Victims and Prisoners Bill

Lord Moylan Excerpts

Committee stage
Tuesday 12th March 2024 Lords Chamber

These are my thoughts and those of my noble friend Lord Blunkett. Together, we support everything in this group.

[Lord Moylan (Con)]

My Lords, I am grateful to the noble Baroness, Lady Chakrabarti, for mentioning the release test which is the subject of Amendment 161 in my name. Before I speak to it, I offer a word of sympathy and support to my noble and learned friend the Minister. He probably feels a little under pressure today. I hope that it is not so, because we are all on the same side with this. We recognise the compassion, seriousness and commitment that he has brought to this subject during his time serving in His Majesty’s Government.

Amendment 161 is also supported by the noble Lord, Lord Blunkett, the noble Baroness, Lady Chakrabarti, and the noble and learned Lord, Lord Hope of Craighead. It also has the support of the Bar Council, the Independent Advisory Panel on Deaths in Custody and others. Although the amendment is in my name, it is not actually my amendment. It was drafted by the late and much-lamented Lord Brown of Eaton-under-Heywood. As all of us recall, he burned with a passion on this topic and felt it very strongly. We miss him very much in these debates.

Briefly summarised, the effect of the amendment would be to change the burden of proof in the Parole Board’s release test specifically for IPP prisoners. The current test is as set out in Section 28 of the Crime (Sentences) Act 1997, as amended. The board must not direct the release of the prisoner unless

“the Board is satisfied that it is no longer necessary for the protection of the public that the prisoner should be confined”.

In effect, the prisoner has to satisfy the Parole Board that he or she is no longer a threat to the public. This is a high test and a high bar. The amendment would change that to create an assumption that the prisoner will be released unless the Parole Board is satisfied

“that it remains necessary and proportionate for the protection of the public … that they should continue to be confined”.

This is a subtle shift.

In fact, one of the objections I have heard to this amendment from advocates for IPPs is that it is not going to change things enough and that, in practice, the Parole Board will continue to apply tests of practical judgment to the question. However, I think it will have an effect, even if it is a small effect—the noble Baroness used the word “nudge”—in nudging the Parole Board in a certain direction, by making it clear what the will of Parliament is in relation to these prisoners, in particular, in the special circumstances that obtain.

I will deal with the question that was also raised about the relevance of the word “proportionate”, which the late Lord Brown introduced into the amendment. What does “necessary and proportionate” mean? Does it not include an element of vagueness that might somehow dilute the effect of the amendment? I do not think so. I think the word “proportionate” is meant to convey to the Parole Board that it should look at means of ensuring the safety of the public other than confinement in prison when it comes to consider these cases. That might include enhanced supervision in the community by way of tags or other devices, quite commonly used, that help to ensure that a released prisoner on licence remains broadly safe and not a threat to the public.

[Lord Clarke of Nottingham (Con)]

My recollection is that there is a section in the original 2012 legislation that would shift the burden of proof in the way that he describes. I remember the difficulty I had in persuading my then Prime Minister to enable me to put the abolition of IPPs into the legislation at all: I had to settle with him that we would put this into the legislation but not, for the time being, enact the change in the burden of proof. Could what my noble friend is seeking to achieve be delivered now by the straightforward provision of bringing that long-dormant 2012 section into effect?

[Lord Moylan (Con)]

I am somewhat crushed by the fact that the noble Lord is able to bring before your Lordships’ House a point he recalls, after 14 years, simply from memory but which I had to spend a large part of this afternoon looking up so that I could get the wording correct, and which I was about to turn to imminently. Because I was about to say that this amendment is not in any sense radical: it simply builds on a power that the Secretary of State already has, and makes it a duty.

My noble friend is referring—I am sure he recalls this better than I do—to Section 128 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012, which was, indeed, his legislation. That section gives the Secretary of State the power, by statutory instrument, to amend the Parole Board’s release test for IPP prisoners, not excluding the manner in which this amendment would oblige the Secretary of State or the Government to change the current provisions.

[Lord Marks of Henley-on-Thames (LD)]

I heard what the noble Lord, Lord Clarke, had to say and I know that if my noble friend Lord McNally were in his place, he would say that when he, as a junior Minister, and the noble Lord, Lord Clarke, were at the Department of Justice, they were of the view that it would be a matter of a short time only until Section 128 would be implemented. It is a matter of great disappointment to my noble friend that it has taken until now—and indeed not yet—for that section to be implemented reversing the burden of proof.

[Lord Moylan (Con)]

I am very grateful. Again, my speech is being shredded in advance by points that I was about to make. Really, we are making it extremely easy for my noble and learned friend the Minister to agree with us. What we can all agree on, as a matter of fact, is that Section 128 of LASPO has not been implemented, 14 years on. It is for that reason that this amendment is being brought forward, leaving the Government with no choice but to oblige them, in effect, to deal with IPP prisoners in the manner that my noble friend has indicated was always the hope and intention.

In fact, I was going to make reference at this point to a remark made by my noble and learned friend Lord Clarke at an earlier stage when we were discussing IPP prisoners: he said that nobody at the time—in 2012—believed that there would still be IPP prisoners in confinement 14 years later. It is this point that I am trying to address. Very simply, this is a very small shift in a power that already exists for the Government. It is therefore, in effect, a very modest amendment and one that I hope both my noble and learned friend the Minister and the Opposition Front Bench will feel able to support.