Imprisonment for Public Protection Scheme

Lord Moylan Excerpts

Thursday 13th October 2022 Lords Chamber

[Lord Moylan (Con)]

My Lords, rarely can a report from a Select Committee have been welcomed with such joy by those directly affected by it. What is perhaps most welcome about it is its sense of urgency and dispatch. We have discussed this topic for quite a long time now. We have had warm words and sympathy from Ministers, but we have not had evidence of the urgency and dispatch that this report so rightly calls for. Ministers and officials wish to be seen as just, but they know that they are practising a major injustice. They wish to be seen as humane, but they know that they are continuing a monument to inhumanity.

Think about this briefly from the point of view of those affected: prisoners who are told that they are in prison for life but can get out if they demonstrate this, attend certain courses and go through certain hoops. They then find that they cannot demonstrate it: the courses are not available or, if they can get on one, they then find they might be moved to another prison before they can attend it. No wonder their mental health has deteriorated. No wonder they do not talk about it. Look at paragraph 49:

“I don’t speak to staff as any mention of a mental health issue goes on your prison record and will be brought up at board and can block release. The truth of it is we are all suffering from mental health problems because of the sentence but we are frightened to speak up”.


Imagine being in that position.

Think about the licensee, the person out on licence, having to demonstrate for 10 years that they are of good character or whatever, subject to being capriciously taken back into incarceration. Look at paragraph 115, which tells you that the majority of those taken back into prison have not committed a further offence; they have simply failed to satisfy their parole officer that they should remain out.

Think also here about the psychologists involved: people who are there to heal, but know that by giving a correct clinical judgment about the mental health of the prisoner, they are not assisting that prisoner but condemning him to continue in the circumstances that are the cause of the mental health problem. They feel deeply compromised in the role they are asked to carry out in prison in dealing with IPP prisoners. One of the most touching things in the report was the evidence of the prisoner who said that the best thing that ever happened to him was being sent to a mental hospital during his sentence, because at least there he was treated like a human being.

Finally, I ask your Lordships to think about the families, because they are serving the sentence too. With that, I come to my question for the Minister. There are two groups representing the families: UNGRIPP, the United Group for Reform of IPP, and the IPP Committee in Action. They will be lobbying the prisoners’ MPs on 19 October. Will my noble friend secure a meeting for them with the Secretary of State and the Lord Chancellor, either on 19 October or on some date soon after that, because they wish their voice to be heard and for Ministers to take this up and pursue it properly, as this report recommends?

--- Later in debate ---

[The Advocate-General for Scotland (Lord Stewart of Dirleton) (Con)]

My Lords, I join many of today’s speakers by thanking the noble Baroness, Lady Hamwee, for securing this important debate. I say how glad I am to see her in her place and how much I appreciated her succinct contribution.

I also thank the noble Baroness, Lady Burt, for opening the debate and laying down so many challenges for me to meet in the form of questions. In the spirit of good will and co-operation across the whole House, let me begin by providing her with a specific answer to one of the questions she asked. The report by Professor Moran on the offender personality disorder pathway was published today on GOV.UK. With that expression of delight from noble Lords, I should perhaps sit down, but I have more to say in response to the many points taken up by your Lordships.

It is indeed the case that the IPP sentence continues to generate enormous interest, concern and challenge in this House. The Ministry of Justice has certainly felt the strength of feeling from many noble Lords in previous debates on this matter. I acknowledge the work of the probation service, to which the noble Lord, Lord Ponsonby of Shulbrede, referred a moment ago, in playing its part in addressing the difficult problems that have emerged as a result of this piece of legislation.

As noble Lords will know, the IPP sentence became available for the courts to use from April 2005. When the sentence was abolished in December 2012, there were more than 6,000 offenders in prison serving an IPP sentence. Since that time, the Parole Board has released a substantial number of those prisoners on licence, although I assure the House that we recognise that there is still much more to be done.

On 30 June this year, there were 1,492 offenders in prison serving the IPP sentence who had never been released, and 1,434 offenders serving it following recall. In light of these numbers, I should here reaffirm the Government’s commitment, through the work of His Majesty’s Prison and Probation Service, to support: first, those serving the IPP sentence in prison, to reduce their risk to the point where the Parole Board, in the exercise of its independent function and discretion, judges that they are safe to release; and secondly, those serving the IPP sentence in the community, to progress to the point where the Parole Board, in the exercise of that same discretion, judges that their IPP sentence may safely be terminated. Our commitment will be delivered through the HMPPS action plan.

As your Lordships will be aware, it has long been the Government’s intention to review and refresh the action plan once the Justice Select Committee published its report following the IPP inquiry. We welcome the fact that, after a year-long inquiry, collation of the evidence base to which the noble Lord, Lord Anderson of Ipswich, and the noble and learned Lord, Lord Thomas of Cwmgiedd, referred, was published on 28 September. That means that we can now review thoroughly this important collation of evidence and recommendations in the context of consideration of our next steps. However, I emphasise that the Government have not stood idly by, awaiting the publication of this report. Work has been done to ameliorate matters for persons serving such sentences, as I will advise your Lordships.

As your Lordships have noted, the Justice Committee has laid out a clear recommendation for a new IPP action plan and a new approach to its oversight. The committee wants focused, actionable guidance to ensure that the plan has a clear strategic priority and ownership, and for HMPPS to deliver more in terms of fixed timeframes and performance measures. The Government welcome the publication of the committee’s report and view it as a real opportunity to take stock and identify areas for possible improvement. As I have observed, HMPPS has been working very diligently, over a considerable period, to deliver improved prospects for those serving IPP sentences. However, we must always be responsive to new information and take further steps to ensure that this work is robust, structured, and properly directed.

A full government response will be provided to the Justice Committee by 28 November this year, with an updated IPP action plan to follow. I emphasise that 28 November is the final date. My noble and learned friend Lord Bellamy, the Minister with responsibility in this area, will be very much looking forward to sharing and discussing progress on this with your Lordships over the coming months.

The noble and learned Lord, Lord Thomas of Cwmgiedd, in his powerful submission, acknowledged the importance of evidence, and of an evidence base on which to work. I emphasise that such an evidence base, together with the facts and statistics already available to the Government, must be subject to proper interpretation and analysis. However, I hope that this will not amount to what my noble and learned friend Lord Garnier potentially styled it as procrastination, or to equivocation.

While our focus is now on revising the action plan to address the Committee’s recommendations, it is important in a debate such as this to give a short overview of what has been delivered and achieved thus far in support of bettering the prospects of those serving an IPP sentence and in permitting them to progress through the system. Indeed, many of the improvements delivered in recent years will remain key features of the IPP action plan, as they have been shown to be effective in supporting progression.

In September 2016, a joint HMPPS and Parole Board IPP action plan was introduced, overseen by a board of senior representatives from prisons, probation, the Parole Board, health services and psychology services. I place particular emphasis on that latter component because of the profound concern that your Lordships have exhibited in relation to the mental health of persons imprisoned in this way. This early version focused significantly on improving the processes associated with the delivery of an efficient and timely parole process. At the time, there was a significant backlog of oral hearings which had a particular bearing on the prospects for IPP prisoners to secure progression, but, through the work outlined in the first action plan, the efficient flow and handling of cases improved significantly and that backlog was eliminated.

Once the parole process was operating efficiently, focus shifted largely to what HMPPS could and would do to support IPP prisoners, so that they could embark on their parole reviews with realistic hopes of showing the Parole Board that the statutory release test was met in their case. Then, as in each year from 2016, the Parole Board released hundreds from their IPP sentence for the first time and, as more were being managed in the community on an IPP licence, HMPPS began to explore what was needed to support those eligible to apply for the supervision requirements of their IPP licence to be suspended and, later, to apply for their IPP licence to be terminated altogether.

I now turn to the specific achievements of the IPP action plan thus far. I start with the case review initiative delivered by psychology services. These are comprehensive reviews, vital to identifying the most appropriate pathway for individuals, especially those with complex needs and challenging presentations, which the significant majority of those who remain in custody have. However, it is important to note that the case reviews are not a ticket to release but an absolutely key step to help practitioners home in on the best course of action to enable that individual to take progressive steps.

The department considers it impressive that almost every post-tariff unreleased IPP prisoner currently in prison has now received such a case review. The initiative has delivered well; between July 2016 and April 2022, 1,877 thorough reviews were completed, with many individuals going on from this platform to complete the work required to secure their next progressive step. In fact, 552 prisoners in this cohort have subsequently been released and a further 537 secured a progressive move to open conditions. It is clear that these reviews have, in conjunction with prison and community offender managers, led to improved individual pathways to progression, notwithstanding the fact that many are still struggling to progress due to their challenging behaviour, complex needs and the risks that they pose. Such cases are revisited through an update to the original case review and further multidisciplinary discussions of next steps.

Another key success of the action plan is the planning and implementation of three specialist progression regimes, which brings the total of such regimes to four. They collectively offer 385 places. These regimes, at His Majesty’s Prisons Warren Hill, Erlestoke, Humber and Buckley Hall, operate in closed, adult male prisons and provide opportunities for prisoners to gain a fuller understanding of their risks and problematic behaviours, and support to address them. Progression regimes aim to reintroduce the responsibilities, tasks and routines associated with daily life in the community, to test prisoners’ readiness to respond appropriately to trust where it is placed in them, and to encourage the active pursuit of activities and relationships that support rehabilitation. The system and the Government are conscious of the pressures posed on persons who have spent a long time incarcerated on returning to ordinary life. Although not all IPP prisoners would be ready to move to a progression regime due to the unique regime offering increased freedoms and responsibilities, it has proved an important opportunity for many to secure future release, and will be for many more who arrive there in the future.

Also worthy of note is the delivery of the IPP progression panels initiative, led by the probation service, which supports progression for those serving the IPP sentence in prison and in the community. These panels offer a multidisciplinary approach to risk management and progression, enabling cases which may have stalled to be put back on the right progression pathway. The panels are informed by the psychology services’ case reviews and are an important part of the wider toolkit to improve progression of IPP offenders. These are used prior to release but mainly following release to enable the effective management of individuals while on licence in the community. To date, over 6,600 IPP progression panels have been held across community and custodial settings.

The final success that I would like to highlight today to your Lordships is the addition to the Police, Crime, Sentencing and Courts Act earlier this year which requires the Secretary of State to automatically refer every eligible IPP offender to the Parole Board for consideration of licence termination. This takes effect once 10 years have elapsed since their first release and then annually thereafter. I note that this period is one which is challenged by the report of the Joint Select Committee, and the department looks forward to engaging with that matter in due course. This is something that your Lordships’ House certainly played an important part in delivering.

I join others in acknowledging the work and approach of the noble Lord, Lord Blunkett, in relation to consideration of the impact, value and merit of the IPP sentence. I think it was my noble and learned friend Lord Garnier, in particular, who made mention of that, but others did as well.

This amendment built further on what was previously delivered through the IPP action plan, which was to amend policy to seek proactively to ensure all eligible cases for licence termination made application to the Parole Board. Every eligible case will be considered by the Parole Board and, where successful, will lead to the IPP licence, and IPP sentence as a whole, being brought to a definitive end.

I am aware that many of your Lordships considered that this change did not go far enough and have pushed for a reduction on the period before individuals are eligible for consideration to have their IPP licences terminated. That featured, as I say, in the recommendations of the Joint Select Committee, although its primary recommendation has sought to go much further: to set up a time-limited expert committee, as your Lordships have heard, to advise on the practical implementation of a resentencing exercise, which the Lord Chancellor and Secretary of State for Justice could then consider. As stated previously, all recommendations within the report will be considered thoroughly. However, I am unable to comment on the Government’s views on the report’s recommendations until that formal response is available.

Although the successes coming from the IPP action plan, which I have sought to outline, are certainly encouraging, it is crucial at the same time to recognise the enormous challenges faced in working with this cohort to best effect, and the challenges that a refreshed IPP action plan will need to tackle. As the number of IPP prisoners who have never been released continues to decrease, the proportion of those who remain in prison who committed more serious offences and whose cases are particularly complex continues to grow. These prisoners, when not being released by the Parole Board, are still assessed to pose a high risk of committing further violent or sexual offences. These risks and associated behaviours must be addressed, and that has to be kept in mind when we consider IPP sentences because there is a risk-management component involved in that. It is not a simple task.

The Government’s priority continues to be to protect the public, but we remain committed fully to doing all that we can to support the safe progression of those serving IPP sentences.

[Lord Moylan (Con)]

My Lords, at the risk of prolonging my noble friend’s speech—I sense that he might be sitting down shortly—what can he say in response to my question about what he will do to secure a meeting with the families and the Secretary of State on 19 October, or as soon after that as possible?

[Lord Stewart of Dirleton (Con)]

I can give my noble friend an assurance that there will be engagement with the bodies to which he referred in his submission.

As your Lordships recognise, it is a mark of the health of a society that it extends compassion to victims of crime as well as to those who find themselves in custody as a result of having committed it. The proposals that the Government will bring forward once we have considered the terms of the JSC report will, I hope, assist that and permit people to reform and to enter into society to lead as full and useful a life as they may.

Northern Ireland Protocol Bill

Lord Moylan Excerpts

2nd reading
Tuesday 11th October 2022 Lords Chamber

[Baroness Kennedy of The Shaws (Lab)]

My Lords, like so many others, I oppose this Bill because it contravenes the rule of law. First, there is this flagrant breach of international law and its serious implications for our global reputation. Others have mentioned our invocation of international law when we are denouncing Putin’s conduct in relation to Ukraine. How can we—as I sought to do last night—condemn China for its conduct towards Hong Kong in breach of the Sino-British agreement, an international treaty, when we are breaking an international treaty ourselves? It is this sort of shocking conduct which I am afraid will do great damage to our reputation around the globe for law and our commitment to it.

The Government claim the defence of necessity. The noble Lord, Lord Pannick, has very effectively demolished that. There has to be grave and imminent peril, and that is not the situation here, as the history of this Bill relates.

In addition to breaching international law, this legislation also puts at risk other legal obligations. I remind the House that the protocol was designed to do more than protect economic interests; it had a number of objectives, one of which was to protect the Good Friday agreement “in all its dimensions”. The House will remember that concerns about human rights and equality have always been at the heart of the conflict in Northern Ireland, and a lot of work has gone into addressing those problems—I do not have to explain what I am referring to. As a result, we have seen the creation of important legal remedies, as well as institutions such as the Northern Ireland Human Rights Commission and the Equality Commission for Northern Ireland, both of which have expressed concern about this Bill.

Article 2 of the protocol provides that the UK has continuous obligations regarding human rights and equality in Northern Ireland. It provides that there shall be “no diminution of rights”. No diminution means that the people in Northern Ireland had rights before the UK left the European Union and these cannot be reduced as a result of Brexit. Rights can only stay the same or advance; they cannot regress.

As we know, Article 2 does not stand alone. It is supported by and must be interpreted in the light of other provisions of the protocol and the withdrawal agreement. In particular, there is an obligation on the United Kingdom for what is known as dynamic alignment in certain situations. That means keeping Northern Ireland up to date with developments in European Union law. Let me emphasise: protected rights in the Good Friday agreement that are underpinned by EU law may not be diminished as a result of Brexit and have to keep up with EU advances. Article 2 of the protocol gives that overarching guarantee. However, Clause 14 of this Bill provides that Article 13(3) of the protocol, which is on dynamic alignment, is to be disapplied immediately. Clause 20(2) provides that, in proceedings relating to the protocol, a court or tribunal is not to be

“bound by any principles laid down, or any decisions made … by the European Court”.

I am afraid that that does involve a departure. It is important to understand that this Bill ranges more widely than undermining only the trade and customs provisions of the protocol. The Bill presents a real danger to the protection of human rights provisions because of the powers that it gives to Ministers, which are not confined to trade. I remind the House of the law of unintended consequences. It could have serious implications for the citizens of Northern Ireland and their rights. That is yet another reason why this Bill should be abandoned.

[Lord Moylan (Con)]

My Lords, I do not want to put the noble Baroness on the spot. However, since she is speaking of rights, does she have any answer made by the noble Lord, Lord Dodds of Duncairn, that the protocol itself abridges the democratic rights of the people of Northern Ireland as guaranteed by the UN declaration and the European convention in the making of their own laws?

[Baroness Kennedy of The Shaws (Lab)]

I agree with the noble Lord, Lord Dodds, that the Bill is ill-conceived and does not consider the ways in which the overlapping provisions create real difficulties for the democratic rights of the people of Northern Ireland.

--- Later in debate ---

[Lord Moylan (Con)]

My Lords, it is a pleasure to speak after my noble friend. I welcome this Bill and support it wholly. There has been much talk of international law in the course of this debate and I trespass on that territory with some trepidation because I am not a lawyer and claim no expertise in jurisprudence. However, it seems to me that one should question some of the claims that have been made.

It is easy to imagine, given the way that it has been discussed, that international law simply because it is international is some sort of supreme law, rather like FIFA outranks UEFA and UEFA is somehow higher than the Football Association. But that of course is not the case at all. And it is easy to imagine, given the way it is spoken of, that a breach of international law is somehow akin to a criminal offence.

International law does of course create some criminal offences—the waging of an illegal war is one of them. But most of international law is much more akin to a sort of civil contract between parties agreeing how they are simply going to conduct their business on something as mundane as the quality of sausages, for example. That is where we are in this debate, and comparisons with Putin and other such extravagant claims are wholly grotesque and misleading.

In my view, there are other laws higher than international law; one of them is the law to maintain the integrity of our own state. The protocol is a clear wound and severance in the integrity of the United Kingdom. That is why this is a matter of interest not simply to the people of Northern Ireland but to all the people of the United Kingdom.

There is nothing new about this. Shakespeare, of course, had quite a lot to say about it. He envisages an onerous contract, freely entered into, that can be satisfied only by an irreparable wound in the body, possibly a fatal one. He specifically asks the question: how should the law deal with this? It is very easy to say that the answer is that the pound of flesh has got to be paid. In my view, there are too many noble Lords in the Chamber today who have been insisting on the right of the European Union to demand its pound of flesh; there are not enough lawyers who share the wisdom and humanity of Portia.

Apart from the harm to the body politic that the protocol does, there is the question of whether the protocol, far from being a shining pillar of international law, is not in fact in flagrant breach of it. The noble Lord, Lord Bew, gave a number of examples of how the protocol conflicts with other treaties that we and the Republic of Ireland are obliged to. None of the legal experts that I have heard speak in this debate has addressed satisfactorily the question raised by the noble Lord, Lord Dodds of Duncairn, and others, of whether it complies with the Universal Declaration of Human Rights and the European convention, both of which guarantee a democratic and representative say to people on the laws under which they live. That is denied to the people of Northern Ireland in respect of a large swathe of significant laws. That democratic deficit is recognised by our own Sub-Committee on the Protocol on Ireland/Northern Ireland, but no answer has come on whether the protocol is defensible.

That is also a point that goes to those who say that we should be using Article 16. Article 16 is a mechanism for adjusting the implementation of the protocol, but the democratic deficit in the protocol is not due to its implementation; it is at the very heart of the protocol, and this Bill is necessary to deal with it. Nor is the matter addressed by saying that the people of Northern Ireland through the Assembly in Stormont have an opportunity to vote on it. One cannot vote away, and one’s parliament cannot vote away, fundamental human rights.

To those noble Lords who wave about the notions of the rule of law and international law as if they were simple, straightforward, knockdown arguments against this Bill, I say that in my view the whole matter is a great deal subtler and a less robust platform for them to rest their case on than they might think. Although there are only a few speakers left on the list, I am still open to hearing someone defend how the protocol is consistent with international law on human rights.

Probation and Court Services: Workload

Lord Moylan Excerpts

Thursday 9th June 2022 Lords Chamber

[Lord Stewart of Dirleton (Con)]

My Lords, one of the difficulties in relation to retention of staff in this body is a pay structure which means that the pay of Cafcass staff, tied as it is to Civil Service staffing models, can be less than what is available to professional people working for other agencies, such as in local government. In those circumstances, the Government are in regular contact with Cafcass officials and senior management and are satisfied that they are conscious of the great problems to which the noble Baroness alludes in her question. As to the retention and recruitment of staff, the Government are working with Cafcass to seek to maintain and, indeed, improve levels of staffing in this important area.

[Lord Moylan (Con)]

My Lords, in view of the continuing scandal of prisoners held on indefinite sentences for public protection, is my noble and learned friend satisfied that the training provided to probation officers for dealing with IPP prisoners has met the aspirations set in the 2019 IPP action plan?

[Lord Stewart of Dirleton (Con)]

My Lords, I regret that once again I do not have the specific data in relation to the IPP plan to which my noble friend Lord Moylan refers. Once again, with his patience and that of the House, I will write to him on the topic.

Queen’s Speech

Lord Moylan Excerpts

Thursday 13th May 2021 Lords Chamber

[Lord Moylan (Con)]

My Lords, it is a privilege to speak after that illuminating and inspiring speech from the noble Lord, Lord Dannatt. I congratulate my noble friend Lady Fraser of Craigmaddie and the noble Baroness, Lady Merron, on their maiden speeches.

Before I go any further, I want to comment on the fact that a number of noble Lords—mostly on the Opposition Benches—have today accused the Prime Minister of repeatedly making remarks of an English nationalist character. I offer this House to pay from my own pocket £1 for every postcard I receive of an authenticated remark by the Prime Minister that could be characterised as English nationalist. I was delighted to read the gracious Speech, not only because of the admiration and affection we all bear towards Her Majesty the Queen and the monarchy she embodies at the pinnacle of our constitution, but because there were particular items of legislation that I was very pleased to see. One, for example, seeks to bring within bounds the astonishing growth in judicial review over my adult lifetime. Where has this come from? Who has ever voted for it? Is it not time that we had a statute and a debate about its extent and scope? The Government must be held to account in cases of alleged law-breaking, but a great deal of judicial review consists of challenging procedural failings by public bodies of no great moment, often in pursuit of a political objective such as the prevention of infrastructure investment, the principle of which has been approved by this Parliament. This is an abuse and I hope that the legislation will curb it.

The Government’s commitment to strengthening the union is heartening, but it requires careful thought. As the noble Lord, Lord Lisvane, indicated, there is a draft Bill doing the rounds—happily not one promoted by this Government—that would form the basis for a federal United Kingdom. Its proponents invariably describe this as “saving the union”. The union of which we speak is not just any old collaborative arrangement; it is a very specific thing, 300 years old and tested by history and usage. It is a union of Parliaments, producing a single overarching Government. That is why a commitment to the union is also necessarily a commitment to this Parliament. I will fight to defend this union and its Parliament, but to replace it with an ahistorical and, in my view, unworkable federation between one large member and three small ones is not to save the union but to scrap it and start again. In any referendum that might arise to support such a proposal, there is a material risk that England would not vote for it.

There are better ways to strengthen the union. In my view, Parliament has a right and duty to ensure that the quality of the NHS is of uniformly high standard across the United Kingdom. That is not true today in Wales or Scotland. An independent UK-wide audit of health outcomes would be a valuable inclusion in the health and care Bill.

When we turn to Northern Ireland, we have a case where a majority wish to continue as part of the UK. Yet without any democratic assent or accountability, the Northern Ireland protocol places the Province under the laws and jurisdictions of a foreign power—a power that, as my noble friend Lord Lilley points out, proclaims peace but is increasingly revealed as happy to impose disruption on Northern Ireland as leverage over a UK that has expressed a clear and democratic wish to escape its orbit. For how long can this continue?

I do not doubt the ferocity of this Government’s commitment to the union and I applaud it, but I look forward to seeing it given practical effect in all parts of the United Kingdom.