Criminal Justice Act 2003 (Requisite and Minimum Custodial Periods) Order 2024
(Limited Text - Ministerial Extracts only)
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Lord Timpson
That the draft Order laid before the House on 17 July be approved.
The Minister of State, Ministry of Justice (Lord Timpson) (Lab)
My Lords, following the Oral Statement which I repeated in this House on Wednesday 24 July, your Lordships will know that our prisons are in crisis. The male prison estate has been running at around 99% capacity for 18 months, undermining safety for staff and offenders and making the justice system vulnerable to unforeseen events. If we do not act urgently, our prisons will reach full capacity, and the justice system may grind to a halt. The courts would have to stop holding trials, the police would be unable to make arrests, and criminals would be free to act without consequence. If we do not act now, this will become reality by September. Taking immediate action is the only way to protect the public from a breakdown in law and order.
I want to assure your Lordships that we have explored all options. In the little time we have, we cannot build more prisons nor add more prison blocks. While we are deporting foreign national offenders as fast as is legally possible, this will not save enough places to address this crisis. Much of the pressure comes from the straightforward growth in the remand population—those who are in prison awaiting trial. While we are committed to making progress on remand, it would take time that we do not have. This has left us with only one option.
Before I set out the details, let me say that I am grateful to your Lordships for agreeing to bring this SI forward before the Joint Committee on Statutory Instruments has been re-formed and therefore able to consider it. As I have already set out, this change may be implemented with urgency. It has therefore been necessary to ensure that we have a full debate on the substance of the issues as soon as possible. I look forward to reading the committee’s report and that of the Secondary Legislation Scrutiny Committee.
Returning to the SI that we are considering today, it will change the law so that prisoners serving eligible standard determinate sentences will have their automatic release point for those sentences adjusted to 40% rather than 50%. This will mean that around 5,500 offenders will be released in two tranches in September and October. They will leave prison early to serve the rest of their sentence under strict licence conditions in the community. Thereafter, all qualifying sentences will continue to be subject to the new 40% release point. This change applies to both male and female offenders. It also applies to some youth offences, specifically youth sentences under Section 250 of the Sentencing Act 2020, which are imposed on under-18s for more serious offences. They are included, because such offences are likely to end their term in the adult estate. However, as these sentences are for serious crimes, many are likely to be excluded from this measure, as I will go on to explain.
While this measure must address the crisis in our prisons, this must be balanced with public protection. Therefore, certain sentences will be excluded. The worst violent and sexual crimes, which are subject to a 67% release point, will not be eligible. Neither will serious violent offences subject to a sentence of four years or more under Part 1 of Schedule 15 to the Criminal Justice Act 2003. Sexual offences will be excluded, including offences related to child sexual abuse, and we will exclude a series of offences linked to domestic abuse, including stalking, controlling or coercive behaviour and non-fatal strangulation. National security and terrorism offences under the Official Secrets Act and the National Security Act 2023, and offences determined to have been carried out for a foreign power, will also be excluded, as will serious terrorism offences and terrorism-connected offences, which remain subject to a 67% release at the Parole Board’s discretion. No sentence subject to Parole Board release will be included. In each case, we have excluded specific offences rather than cohorts of offenders. That is a legal necessity. The power to make the SI applies to the release point of qualifying individual sentences, rather than to types of offender. In addition to these exclusions, there will be stringent protections in place around an early release.
This change to the law will not take effect until September. This has given our hard-working Prison and Probation Service a crucial eight-week implementation period to recalculate sentences and plan for the releases. Probation officers will have the time they need to assess the risk of each offender and prepare a plan to manage them safely in the community. Every offender released will be subject to the same stringent licence conditions they would have been if released at 50%. Where necessary, multi-agency public protection arrangements will be put in place to protect the public, as will multi-agency risk assessment conferences that consider how best to protect victims. Victims eligible for the victim contact scheme or the victim notification scheme will be notified about releases and developments in their cases, and, as now, they will be able to request licence conditions, such as non-contact requirements or exclusion zones to protect them from unwanted contact. Offenders will be ordered to wear electronic tags where required. Exclusion zones and curfews will be imposed where appropriate. If an offender breaks any of these conditions, they can be returned to prison.
The Government are clear that this change is not permanent. We will review it within 18 months of implementation, at the very latest in March 2026 when we believe that the situation in our prisons will have stabilised and we will be able to return the automatic point of release to 50% of a sentence.
I want to address directly the question of a sunset clause, which we have not included in this legislation, to end it automatically. We have pledged to be honest about the challenges in our prisons and the changes that we put in place to rise to them. Given the scale of the crisis, placing an artificial time limit on this measure would be irresponsible. We have taken the very deliberate decision not to reverse this measure until we are certain that prison capacity has stabilised.
We will introduce a new, higher standard of transparency. Every quarter we will publish data on the number of offenders released, and we will make it a statutory requirement for a prison capacity statement to be published annually, introducing this legislation as soon as parliamentary time allows. This is a departure from the approach of the previous Government, who introduced the end of custody supervised licence scheme, the ECSL scheme. They did not disclose the data, but now we know that more than 10,000 offenders have been released under ECSL.
When this new legislation takes effect we can end ECSL, which gave the Probation Service sometimes mere days to prepare for releases. That meant little time to assess the risk of offenders and plan how they would be managed safely in the community.
Lord Timpson (Lab)
My Lords, I thank all noble Lords for their valuable contributions to this important debate, and I look forward to answering as many questions as I can. I will of course go back and look at Hansard, and if there is anything I have not answered, I will endeavour to write. As noble Lords have already pointed out, I have had quite a busy few days and I am learning fast, so I ask your Lordships to please bear with me if I am not quite as smooth as other noble Lords have been today.
I will start with the noble Earl, Lord Attlee, on recall. Recall is used only when necessary to protect the public. I see no reason to believe that it is being used inappropriately. This week, I went to two prisons to meet the offender management units to see how they were getting on with the important work they are doing. While they were very busy, I got the distinct feeling that they were on top of things and very much prepared for the hard work.
The noble Lord, Lord Beith, mentioned remand. We are very aware that the remand population has seen significant growth, and it is a significant issue. It has grown from about 9,000 to 16,000 prisoners. However, making changes to the remand cohort in a way that respects the individual decision by the judiciary will take time to implement. Unfortunately, we do not have much time.
A number of noble Lords, including the noble Baroness, Lady Jones of Moulsecoomb, the noble Lords, Lord Deben, Lord Beith and Lord Brooke of Alverthorpe, and the noble and learned Lord, Lord Hope of Craighead, talked about who goes to prison. I thought I would mention the sentencing review that we are planning. That will take place as soon as possible. That will, I hope, be an opportunity for noble Lords to discuss and debate where we are going on sentencing.
One point raised by a number of noble Lords was around IPP prisoners. That is not something that is covered by this instrument. If it is satisfactory, I will write to the noble Lord, Lord Moylan, with the exact detail, because this is so new to me and I do not want to get anything wrong at this early stage of my career in this House. IPP prisoners is an area that troubles me deeply. I have been going to prisons for over 20 years, and every time I go into an establishment, I always try to sit in a cell and talk to a man or a woman who is an IPP prisoner. In fact, I sat next to an IPP prisoner on Thursday. They all have a different story. Most of them suffer from multiple challenges; most of them feel lost; many of them are institutionalised. We have a duty to help them live a law-abiding life outside, but it is challenging. We are making progress, and this is one of the areas I want to make further progress on quickly. I assure noble Lords that it is at the top of my in-tray every day.
On the subject of prison building, which the noble Lord, Lord Beith, talked about, it is important, and we are committed to building new modern and safe prisons. For me, one of the advantages of new prisons is that they have the facilities required to help people gain skills and education, so that when they are released they have the skills and confidence that make them more attractive to an employer.
The noble and learned Lord, Lord Hope of Craighead, asked what I meant by “stabilised”. Even though I have been going round prisons for many years, I have been trying to remember when I last felt that a prison was stable. It was probably the category D prisons, up until the last year, where they often had spare capacity and you felt that they were very much on the right side of panic. However, where a prison is 99% full, it is very difficult for the prison staff and probation staff to adequately educate and train, and to have time for those quiet conversations on the wings between prison officers and prisoners, which are sometimes very important turning points in someone’s life. I have worked alongside many colleagues who have left prison, and very often the story they tell me is that their lives were not turned around by family or friends but by a kind prison officer who gave them their time.
The noble Lord, Lord Brooke of Alverthorpe, spoke about mental health. We have a broad failure across many of our public services, including the health service. One of the things that is very important to me as I progress in this role is to support our health professionals to work with our offenders, inside and outside prison. These people have failed society but often society has failed them too, and they often need support to overcome their health problems, especially around addiction.
The noble Earl, Lord Courtown, talked about the impact on communities when people leave prison and how society will cope with that. We are recruiting 1,000 extra probation officers; although they will not be in place completely until March next year, it is an important step. What we want to achieve is a reduction in reoffending. To me, what is important from this job is to help people not to reoffend, because that reduces crime, we have fewer victims, it costs less money and it means fewer wasted lives. The plan at the moment is for the release point to go to 40%, and when we are satisfied that the capacity problem is resolved, it will go back to 50%, We will publish every quarter an update on how this scheme is running. Not all prisoners leaving prison will go on tag; it will depend on whether the professionals deem it to be appropriate. As I said on Wednesday, I will test one of the tags myself to see what it is like, and will report back to noble Lords.
Earl Attlee (Con)
My Lords, the Minister should make sure that it is not a sobriety tag.
Lord Timpson (Lab)
I assume that if it is, I will not be able to have a sherry trifle, which is one of my favourite desserts.
To conclude, this statutory instrument is vital for addressing the capacity crisis in our prisons. It will pull us back from the brink of a total collapse of law and order in our country, which would put the British people at risk—something we cannot countenance. We should, however, be under no illusion: the measure we have debated today is not a silver bullet for prison capacity. It will not end this crisis and it is not the solution for the longer term, but it is a measure that buys us the time needed to take further steps to address the pressures in our prisons and put the criminal justice system on a sustainable footing, in turn providing greater protection to victims and the public. It rightly brings to an end the short-term measures of the previous Government that operated without due transparency, proper scrutiny or the safeguards to protect the public that are the heart of this Government’s approach.
Before I close, I wish to extend some further thanks, building on the remarks I made in my maiden speech in this place. As I said then, those who work in our Prison and Probation Service work every day with some of the most complex people, inside one of the most complex systems. Managing a prison system at around 99% capacity for an extended time will have been an extraordinary challenge not just for those on the front line but for all the partners in our criminal justice system, including civil servants at the Ministry of Justice and those working in the third sector. I therefore thank my colleagues at the Ministry of Justice and His Majesty’s Prison and Probation Service not just for the way they have welcomed me into the department but for their committed and largely unsung service to guiding us through this current prison capacity challenge.
The last Government placed our criminal justice system and prisons in crisis, but the legacy of this Government will be different. It will see a prison system brought under control, a Probation Service that keeps the public safe and enough prison places to meet our needs—which will lead to having prisons we are proud of, but also prisons, probation and other services working together to break the cycle of the revolving door and reduce reoffending. Today’s measure is not the long-term solution—we are being transparent about this—but it is the necessary first step.
Baroness Jones of Moulsecoomb (GP)
Will the Minister respond, perhaps at a later date, to my questions about drugs policy and the fact that this Government did not release a report?
Lord Timpson (Lab)
I thank the noble Baroness. I will write to her, because I am not completely familiar with that and I would not like to get it wrong.