Criminal Justice System: Capacity

Debate between Lord Beith and Lord Keen of Elie

Tuesday 22nd October 2024 Lords Chamber

[Lord Keen of Elie (Con)]

My Lords, I begin by thanking the Minister for engaging with me in correspondence last week, in which he calmly set out his reasoning for the present policy proposal. I express my deep sympathy to him for having to respond to questions on a Statement from the other place that is heavy in hyperbole and very weak on reasoning.

What is particularly surprising is that by this morning, the Justice Secretary, who made the original Statement in the other place, was conceding in an interview that this is not a problem you can build yourself out of.

Where did this policy originate? The last Labour Government, while recognising the obvious link between sentencing and prison capacity, decided to advance a policy that relied on prison capacity being predicted and adjusted to accommodate sentencing policy, rather than sentencing policy taking account of prison capacity. The Centre for Criminology at the University of Oxford described this “predict and provide” policy as flawed. The then president of the Prison Governors Association described the then Labour Government’s policy as

“an out-of-control demand met by the provision of little more than penal warehousing”.

The noble Lord, Lord Dubs, then chair of the prison policy group, described the policy as “simplistic”.

What did the then Labour Government do? They announced plans for the building of three titan prisons with massive capacity. What did they do next? They announced the abandonment of plans for three titan prisons with massive capacity and announced plans for the building of five new prisons. If we could find them all, we might utilise their capacity, but the fundamental issue here is not prison cells but penal policy. It is not only obvious but well established that if you increase sentencing powers, sentences increase. Magistrates, like science, cannot resist a vacuum. They will fill it. Increasing sentencing in the magistrates’ court may well relieve some pressure on the Crown Court, but it is liable to increase pressure on reception prisons and category C prisons.

What will that impact be? We have no impact assessment, but the means to carry out such an assessment are potentially available. During the pandemic, the sentencing powers of magistrates were temporarily increased from six to 12 months. It should be possible to correlate this with the impact on reception prisons and category C prisons. Why has that not been done?

I note the Government’s most recent decision, which is to appoint the former Conservative Justice Secretary David Gauke to carry out a review. I applaud their decision to call on his expertise and ability to properly inform them as to what they should do next.

I come on to the question of early release, which is connected to this proposal over sentencing. If the Government are to release more prisoners in the next few days, will they please try to release the right ones? Last time, they released dozens of prisoners who did not qualify for release and dozens of prisoners who had breached restraining orders and should never have qualified for early release. Of those who did qualify for early release, some were let out on licence without an electronic tag, which might have made it a little difficult to work out where they had gone.

In coming to a conclusion, I observe that the marrying up of social policy, penal policy, sentencing policy and prison capacity in the context of recidivism, extensive substance abuse, mental health issues and the requirements for care in the community and family support raises complex issues, particularly when the Treasury will rarely, if ever, invite the Ministry of Justice to the front of the spending queue. Those issues have to be addressed as a whole and, in my respectful view, they are not well served by a simplistic statement of blame, which was essentially what was delivered in the other place.

I conclude by thanking the Minister once again for his reasoned and calm engagement on this topic and I look forward to his response.

[Lord Beith (LD)]

My Lords, the noble and learned Lord, Lord Keen, gave us some interesting historical context, but I had expected an apology—or at least a guilty plea, with the plea in mitigation that he chose to leave the previous Government before the ceiling really started to fall in. They left an appalling situation: overflowing prisons, a huge backlog of untried cases, record numbers of remand prisoners, and victims seeing no outcome or closure to what they had suffered. This Government now have to deal with that, and they are running out of their few options to do so. I welcome their decision to have a fundamental review of sentencing policy and to invite David Gauke to carry it out. I very much agree with the noble and learned Lord on that; he is a good choice and I wish him well in the task.

Why are we filling prisons with more offenders than any other western European country? Why are we failing to recognise that we are putting resources into a prison system that is institutionally ill equipped to do the kind of rehabilitative work that is clearly necessary? Unless we see a significant reduction in prisoner numbers, what hope is there that rehabilitation programmes can work in prisons?

With so few options available to them, it seems logical and sensible for the Government to make use of the available time of magistrates who are willing to sit on more serious cases, freeing up time in Crown Courts. However, last time, this was not found to be very effective; it led to an increase in the demand for prison places. The Lord Chancellor conceded in the Commons:

“That is what happened and what I expect to happen again”.—[Official Report, Commons, 17/10/24; col. 1011.]


It is not even a temporary solution. Do these plans overlook the possibility that some defendants will opt for a jury trial when they no longer have the incentive that magistrates can sentence them only to six months? That means longer sentences and larger prisoner numbers. Will special training be provided to magistrates to try to ensure that good use is made of them in cases dealing with more serious offences that require a longer sentence, but that the new powers do not simply inflate sentences that would otherwise have been given to potentially shorter-sentence prisoners?

The Lord Chancellor has said, and I agree with her, that

“people have to know and believe there are consequences to breaking our laws”.

This is not achieved when prisoners are released without completing their sentences or any serious regard to why they were imprisoned for a long period. Neither is it achieved by using a significant part of our resources in a prison system which is ill equipped, ill resourced and ill prepared to rehabilitate offenders. If this announcement buys the Government some time, can we have some reassurance that it will be used for fundamental change?