Victims and Prisoners Bill

Lord Thomas of Cwmgiedd Excerpts

Tuesday 12th March 2024 Lords Chamber

[Lord Moylan (Con)]

My Lords, I congratulate the noble Baroness, Lady Fox of Buckley, and my noble friend Lord Attlee on a very elegant double act. While the amendment that was moved by the noble Baroness is at the more ambitious end of change in this Bill, the amendments moved by my noble friend give the House a suite of options for how we might choose to implement it. Those who are concerned that there might be practical problems with implementing it can pick one of the options put forward by my noble friend or, before we reach Report, some other combination that would allow it to be delivered in a way that was acceptable and could be managed by the Probation Service, the ministry and the courts.

It was not for that purpose that I have principally risen to speak, but rather to pick up a point made by the noble Baroness about the family and prisoner reaction to our debate today, and in particular the issue of self-harm. The noble Lord, Lord Carter of Haslemere, and the noble Baroness, Lady Burt of Solihull, earlier this evening spoke about the case of Matthew Price. It is true that I got an email from Matthew Price: a perfectly literate and coherent email in which he said that he was only a few months away from his 10-year limit, but that the mental stress on him was such that he could not guarantee he was not going to take his own life.

I know that other noble Lords probably received the same email; certainly, the noble Baroness, Lady Burt of Solihull, did. I do not know how many replied. I did, and I tried to encourage him to cling on. I told him that, not that long ago, we had passed an amendment to the Police, Crime, Sentencing and Courts Bill, as it then was, which meant that at the end of the 10-year period, the Ministry of Justice would automatically submit an application for the discharge of his sentence to the Parole Board. He himself did not have to take any action; it would happen automatically under the new regime. What I had to say to him, in honesty, was that that did not mean that the sentence would then be discharged. He could still be refused even at the end of the 10-year period. The ministry would then submit an annual application for his sentence to be discharged, but there was no guarantee as to when it would end. I did not put it as fully as that, but I did feel that I had to make that point.

I do not know what effect it had, but a few weeks later I had a short email from a friend of his simply saying that he had taken his life. The effect of that stays with me, and I know, from discussion with her, that it has stayed with the noble Baroness, Lady Burt of Solihull. It seemed such a terrible waste.

It is not a debating point, but this comes back to what was said by my noble and learned friend the Minister at an earlier stage when he was discussing the difference: “Well, it is one year or two years? Does it really matter if the offender has to wait two years as opposed to having an opportunity to make an application at the end of one year?” That was in relation to an amendment put by the noble and learned Lord, Lord Thomas of Cwmgiedd. Months can matter in cases like this. It also illustrates that, while we talk confidently about 10 years as the licence period, because that is what is set in statute, in fact it was never 10 years. It was 10 years as a minimum; it could be 11 or 12 years —nobody actually knows until they apply and get that decision.

In relation to self-harm, I have also had an email today—again, it is possible that other Members have—explicitly supporting my Amendment 161, which we debated earlier. That email comes from the Independent Advisory Panel on Deaths in Custody; this is a non-departmental public body, which writes from the Ministry of Justice—that is its address. It says:

“IPP prisoners are a particularly vulnerable group due to the close link between hopelessness, self-harm, and suicide. IPP prisoners’ vulnerability is further exacerbated as the period for which they are held beyond their tariff increases. Last year there were nine self-inflicted deaths among IPP prisoners – the highest number since the sentence was introduced … – with a similar number of deaths in the previous year”.


In that context, I want to make a practical and immediate point—not a sensationalist point. Many prisoners and their families are listening to this debate and are looking to us for what outcome they might expect from the consideration we are giving to this Bill, both now and no doubt on Report. Specifically, they have put their hope, in many cases, in resentencing, because it was so strongly backed by the Justice Select Committee in another place.

On the assumption that my noble and learned friend the Minister will reject this—he has made clear in the past that he is likely to—I think that it is incumbent on the Ministry of Justice and His Majesty’s Prison Service to be particularly vigilant in the coming period in supervising and supporting IPP prisoners as they react to what they might hear.

Finally, I second what the noble Baroness, Lady Fox of Buckley, said about the many NGOs that have backed reform. Obviously, one wants to refer particularly to the Prison Reform Trust for what it has done, as well as the Campaign for Social Justice. As she says, the video it produced has reportedly achieved 14 million views. I suggest that the public is more sympathetic to IPP prisoners than Ministers might imagine. I hope that they will reflect on that and find it in their hearts to move somewhat further on the amendments that we have been debating this afternoon than my noble and learned friend has felt able to do so far.

[Lord Thomas of Cwmgiedd (CB)]

My Lords, I add a few sentences to support what has been said so ably by the noble Baroness, Lady Fox, the noble Earl, Lord Attlee, and the noble Lord, Lord Moylan. The case for resentencing is compellingly set out in the Justice Select Committee report. I cannot improve on that, certainly not at this late hour, but there are two points I wish to make.

First, there is no doubt that the sentence was imposed for a huge variety of cases. Some people were sentenced to IPP who would have received a discretionary life sentence, and we do not seem to recognise that. The second thing we do not recognise is what Parliament and the Government have done to contribute to this. I recall looking at a number of cases where people were sentenced when the regime was at its most severe. They had characteristics that were alien to British justice. First, there was an assumption of dangerousness unless the judge disapplied it. Secondly, the judge had no discretion if the person was dangerous to send him to prison. Thirdly, it applied to offences that would be characterised, for offences in the Crown Court, as at a low level—two years. The particular cohort that was most unjustly dealt with were those sentenced between 2005 and 2008, when the law was slightly ameliorated.

Secondly, I recall going to Leeds prison in 2005 where I saw that the state had made no proper provision for what was about to overwhelm the state: that is, a large number of people who, by the terms of the sentence, were given the sentence. Over the ensuing years, there were a vast number of cases where people complained that there were not sufficient resources. Again, this was a failure of the state.

Then, as the noble Lord, Lord Clarke of Nottingham, has made very clear, there was another failure: a failure to deal with this problem by changing the law shortly after 2012. It is very important in looking at this matter to bear in mind our responsibility. It is all Parliament’s responsibility—and the Government’s responsibility for carrying it out. As I said earlier today, it is an enormous tribute to the noble Lord, Lord Blunkett, that he has accepted his responsibility for the failure. We ought to do the same.

I understand why, at this particular time, with an election pending, there is no realistic prospect of people being bold. I hope very much that the steps that the Lord Chancellor has taken may work—it has taken him a great deal of courage to go that far in reducing the tariff period. I hope that we can persuade the Minister that he will make further changes to ameliorate the injustice, but I am not very optimistic. If none of this works, we have at least laid the groundwork for the incoming Government to face up to this problem and remove what everyone accepts is a stain on the character of British justice.

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[Lord Bellamy (Con)]

My Lords, I compliment the noble Baroness, Lady Fox of Buckley, for the force and sincerity with which she put forward her views, as indeed have other noble Lords who have supported Amendment 167, which would go down the road of the resentencing exercise that we have been discussing.

In setting out the Government’s position, I find it hard to improve on the remarks that the noble Lord, Lord Ponsonby, just made. This is a situation where we are dealing with the potential release of IPP offenders, who have committed mostly very serious sexual or violent offences. One would be overriding the decisions that the Parole Board has already taken, in most cases on multiple occasions, and would be putting the judge in the most difficult position.

Indeed, it is not a resentencing exercise in any normal sense of the word because, in most cases, the tariff has already expired. It is essentially a question of trying to do something different, dressed up as a resentencing exercise, to release persons who have already been held, on many occasions, to be unsafe to release. It is very difficult for the Government to go down that road. Again, there is a real risk, if one does go on that road, of wrongly raising the hopes of those who have put their faith in what is, in the Government’s view, not an appropriate way forward.

I want to add just one or two points. First, as the Committee is aware, I have on previous occasions—and I will do so on future occasions—emphasised the pressures we have at the moment on the prison population. The Government would be only too pleased to create further space in the prison population, or to relieve those pressures by releasing certain prisoners, but we have to consider the interests of public protection. It is not a question of being frightened of the media or of cowering in fear of the Daily Mail; it is a question of the protection of the public.

Any responsible Government would have to think very hard before a process that would allow the release, or that was envisaged to achieve the release—perhaps even unlicensed, without supervision—of large numbers of people in this position. I fully accept that the situation is regrettable. I accept the comments made by the noble and learned Lord, Lord Thomas, that it is very regrettable that the whole thing arose in the first place. Terrible things may well have been happening back in 2005, but we are where we are. I do not know whether the noble and learned Lord wants to intervene.

[Lord Thomas of Cwmgiedd (CB)]

I have made my point; I will not reprise it again. The fallacy in both the Minister’s arguments is that he says they are dangerous, but actually the state has helped make them dangerous, if they are dangerous, by acting in the way in which it has. Normally, someone who has made a mistake accepts it and bears the consequences. I am not going to say any more because I will not persuade the Minister otherwise.

[Lord Bellamy (Con)]

My Lords, from the point of view of the Government, I am not in a position to accept the premise advanced by the noble and learned Lord. I hear what he says. I do not accept, as I think the noble Baroness, Lady Fox, implied at one stage, that there is anything wrong with the Parole Board processes. I think I heard the word “dodgy” at one point, but I may have misheard. The Parole Board is a body that the Government have complete confidence in in this respect. This exercise should remain with the Parole Board.

I will say again: can we please distinguish between the problem of the released cohort and the problem of the never released cohort? We seem to drift from one to the other a lot of the time. Cases such as those of Matthew Price and, I think, the case of David Parker, which was mentioned by the noble Baroness, Lady Fox, are cases where people have been recalled after having been in the community for many years. That will no longer happen. The question of the recall is very largely dealt with, or very substantially improved, by the Government’s amendments in this Bill. What we are dealing with primarily is the never—not yet—released cohort.

I say again, in the light of my noble friend Lord Moylan’s remarks about the expected possible reaction of those who are still in prison and how to be particularly vigilant in supporting IPP prisoners in the light of these debates and related points, that the action plan is intended to give people hope. It is focused on their future to prepare them progressively with a sentence plan, the psychology services support, and a multidisciplinary progression panel towards eventual release. I think he would accept, even now, that the action plan has made a difference already; I see him nodding. We will take that forward and, as I say, it may well be the case the Government will be in a position to propose to your Lordships that the idea of an action plan should have a statutory basis, that the broad terms of its content should be set out and that the Secretary of State should report to Parliament so that—whatever Government comes into power—we can continue on the process that we have already started. The resentencing exercise is not, in the Government’s view, the way to go.

On that basis, the amendments proposed by my noble friend Lord Attlee would not arise because we are not going down that road. I do not think I need to say anything further about them, save to remark that what is being proposed would impose a very significant burden on our existing probation services. For that reason as well, one would have to reflect very seriously before going down that route. I invite the noble Baroness to withdraw her amendment on this point.

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Moved by

[Lord Thomas of Cwmgiedd]

169: Clause 53, page 54, leave out lines 35 and 36
Member’s explanatory statement
This amendment seeks to ensure that the decision as to the composition of the Board is an independent judicial decision made by the Parole Board.

[Lord Thomas of Cwmgiedd (CB)]

This is the first of three very short amendments to deal with the independence of the Parole Board. I do not think—and I hope—it is not disputed that the Parole Board is a judicial body and independent. If that is contested, we shall we be here for much longer today—so I hope it is not. I assume it is not going to be.

The second issue is that, if a body is judicial and independent, that independence must be recognised. There are three ways in which Clauses 53, 54 and 55 breach the independence position. First, in Amendment 169, the intention is to remove the power of the Secretary of State to predetermine the membership of the board. We have been very successful with judicial bodies in this country in allowing the judicial body itself, or its president, to determine who sits on panels. I can think of no good reason to change that—unless, of course, the previous Lord Chancellor had other plans for the kind of body he wanted.

The second is the business of sacking the chair. I use the word “sack” as I think it is a good, earthy word for what the previous Lord Chancellor wanted to do. We are the nation that established the idea that Kings could not sack judges, at the end of the Stuart period. We led the way forward, and virtually every proper democracy has that principle. It would be absolutely astonishing if we regressed from that, away from the rule of law. This is a pointer to it: it is quite wrong and should be removed.

The third aspect is quite disingenuous: the desire to remove the provision in the Bill that the chairman of the board should not deal with individual parole cases. It is absolutely unintelligible. Why would you want to make the chairman of a judicial body incapable of dealing with cases? The reason for this was that it could then be claimed that, if the chair of the board was not dealing with cases, the chair did not have a judicial function, and that could therefore justify the sacking. This is both disingenuous and very bad in principle. The chair is turned, effectively, into a pay, rations and hiring functionary rather than a leader.

Secondly, if you are chairing a board dealing with parole, you want to lead it, to know what is going on in the cases, and you want views. You have to sit and do the cases. From my own experience, it is quite clear that, if you have a judicial leader who does not actually understand the business of the courts, the fellow members of the judiciary—in this case, the Parole Board—will have no respect whatever for them.

These are three short points; there is no more I can really say about them. They are all bad points in the Bill. This seeks simply to remove them.

[Lord Garnier (Con)]

My Lords, I am grateful to my former neighbour, the noble Lord, Lord Bach, for permitting me to jump the queue. I want to make some equally brief points to the points made by the noble and learned Lord just now. I will start with Amendment 171. This makes as much sense as requiring the Lord Chief Justice, as head of the judiciary, not to be able to sit in individual cases, either at first instance or at appeal; to deny the Master of the Rolls, who I believe is the head of the civil appellate system, the ability to sit on cases; to deny the chancellor of the Chancery Division the ability to sit on cases; and to deny the president of the Family Division the ability to sit on cases.

These are judicial functions which may have an administrative function as well. If we were really to go down a road whereby the shadow of Dominic Raab is to spring forward into the enlightened era of Alex Chalk, I think we would be making a mistake. That is enough about that.

None of the judicial officers to which I have just referred is removable on the say-so of the Secretary of State. Equally, the constitution should not suffer the embarrassment of having the head of the Parole Board, who is a judicial officer, being removed on the say-so of the Secretary of State. I have a suspicion that if Alex Chalk had written this Bill it would not have contained these clauses.

Amendment 169

“seeks to ensure that the decision as to the composition of the Board is an independent judicial decision made by the Parole Board”.

Again, to go back to my references to the senior judiciary, it is the Lord Chief Justice who deploys the judges within the court system, it is the Master of the Rolls who decides which judges in the appellate court should sit on which particular case, it is the Chancellor of the Chancery Division who decides which of the Chancery Division judges should do what, and it is the President of the Family Division who does the same in relation to Family Division cases. It strikes me as being a perfectly normal and respectable constitutional arrangement. It would be a pity for Mr Raab, who has now moved on, to be able to continue to control the system. He is gone; these should go as well.

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[Earl Howe (Con)]

I should be happy to do so.

Alongside this new power, we are setting out for the first time in statute the functions of the Parole Board’s chair. The intention is both to define the chair’s role as a strategic leadership role and to make it clear that the postholder does not play any part in the board’s decision-making when it comes to considering individual parole cases. The package of measures here, I am advised, ensures that the provisions that we are putting in place are consistent with the European convention.

The noble Lord, Lord Bach, asked me why the Justice Secretary will send only some cases to the Upper Tribunal, and whether he will delegate the power to officials. In line with other significant powers that the Secretary of State operates, such as the power to detain under Section 244ZB of the Criminal Justice Act 2003, which allows the SSJ to override a prisoner’s automatic release date and refer the case to the board, the operation of the power will be restricted to cases where it is considered necessary to take the not insignificant step of referral of a case via an operational policy.

It will be up to the Secretary of State to decide which of those cases they would like to refer to an independent court for a second check. We will develop criteria to ensure that this power is used only in those few cases where it is in the interests of protecting the public and maintaining public confidence. It will also be up to the Secretary of State, if he or she wishes, to delegate the power to senior officials, but we will ensure that there is a robust process in place.

I am of the view that retaining this clause—having a safeguard in case removal is ever necessary and being clear about what the role of the chair is—is vital. However, as I said at the start, I have listened carefully to what the noble and learned Lord and other noble Lords have said. I understand the concerns expressed. Without commitment at this stage, I undertake to consider the issues very carefully, in conjunction with my noble and learned friend, between now and Report.

[Lord Thomas of Cwmgiedd (CB)]

I thank the noble Earl for agreeing to take all these points to the Minister. There are two points I really want to make. First, it is suggested that these decisions are somehow quasi-judicial. I had assumed that two of our most basic rights are not to be locked up and not to have our freedoms curtailed by restrictions. Deciding on those points is judicial; there is nothing “quasi” about it. Therefore, how “quasi” has got into this is, to my mind, a complete misapprehension. I hope it can be corrected, because the protection of your liberty and your freedom to do what you do as an ordinary person is essentially something that a judge must decide and no one else.

Secondly, I hope the Minister—not the noble Earl—will think back to his own experience when he sat as chairman of various judicial bodies. I do not know who the Government have in mind, but it is utterly absurd to think that they could maybe appoint someone who has run a large department store—there may be one of those becoming vacant in a moment—someone who has been head of a particular branch of the Civil Service, a retired physician, or a person who has run a hospital trust. These are the kind of people who know absolutely nothing about the difficulties of making a decision. The chairman of the Parole Board has to do the business, and if that person does not do the business, no one—not the public and certainly not the members of the Parole Board—will have any confidence in them.

I have put the message quite strongly; I think it has been understood. I am sorry to have gone on a little bit longer on these points at this late hour. I must particularly thank the noble Earl for the very courteous and clear way that he dealt with this. I look forward to seeing him be a much better advocate than me in persuading the Minister to make a decision that removes all three of these clauses. I beg leave to withdraw the amendment.

Amendment 169 withdrawn.