Victims and Prisoners Bill

Lord Clarke of Nottingham Excerpts

Committee stage
Tuesday 12th March 2024 Lords Chamber

[Lord Moylan (Con)]

My Lords, I am grateful to the noble Baroness, Lady Chakrabarti, for mentioning the release test which is the subject of Amendment 161 in my name. Before I speak to it, I offer a word of sympathy and support to my noble and learned friend the Minister. He probably feels a little under pressure today. I hope that it is not so, because we are all on the same side with this. We recognise the compassion, seriousness and commitment that he has brought to this subject during his time serving in His Majesty’s Government.

Amendment 161 is also supported by the noble Lord, Lord Blunkett, the noble Baroness, Lady Chakrabarti, and the noble and learned Lord, Lord Hope of Craighead. It also has the support of the Bar Council, the Independent Advisory Panel on Deaths in Custody and others. Although the amendment is in my name, it is not actually my amendment. It was drafted by the late and much-lamented Lord Brown of Eaton-under-Heywood. As all of us recall, he burned with a passion on this topic and felt it very strongly. We miss him very much in these debates.

Briefly summarised, the effect of the amendment would be to change the burden of proof in the Parole Board’s release test specifically for IPP prisoners. The current test is as set out in Section 28 of the Crime (Sentences) Act 1997, as amended. The board must not direct the release of the prisoner unless

“the Board is satisfied that it is no longer necessary for the protection of the public that the prisoner should be confined”.

In effect, the prisoner has to satisfy the Parole Board that he or she is no longer a threat to the public. This is a high test and a high bar. The amendment would change that to create an assumption that the prisoner will be released unless the Parole Board is satisfied

“that it remains necessary and proportionate for the protection of the public … that they should continue to be confined”.

This is a subtle shift.

In fact, one of the objections I have heard to this amendment from advocates for IPPs is that it is not going to change things enough and that, in practice, the Parole Board will continue to apply tests of practical judgment to the question. However, I think it will have an effect, even if it is a small effect—the noble Baroness used the word “nudge”—in nudging the Parole Board in a certain direction, by making it clear what the will of Parliament is in relation to these prisoners, in particular, in the special circumstances that obtain.

I will deal with the question that was also raised about the relevance of the word “proportionate”, which the late Lord Brown introduced into the amendment. What does “necessary and proportionate” mean? Does it not include an element of vagueness that might somehow dilute the effect of the amendment? I do not think so. I think the word “proportionate” is meant to convey to the Parole Board that it should look at means of ensuring the safety of the public other than confinement in prison when it comes to consider these cases. That might include enhanced supervision in the community by way of tags or other devices, quite commonly used, that help to ensure that a released prisoner on licence remains broadly safe and not a threat to the public.

[Lord Clarke of Nottingham (Con)]

My recollection is that there is a section in the original 2012 legislation that would shift the burden of proof in the way that he describes. I remember the difficulty I had in persuading my then Prime Minister to enable me to put the abolition of IPPs into the legislation at all: I had to settle with him that we would put this into the legislation but not, for the time being, enact the change in the burden of proof. Could what my noble friend is seeking to achieve be delivered now by the straightforward provision of bringing that long-dormant 2012 section into effect?

[Lord Moylan (Con)]

I am somewhat crushed by the fact that the noble Lord is able to bring before your Lordships’ House a point he recalls, after 14 years, simply from memory but which I had to spend a large part of this afternoon looking up so that I could get the wording correct, and which I was about to turn to imminently. Because I was about to say that this amendment is not in any sense radical: it simply builds on a power that the Secretary of State already has, and makes it a duty.

My noble friend is referring—I am sure he recalls this better than I do—to Section 128 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012, which was, indeed, his legislation. That section gives the Secretary of State the power, by statutory instrument, to amend the Parole Board’s release test for IPP prisoners, not excluding the manner in which this amendment would oblige the Secretary of State or the Government to change the current provisions.

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It seems that there is a pressing need in the last months of this Parliament to settle this issue now. My noble friend Lord Moylan was gracious enough to accept that he had had to spend all afternoon looking up what Lord Clarke already knew. I hesitate to confess that I did not know it, either—and I would probably have had to spend all week looking it up. But there is a mechanism there ready to be implemented, so what is stopping us? What is stopping the Government? It seems that there is also a political will in this House, and I suspect in the other place, to deal with IPPs along the lines of these amendments. It is a falsehood to imagine, as I suspect that my now noble friend Lord Cameron, the then Prime Minister, thought, that it would be electorally disadvantageous—

[Lord Clarke of Nottingham (Con)]

My noble friend is of course talking to an audience in this Chamber which agrees with every word he is most eloquently saying, and it is obvious that the Government should press on. The one thing he has not spoken of is the reason that Prime Ministers and Governments will not, and what it was that drove liberal-minded, sensible people such as Tony Blair and David Cameron to defend this IPP system. It is, straightforwardly, fear of public opinion, fear of the media—in particular of the tabloid press, but the whole of the media. The one thing even the most liberal Prime Minister, and certainly those who surround him in 10 Downing Street, is convinced of is that they must never be seen to be “soft on crime”. The only pressure that ever comes from No. 10 in response to some highly publicised crime is for longer sentences to be imposed for whatever criminal offence has currently come into fashion. In an election year, that is even more likely to apply and to be our principal problem today.

[Lord Garnier (Con)]

I am most grateful to my noble friend. I will have to check tomorrow morning the Hansard report of where I had got to in my speech; I have a suspicion I was in the middle of a sentence in which I was just about to say exactly what my noble friend said—but I am grateful to him, because he was able to say it so much more eloquently than I would have done.

We are in the position with criminal justice and sentencing that we were in the first decade of the 20th century with Dreadnought building. If the Germans have five, we must have six. If we have six, they must have 10. If they have 10, we must have 15, and so on —and guess what? You get 1914.

Here, we are dealing with adult, mature politicians who take instructions from editors and proprietors. Yet, if they bothered to ask the public—and occasionally the press do ask the public—they would find that the public are not nearly as keen on longer sentences or on IPPs as they might think. Had they been braver and bolder—as the noble and learned Lord, Lord Thomas, would have us be—perhaps we would not have arrived at where we are.

I regret that I have spoken for far too long in Committee, but over the last 25 years this issue has really annoyed me. I am so grateful to the Prison Reform Trust, of which I too am a trustee, for its assistance in trying to restrain my enthusiasm and, at times, my anger about this subject and for providing me with the information and the assistance which I hope have to some extent informed this debate. There is not a single amendment on the Order Paper this evening which does not deserve the gravest consideration of this Committee and the urgent action of this Government.

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[Lord Bellamy (Con)]

My Lords, following on from what the noble Lord, Lord Ponsonby, said, the Government agree entirely that our joint objective is to arrive at a package of measures that sufficiently protects the public while dealing with the problems of this existing sentencing regime. That is our overall objective.

My noble and learned friend Lord Garnier invited us to be bold. I suggest that the Government are already being bold in reducing the licence period to three years in circumstances where even the JSC recommended five years. We have already gone further than that very distinguished committee suggested. I do not think that anyone could accuse the present Lord Chancellor of a lack of determination or hard work. To continue the analogy used by my noble and learned friend Lord Garnier of us plodding through treacle, we are really trying to find sensible answers to very difficult questions.

In addition, on the general point of hope and certainty and the very tragic case of Matthew, who committed suicide after he had been in the community for 10 years, as I said earlier these government amendments deal with that point. The “three plus two years” have an automatic determination that gives hope and certainty. That is a very large step forward. It is not a total answer to the problem, but I invite noble Lords to take account of the substantial progress that we are making.

[Lord Clarke of Nottingham (Con)]

I pay tribute to my noble and learned friend and his colleagues in the department, including the present Lord Chancellor and Justice Secretary, who I suspect would privately agree with everyone who has spoken so far on these amendments. As the Government are to be congratulated on the very bold and significant steps that they have taken, as the Minister quite rightly says, and as, to my amazement, we have not had any widespread public reaction to it or even any awareness of it, is there a chance that he could sneak one or two further changes through in the concluding stages of this Bill? I am sorry to talk in such Dog and Duck terms, but that is the political judgment that we all are seeking to make. Everybody wants to get rid of the worst evils of the old IPP sentence.

[Lord Bellamy (Con)]

I thank my noble friend Lord Clarke of Nottingham for inviting us to foregather at the Dog and Duck and consider what more can be done. I venture to suggest—hint is too weak a word—that there are things that we can still do. We may not be able to go as far as some of the amendments; in a moment, I will explain why the Government do not yet feel able—to my great personal regret—to accept the amendment proposed by my noble friend Lord Moylan. I will come to that in a moment. Let us look at what we think might be done and might be achievable.

I will take first Amendments 154 and 168, proposed by the noble Lord, Lord Carter of Haslemere. We have touched on the problem of recalls. We have noted that the Government are trying to reduce the delays in the Parole Board in dealing with recalls, which is one of the major problems. These amendments propose that the Secretary of State should have the power of executive re-release, which applies to fixed, determinate sentences. That is a power which in that context—forgive the jargon —is now referred to as a risk-assessed recall review, which is, in effect, a process for executive re-release. While the Secretary of State must have overriding regard to the need for public protection, the Government can see force in the amendments proposed by the noble Lord.

As I said earlier, those amendments might achieve by a different route the result of the amendments earlier proposed by the noble and learned Lord, Lord Thomas, in order to deal with the problem of inappropriate or other circumstances in which it would be right to exercise an executive power to re-release. If I may say it between ourselves—all this feels within the family, as it were, but of course we are talking to the entire outside world—a particular problem that arises from time to time is where the offender in the community is arrested for a new offence; he is then recalled and the police do not prosecute. What happens then? That is a classic practical problem that the power of an executive re-release might address; I make no promises or commitments, but the Government wish to engage further on this aspect as proposed by the noble Lord, Lord Carter, and supported by other noble Lords, and will give further consideration to it prior to Report. That is that.

Amendment 158, tabled by the noble Lord, Lord Blunkett, and the noble Baroness, Lady Chakrabarti, in relation to prisoners imprisoned under the so-called “two strikes” legislation under the Crime (Sentences) Act 1997, is a bit more complicated. As I understand it, although that legislation was abolished in 2005, similar legislation was reintroduced in 2012 and is now to be found in Section 283 of the Sentencing Act 2020, which provides for a life sentence for a second listed offence, the listed offences in question being set out in Schedule 15 to that Act. In terms of sentences of prisoners who are under some sort of two-strike legislation, we are dealing not just with the old 2005 cohort but with others as well. How we deal with those prisoners and in particular what would justify differential treatment of the various kinds of life prisoners we have seems to the Government an important and large question. The Government’s present view is that this problem is somewhat outside the scope of the Bill. That is not to say that we should not continue to consider it. The noble Lord, Lord Blunkett, should be congratulated on raising the issue and putting it further on the radar, and there would be no objection to continuing a dialogue on it, but in the context of the present Bill, it may be too far to go to deal with anything other than IPP. We will have to see, but, at the moment, the Government are not persuaded that that could come within the scope of the Bill.

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[Lord Bellamy (Con)]

My Lords, as I have tried to say, the whole purpose of the action plan is to create a framework in which this cohort, properly managed, could progress to safe release, with sentence plans, psychological support, support from psychology services and other support towards a safe release. That is a better route than tinkering with the release test. I will not say it is exactly a legal quibble, but it is a bit of a legalism to be fiddling with the release test.

[Lord Clarke of Nottingham (Con)]

The problem is that the Parole Board is made up of real-life men and women with a very heavy responsibility. There is an underlying fear about the consequences of ever releasing somebody who then goes on to commit some terrible crime. The reality is that they contemplate the appalling reaction that they would get in the media, the public inquiry that would condemn them and the destruction of their reputation if they ever moved to let out somebody who did something terrible. Ministers share the same reserve when it comes to undoing this.

The proposal to alter the burden of proof was designed to give a little encouragement, a little more courage and a little help to people in getting over that fear of the recriminations if they ever made a mistake. It would be an explanation that the Parole Board could give if it had let somebody out. Then, it could detain only those where it was satisfied that it could see that there was a risk from the person being released. That would make a great change to the numbers being released. At this stage, in the interests of justice, the risk to the public is one that we should contemplate as not as severe as everybody fears.

[Lord Bellamy (Con)]

I see the force of the points being made by the noble Lord, Lord Clarke. I respectfully suggest that the fear of the media is not the driving force in the case of this Lord Chancellor or, if I may say so, his Parliamentary Under-Secretary of State currently at the Dispatch Box. We are looking at the real question of public safety.

If I may ask it rhetorically, who speaks for Pauline Quinn? Admittedly, that was not an IPP case. Pauline Quinn was aged 73, was disabled and could not protect herself. She was brutally murdered by a convicted killer released on licence. I respectfully suggest that these risks are very difficult for any responsible Government to take, irrespective of what the media might say.

This raises another point. At the moment the Government are not convinced that this would make a significant difference, because the Parole Board, even under the revised test suggested by my noble friend Lord Moylan, would still have to be satisfied on the issue of the protection of the public. It is perfectly likely that one is simply raising false hopes. It does not change the process that the Parole Board has to go through to look at these very difficult individuals, who are very much at risk of harm and very difficult to manage in the community.

If you read the 2023 report from the Chief Inspector of Probation, you see how difficult it is to manage these individuals—those who have already been released, not the unreleased cohort. This is a very difficult area. At the moment the Government are not persuaded rightly or wrongly that it is a correct approach to make it easier to release dangerous people. That is the Government’s position, and I have explained it as best I can.

Imprisonment for Public Protection

Lord Clarke of Nottingham Excerpts

Tuesday 16th January 2024 Lords Chamber

[Lord Bellamy (Con)]

I do not assert that everything in the garden is rosy. This area is one of the acute—perhaps the most acute—dilemmas faced by the Ministry of Justice. Your Lordships will be aware that the subject of IPP prisoners is being addressed in Part 4 of the Victims and Prisoners Bill currently before Parliament, which we will shortly discuss in detail in Committee, and I am meeting noble Lords on Thursday to take that discussion further.

[Lord Clarke of Nottingham (Con)]

My Lords, this is not just a major problem in the system; it is a major disgrace to the British justice system that these thousands of people are being kept in this way. When I persuaded my then Cabinet colleagues to abolish the IPP system because it was working so badly, unfortunately I was unable to persuade them to change the application of the licensing system in the ordinary way to these prisoners. I am glad that the Government are now contemplating action. I look forward to the legislation, but it has taken years. Will they consider something drastic, such as that, when prisoners are released on licence, the licence period should be for a much shorter period than usual, because at the moment people are being returned for quite minor breaches of licence, to the disproportionate consequence of an indeterminate sentence that may keep them in prison for life? Why cannot they be released on licence for 12 months and thereafter be subject to the usual criminal law for the protection of the public? Will the Minister consider that, and every other suggestion flowing to him from the campaigners?

[Lord Bellamy (Con)]

My Lords, the House will be aware that the Victims and Prisoners Bill reduces the qualifying licence period from 10 years to three, with the presumption of termination at that point, and automatic termination two years thereafter if there is no recall in the meantime. A recent report by His Majesty’s Inspectorate of Probation found that in none of the cases examined was the recall inappropriate but that, in some cases, further additional support in the community might have avoided the need for recall. That has led to a number of recommendations, all of which the Government have accepted.

Prisoners: Imprisonment for Public Protection

Lord Clarke of Nottingham Excerpts

Wednesday 1st March 2023 Lords Chamber

[Lord Bellamy (Con)]

In response to the noble and learned Lord, I can say that we started with 6,000 offenders in this category. We now have 1,400 who have never been released. That is because the Parole Board considers them to be a risk to public protection—they have been reviewed, in many cases several times, and that is why they are still there. A further 1,500 have been released, but they have been recalled for various reasons—but they are eligible now for re-release.

[Lord Clarke of Nottingham (Con)]

My Lords, it is well over 10 years now since I abolished indeterminate sentences with full cross-party support, including the vocal support of the noble Lord, Lord Blunkett, the Home Secretary who introduced them, because we both agreed that they were being used on a scale, and in a way, that had never been intended or contemplated by Parliament. We never imagined that over 10 years later we would find that over 1,000 people were still serving these sentences, many of them way beyond any minimum sentence that the judge may have recommended when imposing it.

Following on from the last question, I made the mistake of assuming that the Parole Board would steadily release all such prisoners when the time was right, but I also made the mistake of putting the burden of proof on the prisoner to prove that there was no danger. That has failed and there is no point in still defending it. The Government have already rejected resentencing of all the offenders involved. Can the Minister assure me that the plan that is about to be produced will bring an end to the indeterminate, timeless detention of people for whatever crime, some of them quite minor, and replace it with a wholly new sentencing method if indeed some of these people would be a danger if released?

[Lord Bellamy (Con)]

My Lords, the Government are well aware of the difficulties of the situation. Our approach to the present problem is that we cannot contemplate the automatic release of many of those prisoners that a resentencing exercise would involve. What we can do is better prepare them for release, especially with regard to mental health problems, and better look after them “in the community” when they are released, so that they are not available for recall. In that way, the Government hope that these figures will be substantially reduced.

Prison Capacity

Lord Clarke of Nottingham Excerpts

Tuesday 6th December 2022 Lords Chamber

[Lord Bellamy (Con)]

My Lords, I am not in a position to comment on the last 40 years, but, respectfully, I would not make any link between the Government’s policy on prisons and the other matters to which the noble Lord referred. On the second part of his question, as I said just now, sentencing policy is a matter for the courts and not the Government.

[Lord Clarke of Nottingham (Con)]

My Lords, I think I am correct in saying that we have the second highest incarceration rate in the western world by far, after the United States of America. I have been around for the last 40 years and, in recent years, successive Governments—Labour and Conservative—have tended to introduce an annual criminal justice Bill increasing the maximum sentences for offences that have featured most in the popular press of the previous 12 months. As there is no evidence whatever that the length of sentence has any effect on the incidence of crime, and as the Minister also acknowledges the value of rehabilitation—it is the most valuable service prisons can give the public, because it saves them from future offences that might be committed, unless people go straight when they leave—does he agree that reversing the trend on sentencing and concentrating more on rehabilitation work, which he rightly praises, would be a valuable change in criminal justice policy if the new Government were to adopt it in the next two years?

[Lord Bellamy (Con)]

I thank my noble friend Lord Clarke for that question. The Government place the highest premium on rehabilitation and reducing the reoffending rate. The Government’s position is that this is not the moment to consider a change in sentencing policy.

Police, Crime, Sentencing and Courts Bill

Lord Clarke of Nottingham Excerpts

3rd reading
Tuesday 25th January 2022 Lords Chamber

[Lord Cormack (Con)]

My Lords, I support my noble and learned friend Lord Mackay of Clashfern. He put this with beautiful simplicity and total clarity. He underlined the fact that, at the end of the day, we are answerable for what we decide. I deplore bringing in important things at the late stage of a Bill, which is why I withheld my vote when we were voting and not debating last week, because it made a mockery of Parliament. This is not making a mockery of Parliament; it is underlining the humanity of Parliament. I believe we should follow the sage advice of my noble and learned friend.

[Lord Clarke of Nottingham (Con)]

My Lords, I apologise and feel rather guilty about the fact that I have neglected this Bill during its passage through the House because I was simply unable to attend and I decided not to participate. I came to listen to this debate to find out what was being put on the statute book, having followed it a little from a distance. This issue therefore took me completely by surprise. I have listened to the exchanges, but I thought I should add the voice of a third former Lord Chancellor and Secretary of State for Justice to the very eloquent case that has been made on both sides by the two others who share that position.

Personally, I do not approve very much of mandatory sentences, which have spread on to the statute book far too frequently in recent years in response to dramatic and publicised cases. I do accept the mandatory life sentence for murder; that is a very long-standing practice. We should deal with considerable care when we add new mandatory sentences in response to understandably emotional and dramatic cases that appear in the media but, unfortunately, responding to the media has become a feature of criminal justice Bills rather too frequently.

I rose simply to do what my noble friend Lord Cormack did: to add my voice, in so far as it helps at all, to those that have been put forward. This House would be letting itself down if it just let this go through by overstrict adherence to the normal procedures, which of course we should normally follow.

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[Lord Garnier (Con)]

My Lords, I appreciate that Third Reading is not the time for long and ponderous speeches, but I wanted to place on record—as someone who tabled amendments on Report and in Committee to deal with IPPs and the injustice that remains—that I wholeheartedly support the remarks of the noble and learned Lords, Lord Brown and Lord Judge, my noble friend Lord Moylan, and the noble Baroness, Lady Burt.

This is just the beginning and must be seen as something that will continue to be looked at, both by the Select Committee in the other place and the Ministry of Justice. I also place on record my personal thanks to my noble friend the Minister, who has dealt with this question with sensitivity and within the bounds of possibility that being a Minister in this House places on him. I thank him for what he has done and look forward to hearing more that will undo the injustice that the IPP regime is still visiting on a number of people.

[Lord Clarke of Nottingham (Con)]

My Lords, I feel very guilty that I was unable to arrange my diary to take any part in the Bill as it went through because this is the part of the Bill in which I would otherwise have taken an active part. I have already apologised to the noble Lord, Lord Blunkett, outside this House for the fact that in the end I was not able to offer him any assistance.

I add only, as my noble and learned friend just has, my support and simply record that I was the Lord Chancellor who abolished indeterminate sentences in 2011 with the wholehearted support of the noble Lord, Lord Blunkett, who was then in the House of Commons with me and defused any attempts to preserve this stain on the statute book, which he had accidentally introduced without any expectation that it would be used as it was and resolve into a problem.

If you had told me when we abolished this sentence that there would be thousands of people in the position that they are now, 11 years after abolition, because they were left over to be dealt with, I would not have believed it. What I proposed was simply a change to the burden of proof that the Parole Board had to apply when deciding whether it was safe to release somebody, but that was never implemented. The fact that all these years later we face these problems is something of a disgrace. I thank the Minister for making this modest move, but I certainly agree with what everybody has said about the modesty of it. It needs urgently to be addressed by the Select Committee in the other place.

[Lord Ponsonby of Shulbrede (Lab)]

My Lords, I too would like to echo the thanks for the Minister. He has, in a sense, been a lobbyist within the Ministry of Justice to get this modest amendment over the line. The noble Lord, Lord Moylan, summed up the position very well when he described it as the first crack in the wall. I was alarmed by the figures he quoted from his Written Question, where he seemed to indicate that there would be more prisoners in jail because of recalls, so the problem is likely to get worse and not better.

The noble Baroness, Lady Burt, referred to the Minister’s reference to Newton’s second law—that it is easier to move an object that is already in motion. My first degree was in physics, and I would phrase that slightly differently, in a way that is relevant to the politics: the rate of change of movement is proportional to the impressed force. We on this side are certainly interested in increasing the impressed force on this object which is currently under way.