Victims and Prisoners Bill

Lord Carter of Haslemere Excerpts

Committee stage
Tuesday 12th March 2024 Lords Chamber

Moved by

[Lord Carter of Haslemere]

154: Clause 48, page 52, line 21, at end insert—
“(4I) the prisoner’s licence will be considered to have remained in force for the purposes of subsection (4H)(c) if—(a) the prisoner has been recalled within that period,(b) the Secretary of State has released P again on licence in accordance with his powers under section 32(5B), and(c) the Secretary of State orders that the licence should be considered to have remained in force during the period of recall.”Member's explanatory statement
This amendment would enable a person whom the Secretary of State has deemed suitable for executive release to benefit from the qualifying period as if the recall had not occurred, but only if Secretary of State considers this appropriate in all the circumstances.

[Lord Carter of Haslemere (CB)]

My Lords, I shall speak to Amendment 154 in my name and to Amendment 168 at the same time, as they sit together in this grouping. I declare an interest as a trustee of the Prison Reform Trust, and I thank it for its significant input and support for these amendments. I also thank the noble Baroness, Lady Chakrabarti, the noble Lord, Lord Blunkett, who, unfortunately, as we have heard, cannot be with us today, and the noble and learned Lord, Lord Garnier, for adding their support to my two amendments by adding their names.

I shall deal first with Amendment 168, since Amendment 154 is consequential on it. Amendment 168 is about executive release—that is to say, release by the Secretary of State following a recall to prison. At present, under the Criminal Justice Act 2003, the Secretary of State has a power to release a determinate sentence prisoner on licence at any time after the prisoner has been returned to prison. He must not do so unless satisfied that it is not necessary for the protection of the public that the prisoner should remain in prison. Amendment 168 addresses a lacuna, which arises in the case of IPP prisoners who are recalled to prison, since the Secretary of State has no executive power to release them, even if it is obviously safe to do so.

Why does this lacuna need correcting? Let us look at the facts. There are, as the Minister has said, 1,625 IPP prisoners who are in prison following a recall. The Justice Committee, in its third report, said that the reasons for recalling IPP prisoners vary, and it was often not because the IPP prisoner had committed any further offence but because of a minor or technical breach of licence conditions. For example, the lack of availability of approved premises, believe it or not, or other suitable accommodation, was sometimes a reason for recall, even though it might, unreasonably in the circumstances, have been a condition of a licence.

Once the IPP prisoner has been recalled, they become subject to the usual parole process to secure their release. This can take months or even years. The Justice Committee found that, between 2015 and 2021, the average number of months spent in prison by an IPP prisoner following recall and prior to re-release was 18 months—the equivalent of three years on a traditional fixed-term sentence. I believe that the average time has now increased, as I think that the Minister said, and that period in prison following a recall has risen to on average 28 months before re-release. That is a wholly disproportionate additional period to serve if the recall was for a minor or technical breach of licence conditions, or if it is apparent that the prisoner is safe to release at an earlier stage.

The Justice Committee recommended the use of executive release for IPP prisoners in such cases, as is possible for determinate sentence prisoners. In their response, the Government stated that they would not accept the recommendation because it

“falls to the Parole Board to determine whether the … release test is met”.

But that fails to explain why determinate sentence prisoners can be executively released when they, too, are otherwise subject to a Parole Board review.

Amendment 168 is therefore about ensuring that like cases are treated alike, when there is no good reason for treating them differently. It provides that the Secretary of State should have a power of executive release at any time following the recall of an IPP prisoner, if the Secretary of State considers that it is not necessary for the protection of the public that the prisoner should remain in prison. That will ensure consistency with the position of determinate sentence prisoners, while ensuring that public safety is not put at risk. There is no logical reason to treat IPP prisoners differently.

Amendment 154 is consequential on Amendment 168 because, if the IPP prisoner is executively released by the Secretary of State following an unnecessary recall, the IPP prisoner should obviously have the period unnecessarily spent in prison disregarded for the purpose of calculating the new sunset clause for IPP licences. However, as a safeguard, the amendment proposes that the Secretary of State should have the power in each case to determine whether this is appropriate. This will depend on an assessment of various factors, such as the degree to which the recall was unnecessary and whether the prisoner is safe to release.

In concluding on the two amendments, I can do no better than to refer to the truly tragic recent case of Matthew Price, who last year took his own life while on licence from an IPP sentence. I am sure that the whole Committee will join me in expressing the deepest condolences to Mr Price’s family. The coroner said that:

“Matthew’s mental well-being had been adversely affected over a significant period of time by the continuing impact of serving an”


IPP sentence, because of anxiety about the ever-present potential for recall to prison. The shocking thing is that Mr Price had been on licence for nearly 10 years. That demonstrates the devastating mental impact that an IPP sentence has. On 22 February this year, the coroner issued a so-called regulation 28 report to prevent future deaths, in which he stated that there was

“a risk that future deaths will occur unless action is taken”

urgently. My amendments would not be enough to remove that risk completely, but they would help by providing another avenue of release from a recall while, crucially, ensuring the safety of the public. I hope that the Minister will feel able to accept them, and I beg to move.

[Baroness Chakrabarti (Lab)]

My Lords, it is a privilege to rise in support of my old boss, the noble Lord, Lord Carter of Haslemere—one of the finest government lawyers I had the pleasure of working for and learning from in the late 1990s. He served Governments of both persuasions with such distinction that he went on to become the first ever counsel to No. 10, such was his expertise in these and other matters. It is wonderful to see him deploy those skills, including in the devastating way in which he has just argued for his two amendments in this group.

--- Later in debate ---

[Lord Bellamy (Con)]

The Government’s position, frankly, is that the word “proportionate” causes more difficulties than it solves. It suggests that the test should be some sort of balance between the risk that this prisoner may present to the public and some sort of fairness or other consideration of the particular interests of that prisoner. The whole thrust of the Bill—it is not just the clauses that we are dealing with at the moment but Clauses 41 and 42—is to say that the public protection test is a public protection test: that is the only criterion. So the Government do not, I am afraid, accept that “proportionate” is a useful or necessary addition to this clause.

[Lord Carter of Haslemere (CB)]

Should I wind up on this group?

[Lord Bellamy (Con)]

I just need to finish. Noble Lords come at me from all directions, which is perfectly fine, but I need to finish the group.

I turn next to the amendment proposed by the noble Baroness, Lady Blower, with the idea of mentors. I can see the point she is making, the strength of the argument and all those things, but it might be that this amendment overlooks what we have at the moment: the probation officer manager in the prison, who is responsible for that prisoner; the key worker in the prison, who is also responsible for that prisoner; and the community offender manager, who will look after that prisoner in the community. In addition, we already have in the prison all kinds of other support services, including the chaplains mentioned a moment ago by the right reverend Prelate.

The Government are hesitating about the wisdom of introducing yet another person into this already comprehensive structure—or what the Government believe is a comprehensive structure—by way of a statutory provision for mentors. That is not to say that there could not be better organisation of voluntary agencies or, despite what I have said, some other route to consider whether there are ways of strengthening the support of prisoners on some non-statutory basis. However, in view of the present arrangements for the prison offender manager, the key worker and the community offender manager via the Probation Service, the Government are not yet persuaded that mentors would be a proper statutory route to go down. I am sorry I could not get closer to what the noble Baroness is driving at. I very much thank her for her suggestions. I am sure that her intervention puts the question on the radar and advances the debate, but that is the Government’s position.

Amendments 165 and 166, tabled by the noble Baroness, Lady Burt of Solihull, are directed at clarifying entitlements to aftercare and related issues. It is perfectly true that Section 117 of the Mental Health Act 1983 provides that those who are entitled to that support should receive it, and the protection of mental health through the action plan is part of the action plan. There are further measures in that regard through the progression panels and the use of the psychology services.

People in prison are entitled to exactly the same range of health service care arrangements as people in the community, and there is a national partnership agreement with health and social care in England. I hope I am not seen as doing less than justice to these amendments, but the bottom line on this is that, through the action plan and other measures, there are wide-ranging efforts to support mental health aftercare and the mental health of prisoners. The Government are not yet persuaded that a statutory amendment to the Mental Health Act is required to advance that cause. On this, as in other contexts on this Bill, the Government are, of course, still in listening mode but, at the moment at least, we are unpersuaded that this is a proper way forward.

I hope that I have dealt, if not necessarily to noble Lords’ satisfaction, as best I can with the points made. I invite noble Lords not to press their amendments.

[Lord Carter of Haslemere (CB)]

My Lords, I am grateful to all noble Lords who have contributed to this constructive, powerful and moving debate, on all sides. Some heartfelt comments have been made. I could not begin to summarise them without detracting from their force. I thank all your Lordships for this.

I have written down some positive points, including some phrases shared by the noble Lord, Lord Moylan, and the noble and learned Lord, Lord Garnier, all on the same side. One was “unity of purpose”. That is encouraging. I think I even heard the Minister say “within this family”, which is a lovely phrase to use in debating something as emotive as this.

We have a unique opportunity. These occasions to make a difference for this cohort of prisoners, who have been treated so unfairly, do not come up very often. I urge the Minister to keep an open mind on everything that has been said and on these amendments, all of which would improve the position of IPP prisoners. I am very grateful to him, and encouraged by his reaction to my amendments. I urge him to have that same openness of spirit and to be bold for the sake of this group of prisoners, who have been treated so unfairly over the years. That injustice is continuing. With that, I beg leave to withdraw my amendment.

Amendment 154 withdrawn.