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.

Victims and Prisoners Bill

Lord Moylan Excerpts

Tuesday 12th March 2024 Lords Chamber

[Lord Moylan (Con)]

My Lords, I congratulate the noble Baroness, Lady Fox of Buckley, and my noble friend Lord Attlee on a very elegant double act. While the amendment that was moved by the noble Baroness is at the more ambitious end of change in this Bill, the amendments moved by my noble friend give the House a suite of options for how we might choose to implement it. Those who are concerned that there might be practical problems with implementing it can pick one of the options put forward by my noble friend or, before we reach Report, some other combination that would allow it to be delivered in a way that was acceptable and could be managed by the Probation Service, the ministry and the courts.

It was not for that purpose that I have principally risen to speak, but rather to pick up a point made by the noble Baroness about the family and prisoner reaction to our debate today, and in particular the issue of self-harm. The noble Lord, Lord Carter of Haslemere, and the noble Baroness, Lady Burt of Solihull, earlier this evening spoke about the case of Matthew Price. It is true that I got an email from Matthew Price: a perfectly literate and coherent email in which he said that he was only a few months away from his 10-year limit, but that the mental stress on him was such that he could not guarantee he was not going to take his own life.

I know that other noble Lords probably received the same email; certainly, the noble Baroness, Lady Burt of Solihull, did. I do not know how many replied. I did, and I tried to encourage him to cling on. I told him that, not that long ago, we had passed an amendment to the Police, Crime, Sentencing and Courts Bill, as it then was, which meant that at the end of the 10-year period, the Ministry of Justice would automatically submit an application for the discharge of his sentence to the Parole Board. He himself did not have to take any action; it would happen automatically under the new regime. What I had to say to him, in honesty, was that that did not mean that the sentence would then be discharged. He could still be refused even at the end of the 10-year period. The ministry would then submit an annual application for his sentence to be discharged, but there was no guarantee as to when it would end. I did not put it as fully as that, but I did feel that I had to make that point.

I do not know what effect it had, but a few weeks later I had a short email from a friend of his simply saying that he had taken his life. The effect of that stays with me, and I know, from discussion with her, that it has stayed with the noble Baroness, Lady Burt of Solihull. It seemed such a terrible waste.

It is not a debating point, but this comes back to what was said by my noble and learned friend the Minister at an earlier stage when he was discussing the difference: “Well, it is one year or two years? Does it really matter if the offender has to wait two years as opposed to having an opportunity to make an application at the end of one year?” That was in relation to an amendment put by the noble and learned Lord, Lord Thomas of Cwmgiedd. Months can matter in cases like this. It also illustrates that, while we talk confidently about 10 years as the licence period, because that is what is set in statute, in fact it was never 10 years. It was 10 years as a minimum; it could be 11 or 12 years —nobody actually knows until they apply and get that decision.

In relation to self-harm, I have also had an email today—again, it is possible that other Members have—explicitly supporting my Amendment 161, which we debated earlier. That email comes from the Independent Advisory Panel on Deaths in Custody; this is a non-departmental public body, which writes from the Ministry of Justice—that is its address. It says:

“IPP prisoners are a particularly vulnerable group due to the close link between hopelessness, self-harm, and suicide. IPP prisoners’ vulnerability is further exacerbated as the period for which they are held beyond their tariff increases. Last year there were nine self-inflicted deaths among IPP prisoners – the highest number since the sentence was introduced … – with a similar number of deaths in the previous year”.


In that context, I want to make a practical and immediate point—not a sensationalist point. Many prisoners and their families are listening to this debate and are looking to us for what outcome they might expect from the consideration we are giving to this Bill, both now and no doubt on Report. Specifically, they have put their hope, in many cases, in resentencing, because it was so strongly backed by the Justice Select Committee in another place.

On the assumption that my noble and learned friend the Minister will reject this—he has made clear in the past that he is likely to—I think that it is incumbent on the Ministry of Justice and His Majesty’s Prison Service to be particularly vigilant in the coming period in supervising and supporting IPP prisoners as they react to what they might hear.

Finally, I second what the noble Baroness, Lady Fox of Buckley, said about the many NGOs that have backed reform. Obviously, one wants to refer particularly to the Prison Reform Trust for what it has done, as well as the Campaign for Social Justice. As she says, the video it produced has reportedly achieved 14 million views. I suggest that the public is more sympathetic to IPP prisoners than Ministers might imagine. I hope that they will reflect on that and find it in their hearts to move somewhat further on the amendments that we have been debating this afternoon than my noble and learned friend has felt able to do so far.

[Lord Thomas of Cwmgiedd (CB)]

My Lords, I add a few sentences to support what has been said so ably by the noble Baroness, Lady Fox, the noble Earl, Lord Attlee, and the noble Lord, Lord Moylan. The case for resentencing is compellingly set out in the Justice Select Committee report. I cannot improve on that, certainly not at this late hour, but there are two points I wish to make.

First, there is no doubt that the sentence was imposed for a huge variety of cases. Some people were sentenced to IPP who would have received a discretionary life sentence, and we do not seem to recognise that. The second thing we do not recognise is what Parliament and the Government have done to contribute to this. I recall looking at a number of cases where people were sentenced when the regime was at its most severe. They had characteristics that were alien to British justice. First, there was an assumption of dangerousness unless the judge disapplied it. Secondly, the judge had no discretion if the person was dangerous to send him to prison. Thirdly, it applied to offences that would be characterised, for offences in the Crown Court, as at a low level—two years. The particular cohort that was most unjustly dealt with were those sentenced between 2005 and 2008, when the law was slightly ameliorated.

Secondly, I recall going to Leeds prison in 2005 where I saw that the state had made no proper provision for what was about to overwhelm the state: that is, a large number of people who, by the terms of the sentence, were given the sentence. Over the ensuing years, there were a vast number of cases where people complained that there were not sufficient resources. Again, this was a failure of the state.

Then, as the noble Lord, Lord Clarke of Nottingham, has made very clear, there was another failure: a failure to deal with this problem by changing the law shortly after 2012. It is very important in looking at this matter to bear in mind our responsibility. It is all Parliament’s responsibility—and the Government’s responsibility for carrying it out. As I said earlier today, it is an enormous tribute to the noble Lord, Lord Blunkett, that he has accepted his responsibility for the failure. We ought to do the same.

I understand why, at this particular time, with an election pending, there is no realistic prospect of people being bold. I hope very much that the steps that the Lord Chancellor has taken may work—it has taken him a great deal of courage to go that far in reducing the tariff period. I hope that we can persuade the Minister that he will make further changes to ameliorate the injustice, but I am not very optimistic. If none of this works, we have at least laid the groundwork for the incoming Government to face up to this problem and remove what everyone accepts is a stain on the character of British justice.

Imprisonment for Public Protection

Lord Moylan Excerpts

Tuesday 16th January 2024 Lords Chamber

Asked by

[Lord Moylan]

To ask His Majesty’s Government what plans they have to reply to the letter addressed to them on 17 August 2023 by the United Nations Special Rapporteur on Torture and other Cruel, Inhuman or Degrading Treatment or Punishment and others, concerning imprisonment for public protection.

[The Parliamentary Under-Secretary of State, Ministry of Justice (Lord Bellamy) (Con)]

My Lords, the Government are grateful for the UN special rapporteur’s interest in this important matter and have considered her letter carefully. A response was sent on 19 December 2023 and published on the Office of the United Nations High Commissioner for Human Rights website at www.ohchr.org. The IPP action plan aims to promote sentence progression for all those serving IPP sentences, and provisions in the Victims and Prisoners Bill will reduce the number subject to that sentence over time.

[Lord Moylan (Con)]

My Lords, I thank my noble and learned friend and apologise that my Question was tabled, quite by coincidence, on the day that the Government issued their response to the letter. Does he accept the evidence submitted to the Justice Select Committee in the other place, and referred to by the special rapporteur—that the mental health problems caused by the IPP sentence itself multiply the difficulties that the prisoners face in obtaining release, and that therefore the Government would be wholly justified in considering any legislation in treating them as a special case with particular needs and trying to assist them to obtain discharge of the sentence?

[Lord Bellamy (Con)]

My Lords, the Government accept that there are certain special mental health issues for a number of these prisoners. They are being tackled, as far as we can do so, within the existing system. The action plan to which I referred contains provisions in that regard, particularly on improving psychological services and providing better support for prisoners on licence to avoid later recall. I do not accept the second part of my noble friend’s question that it follows that we need special legislation to deal with this.

Victims and Prisoners Bill

Lord Moylan Excerpts

2nd reading
Monday 18th December 2023 Lords Chamber

[Lord Moylan (Con)]

My Lords, with your Lordships’ permission, I will use the minutes available to me to speak principally about the clauses that relate to prisoners detained indefinitely for public protection. Before I do so, I congratulate in advance the noble Lord, Lord Carter of Haslemere, on his impending maiden speech.

We have had a great discussion of human rights in various contexts over the last few weeks and months, and noble Lords no doubt do not need reminding of the scandal of a sentence that was actually abolished because of a judgment of the European Court of Human Rights but is still being served 10 years on by those caught up in it. My noble and learned friend the Minister provided some figures to the House about the current situation, and I will just highlight a few of them, with none of which I am disagreeing. There are nearly 3,000 people in jail serving this sentence and, of those, 57% are on recall and 43% have never been released. Nearly all those people who have not been released have served their minimum tariff; only 20 have not and all the rest are over tariff and more than half of those have been held for 10 years or more over their original tariff. I will finish with a figure that my noble and learned friend did not mention, but I shall: there were 78 people serving an IPP sentence who have taken their own lives while in prison.

The truth is that this sentence is a form of mental torture: to have no notion of when you might be released and to have only vague ideas of the hoops that you have to go through and steps that you have to take—hoops that are very often withdrawn because of administrative failings or because of a move in prison, and steps that you cannot take and so you are knocked back again, and “knocked back” is the term that is used. If you eventually get to a Parole Board, you find that, unlike any other prisoner, you have to demonstrate that you are safe before you can be taken out—and, at the same time, to do this in a context where your mental health is very likely deteriorating.

More and more people are aware of this situation. The fact that the existing Lord Chancellor has actually described it as a stain is an extremely welcome acknowledgement on his part of the scandal. A video is going round, circulated by the Campaign for Social Justice, which claims recently to have achieved 7 million views. The public are aware of this issue, and they are sympathetic to the plight of these prisoners, as I suggest we should be. The Justice Committee in the other place did a very thorough, serious and sympathetic report earlier this year. Its principal recommendation was a re-sentencing exercise. The Government have rejected that; no doubt, it is something that we will return to in your Lordships’ House. But there are also many other ways in which we could help those in prison.

The Government are to be commended on certain things—and I know the personal efforts of my noble and learned friend the Minister. Since earlier this year, we have an action plan that contains discernible actions and appears to be getting attention from the civil servants at the Ministry of Justice, which is very welcome. I also welcome the amendments made to the Bill by the Government in the other place, which addressed issues to do with IPP prisoners. However, all the amendments inserted in the other place relate to prisoners who are out on licence. As I say, I think they are the best you could hope for—they are very good amendments—but they do nothing for those serving a sentence of imprisonment in jail. There is a range of ways in which we could help those people. Some of them are perhaps at the more radical end, but there are others that are very gentle, which I hope my noble and learned friend would find it possible to accept easily in Committee, when we shall table amendments relating to them.

Finally, I echo what the noble and learned Lord, Lord Thomas of Cwmgiedd, said about the responsibility of the state and the necessity of recognising our moral responsibility in relation to prisoners suffering mental health issues, very often because of the way we have treated them—a way which we acknowledge is not compatible with their human rights. My noble and learned friend the Minister made a great deal of the principle of public protection, but those are not the words over the door when he goes into his office; the words over the door say, “Ministry of Justice”. When it comes to Committee, I very much hope that noble Lords will be supportive of those amendments put forward that would perhaps put that balance right and re-emphasise the responsibility of the state to administer justice to people who have been neglected too long.

--- Later in debate ---

[Lord Bellamy (Con)]

My Lords, I thank all noble Lords for their contributions. I congratulate the noble Lord, Lord Carter of Haslemere, on his magnificent maiden speech. I hope your Lordships will forgive me but, following a five and half hour debate at a relatively high level, I do not wish to close my door now, having previously said it will remain open, by being too definitive on the various points we have discussed.

I will take briefly three points. First, I will have to come back to the issue of legislative consent, and we will need to explore it further, given the inter-relationship between the various authorities and responsibilities. I acknowledge the existence of that issue. Secondly, on the impact assessment, about which certain comments have been made, I have gathered during the debate that it probably needs to be looked at again and perhaps revised and expanded. That is another task to be completed. Thirdly, I gather that at Report stage in the Commons the Government gave an undertaking that restorative justice would form part of further guidance to the relevant authorities when commissioning various services. At the moment, that is as far as I can take the issue of restorative justice, important though it is.

Having made those preliminary points, I also add a brief word on scope. The Bill does not deal with what could be described as purely operational decisions by the police, such as the failure to make an arrest or not turning up to a domestic burglary or something of that kind. That is for another way of complaint, through the police complaints systems. The Bill does not address the difficult problems victims experience simply because there is a backlog in the criminal justice system. That is for another day. It also does not address—and I do not think it would be in scope to address—certain points made in this debate about sentencing and how we come to sentence offenders.

The first group of points made is about Part 1 and victims, with the essential point being that the Bill does not go far enough. In the Government’s view, the Bill goes a very long way. It is not just a gentle nudge, as has been suggested; it is a tremendous shove in favour of victims. It combines real efforts to change culture, greatly improve transparency and give proper statutory duties to various bodies, including police and crime commissioners and others, to get this organised. It requires cross co-operation and involves further resources.

As I think I said in opening, we have quadrupled the money available to victim services over the last few years. I take entirely the points made by, for example, the noble Lord, Lord Bach, that further clarification and development of these ideas could be very helpful. Others have said that bodies such as the Metropolitan Police, for example, would welcome further guidance, clarity and work on exactly how we can make this structure effective.

I think we all agree that we want to make an effective structure; the question is how to get there. At the moment, at least, to bring in a rather blunt statutory duty—in effect, a law giving victims further rights to sue and to bring in more lawyers, more legal proceedings and so forth—is not the right way to go, in the Government’s view. We do not want more satellite litigation. The real issue is how we effect cultural change.

How do we get there? The Government’s position at the moment is that this structure provides a very positive basis for effecting that much-needed cultural change, not least through the existence of transparency and, for example, the power of the Secretary of State to publish where local areas are on all these things and the powers of local police and crime commissioners to invigorate their local communities in all these respects. In the Government’s view, that is the way to go.

In relation to victims, there have clearly been many—perfectly understandable—references to particular kinds of victims, notably children. I briefly point out that child victims of crime and exploitation are encompassed within the Bill’s definition of a victim, and child criminal exploitation is in fact defined in statutory guidance for front-line practitioners in publications such as Keeping Children Safe in Education and Working Together to Safeguard Children. However, the point that we need to think very hard about is how we protect child victims, and it is certainly a point we should jointly further reflect on and consider.

Indeed, in relation more generally to women and girls in the justice system, victims of domestic violence, stalking, grooming and anti-social behaviour, and persons whose first language is not English, those are all examples of particular victims that we need to make sure are encompassed within our remit. Proper attention should be given to those particular kinds of victims. Those points are well made and, if I may briefly use an Americanism, will be taken under advisement.

In broad outline, that is the victims part of the Bill. As far as the IPA is concerned, the Government’s position is that this is a major advance, particularly the creation of a standing advocate who can advise the Secretary of State and, when appointed on a major incident, “look after” the victims. At the moment the Government do not think that it is useful to give this standing advocate a sort of roving power to conduct their own inquiries or demand their own documents and so forth, because of the risk—among other things—of real duplication in major inquiries such as Manchester Arena, Hillsborough or Grenfell. We already have very effective procedures. Bishop Jones’s inquiry was very effective; it was a non-statutory inquiry set up by the Government, and it got to the bottom of things. The Government are not convinced that we need yet another operator operating in this area.

I think that my noble friend Lady Sanderson asked about smaller incidents. Let us take an incident such as the Shoreham air disaster, where 11 people were killed. Leaving to one side the question of whether that was a major incident, in that example there was the Air Accidents Investigation Branch, a criminal case and an inquest. Do we really need yet another body investigating, demanding documents and imposing more costs on the whole system? The Government are not yet convinced, certainly at this stage, that we should go any further than we have gone in the Bill, which is already a very long way. That is the general position of the Government at the moment.

I listened very carefully to noble Lords, particularly the noble Lord, Lord Meston, on the issue of parental responsibility and whether we should go further and include other cases. There are already procedures for effectively taking away, or at least hollowing out, parental responsibility that exist in family law in the family courts and the Government do not feel that we should go any further at the moment.

On infected blood, noble Lords will be able to ask questions of my noble friend Lady Neville-Rolfe tomorrow when she updates the House on the Government’s position. I have no doubt that we will come back to that in the fullness of time in Committee.

On IPP prisoners, the present proposals, I hope and trust, will deal quite effectively with prisoners who are currently in the community and who have a prospect of being released—I think they will deal with that. I think that we all recognise that our real problem is the hard core of about 1,200 prisoners who have not been released. It is very important to say that the Government have not given up on those prisoners. In the last two years, 400 prisoners who had not previously been released have been released. There is very detailed work going on in the Prison Service; I am very happy to share with noble Lords more detail about that, if it is of use. It relates to particular sentencing plans for particular prisoners, so that they have an individual sentencing plan for further support in the community when they are released, and for a much more active IPP progression programme. So we are still working towards the release of these prisoners when it is safe to do so. The Government currently see that as a much more sensible and justifiable approach than the alternative of the re-sentencing exercise.

As noble Lords know, the basic problem with the re-sentencing exercise is that you are raising expectations that people will be released. But the people we are dealing with have been found not to be safe to be released, so how are we going to tackle that? Are we going to take the view, “We’ll just release them”? As in the case of Mr Bierton that I mentioned in my opening speech, do we say “We don’t care whether further offences are committed by these highly dangerous people, we’re just going to release them because that is what justice demands”? The Government ask: what about future victims? What risks are you taking; is it worth the risk; can you take the risk? The Government are not prepared to take that risk. But they are prepared to work very hard for these prisoners, to give them at least some hope of an eventual release. That is the Government’s present position on these issues.

[Lord Moylan (Con)]

My Lords, it is with the greatest respect that I intervene on my noble and learned friend. I genuinely congratulate him and welcome his personal and very human engagement with this problem, which I know he has wrestled with the whole time he has been a Minister—I think it is fair to say that it has always been on his agenda. But I add, in fairness, that the Prison Service releases daily people into the community who would be assessed as dangerous if the Government had the option of retaining them in custody. That is because they have reached the end of a definitive sentence.

It is a risk that we have learned to manage. It does indeed occasionally go wrong—of course it does—and there are future victims; the point made by my noble and learned friend is not empty. However, we manage it. The fact is that of these people we are discussing, very few committed crimes that were egregiously heinous or violent, compared to many others who have, before and since, being given determinate sentences that see them released into the community at the end of that sentence, if not earlier.

[Lord Bellamy (Con)]

My Lords, my noble friend makes a perfectly fair debating point—and we are debating, so it is perfectly fair that he makes a debating point—but it is a debating point at the end of the day. The point is: are you prepared to take the risk of 1,200 dangerous people being released from prison? The Government are not prepared to take that risk. We can of course discuss it further, but I am just explaining what the Government’s position is: it is better to work with those prisoners to ensure that they are safe to release eventually.

That probably takes me on to the issue of public protection and related issues. First, perhaps I may clarify what seems to be a muddle that has arisen about the statement in the Bill that it is compatible with convention rights. The Bill is perfectly compatible with convention rights: it does not take away any convention rights at all. Section 3 of the Human Rights Act is a procedural provision only, which gives the court an—to use a neutral word—unusual power to reinterpret what Parliament has said in a manner that may not have been and probably was not Parliament’s original intention so as to render a particular provision compatible with the convention.

On the provision in the Bill disapplying Section 3, which at least one member of Sir Peter Gross’s commission thought we should get rid of, and on other parts of Section 3, Sir Peter himself recommended a rather complicated hierarchy of different ways of applying the section. It has been quite a difficult section to apply. Case law has gone all over the place over the years, although it has settled down more recently. It introduces uncertainty where the Government want to have certainty in this area: that this is the test for public protection for these prisoners, that is what Parliament has said, and that is the end of the matter.

If that was found to be incompatible with the convention in any case, hypothetically, the court would have to make a declaration of inapplicability, and Parliament would have to deal with it. But the underlying issue is the constitutional balance between the courts and Parliament. That is quite an issue, and it has not gone away, but that is how the Government understand this particular point.

As regards the question of the Parole Board and all the various provisions affecting it, it is worth making the point that when these very high-risk offenders are released, they live in the community. Who speaks for the people in the community who have to live with them? Are they represented at all in this system? The only person who can represent the interests of the community with whom released prisoners have to live is the Secretary of State. All we are doing is saying that if there is some doubt about the application of the public protection test, it is wise from the point of view of the system—

Parole Board Recommendations: Open Conditions

Lord Moylan Excerpts

Thursday 25th May 2023 Lords Chamber

[Lord Bellamy (Con)]

The Secretary of State gives reasons in every individual case, and those cases can be challenged.

[Lord Moylan (Con)]

My Lords, has my noble and learned friend given consideration to what might be called the ripple effect of the change in criteria on Parole Board decisions, where the sentences are less than life sentences, where it is making other judgments about moving people from closed to open prison? I ask that because anecdotally one hears—and my noble and learned friend may be able to comment on this—that there are now spare places in open prisons that cannot be filled, while the closed prison estate comes under ever more pressure.

[Lord Bellamy (Con)]

My Lords, the Secretary of State, when introducing these new rules in January 2022, prioritised the precautionary principle and the protection of the public. Despite enormous pressure on the closed estate, he took the view—in my view rightly—that public protection was more important than the short-term expedient of transferring prisoners who are not suitable for open conditions to open conditions simply to reduce pressures on the closed estate.

Imprisonment for Public Protection Action Plan

Lord Moylan Excerpts

Thursday 25th May 2023 Grand Committee

Asked by

[Lord Moylan]

To ask His Majesty’s Government what additional resources will be made available to His Majesty’s Prison and Probation Service to secure timely delivery of the Imprisonment for Public Protection Action Plan, published on 26 April.

[Lord Moylan (Con)]

My Lords, I do not propose to rehearse the history of this sentence, which is well known to most of the participants in the Room. This is an opportunity to look forward rather than back. To summarise the basic facts, there are 2,892 IPP prisoners in prison; 1,498 of them are on remand, 1,394 have never been released and nearly all of them have served their minimum term—in many cases well over it. The difficulty of completing the hurdles required for progression to release, a lengthy 10-year statutory parole period and the ease with which one can be yanked back into the prison system have made this scandal both intractable for the authorities and a continuing mental torture for the prisoners and their families.

Hence the optimism when the Justice Select Committee in another place produced its courageous and morally unarguable report last year, drawing attention to the scandal and the suffering, and recommending some clear ways of cutting this Gordian knot through resentencing. The Government’s rejection of that was perhaps not unexpected by some—it was not unexpected by me, to be perfectly honest—but it has had a devastating effect on the mental health of prisoners and their families alike. One of the most dangerous things here is raising hopes only to see them dashed.

Instead, the Government have offered an action plan by way of response to the committee’s report. I think this is your Lordships’ first opportunity to review and consider that action plan. What can one say about it? First, it is a welcome advance on the previous action plan, which consisted of two sides of paper. This at least is a serious effort and it has a great deal of detail. Secondly, it does have a plan, and a timetable. Both those things are very much to be welcomed. Thirdly, I know from ministerial assurances that its implementation has been entrusted to competent and experienced civil servants. I welcome that and have confidence in them.

However, it is yet to be seen whether the plan is the transformative approach we are looking for that will help to resolve this issue. First, the plan fails to acknowledge the injustice lying at the heart of this problem. The Secretary of State, the Lord Chancellor—the new one—appears to be moving in that direction. In the other place recently in debate on the victims Bill, he referred to the IPP regime as a “stain”, possibly echoing comments previously made by the noble and learned Lord, Lord Brown of Eaton-under-Heywood. In a letter I have recently seen he refers to it as an iniquity. These are new terms; this is new language that we have not heard from the Ministry of Justice in the past. It is wholly welcome that the acknowledgement of the injustice is coming from the Secretary of State, but is it properly reflected in the action plan, which, it must be said, was prepared before he came into office, although he signed it off? Does the action plan still read too much like an administrative task, rather than what it should be: a morally based mission?

Secondly, the action plan fails to respond fully to what we know are the challenges faced by prisoners who are out on parole. One cannot overestimate the fragility of a person who has to carry the difficulty of rebuilding their life while on parole for a lengthy 10-year period—set by statute as a minimum, despite our efforts in this House to have it reduced when we considered the Police, Crime, Sentencing and Courts Bill a year or two ago—constantly under threat of being pulled back into jail for what is, in effect, a life sentence. You would have to be a very strong person indeed to be able to live with that and make your life work well.

Other comments could be made about the action plan, but my final point is that it implicitly assumes that prisoners will engage with the new approach rationally and in good faith. The sad fact of the matter is that prisoners have lost their faith in the system. It requires a great deal more than simply turning up and saying, “It’s all different now, and we’re going to make it work”. One has to understand that these people are very fragile and damaged. The plan does not acknowledge that or coherently think about how to approach and engage with them, or indeed with their families, who are potentially a very important part of helping to resolve this issue.

Before I finish, I will say a few words about mental health. As a result of being involved in this over the last six to eight months, I have got to know psychologists working in the field. Some of them have approached me, and I have got involved. Previously, I did not have those contacts, and it is worth repeating a few of the things that they say.

The first is to emphasise that these prisoners are damaged people. Secondly, as was identified in the Justice Select Committee’s report, they have a tendency to hide that damage because they know that if they admit to mental health problems it makes it more difficult for them to get their parole. Therefore, they tend to hide it rather than look for treatment and support. Many of them are constantly on the verge of suicide and self-harm. I understand that there have been at least three suicides since the Secretary of State rejected the resentencing proposal and that, in general, the rate of suicide among IPP prisoners is double that of the normal prison population.

These things need to be borne in mind as examples of completely understandable suffering. One psychologist commented that these prisoners now think in the same way as somebody who has been sentenced wrongly, for a crime they did not commit. It is important to unpackage that: they all acknowledge that they have been sentenced for a crime they did commit and that they should do time in jail, but the fact that that time never seems to come to an end puts them in the same mental place as prisoners who have been wrongly convicted. That is not a good place to be if you are in prison. It is much better to be there knowing that you did something wrong and acknowledging that you have to pay the penalty but knowing that you will leave in due course when that penalty has been paid. They are in great difficulty.

I would like to see, and hear from my noble and learned friend when he speaks at the end, how the action plan could be improved by, first, a sense of the scandal, urgency and harm that underlie the problem, rather than it being purely administrative. I would like to see a credible plan to remove the obstacles for those in prison to complete the progression steps that they have to in order to qualify for parole and release into the community. I would like to see a radical reduction in the parole period and, most importantly, resources and support given to the parole service. That has always been the Cinderella of this problem and, without proper resources, the parole service will not be maintained.

Prisoners: Imprisonment for Public Protection

Lord Moylan Excerpts

Wednesday 1st March 2023 Lords Chamber

Asked by

[Lord Moylan]

To ask His Majesty’s Government what progress they have made in developing a new action plan for prisoners serving an indeterminate Imprisonment for Public Protection (IPP) sentence.

[The Parliamentary Under-Secretary of State, Ministry of Justice (Lord Bellamy) (Con)]

My Lords, the Government committed to reviewing and refreshing the IPP action plan in line with the recommendation of the Justice Select Committee’s IPP report. HM Prison and Probation Service is currently finalising what the action plan should prioritise, the governance needed to oversee its delivery, and how progress will be tracked. The revised action plan will be published by 31 March 2023.

[Lord Moylan (Con)]

My Lords, the recall of prisoners on licence is crucial to this. Last year was the first year in which the number of prisoners in jail increased since the sentence was abolished in 2012, because of recall. In late 2021, the Government produced figures that appeared to show that, because of recall, the number of prisoners in 2025 would have risen by 2,600. Do the Government still stand by those projections?

[Lord Bellamy (Con)]

My Lords, broadly speaking, in terms of order of magnitude, the projections remain the same. However, it is important to note that those figures to which my noble friend refers do not include the re-release of previously recalled prisoners. In the latest available published statistics for the latest available year, there were 214 IPP prisoners on their first release; 458 prisoners who had previously been recalled but were then re-released; and 622 recalls. I am not sure that I would accept the premise that the prison population is increasing.

Prisoners: Indeterminate Sentences for Public Protection

Lord Moylan Excerpts

Thursday 27th October 2022 Lords Chamber

Asked by

[Lord Moylan]

To ask His Majesty’s Government what plans they have for resentencing prisoners serving indeterminate sentences for public protection.

[The Parliamentary Under-Secretary of State, Ministry of Justice (Lord Bellamy) (Con)]

My Lords, the Government’s long-held view is that retrospectively altering imprisonment for public protection sentences would lead to an unacceptable risk to public safety. However, the Justice Select Committee of the other place has now published its report on the IPP sentence, which recommends bringing forward legislation to resentence all those offenders who continue to serve an IPP sentence. The Government will consider carefully all the recommendations in the report, including that one, and respond by 28 November.

[Lord Moylan (Con)]

My Lords, I thank my noble and learned friend for that Answer. In addition to having resentencing at the core of its recommendations, the Justice Select Committee also draws attention to the fact that, according to MoJ figures, it is expected that as many as 2,600 IPP prisoners currently on licence in the community will be recalled over the next four years—on present experience, the majority without having committed a further offence. Does my noble and learned friend accept that these numbers will put an unacceptable strain on the prison estate, that everything should be done to avoid that situation eventuating, and that it is incumbent on His Majesty’s Government to strengthen the probation service to ensure that it does not come about?

[Lord Bellamy (Con)]

My Lords, first, I make clear that the Government very much welcome the Select Committee report, which is a powerful document and makes for sober reading. On my noble friend’s question, the Government’s view is that public protection must come first. Secondly, it is not necessarily the case that this number of recalls will actually occur. Thirdly, and importantly, the Select Committee discusses the need for further resources to the probation service, particularly to supervise prisoners released on licence. The Government will look very closely into further resources for the probation service in that regard.

Prisons: Releasing Women into Safe and Secure Housing

Lord Moylan Excerpts

Monday 21st March 2022 Lords Chamber

[Lord Wolfson of Tredegar (Con)]

There was quite a lot in that question. I acknowledge that it is a very important topic. I will pick up on a couple of the points made. The 77% figure comes from the recent IMB report for HMP Bronzefield, and it refers to safe and secure accommodation. That is a different approach to what we use, which is to determine whether people are actually homeless. Do they have somewhere—a roof over their head—for that night? We are very aware of the particular needs of women prisoners. Our accommodation programme is targeted at all prisoners, but we have particular people working in women’s prisons to ensure that women’s needs are specifically met.

[Lord Moylan (Con)]

My Lords, as my noble friend has just illustrated, there are wide discrepancies in the ways in which homelessness is measured for women leaving prison between the Prison Service and the independent monitoring board at Bronzefield. I am grateful that the Government recognise that something needs to be done about this to give confidence in the figures. Can the Minister say when we can expect a set of robust categories to be in place, on which everyone can agree?

[Lord Wolfson of Tredegar (Con)]

I think that robust categories are in place. We define homelessness, in accordance with the legal definition, as being where the individual does not have any accommodation available and reasonable for them to occupy, including where they may be rough sleeping, squatting or in a night shelter, emergency hostel or campsite. It is very important to ensure that we are all looking at the same data. We publish the data annually and I invite all noble Lords to look at those figures.

Prisoners: Imprisonment for Public Protection Sentences

Lord Moylan Excerpts

Tuesday 8th March 2022 Lords Chamber

Asked by

[Lord Moylan]

To ask Her Majesty’s Government whether they intend to publish an action plan in respect of prisoners serving indefinite sentences for public protection; and if so, when.

[The Parliamentary Under-Secretary of State, Ministry of Justice (Lord Wolfson of Tredegar) (Con)]

My Lords, the Government will publish the imprisonment for public protection action plan following careful consideration of the findings and recommendations of the report of the Justice Select Committee on its inquiry into the IPP sentence, which is due later this spring. A version of the IPP action plan has previously been published and is in the House’s Library.

[Lord Moylan (Con)]

My Lords, on 15 December last year the Minister referred to his ministry’s

“successful action plan dedicated to the rehabilitation and risk reduction of IPP offenders”,—[Official Report, 15/12/22; col. 358.]

but he has politely declined to put the current version of the action plan in the public domain. Can he say whether the action plan includes the training given to probation officers in the effective supervision and support of IPP offenders?

[Lord Wolfson of Tredegar (Con)]

My Lords, I think I made it clear in my first Answer that the current version of the action plan is in the Library. We are updating it but we will wait to see what the Justice Select Committee report says. I suggest to my noble friend that that is an appropriate way to proceed. As to the probation service, the action plan requires the direct involvement of the probation service and the IPP progression panels in each probation region. The panels support probation officers to manage offenders on licence and they assist in applications made to the Parole Board to suspend supervision requirements or terminate the licence.