Tuesday 6th January 2026
(2 days, 11 hours ago)
Lords ChamberSentencing Bill 2024-26 View all Sentencing Bill 2024-26 Debates Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: HL Bill 151-I(a) Amendments for Report (Supplementary to the Marshalled List) - (5 Jan 2026)
21:55 - Division on Amendment 76 - Ayes: 41 / Noes: 97 - Amendment 76 disagreed.
Lord Thomas of Cwmgiedd
“Provision for the Parole Board to direct release on licence of an IPP prisoner at a specified future date(1) Section 28 (duty to release certain life prisoners) of the Crime (Sentences) Act 1997 is amended as follows.(2) In subsection (5)(b), at the end insert “or, in the case of a prisoner in respect of whom the Parole Board has made an order under subsection (6B), the prisoner has served the period ending on the future specified date,”.(3) In subsection (6)(b), at the end insert “or the Parole Board has made an order under subsection (6B)”.(4) In subsection (6A), at the end insert “but do not apply to a prisoner in respect of whom the Parole Board has made an order under subsection (6B)”.(5) After subsection (6A) insert—“(6B) In the case of a prisoner serving one or more preventive sentences as defined by section 31A(5), and not serving any other life sentence, where the Board does not direct his or her immediate release under subsection (5), the Board must fix a date for the person’s release on licence (“a specified future date”) and may issue such directions to facilitate the prisoner’s release on licence at the specified future date as it considers necessary having regard to its duty to protect the public.(6C) Any date fixed under subsection (6B) must not be later than—(a) the second anniversary of the date on which the decision is taken in the case of a prisoner serving a sentence of imprisonment or detention in a young offender institution for public protection under section 225 of the Criminal Justice Act 2003 (including one passed as a result of section 219 of the Armed Forces Act 2006);(b) the first anniversary of the date on which the decision is taken in the case of a prisoner serving a sentence of detention for public protection under section 226 of the Criminal Justice Act 2003 (including one passed as a result of section 221 of the Armed Forces Act 2006).(6D) A prisoner in respect of whom a direction has been made under subsection (6B) may apply for the specified future date to be varied once six months have passed from the determination of the release date.(6E) At any time before the expiration of an order for release on licence or direction made under subsection (6B) or an order for release on licence or direction made under this subsection, the Parole Board shall on the application of the Secretary of State, or as the Parole Board may otherwise determine, reconsider any order for release on licence at a specified future date or direction then in force and may direct that the order for release on licence or direction made be set aside and in its place extend the specified future date or order a new specified future date or make any further directions as to the licence conditions it considers necessary.”.”Member’s explanatory statement
This amendment requires the Parole Board to release on licence at a fixed future release date post tariff IPPs (who has not been released on licence immediately), after the successful completion of directions designed to ensure the public will be adequately protected upon release, with residual powers for the Secretary of State to apply to the Parole Board to vary its Orders.
Lord Thomas of Cwmgiedd (CB)
My Lords, the last Government and this Government have done a great deal to help those who were sentenced to imprisonment for public protection and released on licence. I welcome the amendments tabled by the Government and other noble Lords in relation to the position of those on licence. But we have done nothing to deal with the problem of those who have never been released. In moving the amendment, I seek to provide a measure of real justice in the Bill for what is otherwise largely a Bill to deal with the prison crisis and to ensure that the prisons can run in an orderly manner. The amendment deals simply with justice.
I need not tell your Lordships the current position; it is well known. There are more than 940 prisoners who have never been released and some 200 more in secure mental accommodation, again who have never been released, even though this sentence was abolished in 2012.
Nor is there any need for me to set out the human stories of what these people who have never been released have been subjected to: short tariffs, yet many, many years beyond their tariffs. No one has really tried to address this. Suggestions have been put forward, including resentencing, but each Government have said no, so the Howard League decided it would set up a small group of experts to try to come up with a solution and bring justice at long last.
The key element of that solution, which is embodied in Amendment 76, is that the Parole Board ought to be asked to modify its position and to determine what steps would be necessary to ensure the release of those who have never been released within a two-year window. At the time this amendment was put forward in Committee, it did not contain what I would call a fail-safe clause, but, with the very great help of the noble Viscount, Lord Hailsham, it now contains a clause that modifies the original proposal and enables the Government—or HMPPS—to go back to the Parole Board and say that this two-year window cannot be met. So there is therefore a complete fail-safe.
The real question is: having left the decision in the hands of the Parole Board, and having tried to ensure that we give these prisoners hope and that we provide for the safety of the public, why will the Government not accept this? It is difficult to find an answer, because accepting it would bring justice as far as the public are concerned, and certainly as far as victims are concerned: many of these crimes were committed at least, by their very nature, more than 13 years ago. Above all, it would ensure justice for the offenders.
I summarised in Committee the reasons why we needed to do something. There was no conceivable justification for keeping people in prison under a sentence that is universally and without exception regarded as a mistake. Most people are flabbergasted when you say we are still imprisoning people 13 years after we concluded that the sentence under which they were imprisoned was wrong in principle. There can be no justification. More seriously, if you had the position where you committed an offence before 2005 or committed an offence after 2012 of exactly the same kind as one committed by those who are subject to the IPP, you would be automatically released at the end of that determinate sentence. There is no conceivable justification for discriminating against those who happened to be sentenced during a period of mistaken penal policy.
Worse still, the effect of the sentence, particularly on those who have never been released, is that it has severely damaged them mentally. To the extent that they may pose, or be thought to pose, a risk of danger, that is something that the state has helped create. Normally when the state makes a mistake, the state is sorry and tries to do something for the victims of its mistakes. Why not here?
Then, as is clear from the other provisions of the Bill, and as the Minister made very clear when dealing with an amendment just before the break, the prison capacity is in such crisis that we have to send, for example, foreign national offenders back to their own country, and we have to release serious offenders under what is described as the earned progression model. Why, therefore, can we not, in the middle of this calamity, see whether we could achieve some balance in prison capacity by addressing this problem?
Viscount Hailsham (Con)
My Lords, I express my support for the new clause which has been so ably advocated for by the noble and learned Lord, Lord Thomas, and to which I and the noble Lord, Lord Marks, have added our names. The purpose behind the new clause achieved very considerable support at Second Reading and in Committee. I will focus primarily on the provisions of proposed new subsection (6E), which I hope meet the primary concerns that have been expressed by the Minister.
As the noble and learned Lord, Lord Thomas, rightly said, it is now widely recognised that the IPP regime is a very serious stain on this country’s reputation for justice. We need to address that. It has been addressed prospectively by legislation but not retrospectively. This new clause gives your Lordships’ House—and thus Parliament—the opportunity to do it in a statutory form. Hitherto, this Government, like the previous Government, have relied on administrative measures. That is not sufficient.
The noble and learned Lord, Lord Thomas, has set out the essential facts. They can also be read and studied in the report of the House of Commons Select Committee on Justice that was published in 2022 and more recently in the report published in June 2025 by the Howard League for Penal Reform. My noble and learned friend Lord Garnier and the noble and learned Lord, Lord Thomas, were very distinguished contributors to that report. I will not repeat what has already been said and published. Like the noble and learned Lord, Lord Thomas, I will concentrate on the solution.
The proposed new clause reflects the principal recommendation of the Howard League; namely, a two-year conditional release scheme for IPP prisoners. The league’s recommendation, which is incorporated in the new clause, is that in IPP cases the Parole Board should be required to set a date within a two-year window when a prisoner should be released, together—this is important—with what has been done by way of conditions to ensure public safety. The Government’s reaction is not one that I am blind to. It has been to oppose the recommendation on the grounds that it runs the risk of releasing individuals who, in the opinion of the Parole Board, may pose a continuing risk to the public. That is indeed a risk which needs to be addressed. I suggest that it is properly and fully addressed by proposed new subsection (6E).
It is never possible wholly to exclude risk. I have some personal experience of this. Nearly 40 years ago, I was a junior Minister in the Home Office. The then Home Secretary was Lord Hurd of Westwell. I served him for seven years in the Home Office and the Foreign Office. He is one of the most distinguished public servants of the post-war era. Subject to his overarching responsibility, I was responsible for determining the release of inmates from special hospitals. I was also responsible for fixing the tariffs in homicide cases. That, happily, is no longer a task for Ministers. In both instances a risk of repetition of the offence could not be excluded, but unless you wish to incarcerate an individual for life, which in general I regard as unconscionable, you have to take a measure of risk. The task before any Government, any Minister, is to address and mitigate the risk. That is what proposed new subsection (6E) seeks to do.
The subsection is designed to meet the concerns that have been expressed by Ministers, most recently and in particular by the noble Lord, Lord Timpson. It would enable the Parole Board, at any time during the currency of a previously made order, to revisit that order, and if the Parole Board deemed it necessary, rescind or vary the provisions of the order or extend its term.
Moreover, and this is perhaps the most important point, the subsection would oblige the Parole Board to reconsider its previous decision if required by the Home Secretary or his Ministers; in other words, the Home Secretary or his Ministers can require reconsideration of any relevant Parole Board decision in respect of which the Home Secretary has concerns. I suggest to your Lordships that this addresses very precisely the concerns that have been previously expressed by Ministers, most notably by the noble Lord, Lord Timpson.
So I suggest that the proposed new clause, containing as it does the important protection afforded by proposed new subsection (6E), addresses what is generally recognised to be a very serious injustice; and it does so in a way that safeguards the public interest. I very much hope that it will command the support of your Lordships’ House and thereafter that of the House of Commons.
Lord Carter of Haslemere (CB)
My Lords, I too strongly support the amendment moved by the noble and learned Lord, Lord Thomas. This amendment is the safest, best amendment on IPP prisoners we have seen so far. It would give an IPP prisoner a clear statutory steer as to what they have to do in order to secure release on licence. The prisoner would know that if they fulfil the board’s directions, they will be released on licence. It would give them a clear goal to aim for which does not currently exist.
If, therefore, the prisoner is serious about being released, this would be the best opportunity they have had so far. It would be heavily incumbent on the Prison Service to ensure that the IPP prisoner has access to any purposeful activity or other requirements set out in the Parole Board’s directions. This must be an absolute priority.
Above all, the final decision on whether it is safe to release the prisoner would rest with the Parole Board, as the noble Viscount, Lord Hailsham, has said. Proposed new subsection (6E) in Amendment 76 is the key provision, which is new and leaves the final decision with the Parole Board. That is what the Government, in resisting resentencing options, have said time and again must be the case: the Parole Board must have the final say. Well, here we are with this amendment, so what possible reason can the Government have for not accepting it? It is not good enough to say it will give IPP prisoners false hope. That is tantamount to saying that some IPP prisoners will never be released. This would be completely unacceptable.
This Government have responsibility for every day an IPP prisoner is detained and the despair that this causes. They must urgently consider every reasonable option for ending this disgraceful situation. This is the most reasonable option yet which is now on the table. It must be tried.
Baroness Ludford (LD)
My Lords, we have heard three excellent speeches in support of this amendment, which was again introduced most powerfully by the noble and learned Lord, Lord Thomas, as it was in Committee when he said, if I recall correctly,
“we will have … blood on our hands”.—[Official Report, 3/12/25; cols. 1803-04.]
if we do not do anything about this situation.
Article 3 of the European Convention on Human Rights, which I am glad to say the Government are still committed to, forbids
“torture or … inhuman or degrading treatment or punishment”.
But surely that is what the Government—the state—are subjecting IPP prisoners to. I would like to hear why the Minister considers that there is no breach of Article 3 in this case.
Lord Garnier (Con)
My Lords, the noble and learned Lord, Lord Thomas, set out with great clarity the cogency of his proposed new clause. I entirely support it and, if he wishes to test the opinion of the House, I shall join him.
Many of the amendments in the group we are dealing with are concerned with providing a mechanism through the Parole Board. My amendment proposes another new clause that would not use the Parole Board but rather a panel of existing or former judges. The protection to deal with the risk that people seem to be fearful of is provided through that route rather than through a Parole Board decision.
I will come to explain the detail of my proposed new clause, but I am grateful to the noble Baroness, Lady Jones of Moulsecoomb, and the noble Lord, Lord Woodley, who is not in his place, for their support for this new clause. As the noble and learned Lord, Lord Thomas, said a moment ago, it is uncontroversial that nobody of any humanity or sentience thinks that this IPP regime was a good idea or should be allowed to continue—and continue to cause harm. When the Minister winds up, will he admit or accept, on behalf of the Government, that the IPP regime as currently administered is causing real harm to people in prison and on licence outside prison, who are in danger for reasons wholly unconnected with the original offence that gave them the IPP in the first place? Will he accept that it is doing our reputation as a place of fairness and justice real harm? There is not an angle from which you could come at this problem without feeling dirty and appalled by the way in which it is being continued.
The noble and learned Lord, Lord Thomas, and I looked at 60 sets of case papers dealing with IPP offenders who had all been recalled. A large proportion of them had been recalled for relatively trivial reasons. A large proportion had been recalled for reasons that had nothing whatever to do with the index offence for which they had been originally sentenced. They had returned to prison, and some of them had been released again after a period and then re-recalled, thus extending the ludicrous, Kafkaesque nature of this type of sentence. As Lord Brown said all those years ago, it is a stain on our justice system. It is uncontroversial that where we are now is a disgraceful state of affairs, and it ought to be dealt with.
The noble and learned Lord, Lord Thomas, cited in general terms some of the information provided to us by UNGRIPP, of which I am a patron. It is an interest group of families of IPP prisoners seeking to reform this regime. As the noble and learned Lord said, 946 people have never been released from their IPP sentence. Of that 946, 940 are in prison over their tariff limit, and 689 are incarcerated between 10 and 20 years beyond their tariff. These are numbers, but they describe real people and real families who are affected by this disgraceful state of affairs.
Just to underline the point about real harm, I note that 1,476 people are currently back in prison on IPP recall. Some 70% of those were recalled for an administrative reason—they failed to turn up for an appointment or they were drunk—but that had nothing whatever to do with the original offence, as I have said any number of times, nor had they committed an additional offence. One thing I learned from the study I did with the noble and learned Lord, Lord Thomas, was that, if you are going to recall somebody by virtue of another form of misconduct and it amounts to a criminal offence, they should be prosecuted. They should not just be pulled off the street administratively; they should be charged, tried and sentenced or acquitted on the evidence. There should not be this sneaky little business of just pulling them off the street in an East German or Soviet way.
But that is enough of the figures; let me go back to my new clause. Where I differ from the method advanced by the noble and learned Lord and my noble friend Lord Hailsham is that our new clause would require a panel established by the Secretary of State
“to reconsider the cases of every person subject to a sentence of imprisonment for public protection … and in custody within six months of the date”
on which the Bill is enacted. The panel would consist of 12 judges or former judges under the age of retirement who have sat in the Crown Court, and they would be nominated to serve on the panel by the Lord Chancellor. But while I think that proposed new subsection (6E) is the magic subsection in the noble and learned Lord’s new clause, my proposed subsection (3) is the one that I invite your Lordships to concentrate on, because it introduces a degree of thinking about what is proportionate into the question that has to be discovered.
Subsection (3) reads:
“As soon as practicable after the establishment of the panel, a member of that panel—
so, it will be one judge at a time, not all 12 sitting in a group—
“must reconsider each case and determine whether, having regard to … (a) the nature of the person’s offending”.
Let me say in parenthesis that there will be some people serving an IPP sentence who may have been held to be dangerous because they have committed, for example, a double rape or a vicious, violent assault. But there are some people on IPPs who have done no more—I say “no more” in inverted commas—than commit a street robbery and stolen, with violence or with the threat of violence, somebody’s mobile telephone. They may have done it several times. Yes, that is very bad behaviour, but some of these people, having been given a 12-month or 18-month tariff, are still languishing in prison 20 years later. Is that what we call justice in this country?
Let us bring some sense of proportionality back to the assessment of the offender. Look at the period spent in custody; look at the risk to the public. Of course, we all worry about what risk is and how to assess it, but we have to make an attempt to assess the best, or the least worst, way of mitigating that risk. We either do it through the Parole Board, or we do it, it seems to me, through this judicial panel, but it has to be done. We cannot just sit on our hands and say, “It’s all too difficult”. If it is 10 years too late, if it is five years too late, if it is five weeks too late, if it is five days too late, if it is five minutes too late, it is too late, and we must do something right now.
The judge on the panel would have regard to
“the arrangements that can be made for supervision, rehabilitation and support in the community”.
Many of these people have become catastrophically institutionalised as a consequence of being imprisoned all this time. Just imagine that you have been bunged inside for robbing a person of their telephone—a relatively minor offence in the great canon of criminal affairs—and there you are, 20 years later, possibly having been recalled because you failed to turn up to an appointment at a parole or a probation office, asking yourself, “What on earth is the point? I will either take my own life or I will live in this place till the day I die of natural causes”. Let the panel, let the judge, look at what can be done with regard to supervision, rehabilitation and support outside prison.
If noble Lords are worried about that, the panel judge does not have the final decision, because his or her decision is susceptible to judicial review, and if the Secretary of State does not like it, he can refuse to accept the recommendation. And the Secretary of State’s decision is susceptible to judicial review.
There are different ways of dealing with risk, but whatever way you go at it, you have got to do it. Really, one must stop dallying around and saying, “It’s all too difficult and the Daily Wotsit won’t like it if somebody gets out”. We are bigger and better than that, and we should do something about it.
Baroness Chakrabarti (Lab)
It is time for this side. Forgive me, but I think it is time that we heard—
Baroness Chakrabarti (Lab)
Forgive me.
I want to be brief, because the speeches have been eloquent and passionate. All the bases have been covered, but in the absence of, for example, my noble friend Lord Blunkett, whose amendments I signed, it is important that someone from the Labour Benches conveys the concern that persists in the Labour Party. That includes people who are incredibly loyal to the Government and incredibly proud of the Minister, my noble friend Lord Timpson. The anxiety and concern at this profound injustice is very live and real.
I support the noble and learned Lord, Lord Thomas of Cwmgiedd, and other aspirations and amendments in this group. I agree that administrative mechanisms have not been enough. They do not show the signs of being enough to prevent more suicides and self-harm from what the noble and learned Lord put very well as having been a collective miscarriage of justice. When miscarriages of justice are perpetrated by the judiciary, there are appeal mechanisms and even executive pardon mechanisms to deal with them, but this was perpetrated by the political class: by the Executive and the legislature.
To the credit of the coalition Government, the IPP sentence was ended, but the response in relation to those already incarcerated was inadequate. These people, frankly, rot in prison. The noble and learned Lord, Lord Garnier, put it very well: some of these people have now been incarcerated—some even without any release—for offences that would never have justified life imprisonment. They are decades beyond tariff. This is unconscionable, and something must be done.
I know very well from regular meetings and from all the engagement and work that my noble friend Lord Timpson is doing that he is committed to getting these people out, if at all possible, but administrative mechanisms do not seem to be enough. I hope he will forgive me for saying that, in these meetings and in that engagement, some of us have observed even institutional intransigence in some parts of the institution about dealing with this. Frankly, this was a legislative disaster and it will require a legislative solution. I hope that my noble friend the Minister will be able to make this 11th-hour concession. That may prove difficult— I do not know—but, at the very least, I would hope that he might consider a free-standing Bill that the Government could bring forward, with cross-party support, to provide a mechanism to deal with the remaining relatively small number of people suffering this profound injustice.
Administrative mechanisms and “wait and see” are plainly not going to work, not least because of the point about zero risk that was introduced by the noble Lord, Lord Moylan, earlier this evening and has come up in a number of speeches. There cannot be zero risk. There is not zero risk with people in the mainstream population who have never been convicted of an offence so, of course, there is not zero risk in relation to this cohort. Any risk that they pose has probably been exacerbated, as was put by the noble and learned Lord, Lord Thomas, by this appalling state-sponsored miscarriage of justice of collective proportions.
It is time for all of us to play our part on a cross-party basis, which is why I shall be listening as anxiously to the reply from the noble and learned Lord, Lord Keen of Elie, opposite. This is a political problem and an institutional problem, and it will take good will from all sides to deal with it. We spoke earlier about the purposes of imprisonment. The legitimate purpose of imprisonment was never supposed to be political point-scoring, yet that political point-scoring has created all sorts of problems that have escalated in the past three decades, so I hope that there can be some olive branch offered from that side of the House as well.
I know that the Minister is committed to justice and has proved in his extraparliamentary life what can be done with genuine courage and a commitment to turning people’s lives around. This, I know, is on his mind. I am asking him to consider a legislative response, rather than just leaving it to administration, because that has not been sufficient. I support the approach of the noble and learned Lord, Lord Thomas, but there is a lot in what the noble and learned Lord, Lord Garnier, said too. It is perhaps a shame that we did not have a single offering, but I firmly believe that there will have to be a legislative offering, ideally from the Government. Otherwise, this stain—the word of my dear friend and former mentor, the late Lord Brown of Eaton-under-Heywood—will carry on, perhaps beyond our own lifetimes, and I for one would be seriously ashamed of that.
Lord Moylan (Con)
My Lords, there are amendments in this group in the name of the noble Lord, Lord Blunkett. He has asked me to say that he is mortified that he cannot be here today and that he sends his apologies to the House that he is not able to be here to move them.
I have my own amendment in this group, Amendment 78, which is carried forward from Committee. It is a very modest amendment making an administrative change that relates only to prisoners who are out on licence, to make it easier for some of them to discharge their licence. I am delighted to say that it had a reasonably good welcome in Committee from the Minister and that he has brought forward his own amendment, the government amendment in this group, which effectively does what I was proposing in my Amendment 78, so of course I have no intention of moving that and I encourage noble Lords to support the government amendment in this group.
Turning to the main question, we have the essential problem. I am not here to beat up the Government. I say straight away that there are difficult issues here for Ministers, and not just Labour Ministers. I have seen very good people as Conservative Ministers struggle with the same issues in the past, and that would be true if they were Ministers from other parties. The issues are genuinely difficult because of the question of public protection. However, as the noble Baroness, Lady Chakrabarti, said, complete protection of the public is not possible. The way in which we try to maximise protection for the public in these cases is through having decisions about release made by independent bodies, in particular by the Parole Board. Ministers of both parties have been very clear that nothing is going to happen, and nobody is going to be released, unless it is with the say-so of the Parole Board.
The noble and learned Lord, Lord Thomas of Cwmgiedd, has crafted his amendment very much with that in mind. The Parole Board follows certain procedures, and those procedures are not fixed in stone, it seems to me. The procedures, of course, are up for argument. The fact that it is the Parole Board that must decide is not up for argument, but how the Parole Board works can legitimately be up for argument.
What the noble and learned Lord has done is try to change those procedures, to change the emphasis so that the prisoner is given an incentive to engage with the Parole Board: an incentive that, if certain things are complied with within a certain period, the Parole Board will say yes, rather than the current system, where the prisoner goes through hoops and then finds out afterwards whether the Parole Board is going to say yes or no.
That is a shift in balance; it is a change merely in the way that the Parole Board works. However, just to make 100% certain that the danger to the public is not increased, the noble and learned Lord has, of course, included the measure that he mentions, whereby the Parole Board can rescind any such conditional offer if it finds that it is not working out.
It seems to me that the Ministers should be able to have an open mind about a proposal such as that, because it does not touch the red lines that they are so concerned about. It is merely a change in the way the Parole Board approaches its task, but one that has a better prospect of success.
Similar remarks could be made about the proposal from my noble and learned friend Lord Garnier. Again, the independent body in this case would be a panel of judges, or a judge operating from a panel, and again, the Secretary of State would have a final say—the Secretary of State could override it at the end—so there would be a fail-safe built in.
I think it is fair to say that either of these mechanisms would have a dramatic effect in altering the balance. While there would still be some prisoners, I frankly admit, who probably would never meet those criteria, or at least not without a great deal of work, it would start to address that residue that is finding it very difficult to move, and it would do so in a way that does not cross the Government’s red lines.
I have every sympathy with the Minister who, as other noble Lords have said, has worked extremely hard on this. We are trying to make it as easy as possible for him to be able to embrace some sort of change, while protecting public safety. I hope that he can step forward and say something positive that we could carry forward for the future. If the noble and learned Lord, Lord Thomas, chooses to divide on this amendment, I would feel obliged to follow him into the Lobbies, but I would much rather hear it said by the Minister that he will be able to find that compromise that would allow all of us to work together in this direction.
Lord Davies of Brixton (Lab)
My Lords, the case has been made clearly and persuasively, with no significant objection, but it is a difficult issue of public policy. As the noble Baroness, Lady Ludford, said, there is a risk—there is this downside risk of a case that will make headlines in the newspapers—but that has to be set against the certainty of the harm that this policy is causing to many people at the moment.
We know that. It is well attested, and my noble friend the Minister knows that full well. So we have to accept the risk and embrace the opportunity to greatly help people who are suffering in our prisons from this policy. I will listen with care to my noble friend’s response to the debate. I very much hope that he will be able to give us some hope, but I will find it difficult to join my colleagues in the government Lobby.
Baroness Jones of Moulsecoomb (GP)
My Lords, clearly it is wonderful to hear from the Labour Benches, because I know from private conversations that there is a lot of concern about this. It is a morally indefensible position to say that we are not going to do it because of public opinion, or because a newspaper might pick it up and run a bad story about the Government. There are enough bad stories about the Government; I am sure it would get lost in the confusion.
Lord Berkeley of Knighton (CB)
My Lords, I was schooled in this subject, if I was schooled at all, by the late noble and learned Lords, Lord Brown of Eaton-under-Heywood and Lord Judge. They both took me through this and were absolutely certain in what they were saying: noble Lords will have heard Lord Brown’s verdict that this is possibly the greatest stain on our judicial system. As the Minister knows, I feel very strongly about this, and indeed joint enterprise.
But the thing that I would like to talk about very briefly is proportionality. I am very attracted both to the solution from the noble and learned Lord, Lord Thomas, and to that from the noble and learned Lord, Lord Garnier. Earlier, we heard the Minister, the noble Lord, Lord Timpson, arguing very eloquently and successfully on Amendment 74. Equally, we heard the noble and learned Lord, Lord Keen of Elie, putting a very strong case from his point of view. But the fact is that some of the people in prison for this are not in prison for things anywhere near as serious as the things that noble and learned Lord, Lord Keen, mentioned and that the noble Lord, Lord Timpson, said would be okay, because they would be carefully scrutinised.
There are people serving endless sentences who were originally sentenced only to 18 months in prison. They are still there. Their families are still concerned. We have to look at proportionality. What were they originally sentenced for? How long were they sentenced for? How does that colour the views of the Parole Board or judges? I think that is an essential point which leads us to feel shame: people are in prison for very minor offences compared with rape and murder, and are there on an original sentence that was relatively minor compared with those for murder and rape. So we really do have to look at this.
I will not go on any longer. I just implore the Minister to use the mercy and clemency he has shown so clearly in dealing with the prison system in this case. There is a unanimous feeling around the House: nobody yet has gone against the point we are all making that something has to be done.
Baroness Fox of Buckley (Non-Afl)
My Lords, to start with, I would just like to point out that the noble Lord, Lord Timpson, is undoubtedly personally committed to resolving this issue. Nobody, I think, is making any party-political points and nobody is personally having a go at the Minister. But that is not sufficient for us to go home with tonight. We still have to say that, regardless of how honourable and wonderful the Minister might be, IPP has dragged on. So I will be voting for the amendment from the noble and learned Lord, Lord Thomas of Cwmgiedd, but since he spoke so brilliantly to start this debate, all the speeches have been as though I have never heard the subject before. I feel like crying, I feel like screaming. In other words, this is an incredibly important scandal that gets to you every time, and gets to members of the public every time when you share it with them. They are equally appalled; they cannot believe it.
One of the points that I noted from the amendment tabled by the noble and learned Lord, Lord Thomas, is that it will make the indeterminate determinate; there will be an end in sight. Apart from anything else, never mind the sentences, I feel as though this debate is indeterminate and going on for ever, because I seem to have repeated it endlessly. When I heard UNGRIPP making the point that for the current decrease in the IPP prison population it will take a minimum of 11 years to release everyone currently on an IPP sentence—that is, 31 years since its introduction and 24 years since its official abolition—you do think, “It’s got to end”. Nobody is doing this as a joke or a game to just make the same kinds of speeches.
Amendment 96, from the noble and learned Lord, Lord Garnier, particularly appeals to me. I am not always a fan of judges, it has to be said, but one of the things I like about it is that every single prisoner would be looked at, and each and every circumstance would be considered. That is very important, because there have been times when it has been made to sound like one size fits all—you know what I mean, release them all or what have you. This has the advantage of taking into consideration every single circumstance and what particular prisoners would need. I think that is very important.
Something that I do not think has had enough mention tonight is that in some instances the resolution is that a prisoner will need to be transferred to a hospital, and it might not be straightforward to release them from hospital. They might be very seriously ill at that point. But the main thing would be, because the end would be in sight, if they were ever well enough to be released from hospital, they would not then go back to prison on the IPP sentence that very often has made them ill in the first instance. I want to quote a psychiatrist who said, “How do you motivate somebody to take part in treatment at a hospital if the outcome of that is effectively to facilitate their return to prison?” That is a terrible tragedy.
I will just finish with an anecdote, because it makes the point. Rob Russell, who is on an IPP sentence and in prison at the moment, was sentenced in 2009 for making threats to kill his former partner. I hope I have illustrated today, when I have spoken, that I am not a fan of being soft on perpetrators of domestic abuse. This is somebody who threatened to kill his former partner. He was sentenced in 2009 and has never been released. He is now in hospital. I want him to get well, but I do not want him to go back to the IPP sentence. Can you imagine if he gets well and goes back to prison? He could be on the same landing as somebody who has been convicted for domestic violence, not threats but actually committing violence against their partner: but as that person is on a standard determinate sentence, they could be offered early release—“Earn your way to release”—but Rob will not be, whereas he actually just threatened. I honest to God think that is grotesque.
The Minister today, who I am a great admirer of, justified the risks of freeing people early who have been violent on the basis of freeing up space in prisons, because we have to protect victims and give them space. IPPers might well present a risk when they are freed into the community, but, as has now been explained, so will all those people on early release that we have just discussed all day. There is no doubt that something will happen with some of them. I do not wish it; I just know it. The fact that those serving an IPP sentence have to prove every time that they will never do anything again is ludicrous. If I was Rob, who has been mentally ill, and I had to compare myself with this person who is getting out early, the sense of frustration and hopelessness would honestly make my mental health deteriorate again.
So I simply think that it has to end and we have to do whatever is required. The Minister would be helped if it was legislative. Whichever amendment works, works for me; I will vote for it. This cannot carry on. I know that is too melodramatic. I just mean that, genuinely, this needs to end. It is grotesque in the context of this Sentencing Bill, releasing people for a wide range of reasons when we cannot release people who are in prison decades after their tariff for minor things, and we will not even look at assessing each of them to see whether they might be safe beyond the IPP Parole Board. It is just ridiculous.
Lord Marks of Henley-on-Thames (LD)
My Lords, I co-signed Amendment 76, from the noble and learned Lord, Lord Thomas, and shall support it. The amendment from the noble and learned Lord, Lord Garnier, would achieve the same outcome. Either amendment would right this injustice. The present position is simply cruelty.
I have very little to add to the speeches, all of which have been principled and humane. Across the House, noble Lords have gone to great lengths to acknowledge and address the risk of further offending while seeking to end the appalling injustice of the continued indefinite incarceration of IPP prisoners. My noble friend Lady Ludford referred the House to Article 3 of the European Convention on Human Rights and challenged the Government to come forward with a response to the human rights case. There is none.
I simply do not understand the reasoning behind the proposition that we cannot or will not release IPP prisoners when prisoners serving determinate sentences are entitled to be released, and are released, at the end of their terms. As the noble and learned Lord, Lord Garnier, and the noble Lord, Lord Davies of Brixton, pointed out, resistance to ending this injustice fails to balance the actual harm of the present regime to IPP prisoners against the possible risk of further offences by a released IPP prisoner. The Government have a duty to balance risks and harms. On this issue, the balance is between the actual harm to IPP prisoners and the theoretical but possible harm that is risked by releasing them.
As we have heard, subsection (6E) of the proposed new clause in Amendment 76 would leave the Parole Board in charge. It is more than reasonable. Justice and humanity demand that we end this.
Lord Keen of Elie (Con)
My Lords, these amendments address the most complex and sensitive of legacies in our sentencing framework. Few issues illustrate more clearly the challenge of balancing public protection, fairness to victims, management of risk and the injustice to individuals who have already served far beyond their original tariff. The noble Lord, Lord Berkeley of Knighton, correctly pointed out that there is an issue here of proportionality; we seem to sometimes lose sight of that.
Amendment 76 does not provide for automatic or immediate release. Instead, it would require the Parole Board, where it does not direct release, to fix a future release date, subject to conditions intended to ensure public protection but also to instil some element of hope. The amendment would preserve a central role for the Parole Board, including, of course, powers to issue directions, vary release dates and reconsider decisions where public safety requires it. The inclusion of time limits seeks to balance progression with caution, though views may differ as to whether these limits are set at the right level.
These are complex judgments, and reasonable views can differ on how best to reconcile rehabilitation and public protection. These proposals represent a thoughtful attempt to impose coherence and fairness on an area of law that has become impossibly difficult, while attempting to keep public protection firmly in view. I hope that the Minister will engage constructively with the principles underlying these amendments and explain how the Government intend to address the long-term sustainability of the IPP regime. The status quo is untenable.
The Minister of State, Ministry of Justice (Lord Timpson) (Lab)
My Lords, I thank all noble Lords for their amendments on IPP sentences and for their impassioned speeches this evening. As the noble Lord, Lord Berkeley, kindly said, I share their commitment to addressing this issue with compassion, evidence and tenacity. I thank the many noble Lords who have participated in debates, meetings and discussions on this issue. I am grateful for their challenge and support, both in your Lordships’ House and at our Peers meetings, which I plan to continue in the future.
Lord Thomas of Cwmgiedd (CB)
I am grateful to all noble Lords who have spoken in this debate, in which the views, save that of the Minister, have been unanimous across the House. The unanimous view is that something needs to be done in the interests of justice.
It is justice that lies at the heart of this debate. One of the cardinal principles of justice is treating everyone equally before the law. If you stole a mobile phone from someone in 2005 or 2014, you ought to be treated in exactly the same way if you committed that offence during the period of this misconceived sentence. Failing to do that is to condemn people to injustice and to perpetuate it. It is no excuse to say, “Well, they were under a sentence passed by the courts”, when everyone has agreed that that sentence was wholly misconceived; nor is it an excuse to say there is a risk that they are more dangerous, because the psychiatric evidence is unanimous in the view that the form of sentence has made that danger greater.
On the amendment and what it tries to deal with, I am very sorry that those who provided the briefing to the Minister did not understand the change that had been made to the proposals I and the noble and learned Lord, Lord Garnier, put forward, because neither required a two-year release. There was a safeguard put in. What we proposed would have protected the public to the extent that they are and must be protected.
I would hope that we could give people hope. I do not believe, from what I have seen—as the noble Baroness, Lady Chakrabarti, said and the noble and learned Lord, Lord Garnier, has said, from the files he reviewed—that this can be solved administratively; it needs legislation.
I, therefore, with deep regret, feel it necessary to test the opinion of the House. In doing so, it is important to bear in mind what Lord Lloyd of Berwick reminded the House of in 2014: Winston Churchill said many years earlier that
“one infallible test of any civilised country is the way it treats its prisoners”.—[Official Report, 20/10/14; col. 456.]
I hope we will not fail that test. We need to do justice to those in prison. I therefore would like to seek the opinion of the House on Amendment 76.
Member’s explanatory statement
This is connected to Lord Marks’ amendment to after Clause 29, and his amendments to page 55, line 26 and page 55, line 30. Together they ensure that there is flexibility in the number of days a prisoner may be recalled for in relation to less serious offences, while also ensuring that those who had committed certain serious offences are not eligible for automatic release following a fixed term recall.
Lord Marks of Henley-on-Thames (LD)
My Lords, my Amendments 79 to 81 would make the 56-day fixed period of recall a maximum period and not a fixed period, while my Amendment 87 would make automatic release after a recall subject to an exclusion in those cases where it applied, particularly for serious offenders.
Recalls can and often do follow relatively trivial breaches of licence conditions, and that is one of the criticisms that is frequently made of recalls from licence. The 56-day fixed period of recall addresses the question of how long a recall should be and prevents it being indefinite, but we suggest that 56 days may be in some circumstances too long, so we would prefer a flexible period. The 56-day fixed period under the Bill would apply irrespective of the seriousness or otherwise of the breach that brought about the recall, and it may often therefore be unjust. Eight weeks is a long time, and it may be far too long. As we know, it may follow, for example, a prisoner simply missing a probation appointment.
As I pointed out in Committee, recall is likely to cost an offender who had found employment following a release on licence—we have heard how important finding a job is for offenders. Where such an offender has found work, the recall may jeopardise that. It might risk a newly released offender’s housing—again, we know how difficult it is to find housing—or participation in educational, skills or vocational programmes or other rehabilitative programmes. Indeed, more seriously, it might affect an offender’s mental health treatment or treatment for addiction or substance abuse or gambling addiction.
A shorter recall might also carry those risks, but the likelihood is far less, and in a case where a shorter recall would be appropriate, those consequences should be avoided. Furthermore, an unnecessarily long recall for a minor infringement of licence conditions would not reduce the prison capacity shortage; indeed, it would make it worse. A shorter recall might mitigate that.
However, there are cases where a 56-day recall may be too short. Our Amendment 87 seeks for the automatic release provision to take effect subject to a provision excluding that automatic release for those who had committed more serious offences. The list of offences, as the noble and learned Lord, Lord Keen, pointed out, is a list that his party have adopted for other purposes, but in this case we accept it as a list of serious offences. However, the point about this part is that it only applies to exclude automatic recall, so that recall would be discretionary. That would apply for serious sexual offenders and for stalkers who had been recalled for harassing or stalking their victims on a repeat occasion. They would not be entitled to automatic release.
This short suite of amendments introduces an element of flexibility into the recall system. It seeks for the 56 days to be a maximum period and where it was too long it would not be applied. In the case of a serious offender whose recall ought to be much longer, it would not lead to automatic release. I beg to move.
Lord Russell of Liverpool (CB)
My Lords, I will speak to Amendments 82, 83 and 86 in my name. This is a continuation of a discussion that we had in Committee, which is particularly focused on concern about the unintended consequences of domestic abuse perpetrators being released when they still present a potential grave danger to the women that they were abusing and the women’s families and children.
We and the Domestic Abuse Commissioner welcome the measures in this Bill to improve the identification of domestic abuse perpetrators and the commitment from government to resource HM Prison and Probation Service to increase its capacity to do better. There is also much to be welcomed in the VAWG strategy—so much that you wonder whether it will be possible to do it all. The ambition is laudable; the proof will be in the implementation. We want to highlight that achieving this laudable commitment requires improvements across the criminal justice system that are embedded to ensure that victims and survivors are kept safer than they have been to date.
I am particularly grateful to the Minister for the time that he spent with me and with some of the Domestic Abuse Commissioner’s officials. We had a very interesting meeting with Kim Thornden-Edwards, the new Chief Probation Officer for England and Wales, whom I found to be very formidable indeed. Speaking as a former headhunter, I would say that whoever chose her did an excellent job. She will up the game of the Probation Service and turbocharge it, which it needs.
We also welcome the assurances given around investment in the system and the improvements to the processes, which are very necessary. However, the key concern is that this cannot be achieved rapidly and certainly not overnight. The Domestic Abuse Commissioner remains highly concerned that mistakes may be made and that some mistakes may have very unfortunate consequences. Her concern is to mitigate that to the extent that it is possible.
In Committee, the Minister proposed amendments that would ensure that any offender recalled on the basis of contact with their victim would not be automatically released after 56 days but would be risk assessed and held in custody until their risk to the victim has reduced and can be safely managed in the community. Although we are reassured by the investment into prisons and probation and the commitments to improve the risk-assessment process, it is absolutely critical that safeguards are put in place as quickly as possible to prevent the release of the wrong people by mistake.
I anticipate that the response of the Minister to the amendments that have been laid, and which I am talking to, will be, essentially, that there is a programme in place across the system to improve a whole range of areas, including the identification of domestic abuse perpetrators and the level of risk they present, and that to try to carve out a particular area for specific oversight separately to the rest is unhelpful to the programme as it is conceived. I can understand and accept that.
Baroness May of Maidenhead (Con)
My Lords, I support Amendments 82, 83 and 86, in the name of the noble Lord, Lord Russell of Liverpool. I start, if I may, with a point that I made earlier in the debate on Amendment 25. The Government have a strategy on violence against women and girls. They have a clear commitment to reduce violence against women and girls. It seems to me, therefore, that the Government should be looking to make sure that they in no way inadvertently increase the risk of violence against women and girls. This aspect of the Bill—the fact that a perpetrator who has been released, breached their licence by making contact with the victim and is then recalled, could then be automatically released after 56 days—is such a potential loophole, because that individual is highly likely in those circumstances to go back to the victim and potentially further abuse them.
The amendments in the name of the noble Lord, Lord Russell, are time-limited. It is recognised that the Government are increasing the capacity of the system to make risk assessments of individuals, but those programmes are not entirely in place at the moment. There is the potential for the Government, by accepting these amendments, to close that loophole and further enhance the ability to prevent violence against women and girls.
I heard what the noble Lord, Lord Russell, said about his conversations with the Minister and his expectation, or concern, that perhaps he might not immediately leap to his feet and accept these amendments. I want to pick up one of the points about working with those in the field who are experts on these issues. It is only because of the Domestic Abuse Act that we have a single definition of domestic abuse that is now used across the whole of government. It is a comprehensive definition of domestic abuse, because domestic abuse comes in many different forms. Sadly, many of those in the criminal justice system do not yet fully understand all forms of domestic abuse. It is one of the issues that I know the Government will still have to deal with in making sure that the police, prosecutors, judges and probation officers all understand the panoply of issues that constitute domestic abuse.
It is important that, if the Government are not willing to close this loophole by accepting these amendments, they work with experts in the field to make sure that those who are being trained to risk-assess perpetrators are able to do so in the full knowledge and understanding of what constitutes domestic abuse.
Baroness Chisholm of Owlpen (Non-Afl)
My Lords, I support the amendment tabled by the noble Lord, Lord Russell of Liverpool. I congratulate the noble Baroness, Lady May, on her words and her fantastic editorship of the “Today” programme on New Year’s Day, where she highlighted the problems of domestic abuse.
This amendment would make a significant difference to the safety of victims. We are making progress in seeing victims coming forward and, when they do, protecting them. Victims live with the fear that their perpetrator will contact them at any time. The Probation Service is doing an excellent job, most of the time, but change and training take time, especially to embed themselves, and, as has been witnessed, without proper training, devastating consequences can occur.
My noble and learned friend Lord Garnier stated that it is all about risk and how to assess it. This amendment is easy to incorporate, is easy to carry out and could put a significant safety valve in the system while the necessary training is put in place. I ask the Minister to try to see in his mind that this would be a good thing to do. When I was sitting on that Bench, every now and again an amendment to a Bill would come forward and I would think, “This really could work”, but I was always being put off, either by the Bill team or by the department. Occasionally, I took it into my own head and did something off my own bat. I was then told, when I left the Chamber, “You’re making government policy. That’s not what you’re meant to do”. But I did not get the sack, so it was worth doing.
Lord Keen of Elie (Con)
My Lords, we welcome the inclusion of the additional condition proposed by the noble Lord, Lord Russell of Liverpool, in Amendments 83 and 86, to ensure that, for a transitional period, an offender who has breached a licence condition or court order in relation to their victim is not automatically released. It is an important amendment for protecting victims and maintaining confidence in the justice system. We are also supportive of Amendment 87, which excludes certain serious offenders from automatic release. This aligns with our Amendment 25 and ensures that those who pose the greatest risk to the public cannot benefit from automatic release.
Lord Timpson (Lab)
My Lords, I am very grateful to the noble Lords for tabling these amendments. Although we are still convinced that the approach in the Bill is right, it is only right that it receives thorough scrutiny. In drafting these measures, we have sought to strike a balance between ensuring that offenders can be safely managed in the community and the need to achieve a sustainable prison system. Nothing would be worse for victims than running out of prison cells.
The new system has been carefully designed to achieve this and to ensure consistent and proportionate responses to risk and non-compliance across all offence types. The offence-based exemptions proposed by Amendments 79 and 87 would undermine that consistency and may not reflect an individual’s actual risk level. The Bill already contains significant safeguards so that offenders who pose a greater risk are excluded from 56-day fixed-term recall. This includes those recalled on account of being charged with a further offence and those subject to multi-agency supervision levels 2 and 3. This applies to many sexual, violent and domestic abuse offenders.
Before any recalled offender is re-released, professionally qualified probation officers will undertake a thorough review of the release plans and licence conditions. They will ensure that needs and risks are managed, with a focus on mitigating risks against known victims. Furthermore, a prisoner given a fixed-term recall can be transferred to a standard recall if certain conditions are met, including if their risk escalates and they are then managed at multi-agency supervision levels 2 and 3. Offenders will leave prison to probation supervision and can be recalled again if considered a risk.
Amendments 80 and 81 seek to allow release from fixed-term recall at an earlier point than 56 days. The Independent Sentencing Review found that the current short duration of fixed-term recalls—14 or 28 days—does not provide enough time for offenders to address their risky behaviours in custody or for further risk reduction measures to be implemented. The Government agree with this assessment. This has been carefully considered with operational colleagues, and 56 days is enough time to undertake and put in place risk-management plans. Our proposed framework already provides sufficient flexibility without any further legislative change needed.
The Bill already allows the Secretary of State to keep an offender in custody past 56 days by overriding automatic re-release and converting a fixed-term recall to a standard recall. Where this happens, release is subject to Parole Board approval or, under the existing risk-assessed recall review process, allowing offenders to be released at any point before the 56 days where it is assessed safe to do so. For example, an offender could be recalled because of an increased risk linked to substance misuse. Having received structured support in custody that can be continued in the community, probation staff assess they can now be safely managed in the community. In this situation, they can be re-released before 56 days.
Lord Marks of Henley-on-Thames (LD)
My Lords, in light of that answer, I do not propose to press this to a vote, so I beg leave to withdraw the amendment.
Lord Thomas of Cwmgiedd
“(ba) after subsection (5), insert—“(5A) The Secretary of State must not exercise the power to remove a prisoner under this section where the prisoner—(a) is a fixed-term prisoner sentenced to a term of imprisonment of more than three years, or(b) is detained in accordance with subsection (4)(b) after returning to the United Kingdom following a previous removal.(5B) The Secretary of State must not exercise the power to remove a prisoner under this section unless he or she is satisfied that the interests of justice are not defeated by the removal, having regard to the gravity of the offence and the impact of the offender’s criminal conduct on those affected by it.”;”Member’s explanatory statement
This amendment is intended to add certain limits to early removals to ensure that the interests of justice and those of victims are taken into account.
Lord Thomas of Cwmgiedd (CB)
My Lords, I shall move this amendment on behalf of the noble Lord, Lord Verdirame, who unfortunately cannot be present. I wish to express first his appreciation of the time the Minister has taken to speak to him about the issue raised by this amendment. I can explain it very briefly. In the independent review conducted by Mr David Gauke, he considered whether foreign national offenders should be removed to reduce pressure on capacity and ensure that punishment was served for crimes committed in the United Kingdom. Under the then existing law, foreign national offenders had to serve 50% of their sentence but could then be removed and returned to their own state, where they would get no further punishment. The review recommended that the 50% rule be reduced to 30%—this was accepted and brought in by a statutory instrument—and that those who were sentenced to three years or less could be removed without serving any part of their sentence here. Clause 32 proposes the removal of the three-year time limit, so that any offender, however serious the offence is, can be removed without serving any part of their sentence whatever.
The amendment proposed by the noble Lord, Lord Verdirame, seeks to do three things. First, it seeks to restore the position recommended by Mr David Gauke: to ensure that people who receive sentences of more than three years could not be removed without serving part of their sentence. Secondly, it would make it clear that it is inapplicable to a person who has been deported and returns. That is to stop the revolving door of committing a crime, being deported, coming back, committing a crime and going round and round. Thirdly, it would require the Secretary of State to be satisfied, in the case of serious crimes,
“that the interests of justice are not defeated by the removal, having regard to the gravity of the offence and the impact … on those affected by it”.
There is a change from the amendment put forward in Committee in one respect, in that it drops the requirement that the offender serve his term overseas.
The most important of the three points raised by this amendment is the first: restoring the recommendation of the Gauke review. As I understand it, there are about 3,000 such offenders and it costs about £61,000 a year to keep each of them in prison here. I can see no objection to sending them back if they are to serve the remainder of the term in their own country, but it is evident from the figures that only a tiny proportion would serve such a term. The Bill as it stands, therefore, will send back at our own cost a very significant number of people who have committed crimes that deserve at least three years’ imprisonment.
It seems that the Government have said that they are not prepared to accept the amendment partly because they cannot agree to anything that will effect a reduction in prison capacity. Secondly, they are determined to make sure that the public Exchequer is relieved of the burden of paying for the imprisonment of foreign national offenders.
The purpose of this amendment is to try to reverse what can only be described as the interests of short-term expediency over the principles of sentencing, because the amendment infringes three of those principles First, if a person commits a wrong that merits three years’ or more imprisonment, that person merits equivalent punishment. Being sent back to his own country at taxpayers’ expense is not a punishment. Secondly, the purpose of sentencing is to deter crime. What deterrence is there in making it clear that, if a person comes to this country to commit a crime, he will be sent home free, without punishment? Thirdly, and most importantly, proper punishment retains public confidence in the system. If, for example, someone commits a series of shoplifting offences to go to the lower end of the three-year limit or, more seriously, comes here deliberately to commit a crime, paid for, what deterrence is there if that person knows he can go back? We hope that the Government will think again on this point.
However, on the second and third points—that is to say, dealing with the revolving door problem in the first place, while requiring the Secretary of State to be satisfied that the interests of justice are not defeated by removal, having regard to the gravity of the offence and the impact on those affected by it—why can the Government not accept them? I hope the Minister will be able to say, “Well, we’ve got to have a framework to deal with those kinds of issues” and will make it clear that, among the issues to be contained in the policy framework that governs the way in which foreign national offenders are dealt with, those two points, namely the revolving door and maintaining and examining each case to ensure that the gravity of the offence and the effect of the offender will not be that which casts doubt on the integrity of the criminal justice system, will be looked at and properly included within it. I beg to move.
Lord Keen of Elie (Con)
My Lords, we are grateful to the noble Lord, Lord Verdirame, for the carefully framed amendment and to the noble and learned Lord, Lord Thomas of Cwmgiedd, for the very careful way in which he presented the amendment. We agree with all the points made by the noble and learned Lord, Lord Thomas, without qualification.
When the previous Secretary of State for Justice first intimated this policy last year, I referred to it in this Chamber as being “completely mad”. I have not deviated from that opinion, I have to confess. The idea that someone coming from a safe country in Europe will commit a series of robberies and then, when caught, will be returned to their country of origin at public expense in order to pick up a different set of identity papers or a different passport and then return yet again strikes me as quite absurd. That is the revolving door point that has been touched upon, but the other points are equally important.
Of course, they may not have come from a safe country, in which case we cannot deport them, but no accommodation has been made for that either. It is going to be optional, essentially. You may seek to argue that you have not come from a safe country and therefore you cannot be deported, so you prefer to stay in prison. It is a quite extraordinary proposal that somehow punishment lies in the fact that you have been returned to your country of origin after committing a serious offence in this country. We have a foreign national who rapes a child and flees back to his country of origin, and presumably we no longer make any efforts to extradite him because as far as this policy is concerned, he has been punished. He has gone home. What is that going to do for public confidence in the justice system? It will damage it, but I cannot see any upside. It is an impossible proposal.
David Gauke proposed, very sensibly, that there should be a minimum term of punishment, and that is necessary because it is not just punishment; it is also deterrence. Without that, we end up in the strange situation in which people commit a crime, leave for their home country at public expense and return as and when they wish to do so. We have had instances of that already. I will not go into the detailed cases at this stage in the evening, but it is not uncommon for those who have been arrested and convicted of offences to return to their country of origin and then return to these islands in due course. There have recent instances of that. We strongly support the idea that there has to be a minimum term of imprisonment in these cases, while understanding the pressure on our prisons. Does the Minister truly believe that public confidence in the justice system will be improved or even maintained as and when the full implications of this proposed policy become public?
Lord in Waiting/Government Whip (Lord Lemos) (Lab)
My Lords, I am grateful to the noble Lord, Lord Verdirame, for meeting with my noble friend Lord Timpson to discuss the amendment proposed by him and the noble and learned Lord, Lord Thomas, relating to the early removal scheme and for the spirit in which this has been debated. Considering the lateness of the hour, I shall try to be brief. A number of the points I want to make, I will make very quickly, but there are one or two points that I do not think have been adequately addressed by the noble and learned Lord, Lord Thomas. I will perhaps just dwell on those.
To be clear, the Government’s priority is protecting victims in the UK and ensuring that foreign national offenders can never again offend here. Once deported, they will be barred from ever returning to the UK, protecting victims and the wider public. Limiting the early removal scheme to only those in receipt of a sentence of less than three years would effectively put the brakes on sustaining the removal of foreign national offenders.
Lord Thomas of Cwmgiedd (CB)
I am grateful to the noble and learned Lord, Lord Keen, for his strong support for this amendment, and to the noble Lord, Lord Lemos, for his response.
It is a pity that the discretionary nature of this scheme is not more clearly set out. I am sure that a number of the issues that have been dealt with by the noble Lord could be more clearly dealt with if we were able to see in writing what the parameters are for the exercise of the discretion. It is not enough just to leave it to individual governors. In particular, when dealing with the revolving door and with crimes which are of gravity where there is an effect on the victim, these are the kind of things that need to be built into such a scheme. I understand from the noble Lord that there is going to be developed such a scheme. On that understanding, I will not press this amendment further.
Lord Lemos
“Imprisonment or detention for public protection: termination of licences(1) The Crime (Sentences) Act 1997 is amended as follows.(2) In section 31A (imprisonment or detention for public protection: termination of licences)—(a) after subsection (3) insert—“(3A) Where—(a) the prisoner has been released on licence under this Chapter (whether or not the prisoner has subsequently been recalled to prison under section 32),(b) the qualifying period has expired,(c) the prisoner’s licence has remained in force for a continuous period of one year beginning not before the qualifying period expired, and(d) the prisoner requests that the Secretary of State refer their case to the Parole Board,the Secretary of State must refer the prisoner’s case to the Board under this subsection.(3B) Only one request may be made under subsection (3A)(d) in any continuous period during which the prisoner’s licence remains in force.”;(b) in subsection (4), after “(3)” insert “or (3A)”; (c) in subsection (4D), for the words from “The reference under” to “that subsection” substitute “A reference under subsection (3) or (3A) must not be made, and a reference under either of those subsections”;(d) in subsection (4E)(a), after “(3)” insert “or (3A)”;(e) in subsection (5), in the definition of “the qualifying period”, for the words from “means—” to the end of the definition substitute “means the period of two years beginning with the date of the prisoner’s release.”;(f) in subsection (6)—(i) omit “paragraph (a) or (b) of”;(ii) after “the definition of “the qualifying period”” insert “in relation to—(a) a prisoner who was not at any time, in the period specified in the regulations beginning with the date of the prisoner’s release, serving any preventive sentence in respect of an offence for which the prisoner was convicted when aged 18 or over;(b) any other prisoner.”(3) In section 32 (recall of life prisoners while on licence), in subsection (5C), after “for the purposes of” insert “paragraph (c) of section 31A(3A) (referral to Parole Board) or”.(4) In section 32ZZA (imprisonment or detention for public protection: powers in relation to release of recalled prisoners), in subsection (4), after “for the purposes of” insert “paragraph (c) of section 31A(3A) (referral to Parole Board) or”.”Member’s explanatory statement
This amendment provides for a further referral to the Parole Board of the case of a prisoner serving a sentence of imprisonment or detention for public protection who has been released on licence and shortens the existing period that certain persons must spend on licence before a referral is made or a licence terminated.
Lord Foster of Bath
“Gambling addiction and disorders: assessment in pre-sentencing and of offendersThe Secretary of State must—(a) ensure that where any assessment used in the preparation of a pre-sentence report requires or allows an assessment of the individual’s mental health, alcohol or drug addiction, an assessment must also be made as to whether the individual has a gambling addiction or disorder;(b) ensure that where any system or method used for the assessment of the needs of offenders requires or allows an assessment of an offender’s mental health, alcohol addiction, or drug addiction, an assessment must also be made as to whether the offender has a gambling addiction or disorder;(c) ensure that, for the purposes of paragraph (b), if an assessment finds that the offender has had a gambling addiction or disorder, or is likely to develop such an addiction or disorder, appropriate steps shall be taken to minimise the possible occurrence or recurrence of such an addiction or disorder.”Member’s explanatory statement
This amendment seeks to place a duty on the Secretary of State to ensure assessments of gambling addiction or disorder are included in pre-sentencing reports and reports on offenders after sentencing.
Lord Foster of Bath (LD)
My Lords, I declare my interests as chairman of Peers for Gambling Reform and chairman of Action on Gambling. Amendments 95 and 99 are based on concerns that I have previously expressed during earlier stages of our consideration of the Bill. At present, gambling disorder, unlike drugs and alcohol addiction, is not adequately addressed within the criminal justice system. Gambling disorder simply does not have parity of esteem with drug and alcohol addiction, and I believe that it should. The internationally agreed classification of mental disorders believes that it should and puts drugs, alcohol and gambling in a special subgroup of substance-related and addictive disorders. The Association of Police and Crime Commissioners believes that there should be parity. Our own NICE guidelines say the same and state that screening about gambling should occur at each point of contact with the criminal justice system.
However, at present, there is no parity of esteem and, as a result, we are failing to tackle one of the key issues that lead people to offend and reoffend. We know from independent research that, for example, a far higher percentage—over 25%—of the prison population suffer gambling harm than in the general population, and gambling is rife within our prisons. Yet current assessment of offenders rarely identifies gambling disorder because it is not adequately referenced in current and planned future assessment procedures. Support and treatment for gambling disorder are rarely available either in prisons or to those under the supervision of the Probation Service.
As a result, many individuals enter court or prison or start a non-custodial sentence without any assessment of whether gambling disorder contributed to their offence. Courts rarely then have access to gambling-specific reports, leaving judges without evidence to make an informed sentencing decision. There is no statutory gambling treatment requirement, leaving courts without structured, clinically guided alternatives to custodial sentences. Within prisons, or for those under the supervision of the Probation Service, treatment and peer-support options are largely absent. On release, continuity of care is, frankly, inconsistent, leaving individuals vulnerable to relapse and reoffending.
Amendments 95 and 99 seek to overcome these problems in terms of assessment and support for gambling disorders among offenders. They seek to give parity of esteem for drug and alcohol addiction and gambling disorders. I beg to move Amendment 95.
Lord Timpson (Lab)
My Lords, I know it is late, but it is important that I cover a number of very important points. I must begin by paying tribute to the noble Lord, Lord Foster. He has shown extraordinary tenacity and leadership in tackling gambling addiction and harms in the criminal justice system. I have certainly learned a lot from my conversations with the noble Lord on the subject and it is no exaggeration to say that, without his interventions, I would not have fully appreciated the importance and significance of gambling addiction in driving offending. I also reflect back on leading a business where, if I had been more aware of problems with gambling addiction, I could have supported colleagues in a better way.
I can assure the noble Lord that this is now a personal priority of mine. I accept that there is more to do to ensure that there is parity of esteem between gambling addiction and more commonly recognised addictions such as to drugs and alcohol. This work must be done urgently and I have tasked my officials to get on with ensuring that this is taken forward. I am firmly committed to identifying offenders’ problems, whether they be drug, alcohol or gambling addictions, to ensure that they can access the support they need to help turn their lives around and reduce reoffending. But, although we agree wholeheartedly with the spirit of Amendment 95, we do not believe that legislation is needed. There are already multiple opportunities for an offender’s needs to be identified, including via pre-sentence reports. Staff are also encouraged to consider gambling-related risks in risk assessments and rehabilitation planning.
To ensure a consistent approach throughout the criminal justice system, probation and prison staff use a single tool: the offender assessment system, OASys for short. I recognise that OASys provides minimal overt prompts to encourage them to take gambling harms and addiction into account, compared with drugs and alcohol addiction. However, a new tool known as ARNS is replacing this. An early version is now operating in four probation regions. To ensure we focus more closely on gambling, ARNS is already testing updated questions including: is the person affected by gambling? This is in the finance section. If the answer is yes, the tool automatically prompts for further details. Additionally, the new ARNS sentence plan, due to be rolled out nationally from March this year, already includes gambling-related rehabilitative goals for relevant individuals. However, I accept that such a question is probably not best placed in the finance section and we will review this, based on advice from experts in the field.
The Government are committed to working with experts in the gambling sector as we develop, test and refine our approach this year. We have therefore invited a world-renowned expert on gambling addiction, Dr Matt Gaskell, to advise the ARNS project as a member of its academic expert group, and I am very grateful to the noble Lord, Lord Foster, for introducing us to him. We will collaborate with Dr Gaskell and the practitioners testing the tool to establish how to make it work, based on the evidence they present. We will take a proportionate and evidence-led approach in determining how and when assessments are completed. To confirm, I am committed to giving gambling addiction parity of esteem. Our approach will continue to evolve, guided by evidence and informed by expert advice to improve outcomes. I am excited to convene a gambling round table in the coming months, bringing together leading voices to share valuable insights. I am looking forward also to touring the country to speak to probation officers this spring and will share the importance of gambling addiction with them then.
I also thank the noble Lord for tabling Amendment 99. As with Amendment 95, I agree entirely with the principle of supporting offenders to reduce reoffending. Many rehabilitative interventions are already available for individuals with a gambling addiction or disorder. These include support with thinking and behaviour, debt advice, relationships, homelessness and unemployment. Mutual aid groups such as Gamblers Anonymous also have a very important role to play.
I recognise that there is more to do to improve access to mutual aid across the estate, not just for gambling but also for drugs and alcohol. It is a personal aim of mine to ensure that all prisons have weekly access to Gamblers Anonymous, Alcoholics Anonymous and Narcotics Anonymous meetings, and I want to work closely with these fellowships to achieve this. I am pleased that Gambling Anonymous is already operating in 11 prisons and I am sure that many prisoners benefit from its support. HMPPS has established a forum for mutual aid fellowships to help identify and tackle barriers to access. With the support of forum members, HMPPS has developed guidance for prisoners on facilitating access to mutual aid and is co-developing promotional materials. The forum includes Gamblers Anonymous and I am grateful for its ongoing support and collaboration.
Recognising that there is more we need to do, we are working with health partners to ensure that pathways to treatment and recovery services are accessible for people in the criminal justice system. This includes support with thinking and behaviour, debt advice, relationships, homelessness and unemployment. We are working with health partners in the scoping and development of future work undertaken through the treatment strand of the gambling levy programme, which will be allocated 50% of funding from the levy. Funding from the statutory gambling levy will further bolster the support available, and the Government have committed to publishing an annual report on the progress of the levy.
Pilots are already in place to strengthen treatment provision in criminal justice settings across both NHS and third-sector providers. NHS England is committed to building on these pilots to ensure treatment interventions are robust, effective and evidence led. It is working hand in hand with the Office for Health Improvement and Disparities, which lead the prevention strand of the levy, to deepen our understanding of prevalence and inform future approaches to screening.
Lord Foster of Bath (LD)
My Lords, I thank the Minister for what have been very constructive conversations on these issues, both with him and his officials. In light of what he said, I hope he will be willing to sign up as a member of Peers for Gambling Reform. I also thank him for the incredibly generous compliments he gave me at the start of his speech. It was the former Prime Minister Lord Palmerston who said, “Flattery is the foot soldier of diplomacy”. However, feeling as strongly as I do about these issues, I have to admit that flattery alone would not have persuaded me to give up my campaign to see gambling harm given a far greater priority in the criminal justice system. But beyond flattery, the Minister has given a very personal and powerful commitment to seek to achieve that which I have been trying to seek as well—indeed, he has perhaps gone even further. I am enormously grateful for that, and, in the light of it, I beg leave to withdraw my amendment.
Lord Timpson
Member’s explanatory statement
This amendment would provide for my new clause to be inserted after clause 10 to come into force at the end of two months beginning with the day on which the Bill is passed.
Lord Timpson
Member’s explanatory statement
This amendment amends the commencement clause in the Bill and is consequential on my amendment inserting a new clause before clause 40.