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Release of Prisoners (Alteration of Relevant Proportion of Sentence) Order 2019

Volume 801: debated on Wednesday 22 January 2020

Motion to Approve

Moved by

That the draft Order laid before the House on 14 October 2019 be approved.

Special attention drawn to the instrument by the Secondary Legislation Scrutiny Committee, 3rd Report, Session 2019

My Lords, I will also speak to the Criminal Justice and Courts Act 2015 (Consequential Amendment) Regulations 2019.

These draft instruments form part of the Government’s wider plans to reform sentencing and law and order, through which we aim to strengthen public confidence in the criminal justice system. The purpose of these instruments is to ensure that serious violent and sexual offenders serve a greater proportion of their sentence in prison, and to put beyond doubt that these release provisions will apply in relation to offenders receiving consecutive sentences, ahead of further changes the Government will set out in a sentencing Bill.

Under the provisions of the Criminal Justice Act 2003, all offenders sentenced to standard determinate sentences must be automatically released halfway through their sentence. These orders move the automatic release point for the most serious offenders who receive a standard determinate sentence of seven years or more. Instead of being released at the halfway point of their sentence, they will be released after serving two-thirds of their sentence.

A key component of our criminal justice system should be transparency, but currently, a person convicted of rape and sentenced to nine years in prison will be released after only half that sentence. Victims and the general public do not understand why they should serve only half their sentence in custody. While improved communication about how a sentence is served will help, this measure aims directly to improve public confidence by making sure that serious offenders will serve longer in prison.

Some may suggest that the whole sentence should be served behind bars, but this would not serve victims’ interests. It is crucial that when someone is given a custodial sentence, they spend part of this sentence under supervision in the community. The licence period has long been an integral part of the sentence, and it should remain so. It provides assurance to victims through the imposition of conditions to protect them such as non-contact conditions and exclusion zones, through supervision by the probation service and through the power to recall that offender to prison if they breach their conditions. It is also an important period for rehabilitation, giving the offender the chance to address their offending behaviour and undertake activities that can help to prevent them reoffending. So, a licence period must remain.

However, it is not in the interests of public protection that when someone has committed a serious offence for which they rightly receive a long sentence, such as grievous bodily harm with intent or rape, they are entitled to be released half way. This instrument aims to address this by moving the release point for these serious offenders so that they will serve two-thirds of their sentence in prison and the remainder on licence. Retaining them in prison for longer will provide reassurance to victims, protect the public and restore public confidence in the administration of justice. It will also provide longer periods for these offenders to undertake rehabilitative activity in prison and prepare effectively for their release and resettlement in the community.

Automatic release from a fixed-term custodial sentence is a long-established measure. The Criminal Justice Act 1991 made a clear distinction between long-term and short-term prisoners. Short-term prisoners would be released automatically at the halfway point of their custodial sentence. Under Section 33(2) of that Act, long-term prisoners could be released automatically only at the two-thirds point of the custodial period. The 2003 Act removed this distinction between sentence lengths, requiring all standard determinate sentence prisoners to be released at the halfway point.

This order is the first step in restoring that distinction, beginning with those sentenced to standard determinate sentences of seven years or more, where the offender has been convicted of a serious sexual or violent offence, as specified in parts 1 and 2 of Schedule 15 to the 2003 Act, and for which the maximum penalty is life. Moving the release point to two-thirds for these offenders will correct what this Government consider to be an anomaly in the current sentencing and release framework.

Take the example of an offender convicted of rape. They could receive a standard determinate sentence, or, if they are determined by the courts to be dangerous, an extended determinate sentence. If they are given an extended determinate sentence with a custodial term of nine years, they could spend the whole custodial period behind bars if it was necessary for the protection of the public, but the Parole Board could consider them for release on licence after two-thirds of that period—namely, six years. However, if they were not assessed to be dangerous but had still been convicted of this very serious offence and sentenced to a standard determinate sentence of nine years, currently, they would be released after four and a half years. This measure will bring the two sentencing regimes closer into line, so that the offender could be released only after six years, ensuring that offenders committing these grave offences serve time in prison that truly reflects the severity of their crime.

We are starting with those sentenced to seven years or more because this strikes a sensible balance between catching those at the more serious end of the scale and allowing time for the change to embed sustainably. While the measures will apply to anyone sentenced to a standard determinate sentence of seven years or more for a relevant offence after the orders commence, the effects will not begin to be felt until nearly four years later—that is, until we approach the stage at which the first affected prisoners reach the halfway point of their sentence and remain in prison rather than being released. The impact will be felt gradually; our best estimates are that this will result in fewer than 50 additional people in custody by March 2024, rising to 2,000 over the course of 10 years.

The House’s Secondary Legislation Scrutiny Committee has drawn attention to the impact of this measure. I am content to offer assurances that this Government will act to ensure that the additional demands on HM Prison and Probation Service will be met. We will continue to invest in our prisons, both to build the additional capacity of 10,000 places announced by the Prime Minister—as well as the 3,500 places already planned at Wellingborough, Glen Parva and Stocken—and to undertake maintenance across our prison estate to manage the anticipated increase in demand. We have also invested significantly to increase staff numbers, recruiting between October 2016 and September 2019 an additional 4,581 full-time equivalent prison officers, thereby surpassing our original target of 2,500. We will continue to recruit officers to ensure that prisons are safe and decent, and to support both the current estate and planned future additional capacity.

Our impact assessment is based on assumptions that judicial and offender behaviour will continue unchanged, although of course, that cannot be certain. We are putting in place mechanisms with our partners across the criminal justice system to monitor the impact of the additional officers and give us the ongoing and future insight necessary to allow us to plan the prison estate. As these offenders spend more of the sentence in prison, correspondingly less time will be spent under probation supervision in the community.

These measures will enable us to take swift but sustainable action ahead of the wider package of reforms that the Government intend to bring forward in the sentencing Bill. They are not retrospective and will apply only to those sentenced in England and Wales on or after 1 April 2020.

Not proceeding with legislation would mean continuing with a system which fails properly to ensure that serious offenders serve sentences that reflect the gravity of their crimes and continue to be released halfway through their custodial period. In our view, that is not in the public interest, nor does it promote confidence in the justice system. I beg to move.

My Lords, for some time this country has had the dubious distinction of having among the highest number of prisoners relative to population in Europe, with the numbers having risen by almost 70% in 30 years, with the vast majority of those, some 60%, being imprisoned for non-violent crimes. Moreover, the length of sentences has increased substantially, with 2.5 times as many people being sentenced to 10 years or more in 2018 as in 2006. On average, those receiving mandatory life sentences spend 17 years in custody, an increase of four years since 2001, while the average minimum period imposed for murder rose from 12.5 years in 2003 to 21.3 years in 2016. And yet, typically, the Prime Minister chooses to play to the gallery by reviewing sentencing policy without any consultation beyond the inner workings of the Ministry of Justice, and emerges with proposals for a draconian increase in the length of sentences which is likely to increase substantially the problems faced by an overworked and understaffed Prison Service, and indeed by the majority of prisoners.

As the Prison Reform Trust has pointed out:

“No evidence is given about the re-conviction of people currently released from these sentences”

and there is a risk that

“the people affected will spend a shorter period under the supervision of the probation service after release.”

The trust points out that reconviction rates are indeed lower for those serving more than four-year sentences, but there appears to be no evidence that sentences of seven years or more lead to any further reduction in reoffending on release.

The trust also reveals that the Ministry of Justice’s own research discloses that, when they are given the full facts of individual cases,

“the public tends to take a more lenient approach than sentencing courts.”

Moreover, they are likely to be confused by the fact that, when two convictions lead to consecutive sentences of less than seven years but with a total of more than seven years, the new provisions will not apply. And, of course, it is in any event open to the trial judge to impose longer sentences where this is deemed necessary.

As the trust rightly points out, there are other and better approaches to combating potential reoffending, not least by tackling the problems of the understaffed probation service. It rightly points out that the Chief Inspector of Probation has raised the issue of unacceptably large case loads for officers responsible for the supervision of long-serving former prisoners. Typically, no detail has been supplied of the additional costs of providing the offender management of those in custody that the new regime will require. Can the Minister supply any information about the relevant staff numbers and the costs involved?

For that matter, is he able to provide an estimate of the costs likely to be incurred by local authorities to meet the needs of families struggling for even longer periods without the income of an imprisoned partner or parent? What assessment has been made of the impact on prisoners’ employment possibilities after serving longer sentences and the consequential cost of benefits if, as seems increasingly likely, they find it even more difficult to find employment after a longer period of imprisonment?

Other financial questions arise. Four years ago the Government declared that they would provide an extra 10,000 prison spaces. All of 200 have been created. How many places will be required now to meet the need created by this order? How long will it take to provide them? What is the estimated cost of their provision and of the necessary increase in staffing? To what extent does the estimated increase in prison numbers of 3,200 by March 2023 reflect this new policy—or did that increase precede the policy contained in this order?

The last decade has seen a shocking worsening of conditions in our prisons. Sexual assaults quadrupled between 2012 and 2018; 117 prisoners have died having used or possessed new psychoactive substances; self-harm incidents rose from 23,158 in 2012 to a staggering 55,598 in 2018, with women disproportionately affected; and assaults rose dramatically, tripling to more than 10,000 on staff between 2013 and 2018. Yet staff numbers were cut by 26% between 2010 and 2017-18—albeit with some partial restoration since then. But—this is surely alarming—54% of the officers who left the service last year had served less than two years. What, if any, attempts were made to understand the reasons for this drastic loss of staff in such a short period and to avoid its repetition? Currently, 35% of staff members have been in post for less than two years and only 46% have served for more than 10 years. What, if anything, is being done to address this disturbing position and what, if any, is the difference between privately and publicly managed prisons in those respects?

In 2018, 58,900 people were sentenced to prison, 69% of them for non-violent crimes. Of those who received custodial sentences, 46% served six months or less. Is it not time to review the utility of such sentences against alternative measures? Would it not be better to secure greater investment in the probation service and the youth service as an approach to tackling the problem?

Should it not be a priority to promote purposeful activity for those sentenced to imprisonment? Just two in five prisons received a positive rating for this in 2017-18, while the quality of teaching and learning in prisons has declined, with the number of those rated as good reduced to 42%. Some 62% of those in prison had a reading age of 11 or lower in 2017-18. What will the Government do to address this serious situation, which is mirrored in a significant fall in the number participating in education while in custody?

There are serious matters to be addressed in our Prison Service. Will the Minister use his influence to persuade the Prime Minister to address them rather than play to the gallery with a populist approach that at best will achieve nothing and is likely to make matters worse, not just for prisoners but for prison staff and society as a whole?

My Lords, my contribution will be very brief. I support the principle enshrined in these regulations, but I share and strongly echo two concerns expressed by the noble Lord, Lord Beecham—and I do so as one who was until relatively recently on the monitoring board of a local prison.

My first point relates to the availability of relevant courses for prisoners to take in order to demonstrate that they can be safely released. When I was on the monitoring board, I was very concerned by the fact that a number of IPP prisoners were not able to find courses that could demonstrate that they were safe to release. I hope, therefore, that the Minister is able to say that resources will be dedicated to the provision of relevant courses.

The second and related point has already been made by the noble Lord, Lord Beecham: the longer a person stays in prison, the more difficult it is for them to be reabsorbed into the community and, more particularly, the more difficult it is for them to get a job. When I was on the monitoring board, I was very concerned by the lack of meaningful out-of-cell activity, particularly in the field of education and the acquisition of work skills. Therefore, I very much hope that my noble friend is able to tell the House that the Government will increase the provision available to prisons to provide for meaningful out-of-cell activity, particularly in the field of education and the acquisition of relevant work skills, which will enable prisoners, when released, to be absorbed back into employment.

My Lords, this order is a populist response to perceived public concern and uninformed press comment. Lacking any genuine evidence base, it is, I regret, one among several policies for putting more people in prison, for longer, without any proven justification. The only possible argument in its favour is the simplistic one that individual offenders will be in prison for longer and so personally unable to commit further crimes during their extra time inside.

The impact assessment contains this core justification for the Government’s proposal. Referring to the serious offenders affected, it states:

“They have been given a lengthy sentence to reflect the seriousness of their offence, and, because these are the most serious types of offences with the gravest of consequences, they should therefore serve a greater proportion of their sentence in custody.”

That is a complete non-sequitur, because it attempts to justify counting the seriousness of the offence twice over: once when the judge passes sentence for the serious offence, and again when increasing by a third the proportion of the sentence to be spent in custody. Put simply, you get more time for committing the serious offence—and then even more time for precisely the same reason.

Members of this House and across Parliament, and clear majorities among academics in the field and legal professionals, have long argued, as did the noble Lord, Lord Beecham, that we imprison too many people in this country and for too long, and that we must reduce the prison population to improve rehabilitation. For serious offenders we have argued for a reformed and functioning probation system; more through-the-gate supervision prior to and following release; more, and more effective, supervision of prisoners after their release; more use of early release, through release on temporary licence and home detention curfew schemes; and reducing sentence inflation in the courts. All these steps would help former offenders turn their lives around.

We have regularly debated overcrowding. Our prison estate is still both packed and dilapidated, with degrading and inhumane conditions in many prisons. Overcrowding has been matched by understaffing, so prisoners have spent far too long cooped up in cells that are too small because staff have been unable to manage or provide adequate education, vocational training, meaningful work or sport and leisure activities—a point made by the noble Viscount, Lord Hailsham. As if these failures of our present regime were not enough, issues of mental health and drug and alcohol addiction are addressed inadequately or not at all—and these problems are often worse for women in custody.

It is hardly surprising, then, that this toxic cocktail of neglect and underresourcing has led to a crisis of ever-increasing violence in our prisons, with appalling records set nearly every year for assaults by prisoners on other prisoners and staff, incidents of self-harm, suicides and homicides. It is a tragedy that good work done by prison governors and staff who seek to implement best practice conscientiously and selflessly is undermined by a pervasive bad atmosphere, low morale and failure of rehabilitation across the prison estate. Yet, against this background the Government introduce a measure, with no hard evidence to support it, that will increase the prison population by around 2,000 in a decade, at an annual expected cost of £70 million, with a capital building cost at present rates of £440 million. That is on top of an expected increase flowing from the recruitment of 20,000 more police officers.

The impact assessment accepts that there is a risk that delay in providing the new places may mean that the extra capacity required will be too late or simply insufficient to meet demand. Will the noble and learned Lord say what evidence the Government have taken into account of the risk of overcrowding getting worse, pending the provision of extra prison places? Are the Government to provide extra staff to improve prison staffing levels for the greater number of serious violent and sexual offenders in custody for longer?

Furthermore, the impact assessment takes into account an expected reduction in the cost of probation for 2,000 former offenders, who will have a reduced period on licence post-release, down from half sentences to one-third, representing a reduction of 34% in the time spent on licence. This will lead to an estimated saving of £8 million in reduced case load, but what it does not take into account is all the evidence that supervision for longer periods on licence helps to get former offenders reintegrated into their communities and back into jobs, housing and their families. That reduces reoffending and cuts not only the cost of crime but the number of future victims of crime. A policy intended to help the victims of past offences risks increasing the number of future victims.

The impact assessment recognises this danger and makes two valid points. The first is that longer periods in prison mean longer separations from prisoners’ families. Successful return to family life protects against reoffending and longer separations increase family breakdown. The social and financial costs of family breakdown in human misery, risks to children, risk of homelessness and increased calls on social services, taxation and benefits are considerable.

The second point made in the impact assessment is that the Government acknowledge that shorter periods on licence support former offenders’ transition into the community, a point again made by the noble Viscount, Lord Hailsham. The impact assessment claims that this is an “unknown” but accepts that there is a risk that this could increase demand on prisons to provide offending behaviour interventions in custody and reduce the probation capacity to provide the full range of rehabilitative services. One wonders how the Government could claim that this is an unknown, when all the evidence is that these risks are clear and real.

This is a bad instrument, and I regret that it reflects badly on the instincts of the Government who introduced it.

My Lords, as has already been said, this order implements a commitment made by the Prime Minister in the summer of 2019. That commitment was made as part of a review, conducted not after a public consultation—which might have been expected on an issue with such major implications—but merely as an internal Ministry of Justice exercise.

The Secondary Legislation Scrutiny Committee, in its report of 30 October 2019, drew the House’s attention to the fact that the order represents

“one piece of a large and complicated jigsaw.”

Among the other pieces are: the announced sentencing Bill, to be preceded by a White Paper on sentencing more generally; the programme to build 10,000 additional prison places, announced in 2016 and repeated by the Prime Minister in 2019; the announced recruitment of 20,000 more police officers; and the royal commission on improving the efficiency and effectiveness of criminal justice system processes, announced in the 2019 Queen’s Speech. The Secondary Legislation Scrutiny Committee suggested that this House may wish to ask the Minister—which I now do—for more information about how all these pieces fit together.

Last week, the Ministry of Justice released the horrifying statistic that 58% of UK prisons—68 in total —were overcrowded, nine of them by more than 50%. This is not a situation that is likely to be rectified quickly yet, by this order, the Government are knowingly adding another 2,000 prisoners. The Chief Inspector of Prisons is continually drawing attention to the lack of purposeful activity in prison and the number of prisoners who spend all day locked up in their cell doing nothing. One factor leading to this situation is the lack of staff, not least because the Government wilfully dispensed with 80,000 years of operational experience. It is all very well to talk of recruiting additional numbers, but in addition to being inadequately trained, inevitably new recruits are inexperienced and, being frequently subject to horrifying assaults, too many are leaving early.

Frequently in this House I have commented on the poor quality of impact assessments. The one accompanying this order is no exception to that stricture, because only two options are examined: take it or leave it. However, there is what I might describe as a common-sense third option: I urge the Minister to defer until the issue can be properly examined in the context of the “large and complicated jigsaw”.

I have already mentioned the lack of any public consultation about what should be, to quote Erskine May’s definition of the affirmative procedure,

“a substantial and important piece of delegated legislation”.

There has been only an internal review at the Ministry of Justice. The wide implications of the issue, and my suspicion that the proposal results from a confusion about what should be done with terrorist prisoners—highlighted by the tragic events at the Fishmongers’ Hall—reinforce my plea for implementation of the order to be deferred until it has been considered in the context of all related and relevant issues.

My Lords, my contribution can be brief. Having heard the speeches of noble Lords who spoke before me, and anticipating who will speak after me, I am not sure that I have a huge amount to add.

I begin by declaring my interest as a trustee of the Prison Reform Trust. I thank it for providing me with the same briefing that assisted the noble Lord, Lord Beecham, in his remarks. There is much to be gained from what it has told us, much of which the noble Lord faithfully recited. I also put in a preliminary plea to the Government—with some diffidence, seeing the noble and learned Lord, Lord Judge, in his place—to bring in swiftly the sentencing consolidation measures of the Joint Committee which the noble and learned Lord chaired at the end of the last Session.

I say that not only because what we achieved in that committee is worth getting on with but because, as a former Crown Court recorder—that is, a part-time judge—I know that sentencing is probably the most complicated thing that a Crown Court judge has to cope with. It is all very well if you are a High Court judge dealing predominantly with life sentences, but if you are a more junior member of the judiciary you deal with far more complicated sentencing arrangements. Therefore, the sooner we get what I call the “Judge Bill” into law, the better.

I largely agree—in fact, I think I wholly agree—with all that has been said so far, but there are a number of things that I want to point out, based on what I see in the papers introduced into this debate by the Government through the impact assessment for this statutory instrument. The first point I want to query is to be found towards the end of the document when it sets out only two policy options. Option Zero is do nothing—that is, make no changes to the release point for serious offenders. Option 1 is:

“Legislate to move the automatic release point for serious offenders from halfway to two-thirds of the custodial period.”

That is a well-known Civil Service trick. You present the Minister with two options. Sometimes, if you are generous, you present him with three, two of which are useless. In this case, one is completely unacceptable, so—guess what?—the Minister chooses the option that is required of him.

That is fair enough. I have no constitutional objection to Governments altering, through Parliament, the way in which the law on sentencing is achieved. That is the point of Parliament—it can change the law on this, that and the other, and if the Government have a majority for what they intend to do, that is fair enough. That begs the question: is it wise to do what a Government propose to do? All the policy objectives set out in this document are, of themselves, either uncontroversial or unobjectionable for some other reason. For example, it says that requiring offenders in this category—that is, the more serious offenders—sentenced to seven years or more to be released after serving two-thirds of their sentence more closely aligns the release provisions with those of similarly serious offenders who receive an extended determinate sentence. Well, yes it does—but so what?

More important is what we do with the prisoners while they are in prison. If a prisoner is given a 15-year sentence and serves 10 years, as opposed to six and a half or seven, and you do nothing with him while he is in a prison, either for the halfway or the two-thirds period of the sentence, and you release him illiterate, still a drug addict and still suffering from mental health problems, and he is wholly unfit for employment and incapable of looking after himself or his dependants, we have achieved nothing. Although the public might initially have been persuaded that tougher and longer sentences will make them feel safer—although I query whether they actually think that—once the unrepaired prisoner is released, he may well be as much of a danger to the public as he was when he committed his first offence.

Nothing that I say is original to me. I first studied prisons policy at the feet of the noble Lord, Lord Ramsbotham, when I became the shadow Prisons Minister under David Cameron’s leadership of the Opposition. I confess that I became somewhat evangelical about the subject of prison reform. As I said in my speech to this House on 8 January during the Queen’s Speech debate, I visited well over half of the adult prisons, young offender institutions and secure training units in England and Wales during that period. I repeat that I saw pockets of excellent work by really dedicated and excellent public servants, be they prison officers, prison governors, teachers, medical staff or experts in other forms of drug and alcohol addiction.

However, there was a lack of consistency. There was such a massive difference between the regimes in prison A and prison B, and a huge amount of churn of prisoners. You could be sent to Maidstone and then, within weeks, to Lewes; then to Exeter; then to somewhere in the north of England, and so on. So, the prison system had no ability to train, rehabilitate or mend these largely damaged and—yes—dangerous and criminal people; it had no ability to make them better. If we put junk in and take junk out, what have we achieved apart from spending an awful lot of public money to no effect, having misled the public that what we were doing with prisoners was in their best interests?

When I was a Member of Parliament, I once explained to a local journalist that I thought all prisons should have walls—of course they should—both to keep the prisoners in and to protect the public from those in prison; possibly also to protect the prisoners from the public. I also said that the prisons with walls should have windows in those walls, so that the public could see in and know what was being done in the prisons on their behalf; and the prisoners could see out and know there was a world out there that would welcome them back if they made the effort to come off drugs, come to terms with whatever addictions and mental problems they might have, learn how to earn a real living and look after themselves and their families, and understand that work for reward was a better alternative than reoffending.

The journalist sucked his pencil for a bit and said, “That’s all very well, but have you thought of the public expenditure that would be involved in putting all those windows into walls?” It is possible to lose the will to live; I did not, quite, at that stage. I have become a cracked record on this subject over the last few years. My noble and learned friend the Minister is an advanced thinker in these matters, not a dyed-in-the-wool, “chuck away the key” person. If the Government want to, and Parliament permits them to do so, they can extend sentences in this way, that way and the other. But, while they have their captive audience—literally—I urge them to do something with these people that makes them better citizens on their inevitable release.

My Lords, I shall be very brief; following the remarks of the noble and learned Lord, Lord Garnier, there is not much more to be said. However, I wish to underline, first, that I very much hope that we will have a commitment today from the Minister that the Government do not intend to hold back on the enactment of a sentencing code. We have been through the whole of that process. It was cut short by the general election but it is an absolute imperative, as the Minister well knows and as anybody who has ever listened to the discussions on these issues fully understands. If we are to have changes to prison regimes, let them be done by amendments to an existing code rather than being introduced piecemeal and added on so that we are still looking through 17 volumes of laws to find out what the appropriate level of sentence might be.

My second point is much more general. The Minister’s introduction suggested—and it is perfectly obvious that it is right—that this is just the beginning. The Government are committed to a wholesale investigation of whether sentencing levels and dates for release are appropriate, and so on and so forth; this is a mere first step.

Speaking for myself, I find it alarming that we have started this process by secondary legislation. The issues raised, as the eloquent speech of the noble and learned Lord, Lord Garnier, made clear, are immensely significant to the entire way we run our punitive system in this country. Yet we are to have secondary legislation for this and, I suspect, a piecemeal series of secondary legislation as the Government’s thinking develops. A very good example—for once I am not looking at the Conservative side; this was Labour legislation—is the Criminal Justice Act 2003, which gave the Minister amazing powers to come to Parliament by way of a statutory instrument and effect enormous changes in our arrangements for prisons. Please, can we be more cautious about dishing out these powers?

My Lords, the policy change to increase the release date of prisoners sentenced to more than seven years to two-thirds of the sentence has been brought forward far too quickly and without proper consideration. It is not evidence-based. Before the election, the Lord Chancellor wound up the rhetoric and gave the reason for ensuring that the most serious violent and sexual offenders would face longer behind bars, as he put it, as restoring “public faith in sentencing”—sentiments that the noble and learned Lord, Lord Keen repeated. By contrast, the impact assessment attached to this statutory instrument says:

“Research into victims’ views on sentencing and time spent in custody is limited. However, a 2012 study found that victims of sexual offences (who will be more likely to be affected by this policy) were unclear on what the sentences handed down by the court meant in practice.”

There is no other study on which this change of policy is based and, as the noble Lord, Lord Ramsbotham, pointed out, there has been no public consultation. There have been only newspaper headlines in the popular press.

Before spending £440 million in construction costs and £70 million a year for 10,000 new prison places, as envisaged by the impact assessment, it would have been far better for the Government to take their time to form a proper evaluation of experience to date. In 2014 permission was granted for the Berwyn training prison to be built on the industrial estate of my home town, Wrexham. I know the area well; in my youth I worked on that very site as a member of a railway gang replacing wooden wartime sleepers with concrete ones. I learned how to use a pick and shovel, drink very sweet tea and place a bet—matters of great importance.

As I watched the buildings go up, to open in February 2017 at a cost of £250 million, I noted that it was the largest operational prison in the UK and the second largest in Europe. Here, I thought, was the opportunity, with modern design and facilities, really to do something to tackle attitudes, change people’s lives and turn prisoners away from crime. All rooms, as the cells are called, have integral sanitation, a shower cubicle, a PIN phone and a UniLink laptop terminal. It is designed to hold up to 2,106 prisoners serving four years or more. There have been criticisms. In particular Frances Crook, the chief executive of the Howard League, told the Welsh Affairs Committee, which reported on prison provision in Wales in April 2019, that it was built in a way that even Victorians would not build. She said:

“It is going to be the most disgusting prison in Europe within 10 years.”

She was concerned in particular that only 30% of the accommodation is single-cell, to save money, in flagrant disregard of the recommendations of the Mubarek inquiry into the murder of a young man by his racist cellmate.

As the prison was going up, a local rugby player, an experienced prison officer from a Merseyside prison, told me that, despite attractive offers, no regular trained officers would be attracted to work there. “It’ll be full of newbies,” he said. “You need to know who you’re dealing with, who’s standing next to you.” He was right: the report of the Welsh Affairs Committee revealed that 89% of the prison staff were in their first two years of training. The Prison Officers’ Association says that the recruitment pool in north Wales is exhausted and that

“we see very young inexperienced officers joining … with very few experienced staff to guide them.”

An inmate released last May told the Daily Post that

“it’s being run like a youth club.”

A first inspection, led by the Chief Inspector of Prisons, Peter Clarke, took place unannounced last April. He found that the prison had

“opened with a very clear rehabilitative vision which has faced resistance at times.”

He found that, because of the inexperience of the staff, the number of assaults on them was higher and the use of force by the staff in response was far higher still, with full control and restraint used in 90% of cases. The staff failed to challenge low-level poor behaviour. Although there were sufficient activity places, a substantial number of prisoners were unemployed or failed to attend their allocated education, training or work place. Staff did not do enough to challenge those who chose not to participate.

What is the result? Last September, an inmate was convicted of a sexual assault on a female guard. His mitigation was that he had drunk four litres of jailhouse hooch and was dared by other inmates to touch the guard in return for another litre. A member of my family’s chance meeting with 20 year-old Levi in a Wrexham street in October was instructive. Having just been released after a six-month sentence, he said, “It was a right laugh. You could get ketamine, Spice and any drug you fancied. I had a bit of a bill to pay when I came out. We spent the day stoned, playing video games.”

Indeed, the chief inspector’s report confirmed that drugs were too readily available: 48% of the prisoners had told his team so. He found:

“The substance use strategy was weak and not supported by a plan to coordinate, drive and measure the effectiveness of actions taken.”

The chief inspector further concluded that there were not enough offending behaviour programmes to meet the needs of the population, with enough places in the coming year for only about one-third of prisoners who met the criteria for treatment. At that time, the prison was only half full. The response to this recommendation by the governor and others last September was that the establishment is limited to the number of programmes the prison is commissioned to provide and the accommodation and resources needed to provide those programmes. Following the noble Viscount, Lord Hailsham, I take as an example the cohort of 46 prisoners serving indefinite public protection sentences who do not have access to courses that might qualify them for release. That is across the whole estate.

I would like to bring noble Lords up to date by giving the flavour of current conditions. The prison is still not full. Three years after it opened, there are only 1,628 inmates in a prison built for 2,100 because the facilities have not been finished. On 1 November last year, Judge Niclas Parry at Mold Crown Court, said, when sentencing a woman who had smuggled drugs into the prison, that drugs had plunged Wales’s biggest prison into crisis. He said that Berwyn was set up in north Wales with all the best intentions in the world, but had been reduced to a place of indiscipline, violence, attacks on staff and bullying,

“all because drugs are being fought over.”

On 29 November there was a case where a prisoner, a lady in transition, had hospitalised a guard by hitting him in the face with a mug. Judge Parry said:

“It is alarming and worrying how many cases this court in Mold has to deal with involving ill discipline at Berwyn Prison—and involving prison staff. You have to understand the fear of staff that something more serious might happen and the context in which these people work.”

On that same day, 29 November, a coroner’s inquest in Ruthin heard how fake legal letters soaked with Spice and Black Mamba had been sent to inmates. The prison thought it was barred from opening them because of legal privilege. A 22 year-old man from Blaenau Ffestiniog, Luke Morris Jones, died after smoking Spice and the inquest jury concluded that he had suffered a

“drug-related death in circumstances where a systemic failure in HMP Berwyn’s systems for preventing drugs entering the prison contributed. HMP Berwyn were aware of the inefficiency of the system and insufficient mitigation was in place whilst it was addressed.”

The prison has since introduced sniffer dogs and two machines to scan what the head of custody, Rachel James, called “dodgy correspondence”.

On 23 December, a female prison officer was sentenced to 12 months’ imprisonment for having sex with a prisoner who was serving 12 years for armed robbery. On Monday of this week, two fire appliances were sent to the prison after two prisoners set fire to their cells.

It is utterly feeble for this Government to make dog-whistle gestures with SIs such as these. Their proper function is to administer effectively and efficiently. The history of Berwyn to date indicates that the Ministry of Justice is failing in this basic duty. Do not waste the resources, time and energy warehousing more people for longer in large prisons. Fund the programmes and prevention, recruit the staff and use the resources in such a way that the outcomes are positive, so that offenders are given not a drug-fuelled holiday but a rigorous training leading to real rehabilitation. That is how public safety will be maintained.

My Lords, I will make one brief point. It is clear from what has been said, both in the impact statement and from the many points made by noble Lords, that what will be required is a very significant amount of further money for the prisons. My noble friend Lord Thomas of Gresford has described Berwyn; it is clear that much more money is needed, but that is one example.

The question I ask the Minister is: where is this money coming from? This is a critical question. The rule of law depends upon the proper provision of courts and of legal aid—legal aid not merely in criminal matters but in family matters, where it is denied to a huge number of people; in civil matters; and for really important things such as disputes relating to social services entitlements and to employment. It is not generally available there at all. Can the Minister assure us that what happens will be through new Treasury money and not, as has happened over the last few years, through gradually denuding the other parts of the Ministry of Justice, particularly the courts and legal aid, to prop up the Prison and Probation Service? The two are plainly interlinked because there is emerging evidence to show that if you do not deal with people’s legal problems, you often set them off on the road to criminality. I hope the Minister can assure us that this is new money, because that is not what has happened in the past.

My Lords, perhaps I may follow the noble and learned Lord on the resources point. Prison is an extremely heavy user of resources. It is not possible to have a political argument about the stance a party wants to take on the use of prison while ignoring those substantial resource implications. Those resources are denied to other things which will stop people committing crimes or make it less likely. Here, we are confronted with one piece of a quite large jigsaw puzzle. It is one measure which will go alongside the sentencing Bill and the rhetoric which effectively urges judges and magistrates to pass longer sentences. All these things act together to create sentence inflation. Not merely will we then have the 2,000 extra places by 2030, which the Government’s own impact assessment says is the central estimate of the effect of this statutory instrument; we will have all those other increases as well. All of that claims money which is effectively denied to probation and to local authority services, which are necessary if we are to steer young people away from crime. Therefore, it is money diverted contrary to the interests of public safety.

The impact assessment refers to “crowding”. This is Ministry of Justice code for what the rest of us call overcrowding, but we are apparently not allowed to use “over” any more. Overcrowding is not simply prisoners living in uncomfortable conditions because there are three to a cell; it is having more prisoners than one has the staff or facilities to rehabilitate. That is the consequence of prisons having more people in them than they are supposed to have. You do not rehabilitate your prisoners because you cannot do the courses, and you do not have the custodial staff to take people to the courses they are supposed to be taking. You even sometimes have instructors unable to do their job because the prisoners cannot safely be brought to carry out the courses. We will increase overcrowding by this series of measures.

There is no claim in the impact assessment that there will be a valuable deterrent effect. We all know that there will no such effect; people carrying out the offences that we are talking about do not calculate whether they will be released at half or two-thirds of the custodial part of their sentence, so that is not even claimed. However, there is of course the admission that shorter periods on licence could affect reintegration. The points that a number of noble Lords have made add up to a pretty strong case against a measure for which a serious positive case is difficult to put forward.

My Lords, this has been a very reassuring debate because the experience and wisdom that have been brought to bear are a wonderful antidote to much of the ill-informed commentary in the popular press.

I want to make a couple of brief points. First, a lot of imaginative, dedicated work goes on within the Prison Service, but the pressures, accentuated by repeated cuts over recent years, have made that work difficult to pursue, not least in the sphere of education. Do we see as fundamental to our penal system the challenge of rehabilitation or do we not? In my view, rehabilitation makes utter sense economically because it is the only way of ensuring that the amount of reoffending is reduced; but, of course, in a civilised society it makes sense in terms of winning people back to a decent role in society and an ability to contribute to its well-being. This suggests that a priority in the penal system must be for the whole culture and purpose of prison officers and prison staff to be ultimately and directly the challenge of rehabilitation. It is not a warehouse function; it is about enabling people to become better people, positive people.

My second point is more personal. My wife served for 10 years as a prison visitor at an advanced prison that was more or less exclusively for people on life sentences. We have heard good sense in this debate about the importance of prisoners being able to see the outside world as somewhere to which they can return, and of the outside world seeing what is going on inside prisons. Crucially, there must be a date: there must be a purpose in people’s behaviour in prison whereby they can see the target for which they are aiming. That is terribly important. What my wife and her colleagues always found most challenging and difficult was that for a number of prisoners, there was no date. The work with them was particularly difficult and exacting.

It is very good that we have a House of Lords that is able to provide this kind of insight on a crucial matter of this kind. I just hope that the Government listen to the wisdom that is put forward here, and do not just play to the chorus of the popular press.

My Lords, I am grateful to my noble and learned friend the Minister for his explanation of the order. I agree with almost all of what noble Lords have said, but I part company in respect of austerity. In 2010, we were bust: about £1 in every £4 was being borrowed, according to the then Chancellor of the Exchequer, and it was not sustainable. Painful cuts had to be made everywhere—and I am afraid that the party opposite is responsible for that.

It is unfortunate that there was not proper consultation on this order, because the feedback that Ministers would have received might have dissuaded them from taking this course of action. We cannot amend the SI—that is perfectly proper—but we need not worry too much because we will have a sentencing Bill fairly soon and that will give us a great opportunity to look at these matters in detail.

My noble and learned friend said that these changes would provide more time for rehabilitation prior to release. We have all read the chief inspector’s report. Very frequently, in respect of purposeful activity, it is said that it is boring, repetitive and often not relevant to employment on release, or words to that effect.

I have spent the last two years taking a very close look at the UK’s prison system, and I have concluded that it is fundamentally flawed from top to bottom. It is truly terrible. The rehabilitation efforts are pitiful, partially because it is so difficult to do it in the current prison system. Longer sentences will only make matters worse. How could anything else be the case?

I worry that these changes might make it more difficult to maintain discipline in prisons, because there will be less time available to add to a sentence in the case of misconduct. I fear that this is a foolish policy, for all the reasons so well articulated by noble Lords.

My Lords, I have always been a fairly hard-nosed enforcer in terms of policing and thought that punishment was really important as part of a sentence. However, I am not sure that I support these measures. With around 85,000 people in prison, there are far too many already.

Prison broadly fails. Having 85,000 in prison is at least one mark of success of the criminal justice system. It is often complained that the police arrest no one, the Crown prosecutors charge no one, the courts find no one guilty and even if they do, they never put them in prison. Well, 85,000 people got there somehow, and they have been increasing in large numbers over the last 30 years, so I think that, by one measure, we ought to have confidence that the criminal justice system can work.

But I am afraid that the prison system is failing. It has failed because the proportion of people who commit offences within two years of release is well over 80%. It is the least effective form of preventing recidivism of all the forms we know, and it is the most expensive. Of those who go into prison, two-thirds have a drug habit, but by the time they leave 80% do. One of the most secure places in the country cannot stop drugs getting in, it appears.

My brief final thoughts are these. It seems to me that if we are to take this measure—and I understand why there is some intuitive support—then there have to be some of the counterbalancing measures that some noble Lords have discussed. First, we have to look at sentencing guidelines. These have always drifted upwards. I cannot remember the last announcement from the Government that said, “This prison sentence is far too long, and it is about time we reduced it.”

Secondly, the only people who think that prison is a pleasant place are people who have never visited one. Whether it is four, six or eight years is almost immaterial, but there needs to be honesty in sentencing. What happens now is that people are announced to be going to prison for 14 years when what is meant is that you are going for seven and, in the event that you misbehave in prison, you will stay for 14. It is far better to be honest and transparent in those announcements.

Thirdly, I would invest in technology post release, such as the sobriety scheme we discussed briefly yesterday that monitors people’s alcohol intake, their drug intake and sometimes, perhaps, if they have a mental illness, whether they have taken their medication. These are things that really can have an impact on release.

Finally—and this may seem to be an abstract point, but I think it is really important—one reason we are having so many difficulties, I am afraid, in controlling our prison population is to do with the corruption of some of the staff. I do not say that they are all corrupt, because that would be very unfair, but I am afraid that the Prison Service lacks a prison investigation command. The last Prisons Minister did instigate a prisons intelligence system to look at corruption, but it is no good having intelligence that no one is going to investigate. Many of our prisons sit in rural areas with our smallest forces, and they do not regard it as a priority to look at prison staff corruption and see whether there is a criminal act taking place. I urge the Government to look at that seriously.

Perhaps if we were able, even if we were to extend the period before a licence is considered, to reduce the overall prison population by changes in sentencing, the savings we would make could be invested in some of the things we have all talked about today. It would be wise to make sure that we are safer in the future and that we have a more liberal approach to the detaining of people who are, at the end of the day, convicted of serious offences.

My Lords, I can be short, as a small mercy to the Minister, because so much has been said with such force in this debate. As was alluded to earlier, there is so much said about the democratic deficit of an unelected second Chamber, but the one thing we might occasionally say in return is that this is a place where it is possible to have a thoughtful, rational, dispassionate and at times passionate debate about law and order, including what works and might work, including rehabilitation and some of the other concerns that have been so well expressed today. It is invidious to pick out a particular speech, but the noble and learned Lord, Lord Garnier, will have to forgive me: he will not thank me for saying that he was perhaps the greatest Conservative Justice Secretary or Home Secretary that we never had.

I can adopt a lot of what has been said, with perhaps one slight distinction. If this were proper populism, why would the dial be moved from the 50% point to the two-thirds point? Will that really satisfy any proper populist instinct in the population? If this is really about chasing headlines, the difference between automatic release at the 50% point and the two-thirds point will not work for very long. If this were to be a proper “hang ’em, flog ’em, throw away the key” kind of policy, or if it were about what was once called honesty or transparency in sentencing, why have automatic release at all?

The Minister quite rightly addressed the value of early release in allowing a period of supervision in the community. I suggest that it also incentivises good behaviour in prison and engagement with regimes that can help cut reoffending post sentence. But that kind of incentive is achieved by a discretionary release, not by automatic release.

As always, I have the words of the noble and learned Lord, Lord Judge, ringing in my ears, as they are designed to do. He quite rightly pointed out that Governments of both persuasions have at times conducted an arms race on law and order, including sentencing. One of the consequences is that you have long sentences to chase the headlines and then automatic release because of overstuffed prisons. That is a ratchet which both sides in politics have contributed to in recent years, and it is not desirable going forward.

If this were proper populism, it would be about complete transparency and no early release. If it were more enlightened, it would be about discretionary release for more serious offenders; however, again, you would then need resources for the Parole Board—or whoever the decision-maker would be—to determine on a case-by-case basis whether people are safe for release.

I have caught the eye of the noble Baroness, Lady Newlove. She and I know from other debates and tragic cases the dangers of releasing dangerous people early in terms of the ramifications for subsequent victims and so on. It is not wrong of the public to be concerned about that. Building public confidence in sentencing is not populist per se, if we build that confidence properly by reducing reoffending. We have heard from all sides of this House how this measure is not likely to reduce offending.

The noble Earl, Lord Attlee, said that he takes issue with debates about austerity. Fair enough. We do not need to do that in this debate, because on the Government’s own case this measure will, I think, cost £680 million. The question in my mind is whether this is the best way to spend that £680 million to protect people, look after victims and make the country a little safer.

I hope noble Lords will forgive me, but we should consider this given the current state of the criminal justice system—and not just the prisons. I know that the contribution on this of the noble Lord, Lord Hogan-Howe, was slightly light-hearted; we do not really measure the success of the criminal justice system by how many people are in prison, not least when rape victims are feeling so let down at the moment and we have, I think, the worst conviction rates on record. I ask myself what £680 million could have done if directed towards rape investigation and prosecution in particular, given how difficult they are.

I do not want to pretend that this is the most fundamental principle being breached by this instrument because, as I say, whether it is automatic early release at 50% or 75% of your sentence, this is just a wasted opportunity. It does not seem at the moment to sit in a broader context of an enlightened approach to these matters.

For reasons that I consider deeply painful and unfortunate, this Government now have a really huge opportunity, if they choose to take it, to turn down the ratchet on law and order. They do not need to play to this imaginary or real gallery. They have an opportunity for some considerable time to change the debate on law and order. That is not to deny public concern about crime but to meet that concern properly, not with a headline or by moving the dial on automatic early release from the halfway point to the two-thirds point but to investigate and work to reduce reoffending, including by investing in community orders and so on and so forth.

This order is therefore a wasted opportunity. I hope that the Minister will not consider it an irritation or an impertinence that some remarks have been made robustly; I do not believe it is because anyone believes that a populist heart beats inside him but because this House, of all places in public debate, cares very much about trying to change the discourse and policy in law and order and about doing something positive with the platform that we have.

My Lords, I am grateful for all the contributions to the debate, which has ranged widely and not simply confined itself to the terms of the present order. That is entirely understandable and appreciated. I have listened with interest and concern to the many contributions. I will touch on some as I go through, more on the basis of topics than anything else.

I emphasise that we are dealing here with steps that we can take by way of this order in the context of our bringing forward a sentencing Bill that will be the subject of detailed consideration both here and in the other place. However, this is what we can do at present under the 2003 legislation.

In answer to the proposition that we are increasing sentences, I suggest that this is a process of restoration, not of increase; we are restoring the position to what it was prior to 2003. There is also the technical question of how we deal with consecutive sentences, because there was a concern about the state of the law before that.

My noble friend Lord Hailsham talked about relevant courses for safe release, and he makes a good point. It is more applicable to extended, rather than standard, determinate sentences, but I am conscious of his point. That touches on a wider issue of concern, that of rehabilitation. We all aspire to secure rehabilitation; who would say, “Yes, we want to imprison people for long periods but we’ve no desire to rehabilitate them. We’d rather they came out of prison just as dangerous and violent as they were when they went in”? Of course we aspire to rehabilitate. Although it may have gone unsaid in some quarters, we all understand what a challenge that genuinely is for the prison population that we have, but we are concerned to try to achieve it.

If we extend the sentence, as this instrument proposes, it will take some pressure off the probation service, but I do not seek to overstate that. Reducing the period for which someone is on licence will take some degree of pressure off the service, but that is perhaps marginal.

The noble Lord, Lord Ramsbotham, talked about us now adding 2,000 prisoners to an overcrowded population. However, with respect, that is the impact on prison numbers by 2030; we will not see any immediate impact from this for four years. It is a gradual process, and we are in the position of already dealing with the question of prison numbers by reference to capacity and staff. Indeed, in August 2019 it was announced that we would expend some £2.5 billion in this area, and in 2020-21 we will expend somewhere in the region of £156 million on the existing prison estate. Those are considerable sums of money.

The noble and learned Lord, Lord Thomas of Cwmgiedd, raised the question of new Treasury money—I think I quote him correctly. I confess that that is more a matter for the alchemist than the Minister. New Treasury money is, again, one of those aspirations that every Minister may have, but securing it is very different from talking about it. But we are expending considerable sums on the prison estate and will continue to do so.

In passing, I recognise the importance of access to justice in all its forms, as we all do, but we must be proportionate in how we go about that. There are various demands on the public purse; we cannot just assume that we have unlimited funds available, even in legal aid, for example.

Of course, there are changes we can aspire to. Indeed, the noble Lord, Lord Hogan-Howe, talked about the introduction of further technology. I am sure that is an area where exploration would pay dividends over the 10-year period we are talking about, up to 2030.

These instruments are an important first step towards reforming sentencing and release measures for offenders, particularly those who cause the greatest harm to society. In these circumstances, we consider that they will ensure an improvement in the perception of how sentencing operates. Indeed, a noble Lord mentioned that some victims of crime have little idea of how the sentencing of a prisoner who has committed a violent crime actually works. It is important to bring greater transparency to that, while ensuring that when a violent prisoner, or a prisoner who has committed a violent offence, is released, they are still subject to a period when they receive the required support from the probation service, and are still under licence and can be returned to prison if they commit a further offence.

I commend the instrument to the House.

Motion agreed.