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7.55 pm
Baroness Linklater of Butterstone: My Lords, there are already two speakers from these Benches this evening whose knowledge and experience far outstrip mine, so I hope that I can add something useful to the subject. I must apologise for the fact that I will be echoing quite a lot of what my noble friend Lord Carlile has already said, because the briefing from the Howard League is excellent.
In this debate, we are talking about IPPs, whose name alone is enough to ring warning bells, and the experience of the use of them so far is giving further cause for concern. The word “indeterminate” would seem to mean something akin to “at Her Majesty's Pleasure”, which in turn means a sentence which can be one without end and might typically include those committed to secure hospitals such as Broadmoor because of extreme mental disturbance. Otherwise, in the absence of a capital punishment, the most severe sentence of all is a whole-life tariff, when people are sentenced to live out their lives in prison—which is still, mercifully, a small minority of the prison population, although we in this country have more people on whole-life tariffs than the whole of the rest of Europe.
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As we have already heard from my noble friend Lord Carlile, there are 11 offences that make a person eligible for an automatic life sentence, but these are normally set with time limits and a foreseeable end. In the case of an IPP, there are no fewer than 153 specified offences deemed to be very serious offences of a sexual or violent nature, normally carrying a penalty of 10 years or more. It would seem to be a classic and blatant case of net-widening when so many more offences can end in such an outcome as, or more serious than, a life sentence.
Like a life sentence, IPPs involve a minimum prison term, after which a prisoner will be expected to undergo various behaviour management courses designed to reduce or eliminate the risk that he is seen to present and will then be released at the discretion of the Parole Board. That release is on licence under supervision for at least 10 years and after that only if the Parole Board considers it safe to set him free. That supervision could theoretically otherwise last for life.
The presumption is that behaviour management courses of the kind done in a prison setting can produce a more law-abiding, less dangerous person once he gets out into the real world. The reality is that those courses are simply not available in the quantity necessary for those people to win their release. The Home Office has estimated that that would cost an extra £10 million. While the Ministry of Justice's budget is being cut and all related services are having to cut back on their budgets by at least 3 per cent year on year for the next five years, the likelihood of those courses becoming more available must be nil.
That is completely unacceptable. First, that anybody of sound mind could be detained—potentially indefinitely—because of something that he might do in the future rather than what he has actually done must be wrong. As the noble Lord, Lord Monson, said, there is a different category that such people could become, that of an internee, but that is not our starting point or where we expect to end. Secondly, it is a given among all who work in prisons that uncertainty about the future is one of the most destabilising situations that anyone could have to deal with, for prisoners and prison officers alike. Lastly, if the planning and resources are not there, imprisonment continues because of the failure of the Government to provide them, and not for any further fault.
As the noble Lord, Lord Carlile, has already flagged up, I have had a letter from a serving prisoner whose tariff was a mere 28 days but who was then unable to have a review by the Parole Board because the requisite service courses were simply not available to him. He has now served two years. He has recently been moved to a prison where there is a course and is hoping that he will be able to complete it in time for the next parole hearing. If not, he will have to wait another year. That is the only means by which he can demonstrate that he has changed and so win his release—all that following a basic sentence of 28 days. That is not justice.
We also heard from the noble Lord, Lord Carlile, that there has now been a series of High Court judgments that detention beyond the term of service is unlawful
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What are the guidelines accompanying the use of IPPs? As far as I am aware, the Sentencing Guidelines Council did not give advice on their application. I would like to ask the Minister what the role of the SGC was in the framing and application of IPPs and whether there was any modelling or serious projections made of their use before they were introduced. Did the Government expect the current, impossible situation in which we find ourselves today? Since April 2005, when IPPs became one of the available options to courts, there are now just under 3,000 prisoners serving these sentences—in just two years. Of them, 728 are under 21 years old and very few have been released. Official estimates are that the IPP population will reach 25,000 by 2012—almost a third of the entire prison population. As we have also heard, following Lord Carter’s report, the Secretary of State for Justice has announced that the minimum tariff should be raised to two years, which is, at least, an acknowledgement that things are getting out of hand. We are left today with a situation in which people are sent to prison on an IPP, to serve a tariff, but only with the possibility of release once courses are done—when courses are not available. Should they become available, then licence on supervision by community agencies—principally, presumably, the Probation Service—for 10 years will be expected, by a service that is facing huge cuts in its already overstretched current budgets, let alone one with resources for such extra demands.
One can conclude only that this initiative is fundamentally impractical, unsustainable and wrong. I sincerely hope that the Government will rethink all elements of what has turned out to be a practical and moral failure.
8.03 pm
Lord Thomas of Gresford: My Lords, Lord Justice Laws in the Court of Appeal case to which my noble friend Lord Carlile of Berriew has referred said that there had been,
in the treatment of the current 3,000 IPP prisoners. That is a disgrace. I hope that the Minister will acknowledge that.
In opening, my noble friend Lord Carlile said that these were unpredicted results. Indeed, I noted a Prison Reform Trust paper, published on 31 July of this year, which said:
“There was no significant debate about IPPs during the progress of the Criminal Justice Act 2003 in parliament. So, it is hard to know exactly what the government’s intention was in creating the sentence”.
As usual, people have looked at what was said in the Commons. If they debated it at all, I would be surprised. However, it was raised and discussed in your Lordships’ House. In particular, on 14 October 2003, at col. 770, I referred to the high cost of the proposed method of dealing with people who had not been properly assessed. I said, first, that it required,
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and, secondly, that there would be,
We have heard from the noble Lord, Lord Carlile, that the courts have a presumption that a person is dangerous, so it is on him to prove that he is not dangerous.
I said that the scheme envisaged,
- “the cost of extending the Parole Board and its bureaucracy to cope with what would be a massive increase in its workload”,
had not been assessed. I referred to:
and I asked where the money was coming from,
- “to pay for more court days, more judge time and the increased workload of defence and prosecution lawyers”,
- “new prisons to accommodate those prisoners who will be held for longer, to extend the Parole Board and to expand the probation service”.
I suggested that the only way that any money could be saved was by,
I was supported by the much lamented Lord Carlisle of Bucklow, by the noble Lord, Lord Campbell of Alloway, and by the noble Baroness, Lady Kennedy of The Shaws, who said it was “a scandal” and that the provisions would “ratchet up sentencing everywhere”. My noble friend Lord Carlile, Lord Ackner and the noble Lord, Lord Hylton, all supported my points. What was the Government’s response at that time? They said, “It will be all right, don’t worry about it”.
The first point that was made, I am sure in utmost good faith, by the noble Baroness, Lady Scotland of Asthal, was that it was intended to reduce the pressure on prisons by allowing other people to go. There was to be a greater use of community service and community penalties—in fact, we now know that community penalties and offenders fined, as a proportion of those convicted, have gone down, according to official figures last year.
The noble and learned Baroness, Lady Scotland, said that,
- “by introducing these provisions, it is not the intention of the Government to accelerate or exacerbate the prison population”.—[Official Report, 14/10/03; col. 775.]
That prison population then stood at 72,000, or 10,000 less than it is today.
The noble and learned Baroness, Lady Scotland, said about rehabilitation,
- “that the whole thrust of what we have done is to make it clear that every intervention with any individual who comes into contact with the criminal justice system has a meaning. From the moment a person first offends or first appears before the criminal justice service, he or she will have an intervention which will include an opportunity for rehabilitation, restoration and restitution”.
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That is the basis of the Government’s policy at that time. It is obvious that that policy has completely failed. The noble and learned Baroness said that she appreciated that “additional resources” would be needed for probation and that, when offenders were released, they would have,
- “a programme that would enable them to make the best use of their release and rehabilitation back into the community”.—[Official Report, 14/10/03; cols. 778-79.]
When one realises the way in which this policy was first promulgated and the reasons that were then made, and then compares it with reality, it is clear that the Government have wholly failed in dealing with IPP sentences. Their policy is, as the noble Lord, Lord Monson, said, that a person should be punished for what he might do. My noble friend Lady Linklater made the same point.
There was a time when the criminal justice system was designed to discover who had committed a criminal offence and to punish him to give him his just deserts. It was hoped that in that process there would be the resources to assist him to rehabilitate himself. Instead, the Government now try to manage future risk possibilities that might occur in relation to individuals in the future. A culture is growing that has moved the criminal justice system away from punishing people for offences that they have committed to trying to control future behaviour, which can be seen in ASBOs, serious crime orders and all the stuff that comes out of the Home Office.
If the Government, instead of trying to manage risk in this way, tackled problems on estates at their roots—as I seem to remember Mr Tony Blair did when he was the shadow Home Secretary—and put resources into the people on that estate rather than handing out ASBOs piecemeal to offenders, the criminal justice system might not have to carry this responsibility of avoiding risk and we might have less crime in our community. I wait with interest to hear what the Government have to say in response.
8.11 pm
Lord Henley: My Lords, perhaps I may start by offering a tiny bit of advice to the noble Lord, Lord Thomas of Gresford, who expressed some doubt about whether these measures were debated much in the House of Commons when the 2003 Criminal Justice Bill went through. I did a little research today and I could not find much reference to it at all. The noble Lord may remember that discussion of the Bill was guillotined in another place in a manner that would have made Robespierre proud. Although I was not involved—my noble friend Lady Anelay and others on these Benches were involved in that Bill—I remember that we had to put a certain amount of that Bill to right and had to discuss certain parts which were completely undiscussed in another place.
Another small piece of advice I want to offer to the noble Lord, Lord Thomas—I dare say that it is unnecessary because he will have picked this up over the years: it is always worth being fairly suspicious of a Minister when, in promoting a particular measure, he assures you that it will lead to great savings. I am
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We are grateful to the noble Lord, Lord Carlile, for introducing this debate. I am only sorry that it is at this time and is taking place in such an empty House compared to, for example, the Question today on prisons when it was difficult for anyone to get into the Chamber because there was so much interest. Perhaps the noble Lord, Lord Carlile, would like to come back to this at another time when we can debate it with slightly more people. Having said that, we obviously will return to this issue when we debate the Criminal Justice and Immigration Bill. Following the Carter report which the Minister presented to us last week, he and the Lord Chancellor gave us an assurance that they would bring forward various changes to IPPs and therefore would amend Sections 225 and 226 of the 2003 Act when that Bill comes before us. It might be that I want to reserve quite a lot of my fire for the debates that will no doubt take place. I imagine that Second Reading will be in January, with Committee and Report stages later in the year.
Having said that, I have a number of questions for the noble Lord, to which I would be grateful for an answer. It is depressing that one of new Labour’s flagship pieces of legislation is already being pulled apart. The Criminal Justice and Immigration Bill, to which I referred, will make changes to the 2003 Act. I understand that other parts of the Act have not been implemented and that we now have a wholesale review of the use of indeterminate sentences for public protection. That is further indication that considerable amounts of criminal justice legislation coming out of the Home Office in the past few years have not been thought through as well as they should have been. As I have said, we live in hope that the new Ministry of Justice will manage a slightly better job. The Minister is smiling, but I do not know whether that is in desperation. We look forward to some improvement from the glory days—as we might put it—of the Home Office.
Given that there are only finite amounts of resource and an ever-growing prison population, even if the Government admit that they cannot predict exactly what figure it will grow to, we know that we will have an evermore over-crowded estate even with the new places being promised. Does that mean that it is even more likely that prisoners serving IPPs will find it increasingly difficult to access the courses they need in order to prove that they have been rehabilitated? The noble Lord, Lord Carlile, mentioned a prisoner in Aylesbury who could not get access to the appropriate courses and therefore could not be processed beyond the stage that he was in. We know also from evidence that the Lord Chancellor has given to the justice committee in another place that £3 million more has been given to help prisoners access the courses that they need to aid their rehabilitation and thus their release.
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Given that the head of the Public Protection Unit, Anthony Robson, is alleged to have said that it would cost the Government £10 million—the figure quoted by the noble Baroness, Lady Linklater—to fix the problem of delay, surely the need for more money is inevitable. I hope that the Minister will confirm this evening that that extra resource will be made available.
It looks as though this is yet another clear example of the Government failing to plan for the future. The Minister will be aware that Sir Igor Judge has said that the Parole Board might need 100 judges to deal with the backlog and to meet the number coming through because of the numbers currently on these tariffs that will need to be assessed before release. Surely that problem did not creep up on the Government overnight, just as the problem of the appointment of new judges has not crept up on the Government overnight. The Government ought to be doing something to address those issues.
Figures seem to indicate that something like half of all the sentences given for threats to kill, child sex offences, arson or sexual assaults resulted in a tariff of less than two years. If the Government press ahead with their plans—and obviously this is something which we will debate in the Criminal Justice and Immigration Bill when it comes through—these people will not be eligible for IPPs given that their sentence length will be below the threshold. Does the Minister accept that there is a reason why judges sentence people to IPPs? Judges might have problems with them but they are presumably sentencing to that because they feel those people to be dangerous. Why are the Government so keen to remove that power from the courts? Is it merely yet another attempt by the Government to reduce the numbers in prison and to reduce those numbers artificially so as—I put it this way last week when debating something similar—to massage the figures yet further downwards?
We will have ample opportunity to debate these matters in what I hope will be a fuller House when the Criminal Justice and Immigration Bill comes before us next year. In the mean time, I hope that the Government can consider these questions, particularly the questions of more money for the appropriate courses for those on IPPs, and I hope that the Minister will be able to answer some of those questions tonight.
8.19 pm
The Parliamentary Under-Secretary of State, Ministry of Justice (Lord Hunt of Kings Heath): My Lords, first I congratulate the noble Lord, Lord Carlile, on securing this debate. We have been debating these issues for about a year, starting with the Mental Health Bill, which covered a number of very interesting issues connected with the criminal justice system, and it is a great pleasure for me to respond to his typically informative, assertive and very interesting contribution. We had 10 minutes for the Oral Question this morning as the Question on international waterways went rather quickly. That shows the scale of interest in prison issues. We will debate some of these matters in the Criminal Justice and Immigration Bill when it reaches your Lordships’
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In view of what the noble Lord, Lord Monson, said, it is important to set out the background to Sections 225 and 226 of the Criminal Justice Act. As many noble Lords will recall, these measures were introduced as a package of public protection sentences in response to cases where offenders who had previously been convicted of sexual or violent offences that were not sufficiently serious to keep them in prison for a great many years went on to commit graver offences. Ministers decided that further action had to be taken to enhance public protection to enable those who presented a real risk of serious harm to the public to be detained in prison until the risk had reduced sufficiently to make them safe to release. I know that the noble Lord, Lord Thomas of Gresford, in particular disagrees with that assessment. That is fair enough. I am sure we will debate it again and again, but it is important to set out the context in which the legislation was brought about. I do not need to go into great detail about what the law says because the noble Lord, Lord Carlile, set that out very clearly. However, I want to respond to the noble Lord, Lord Henley, who talked about the glory days of the Home Office. Of course, he would know. There is a legitimate question about the number of Criminal Justice Bills that have been passed in the past 20 years. The reality is that there have been many—my reckoning is 68 Bills since 1997. I will not go into the reasons for that or ask the noble Lord, Lord Henley, to respond to me today on the previous Government’s record. I will say, however—and I will come back to this in a moment—that the recommendation by my noble friend Lord Carter of a structured sentencing framework is very important, and will be the subject of a working group led by a member of the judiciary, which I hope will provide a very helpful rational basis on which to consider criminal justice legislation and its interrelationship with penal policy in the future.
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