today’s debate has been much more wide-ranging than the scope of the Bill itself. The Bill is the result of a campaign led on behalf of Helen McCourt; I was pleased and touched to hear about the engagement of the noble Baroness, Lady Barker, with Mrs McCourt. It is a variant of the Bill originally introduced in 2016 as a 10-minute rule Bill by my honourable friend Conor McGinn.
As we all know, Helen was murdered. She disappeared in 1988. The location of her body has never been disclosed by her murderer, who has now been released from custody. The purpose of this Bill is to put into statute the already-established Parole Board guidance when making release decisions about serious offenders. I believe that it is right to take into account the refusal of a serious offender to disclose the whereabouts of the victim’s body. Offenders who refuse to disclose this information pose an ongoing risk to the public. Indeed, it is a form of ongoing control and abuse by the perpetrator of the victim’s family and friends.
Supported by a number of noble Lords from across the House, the noble and learned Lord, Lord Garnier, suggested a way to go further in addressing this method of control, if I can put it that way. His idea was interesting. My question for the Minister concerns the level of monitoring that there will be on the impact of this Bill to see whether it will be possible to take further steps along the lines of what the noble and learned Lord outlined.
The Bill also puts into statute two requirements on the Parole Board when making release decisions. The first, as we have heard, is for offenders who are convicted of murder or manslaughter, where the Parole Board must take into account whether the offender has refused to reveal details of the location of the victim’s body. As we have heard, this is a subjective decision for the Parole Board because it must take into account whether this non-disclosure is the result of a psychiatric disorder or a deliberate decision to withhold information; a number of noble Lords, including the noble Baroness, Lady Bull, and the noble Lord, Lord Balfe, made this point. An interesting point was also made about perverse incentives if one were to go too far down the road of requiring identities to be revealed or requiring a no body, no release-type measure. There is an interesting balance to be struck, which has been addressed in both this House and the other place. Ultimately, it will be for the Parole Board to make that judgment.
My noble friend Lady Kennedy of Cradley asked a number of questions about transparency and keeping victims up to date with decisions on prisoner release. She made a good point about video conferencing in our courts, which we are seeing evolve as we speak. That is developing on a number of fronts. Can the Minister say whether the Parole Board is investigating its use, either for parole hearings or for incorporating victims into the process of the parole hearing? This is a fast-moving area and people should be open-minded about the new technologies which are being used so much at present.
Other questions were on the status of any future victims Bill and how that might lead to greater transparency, properly taking into account people with psychiatric problems, and on reviewing the operation of the Parole Board. On the latter, I understand that various papers have been written, but can the Minister tell us more about the Government’s ambitions for properly reviewing the work of the Parole Board?
We have all lost people who are dear to us and many of us will know victims of crime, but the circumstances of Helen McCourt’s death put the suffering of her family at a different level. Other families have experienced similar tragedies. I hope that this Bill will at least show that people have listened to Marie McCourt. Local MPs have taken up these matters; hundreds of thousands of people have signed a petition to support this Bill; all political parties have supported its objectives, and the Government and now Parliament have listened. I hope that the outcome of the Bill will be to strengthen the role of the Parole Board and to give better explanations and outcomes for victims’ families.
Lord Keen of Elie
My Lords, I thank noble Lords for what has been a worthwhile debate on this important Bill. I hope that families and victims affected by the sort of circumstances referred to will have taken some comfort from the fact that the Bill has made this much progress and has received support from around the House, albeit some noble Lords may feel that it does not go far enough and some may feel that it should look to issues other than those addressed.
The noble Lord, Lord Ponsonby, whom I welcome to his place on the Front Bench, used the word “balance”, which is an important term in the present context. There has to be a balance of the number of issues and interests. I shall seek to address the points raised by noble Lords in as straightforward and clear a way as possible in the time allowed.
The noble Baroness, Lady Kennedy of Cradley, referred to the guidance to the Parole Board. Certain guidance exists at present, but we ensure that that guidance can never move away from the issue addressed by this Bill by enshrining it in statute. There is a question about the status of victims and their views in the context of the Parole Board hearings, and the whole question of how technology may be brought to bear to improve these hearings. The processes of the Parole Board are the subject of review at present, and no doubt these issues will be taken into account.
A number of noble Lords asked about the timescale for that review. In the present circumstances, I can go no further than to say that it will be brought forward in the course of time. I know that that is not terribly helpful in itself. However, I hope that noble Lords will appreciate that we are concerned to ensure that the review is brought forward as soon as reasonably possible, but that there are other pressures on government at present.
On the observations of the noble Baroness, Lady Bull, again, I concur with her observation that to move from a discretion in guidance to a statutory obligation is itself important. It ensures that there is a clear consideration mechanism to be brought in these cases. We are confident that the provisions of the Bill are sufficient and effective to apply in the contexts of non-disclosure, psychiatric conditions and mental illness. Again, the noble Baroness raised the question of review by the Parole Board, which I have sought to address.
My noble and learned friend Lord Garnier suggested that the Bill does not go far enough. I am reminded of the reference made by the noble Lord, Lord Ponsonby, to balance. I will make two observations. We agree that Parole Board decision-making should be transparent and as open as possible, particularly for victims and their families. However, there are good reasons why parole hearings are held in private. Deeply personal and sensitive issues are discussed regarding the offender, the nature of the offence, the victim and the arrangements for the possible release of an offender, including, for example, where they might or might not live, and the licence conditions that apply. Therefore, the parties must be able to speak candidly, and the prospect of information being made public that could compromise the integrity of evidence has to be borne in mind.
We have taken steps to improve the transparency of the parole process. In May 2018 we amended the rules to allow the board to provide summaries of its decisions, in order to provide victims with an indication of what the position had been. That has improved transparency. In July 2019, the new Parole Board rules were introduced. This created a reconsideration mechanism that can be employed by the Secretary of State, and which has been in one of the cases referred to here.
The second issue that my noble and learned friend Lord Garnier raised was a new offence of non-disclosure. We have to remind ourselves that in sentencing, one is concerned with two elements, punishment and prevention, and the Parole Board’s consideration is of course prevention. Where an offender’s main offence is murder, for which a life sentence is imposed, any additional sentence for a separate offence—for example, of non-disclosure—would have to be served concurrently to the life sentence, because it would be a sentence of immediate custody and could not be deferred to commence at the point the judge sets as the minimum tariff for the murder. Therefore, if a separate concurrent sentence were imposed at or shortly after the time of sentencing for the main offence, it would in all likelihood be completed well before the minimum tariff for the original sentence had been completed. In fact, there is no need for a statutory offence, because courts may consider the common law offence of preventing the lawful burial of a body, which is itself punishable by a maximum sentence of life imprisonment.
Therefore, provisions do exist, but in reality it is more reasonable for the sentencing judge to take account of the non-disclosure when deciding on the length of the tariff, and to increase the tariff accordingly when non-disclosure is seen as an aggravating feature of the crime. We can therefore accommodate this under current sentencing policy, and I do not consider it necessary to introduce a new statutory offence. However, clearly, we will keep the application of the Bill under review—a number of noble Lords raised that point. It would be usual for the implications of the legislation, once it has commenced, to be considered after a period of three years. That gives time for implementation by the Parole Board, for the results to be identified and for improvements, if any, to be contemplated; that will take place in this case as well. On the commencement of the Bill, it is certainly the intention that it should be brought into force as soon as reasonably possible after it receives Royal Assent, which would normally be a minimum of two months after Royal Assent. I do not anticipate that being deferred for any material period, and I am not aware of any reason why it would be, so we would hope to see the Bill in force reasonably swiftly.
I turn to the observations of the noble Lord, Lord Kennedy of Southwark, who asked about a short determinate sentence in the case of manslaughter. There, the person would never come before the Parole Board and the Bill, when it becomes an Act, would therefore not apply to them—so I seek to give him that reassurance.
There was also the question of when somebody maintains that they are not guilty, a point raised by other noble Lords as well. That matter clearly comes before the Parole Board. It has to make a judgment about the circumstances and come to a view about whether such conduct is deliberate. It may be a psychological problem or a mental health issue. That is why we cannot have an absolute rule of, “no body, no parole”, as has been suggested on some occasions. Quite apart from anything else such a rule, while it would not take account of somebody who is suffering a mental illness or who simply has a psychological commitment to denial at all costs, would also potentially be in breach of Article 5 of the European Convention on Human Rights. That allows for punishment and preventive elements in a sentence but would not allow for a non-co-operation element. So there are very real concerns that an absolute rule would be subject to successful legal challenge, which is one thing we do not want in this context. Indeed, if there were to be such a challenge it would merely heap further uncertainty on families and victims of crime in circumstances where we can, if we look forward, avoid that.
The noble Lord, Lord Hastings, raised a number of points on sentencing policy. I am not going to address sentencing as it is not the purpose of the Bill, so it is not appropriate to go there. He also raised release from prison during the Covid emergency and referred to the provision for releasing up to 4,000 prisoners—I stress “up to”—who would be due for release within two months. There have certainly been only limited releases under that provision. However, the whole purpose of that policy was to provide head room within the prison population; that is, to allow for capacity demands to be met within it. They have in part been met because, due to the closedown resulting from the Covid pandemic, courts have not been sitting, trials have not been taking place and people have not been committed to prison as a result of sentences. That has reduced the head room within the prison estate by about 2,500. So it is a question of balancing these issues. We must of course have the means to reduce the prison population if that is urgently required, but we are not going to do it as a matter of course. We do not seek to release 4,000 prisoners just because that figure was the upper limit set in the provisions that were referred to. It is there as head room and will be used if required. If it is not required, it will not be used.
Reference was made to the unfortunate administrative error that led to the release of six prisoners who should not have been released. I commend the prisoners in question, who all returned as soon as the administrative error had been identified. One was then re-released, as it were; the other five were not. But to that extent they co-operated.
The noble Lord, Lord Balfe, asked me a series of about 20 questions. I will seek to address some of them. He asked why we need guidance for the Parole Board. It is appropriate that the Parole Board, like any body of that kind, should work within the boundaries of guidance. It is not that we do not trust it or rely on it but, like any such body, it would like to have a rulebook so that it knows the boundaries within which it operates. As I say, we will bring forward the review when we can.
Will the provisions extend to Scotland and Northern Ireland? I believe that the noble Lord, Lord Naseby, also raised this point. These are devolved issues and it is not for us to legislate for Scotland or Northern Ireland in these areas. However, my understanding is that both those legislatures are addressing this issue and they may in turn bring forward their own legislation in these areas. I would add only this: if somebody was convicted in Scotland but then transferred into the English prison establishment and became subject to the Parole Board in England, the provisions of the Act would apply to them. That is the only exception. Otherwise, we would leave it to the devolved Administrations to discharge their provisions as they think fit.
The noble Lord, Lord Adonis, referred to the observations of the noble and learned Lord, Lord Garnier. I hope that I have addressed those to some extent. Clearly, there is the issue of the interests of victims being considered, and I anticipate that that will form part of the ongoing review into the operations of the Parole Board. I take the point that was made by a number of noble Lords about the introduction of technology to improve that whole process. As we see it accelerating in the courts, why should we not see it accelerating with other bodies? Those developments that just a few months ago people thought would take five to 50 years, are taking five to 50 days to implement, which shows what can be done when it is demanded.
The noble Baroness, Lady Finn, talked about a lack of transparency at the Parole Board; I hope I have addressed that to some extent. There is also the question of the Victim Contact Scheme. No doubt experience indicates that that can be improved, and we may have to look at whether it is an opt-in scheme or an opt-out scheme and how it can best be developed with modern technology to ensure that victims and their families are aware—not after the event but before the event—of these processes. I acknowledge the concern expressed on that point.
The noble Lord, Lord Mann, asked what happens when someone is committed to Broadmoor, for example. Their release would be determined under the provisions of the Mental Health Act and would go before the First-tier Tribunal for determination. If they were then referred back into the prison system, ultimately they would become subject to the parole process and to the Act; otherwise, their release from Broadmoor, or from another institution of that kind, would be under the Mental Health Act and not these provisions.
The noble Lord, Lord Naseby, raised a number of points that I hope I have addressed to some extent. In particular, he asked why we rejected the “no body, no release” point. I have sought to reassure him as to why it is appropriate that we should not accept that particular way forward. There is the question of incentivisation, and one of the purposes of the Bill is to make it very clear, not only to the Parole Board but to prisoners, that this is an issue they will have to face when they reach the preventive stage of their sentence and are seeking to be released into the community. But let us remember that there are evil and manipulative people out there, and they will not cease necessarily to be evil and they will not cease to be manipulative, no matter what legislation we seek to pass. We have to be realistic about that. It is unfortunate, but it is true.
The noble Baroness, Lady Barker, who I acknowledge took helpful and appropriate steps to engage with the McCourts after this Second Reading was deferred, raised the question of “no body, no release” as well, and I concur with the point that she made. She also asked how we would monitor the Bill. As I indicated, it is usual after a period of three years for us to look to review the workings of the Act once it is in force to ensure that it is achieving its necessary objectives.
Finally, the noble Lord, Lord Ponsonby, asked a number of questions. On a victims Bill, I cannot express a view as to how and when such a provision will come forward. On the operation of the Parole Board, we know that it will be the subject of further review, but I cannot fix a date for when that review will be available.
As I indicated at the outset, this is a short but fundamentally important Bill and I hope that I have dealt as far as I can with the specific questions raised by noble Lords, which can of course be taken forward for discussion in Committee.
Baroness Barker
Will the Minister please write to me about whether this legislation once passed can be used by the families of victims to consider judicial review of decisions to release that have already been made?
Lord Keen of Elie
I can answer that now. The Bill will be retrospective to the extent that it will apply to all those currently serving a sentence of imprisonment who are due to come before the Parole Board. If in those cases the Parole Board were to make an error of law by not applying the provisions of the Bill, that would leave it susceptible to administrative action by way of judicial review. But it will not allow families or victims to come forward and seek to judicially review a decision already implemented by the Parole Board for the release of an individual. I hope that makes clear the point the noble Baroness raised. I commend this Bill to the House.