Sentencing Bill

Lord Thomas of Cwmgiedd Excerpts

Report stage
Tuesday 6th January 2026 Lords Chamber

Moved by

[Lord Thomas of Cwmgiedd]

76: After Clause 23, insert the following new Clause—
“Provision for the Parole Board to direct release on licence of an IPP prisoner at a specified future date(1) Section 28 (duty to release certain life prisoners) of the Crime (Sentences) Act 1997 is amended as follows.(2) In subsection (5)(b), at the end insert “or, in the case of a prisoner in respect of whom the Parole Board has made an order under subsection (6B), the prisoner has served the period ending on the future specified date,”.(3) In subsection (6)(b), at the end insert “or the Parole Board has made an order under subsection (6B)”.(4) In subsection (6A), at the end insert “but do not apply to a prisoner in respect of whom the Parole Board has made an order under subsection (6B)”.(5) After subsection (6A) insert—“(6B) In the case of a prisoner serving one or more preventive sentences as defined by section 31A(5), and not serving any other life sentence, where the Board does not direct his or her immediate release under subsection (5), the Board must fix a date for the person’s release on licence (“a specified future date”) and may issue such directions to facilitate the prisoner’s release on licence at the specified future date as it considers necessary having regard to its duty to protect the public.(6C) Any date fixed under subsection (6B) must not be later than—(a) the second anniversary of the date on which the decision is taken in the case of a prisoner serving a sentence of imprisonment or detention in a young offender institution for public protection under section 225 of the Criminal Justice Act 2003 (including one passed as a result of section 219 of the Armed Forces Act 2006);(b) the first anniversary of the date on which the decision is taken in the case of a prisoner serving a sentence of detention for public protection under section 226 of the Criminal Justice Act 2003 (including one passed as a result of section 221 of the Armed Forces Act 2006).(6D) A prisoner in respect of whom a direction has been made under subsection (6B) may apply for the specified future date to be varied once six months have passed from the determination of the release date.(6E) At any time before the expiration of an order for release on licence or direction made under subsection (6B) or an order for release on licence or direction made under this subsection, the Parole Board shall on the application of the Secretary of State, or as the Parole Board may otherwise determine, reconsider any order for release on licence at a specified future date or direction then in force and may direct that the order for release on licence or direction made be set aside and in its place extend the specified future date or order a new specified future date or make any further directions as to the licence conditions it considers necessary.”.”Member’s explanatory statement
This amendment requires the Parole Board to release on licence at a fixed future release date post tariff IPPs (who has not been released on licence immediately), after the successful completion of directions designed to ensure the public will be adequately protected upon release, with residual powers for the Secretary of State to apply to the Parole Board to vary its Orders.

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[Lord Thomas of Cwmgiedd (CB)]

My Lords, the last Government and this Government have done a great deal to help those who were sentenced to imprisonment for public protection and released on licence. I welcome the amendments tabled by the Government and other noble Lords in relation to the position of those on licence. But we have done nothing to deal with the problem of those who have never been released. In moving the amendment, I seek to provide a measure of real justice in the Bill for what is otherwise largely a Bill to deal with the prison crisis and to ensure that the prisons can run in an orderly manner. The amendment deals simply with justice.

I need not tell your Lordships the current position; it is well known. There are more than 940 prisoners who have never been released and some 200 more in secure mental accommodation, again who have never been released, even though this sentence was abolished in 2012.

Nor is there any need for me to set out the human stories of what these people who have never been released have been subjected to: short tariffs, yet many, many years beyond their tariffs. No one has really tried to address this. Suggestions have been put forward, including resentencing, but each Government have said no, so the Howard League decided it would set up a small group of experts to try to come up with a solution and bring justice at long last.

The key element of that solution, which is embodied in Amendment 76, is that the Parole Board ought to be asked to modify its position and to determine what steps would be necessary to ensure the release of those who have never been released within a two-year window. At the time this amendment was put forward in Committee, it did not contain what I would call a fail-safe clause, but, with the very great help of the noble Viscount, Lord Hailsham, it now contains a clause that modifies the original proposal and enables the Government—or HMPPS—to go back to the Parole Board and say that this two-year window cannot be met. So there is therefore a complete fail-safe.

The real question is: having left the decision in the hands of the Parole Board, and having tried to ensure that we give these prisoners hope and that we provide for the safety of the public, why will the Government not accept this? It is difficult to find an answer, because accepting it would bring justice as far as the public are concerned, and certainly as far as victims are concerned: many of these crimes were committed at least, by their very nature, more than 13 years ago. Above all, it would ensure justice for the offenders.

I summarised in Committee the reasons why we needed to do something. There was no conceivable justification for keeping people in prison under a sentence that is universally and without exception regarded as a mistake. Most people are flabbergasted when you say we are still imprisoning people 13 years after we concluded that the sentence under which they were imprisoned was wrong in principle. There can be no justification. More seriously, if you had the position where you committed an offence before 2005 or committed an offence after 2012 of exactly the same kind as one committed by those who are subject to the IPP, you would be automatically released at the end of that determinate sentence. There is no conceivable justification for discriminating against those who happened to be sentenced during a period of mistaken penal policy.

Worse still, the effect of the sentence, particularly on those who have never been released, is that it has severely damaged them mentally. To the extent that they may pose, or be thought to pose, a risk of danger, that is something that the state has helped create. Normally when the state makes a mistake, the state is sorry and tries to do something for the victims of its mistakes. Why not here?

Then, as is clear from the other provisions of the Bill, and as the Minister made very clear when dealing with an amendment just before the break, the prison capacity is in such crisis that we have to send, for example, foreign national offenders back to their own country, and we have to release serious offenders under what is described as the earned progression model. Why, therefore, can we not, in the middle of this calamity, see whether we could achieve some balance in prison capacity by addressing this problem?

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I hope that the Government’s amendment and our wider work assure noble Lords of our determination to support all those in prison to progress towards a safe and sustainable release. I will continue to work closely with noble Lords towards this goal, but I urge the noble and learned Lord to withdraw his amendment.

[Lord Thomas of Cwmgiedd (CB)]

I am grateful to all noble Lords who have spoken in this debate, in which the views, save that of the Minister, have been unanimous across the House. The unanimous view is that something needs to be done in the interests of justice.

It is justice that lies at the heart of this debate. One of the cardinal principles of justice is treating everyone equally before the law. If you stole a mobile phone from someone in 2005 or 2014, you ought to be treated in exactly the same way if you committed that offence during the period of this misconceived sentence. Failing to do that is to condemn people to injustice and to perpetuate it. It is no excuse to say, “Well, they were under a sentence passed by the courts”, when everyone has agreed that that sentence was wholly misconceived; nor is it an excuse to say there is a risk that they are more dangerous, because the psychiatric evidence is unanimous in the view that the form of sentence has made that danger greater.

On the amendment and what it tries to deal with, I am very sorry that those who provided the briefing to the Minister did not understand the change that had been made to the proposals I and the noble and learned Lord, Lord Garnier, put forward, because neither required a two-year release. There was a safeguard put in. What we proposed would have protected the public to the extent that they are and must be protected.

I would hope that we could give people hope. I do not believe, from what I have seen—as the noble Baroness, Lady Chakrabarti, said and the noble and learned Lord, Lord Garnier, has said, from the files he reviewed—that this can be solved administratively; it needs legislation.

I, therefore, with deep regret, feel it necessary to test the opinion of the House. In doing so, it is important to bear in mind what Lord Lloyd of Berwick reminded the House of in 2014: Winston Churchill said many years earlier that

“one infallible test of any civilised country is the way it treats its prisoners”.—[Official Report, 20/10/14; col. 456.]

I hope we will not fail that test. We need to do justice to those in prison. I therefore would like to seek the opinion of the House on Amendment 76.

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Moved by

[Lord Thomas of Cwmgiedd]

88: Clause 32, page 59, line 27, at end insert—
“(ba) after subsection (5), insert—“(5A) The Secretary of State must not exercise the power to remove a prisoner under this section where the prisoner—(a) is a fixed-term prisoner sentenced to a term of imprisonment of more than three years, or(b) is detained in accordance with subsection (4)(b) after returning to the United Kingdom following a previous removal.(5B) The Secretary of State must not exercise the power to remove a prisoner under this section unless he or she is satisfied that the interests of justice are not defeated by the removal, having regard to the gravity of the offence and the impact of the offender’s criminal conduct on those affected by it.”;”Member’s explanatory statement
This amendment is intended to add certain limits to early removals to ensure that the interests of justice and those of victims are taken into account.

[Lord Thomas of Cwmgiedd (CB)]

My Lords, I shall move this amendment on behalf of the noble Lord, Lord Verdirame, who unfortunately cannot be present. I wish to express first his appreciation of the time the Minister has taken to speak to him about the issue raised by this amendment. I can explain it very briefly. In the independent review conducted by Mr David Gauke, he considered whether foreign national offenders should be removed to reduce pressure on capacity and ensure that punishment was served for crimes committed in the United Kingdom. Under the then existing law, foreign national offenders had to serve 50% of their sentence but could then be removed and returned to their own state, where they would get no further punishment. The review recommended that the 50% rule be reduced to 30%—this was accepted and brought in by a statutory instrument—and that those who were sentenced to three years or less could be removed without serving any part of their sentence here. Clause 32 proposes the removal of the three-year time limit, so that any offender, however serious the offence is, can be removed without serving any part of their sentence whatever.

The amendment proposed by the noble Lord, Lord Verdirame, seeks to do three things. First, it seeks to restore the position recommended by Mr David Gauke: to ensure that people who receive sentences of more than three years could not be removed without serving part of their sentence. Secondly, it would make it clear that it is inapplicable to a person who has been deported and returns. That is to stop the revolving door of committing a crime, being deported, coming back, committing a crime and going round and round. Thirdly, it would require the Secretary of State to be satisfied, in the case of serious crimes,

“that the interests of justice are not defeated by the removal, having regard to the gravity of the offence and the impact … on those affected by it”.

There is a change from the amendment put forward in Committee in one respect, in that it drops the requirement that the offender serve his term overseas.

The most important of the three points raised by this amendment is the first: restoring the recommendation of the Gauke review. As I understand it, there are about 3,000 such offenders and it costs about £61,000 a year to keep each of them in prison here. I can see no objection to sending them back if they are to serve the remainder of the term in their own country, but it is evident from the figures that only a tiny proportion would serve such a term. The Bill as it stands, therefore, will send back at our own cost a very significant number of people who have committed crimes that deserve at least three years’ imprisonment.

It seems that the Government have said that they are not prepared to accept the amendment partly because they cannot agree to anything that will effect a reduction in prison capacity. Secondly, they are determined to make sure that the public Exchequer is relieved of the burden of paying for the imprisonment of foreign national offenders.

The purpose of this amendment is to try to reverse what can only be described as the interests of short-term expediency over the principles of sentencing, because the amendment infringes three of those principles First, if a person commits a wrong that merits three years’ or more imprisonment, that person merits equivalent punishment. Being sent back to his own country at taxpayers’ expense is not a punishment. Secondly, the purpose of sentencing is to deter crime. What deterrence is there in making it clear that, if a person comes to this country to commit a crime, he will be sent home free, without punishment? Thirdly, and most importantly, proper punishment retains public confidence in the system. If, for example, someone commits a series of shoplifting offences to go to the lower end of the three-year limit or, more seriously, comes here deliberately to commit a crime, paid for, what deterrence is there if that person knows he can go back? We hope that the Government will think again on this point.

However, on the second and third points—that is to say, dealing with the revolving door problem in the first place, while requiring the Secretary of State to be satisfied that the interests of justice are not defeated by removal, having regard to the gravity of the offence and the impact on those affected by it—why can the Government not accept them? I hope the Minister will be able to say, “Well, we’ve got to have a framework to deal with those kinds of issues” and will make it clear that, among the issues to be contained in the policy framework that governs the way in which foreign national offenders are dealt with, those two points, namely the revolving door and maintaining and examining each case to ensure that the gravity of the offence and the effect of the offender will not be that which casts doubt on the integrity of the criminal justice system, will be looked at and properly included within it. I beg to move.

[Lord Keen of Elie (Con)]

My Lords, we are grateful to the noble Lord, Lord Verdirame, for the carefully framed amendment and to the noble and learned Lord, Lord Thomas of Cwmgiedd, for the very careful way in which he presented the amendment. We agree with all the points made by the noble and learned Lord, Lord Thomas, without qualification.

When the previous Secretary of State for Justice first intimated this policy last year, I referred to it in this Chamber as being “completely mad”. I have not deviated from that opinion, I have to confess. The idea that someone coming from a safe country in Europe will commit a series of robberies and then, when caught, will be returned to their country of origin at public expense in order to pick up a different set of identity papers or a different passport and then return yet again strikes me as quite absurd. That is the revolving door point that has been touched upon, but the other points are equally important.

Of course, they may not have come from a safe country, in which case we cannot deport them, but no accommodation has been made for that either. It is going to be optional, essentially. You may seek to argue that you have not come from a safe country and therefore you cannot be deported, so you prefer to stay in prison. It is a quite extraordinary proposal that somehow punishment lies in the fact that you have been returned to your country of origin after committing a serious offence in this country. We have a foreign national who rapes a child and flees back to his country of origin, and presumably we no longer make any efforts to extradite him because as far as this policy is concerned, he has been punished. He has gone home. What is that going to do for public confidence in the justice system? It will damage it, but I cannot see any upside. It is an impossible proposal.

David Gauke proposed, very sensibly, that there should be a minimum term of punishment, and that is necessary because it is not just punishment; it is also deterrence. Without that, we end up in the strange situation in which people commit a crime, leave for their home country at public expense and return as and when they wish to do so. We have had instances of that already. I will not go into the detailed cases at this stage in the evening, but it is not uncommon for those who have been arrested and convicted of offences to return to their country of origin and then return to these islands in due course. There have recent instances of that. We strongly support the idea that there has to be a minimum term of imprisonment in these cases, while understanding the pressure on our prisons. Does the Minister truly believe that public confidence in the justice system will be improved or even maintained as and when the full implications of this proposed policy become public?

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With those observations about the limits on deportations soon after conviction, I hope that the noble and learned Lord will feel able to withdraw his amendment.

[Lord Thomas of Cwmgiedd (CB)]

I am grateful to the noble and learned Lord, Lord Keen, for his strong support for this amendment, and to the noble Lord, Lord Lemos, for his response.

It is a pity that the discretionary nature of this scheme is not more clearly set out. I am sure that a number of the issues that have been dealt with by the noble Lord could be more clearly dealt with if we were able to see in writing what the parameters are for the exercise of the discretion. It is not enough just to leave it to individual governors. In particular, when dealing with the revolving door and with crimes which are of gravity where there is an effect on the victim, these are the kind of things that need to be built into such a scheme. I understand from the noble Lord that there is going to be developed such a scheme. On that understanding, I will not press this amendment further.

Amendment 88 withdrawn.