Imprisonment for Public Protection Sentences

Debate between Derek Twigg and Robert Neill

Thursday 27th April 2023 Westminster Hall

[Sir Robert Neill]

I very much hope that it will, because it is certainly true that that was a problem. Delays in transfer to secure beds were demonstrated to us in the evidence. I hope the Government will move on that.

The other germane point is that because of the fear of the conflation of mental health need with risk, we found that many IPP prisoners were frightened to speak up about their poor mental health and get the help that they might need, because it might count against them in their risk assessment. Compounding that, even when there is mental health support, we found that IPP prisoners faced difficulty getting help, and that included transfer to secure hospitals.

We asked the Ministry of Justice and His Majesty’s Prison and Probation Service to acknowledge the harm caused by the sentence and the challenges it presents to progression. We asked them further to set out how they intend to improve access to mental health support for IPP prisoners. The Government’s response did not set out any plans to improve access to mental health support specifically for this cohort of prisoners. Instead, it told us that which we already knew, setting out the work that is being undertaken to improve mental health support for all prisoners. That is welcome in itself, of course, like the 28-day limit that we have just discussed, but it entirely misses the point of what we asked about. We asked the Government to look again at the specific needs of the IPP cohort, separate from the general pressure that already exists, and to see what improvements can be made.

As well as the problem with accessing mental health support, there are concerns about the adequacy of offender behaviour programs and the availability of courses. Offender behaviour programmes and interventions are central to the IPP sentence. They are the primary means by which an IPP prisoner can demonstrate rehabilitation and risk reduction. If they cannot get on the courses or the interventions, they are being set up to fail, and too often that is the case. We heard of one prisoner who had a parole hearing coming up very shortly. He was asked to complete a course, but the waiting list for the course was two years. A system in such a state of affairs is simply dysfunctional.

We asked the Government what they are doing to expand the availability of courses, to reduce waiting lists and to ensure that IPP prisoners are held in the appropriate category of prison. That was a problem we found, too. We also asked that the Government publish a report that they had commissioned on the offender personality disorder pathway, and that they set out more generally how they will ensure that programmes deliver adequate outcomes.

The Government only partially accepted those recommendations. Their response noted that places on programmes and other interventions were disrupted by the pandemic. Of course I accept that, and many of the submissions we received from prisoners expressed concern about that too. In our ongoing inquiry into the prison workforce, we have also heard concerns about staffing pressures affecting prisoners’ access to courses. I hope the Minister will come back to us now that the pandemic is out of the way and set out in more detail what work is under way to ensure that IPP prisoners’ progression is not hindered by such circumstances—lack of access to courses and so on—which, in fairness, are beyond their control. And why, oh why, is it not possible for the Government to respond specifically to our request for the publication of the report on the offender personality disorder pathway? What is there to hide about it? Why can we not have it published?

We heard that, as well as the prison-based barriers to progression, people serving an IPP sentence also face barriers in the community on release. We have particular concerns about what we termed in our report the “recall merry-go-round”, which sees released IPP prisoners returned to prison following their release, in some cases time and time again. That is why we heard clear evidence that reducing the qualifying period to have the licence removed from 10 years to five years would go some way to restoring proportionality. If someone has been on an indeterminate sentence, persuaded the Parole Board that they can be safely released and been able to show, for five years, that they can stay out of trouble and move on, what is the magic in making them wait another five years, with these things hanging over their head, to reach 10 years?

The decision to recall an IPP prisoner is made by the probation service, and the reasons for recall vary. The Government’s position seems to be that they do not accept that offenders serving the sentence in the community are being recalled unnecessarily. In November last year, the then Lord Chancellor, my right hon. Friend the Member for Esher and Walton (Dominic Raab), told us in oral evidence that, in the 12 months to the end of 2021, 34% of IPP recalls were the result of new offences, rather than—in his words, not mine—

“tripping up over onerous licence conditions.”

Well, first, he did not deal very much with the 66% for us. Secondly, even in relation to that 34%, when we asked how many of those charges resulted in further prosecution or conviction—some might have been dropped because there was never evidence to justify them, which happens in the system—the answer was that the Government do not know:

“the required data is not routinely collated”.

How can the Government insist that every recall of someone serving an IPP is necessary for public protection if they do not know the basic data? There is an underlying problem with the collection and use of data in the justice system anyway, and that is a particularly egregious example, if you will forgive my saying so, Mr Twigg. Perhaps the Minister could explain why that is the case, and what can be done to correct it?

I am glad the Government have asked the chief inspector of probation to conduct an independent thematic inspection on whether IPP recalls are necessary and proportionate. Certainly, we heard evidence all too often that there was something of a tick-box exercise in relation to some of the recalls, which really are not based on risk. Of course, where there is genuine risk, any person on licence—whether it is IPP or not—should be considered for recall, but the risk must be genuine; these things should not happen, as is the case sometimes, purely because of a failure in communications, or because of a failure to bear in mind that many people find it really difficult to get their lives back on track straightaway after such sentences. It will not be a straight, linear progression, and there does not seem to be enough recognition of that in the recall process. There are probably better ways in which we could keep a hold on people, technologically and otherwise, and track their movements and so on without the need for the nuclear option of recall, if I can put it that way.

That is why we particularly want to press the Government on why they have not taken on board our recommendation of going down to five years for the licence to be removed. It is worth saying that among those who said they would support a reduction from 10 years to five years was Martin Jones, the chief executive of the Parole Board. The people who deal with this themselves—the Government’s own experts—see the force in that, but the Government will not listen to them.

We were disappointed to see that the Government rejected that entirely, opting instead to review the policy and practice of suspending just the supervisory element after five years of good behaviour. It is a small step, but it really does not do justice to the evidence presented on that point. I hope we can have a fuller explanation of what their reasoning was, because it just is not apparent from their response. Let us also have the opportunity to think again about that. We presented the evidence base. Where is the Government’s?

Since June 2022, the Secretary of State has been required to automatically refer every eligible IPP prisoner to the Parole Board for licence termination at the 10-year point, and to do so in every subsequent year. I hope that that will help with the number of licences terminated, but I would be grateful if the Minister could update us on the number of referrals made since then and on how many licences have been terminated, because the intention may be good but we want to know whether it actually works in practice.

This is a long topic, and I want to make as much progress as I can to do it justice, so I will now turn to our main recommendation. When the IPP was abolished in 2012, that was because it was found to be unfair. In particular, it led to a lack of clarity and consistency in the way that two people who had committed the same crime might be sentenced, and to uncertainty for victims and families about when their assailants or family members might be released. In 2012, Parliament agreed that IPP sentences are fundamentally unjust, but there are still people serving them. Successive Governments acknowledged the problem, and there have been efforts by Members of both Houses to change the arrangements. Lord Blunkett was very frank with us when he expressed his profound regret at the setting up of the sentence. He said:

“I got it wrong. The Government now have the chance to get it right.”

I just hope the Government will.

On our key recommendation, although we can make various improvements to the process inside and outside prison, the real issue is that we have to bite the bullet and get rid of this irredeemably flawed system by enacting primary legislation, so that we can have a resentencing exercise for all prisoners still serving an IPP sentence on licence. That was clear from the evidence we had, and the recommendation was overwhelmingly supported. Lord Thomas of Cwmgiedd, a former Lord Chief Justice of England and Wales, called resentencing the only “inevitable” outcome. He said:

“It is the only fair and just thing to do.”

That is why we made that call, and it was not made lightly. We recognise that there are concerns about resentencing, particularly for victims of crime, who have perfectly valid concerns about making sure that there is no risk to them or their families. It should be said that we never envisaged that a resentencing exercise for determinate sentences would automatically mean that every IPP prisoner would be released. We have to be honest with IPP prisoners and their families and say that there will be some for whom a determinate sentence would necessarily be a long one, and that they would not necessarily be released immediately or in a short time. But many probably would be, and all of them, however long their determinate sentence, would have finality, some certainty and the prospect of some hope. In other words, they would have the basic fairness that everybody else gets in the prison system.

To deal with this difficult issue, we suggested having a small, expert and time-limited panel to advise on the shape that the primary legislation and the scheme might take. We did not try to draft it ourselves. All we were saying is that we need to balance protection of the public with justice for the individual offender—that is a basic principle of sentencing anyway—the need to preserve the independence of the judiciary and the need to ensure that we do not, even inadvertently, retrospectively increase a sentence. None of those, we believed, were impossible, and with expert support and political will all those things can be done.

Many people had great hope raised by that recommendation, and we had moving letters from prisoners about it. I am afraid that some of those hopes have been dashed by the nature of the Government’s report. They did not just reject our key recommendation on resentencing; they did so with such a scarcity of evidence to support their reasoning that, frankly, they demonstrated no engagement whatever with the evidence and reasoning behind our recommendation, and nor did they reflect on our efforts to explain the complexities of a resentencing exercise, including the risks to the public and how they could be overcome. The Government fell back on simplistic mantras, if I may say so. I am embarrassed to have to say that about a Government of my own party. It is not the way that I, as a Conservative, have normally treated these matters, and I do not believe that the Minister would either—he was not the person responsible for drafting the response. It is as shoddy a response as I have ever seen to a Select Committee report.

I am, however, pleased that the Government have followed through on their commitment to publish the IPP action plan, which came out two days ago. I welcome that, and I am grateful to the Minister for it. We look forward to engaging with him in taking it forward and seeing how it operates in practice.

I am sorry to have taken so much time to set out what I think is a compelling case. We are now in a position to move on. It is political will that is needed now. There is a new Lord Chancellor and Secretary of State for Justice, who is someone who has considerable experience of the criminal justice system, so they know what prisons are like not just as a politician—there is nothing wrong with that—but as a lawyer who has been in practice for many years and who has dealt with the complexities of sentencing for many years. There is a chance for a fresh start and for the Government to say, “We will think again about this. We need to revisit our response. We need to recognise that we did not do justice to all the evidence presented to us.”

I know that the Minister, who is a fair man in all our dealings—I genuinely mean that—and a humane man, as is the Secretary of State, will want to go by the evidence, and there is now no obstacle to prevent them from doing that. I hope we will hear answers from the Minister to the specific concerns we have raised and also a sense that the Government are prepared to revisit something. There is no shame in saying, “We got this wrong.” There is no shame in Lord Blunkett saying, “I got it wrong. It was for the best of reasons, but I got it wrong.” There is massive credit in that. There would be no shame in the Government saying, “The response we gave was not up to scratch. We will go back and look again.” I hope they will reconsider, reflect and do that following this debate, and I hope the Minister will be able to signal to us that they are open-minded on that.

[Derek Twigg (in the Chair)]

If Members take no more than nine or 10 minutes for their speeches, I will not have to impose a time limit. I will call the Opposition spokesperson no later than 2.40 pm. Members should bob if they wish to speak. I call John McDonnell.

Lord Chancellor’s Oath and the Rule of Law

Debate between Derek Twigg and Robert Neill

Wednesday 14th October 2020 Westminster Hall

[Sir Robert Neill]

Lord Faulks is a fellow bencher of the Middle Temple and a distinguished lawyer. That does not mean that one always has to agree with everything that he says. It would not be fair or reasonable to judge somebody by past comments until we have seen the results of the panel as a whole. Lord Faulks is the chair of the panel, but there are other very distinguished people on it as well. I respect what the hon. and learned Lady says, but this is a classic case of not prejudging the issue until we have seen the outcome of the deliberations.

I am a great believer in judicial review, in appropriate cases. Has it sometimes been abused? Many people would say that perhaps that can be the case. When I was the junior Minister at the Department for Communities and Local Government, I was critical of the attitude adopted to some decisions by the then Secretary of State, the noble Lord Pickles, is he is now, in relation to the removal of regional spatial strategies. We were judicially reviewed by large commercial housebuilders, undoubtedly in pursuit of their own vested commercial interests. They sought to prevent our removing the comparatively easy route, so they could impose large housing developments on communities that did not want them. I was critical of those house builders for doing that and for undermining in law the wishes of local residents. The courts found that they were entitled to do it, but that does not mean that we were assaulting judicial review as a concept, simply by criticising the motive behind some of the people who bring it.

There is an important distinction, which I recognise. We criticised the clients—the people who brought the judicial review—but I did not criticise the lawyers who were instructed on their behalf. I would not seek to do so. It is important to say that we should not, whatever our views in politics, use political arguments to attack lawyers generally or by taking broadbrush approaches. The attacks upon the judges, which were not perhaps called out as much as they should have been at the time of the early Miller litigation, were wholly disgraceful and unacceptable. The current Lord Chancellor has made it clear that he would not countenance such attacks and such language without speaking out. That is very much to his credit and entirely consistent with his own personal integrity. I do not care for the use of language such as “lefty lawyers” or the broadbrush approach of saying that systems are being hijacked. That is not language that I would use. However, I am a Member of Parliament; I am not a speech writer.

I gently observe that the hon. and learned Member for Edinburgh South West referred to the taxi rank principle at the Bar. That is something that I have always worked under as well. To be fair, there have always been sets of chambers that would not prosecute, or would not act for landlords, for example. Some might ask whether that is in theory inconsistent with the taxi rank rule. It probably is, yet it is not something that warrants a great deal of personal attack. I just make the observation that those matters cannot be seen in a purely academic sense. I would not make too much of that, but that is where I stand as far as that is concerned. It is pretty clear where the Lord Chancellor stands, and where I suspect my hon. Friend the Minister stands as well, as far as those matters are concerned.

The other issue raised is part 5 of the United Kingdom Internal Market Bill, about which I was not a little critical when it was first introduced. I believe we have sought to improve that Bill. Is it perfect? As yet, that I do not know. Would the use of the powers in part 5 be wise politics? That is a very big question mark. However, that is not the same as, say, that it is per se constitutionally improper to put those clauses in the Bill, provided there are appropriate safeguards. The hon. and learned Member for Edinburgh South West might disagree upon that, but I think it is a legitimate area of legal dispute and the Lord Chancellor is entitled to have a different view from her and, indeed, perhaps from me in that regard, without it being suggested that he has failed to uphold his oath of office or his constitutional obligations.

I note the views, which have been referred to, of Professor Catherine Barnard. She is a distinguished academic and her views are worthy of respect. By their nature, however, she not being a judge or legislator, and valuable and worthy of respect though they are, they cannot be determinative of the point. It is one side of an argument that can properly be hooked. If, on those matters, there were no scope for difference of opinion, no scope for difference of legal interpretation, no scope for legal argument, there would scarcely be any scope for litigation and scarcely any scope for lawyers at the end of the day. It is perfectly possible for respectable lawyers to hold different opinions around matters of this kind, particularly in emerging areas of law or new legislation as it comes forward, without it being appropriate for us to say that either side is seeking to undermine constitutional principles or their professional or governmental responsibilities. That is the proper way to look at the position, as far as that is concerned here.

I am glad to say, in response to some of the endeavours, which I may have had a small hand in, the Government have made it clear that, effectively, they will only be using those powers should they ever be needed. I hope to heavens that they are never needed because we will get a deal, but should that be the case, there will be certain triggers that would have to be met, both in procedural terms but also in terms of substance. In particular, we would only do so had the European Union, in our judgment, demonstrated bad faith. Bad faith is recognised in international treaty law and in the Vienna convention as being a ground under which it is possible to derogate from an otherwise binding commitment.

The fact that we will be using this as a shield rather than a sword is important—it is the doctrine of equitable estoppel, in some respects. The Minister may well have more to say about that, but that is an important shift and one that I welcome. Therefore, the suggestion that the mere putting of those clauses on the face of the legislation is itself a breach of law is not one that is universally accepted, and I do not think therefore that it can be regarded as an act of impropriety on the part of the Government or of any Minister. As I say, there is a proper political debate as to the wisdom of using them, if we ever come to that, but that is not for today.

I want to say one final thing in relation to this. Lord Bingham was very clear that the rule of law itself is something that can evolve and must be flexible, but there are certain fundamentals. I do not think anyone would suggest that anything we are doing here alters the basic fundamentals. I am conscious of his eighth principle, but I do not think we are at that stage, and I hope we will not be. Moreover, he accepted that parliamentary sovereignty was a fundamental part of the rule of law too. There is always a set of checks and balances in that regard.

I have no problem with certain circumstances where the actions of Ministers properly should be reviewed by the courts, but I do not think this is really going to change that. Lord Bingham made it quite clear, though, that he did not accept the view advanced by, for example, Lord Steyn or Baroness Hale of Richmond that there are some concepts so fundamental that even Parliament cannot legislate to change them. He did not take that view. Again, there is a perfectly respectable dispute there and disagreement between highly distinguished former jurists, which makes the point that none of the arguments powerfully advanced by the hon. and learned Member for Edinburgh South West are determinative of any failing by either the Lord Chancellor or any other Minister in respect of their constitutional obligations.

This is a worthwhile debate to have. In a sense, an hour and a half is not enough to do it justice, because as we go forward, we are going to have to think about our constitutional and legal settlements in a broader sense, how we will operate the separation of powers in a post-Brexit world and how, continuing, as I hope, as a unified state with devolution within it, we can perhaps refine the arrangements that are required to make that work in practice too. Those are all proper matters for further consideration, but do not, I think, impinge upon any proper allegation of any failure by the current Lord Chancellor or his Ministers to act in accordance with their constitutional duties.

[Derek Twigg (in the Chair)]

Before I call Rob Butler, I remind him that I intend to take the Front-Bench speakers around 10.40 am, so if he could keep his speech to around six minutes, so that the Member for South Cambridgeshire (Anthony Browne) can get in, I would be very grateful.