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Criminal Justice Act 2003: Sentencing

Volume 697: debated on Tuesday 11 December 2007

asked Her Majesty’s Government whether they have made an assessment of the arrangements for the imposition and parole review of sentences of imprisonment and detention for public protection imposed under Sections 225 and 226 of the Criminal Justice Act 2003.

The noble Lord said: My Lords, I start by declaring an interest in that I am currently president of the Howard League for Penal Reform. My Question relates to sentences of imprisonment for public protection, or IPPs for short.


“a person aged 18 or over is convicted of a serious offence”—

that is, an offence carrying a penalty of 10 years or more—

“and … the court is of the opinion that there is a significant risk to members of the public of serious harm occasioned by the commission by him”—

or her—

“of further specified offences”,

the court is bound to—“must” being the word in the statute—

“impose a sentence of imprisonment for public protection”.

That provision is in Section 225 of the Criminal Justice Act 2003, with a corresponding provision in Section 226 for those under 18 who are convicted in similar circumstances.

The consequence of the IPP provision has been unpredicted, remains unpredictable and is shocking to many. There are no fewer than 153 serious offences specified as making a person eligible for an IPP. That may be contrasted with just 11 offences that bring into effect an automatic life sentence. The offences for an IPP range from manslaughter to all forms of sexual assault, affray, indecent exposure, and assault occasioning actual bodily harm. The Court of Appeal has held that courts should presume that anyone convicted of one of those offences and who has previous convictions is dangerous, unless that conclusion would be “unreasonable”.

We now have the unhappy spectacle of judges in Crown Courts, up and down the land, feeling obliged to pass sentences for public protection, yet saying in the same sentence that the person they are sentencing will not be considered for parole for a fixed period, which can be very low. My noble friend Lady Linklater may refer to this later. I hope that she will forgive me if I take a sentence from her speech, but I understand that there has been a case where the tariff was as low as 28 days.

To the sentenced person, IPP sentences are not abstruse. They are plain sentences that are indistinguishable to the sentenced person from a sentence of life imprisonment. They have no fixed date for their release. They have a vague promise of parole being considered at a future date. Yet, day by day, in courts up and down this land—I should add a further interest as a recorder of the Crown Court—judges are telling lies. Judges do not like doing that, but I am afraid that is the Government’s fault that judges are being forced to tell lies. Judges are, in effect, saying to sentenced persons that they are being sentenced to indefinite imprisonment while implying that their parole will be considered at the end of the tariff period. As I have said, that may be as low as 28 days. Yet almost no tariff periods have led to Parole Board consideration at the first opportunity as set out by the judge.

If I sentence someone who is told that they have an IPP sentence with a first parole date in, say, two years’ time, I know—but the defendant cannot be told—that there is no real likelihood of their parole being considered then. That has led to an unsatisfactory situation in the prisons. Indeed, it is estimated that, within a few years from now, there will be 25,000 prisoners serving indeterminate sentences. The result of that will be a massive logjam in the parole system, which could not conceivably be resolved if the present system continues.

There have been a number of such recent cases in the High Court. In the case that was decided this year of the Queen, on the application of Wells and Walker, against the Parole Board and the Secretary for State for Justice, Lord Justice Laws described the system as “shambolic”. It is rare to find judges using such terms to describe part of the criminal justice system. Lord Justice Laws also said that,

“to the extent that a prisoner remains incarcerated after tariff expiry without any current and effective assessment of the danger he does or does not pose, his detention cannot in reason be justified. It is therefore unlawful”.

Following that judgment, the Government were granted a stay pending an urgent application for permission to appeal to the Court of Appeal.

In another 2007 case, of the Queen, on the application of James, against the Secretary for State for Justice, Mr Justice Collins—another extremely experienced administrative Lord Judge—ruled that detention post-tariff is unlawful if there were no means by which dangerousness could be assessed. The court ruled that the person concerned should be released immediately, but in that case the order was also stayed pending a Court of Appeal hearing. Mr Justice Collins, again using uncharacteristic language for the judiciary, said:

“Because of the failings of the Government, a fairly large number of IPP prisoners are likely to be released if the Court of Appeal finds the detention unlawful”.

I welcome seeing the Minister, Lord Hunt of Kings Heath, in his place to answer on behalf of the Government. Your Lordships will know that he is almost always entirely reasonable, but it will not be sufficient for this debate if the noble Lord simply says, “Well, the Government have appealed, so this may not happen after all”. That is, chaos may not ensue. It is of course right that the Government have appealed. A distinguished Lord Justice taught me a simple adage at an early stage in my career: most appellants lose. It is likely that the Government will lose that appeal; in any event, even if they win it, the question will still remain and the chaos in the IPP system will continue.

I have read the Carter report, which makes some modest suggestions. However, bestowing a minimum IPP tariff of two years will tickle the problem but not begin to resolve it. The figure of 25,000 IPP prisoners that I mentioned being a few years down the road might be 23,000, but in all common sense that is probably at least 20,000 more than expected and, certainly, 20,000 too many. My noble friend Lord Avebury, who cannot be present, has sent me particulars of a case involving a young offender in Her Majesty’s Aylesbury young offender institution, who has passed his tariff period but is not able to qualify for consideration for parole—because the courses that he must complete in order to be eligible are not available to him in the Aylesbury young offender institution. One is bound to ask oneself: what is that young person doing in a place where he cannot go through the courses that can give effect to the intention of the judge who sentenced him. What kind of a system is this?

I could give the Minister a catalogue of several hundred such cases. Time does not permit, and I suspect that he is as well briefed as ever and is well aware of them.

I would like to speak at length, although there is not time to do so, about other aspects of IPPs. There is no regime to deal with what happens to people who are sentenced to IPPs once they are considered for parole. They are given no guidance as to how assessments of dangerousness are made. They remain on licence for 10 years after their release, but in many cases a licence of 10 years, with all that goes with it, is a complete waste of public resources. There is an automatic 10-year licence period. Surely each person released should be considered on a case-by-case basis.

This is a very serious position. It is what has led me and the Howard League to highlight it. I commend to noble Lords the Howard League’s report, Indeterminate Sentences for Public Protection. It is required reading to understand the problem and I hope—perhaps with confidence—that the Minister is at least aware of a summary of its contents.

My Lords, I am most grateful to the noble Lord, Lord Carlile, for giving us the chance to debate this important matter and apologise in advance if I should seem to deviate slightly from the precise focus of his Question. Not for the first time, I find myself straying with some trepidation on to ground that is normally the preserve of the professionals, but I have felt strongly about this for some time, so here goes.

As a layman, I have always understood that when the trial judge ponders the appropriate term of imprisonment for someone convicted of a serious crime, he takes into account the requirements of retribution, deterrence and rehabilitation in order to determine the correct net sentence—by which I mean the actual time to be served net of remission. The judge then, in court, passes the appropriate gross sentence.

In other words, if the judge thinks that five years actually behind bars is the punishment that best fits the crime in question, he passes a sentence of 10 years, of which one half will normally be remitted. In parentheses, I believe that 50 per cent remission is excessive and destroys public confidence and that the former remission of one-third should be restored, so that a gross sentence of only seven and one half years would be needed in that hypothetical case. We are heading further and further away from the principle of “honesty in sentencing” for which Mr Michael Howard called some years ago. However, I suppose that that is for another day.

Returning to my hypothetical example, after five years, and provided that he—or, occasionally, she—has not committed any further crime while in prison and has behaved reasonably well, he will have served in full the time deemed sufficient for the requirements of retribution, deterrence and, one hopes, rehabilitation, and should therefore be released. If he is none the less kept in prison, he is no longer being punished for what he has done but for what his past record suggests that he might do in future. In other words, he is de facto an internee, or someone held in preventive detention.

There may perhaps be a case for selective internment or, if you prefer, preventive detention, for those previously convicted of serious violent crimes. I am not competent to judge. To some extent, that would be comparable to indefinite detention in Rampton or Broadmoor. However, if that is to continue, it should surely be described as such and not disguised as something else, as it is at present. Moreover, it should be widely debated and then, if in principle agreed to, properly codified by an Act of Parliament. Above all, I submit, anyone so detained after his set term of punishment has expired should be entitled to as many prison privileges and comforts as are consistent with the safety and security of the prison staff and the public. I very much doubt that that happens at the moment.

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.

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 if prisoners sentenced to the IPP are not provided with the appropriate behaviour management courses and assessments, so that evidence can be presented to the Parole Board on whether they still present a risk. I understand that the Government are appealing the judgments. We will have to await the outcome.

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.

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,

“a general and systemic legal failure”,

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,

“a massive increase in the material required for the sentencing court”,

and, secondly, that there would be,

“submissions and argument in court about whether there is a sufficient risk of serious harm”.

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,

“a significant lengthening of terms of imprisonment”,

and that,

“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:

“The cost of supervising licences—presumably by the probation service—of those released”,

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”,

and for the cost of building,

“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,

“cutting back on rehabilitation schemes”.—[Official Report, 14/10/03; col. 770.]

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”.

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.

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 sure that the noble Lord will recognise that those great savings rarely appear in due course.

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.

The Lord Chancellor said:

“If we have to put more in I shall consider that”.

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.

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’ House but I agree with the noble Lord, Lord Henley, that a more considered debate on prison matters in general would be welcome. Subsequent to the Statement on the Carter review we had the Written Ministerial Statement on the Government’s response to my noble friend Lady Corston’s interesting report on women prisoners, so there is much to discuss.

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.

As noble Lords have already remarked, 3,550 offenders have received an IPP sentence since that became available. Noble Lords have identified some of the real practical challenges that we face as a consequence of some of those sentences. I will come on to those in a moment. I have no doubt that many of those sentences were entirely appropriate, but we know from the comments made by senior judges and others that the framework imposed by the 2003 Act may have restricted judicial discretion unduly and resulted in sentences when a standard determinate sentence might have been fairer and more appropriate.

Noble Lords have already referred to the lowest tariff of 28 days being imposed. I fully accept that it is very difficult to find a rationale for saying, on the one hand, that an offender has committed a crime that is so serious, and that he is so risky, that he could need to be locked up for the remainder of his life; and, on the other hand, that he could be released after 28 days. Even if that is a particularly stark example, there are plenty of other IPP sentences with relatively short tariffs, and I do not seek to run away from that at all. There is no doubt that one consequence is that the prison system has been struggling to treat IPP offenders as we envisaged when we drafted the legislation and as we wish offenders to be treated. It is true that we have not been able to offer offenders the level of sentence planning and access to behavioural programmes that we would have wished. In turn, that risks making it more difficult for offenders to satisfy the Parole Board—and I accept the comments made about the pressure on the Parole Board—that they are a safe prospect for release. In turn, that means that the numbers in prison are further increased by the low release rate. I do not seek to underestimate the challenge that that poses.

The noble Baroness, Lady Linklater, asked whether modelling was done. It was, and it would be fair to say that it was not far out in terms of the overall numbers. I would not underestimate the modelling expertise of the Home Office and now my department, having seen the modelling done by my old department, the Department of Health. These matters are difficult, but I am not unimpressed with the modelling that has been done.

My Lords, is the Minister saying that the modelling done by the Home Office, as part of a policy that has completely failed, happens to be rather better than that of any other government department?

My Lords, I did not say that at all. I said that modelling can be difficult, and that the actual numbers were not too far out. The short tariffs, which were not expected in the modelling, have caused the problem. I know that my noble and learned friend Lady Scotland discussed this, and responded in good faith in the way that was quoted.

The noble Lords, Lord Carlile and Lord Thomas, in particular referred to the cases that my department has lost in the courts. We are now awaiting the results of the appeals. The noble Lord, Lord Carlile, did not hold out much hope for the Government, but we will have to wait and see.

My Lords, I wonder whether the Minister might address this question in the few moments available. If the Government lose the appeals, which must be at least a 50:50 prospect, they will be forced to release prisoners who have reached their tariff period but who have not been assessed by the Parole Board. They will be released simply because they have reached that point in their sentence, whereas those who have been considered by the Parole Board and may have had a decision that is adverse to them—that they should stay in for longer—will be at a much greater disadvantage. What plans do the Government have to deal with this extraordinary position, which is now staring them in the face a few weeks away?

My Lords, we are now dealing with a lot of hypotheticals. We will have to see the outcome of the appeal and the nature of the ruling of the Appeal Court: the noble Lord would not expect me to say anything other than that. It is not as though we are putting our heads in the sand and doing nothing. The department is looking at contingency arrangements and operational changes. The noble Lord, Lord Henley, has already referred to the interim measure of allocating a further £3 million in the current financial year to help prisons to complete assessments and move offenders on to relevant offending behaviour programmes. Clearly, we are also looking at the detailed operation of IPPs through an internal service review to see how we can streamline the process for assessing and managing IPP offenders.

The noble Baroness, Lady Linklater, referred to a 3 per cent reduction in resources over five years. It is not as bad as that. It is a tough settlement—again, I do not seek to hide from that—of minus 1.7 per cent per year over the next three years. Within that, we have to improve the efficiency of the department. My noble friend Lord Carter has put forward some considered proposals about how we can drive more efficiency in the Prison Service.

My Lords, for the sake of clarity, I was referring in particular to the services available in the community. Certainly, the Probation Service is looking at cuts of the nature that I quoted, not the Prison Service.

My Lords, I am grateful to the noble Baroness for clarifying that, but I have to say that that is on the back of a considerable increase in real terms for the Probation Service since 1997. The figure that I have is a 70 per cent real-terms increase. Notwithstanding that, we clearly face a challenging position. However, we will obviously look at the resources very carefully.

Over that period, we have seen considerable increases in the resources spent on prison healthcare as a result of the transfer of responsibility to the Department of Health and on offender learning. The picture is not wholly bleak. There are examples of real progress within the Prison Service in relation to rehabilitation.

We will of course come soon to legislation. The report of my noble friend Lord Carter has clearly shown the way forward in introducing a minimum tariff of two years. We will introduce legislation to ensure that that happens. That will make a significant contribution to my noble friend’s demand management proposals. I do not accept that this is a question of massaging the figures, as the noble Lord, Lord Henley, said. The report of my noble friend Lord Carter is quite clear. To meet the challenge of the prison population projections of around 96,000 places required by 2014, he suggests a combination of supply increase and demand management. The IPPs will make a significant contribution to demand management. That is not massaging the figures. It is a very sensible approach in the light of experience. Noble Lords have posed some of the issues and problems that we face with IPPs, which I readily accept that we have to meet. But these are proportionate responses to a major challenge.

The noble Lord, Lord Carlile, referred to what he described as unpredicted and unpredictable consequences as a result of the legislative changes. The noble Baroness, Lady Linklater, said that this was unsustainable. The package of measures, the immediate changes to how the IPP system operates and the Carter proposals—which we will seek to put into legislation—will have a significant impact.

The Carter recommendation on a structured sentence framework offers a way of ensuring that there is a strong, transparent relationship between legislative policy, penal policy and resources, without in any way fettering the decisions of judges when they pass individual sentences. The noble Lord, Lord Monson, the noble Baroness, Lady Linklater, and the noble Lord, Lord Carlile, commented on prisoners with mental health problems. I commend to noble Lords the review that has been jointly commissioned by my department and the Department of Health to look in particular at the problems of offenders with mental health or learning disabilities, to see how, in appropriate cases, they can be diverted from prison to other services, and the barriers to such diversion.

The six happy months we spent debating mental health legislation taught me, if nothing else, the critical importance of dealing with the mental health problems of offenders. I hope that noble Lords, in taking forward what has undoubtedly been an extremely well informed debate tonight, will take the opportunity to contribute to the review by the noble Lord, Lord Bradley.

I hope that noble Lords will understand from the few minutes that I have had that the Government take this matter seriously. We think it was right to pass legislation on the basis of public protection. Clearly there are some practical issues that we have to face; we are facing up to them. I am grateful to noble Lords for their comments tonight.

My Lords, I beg to move that the House do now adjourn until 8.40 pm.

Moved accordingly, and, on Question, Motion agreed to.

[The Sitting was suspended from 8.37 to 8.40 pm.]