Sentencing Bill

Lord Moylan Excerpts

2nd reading
Wednesday 12th November 2025 Lords Chamber

[Lord Moylan (Con)]

My Lords, it is a pleasure to follow the noble Baroness.

I find myself speaking in the company of very distinguished and knowledgeable noble Lords, with great judicial experience and knowledge of the sentencing system in its widest sense. I am not in that company. I would venture to say, though, that I have considerable sympathy with what the Government are trying to achieve here. I have doubts about the efficacy of ever longer prison sentences, and indeed about their purpose. Listening to the right reverend Prelate the Bishop of Gloucester, I allowed myself a measure of doubt about whether we have a clear notion of the purpose of prison. After all, prison as we understand it is a relatively modern idea; it goes back only to Jeremy Bentham. It is a sort of 200-year experiment. If the right reverend Prelate is going to give us an opportunity, in the course of the Bill, to give some consideration to what we are actually trying to achieve and whether we are succeeding, that might be of some general benefit.

However, I want to follow the speech so eloquently made by my noble friend Lord Hailsham, when he spoke about IPP prisoners, a subject also referred to by the noble Baroness, Lady Jones of Moulsecoomb. This scandal continues to fester. At its height, in 2012, there were 6,000 prisoners subject to the IPP regime. According to the latest figures supplied by the Ministry of Justice, 14 years later, that figure has now come down to 2,422 in custody, 1,476 of whom are on recall. Nearly 1,000—946—have never been released, 14 years after the sentence was abolished. Many of them, I think nearly all of them now, are beyond the tariff that they deserved and were given at the time of their original sentencing. Many of them are years, as much as a decade, beyond the tariff that they were given.

One has to acknowledge progress and good will. Undoubtedly, the Minister, but also his predecessors from a previous Government, have come to this task with great good will, a recognition of the injustice and a wish to bring it to an end, but the furthest that they have been able to go when dealing with those prisoners who are in prison is an action plan, which has not materially changed with the change of government. The last Government, as we know, made considerable progress, in the Victims and Prisoners Act, in alleviating the position of prisoners who are out on licence, but my focus is on those who are not out on licence but still in prison for one of the two reasons I have mentioned: either never released or on recall.

The action plan has certainly seen a reduction in numbers—even in the last year, numbers have been reduced—but if one focuses briefly on those who have never been released, one sees that the action plan is losing its effectiveness, because one is getting to that number of prisoners who will always be a challenge for the probation system to approve for release, many of them because of mental health difficulties acquired as a result of their experiences while serving the sentence. The challenge for the Minister is to recognise that there needs to be something over and above the action plan to help deal with those people and find some path back to giving them justice—justice being simply that one serves the sentence that arises as a result of the crime one has committed. We see very little sign of that, but the Bill offers us opportunities to do it.

We have seen ideas. The Justice Committee in the Commons, late in the last Government, had a proposal for resentencing—the noble Lord, Lord Woodley, has a live Private Member’s Bill which would put that into effect. We have great hopes, I think, in the report of the Howard League more recently, chaired by the noble and learned Lord, Lord Thomas of Cwmgiedd—who I am glad to see in his place and due to speak later in this debate—the essential effects of which were described by my noble friend Lord Hailsham. The question for the Minister is whether he intends, with vigour, to take up some of the ideas being offered to him; whether he will use the Bill as a means of doing so; and whether he will enter urgent talks. I cannot criticise him for failing to talk to noble Lords. He has been very good about holding cross-party round tables—in fact, his secretary is in the process of organising another one for next month—but will he sit down, as my noble friend suggested, in the course of the Bill and engage in cross-party discussions as to how the Bill can become a vehicle for addressing, in particular, those who have no hope of release, whether through the recommendations of the Howard League or some other means? That would be a huge advance.

I leave those thoughts with noble Lords. It is a huge omission that the Government have so far not included them in the Bill. The Minister began by saying that they were not included, but there are enough of us across the House to see amendments tabled, perhaps with some effect, to bring them back into the Bill. This is the opportunity in this parliamentary session to do that and, if the opportunity passes, more time will be lost and more unjustified suffering will be endured as a result of our lack of dispatch and engagement with this issue.

Sentencing Bill

Lord Moylan Excerpts

Committee stage
Wednesday 3rd December 2025 Lords Chamber

[Lord Moylan (Con)]

My Lords, it is extremely difficult to speak after two such very powerful speeches. The noble Lord, Lord Woodley, has advanced again the resentencing option which was originally proposed by the Justice Select Committee in the other place, under the chairmanship of Sir Bob Neill when he was a Member of Parliament, on a unanimous, cross-party basis. It therefore cannot be dismissed as some reckless and trivial proposal; it should be taken with great seriousness. However, I am not going to elaborate further on it now because it has been debated already. The noble Lord has an extant Private Member’s Bill which would give it effect.

It is fair to say that the proposal from the noble and learned Lord, Lord Thomas of Cwmgiedd, is new at debate in your Lordships’ House and it emanates, as he said, from a report produced by the Howard League. There are two points in what the noble and learned Lord said that I want to present in my own way. The first relates to the action plan, which has been excellent in many ways. It has achieved a great deal but, as I said at Second Reading, the difficulty with it is that there is a large number of people—nobody can put a figure on it, but consensually there is an idea that it is several hundreds, maybe nearly 1,000—who are the hard cases left after the action plan has done its work and has resolved the issues in relation to the, if you like, low-hanging fruit. We are left with several hundred people for whom it is clear the action plan is never going to be a solution. If there is no other way out for them than the action plan, then, in effect, the Government are saying that they will stay in jail until they die, because what else is there? There is no other route out.

The noble and learned Lord has presented a proposal which would help. The process would be that the prisoner would apply for parole, be refused parole, but then the Parole Board would at that point be obliged to set a date, up to two years later, on which the prisoner would be released.

The second point is that it could be represented that this is, in effect, an automatic release that follows two years after they have failed to achieve release—but that is not the wording of the amendment. I draw noble Lords’ attention to proposed new subsection (5), inserting new Section 28(6B), which says that the Parole Board, having set the date,

“may issue such directions to facilitate the prisoner’s release at the specified future date as it considers necessary having regard to its duty to protect the public”.

This is not a reckless and automatic release that follows without any effort on anybody’s part from the decision to refuse parole. The essential idea is that the machinery of the Probation Service should be brought together and energised under the direction of the Parole Board to provide those tailored services and that tailored support, such as education and courses, and the other measures that are necessary to ensure that that person is safe to be released. That is the objective.

Let us remember that many of the people who will not be released through the action plan are in that group because they have ceased to engage with the system. Having been through the effort to achieve parole in the past and having suffered the severe psychological blow that can arise from having been refused and knocked back, many of them will simply not go through that again. But if you could offer them a date, if you could say to them, “Here is hope, in two years, if you do these things”, perhaps we can get that engagement, and perhaps those people for whom there is otherwise no exit could be engaged and brought to be released, with the approval of the Parole Board and the support they need to get them to that place. If that support turns out to be expensive and difficult to provide and requires a superhuman effort on the part of the Prison Service, the Probation Service, the Ministry of Justice and the other organs of the state, is that not the least we owe those people now? That is why I really hope that noble Lords will be able to support the amendment in the name of the noble and learned Lord, and that the Government will be able to relent. It might need some work in detail, but I hope the whole House will be able to support the principle behind it.

Briefly, there are also amendments in this group, in the name of the noble Lord, Lord Blunkett, which relate to the parallel—and in some senses, almost deeper —scandal of DPP prisoners. Noble Lords will be aware that, in essence, the only difference between DPP and IPP prisoners is that DPP prisoners were sentenced when they were under 18. Those people are still in prison. They almost certainly should not be, but they are. The amendments in the name of the noble Lord, Lord Blunkett, deserve support.

Finally, and I feel this is very much an anticlimax, my own Amendment 109 is almost bloodless in its technical insignificance in comparison with those put forward by the noble Lord, Lord Woodley, and the noble and learned Lord, Lord Thomas of Cwmgiedd. It is a very modest proposal and entirely administrative. I very much hope that the Minister will support it.

The amendment would allow IPP prisoners, who are in the community already serving a licence, annually to apply to the Parole Board for the discharge of that licence. In the Victims and Prisoners Act, we reduced dramatically the statutory period of the licence, and we made it easier for people to be discharged. Hundreds of prisoners have had their licence terminated as a result of that; it has been the most significant step so far in removing the scandal of IPP prisoners.

However, there are administrative difficulties, whereby if someone misses out on their discharge, they have to wait another whole two years before they can be considered again. What I am simply doing in my amendment is introducing the idea that they could apply—I would expect nobody to do this, unless they were supported by their probation officer—after one year, not two years, to have their licence discharged.

There is no threat to the public in this. We must remember that these people are already living in the community, and all the amendment seeks to do is give them permission to apply for something. The decision whether to discharge their licence finally—not to release them from jail, because they are in the community already—would still rest with the Parole Board. There is no risk to the public at all in doing this. It is a modest administrative change that will help some—not many—prisoners get rid of the stigma of this sentence sooner and resume their lives in the community as free subjects.

[Lord Blunkett (Lab)]

My Lords, my contribution this evening will be brief, only because there is a long evening ahead for the many noble Lords on the Front Bench and no lack of enthusiasm and commitment to continue working with other noble Lords who have spoken this evening to get this mess sorted out. I thank my noble friend Lord Woodley, who has taken up the cudgel so strongly; the noble and learned Lord, Lord Thomas, whose commitment could not be doubted after his contribution this evening; and the noble Lord, Lord Moylan, who has hunted with me for a very long time now—since I first came to your Lordships’ House, it seems.

Before speaking to my Amendments 116 and 117, I note that the three contributions that have been made already illustrate the urgency of getting this matter resolved once and for all. All three Members have put their finger on one of the tragedies of the IPP sentence, which, ironically, was in part intended to deal with the two strikes that the noble and learned Lord, Lord Thomas, mentioned. The tragedy reflected in the action plan wording that the noble and learned Lord read out—what was originally intended was never in the Bill itself; it was a matter of interpretation—was one of the terrible twists of life that we now have to untangle. The main issue I have picked out concerns those people who have been in prison for so long that their mental health has inevitably deteriorated. As the noble and learned Lord said, psychiatrists have accepted that now, in a way that was not recognised in 2003—we should have done that, and they should have done that, but we did not.

On the amendments from my noble friend Lord Woodley and the noble and learned Lord, Lord Thomas, I believe that, if we could build in a formula that allowed the transfer of some of those prisoners to a secure medical setting for support to be given—I am not talking about Broadmoor or Rampton; there needs to be an intermediary alternative—then it might be possible to accept the two-year imperative. That would go a long way to meeting what my noble friend is seeking to achieve in his amendment: to move this on rapidly. The commitment to help from my noble friend on the Front Bench is unequalled, and I pay tribute to him. Listening and responding from the Front Bench is not easy—I know that, because I was there for eight years and experienced all kinds of constraints. My noble friend understands what we are talking about, so perhaps, with some creativity, we could think of a way to achieve this aim.

--- Later in debate ---

[Lord Timpson (Lab)]

I will now address these amendments, which were spoken to very powerfully, on the imprisonment for public protection, or IPP, sentence. As noble Lords know, this is an issue that I also feel very passionately about. I am grateful to my noble friend Lord Woodley for his tireless efforts on this issue and for his amendments, which seek to resentence all IPP sentence individuals. I am also grateful for the reflections from the noble and learned Lord, Lord Hope, on the requirements of a resentencing exercise and thank the noble Baronesses, Lady Bennett and Lady Ludford, for their thoughtful words on this important issue.

I hope it is clear that the reason for not resentencing IPP offenders is to protect the public and safeguard victims. Although we are determined to support those in prison to progress towards safe and sustainable releases, we cannot take any steps that would put victims or the public at risk. Resentencing would result in offenders still in custody being released even when the independent Parole Board has determined—in many cases repeatedly —that they are too dangerous to be released, having not met the statutory release test. My noble friend’s amendments would allow the court to confirm an IPP sentence for those who might have received a life sentence, but this would not prevent the resentencing and release of those who do not fall within the proposed parameters but who the Parole Board have previously assessed as not safe to be released.

The amendments also provide for the substitution of an IPP sentence with a hospital order. However, at the imposition of an IPP sentence, the courts already had the power to issue a hospital order under the Mental Health Act if there was evidence of a mental disorder at the time of the offence being committed. Additionally, if a prisoner now has a severe mental health need to an extent that detention under the Mental Health Act may be appropriate, they will be referred and assessed clinically to determine whether a transfer to a mental health hospital is warranted. This has always been available to those serving the sentence.

Amendment 129, tabled by the noble and learned Lord, Lord Thomas, would provide IPP prisoners with a release date within two years. Again, in this circumstance, individuals would be released who have not been considered safe for release by the Parole Board. The addition to this amendment from the noble Viscount, Lord Hailsham, would provide a limited safeguard. This would allow the Secretary of State to make an application to the Parole Board for the release date to be varied or set aside. However, when considering an application to set aside, the Parole Board would be required to release the prisoner or fix a new release date at the following hearing. The Parole Board already reviews IPP cases at least every two years and, in many cases, more regularly.

We have to remain focused on the best and safest way to support IPP offenders as fast as possible to a safe release. It is important to remember that IPP offenders received their sentence after being convicted of a violent or sexual offence. Therefore, for any decision that removes the protection of the statutory release test, we must be comfortable with the prospect of these offenders living in our communities; that is what we would be demanding of the public.

We know that individuals received the IPP sentence because they committed a sexual or violent offence. Extended sentences were available alongside the IPP sentence, but the sentencing judge decided that an IPP sentence was appropriate for the offender at the time. Under that sentence, a person is released only following assessment by the Parole Board. There would be considerable risk to the public and victims if we released those serving the IPP sentence who are currently in our high-security establishments.

[Lord Moylan (Con)]

My Lords, I hesitate to interrupt, but does the noble Lord accept that, in many cases, especially in the early part of the IPP regime, judicial discretion was almost nil? It was not that the judge determined that an IPP sentence was appropriate; rather, the guidelines given to him said that in certain circumstances, where the offence for which the person had been found guilty and an earlier offence for which they had been convicted appeared on a certain table in a certain configuration, they had no choice but to give an IPP sentence. That is how the sentence was imposed in many cases. There were circumstances where two people were prosecuted for the same crime, which they had carried out together. One of them had a history which brought this table into operation, the other did not. One would get an IPP sentence, the other a determinate sentence appropriate to that crime, although they had both been involved. That point, which is of capital importance, has never been fully recognised by the Ministry of Justice. Judicial discretion was not exercised or exercisable in the case of many of these sentences.

[Lord Blunkett (Lab)]

Before my noble friend on the Front Bench replies, could he also reflect that this took place on a Court of Appeal ruling two years after the implementation of the Act in 2005? That judgment then determined the hearings and therefore the sentences granted by judges, consequent on that Appeal Court ruling.

Sentencing Bill

Lord Moylan Excerpts

Report stage
Tuesday 6th January 2026 Lords Chamber

[Lord Garnier (Con)]

My Lords, my noble friend Lord Hailsham’s second point illustrates his first point: if there is no purposeful activity available, how can one enforce the denial of an early release by virtue of a person’s failure to comply with a purposeful activity?

I want, briefly, to go back to the late and much lamented Lord Ramsbotham. In his book about prisons, which I know the Minister will have read many times, he said that the three things that will reduce repeat offending are that a prisoner, on release, should have a place to live, should be able to return to a loving relationship and should have a job. I took that very much on board when I wrote a paper nearly 20 years ago entitled Prisons with a Purpose. I wrote it when I was the shadow Prisons Minister, in the days when my noble friend Lord Cameron was the leader of the Opposition.

I visited about 75 prisons, young offender institutions and secure training units during that time. One of the things that struck me was that there were some wonderful examples of purposeful activity going on in a number of prisons but, as my noble friend Lady Neville-Rolfe has pointed out, it very much depended on the leadership of the prison. If you had an inadequate governor, you had an inadequate regime within the prison, particularly within the education and training sections of that prison.

I have made a few visits to a number of detention centres and I remember being taken with great pride by the governor on duty to a workshop in a great big shed in a West Midlands category C prison. I will not name it, because things may well have changed by now. In the workshop were adult men aged between 21 and goodness knows what, and they were making hairnets. I have absolutely no doubt that there is a market somewhere for hairnets. But I equally had no doubt then, and have no doubt now, that the prisoners in those workshops, having been released, would never go to work in a hairnet factory. So, it was just time filling.

I went to another prison in Wales, where I saw male adult prisoners sorting blue plastic bits from green plastic bits and putting the blue ones in one tray and the green ones in the other tray. They were apparently parts of some electrical connection system. Again, these are the sorts of activities that would achieve nothing in so far as Lord Ramsbotham’s provisos were to be complied with.

I went to an open prison in the south of England where, far from the prison, prisoners and prison officers taking advantage of the farmland and market garden within their premises, now long closed of course, I found men playing cards behind the wheelbarrow sheds—and who else was in the card game but a couple of prison officers? Again, this is just time filling.

The problem is further exacerbated by prisoner churn. If you are sentenced in, say, Canterbury Crown Court and are sent to Canterbury prison that evening, within a few days or weeks you will be transferred to Maidstone prison to allow others to come in. Maidstone prison will be receiving prisoners from Maidstone Crown Court. The Canterbury prisoners who have been moved to Maidstone will be required to move to Lewes, then from Lewes to Southampton, and from Southampton to Winchester. So there is, metaphorically speaking, a jumbo jet of prisoners moving around the prison estate. How can they do any sensible activity? How can they go on any sensible course if, having barely started it, they are then moved to another prison?

I am happy to advertise on behalf of Timpson. I have seen a number of its workshops in operation in prisons up and down this country, and I have been served in shops by graduates of the Timpson in-house system in prisons. There, people are learning a real job that can translate from inside prison to the high street. They can go out and earn a living, pay their rent and taxes, and look after their dependants. That is the sort of work we need to see done, and more of it, in prisons.

That is why I wholly applaud Amendments 65 and 67, tabled by my noble friend Lord Hailsham: they hit the nail on the head. If we do not have real, genuinely purposeful, activity in prisons, the whole thing is a sham, and you will get repeat offenders coming in and out like a revolving door, and the prison population will simply grow and grow.

So, whether we vote on this or not, it is absolutely essential that the Government get a grip on the way in which training and education are dealt with in our prisons. I know of course that the Minister knows this personally—he has known this for 30 years—but lots of people in government do not, and lots of people at the Treasury do not, either. They do not seem to realise that by reinforcing failure—junk in, junk out—all you are doing is wasting the public’s taxes and not producing one ounce of public safety.

[Lord Moylan (Con)]

My Lords—

[Baroness Chakrabarti (Lab)]

My Lords, I thought I had better stand up quickly, while I could still take the pleasure of agreeing with everything that has been said so far on this group—if the noble Lord, Lord Moylan, will forgive me.

I have Amendment 98 in this group, which concerns remand, but I support every sentiment that I have heard so far about the other amendments. In particular, I congratulate the right reverend Prelate, because it is important that sentencers, like legislators and the public, are constantly reminded of the seriousness of incarceration and its justifications and purposes. They are: public protection, rehabilitation, deterrence and justice for victims—not political virtue signalling, which has too often been the purpose over the last 30 years, during an arms race involving people from all sides of our political discourse. In no small part, this has led to the current crisis in our criminal justice system, let alone in the prison system. So I certainly support that.

--- Later in debate ---

As far as I am concerned, my noble friend Lord Timpson is a breath of fresh air in politics around these issues and in the department. I have been so glad of his engagement on this and other issues. The Government say that they are not currently able to repeal this anachronistic and slightly barbaric provision in the Bail Act, but if he could at least indicate some ambition for a direction of travel whereby we could get some more data and end up with adequate provision for protecting vulnerable people—whether they are witnesses or defendants—I would be incredibly grateful to hear that in his reply.

[Lord Moylan (Con)]

My Lords, I am sorry that the noble Baroness, Lady Chakrabarti, was so quick to assume that I was going to say something with which she would disagree. I hope, in fact, to disappoint her: she might be able to agree with what I am about to say. I added my name to the right reverend Prelate’s Amendment 52. I am not sure that I necessarily agree with every detail of her amendment; the reason I added my name, now and in Committee, is that I strongly believe that we need greater clarity about the purpose of prison.

Other noble Lords have given some very good arguments and reasons as to why the right reverend Prelate’s amendment deserves support. I am not going to repeat those. I am just going to make one comment of my own—and I will try to be very brief—which is that there has been a very big change over the past 50 years. There was a notion—it was certainly current when I was young—that the purpose of prison was based on a classical notion of justice; that is, that the perpetrator had incurred a debt to society, a debt which was to be discharged by a fixed period of imprisonment, after which that perpetrator was free to go. Nowadays, we do not hear about that form of justice. The rhetoric and the argument we hear—it appears across all parties; it is not an accusation against this Government or this Minister—are that the purpose of prison is the protection of the public.

Now, that is a hopeless case. It is hopeless, first, because its logic ends with every prisoner being subject to an indefinite sentence. We are back to the thinking about IPP prisoners, to whom we are going to come later this evening. If the protection of the public is what you are aiming at, that is the logic of where you are going. Secondly, it says nothing about the prisoner; it is entirely outward looking towards the public. It leaves the prisoner there in prison, but to what purpose as far as their activity, their purpose while they are there, is concerned? That is why some of the suggestions made in the amendment, and the suggestions made by other noble Lords in this debate about activities for prisoners and facilities, are so important.

Thirdly, it has been one of the contributing factors to longer and longer sentences, because if you are constantly under pressure to think about protecting the public, and you have a huge 25 year-old man in front of you who has done something very violent and you are going to have to think about protecting the public when you send him down, you are going to have to think about quite a long sentence. I think that adds to the longer sentences which are at the root of the problem that we are facing and which this Bill is to some extent intended to address. We will not complete this task in the course of this debate, obviously, but at some stage we need to have serious thought about trying to get back to some notion of justice and querying this idea that the purpose of prison, and the purpose of the criminal justice system, is the protection of the public, because of the dangers I think that involves. It has crept into our thinking without a proper debate as to its consequences, and I think it deserves some challenge.

[Baroness Jones of Moulsecoomb (GP)]

My Lords, the Minister has probably been in your Lordships’ House long enough to understand how rare it is that we are getting a degree of unanimity around the House on the amendments that we have debated so far. I am the first to admit that I am not particularly socially savvy when it comes to how people run the country, because I do not get the idea that we put people in prison for their own protection, when prison is a really dangerous place for vulnerable people to be. Also, as I have told the Minister before, I am extremely anxious about people being put in prison on remand for many months, because people on remand face the poorest access to healthcare and the highest rates of self-harm and are routinely held in the most overcrowded and unstable parts of the prison estate. Courts have no control over which prison they go to and for how long.

It seems that we are here trying to correct an injustice: that vulnerable women and children are put into a prison where they are clearly not safe is horrendous. I know that there is an inquiry about this, but the Minister is seeing and hearing from people who know where the problems lie, so I urge him to take this back to the Ministry of Justice—I am sure he will. I welcome the Government’s acknowledgment, through the Mental Health Act, that remanding people for their own protection on mental health grounds is wrong, but this power has to be removed completely. It really does not fit with a decent society, and I would be very happy to vote for quite a few of these amendments if they went forward.

Sentencing Bill

Lord Moylan Excerpts

Report stage
Tuesday 6th January 2026 Lords Chamber

[Baroness Chakrabarti (Lab)]

Forgive me.

I want to be brief, because the speeches have been eloquent and passionate. All the bases have been covered, but in the absence of, for example, my noble friend Lord Blunkett, whose amendments I signed, it is important that someone from the Labour Benches conveys the concern that persists in the Labour Party. That includes people who are incredibly loyal to the Government and incredibly proud of the Minister, my noble friend Lord Timpson. The anxiety and concern at this profound injustice is very live and real.

I support the noble and learned Lord, Lord Thomas of Cwmgiedd, and other aspirations and amendments in this group. I agree that administrative mechanisms have not been enough. They do not show the signs of being enough to prevent more suicides and self-harm from what the noble and learned Lord put very well as having been a collective miscarriage of justice. When miscarriages of justice are perpetrated by the judiciary, there are appeal mechanisms and even executive pardon mechanisms to deal with them, but this was perpetrated by the political class: by the Executive and the legislature.

To the credit of the coalition Government, the IPP sentence was ended, but the response in relation to those already incarcerated was inadequate. These people, frankly, rot in prison. The noble and learned Lord, Lord Garnier, put it very well: some of these people have now been incarcerated—some even without any release—for offences that would never have justified life imprisonment. They are decades beyond tariff. This is unconscionable, and something must be done.

I know very well from regular meetings and from all the engagement and work that my noble friend Lord Timpson is doing that he is committed to getting these people out, if at all possible, but administrative mechanisms do not seem to be enough. I hope he will forgive me for saying that, in these meetings and in that engagement, some of us have observed even institutional intransigence in some parts of the institution about dealing with this. Frankly, this was a legislative disaster and it will require a legislative solution. I hope that my noble friend the Minister will be able to make this 11th-hour concession. That may prove difficult— I do not know—but, at the very least, I would hope that he might consider a free-standing Bill that the Government could bring forward, with cross-party support, to provide a mechanism to deal with the remaining relatively small number of people suffering this profound injustice.

Administrative mechanisms and “wait and see” are plainly not going to work, not least because of the point about zero risk that was introduced by the noble Lord, Lord Moylan, earlier this evening and has come up in a number of speeches. There cannot be zero risk. There is not zero risk with people in the mainstream population who have never been convicted of an offence so, of course, there is not zero risk in relation to this cohort. Any risk that they pose has probably been exacerbated, as was put by the noble and learned Lord, Lord Thomas, by this appalling state-sponsored miscarriage of justice of collective proportions.

It is time for all of us to play our part on a cross-party basis, which is why I shall be listening as anxiously to the reply from the noble and learned Lord, Lord Keen of Elie, opposite. This is a political problem and an institutional problem, and it will take good will from all sides to deal with it. We spoke earlier about the purposes of imprisonment. The legitimate purpose of imprisonment was never supposed to be political point-scoring, yet that political point-scoring has created all sorts of problems that have escalated in the past three decades, so I hope that there can be some olive branch offered from that side of the House as well.

I know that the Minister is committed to justice and has proved in his extraparliamentary life what can be done with genuine courage and a commitment to turning people’s lives around. This, I know, is on his mind. I am asking him to consider a legislative response, rather than just leaving it to administration, because that has not been sufficient. I support the approach of the noble and learned Lord, Lord Thomas, but there is a lot in what the noble and learned Lord, Lord Garnier, said too. It is perhaps a shame that we did not have a single offering, but I firmly believe that there will have to be a legislative offering, ideally from the Government. Otherwise, this stain—the word of my dear friend and former mentor, the late Lord Brown of Eaton-under-Heywood—will carry on, perhaps beyond our own lifetimes, and I for one would be seriously ashamed of that.

[Lord Moylan (Con)]

My Lords, there are amendments in this group in the name of the noble Lord, Lord Blunkett. He has asked me to say that he is mortified that he cannot be here today and that he sends his apologies to the House that he is not able to be here to move them.

I have my own amendment in this group, Amendment 78, which is carried forward from Committee. It is a very modest amendment making an administrative change that relates only to prisoners who are out on licence, to make it easier for some of them to discharge their licence. I am delighted to say that it had a reasonably good welcome in Committee from the Minister and that he has brought forward his own amendment, the government amendment in this group, which effectively does what I was proposing in my Amendment 78, so of course I have no intention of moving that and I encourage noble Lords to support the government amendment in this group.

Turning to the main question, we have the essential problem. I am not here to beat up the Government. I say straight away that there are difficult issues here for Ministers, and not just Labour Ministers. I have seen very good people as Conservative Ministers struggle with the same issues in the past, and that would be true if they were Ministers from other parties. The issues are genuinely difficult because of the question of public protection. However, as the noble Baroness, Lady Chakrabarti, said, complete protection of the public is not possible. The way in which we try to maximise protection for the public in these cases is through having decisions about release made by independent bodies, in particular by the Parole Board. Ministers of both parties have been very clear that nothing is going to happen, and nobody is going to be released, unless it is with the say-so of the Parole Board.

The noble and learned Lord, Lord Thomas of Cwmgiedd, has crafted his amendment very much with that in mind. The Parole Board follows certain procedures, and those procedures are not fixed in stone, it seems to me. The procedures, of course, are up for argument. The fact that it is the Parole Board that must decide is not up for argument, but how the Parole Board works can legitimately be up for argument.

What the noble and learned Lord has done is try to change those procedures, to change the emphasis so that the prisoner is given an incentive to engage with the Parole Board: an incentive that, if certain things are complied with within a certain period, the Parole Board will say yes, rather than the current system, where the prisoner goes through hoops and then finds out afterwards whether the Parole Board is going to say yes or no.

That is a shift in balance; it is a change merely in the way that the Parole Board works. However, just to make 100% certain that the danger to the public is not increased, the noble and learned Lord has, of course, included the measure that he mentions, whereby the Parole Board can rescind any such conditional offer if it finds that it is not working out.

It seems to me that the Ministers should be able to have an open mind about a proposal such as that, because it does not touch the red lines that they are so concerned about. It is merely a change in the way the Parole Board approaches its task, but one that has a better prospect of success.

Similar remarks could be made about the proposal from my noble and learned friend Lord Garnier. Again, the independent body in this case would be a panel of judges, or a judge operating from a panel, and again, the Secretary of State would have a final say—the Secretary of State could override it at the end—so there would be a fail-safe built in.

I think it is fair to say that either of these mechanisms would have a dramatic effect in altering the balance. While there would still be some prisoners, I frankly admit, who probably would never meet those criteria, or at least not without a great deal of work, it would start to address that residue that is finding it very difficult to move, and it would do so in a way that does not cross the Government’s red lines.

I have every sympathy with the Minister who, as other noble Lords have said, has worked extremely hard on this. We are trying to make it as easy as possible for him to be able to embrace some sort of change, while protecting public safety. I hope that he can step forward and say something positive that we could carry forward for the future. If the noble and learned Lord, Lord Thomas, chooses to divide on this amendment, I would feel obliged to follow him into the Lobbies, but I would much rather hear it said by the Minister that he will be able to find that compromise that would allow all of us to work together in this direction.

[Lord Davies of Brixton (Lab)]

My Lords, the case has been made clearly and persuasively, with no significant objection, but it is a difficult issue of public policy. As the noble Baroness, Lady Ludford, said, there is a risk—there is this downside risk of a case that will make headlines in the newspapers—but that has to be set against the certainty of the harm that this policy is causing to many people at the moment.

We know that. It is well attested, and my noble friend the Minister knows that full well. So we have to accept the risk and embrace the opportunity to greatly help people who are suffering in our prisons from this policy. I will listen with care to my noble friend’s response to the debate. I very much hope that he will be able to give us some hope, but I will find it difficult to join my colleagues in the government Lobby.