Police, Crime, Sentencing and Courts Bill

Lord Wolfson of Tredegar Excerpts

Lords Hansard - Part 1 & Committee stage
Monday 15th November 2021 Lords Chamber

[Lord Falconer of Thoroton (Lab)]

My Lords, I have already spoken once. I speak very briefly to say two things. First, what an impressive debate this has been. I draw attention in particular to the speeches of my noble friends Lord Blunkett, Lord Hunt of Kings Heath and Lord Bradley, the noble Lords, Lord Moylan, Lord Ramsbotham and Lord Hogan-Howe, and the noble Baroness, Lady Burt. I draw attention to them because they are not lawyers; they are people who have had contact in other ways with this system and come to the conclusion that it should end.

Secondly, we on this side of the House support all the amendments. Some are alternative ways of dealing with a particular problem, but we support all the proposals. We are not, in the amendments before the House, going as far as some of the speeches went. We are not suggesting the immediate abolition of the sentence. We are saying: support for those in prison to try to get released; support for those who are released to get proper help; and an easier process of having consideration of the licence being got rid of.

As the noble and learned Lord, Lord Brown of Eaton-under-Heywood, said, the one with the teeth is Amendment 208F. It says you get rid of these licences and release the person if they have served more than the sentence for the offence. If you have been sentenced to five years in prison, and that is the maximum sentence, once the maximum is reached, unless the detaining authority can prove that you are still a risk, you get released. If you are still below the maximum sentence for the offence for which you were convicted, but you have been in for 10 years, the same principle applies. It is an incredibly sensible way of ensuring the sentence goes for those who have got it, but you keep inside those who represent a severe danger, as long as the detaining authority can establish that they remain a danger.

I very much hope that the Minister will be able to give some words of comfort to the effect that these very moderate proposals will be taken up by the Government. If there are amendments to these proposals, of course, everybody in the House will consider them, but it is time for a change. These modest proposals require consideration for this Bill, because the biggest disappointment would be to be told that it is coming at some later stage.

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

My Lords, Amendments 208A to 208H relate to offenders serving sentences of imprisonment for public protection commonly known as IPPs. The noble Lord, Lord Pannick, who was very kind about my work as a Minister, invited me to put away the departmental brief. I am not going to do that, not least because it might mean that my work as a Minister here ends somewhat prematurely. But that is not inconsistent, I hope, with making it clear to the Committee that I have listened carefully to the debate and to the points raised around the Chamber. I will reread the debate in the Official Report as well.

Of course, I feel the mood of the Committee—that would be impossible to miss. The speeches have been powerful and sometimes heartfelt. Without wishing to ignore others, may I say the contributions from the noble Lord, Lord Blunkett, and the noble and learned Lord, Lord Woolf, about their personal part in the genesis of IPPs have been unusual and moving. This politician, may I say to the noble Baroness, Lady Chakrabarti—although I see myself still as a lawyer, not a politician—certainly is trying to get this right. I do not think this is an issue which admits of easy analysis. To use the words of the noble and learned Lord, Lord Judge, it is something of a puzzle, which requires looking at carefully and solving.

I am grateful to those noble Lords who have met with me and discussed the issue. I am sure we will have further discussions between now and Report. I should say that I read Matthew Parris’s column at the end of July as well.

I will go through the amendments and set out the Government’s position, then I will come back at the end to some more general points. Four of the amendments, Amendments 208A to 208C and 208E, the latter from my noble and learned friend Lord Garnier, would require the Government to conduct a review on matters such as sentence progression, resettlement and supervision of prisoners serving an IPP sentence, and to lay a report before both Houses of Parliament.

The Government recognise that work needs to be done in relation to this group of prisoners. I will set out the work that has been done so far. We have put together what I think has been a successful action plan dedicated to the rehabilitation and risk reduction of IPP offenders. We continue to work to increase opportunities for IPP offenders to progress through their sentences via this plan. A qualified psychologist leads a review of the case of every IPP prisoner who is not making the expected progress. Between July 2016 and September this year, which is about five years, just under 1,700—1,679—reviews were completed; 440 prisoners were subsequently released and a further 474 secured a progressive move to more open conditions.

My noble and learned friend Lord Garnier commented on the availability of courses for IPP prisoners to help them make that progress. It is right that during the pandemic there were fewer places on some group interventions. We asked offender managers to look at other sorts of interventions to draw evidence from them for the parole reports. However, we have now been able to ramp up the provision again. Not all IPP prisoners will require the same interventions, of course, but we try to make sure that each prisoner has a suitable pathway, as it is called, to a future safe and sustainable release. That is the focus of the programme. There is a range of interventions, including places on progression regimes, other accredited programmes and places in open prisons. Where a programme is not available for an offender, the prison offender manager would seek to have the prisoner transferred to a prison where the programme is available, subject to a risk assessment and available places. In the meantime, other work would be identified so that the prisoner could undertake that work.

We believe that the action plan is working. High numbers of IPP prisoners are being released each year and the proportion of positive Parole Board decisions remains high. I do not think anybody mentioned this, but let me put it on the record that the Justice Select Committee in the other place has recently launched an inquiry into IPP sentences. Its stated aim is to examine

“the continued existence of IPP sentences and to identify possible legislative and policy solutions.”

The Select Committee will scrutinise what the Government are doing. I have no doubt that it will provide recommendations, which the Government look forward to hearing. I therefore underline that we are doing work in this area. We do not believe that a separate government-led review is necessary at this time.

I turn to Amendment 208D from my noble friend Lord Moylan. Currently, an IPP offender may apply to the Parole Board to have their licence terminated once 10 years from their first release from custody has elapsed. To do that, the offender must give their permission to the Secretary of State to apply to the Parole Board for licence termination on their behalf. The first part of this amendment would therefore remove the legal requirement for the offender to give their permission. Instead, offenders would be automatically rereferred for consideration each year, were they unsuccessful. The second part would change the time period from 10 to five years.

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[Lord Falconer of Thoroton (Lab)]

None of the amendments would mean that there would not necessarily be a consideration by the Parole Board, including Amendment 208G, which is the two-year automatic end unless the Government made an application to the Parole Board, so I am not quite sure what the basis of rejection of that one is.

[Lord Wolfson of Tredegar (Con)]

I am not basing it only on what I have called automatic termination. The scheme set out in Amendment 208G would represent a very different approach to management on licence and, for the reasons I have set out, that is not a form of management which we think provides adequate protection to the public. I may come back to that.

Amendment 208H creates a power for the Secretary of State to release an IPP offender who has been recalled to prison, so long as the Secretary of State is satisfied that it is not necessary for public protection for the offender to remain in prison. The position at the moment is that the Parole Board has a responsibility to assess whether offenders are safe to be released into the community, even after an IPP offender is recalled to prison. They can take a decision to rerelease from only 28 days after the offender is recalled. We believe that the Parole Board’s expertise in determining whether offenders serving indeterminate sentences are safe to be released is, as I said, an essential tool of public protection.

If I may, I come back to where I started, with the words of the noble Lord, Lord Pannick. Again, I am grateful for his kind words. I agree that there are certainly problems with the current system; we are looking at it. We believe that our IPP action plan has achieved significant results and we keep it under constant review. The noble and learned Lord, Lord Judge, in what I have learned to be his habit of putting his finger on the point at issue, asked, “Well, what is going to be done?” I hope that I have made it clear that I have listened to the debate very carefully, and that I have no doubt of the mood and the strength of feeling of the Committee. I am also sufficiently acquainted with the ways of this House to anticipate what might or might not be moved on Report as and when we come to it. I can say this afternoon that I will continue to work on this issue—a number of noble Lords know that I have been working on it already—and to listen to the debate, but for the moment, I ask noble Lords who tabled this amendment to withdraw it.

[Lord Blunkett (Lab)]

My Lords, there can be no disagreement that this has been a thoughtful and deeply impressive debate—the kind of occasion that does massive good to the reputation of this House. I hope, therefore, that the Minister’s words at the beginning and end of his response will give us some hope for the future. On a lighter note, I have to say that the noble and learned Lord, Lord Woolf, gave me so much advice when I was Home Secretary that I have difficulty remembering which bits of it I took and which I did not.

On this occasion, I have said already that we clearly have got it wrong, and we now have the opportunity to put it right. The House of Commons Justice Committee has not yet started its process; even with the length of debate on the Bill and the number of days that will be added, it will not have reported in time for us to be able to use this vehicle, and I see no other vehicle coming down the road. We have a chance and, given the Minister’s opening and closing remarks, we may have the opportunity to get this right. It would be admirable and most sensible if the Government were able to bring forward their own proposals before Report, through amendments, guidance and any further regulation by subsidiary legislation they are prepared to use, but if we do not get some movement in time for Report, I believe there is unanimity across all parts of this House that we will have to take action. When we do, I hope that we will have the kind of unanimity we have had this evening. I beg leave to withdraw the amendment in my name.

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[Lord Falconer of Thoroton (Lab)]

My Lords, I support this amendment, and very much hope that the Government will either accept it or explain what they are doing in response to the report of the Prisons and Probation Ombudsman on the case of Miss A and her baby. The noble Baroness, Lady Burt, has explained the facts; it is worth looking at them in a little more detail.

Miss A, as she is called in the report, was remanded in custody on 14 August; she was pregnant. It does not say in the report whether the court knew that she was pregnant, but that is not what this amendment deals with. On 19 August, she was seen by a safeguarding midwife, who said that her estimated delivery date was between 24 September and 14 October. On 26 September, she was put on extended observation, which means she would be seen by a nurse in the morning, at lunchtime, in the evening and twice overnight. On that very day, 26 September, she went into labour. At 8.07 pm, 8.32 pm and 8.45 pm, she called for help and, in particular, called for a nurse. All three calls for help were ignored. At 9.27 pm and 4.19 am that night, she was inspected—I assume through a cell hatch—for a regular roll call, and nothing untoward was spotted. At 8.21 am the next morning, other prisoners reported that there was blood in her cell, and at 9.03 am an officer identified that she had given birth overnight and that the baby had died.

It is an absolutely terrible story, as the ombudsman describes. As the noble Baroness, Lady Burt, said, the ombudsman made specific recommendations, which are reflected in proposed new subsections (1) and (2) of her Amendment 209. It says that the Secretary of State must provide “appropriate midwifery care” within the female prison estate, and then defines “appropriate midwifery care” as meaning

“midwifery care that is appropriate to a custodial setting … maternity services that are suitably resourced to provide … an appropriately qualified midwifery lead in each prison to oversee all aspects of perinatal care … a maternity pathway for prisoners that includes a process for women who decline to engage with services”—

as Miss A may have done—

“access for prisoners to psychological and psychiatric services … training for staff in trauma-informed care … training for staff in neonatal and child resuscitation procedures; and … appropriate emergency equipment for children and neonates.”

A lot of those go beyond what would have made a difference in this particular case, but if those recommendations of the ombudsman had been given effect to, the tragedy almost certainly would not have occurred. This gives the Government the opportunity to respond in this House to those recommendations, all of which seem sensible and will not impose a substantial financial burden on the prison estate, because there are not that many women’s prisons. If the Government are not willing to accept these proposals, what are they going to do about the problem? Can they give a reason why a duty such as this on the Secretary of State should not be expressed in the legislation?

[Lord Wolfson of Tredegar (Con)]

My Lords, I am very grateful to the noble Baroness, Lady Burt, for tabling this amendment. As the explanatory statement makes clear, the amendment builds on the recommendations of the recent independent investigatory report by the Prisons and Probation Ombudsman into the death of Baby A—as we are calling the baby—at HMP Bronzefield.

I shall start by repeating what my honourable friend Victoria Atkins MP said when giving oral evidence to the Justice Select Committee’s inquiry into women in prison on 3 November. I quote her because I want to associate myself with this, word for word. We are

“very grateful to the ombudsman for her report. The facts as they unfolded in that report were truly shocking. And the fear that that young woman must have felt and the loss she is dealing with even today, we do not, we cannot contemplate anything of that nature ever again within the prison estate.”

My deepest condolences remain with those affected.

The death of Baby A was a tragic and harrowing event and has rightly been the subject of several investigations and inquiries, including that by the PPO, to try to ensure that all the necessary lessons have been learned to avoid a repetition in future. The Committee may be interested to know that there is a Question on this incident on, I think, Wednesday, which will be another opportunity for the House to look at this terrible event, and I believe I am going to be responding to it.

While I point out that we are not talking about sentencing here, and the noble and learned Lord, Lord Falconer of Thoroton, was right to say so, it is right to say that when it comes to sentencing, pregnancy is certainly a mitigating factor that is specifically taken into account in the sentencing guidelines. I should also say that it is exceptionally rare now for a woman to give birth in prison. The most recent figures, from July 2020 to March 2021, show that 28 births—90% of the total number of births—took place in hospital and none took place in prison. I understand that in the case of the missing 10%, the baby came out a bit quicker than anticipated and the birth might have taken place in the ambulance, but none took place in prison.

In response to the terrible disaster of what happened to Baby A, the previous Lord Chancellor, the right honourable Robert Buckland MP, commissioned the independent external investigation by the PPO. We have since accepted and acted upon all its recommendations for the Ministry of Justice and the Prison Service. We immediately put in place practical steps across the women’s estate, including providing all women with free phone access to local NHS pregnancy advice services and additional welfare observations for pregnant women in their third trimester. At that time we were already undertaking a fundamental review of national policy on pregnancy, mother and baby units and maternal separation in women’s prisons.

As the noble Baroness, Lady Burt, recognised and said she welcomed, that work led to a new policy framework, published on 20 September, which develops those immediate actions into national requirements for all women’s prisons, delivering on a wide range of reforms. The new framework has an extended policy remit covering requirements on perinatal care and maternal separation, in addition to mother and baby units. I hope that what I have said so far—although I will say something more—reassures the noble Baroness and the noble Lord, Lord Hunt of Kings Heath, that we are serious about our response to this matter. We are determined to take all necessary action to avoid a similar tragic event in the future.

I shall turn to the detail of the amendment and explain why, in the light of the current legislative framework, we are not persuaded that what is proposed is necessary. Currently, NHS England is responsible for commissioning almost all forms of healthcare for prisoners within both the public and private estate in England under Section 3B of the National Health Service Act 2006 as amended by the Health and Social Care Act 2012. That statutory obligation has to be read together with Rule 20(1) of the Prison Rules 1999, which states:

“The governor must work in partnership with local health care providers to secure the provision to prisoners of access to the same quality and range of services as the general public receives from the National Health Service.”


The requirement to commission healthcare services and to secure and ensure prisoners’ access to them therefore already applies to the provision of maternity services in the women’s prison estate, so we do not consider that there is any need to add a further separate obligation in statute as proposed by the amendment. What is important is that we ensure that it actually happens. I certainly do not mean to be flippant, but repeating something in statute is not the way to ensure that it happens. We are focused on ensuring that it happens. We already have the statutory obligation.

In fairness to the PPO, I should note that it did not recommend any change to the statutory framework. Rather, it said at paragraph 14:

“Overall, the healthcare offered to Ms A in Bronzefield was not equivalent to that she could have expected in the community.”


It is that provision that we are focused on—ensuring that expectant mothers in prison get the same care as they would have received in the community. The Government’s position is that we would rather focus on that than duplicate statutory provision.

[Lord Falconer of Thoroton (Lab)]

The amendment would not be duplicating anything because it contains specific provisions that are not referred to in the other statutory obligation, so it would be clear what was required.

[Lord Wolfson of Tredegar (Con)]

What is required is that women in prison have access to the same maternity services as they could expect in the community. My suggestion is that once that is set out, that is a sufficient legislative obligation and the Government need to ensure that it actually happens.

I hope that nothing I have said detracts from what I said right at the start, which is that we are appalled by what happened to Baby A. It must never happen again, and we are going to do all we can to ensure that it does not. However, for the reasons I have set out, I invite the noble Baroness to withdraw the amendment.

[Lord Hunt of Kings Heath (Lab)]

My Lords, before the Minister sits down, I would like to ask him about the relationship between his department and NHS England. What express work is now being undertaken to ensure that the NHS discharges the statutory responsibility that he has just referred to?

[Lord Wolfson of Tredegar (Con)]

I know that when it comes to the prison estate, there is a very close relationship between my department, the Prison Service and NHS England. Rather than read something off a screen, may I write to the noble Lord and set out a paragraph or two to assist him on that? I am happy to discuss that further with him—or it might be appropriate for the Minister in the department with particular responsibility for prisons to do so. Anyway, I will write to the noble Lord.

[Baroness Burt of Solihull (LD)]

My Lords, I am extremely grateful for the learned contributions that have followed my words today, particularly from the noble Lord, Lord Hunt, and the noble Baroness, Lady Jones. I have taken heart, to a degree, from what the Minister has said. I accept what he says about the difference between statute and practice. We cannot just enact laws and expect everyone to suddenly do as they are told—it does not work like that—so I think the intention is extremely important.

I shall take this away and consult the bodies that have advised me—particularly Women in Prison, to which I am very grateful. For the time being, I respectfully request to beg leave to withdraw the amendment.

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[Lord Falconer of Thoroton (Lab)]

An incredibly powerful case has been made. We support it and I am grateful to the noble Earl, Lord Attlee, the noble Lord, Lord Hodgson, my noble friend Lady Lister and, in her absence, the noble Baroness, Lady Bakewell, for tabling these amendments. I completely adopt what my noble friend Lady Lister said about the total inadequacy of the reasons given in the Commons for not supporting this. The first was that it would mean there would be bunching of releases on other days, but if a third are on Friday already that seems a completely hopeless point. Secondly and separately, it was said that it is not used very much in Scotland; if it is not used very much, then the Government would not have much to worry about. Why not do it?

[Lord Wolfson of Tredegar (Con)]

My Lords, I am grateful for the various speeches which have been given on these amendments, which, as we have heard, seek in different ways to avoid the release of prisoners on a Friday. Obviously, I understand the distinction between the two, although it is fair to say that they are both aimed at substantially the same point.

The current position is this. Section 23 of the Criminal Justice Act 1961 provides that prisoners whose release dates fall on a weekend or bank holiday should be released on the working day which immediately precedes that weekend or bank holiday. In most cases, that is a Friday, which is why, to make the obvious point, we have “bunching” on Fridays. If one would expect release dates generally to fall over the week, given the law of large numbers, you have Saturday and Sunday pushed back to Friday, plus the occasional bank holiday. We are very aware of and alive to the challenges that this can create in accessing support and services in the community. We are taking steps to mitigate those difficulties; I will turn to those in a moment.

First, however, the amendments seek to reduce releases on a Friday or non-working weekday by either preventing the court setting a sentence length that is likely to lead to release on those days, or by providing greater flexibility for prison governors to avoid Friday releases by giving the discretion to release earlier in the week. I heard what the noble Baroness, Lady Lister, said about the responses given in the other place: that the Minister there was clutching at straws. I think the noble and learned Lord, Lord Falconer of Thoroton, has set me the challenge to be better than “completely hopeless”. That is a bar I hope to surmount.

I assure the Committee that I am open-minded and have listened very carefully to the debate. While I am sympathetic to the need to tackle this issue, I do not agree that it is necessary to legislate in the way proposed by the amendments, and I will explain why. To do so would either undermine existing sentencing principles by preventing the court passing a sentence which is likely to result in release on a Friday, or it would allow prisoners to be released even earlier from their sentence. Legislation provides that prisoners are released on the working day closest to their statutory release date and we do not believe it is necessary to go further than that.

I will deal with sentencing first. It is not realistic or achievable to require a sentencing court to try to work out on which day of the week an offender would fall to be released and adjust the sentence accordingly to avoid that being a Friday, weekend or bank holiday. I would have thought that that is self-evident. It is obvious because a prisoner’s release date is something of a complex calculation. It is carried out by prison staff and depends on a number of different factors that a sentencing court would not necessarily be able to take into account. These could include: any other concurrent or consecutive sentences the offender might already be serving; the correct amount of remand time to apply on all relevant sentences being served; and any added days imposed for bad behaviour while serving the sentence.

[Baroness Jones of Moulsecoomb (GP)]

I thank the Minister for giving way; that is very kind. Is he aware of how daft that sounds? We have just explained that the punishing of ex-prisoners is not acceptable. The bunching should not occur; find a way around it.

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[Lord Wolfson of Tredegar (Con)]

I am trying to deal with the amendments in what I hope is a logical way. At the moment, I am dealing with the amendment which provides that the sentencing court should have regard to the day of release. I am trying to explain—cogently, I hope, and with great respect—why that is not a sensible or workable proposition.

I have dealt with longer sentences; let me now deal with shorter sentences. It might be said that with a shorter sentence the court could identify the release date. I accept that it would be easier for the court to identify the day of the week on which the release would fall if the sentence is very short—let us say two, three or four weeks—and if no other sentences are involved, but the problem there is that if you bring that release date even earlier, percentage wise, that is a significant additional reduction from the sentence. I therefore suggest that these amendments are not the answer—

[Baroness Lister of Burtersett (Lab)]

The Minister may be about to come to the point I was going to make. The provisions in Amendment 211 are discretionary. If it is possible in Scotland, why is it not possible here?

[Lord Falconer of Thoroton (Lab)]

The Minister said that he was dealing with the amendments logically. He dealt with only Amendment 210 and did not deal with Amendment 211.

[Lord Wolfson of Tredegar (Con)]

I am coming to the point about discretion in Scotland. I will respond to that in a moment, if I may. First, I wanted to identify how we think we can best deal with the problems which bunching can give rise to. I absolutely agree that reducing further crime by those who have been released is critical. We have to cut reoffending and we know that a lack of suitable accommodation or sustainable employment, as well as substance misuse, can lead offenders to return to crime. Therefore, we need to ensure that people leaving prison on all days of the week, Fridays included, have access to services.

I will briefly identify four important things in this regard. In January this year, we announced a £50 million investment to reduce crime and tackle key drivers of reoffending. In July, we launched temporary accommodation for prison leavers at risk of homelessness in five probation regions, because we know that having access to transitional accommodation is very important. We have invested a further £20 million in the Prison Leavers Project, which tests new ways to reduce reoffending by addressing the challenges people face when they leave prison.

[Lord Hodgson of Astley Abbotts (Con)]

I am of course impressed by the list of initiatives being taken by the Government and the roll call of money being spent, but it has not answered the question. We are not asking to spend money; all we are asking for is an administrative change. It may be an administrative change whereby the flexibility has to reflect the length of the sentence. We surely cannot be in a position where we cannot give prison governors a day or two of flexibility to enable them to set up a system of the sort that has been described all around the House. It must be possible.

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[Lord Wolfson of Tredegar (Con)]

I am not suggesting it is not possible; I am asking whether it is the best way to deal with the problem. I hear “of course it is”, but I suggest that it is not. Take the example of Scotland, where they have a discretionary power. That is a model of discretion regarding early release, under the Prisoners (Control of Release) (Scotland) Act 2015. Scottish Ministers have the discretion to bring forward the release dates of people in custody by no more than two days for the purposes of benefiting a prisoner’s reintegration into the community.

A freedom of information application was made on 30 March this year to the Scottish Prison Service which showed that only 20 prisoners have been granted discretionary early release under that Act in the five years since its implementation. We are not aware of any problems with implementation. I will ask officials in my department to consult with our colleagues in the Scottish Government to explore that issue further. If I am provided with any useful relevant information as a result, I will write to the noble Baroness to provide further information on that discretionary policy. We think that the best way to deal with this matter is to put money and services in place to ensure that prisoners, whatever day they are released on, have access to the services they need.

I heard the point made by the noble Baroness, Lady Lister, about universal credit. She very fairly gave me the opportunity to reply in writing, because that matter is substantially outside my department. I also heard what the noble Lord, Lord Ramsbotham, and the noble Baroness, Lady Chakrabarti, said about that issue; I will therefore respond in writing. At the same time, I will try to pick up the point made by the noble Lord, Lord German, on bank account opening, in so far as it is relevant to the universal credit point.

We are certainly not setting people up to fail; we sincerely want them to succeed and not reoffend.

[Baroness Lister of Burtersett (Lab)]

The Minister has made a slightly better fist of it than the Government did in the Commons, but in a sense he is clutching at the same straws—his presentation is just a bit more articulate than they were in the Commons. Does he not accept that it is better, even if it is just a few people, to help a few rather than none? Is he going to be able to say how he is going to keep services open over the weekend, because that is the issue? We have heard terrible examples of people being put in fields and turning to drugs and so on because the services are simply not there. This wonderful list of all these things the Government are putting money into is great, but I have not heard anything that would explain how the Government will ensure that services are there on a Friday evening, Saturday, Sunday and bank holidays.

I am afraid the Minister has not convinced me and, given the shaking of the head behind him, I do not think he has convinced the mover of the amendment, so I really ask him to look again at this. Although, unlike the first group of amendments, we may not have taken two hours on this group, there is absolute unanimity throughout the House that we can do something practical and it will not cost money. I am sorry, I am making a speech, which I should not be.

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[Lord Wolfson of Tredegar (Con)]

I do not want to repeat what I have said. My focus is on ensuring that people have access to services on whatever day they are released, whether it is a Tuesday, a Friday or any other day. It is certainly not the case that, if we just moved people’s release day from a Friday to a Tuesday or a Monday, all our problems would go away. We must have those services in place, and that is what I want to focus on. I have said that I will look in more detail at the Scottish discretionary system, if I can call it that, and I will write to the noble Baroness. I do not want to repeat what I have already said, but I hope that I have addressed the substance of her point. I suspect that the noble Lords who spoke to the amendment have indirectly told me the answer before I sit down, but I none the less invite my noble friend to withdraw his amendment.

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The Government need not only to restate their opposition to short sentences but to reinforce it. For the support in principle for these amendments expressed by the noble Lord, Lord Pannick, to become a reality, the law needs more teeth than it has at present. These amendments provide those teeth.

[Lord Wolfson of Tredegar (Con)]

My Lords, it is important to remember what is in the amendments and what is not. We are not really debating whether short sentences are or are not a good thing; government policy on that has been stated frequently and I will restate it shortly. I am not proposing to make any sort of turn, whether a U-turn or a Z-turn. Instead, I will keep on the straight and narrow, if I can use that phrase in this context.

It is important to remember what the amendments seek to do. They would prevent the court passing a short custodial sentence unless it is satisfied that no other sentence is appropriate. They would also require the court, if imposing a short custodial sentence, to explain why alternative sentences were not considered appropriate. Let me be clear: I understand absolutely the sentiment behind the amendments and appreciate, as the noble Lord, Lord Dubs, made very clear, that this is not saying that there are no circumstances in which a short custodial sentence could be appropriate—I fully take that on board.

I agree that short custodial sentences can, in many cases, be less effective at tackling reoffending than community sentences. The noble Lord, Lord Ponsonby, was very clear about the importance that magistrates attach to community sentencing and how it is important that they have confidence in the community sentence regime. The words of the right reverend Prelate the Bishop of Gloucester that were read to us also questioned whether short custodial sentences were, to use her phrase, an effective remedy. I think I have dealt with that point. I listened with real care to the testimony I heard at the event she organised and which I was very happy to attend.

The Government cannot support these proposals because they reflect existing law which is sufficiently robust. With respect to the noble Lord, Lord Beith, when it comes to statute, I do not believe that saying something again makes it stronger. If something is already in statute and is not being done, it is critical to investigate why it is not being done, and not simply say the same thing again. I therefore gratefully adopt some of what has already been said to the Committee by the noble Lord, Lord Pannick.

Section 230 of the Sentencing Act 2020—let us just see how it works—places important restrictions on the courts imposing discretionary custodial sentences. It starts with a negative:

“The court must not pass a custodial sentence”—


the starting point is that the court cannot pass a custodial sentence; that is the default—and then continues:

“unless it is of the opinion that … the offence, or … the combination of the offence and one or more offences associated with it, was so serious that neither a fine alone nor a community sentence can be justified for the offence.”

Section 77 of the Act goes further and makes clear that even where the threshold for passing a custodial sentence has been met, the court may still pass a community sentence after taking into account any mitigation. Even then, where a court has formed the view that only a custodial sentence can be justified, even in light of any mitigation, it may still suspend that sentence so that it does not become an immediate custodial sentence, taking into account factors such as realistic prospect of rehabilitation, strong personal mitigation, which would obviously include the effect on dependants, as we discussed in earlier groups, and significant harmful impact on others of immediate custody. We suggest that, taken together, this provides a very robust framework which would ensure that short custodial sentences are passed only where there is really no other alternative for the court.

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

I am very grateful to the Minister for giving way. Does he take my point that none of those provisions focuses on short custodial sentences in particular, as opposed to custodial sentences in the generality?

[Lord Wolfson of Tredegar (Con)]

I accept that they do not refer specifically to short custodial sentences, but when the court is considering a short custodial sentence, the particular factors the court would have to go through before imposing it—and particularly before imposing an immediate short custodial sentence—would be all the starker. It is important that we have a consistent regime. For the reasons I have set out, I do not think it necessary or helpful to have a separate regime for shorter custodial sentences. The position on that, I suggest, is already absolutely clear, as is the requirement for a court to explain its reasons for passing sentence. It is important to recognise that the court has to explain its reasons for passing any sentence, not just a custodial sentence; otherwise, the Court of Appeal will have something to say about it. That is set out in Section 52 of the Sentencing Act.

I hear the point made by the noble and learned Lord, Lord Hope of Craighead, that when it comes to courts explaining the reasons for their sentences, it is very important that they are bespoke and not off the peg—if I can put it that way. That is very important, not least for the offender to know why that sentence has been passed. I will not say any more about the reasons given by the Supreme Court for refusing permission to appeal, but the noble and learned Lord was certainly right that I was all too familiar with receiving those reasons in my cases.

The amendment tabled by the noble Lord, Lord Ponsonby, goes further because it sets out a list of “principles” the court must take into account. I suggest to the noble Lord, who is very familiar with this area, that those principles are by and large set out very clearly already in the guidelines from the Sentencing Council. I suggest that the principles enshrined in legislation would not take us any further.

As the noble Lord knows, there are five statutory purposes when it comes to sentencing, set out in Section 57 of the Act:

“the punishment of offenders … reduction of crime (including its reduction by deterrence) … reform and rehabilitation … the protection of the public, and … reparation by offenders”.

A sentence can serve one or more of those purposes. The Act also states that, even when the threshold for custody has been passed, that does not mean that a custodial sentence is inevitable—particularly for offenders on the cusp of custody.

Imprisonment should not be imposed where there would be a disproportionate impact on dependants. We touched on that today. We looked at that in a lot more detail in an earlier group, so I hope the Committee will forgive me for not dealing with that in any more detail. I have set out the position in some detail already. It is fair to say that, when this amendment was tabled in the other place, Alex Cunningham MP fairly recognised that the principles are already accepted in the sentencing guidelines, which all courts are required to follow; they are not optional. I suggest that the amendment is unnecessary.

Proposed new subsection (3) of the amendment from the noble Lord, Lord Ponsonby, concerns the impact of custody on the children of primary carers or the unborn child of a pregnant woman. I think that is almost identical to an amendment we discussed earlier, tabled by the noble Baroness, Lady Massey, the noble Lord, Lord Dubs, and the noble and learned Lord, Lord Falconer of Thoroton. Again, I have responded to that in some detail already, so I am not proposing to say any more about that.

I will pick up two other points. First, the noble Lord, Lord Bradley, talked about Scotland. The position in Scotland is different. It has a very different sentencing regime from that of England and Wales. The Sentencing Code here, which I have set out, contains the requirements and protections which I have sought to explain. For those reasons, we do not believe that the amendment is necessary; nor, with respect, do we believe we get much assistance in this regard from looking at the Scottish law because there is a very different system for sentencing.

The noble Baroness, Lady Bennett, asked me about the JCHR recommendation. In the time I have had, I have an answer here for her. It is fair to say that it is slightly off-topic. Perhaps she would be happy if I were to write to her on this point, rather than take further time. I will set out the answer in writing; I hope that is acceptable.

For those reasons, we suggest that this is already covered in legislation and in the sentencing guidelines. I invite the noble Lord to withdraw his amendment.