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Victims and Prisoners Bill

Volume 836: debated on Tuesday 12 March 2024

Committee (7th Day)

Relevant documents: 7th Report from the Delegated Powers and Regulatory Reform Committee, 1st Report from the Constitution Committee

Clause 48: Imprisonment or detention for public protection: termination of licences

Amendment 149

Moved by

149: Clause 48, page 51, line 10, at end insert—

“(ba) after subsection (3), insert—“(3A) Where—(a) the prisoner has been released on licence under this Chapter,(b) the qualifying period has expired, and(c) if his case has been considered for termination previously by the Parole Board and a period of at least twelve months has expired since the disposal of that application,the prisoner may make an application to the Parole Board under this subsection.””Member’s explanatory statement

This amendment, along with two others in my name to Clause 48, would allow a prisoner whose licence has not been terminated by the Parole Board three years after their first release to make an application annually to the Parole Board for termination.

My Lords, the subject of IPPs is so well known to you all, and indeed to many outside this House, that it is unnecessary to speak at any length about it, save for one remark and one set of common grounds.

When the Minister said that this Bill was about victims, he was in every sense right. In some senses, those who received the sentence of IPP are in fact victims, as I will endeavour to explain by reference to what I think are four areas of common ground, which I think ought to guide what I wish to say.

The first area of common ground is that the 2003 Act which implemented these was a mistake and should never have been enacted. There is now no dispute about that. I pay tribute to the noble Lord, Lord Blunkett, for the candour, statesmanship and exemplary conduct he has shown—which so few do—in admitting error. He is to be warmly commended for that, and my only regret is that he is not here in person for him to hear what we all feel.

The second point of common ground is that the operation and the effect of the IPP system has been a stain on the administration of justice in England and Wales. Again, I do not think that is disputed.

Thirdly, the outcome of imposing sentences of IPP has been problematic in very many ways, and a particular problem has been the effect on the mental health of those who received this form of sentence, particularly those in the initial period from 2005 to 2008.

The fourth area of common ground is the old phrase, “Something must be done!” The real question is: what should be done? These problems have to be addressed; we cannot leave them unaddressed.

In the groups of amendments to be considered this afternoon, the real issue relates to that fourth point of common ground: what is to be done? One should begin by welcoming the leadership shown by the Lord Chancellor—this Lord Chancellor, I underline—in the Bill. He has accepted that there are problems and that they need to be addressed. We have to recognise that he is in some senses constrained by circumstances and by events which may happen later in the year. However, I very much hope that in the course of this debate we can achieve more under his leadership, which has been outstanding in this respect, and see what we can do to try either to solve the problems now or at least to make certain that the basis is there for their solution in the future.

Having said I would say very little by way of introduction, I may have spoken for too long; I now turn to the amendments in the first group. These are amendments to Clause 48 and there are four sets of them. I am extremely grateful to the noble Lords, Lord Moylan and Lord Blunkett, and the noble Baroness, Lady Burt of Solihull, for their support by co-signing these amendments, which all relate to the provisions for release on licence.

I am not sure how well appreciated it is that the licence period after release from an IPP is one of the most draconian aspects of the sentence. After release, the offender is on licence and subject to licence conditions—and, most importantly, subject to recall if they breach them—for an indefinite period presently, unless the Parole Board decides to release or reduce the licence period. At present, it cannot do so until 10 years have elapsed. It is that 10-year period which this clause seeks to address. At the moment, all cases are referred to the Parole Board for consideration—but 10 years is a very long time.

One of the things that is clear on the evidence—and it is always important to proceed on the evidence—is that the indeterminate nature of IPP sentences has created many very serious mental health issues and these are exacerbated by the licence period. It is very difficult for someone who has been in custody for such an indeterminate period, not knowing when they are going to released, to maintain his or her mental stability—and then being subject to 10 years on licence is almost impossible.

So we must warmly welcome the basis of this recall in reducing that period from 10 years to three years, because then the Parole Board can look at the licence period and decide whether it should be terminated then and there. If it is not terminated and if the person is successful and remains on licence, out of custody, for two years, there is a sunset or automatic termination. So, before I turn to the amendments, I think it is right to say that this is a huge achievement and, on almost everyone’s behalf, I thank the Lord Chancellor and the Secretary of State for doing this.

My amendments make changes to this new regime which are minor but important. I hope they are of a kind about which there will be little dispute—because, if there are disputes about these, I dread to think where we shall get to when we go down the list. Four areas are covered by these amendments. The first of these sets of amendments are Amendments 149, 150 and 151, which try to set out a more flexible and just way of terminating the licence period if it is not terminated at the three-year point.

I do not want to go into the technicalities of this too much, because this is typically awful sentencing legislation—most sentencing legislation is awful, as is shown by the fact that the Sentencing Code is about this thick—and I do not think a debate on the language is a good way for us to spend our time. But, in essence, this provides that, if the Parole Board does not at the three-year period terminate the licence, we have to address whether it is right that the person has to wait to have their licence terminated by spending two years without the risk of having their licence revoked and returning to prison.

The essence of this amendment is accepting the mental health problems that this form of imprisonment has caused and for which ultimately the state is responsible, as a result of the enactment of this legislation. This amendment seeks to restore a right of annual review. This would give the Parole Board the opportunity each year to look at the position of the individual and see whether, in all the circumstances, we can terminate.

Amendments 150 and 151, which I will deal with separately as they are slightly different, go to putting right a possible injustice in how the legislation is drafted. As everyone appreciates, the offender can be recalled to prison. Sometimes, there is a mistake in the recall. The Lord Chancellor or the Secretary of State can set that aside and revoke the recall. He does so if there has been a mistake. However, the problem with how the legislation is drafted—this is a highly technical problem—is that if he recalls the person but decides subsequently that it was a mistake, the two-year period is interrupted. That is unjust. Why should you be prejudiced by a mistake? The very simple Amendment 150 deals with human error, so that the offender is not prejudiced.

Amendment 151 deals with a very analogous problem—what happens if a person is recalled by the Parole Board, in the exercise of its judgment in respect of what is known as the Calder jurisdiction? I need not go into this matter in any detail because the point is a simple one. If the Parole Board decides that it was inappropriate to recall him but that he is fit for release, again, the effect of that in the Bill as currently drafted is that it breaks the two-year period and therefore the person has to start all over again. It is a bit like going round the Monopoly board and being sent back to the start again. This is something that we should not have.

Amendment 152 is very simple. The Bill contains a power to change the period of three years. There are two solutions to this. The noble Earl, Lord Attlee, will address the first, which is whether we should remove the power altogether. The second—my preferred solution —is to alter “change” to “reduce”. “Change” enables you to increase, and I am sure that no one in Parliament wants to see an increase in the period. So I think it would be better to have a power but to make sure that it can be exercised in only one way. Having said that, I very much hope that this will not be controversial and that the Government can agree to this or to something very similar. I beg to move.

My Lords, I have the privilege of rising on behalf of my noble friend Lord Blunkett, who is incredibly disappointed not to be here. He has a long-standing and unbreakable prior commitment. I know that he would want me to thank the noble and learned Lord, Lord Thomas of Cwmgiedd, for the kindness that he displayed and for his crystal-clear description of these amendments and of the injustices and technicalities that they address, which any lay person could understand. I am very grateful, as I know my noble friend would be. I share in the tribute to my noble friend. The fact that the former Home Secretary has asked the former director of Liberty to speak on his behalf is perhaps testament to the character of my noble friend.

My noble friend supports all the amendments in this group, most of which belong, at least in initiation, to the noble and learned Lord. He also signed Amendment 156 in the name of the noble Earl, Lord Attlee, because of this concern that no period should be increased by the Secretary of State.

For my own part, speaking for myself at this moment and not for my noble friend, of the two approaches—taking the power to alter entirely or leaving it as one only to reduce—I rather agree with the noble and learned Lord, Lord Thomas of Cwmgiedd. He has done so well in the explanation that I need say little more, other than that I also remember today our friend, his noble and learned friend Lord Brown of Eaton-under-Heywood, for whom righting this wrong, this stain on our justice system, was also incredibly important. Too many people in public life are happy to forget and ignore the mistakes of last week, let alone of two decades ago, but, if this is the House of Elders in our parliamentary system, such as it is, this is exactly the Committee to be embracing the amendments put so brilliantly just now by the noble and learned Lord.

My Lords, I thank the noble and learned Lord, Lord Thomas, for his comments and endorse everything that he said, particularly about the noble Lord, Lord Blunkett, who we all wish was here today. I will address one or two of the pragmatic issues. The amendments in this group all relate to IPP licences, and I support them all. They are intended to affect the applications of licences to be fairer and speedier, so that we can release or re-release IPPs as fast and as safely as possible into the community.

Clause 48 currently removes the element of annual review in favour of one-off review every three years. However, if the Parole Board decides not to terminate the licence of this point, Amendments 149 and 150 restore the right—removed by the Police, Crime, Sentencing and Courts Act—to an annual review by the Parole Board. The Prison Reform Trust comments that having a sunset clause of a further two years might just constitute a high bar for some prisoners, and that the Parole Board should be able to terminate the licence after one year, otherwise licences could drag on for years, as before.

The circumstances described in Amendment 152 are probably quite rare, but it is worth ensuring that a person would not have to suffer if they had been recalled but the Secretary of State had revoked the recall, presumably because there had been an error of some kind and they should not have been recalled. The prisoner should not be penalised because of an error not of their making.

Amendment 153 continues in a similar vein, but this time gives the Parole Board the ability to maintain the sunset clause. However, in this case, it is slightly more complicated. Firstly, the Secretary of State can recall if they conclude on reasonable grounds that the prisoner has deliberately revoked the terms of their licence and the safety of the public would be at risk. The Parole Board can overturn the Secretary of State’s decision to recall a prisoner if on subsequent review, and if it is privy to more information than the Secretary of State, it subsequently concludes that the prisoner is not putting the public at risk.

Amendment 157 ensures that the Government use their wide-ranging powers to change the qualifying period using only secondary legislation and that they can revise it only downwards. If they want to revise it upwards, it will have to be done with primary legislation. This is within the spirit of the Bill today. This amendment ensures that a future Government would not be tempted to use this power to make the situation worse for IPP prisoners, not better.

All in all, this suite of amendments is sensible and, as the noble and learned Lord, Lord Thomas, said, pragmatic. It is offered in a spirit of helpfulness. I sincerely hope that the Minister will see this and maybe feel that it is appropriate to introduce government amendments to this effect.

My Lords, I rise possibly as an elder, owing to my advanced age; but perhaps not. I would like to support the noble and learned Lord, Lord Thomas of Cwmgiedd. As he said, there is almost nothing left to say about these prisoners. It is an injustice. I hope that the Government are considering accepting some of these amendments. We cannot say that we have a justice system if we have an innate injustice like this.

I support the tributes to the noble Lord, Lord Blunkett, but also to the noble Lord, Lord Moylan, with whom I have almost nothing in common; we have a very tetchy relationship but, on this, I think he is being superlative in working for the rights of IPP prisoners.

As Greens, we believe that prison is overused as a tool of justice. Far too many people are imprisoned when there are much more effective ways of rehabilitation or stopping reoffending. I can understand the anger of people who say that we should lock up serial rapists and murderers and throw away the key. I do understand that anger; but, in this instance, we have, for example, a 17 year-old who steals a bike, or people who grab other people’s mobile phones. This is clearly an injustice; I find it difficult to believe that anybody listening to this would not agree.

The lawyer and campaigner Peter Stefanovic put out an online video about this. It has had 14 million views. A petition to force the Government to debate this again got easily 10,000 signatures. There is massive public support for sorting out this issue. I know that the Government care very much about the will of the British public. The word that came through for me in some of the responses to the video was “cruel”. The sentencing and continued imprisonment of IPP prisoners has just been cruel. Please, let us see some progress on this Bill, then we can all take the Ministers out for a cup of tea.

My Lords, I am grateful to the noble and learned Lord, Lord Thomas, for moving his amendment. I have tabled Amendment 156; it may be convenient to speak to it now. Before doing so, I have some general points to make about the whole issue of IPP, which I will not repeat in detail later.

I am grateful for all the work that my noble friend Lord Moylan has done along with the Prison Reform Trust and UNGRIPP. In 2017, as a result of a debate initiated by the late noble and learned Lord, Lord Simon Brown of Eaton-under-Heywood—I am grateful for the comments of the noble Baroness, Lady Chakrabarti —I decided to take a very close look at our penal system. I soon found that I needed to widen my interest to the whole of the criminal justice system because there is so much is wrong with it. One obvious example is joint enterprise murder, but that is for another day.

Let no one think that I am some sort of soft, bleeding heart, out-of-touch do-gooder. I am not. I believe in firm discipline, with all that that implies. But—I repeat, but—no more disciplinary sanctions should be applied, including incarceration, than are needed to have the desired, legitimate effects of protecting the public by incapacitation, and providing retribution, deterrence and rehabilitation. The current IPP regime clearly fails this test on all counts. I will not rehearse the heart-rending histories that we have all heard about. They are not in dispute.

I also accept that some prisoners on an IPP sentence may not be releasable any time soon even under a resentencing scheme. However, keeping prisoners incarcerated unnecessarily costs £44,000 per annum per prisoner and wastes resources. We know we have a terrible prison system because the Chief Inspector of Prisons tell us that is so. In his 2023 report, he said that inspectors have run out of superlatives to describe how poor the purposeful activity component of prison life is, or words to that effect. No wonder IPP prisoners find it so hard to demonstrate any progress with rehabilitation.

We have undertaken almost no noticeable reform of our prison system since the proposals made by the noble and learned Lord, Lord Woolf, in the early 1990s. My noble friend the Minister may point to some incremental improvements, but they would not be something that even a well-informed member of the public would be aware of.

I support all the IPP amendments that have been tabled to the Bill. We really do have to do something to solve this problem, no matter how difficult that might be. As the noble and learned Lord said, something must be done.

I do understand the difficulty that the Opposition Front Bench finds itself in. However, I think that we have to be clear that the determining factor is a policy set by the shadow Secretary of State in another place. I would happily vote for any of the proposed amendments if supported by the Opposition Front Bench, but I can understand the fear arising from the possibility that a released IPP offender might commit a further offence and it might be a serious one. But the fact is that we are often releasing offenders knowing that there is a high probability of them reoffending. That is why I have made my proposals for dealing with young prolific minor offenders, which I keep bending your Lordships’ ears about in private.

I turn to my Amendment 156. Clause 48 deals with the termination of licences for release, as we have heard. My amendment totally removes the power of the Secretary of State to alter the qualifying period by statutory instrument. Of course, I would be content with the proposal to allow the Secretary of State only to reduce, as suggested by the noble and learned Lord, Lord Thomas, in his Amendment 157. It is not clear to me why this provision in Clause 48 is necessary or desirable. Suitable criminal justice Bills come to your Lordships’ House with monotonous regularity and any one could be used to effect a change if desired. Can my noble friend the Minister suggest in what circumstances it might be necessary to alter the qualifying period because, presumably, this IPP problem is going to be solved quite quickly—or is it not really?

It is also quite a palaver to secure an affirmative order; it is not that simple and there are a lot of processes to be gone through. Also, it would require a one-hour debate in your Lordships’ House. Assuming any change was desirable, it might be simpler to use a suitable Bill to effect any change needed.

My Lords, I support this group of amendments. I support of all the IPP amendments debated now and later this evening. First, I express my sincere regret for being unable to speak at Second Reading, as this is a subject, as colleagues know, that is very dear to me and of great interest to me and I have raised several times in your Lordships’ House.

I had the humbling experience of meeting and listening to former IPP prisoners, who had served from five to ten years more than their minimum sentence, and family members of prisoners who have served more than 15 years over tariff. I have to tell the Committee that it was a heart-breaking occasion, knowing that there was no end to their injustice in sight, no hope for the thousands of prisoners and family members who are treated so inhumanely, not enough courses to help them to apply for a review and not enough opportunities within the justice system to even give them a review.

As has been mentioned, IPPs were abolished over a decade ago, so how on earth can it be that so many people—almost 3,000 of them—are still living through this never-ending nightmare? I agree with the Justice Select Committee and the UN special rapporteur on torture that resentencing represents the only way forward for resolving the IPP scandal and for justice at long last to be done.

Importantly, as the noble and learned Lord, Lord Thomas, mentioned, we must not forget the psychological effects of IPPs on prisoners and families alike, as the Justice Committee’s report so vividly highlighted and has been further demonstrated by the high number of suicides that we have tragically seen. Likewise, the UN special rapporteur, Dr Alice Jill Edwards, describes IPPs as “psychological torture” and says it is

“tragic that so many mental health challenges appear to have been caused—or at least aggravated—by the uncertainty of indeterminate sentences”.

I agree with that. This is a miscarriage of justice on an industrial scale. It may not presently have the profile of the Post Office scandal, but nevertheless it is a cruel injustice that has gone on for far too long.

I understand—as, again, has just been mentioned—that both Front Benches have previously been resistant to resentencing on the grounds of public safety. Of course, in an election year no one wants to look soft on crime. However, to quote Dr Edwards:

“It is the responsibility of the UK government to protect public safety, but citing this as the reason not to review IPP sentences is misleading. The UK, like any society with a strong rule of law, has measures to protect the community after prisoners are released. Locking people up and ‘throwing away the keys’ is not a legal or moral solution”

to this terrible problem. I agree, but if either Front Bench is still in need of more political cover to do the right thing, I suggest that Amendment 167C in the name of the noble Earl, Lord Attlee, which we will come to soon, fits the bill. That amendment would delay resentencing until the chief inspector was satisfied that the Probation Service could adequately protect the public following any resentencing exercise. The long- overdue release and justice for IPP prisoners should not be blocked over the excuse that the Probation Service cannot cope, but Amendment 167C might be the compromise needed to unlock that puzzle—a pathway out of this political impasse. I sincerely hope it is.

I urge the Committee to summon the post-war spirit of 1945 and back Amendment 167C from the noble Earl, Lord Attlee, and that of the noble Baroness, Lady Fox. I know that IPP prisoners and their families are watching us here, hoping but also fearing what might be coming round the corner. Our Parliament must strike up the courage to act and correct the injustices that we can all see if we just open our eyes.

My Lords, I too support this array of amendments on IPP, both the current amendments and the ones that will follow. As the Committee will know, I am a regular visitor—twice a month—to prisons across the UK, and I will visit another one tomorrow morning. On a regular basis—two a month—I meet many incarcerated men and sometimes women, and many who have left prison over the last 10 years, and I have found relentless IPP tragedies around every corner.

I shall refer to one story from a meeting in December, when a man came up to me and said that he had been released from an IPP sentence 14 years ago but was recalled back to prison in September after he forgot to inform his then probation officer that he had gone on holiday with his wife in August for two weeks to Spain. This is just sheer stupidity, let alone the fact that this system is organising to persecute people compared with recognising their renewal. In his case, and not just because I have now met him twice, he does not deserve the taxpayer to spend nearly £50,000 for an extended period to make sure that he is further detained and punished.

I hope the Minister will gather up all his strength and either accept this array of amendments in one gulp or go back to the Lord Chancellor and determine to bring back an effective set of government amendments that will allow us to end this appalling stain of injustice and unfairness. Another man I met eight years ago from a prison in Kent had been recalled three times. From an initial sentence of seven years, he had done over 24. The persecution of this man’s mental abilities was blatantly obvious; he was no risk to anyone. I can tell noble Lords that since we campaigned for his release, and he has been released, he is an honourable citizen paying his taxes. That is how we should treat many of these men—they are largely men—to see that they are given the opportunity to prove their new life.

My Lords, I wonder whether I could detain the Committee for one minute on Amendments 156 and 157. The background to this is my time as chairman of the Secondary Legislation Scrutiny Committee, when, with my noble friend Lord Blencathra, we drew attention to the creeping growth in the power of the Executive at the expense of the legislature in our reports Government by Diktat and Democracy Denied?. Therefore, when amendments present changes to be effected or not effected by secondary legislation, my ears prick up.

First, we have to recognise that there has to be secondary legislation. The SLSC looks at between 600 and 800 regulations per year. To think that those can be put through by primary legislation is fanciful. The Government’s system would be completely gummed up, so something has to be done.

Secondly, we all know that the system for scrutinising secondary legislation is weak, to say the least. There is no chance to amend, even if the House were to agree that one particular provision in a regulation was inadequate or wrong; it is all or nothing. There is no room for ping- pong or other things we see in primary legislation. All those things are important. This House has decided to stand in the way of secondary legislation only six times since 1968. The last time, in 2015, led to a full-scale constitutional crisis, the Strathclyde review, et cetera.

With great respect to my noble friend Lord Attlee, it seems that Amendment 156 would lock us into the structure we currently have. He says that a criminal justice Bill will be along in no time at all; maybe, but we would be locked into the structure we have because the Secretary of State has no power at all. By contrast, Amendment 157, in the name of the noble and learned Lord, Lord Thomas of Cwmgiedd, would give the Secretary of State some powers, but only to loosen, not to tighten. It seems to me that, in so far as we are seeking a balance between the Executive and the legislature, between moving too quickly and not moving at all, Amendment 157 is to be preferred, and I hope the Committee would not accept Amendment 156.

My Lords, this has been an interesting and relatively short debate. We have four groups of amendments covering IPP sentences, and this first group is perhaps the easiest and most benign to agree with. I say to the noble Earl, Lord Attlee, that we in the Opposition have no problem with this group. I acknowledge the interesting point that the noble Lord, Lord Hodgson, just made regarding the differences between Amendments 156 and 157. Nevertheless, we have no problem agreeing with the generality of amendments in this group. I thank the noble and learned Lord, Lord Thomas, for his crystal-clear description, quoting my noble friend Lady Chakrabarti, when he introduced the amendments.

We agree with the general thrust of these amendments and, if it comes to it at a later stage, will support any amendments that may be pushed further. I would like to do the Minister’s job and say what the problems might be. I acknowledge that, with a reducing cohort of IPP prisoners in prison, you are dealing with very difficult and potentially dangerous people. As this number reduces, the problem gets greater. I think that is a fair point to make. It is a point the Minister usually makes, but I want to make it from this side of the Chamber.

We will come to more ambitious proposals in subsequent groups, but here we are just dealing with various amendments to licence conditions and fairly imaginative ways of reducing them overall. We support them in the generality.

My Lords, I thank all noble Lords who have spoken. I will first briefly recap some basic points that apply equally to the second and fourth groups of amendments that we will come to.

First, this Government recognise the highly regrettable history of this particular sentence. The Lord Chancellor himself has described IPP sentences as

“a stain on our justice system”.—[Official Report, Commons, 15/5/23; col. 592.]

As the noble and learned Lord, Lord Thomas of Cwmgiedd, rightly said, the question is what should be done. I will briefly summarise, to encapsulate our debate, what the Government think should be done.

The Government are making some very determined efforts to mitigate the situation of IPP offenders who are still subject to a sentence that was abolished in 2012. To bring noble Lords up to date, there were originally approximately 8,100 people subject to these sentences. Of those people, as of last December 1,227 had never been released, 1,625 had been released and later recalled, and there were still about 3,000 on licence in the community. Currently, as the noble and learned Lord, Lord Thomas, pointed out, an offender cannot apply to the Parole Board to have their licence terminated until 10 years after first release.

Taking the released and then recalled population first, this is a challenge because that population is slowly rising. The major statutory change in Clause 48 will reduce the qualifying period before the offender becomes eligible for licence termination from 10 years to three years from first release, with a presumption of termination after three years and an automatic termination two years thereafter—provided that the offender can pass two years in the community without further recall. That is, as I think the noble and learned Lord, Lord Thomas, said, a huge change and a major achievement for the Government to be proposing. It should substantially mitigate the problem of prisoners being released and then recalled, which we will come to in more detail as this debate continues.

Regarding the second cohort—perhaps the first, depending on your point of view—of those who have never been released, most of these people have come up before the Parole Board, which is responsible for deciding on their release. In many cases, this has happened many times and the Parole Board has decided that it is not safe to release them as the risk to the public is too great. What is the Government’s approach to that problem? Spurred on by the 2022 report of the JSC, to which I pay tribute, the Government are developing a robust, coherent and detailed action plan in consultation with relevant stakeholders, including the families, with the aim that each prisoner has a tailored sentence plan, appropriate support and clear objectives to work towards eventual release.

This last cohort is difficult, as the noble Lord, Lord Ponsonby, has just pointed out because, aside from having committed very serious offences, many suffer from trauma, mental health issues, substance issues and so on. However, the Government are determined to see this cohort further reduced and to get rid of the idea that there is no hope. In the Government’s view, no one has given up on the IPP prisoners who have never been released. They have to be worked on. That is a hard task, but one that the Government—any Government—should take on.

For example, the number of those released has been reducing over the last two years at roughly 200 per year. There are now 200 of these prisoners in open conditions who are being prepared for further release. It is not as if nothing is going on or as if things are just vegetating and no one cares. The Government are very focused on doing something about this most difficult cohort. That is the overall framework, which I hope your Lordships will view, despite the difficulties of the past, as something of a new beginning for the future.

With that background, I turn to Amendments 149 to 151 in the name of the noble and learned Lord, Lord Thomas. The effect of these would be that, if the Parole Board refused to terminate the licence at the new three-year point, the offender would have the right to apply annually to the Parole Board for a licence determination. As the Government understand it, the offender would be in the community rather than waiting out the two-year period, which results in the automatic termination of the licence. The offender would be able to apply to the Parole Board for termination after one year.

The Government recognise that released offenders in many cases need better support and have accepted all the recommendations to that effect in the recent report of the Chief Inspector of Probation on the recalls of IPP prisoners. However, the Government are not at present persuaded of the need for Amendments 149 to 151, on the following basis. If the offender has applied and the Parole Board, after three years, does not terminate the licence at that point, it does not seem to the Government unreasonable to expect the offender to spend two years in the community with the incentive of the certainty of licence termination at the end of that period. This amendment would enable the offender to make an interim application at the end of year four. That would impose further resource costs on the Probation Service and Parole Board because reports have to be prepared, hearings have to be convened and so forth. It would necessarily take the Parole Board several months to process that application.

We have come back several times in this debate to the pressures on the Parole Board and the time these applications take. It appears to the Government that, even if you could apply after year four rather than waiting until the end of year five, there is probably only a marginal gain for the offender. The Government are not at the moment persuaded on these amendments, although the Government continue to be in listening mode on this part of the Bill, as on every other part of the Bill.

Amendments 152 and 153, also moved by the noble and learned Lord, Lord Thomas, address what one could call in shorthand “questionable recalls”. I think there are two sorts of recall that we should be thinking about. The amendments suggest the possibility of the Parole Board disregarding a recall for the purpose of calculating the two-year period. Perhaps I may first clarify what is considered to be the existing position. If a recall is based on a fundamental mistake of fact—for example, the probation officer thinks that the offender has missed an appointment but the offender is in hospital because of a road accident the previous day—the Lord Chancellor considers that he already has the power in such a clear case to treat the recall as a nullity, as never having happened. That is a relatively clear case and I respectfully suggest that Amendment 152 is unnecessary.

The situation envisaged by Amendment 153 is effectively a challenge to the judgment call made by the probation officer about the recall. Technically it is a decision by the Secretary of State, but in practice of course it depends on the report by the probation officer. Amendment 153 would require the validity of that recall—the “appropriateness” of that recall, to use the word in the amendment—to be considered by the Parole Board and treated as a nullity if the board then considers that the recall decision was not appropriate. Although the Government understand the thinking behind the amendment, His Majesty’s Inspectorate of Probation found, in both 2020 and much more recently in 2023, that in practice HMPPS recall decisions are very largely appropriate.

At present, the Parole Board does not have any power to adjudicate on the appropriateness of the recall; its task is to decide on the issue of public protection and whether the offender is safe to release. For that purpose, the Parole Board will typically have much wider and more detailed information than was available to the individual probation officer faced with the recall decision. Amendment 153 would, however, turn the Parole Board process into an appeal from the recall decision and require the Parole Board, in effect, to second-guess what it would have done had it been the probation officer with the information then available to the probation officer.

I am grateful to the noble and learned Lord for giving way. I should like to better understand this part of the argument. When the noble and learned Lord said he is satisfied that in most cases recall is appropriate, did he mean recall in general or recall in IPP cases in particular? Secondly, when he was discussing the difference between decisions on executive recall on the one hand and dangerousness and public protection on the other, did he not think that there was a relationship between the two? When one is considering dangerousness, one might have a rather different view of what is required in relation to public protection if one or more recalls were inappropriate because they were for non-criminal, minor conduct that at no point presented a danger to the public?

I thank the noble Baroness for those questions. As to whether I was speaking of IPP specifically, I cannot off the top of my head recall whether the 2020 work was specifically in relation to IPP, but certainly the 2023 work, which is the most recent and the most valuable and which I highly recommend everyone to read, was specifically in relation to IPP when the Government were considering what to do following the JSC report when concern was expressed that recalls might be being made inappropriately. That inspector’s report took a sample of recalls, studied them very carefully; it was thought that a small number were questionable but that the vast majority were appropriate on the basis of the information that the probation officer had at the time.

Up to a point, the circumstances of the recall are part of a general picture of the dangerousness of the offender—I accept that. But the real point is that, when the Parole Board comes to consider public protection, it will have much more information, very often much more up-to-date and fuller, than the information that was before the probation officer at the time, who might well have to take a decision in an emergency on very limited information, but because of the risk, as they see it, to public protection. So it is very difficult, in the Government’s view, to give the Parole Board power to go all the way back and say, “This was inappropriate”. However, having said that, I would like to come back to the question of recall when we get to Amendments 154 and 168, to be moved by the noble Lord, Lord Carter. It is a question of executive re-release on recall, which might be another way of approaching that problem. So that is the Government’s position.

Before I move on, let me say to the noble Lord, Lord Hastings, that the effect of the Government’s changes is that this recall after 14 years could no longer happen. In the press over the weekend there was an example of someone recalled after 12 years in the community, who sadly found that it was too much for them and took their own life. We do not know the full circumstances, but that could not happen if your Lordships and the other place decide to pass this legislation. That is a major change which I hope, combined with the reduction in the licence period, will significantly reduce these recall problems. I have not specifically replied to the noble Baroness, Lady Jones, or the noble Lord, Lord Woodley, and all the others because it is common ground that we need to do something. My task is to explain what we are trying to do and where we are trying to get to.

As far as this group is concerned, that leaves Amendments 156 and 157 on the question of secondary legislation or primary legislation to change the qualifying period. I take the point of my noble friend Lord Hodgson about Amendment 156. The Government are also well aware of the concerns expressed about using delegated legislation to amend primary legislation. These provisions have been included to give a certain degree of flexibility. The Government have no intention whatever of increasing these periods or reversing these changes, but see some advantage in the flexibility that that mechanism gives. None the less, on this point, as on others, the Government will continue to listen to the arguments and come back with a position on Report.

I hope that I have covered the various points. I have not addressed the wider points about the prison system in general; that is for another day and I look forward to a further debate, but I hope that I have replied sufficiently for the moment.

My Lords, is my noble friend the Minister telling us that it is inconceivable that the Government would want to increase the licence period?

I do not know that one would use the word “inconceivable”. The Government do not see any prospect of that happening at the moment.

My Lords, I thank everyone who has participated in this debate. It has proved useful: first, it is very important to set the scene, and I deliberately did not say a great deal. However, it is right to say that we owe a huge debt of gratitude to the Prison Reform Trust, to the noble Lord, Lord Moylan, to the late Lord Brown and the late Lord Judge, who campaigned fiercely on this, and to Lord Lloyd of Berwick, who fortunately is still alive and who has campaigned tirelessly. I just find a sense of deep disappointment—a matter to which I will return at a later stage—at the reluctance to be bold.

We have focused on four little points, and even on reducing the answer was not very strong. It is absurd—and I use that word advisedly—to think any Government would want to take the licence period back up. I very much hope that that amendment can in due course be agreed.

The problem really relates to the way in which the licence period operates. We need to discuss that further to see what the conditions are, and we shall come to that in due course, and to ensure that we bring the licence period to as satisfactory a termination as possible, bearing in mind—as the Minister fails to recognise—that the state has a very substantial degree of responsibility for the mental health problems that have been caused. When you talk of one year or two years, making someone stick to conditions which may not be entirely appropriate for a period of two years is a substantial burden, which can be mitigated by going to one year. But I am glad that the Government have an open mind. We shall see how open it is when we discuss the matter further.

Amendment 149 withdrawn.

Amendments 150 to 153 not moved.

Amendment 154

Moved by

154: Clause 48, page 52, line 21, at end insert—

“(4I) the prisoner’s licence will be considered to have remained in force for the purposes of subsection (4H)(c) if—(a) the prisoner has been recalled within that period,(b) the Secretary of State has released P again on licence in accordance with his powers under section 32(5B), and(c) the Secretary of State orders that the licence should be considered to have remained in force during the period of recall.”Member's explanatory statement

This amendment would enable a person whom the Secretary of State has deemed suitable for executive release to benefit from the qualifying period as if the recall had not occurred, but only if Secretary of State considers this appropriate in all the circumstances.

My Lords, I shall speak to Amendment 154 in my name and to Amendment 168 at the same time, as they sit together in this grouping. I declare an interest as a trustee of the Prison Reform Trust, and I thank it for its significant input and support for these amendments. I also thank the noble Baroness, Lady Chakrabarti, the noble Lord, Lord Blunkett, who, unfortunately, as we have heard, cannot be with us today, and the noble and learned Lord, Lord Garnier, for adding their support to my two amendments by adding their names.

I shall deal first with Amendment 168, since Amendment 154 is consequential on it. Amendment 168 is about executive release—that is to say, release by the Secretary of State following a recall to prison. At present, under the Criminal Justice Act 2003, the Secretary of State has a power to release a determinate sentence prisoner on licence at any time after the prisoner has been returned to prison. He must not do so unless satisfied that it is not necessary for the protection of the public that the prisoner should remain in prison. Amendment 168 addresses a lacuna, which arises in the case of IPP prisoners who are recalled to prison, since the Secretary of State has no executive power to release them, even if it is obviously safe to do so.

Why does this lacuna need correcting? Let us look at the facts. There are, as the Minister has said, 1,625 IPP prisoners who are in prison following a recall. The Justice Committee, in its third report, said that the reasons for recalling IPP prisoners vary, and it was often not because the IPP prisoner had committed any further offence but because of a minor or technical breach of licence conditions. For example, the lack of availability of approved premises, believe it or not, or other suitable accommodation, was sometimes a reason for recall, even though it might, unreasonably in the circumstances, have been a condition of a licence.

Once the IPP prisoner has been recalled, they become subject to the usual parole process to secure their release. This can take months or even years. The Justice Committee found that, between 2015 and 2021, the average number of months spent in prison by an IPP prisoner following recall and prior to re-release was 18 months—the equivalent of three years on a traditional fixed-term sentence. I believe that the average time has now increased, as I think that the Minister said, and that period in prison following a recall has risen to on average 28 months before re-release. That is a wholly disproportionate additional period to serve if the recall was for a minor or technical breach of licence conditions, or if it is apparent that the prisoner is safe to release at an earlier stage.

The Justice Committee recommended the use of executive release for IPP prisoners in such cases, as is possible for determinate sentence prisoners. In their response, the Government stated that they would not accept the recommendation because it

“falls to the Parole Board to determine whether the … release test is met”.

But that fails to explain why determinate sentence prisoners can be executively released when they, too, are otherwise subject to a Parole Board review.

Amendment 168 is therefore about ensuring that like cases are treated alike, when there is no good reason for treating them differently. It provides that the Secretary of State should have a power of executive release at any time following the recall of an IPP prisoner, if the Secretary of State considers that it is not necessary for the protection of the public that the prisoner should remain in prison. That will ensure consistency with the position of determinate sentence prisoners, while ensuring that public safety is not put at risk. There is no logical reason to treat IPP prisoners differently.

Amendment 154 is consequential on Amendment 168 because, if the IPP prisoner is executively released by the Secretary of State following an unnecessary recall, the IPP prisoner should obviously have the period unnecessarily spent in prison disregarded for the purpose of calculating the new sunset clause for IPP licences. However, as a safeguard, the amendment proposes that the Secretary of State should have the power in each case to determine whether this is appropriate. This will depend on an assessment of various factors, such as the degree to which the recall was unnecessary and whether the prisoner is safe to release.

In concluding on the two amendments, I can do no better than to refer to the truly tragic recent case of Matthew Price, who last year took his own life while on licence from an IPP sentence. I am sure that the whole Committee will join me in expressing the deepest condolences to Mr Price’s family. The coroner said that:

“Matthew’s mental well-being had been adversely affected over a significant period of time by the continuing impact of serving an”

IPP sentence, because of anxiety about the ever-present potential for recall to prison. The shocking thing is that Mr Price had been on licence for nearly 10 years. That demonstrates the devastating mental impact that an IPP sentence has. On 22 February this year, the coroner issued a so-called regulation 28 report to prevent future deaths, in which he stated that there was

“a risk that future deaths will occur unless action is taken”

urgently. My amendments would not be enough to remove that risk completely, but they would help by providing another avenue of release from a recall while, crucially, ensuring the safety of the public. I hope that the Minister will feel able to accept them, and I beg to move.

My Lords, it is a privilege to rise in support of my old boss, the noble Lord, Lord Carter of Haslemere—one of the finest government lawyers I had the pleasure of working for and learning from in the late 1990s. He served Governments of both persuasions with such distinction that he went on to become the first ever counsel to No. 10, such was his expertise in these and other matters. It is wonderful to see him deploy those skills, including in the devastating way in which he has just argued for his two amendments in this group.

As a matter of principle, in the previous group, the Minister made the case for executive recall. The noble Lord, Lord Carter of Haslemere, has made the equal, opposite and logical case for executive release. To err is human. Where there has been an executive recall in the sorts of circumstances to which the noble Lord, Lord Carter of Haslemere, referred—for non-criminal or non-dangerous conduct, or sometimes for conduct that could not even be impugned because it was no fault of the licensee—why should the Secretary of State not have the equivalent, equal and opposite power to release humanely and sensibly, without risking the public? I say not just to the Minister but to my noble friend Lord Ponsonby that no Government need be afraid of having the power to release in circumstances where they had the power to recall in the first place.

I need once again to wear the other hat and the rather tall shoes of my noble friend Lord Blunkett. He asked me to mention in particular his Amendment 158 in this group. Here again, with some considerable commitment and rather forensic precision—aided by our wonderful colleagues in your Lordships’ Library—he has picked up on an anomaly that he seeks to address. Clause 48, in whatever final form it passes, ought to be applied not just to IPPs but to the earlier policy of two strikes. Some noble Lords may remember that, even before the IPP sentence, this policy led to similar injustices, under Section 2 of the Crime (Sentences) Act 1997. It was subsequently replaced by IPP.

Unfortunately, the noble Lord, Lord Howard of Lympne, is not in his place. At the time, I was serving him as a government lawyer. It was part of the whole ratchet on law and order between two major parties that began in the late 1990s, I am sorry to say. The idea was that, if someone committed a second offence from a list of prescribed offences in the provision, they got life. They did not collect £500 or pass “Go”; they just went to prison for life. There was no judicial discretion. Let this be a lesson to us all about removing judicial discretion in general and from sentencing in particular.

The nature of that straitjacket on the judiciary led to injustices that are not dissimilar in many cases to the injustices we now see with IPPs, with people detained disproportionately to the offence in the first place and for far longer than is required to protect the public. With his Amendment 158, my noble friend seeks simply to apply whatever Clause 48 regime we end up with to this earlier cohort of prisoners. No doubt, this is a diminishing number, but none the less they should have this level of enlightened humanity and justice as well.

My noble friend also supports the progression action plan proposed in Amendment 159. No doubt, other noble Lords will speak to it. Part of the problem with IPPs is that so many people have been stuck in a system that was supposed to offer them opportunities for rehabilitation and progress which, in practice, never materialised. To this, my noble friend adds the scrutiny panel proposed in Amendment 160. Along with other noble Lords, he seeks to amend the release test to direct that someone be released unless the Parole Board is satisfied that their detention remains necessary and proportionate to protect the public from serious harm. Again, that seems very sensible if we are trying to nudge this correction of historic error on a bit. My noble friend Lord Blunkett further supports my noble friend Lady Blower in her policy for mentors and advocates. As an educator, she is more than qualified to speak to that. He also supports the noble Baroness, Lady Burt, in her highly sensible proposal that there be more aftercare in relation to the DPP sentence. This has the injustice of IPP but is applied to people who were children at the time of sentencing.

These are my thoughts and those of my noble friend Lord Blunkett. Together, we support everything in this group.

My Lords, I am grateful to the noble Baroness, Lady Chakrabarti, for mentioning the release test which is the subject of Amendment 161 in my name. Before I speak to it, I offer a word of sympathy and support to my noble and learned friend the Minister. He probably feels a little under pressure today. I hope that it is not so, because we are all on the same side with this. We recognise the compassion, seriousness and commitment that he has brought to this subject during his time serving in His Majesty’s Government.

Amendment 161 is also supported by the noble Lord, Lord Blunkett, the noble Baroness, Lady Chakrabarti, and the noble and learned Lord, Lord Hope of Craighead. It also has the support of the Bar Council, the Independent Advisory Panel on Deaths in Custody and others. Although the amendment is in my name, it is not actually my amendment. It was drafted by the late and much-lamented Lord Brown of Eaton-under-Heywood. As all of us recall, he burned with a passion on this topic and felt it very strongly. We miss him very much in these debates.

Briefly summarised, the effect of the amendment would be to change the burden of proof in the Parole Board’s release test specifically for IPP prisoners. The current test is as set out in Section 28 of the Crime (Sentences) Act 1997, as amended. The board must not direct the release of the prisoner unless

“the Board is satisfied that it is no longer necessary for the protection of the public that the prisoner should be confined”.

In effect, the prisoner has to satisfy the Parole Board that he or she is no longer a threat to the public. This is a high test and a high bar. The amendment would change that to create an assumption that the prisoner will be released unless the Parole Board is satisfied

“that it remains necessary and proportionate for the protection of the public … that they should continue to be confined”.

This is a subtle shift.

In fact, one of the objections I have heard to this amendment from advocates for IPPs is that it is not going to change things enough and that, in practice, the Parole Board will continue to apply tests of practical judgment to the question. However, I think it will have an effect, even if it is a small effect—the noble Baroness used the word “nudge”—in nudging the Parole Board in a certain direction, by making it clear what the will of Parliament is in relation to these prisoners, in particular, in the special circumstances that obtain.

I will deal with the question that was also raised about the relevance of the word “proportionate”, which the late Lord Brown introduced into the amendment. What does “necessary and proportionate” mean? Does it not include an element of vagueness that might somehow dilute the effect of the amendment? I do not think so. I think the word “proportionate” is meant to convey to the Parole Board that it should look at means of ensuring the safety of the public other than confinement in prison when it comes to consider these cases. That might include enhanced supervision in the community by way of tags or other devices, quite commonly used, that help to ensure that a released prisoner on licence remains broadly safe and not a threat to the public.

My recollection is that there is a section in the original 2012 legislation that would shift the burden of proof in the way that he describes. I remember the difficulty I had in persuading my then Prime Minister to enable me to put the abolition of IPPs into the legislation at all: I had to settle with him that we would put this into the legislation but not, for the time being, enact the change in the burden of proof. Could what my noble friend is seeking to achieve be delivered now by the straightforward provision of bringing that long-dormant 2012 section into effect?

I am somewhat crushed by the fact that the noble Lord is able to bring before your Lordships’ House a point he recalls, after 14 years, simply from memory but which I had to spend a large part of this afternoon looking up so that I could get the wording correct, and which I was about to turn to imminently. Because I was about to say that this amendment is not in any sense radical: it simply builds on a power that the Secretary of State already has, and makes it a duty.

My noble friend is referring—I am sure he recalls this better than I do—to Section 128 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012, which was, indeed, his legislation. That section gives the Secretary of State the power, by statutory instrument, to amend the Parole Board’s release test for IPP prisoners, not excluding the manner in which this amendment would oblige the Secretary of State or the Government to change the current provisions.

I heard what the noble Lord, Lord Clarke, had to say and I know that if my noble friend Lord McNally were in his place, he would say that when he, as a junior Minister, and the noble Lord, Lord Clarke, were at the Department of Justice, they were of the view that it would be a matter of a short time only until Section 128 would be implemented. It is a matter of great disappointment to my noble friend that it has taken until now—and indeed not yet—for that section to be implemented reversing the burden of proof.

I am very grateful. Again, my speech is being shredded in advance by points that I was about to make. Really, we are making it extremely easy for my noble and learned friend the Minister to agree with us. What we can all agree on, as a matter of fact, is that Section 128 of LASPO has not been implemented, 14 years on. It is for that reason that this amendment is being brought forward, leaving the Government with no choice but to oblige them, in effect, to deal with IPP prisoners in the manner that my noble friend has indicated was always the hope and intention.

In fact, I was going to make reference at this point to a remark made by my noble and learned friend Lord Clarke at an earlier stage when we were discussing IPP prisoners: he said that nobody at the time—in 2012—believed that there would still be IPP prisoners in confinement 14 years later. It is this point that I am trying to address. Very simply, this is a very small shift in a power that already exists for the Government. It is therefore, in effect, a very modest amendment and one that I hope both my noble and learned friend the Minister and the Opposition Front Bench will feel able to support.

My Lords, I shall speak to Amendments 159 and 160 in this group, which the noble Lord, Lord Blunkett, has asked me to introduce on his behalf, and in support of Amendment 161, which was spoken to so ably by the noble Lord, Lord Moylan, a moment ago. I join others in expressing great regret that the noble Lord, Lord Blunkett, cannot be here to speak to his own amendments. It was very good of him to suggest that I might take his place in the case of these two amendment, but I am conscious of the fact that I cannot match the contribution that he would have made had he been here. Along with others, I have admired the way in which, with commendable candour, as has been said, he has faced up to the enormous and wholly unforeseen problems that the IPP regime has created. He has done his very best to bring his profound understanding of our prison and parole systems to bear in the search for solutions to the problems, and the amendments in his name are the product of that endeavour. His contribution in person will be very much missed.

I come from a quite different background. When I served for seven years as Lord Justice General in Scotland, I visited all the prisons but one in that country and attended several meetings of its Parole Board. I did this because under the regime that was then in force one of my responsibilities was to advise the Secretary of State for Scotland when it would be in the interests of justice for prisoners who were serving a mandatory or discretionary life sentence to be referred to the Parole Board with a view to them being released on licence. In each of these cases, I was presented with files, often very substantial, that recorded the prisoner’s progress through various stages in the prison system. I felt that I had to visit the prisons, each of which had its own characteristics, in order to understand what I was dealing with. I also wanted to meet and speak to some of the prisoners who were there, whose names were never released to me, and on one occasion joined them sitting at a table, in their case almost for the first time in many years, to eat lunch with them using a knife and fork.

I admired the way the Parole Board went about its work, equipped, of course, with very substantial files. It was borne in on me how much attention was paid to what was in those files, how crucial it was that the files should be accurate, fair and complete and how much effort had to be put in by those who were reading the files and relying on them in order to understand the picture that they presented. I join the noble and learned Lord the Minister in expressing appreciation of the work done by the Parole Board in these cases, particularly the IPP cases, where the burden on it is so heavy.

We did not have IPP prisoners in Scotland when I was there and never have had, so I can only guess at the scale of the problems that all those who have to administer that system must face. However, there was, in my time, a very well-organised and properly funded training for freedom programme, which all life-sentence prisoners who had reached the appropriate stage would undergo.

Care was taken to see that those prisoners understood the plan and how their sentence was to be progressed; that played its own part in the eventual success of the plan that they were working to. Of course, I am speaking of how things were in Scotland 30 years ago. The pressures on the prison system, both there and here, are very much greater now, while the IPP system is in a class of its own. However, it gives a hint of background to the way the mind of the noble Lord, Lord Blunkett, was going when he proposed these amendments.

One further word of background: I, along with others, look back to the powerful and sustained contributions made on this problem from these Benches over many years by the noble and learned Lords, Lord Lloyd of Berwick and Lord Brown of Eaton-under-Heywood. I think it was the noble and learned Lord, Lord Lloyd, who was very much involved in the measures that eventually led to the changes brought about by LASPO. He went right back to the very beginning. From the very start, when I first came into the House, he was making strong speeches in favour of the need to change the system. We can recall much more recently the contributions by the noble and learned Lord, Lord Brown. I felt I owed it to them to contribute tonight because they are no longer able to be with us.

Amendment 159 seeks to place the Government’s existing action plan on a statutory basis and strengthen its effect by giving it a purpose that is set out in the statute. That purpose will be to ensure the effective rehabilitation and progression of persons serving these sentences. The Minister was kind enough to present to us, in his reply on the previous group, the overall framework that has now been developed in order, as I understand it, to improve on the existing plan. I hope that he will forgive me for saying what I am going to say—it is really a criticism of the plan that I think he is departing from—but it may indicate the way that the mind of the noble Lord, Lord Blunkett, is going as to how the existing plan ought to be improved. It may also assist in the development of the plan that is currently being worked on.

Amendment 159 sets out the position in a good deal of detail but the structure of the amendment can be summarised briefly in just a few words. First, in subsection (3) of the proposed new clause, it sets out in five propositions what the revised action plan must seek to do. In subsection (4), it sets out what the plan must include if it is to deliver that purpose. It then goes on to provide how that purpose is to be delivered. The Lord Chancellor must allocate sufficient resources and appoint a board to oversee the delivery of the plan, then the board must provide the Lord Chancellor with a report at the end of each financial year, which will be laid before Parliament.

As the noble Lord, Lord Blunkett, sees it, the present plan, although an improvement on the previous one, suffers from a basic and fundamental weakness: it has no stated purpose. It does not state what the outcomes for those serving these sentences are to be. They have not been given a forward plan that would allow for some hope and enable the sentence to be progressed, nor is it said how the process is to be monitored or evaluated. Although the prisoner’s case is to be subject to review every six months, these basic weaknesses remain; that enhances the sense of hopelessness, as has been mentioned in the earlier stages of these debates.

According to the figures I have been given—I will deal with them briefly—the quarterly number of releases has remained static at between 50 and 59 over the past three years. Re-releases have been declining while the number of IPP recalls has been increasing. The lack of any real progress shows that something must be done, although I accept the point that has been made: the more the number of IPP prisoners remaining in custody decreases, the greater the problems that one must face to consider them suitable for release. I absolutely understand that and am sure that the noble Lord, Lord Blunkett, appreciates it very well.

Of course, there are no easy answers and regard must always be paid to the protection of the public from serious harm, but we owe it to these unfortunate people to do more. There is an urgent need to review their needs and to provide each individual with a forward plan as to how their sentence is to be progressed, and that plan should be updated regularly. A whole range of issues needs to be covered, as referred to in subsections (3)(b) and (4)(b) of the proposed new clause. That really is the key. Their physical and mental health needs to be attended to and they need to be provided with daily and weekly activities including exercise, work and education, designed to develop their suitability for release. Their skills for everyday living in the community need to be developed too—such simple things as eating with a knife and fork at a table. So much more could be done with a stated purpose and a structured plan. That is what this amendment seeks to achieve.

Amendment 160 provides for the setting up of an independent scrutiny panel. The function of the panel would be to ensure that Ministers and officials give priority attention to the IPP prisoners and scrutinise each prisoner’s progress through his or her IPP action plan.

Finally, I very much welcome and strongly support Amendment 161 from the noble Lord, Lord Moylan. It deals head on with the unfairness which is such a stain on the justice system. Although those serving life sentences have for the most part been convicted of a more serious crime, it is the IPP prisoners—often initially with a very short period to serve as a tariff—who have to prove their lack of risk to be released. In their case, the burden of proof was reversed, while life sentence prisoners can expect to be released when their tariff has been served, unless the Secretary of State can show that they still present a risk to the public. We have seen what this has led to. It is surely now time for it to be changed, as the noble Lord, Lord Moylan, has been urging. That was what the noble and learned Lord Brown of Eaton-under-Heywood argued for so vigorously whenever he could. He would certainly have done that again this evening, had he been here. I hope that the noble and learned Lord the Minister can see his way to accepting this amendment.

My Lords, I support every single amendment in this group, particularly the “two strikes” part of the amendment from the noble Lord, Lord Blunkett, so ably introduced by the noble Baroness, Lady Chakrabarti. I am sure we have all had letters from individuals who are languishing in prison under the “two strikes” rule. For the sake of brevity, I will just talk about Amendments 165 and 166 in my name.

Amendment 165 comes from a concern at the lack of fulfilment of aftercare obligations for prisoners who have been transferred to a secure hospital and subsequently returned to prison. It amends Section 117 in Part 8 of the Mental Health Act. We are talking about approximately 400 people who will, arguably, need additional help to cope with their return to prison life and subsequent reintegration into the community. It will help clarify and highlight the existing Section 117 entitlement to aftercare for prisoners who have been transferred from secure hospital to prison and remain either in prison or out on licence in the community. These individuals can be defined as those who are entitled to Section 117 aftercare. Sometimes this does not happen and individuals either in prison or out in the community do not receive the aftercare they need or are entitled to. Clearly, this entitlement is and should be reflected in their release plan and will increase their chances of a successful transition into the community, reducing the risk of recall.

Amendment 166 addresses and seeks to mitigate some of the damage done in prison to IPP prisoners who are vulnerable to mental ill-health. It would apply to the additional aftercare duty in respect of IPPs who have never been released and are three or more years over their tariff. Approximately a third of IPP prisoners already had mental health issues at the time of their offence. On top of this, research by the British Psychological Society and Probation Institute says that the IPP sentence itself is characterised by a state of perpetual uncertainty and anxiety, fear, hopelessness, despair and a reduced sense of the future, leading to behaviour such as self-imposed isolation, self-harm and disengagement from their sentence progression.

The sentence also creates feelings of deep unfairness, injustice and mistrust of authority, which can also negatively impact their mental health. Prisoners who have been unjustly incarcerated have pretty much the same reactions—as well they might. Poor mental health has now become a prevalent characteristic of IPP prisoners. The British Psychological Society has said that IPP sentences cause acute harm to mental health. This damage is why many of us in this House believe there should be a resentencing exercise before more damage is done.

In any event, there is a very big job to do when these individuals are finally released. We know that the fear and anxiety caused by the possibility of recall not only causes further psychological damage but dissuades many IPPs on licence from seeking help. The noble Lord, Lord Carter of Haslemere, has already raised the case of Matthew Price. He was just a few months from eligibility for discharge from licence. His case is one which many noble Lords might be familiar with, because he entitled his email, which many of us received, “perpetual psychological torture”. It is so sad that he suffered in that way for so long. The noble Lord, Lord Moylan, wrote back to Matthew, encouraging him to hold on for just a short while longer, as did I. Matthew wrote that,

“this never-ending sentence … has crushed and broken me … I’ve now been released from prison for almost 10 years, yet I’m no nearer knowing when or if this nightmare will ever end”.

As we have already heard, he committed suicide a short while after he wrote this. My fervent hope is that if he had had proper continuing support and had not been afraid to seek help because he had had psychological support from the beginning, and if the current measures in this Bill to cut the licence period from 10 years to three had been in force, then Matthew, and many others, would still be with us today. We have damaged these people. Is it not therefore incumbent on us to do all we can to help put them back together again?

My Lords, I apologise that I was unable to be in the Chamber for the entirety of the Second Reading, although I heard most of it. I will speak first to Amendment 164, which is in my name and those of the noble and learned Lord, Lord Garnier, and the noble Lord, Lord Blunkett, who sadly is not in his place this evening.

As we have heard from many noble Lords’ contributions, serving and recalled IPP prisoners need practical help and support. The purpose of this new clause would be to give effect to some of that practical help and support, which they clearly need. As we all know and have heard several times from noble Lords, these prisoners are often so over-tariff that they have lost any hope of ever being released. They therefore need to develop internal, as well as external, means of support in the build-up to a parole hearing, as well as on release and in transition into the community.

The IPP mentor and advocate scheme would assist prisoners in formulating a detailed release plan with the help of an independent, suitably qualified individual. At the parole hearing, the mentor would provide practical support to the prisoner to assist them in making a clear and articulate contribution to the proceedings, although the new clause is perfectly clear that they would not provide legal advice or make legal submissions. On release, the formulated release plan would assist former IPP prisoners to make a smoother transition into the community and act as a blueprint for successful reintegration.

The organisations that are willing and able to help offenders with resettlement in the community are often not well-known to IPP prisoners, and localised, relevant resources would be signposted to the prisoner by this scheme. While in prison, the IPP prisoner could, with the help of the IPP mentor and advocate, establish communication with organisations relevant to their risk management profile and assist them with proposed resettlement needs. On release, of course, the IPP mentors and advocates would help them to implement their release plan and provide practical support, making further recommendations relating to their specific needs to strengthen their prospects of a successful reintegration into the community. The cost of such a scheme would be modest. Moreover, it would reduce pressure on the prison population, which is at capacity, and prevent recalls to prison.

As we know, there are many ad hoc mentoring schemes in which prisoners are assigned to a mentor to help them during their prison sentence or when they get out on licence. These can help with particular risk factors and provide general support and guidance. It is very important to recognise that IPP prisoners suffer from all these same issues. Whatever the reasons that took them into prison and got them incarcerated, they still need this help and support. One particular and distinct need relates to the fact that many of them—as has been said—have lost faith in the justice system. It is therefore important to ensure that they are given access, on a voluntary basis, to a mentor and advocate who can support them with the steps needed to ensure they are prepared for life in the community.

The scheme could, of course, be subject to a pilot in the first instance and would recruit suitably qualified individuals. These might be, for example, retired probation officers, members of an independent monitoring board, retired members of the Parole Board, or other suitably qualified individuals who have knowledge of the criminal justice system. Following the successful pilot, the scheme would then build up to, perhaps, 50 mentors and advocates working on a part-time or full-time basis.

While it is anticipated that the scheme will be centrally commissioned, there may be innovative ways to fund it using cross-budget resources. Clearly, the better resourced the scheme, the more effective it will be. It is anticipated—these are not my calculations but those of people who have a much clearer understanding of the situation and the likely costs—that the fully rolled-out scheme, employing up to 50 full-time or part-time mentors, would cost less than £3 million a year for a period of three years.

There are still 1,200 IPP prisoners who have never been released, and more than that on recall. Given that it costs the taxpayer £44,000 or £45,000 per annum—my figure is £44,000, but it may be that others know better and it is £45,000—to keep one prisoner in custody, if the scheme were to free up 67 places in the prison estate each year it would pay for itself. How much better it would be if these IPP prisoners were given this extra support, given the particular injustice that they have endured.

My Lords, it is a pleasure to follow the noble Baroness, Lady Blower, and I was delighted to be able to co-sign her amendment. It is also a pleasure to witness a debate in the Chamber this evening which has brought us together in unity, both of purpose and of experience. All of us, in our different ways, have had different experiences of the prison system, the courts system and of prisoners, and yet we have all reached the same conclusions, the starkest of which was presented to us by the noble and learned Lord, Lord Thomas, in the first group of amendments, when he observed, entirely correctly, that there is a reluctance to be bold. I would convert his observation—if I can do so while looking at a former Lord Chief Justice—into an injunction: we must no longer be timid, we must be bold.

I have absolutely no doubt that my noble friend the Minister and all his colleagues in the Ministry of Justice, and in particular the estimable current Lord Chancellor, are entirely well motivated in what they wish to see in relation to IPPs and indeed to other pretty appalling aspects of our prison system. However, having a benign intention, walking quietly and saying nice things is really not enough; the reluctance to be bold must be got rid of, because we need action. We need it for the reason that the noble Lord, Lord Carter, and the noble Baroness, Lady Burt, highlighted of the very sad case of the man on licence who took his own life.

I was very pleased indeed that the noble Lord, Lord Carter, was able to lead on the group of amendments we are now discussing, because if ever a speech fulfilled the promise made at a maiden speech, it was his. I am very grateful to him, because we constantly need prodding and reminding that IPP prisoners are not a subject to be spoken of once every six months, with sympathy and wringing hands. They are a living, constant problem, and indeed, as the late Lord Brown, said, what has been done to them is a stain on our justice system. We should all be very grateful, as I think a number of us have already indicated, to the late Lord Brown for the work that he did.

We should also be grateful to the noble Lord, Lord Blunkett, who is absent, for his change in attitude and his admission that he got it so badly wrong when he was Home Secretary in the early part of the Tony Blair Government. It is not difficult to salute him, because you can tell when you talk to him and listen to him that his change of heart is indeed sincere. So, if he can be bold in doing that, please will the Government be bold and get on and do what is right?

Like the noble and learned Lord, Lord Hope, and the noble Lord, Lord Hastings, I have spent quite a considerable time visiting prisons. I have probably said this before, and I can never remember the precise figure, but I think I have been to about 75 prisons, young offender institutions and secure training units in England and Wales—I have not been to a prison in Scotland or in Northern Ireland. It was abundantly clear, whenever I went to an adult male prison in which there were prisoners serving IPPs, from both looking at, talking to and interacting with them but also with the governing staff, that the most impossible group to manage were the IPP prisoners. They were literally hopeless. They had no future—no boundary and no observable, touchable limit to the torture that they were going through. That is why we must be bold, that is why we cannot allow this to go on, and that is why all these amendments, in every group, deserve the support of this House and the support of the Government.

I know I was in government for a very short time, but I learned while trying to push policy that Whitehall is covered in treacle. It is extremely difficult to walk purposefully and with some degree of speed and expedition across the departmental world which constitutes non-political government. The only thing I was able to achieve in government as a law officer, which is obviously not a policy-driven post, was, with the assistance of my noble friend Lord Clarke and other Ministers within the coalition, from his Prime Minister downwards to the Deputy Prime Minister, was to introduce deferred prosecution agreements. That required hard work, co-operation and determination, and that is what we need now when it comes to sorting out the mess of IPPs.

It seems that there is a pressing need in the last months of this Parliament to settle this issue now. My noble friend Lord Moylan was gracious enough to accept that he had had to spend all afternoon looking up what Lord Clarke already knew. I hesitate to confess that I did not know it, either—and I would probably have had to spend all week looking it up. But there is a mechanism there ready to be implemented, so what is stopping us? What is stopping the Government? It seems that there is also a political will in this House, and I suspect in the other place, to deal with IPPs along the lines of these amendments. It is a falsehood to imagine, as I suspect that my now noble friend Lord Cameron, the then Prime Minister, thought, that it would be electorally disadvantageous—

My noble friend is of course talking to an audience in this Chamber which agrees with every word he is most eloquently saying, and it is obvious that the Government should press on. The one thing he has not spoken of is the reason that Prime Ministers and Governments will not, and what it was that drove liberal-minded, sensible people such as Tony Blair and David Cameron to defend this IPP system. It is, straightforwardly, fear of public opinion, fear of the media—in particular of the tabloid press, but the whole of the media. The one thing even the most liberal Prime Minister, and certainly those who surround him in 10 Downing Street, is convinced of is that they must never be seen to be “soft on crime”. The only pressure that ever comes from No. 10 in response to some highly publicised crime is for longer sentences to be imposed for whatever criminal offence has currently come into fashion. In an election year, that is even more likely to apply and to be our principal problem today.

I am most grateful to my noble friend. I will have to check tomorrow morning the Hansard report of where I had got to in my speech; I have a suspicion I was in the middle of a sentence in which I was just about to say exactly what my noble friend said—but I am grateful to him, because he was able to say it so much more eloquently than I would have done.

We are in the position with criminal justice and sentencing that we were in the first decade of the 20th century with Dreadnought building. If the Germans have five, we must have six. If we have six, they must have 10. If they have 10, we must have 15, and so on —and guess what? You get 1914.

Here, we are dealing with adult, mature politicians who take instructions from editors and proprietors. Yet, if they bothered to ask the public—and occasionally the press do ask the public—they would find that the public are not nearly as keen on longer sentences or on IPPs as they might think. Had they been braver and bolder—as the noble and learned Lord, Lord Thomas, would have us be—perhaps we would not have arrived at where we are.

I regret that I have spoken for far too long in Committee, but over the last 25 years this issue has really annoyed me. I am so grateful to the Prison Reform Trust, of which I too am a trustee, for its assistance in trying to restrain my enthusiasm and, at times, my anger about this subject and for providing me with the information and the assistance which I hope have to some extent informed this debate. There is not a single amendment on the Order Paper this evening which does not deserve the gravest consideration of this Committee and the urgent action of this Government.

My Lords, it was a real privilege to witness that exchange and I think we are getting to the heart of why we are all here and are so passionate about this. I have a couple of short clarifications, because at this point by the time I get to my amendment on re-sentencing there really will be nothing else to say; I am rewriting my speech rapidly every time everyone speaks.

When I first heard about the indefinite sentences that were associated with IPPs—when they first came out in that arms race to prove how tough we could be on law on order—I was horrified. I was delighted when the noble Lord, Lord Clarke, abolished them; I thought that was it, because I was not in Parliament and not following. I went into prisons as part of work I was doing with an educational project called Debating Matters Beyond Bars which encouraged prisoners to debate and could not believe it when I discovered that, despite the sentences being abolished, there were still IPP prisoners.

In fact, I told the prisoners in my own characteristic way that they were wrong and that IPPs had been abolished and could not still exist. So I was determined once I got in here to at least discover what on earth had gone wrong. I cannot bear it, now we are tackling the issue, that, even though the sentences have been abolished, they will still exist when we have finished dealing with this Bill. It seems abhorrent.

I wanted particularly to back up the mentoring proposals from the noble Baroness, Lady Blower. If you talk to any families of IPP prisoners, or IPP prisoners themselves, they know that they have been destroyed and damaged by this sentencing regime. They are not gung-ho about it. They do not just say, “Release us, we’ll be fine”. What they would really gain from is mentoring. It is the kind of creative solution that would help us support the re-sentencing amendments. This is the kind of support that people will need.

It was hard not to shed a tear at the very moving speech from the noble Baroness, Lady Burt, who said that many of the people whose mental health was suffering had been destroyed by IPPs. But we should also note that it could well be that their mental health is not permanently damaged by the ongoing psychological uncertainty, anxiety, torture and so on. We need a combination of the mentoring scheme and a recognition of the fact that the sentencing is, to be crude, literally driving people mad—and the sanest person would go mad. You do not necessarily need medication; you need compassionate, grown-up intervention and support. In that sense, I support all the amendments in this group and all the others, but I really think that, for want of a better phrase, we have to be the grown-ups in the room now and try and sort this out.

My Lords, I particularly support the amendment from the noble Baroness, Lady Blower, although I support all of them. I also thank the noble and learned Lord, Lord Hope of Craighead, for remembering Lord Lloyd of Berwick in this debate. I recall him very well, indefatigably picking up this baton.

Many of us were alarmed when prisoners were added to victims in this Bill, but this amendment is absolutely with the grain of the first part of the Bill. We talked about ISVAs, IDVAs, child trafficking and guardians, and I recently heard about victim navigators who work as supporters and mentors to victims of modern slavery and human trafficking. We are all accepting the notion that, in slightly different ways, the criminal justice system does not do well by its victims—as has been said, IPP prisoners are victims—and that this needs addressing with a range of support measures. It is very much the direction of travel and I hope that this notion can be pursued.

My Lords, I support this group of amendments and it is a pleasure to follow noble Lords and benefit from their considerable wisdom—I am in awe of the learning and wisdom on display this evening. I do not want to repeat a lot of what has been said, so I will keep my speech very short.

I have one or two reflections on Amendments 165 and 166, to which my right reverend friend the Bishop of Gloucester has added her name. She is a regular visitor to prisons across the country and supports the network of chaplains in our prisons who have direct evidence in relation to the mental health of prisoners.

As others have said, we know that many IPP prisoners are stuck in the system and that appropriate psychiatric care in the community is not in place to manage their high-support needs. IPP prisoners suffer greater mental distress and disorders than the wider prison population and, in many cases, it can be said that the sentence itself is the cause of the distress. It disrupts relationships and inspires hopelessness, anxiety, despair and alienation.

I welcome the changes proposed through this Bill, but, for the sake of the prisoners in question and the wider community, we need to ensure that they are getting the appropriate aftercare that they are entitled to and that it is extended in the way proposed in Amendment 166.

My Lords, I am not a lawyer but I do have some experience of visiting prisons, thanks to the Koestler Trust, which takes art into prisons. I was quite a close friend of the late, much- lamented and learned Lord Brown, so I feel quite strongly about what I have heard. I have been very moved by this discussion and the toing and froing between quite considerable legal minds.

What I took from my time visiting prisons was that essential ingredient of hope. The arts sometimes gave hope but, of course, there were instances, which we have been hearing about with IPP, where hope had been vanquished. I want to make only one simple point. No greater tribute could be paid to the late Lord Brown than that the Government acknowledge the point he made, and that other noble Lords are making, and come to some arrangement to bring to a close this system, which is not only iniquitous but almost cruel. People need to know at the end of the day that there is some chance of once again leading a normal life.

My Lords, on the first group of amendments my noble and learned friend the Minister said that there was a cohort of IPP prisoners who had never been released and he suggested that it was because they did not meet the tests of the Parole Board. My concern is that the prison system has not been able to offer the rehabilitation necessary for these prisoners to demonstrate that they could safely be released. That is why I strongly support the amendment tabled by my noble friend Lord Moylan.

I also have strong support for the amendment tabled by the noble Lord, Lord Carter, particularly because it refers to prisoners whom the Secretary of State would release if he was able to but cannot. There must be a great cost to keeping those prisoners in prison who are there because the Secretary of State does not have the power to release them.

My Lords, this too has been a wide-ranging debate and more wide-ranging than that on the first group. I thank all noble Lords who have spoken because there are a number of amendments in this group, all of which push in the right direction. They are helping the Government to do what they say that they want to do.

The noble Lord, Lord Carter, moved Amendment 154, which is consequential on Amendment 168. That addresses what he called a lacuna and creates a power that mirrors the powers that the Secretary of State has to release prisoners serving a fixed-term licence. This is a very practical way of proceeding, and we support his amendment. My noble friend Lady Chakrabarti, in her characteristic way, asked why, if the Executive have the authority to recall, they cannot be given the authority to release—a very succinct way of summing up the amendment moved by the noble Lord, Lord Carter.

The noble Lord, Lord Moylan, in his Amendment 161, is effectively reversing the burden of proof for IPP prisoners. He described it as a nudge to the Parole Board and discussed how significant that nudge would be, but it is a welcome nudge, none the less. It has the historic credentials of being supported originally by Lord Brown of Eaton-under-Heywood. It is a welcome amendment.

We then had the very interesting intervention by the noble Lord, Lord Clarke, reflecting on the 2012 LASPO Act and that the provision was already in that Act and had just not been enacted by the Government. I remember the 2012 Act and the noble Lord, Lord McNally, taking it through the House as part of the coalition Government. I would be very interested to hear the Minister’s response to those points because it would be very difficult not to acknowledge the power of the arguments that have been put forward by noble Lords on Amendment 161.

The noble and learned Lord, Lord Hope, spoke to Amendments 159 and 160. He made interesting points about the independent scrutiny panel and other ways of pushing this in the same direction. We would support those amendments as well.

Perhaps the most moving speech was given by the noble Baroness, Lady Burt, when she read the email from the man who eventually killed himself. That amendment was about aftercare. As she said, we have damaged these people and we owe it to them to give them the extra support.

It was in that spirit that my noble friend Lady Blower, on her Amendment 164, spoke powerfully in favour of independent mentors, a pilot scheme and extra support in various ways. She was very powerfully supported by the noble and learned Lord, Lord Garnier, and the noble Baronesses, Lady Fox and Lady Hamwee. This seems to be a very practical way of supporting people. We have heard that the level of recall is increasing. This should be a mechanism of getting recall down, with people who are coming out of custody less likely to be recalled if they are properly supported.

This has been a wide-ranging debate. There have been a lot of practical suggestions and amendments. We want to encourage all of them, to get out of this Bill a package of measures to protect the public as appropriate and to move away from this sentencing regime, which has been so unfortunate for the last decade.

My Lords, following on from what the noble Lord, Lord Ponsonby, said, the Government agree entirely that our joint objective is to arrive at a package of measures that sufficiently protects the public while dealing with the problems of this existing sentencing regime. That is our overall objective.

My noble and learned friend Lord Garnier invited us to be bold. I suggest that the Government are already being bold in reducing the licence period to three years in circumstances where even the JSC recommended five years. We have already gone further than that very distinguished committee suggested. I do not think that anyone could accuse the present Lord Chancellor of a lack of determination or hard work. To continue the analogy used by my noble and learned friend Lord Garnier of us plodding through treacle, we are really trying to find sensible answers to very difficult questions.

In addition, on the general point of hope and certainty and the very tragic case of Matthew, who committed suicide after he had been in the community for 10 years, as I said earlier these government amendments deal with that point. The “three plus two years” have an automatic determination that gives hope and certainty. That is a very large step forward. It is not a total answer to the problem, but I invite noble Lords to take account of the substantial progress that we are making.

I pay tribute to my noble and learned friend and his colleagues in the department, including the present Lord Chancellor and Justice Secretary, who I suspect would privately agree with everyone who has spoken so far on these amendments. As the Government are to be congratulated on the very bold and significant steps that they have taken, as the Minister quite rightly says, and as, to my amazement, we have not had any widespread public reaction to it or even any awareness of it, is there a chance that he could sneak one or two further changes through in the concluding stages of this Bill? I am sorry to talk in such Dog and Duck terms, but that is the political judgment that we all are seeking to make. Everybody wants to get rid of the worst evils of the old IPP sentence.

I thank my noble friend Lord Clarke of Nottingham for inviting us to foregather at the Dog and Duck and consider what more can be done. I venture to suggest—hint is too weak a word—that there are things that we can still do. We may not be able to go as far as some of the amendments; in a moment, I will explain why the Government do not yet feel able—to my great personal regret—to accept the amendment proposed by my noble friend Lord Moylan. I will come to that in a moment. Let us look at what we think might be done and might be achievable.

I will take first Amendments 154 and 168, proposed by the noble Lord, Lord Carter of Haslemere. We have touched on the problem of recalls. We have noted that the Government are trying to reduce the delays in the Parole Board in dealing with recalls, which is one of the major problems. These amendments propose that the Secretary of State should have the power of executive re-release, which applies to fixed, determinate sentences. That is a power which in that context—forgive the jargon —is now referred to as a risk-assessed recall review, which is, in effect, a process for executive re-release. While the Secretary of State must have overriding regard to the need for public protection, the Government can see force in the amendments proposed by the noble Lord.

As I said earlier, those amendments might achieve by a different route the result of the amendments earlier proposed by the noble and learned Lord, Lord Thomas, in order to deal with the problem of inappropriate or other circumstances in which it would be right to exercise an executive power to re-release. If I may say it between ourselves—all this feels within the family, as it were, but of course we are talking to the entire outside world—a particular problem that arises from time to time is where the offender in the community is arrested for a new offence; he is then recalled and the police do not prosecute. What happens then? That is a classic practical problem that the power of an executive re-release might address; I make no promises or commitments, but the Government wish to engage further on this aspect as proposed by the noble Lord, Lord Carter, and supported by other noble Lords, and will give further consideration to it prior to Report. That is that.

Amendment 158, tabled by the noble Lord, Lord Blunkett, and the noble Baroness, Lady Chakrabarti, in relation to prisoners imprisoned under the so-called “two strikes” legislation under the Crime (Sentences) Act 1997, is a bit more complicated. As I understand it, although that legislation was abolished in 2005, similar legislation was reintroduced in 2012 and is now to be found in Section 283 of the Sentencing Act 2020, which provides for a life sentence for a second listed offence, the listed offences in question being set out in Schedule 15 to that Act. In terms of sentences of prisoners who are under some sort of two-strike legislation, we are dealing not just with the old 2005 cohort but with others as well. How we deal with those prisoners and in particular what would justify differential treatment of the various kinds of life prisoners we have seems to the Government an important and large question. The Government’s present view is that this problem is somewhat outside the scope of the Bill. That is not to say that we should not continue to consider it. The noble Lord, Lord Blunkett, should be congratulated on raising the issue and putting it further on the radar, and there would be no objection to continuing a dialogue on it, but in the context of the present Bill, it may be too far to go to deal with anything other than IPP. We will have to see, but, at the moment, the Government are not persuaded that that could come within the scope of the Bill.

We come to Amendments 159 and 160, tabled by the noble Lord, Lord Blunkett, which would put the action plan on a statutory basis and establish an independent scrutiny panel to measure progress against the plan. I can take this point reasonably shortly. The action plan is a real living instrument; it is there to provide further measures to support those serving IPP sentences, both in custody and in the community. There are multidisciplinary progression panels; a senior IPP progression board, chaired at a senior level, which meets quarterly; and an external stakeholder challenge group, which meets prior to those board meetings. There will be operational delivery plans from each of seven HMPPS operation areas for rollout in April, and various other specific measures. The overall purpose, to follow up on the point made by the noble Lord, Lord Berkeley of Knighton, and others, is to restore hope: to restore confidence that something is being done for these prisoners.

The question is whether this should have some statutory backing and teeth—some facility or process for parliamentary scrutiny, for Parliament to be kept informed, for the Secretary of State to report and all the rest of it. The Government obviously do not want to be tied down in detail on the actual content—word for word, sentence for sentence—of a particular plan. However, one could imagine—I speak again indicatively —that there is a good argument to be advanced for a form of statutory backing and having an action plan; for some indication of what should be in that action plan in broad terms; for a process for that plan to be laid before Parliament, and for the Secretary of State to be accountable to Parliament for its contents, so as to reinforce the commitment the Government are making to do their best to sort out this problem. The details would remain to be considered. It is a matter I would greatly welcome a dialogue with other noble Lords on as we move forward, but I think that would reassure everybody, to an extent at least, and reinforce this message of hope we are trying to convey. That is our position on Amendments 159 and 160, for which, in his absence, I warmly thank the noble Lord, Lord Blunkett. I associate myself with all the remarks that have been made about him and his exceptional integrity in the context of this debate.

I turn to Amendment 161, tabled by my noble friend Lord Moylan, which would change the release test applied by the Parole Board. It has echoes of what the noble Lord, Lord Clarke of Nottingham, and others have said about Section 128 of LASPO, which was, it seems, never brought into force. In this context, I associate myself with was said about the late and much lamented noble and learned Lord, Lord Brown of Eaton-under-Heywood, and the noble and learned Lord, Lord Lloyd of Berwick, whom many of us remember very fondly indeed.

At an earlier stage, my noble friend Lord Moylan was kind enough to inquire after my personal well-being. I am fine, but it gives me personal difficulty to have to say to your Lordships that the Government are not quite persuaded of the need for or desirability of my noble friend’s Amendment 161. There are basically five reasons for that. Some are more important than others, and I will identify the most important one.

As your Lordships know, elsewhere in the Bill there is a clear reaffirmation of the release test based on public protection grounds. The first point is that the Government are reluctant to take a different approach to IPP prisoners that would not necessarily be consistent with the general thrust of the Bill and the general public protection test set out in the Bill. We need consistency across the Bill.

Secondly, despite arguments to the contrary, the Government feel that the amendment is based, to an extent, on a misapprehension that there is some burden of proof, even if not a formal one, on the prisoner to justify their release. The Government do not consider that there is such a burden of proof or that there should be such a burden on the Secretary of State, because the question for the Parole Board is an objective one as to whether it is safe to release the prisoner. That question is not, and should not be, subject to any presumption in favour of or against release. The implied suggestion that the cards are always stacked against the prisoner is, in my respectful submission, rebutted by the fact that about 80% of those originally sentenced under this provision have been released at least once—so we are down to a last cohort, if you like.

This is the most important point, which the noble Lord, Lord Ponsonby, very fairly started with. I share his look of regret that we are dealing with this very difficult problem. The purpose of Amendment 161, as the Government understand it, is to make it easier to release the remaining cohort, but by definition this cohort is the most difficult of all to manage: they have been up before the Parole Board many times, some as many as 10 times, and many three, four, five or six times. The Parole Board has never so far been satisfied that they are safe to release, so making it easier to release those—

Unlike other prisoners, they may have been up before the Parole Board many times, but this is long after their tariff has ended and the sentence originally given was handed out to them. That is quite a distinction from other prisoners. The suggestion that they are a particularly difficult group to manage because they keep going before the Parole Board slightly misses why they have become a difficult or different group. The main thing is that they would have been released if they were any other group of prisoners, yet they have to go to the Parole Board to say that they are safe and risk-free maybe five or six years after their tariff has ended. That is why people see the burden of proof being in the direction it is in. They also have to fulfil a range of courses and so on, which people are not convinced will even indicate that they are safe anyway, but we will get on to that. To the suggestion that we do not understand why anyone is raising this, it is because the set of circumstances for these prisoners is very different. That is why we are all here talking about it.

My Lords, I entirely understand the point that the noble Baroness is making, which effectively encapsulates the problem that we are up against: how do we protect the safety of the public on the one hand and, on the other, deal with the outstanding problem? I think the Government’s point is that to make it easier to release those prisoners who are potentially most likely to cause harm is counterintuitive and unacceptable from the point of view of public safety.

I did not suggest that they were more likely to cause harm. The argument is whether we accept that they are deemed dangerous and therefore cannot be let out through the Parole Board, because what deems them dangerous is a set of hoops that they have to go through and that do not necessarily indicate that they are dangerous. That is one of the difficulties with this. It is doublethink and double-talk.

My Lords, as I have tried to say, the whole purpose of the action plan is to create a framework in which this cohort, properly managed, could progress to safe release, with sentence plans, psychological support, support from psychology services and other support towards a safe release. That is a better route than tinkering with the release test. I will not say it is exactly a legal quibble, but it is a bit of a legalism to be fiddling with the release test.

The problem is that the Parole Board is made up of real-life men and women with a very heavy responsibility. There is an underlying fear about the consequences of ever releasing somebody who then goes on to commit some terrible crime. The reality is that they contemplate the appalling reaction that they would get in the media, the public inquiry that would condemn them and the destruction of their reputation if they ever moved to let out somebody who did something terrible. Ministers share the same reserve when it comes to undoing this.

The proposal to alter the burden of proof was designed to give a little encouragement, a little more courage and a little help to people in getting over that fear of the recriminations if they ever made a mistake. It would be an explanation that the Parole Board could give if it had let somebody out. Then, it could detain only those where it was satisfied that it could see that there was a risk from the person being released. That would make a great change to the numbers being released. At this stage, in the interests of justice, the risk to the public is one that we should contemplate as not as severe as everybody fears.

I see the force of the points being made by the noble Lord, Lord Clarke. I respectfully suggest that the fear of the media is not the driving force in the case of this Lord Chancellor or, if I may say so, his Parliamentary Under-Secretary of State currently at the Dispatch Box. We are looking at the real question of public safety.

If I may ask it rhetorically, who speaks for Pauline Quinn? Admittedly, that was not an IPP case. Pauline Quinn was aged 73, was disabled and could not protect herself. She was brutally murdered by a convicted killer released on licence. I respectfully suggest that these risks are very difficult for any responsible Government to take, irrespective of what the media might say.

This raises another point. At the moment the Government are not convinced that this would make a significant difference, because the Parole Board, even under the revised test suggested by my noble friend Lord Moylan, would still have to be satisfied on the issue of the protection of the public. It is perfectly likely that one is simply raising false hopes. It does not change the process that the Parole Board has to go through to look at these very difficult individuals, who are very much at risk of harm and very difficult to manage in the community.

If you read the 2023 report from the Chief Inspector of Probation, you see how difficult it is to manage these individuals—those who have already been released, not the unreleased cohort. This is a very difficult area. At the moment the Government are not persuaded rightly or wrongly that it is a correct approach to make it easier to release dangerous people. That is the Government’s position, and I have explained it as best I can.

I want to ask the noble and learned Lord about the word “proportionate”. Is there an objection to that word? It is key, because it enables you, in judging safety, to take into account the responsibility of the state for what we have done to these people.

The Government’s position, frankly, is that the word “proportionate” causes more difficulties than it solves. It suggests that the test should be some sort of balance between the risk that this prisoner may present to the public and some sort of fairness or other consideration of the particular interests of that prisoner. The whole thrust of the Bill—it is not just the clauses that we are dealing with at the moment but Clauses 41 and 42—is to say that the public protection test is a public protection test: that is the only criterion. So the Government do not, I am afraid, accept that “proportionate” is a useful or necessary addition to this clause.

I just need to finish. Noble Lords come at me from all directions, which is perfectly fine, but I need to finish the group.

I turn next to the amendment proposed by the noble Baroness, Lady Blower, with the idea of mentors. I can see the point she is making, the strength of the argument and all those things, but it might be that this amendment overlooks what we have at the moment: the probation officer manager in the prison, who is responsible for that prisoner; the key worker in the prison, who is also responsible for that prisoner; and the community offender manager, who will look after that prisoner in the community. In addition, we already have in the prison all kinds of other support services, including the chaplains mentioned a moment ago by the right reverend Prelate.

The Government are hesitating about the wisdom of introducing yet another person into this already comprehensive structure—or what the Government believe is a comprehensive structure—by way of a statutory provision for mentors. That is not to say that there could not be better organisation of voluntary agencies or, despite what I have said, some other route to consider whether there are ways of strengthening the support of prisoners on some non-statutory basis. However, in view of the present arrangements for the prison offender manager, the key worker and the community offender manager via the Probation Service, the Government are not yet persuaded that mentors would be a proper statutory route to go down. I am sorry I could not get closer to what the noble Baroness is driving at. I very much thank her for her suggestions. I am sure that her intervention puts the question on the radar and advances the debate, but that is the Government’s position.

Amendments 165 and 166, tabled by the noble Baroness, Lady Burt of Solihull, are directed at clarifying entitlements to aftercare and related issues. It is perfectly true that Section 117 of the Mental Health Act 1983 provides that those who are entitled to that support should receive it, and the protection of mental health through the action plan is part of the action plan. There are further measures in that regard through the progression panels and the use of the psychology services.

People in prison are entitled to exactly the same range of health service care arrangements as people in the community, and there is a national partnership agreement with health and social care in England. I hope I am not seen as doing less than justice to these amendments, but the bottom line on this is that, through the action plan and other measures, there are wide-ranging efforts to support mental health aftercare and the mental health of prisoners. The Government are not yet persuaded that a statutory amendment to the Mental Health Act is required to advance that cause. On this, as in other contexts on this Bill, the Government are, of course, still in listening mode but, at the moment at least, we are unpersuaded that this is a proper way forward.

I hope that I have dealt, if not necessarily to noble Lords’ satisfaction, as best I can with the points made. I invite noble Lords not to press their amendments.

My Lords, I am grateful to all noble Lords who have contributed to this constructive, powerful and moving debate, on all sides. Some heartfelt comments have been made. I could not begin to summarise them without detracting from their force. I thank all your Lordships for this.

I have written down some positive points, including some phrases shared by the noble Lord, Lord Moylan, and the noble and learned Lord, Lord Garnier, all on the same side. One was “unity of purpose”. That is encouraging. I think I even heard the Minister say “within this family”, which is a lovely phrase to use in debating something as emotive as this.

We have a unique opportunity. These occasions to make a difference for this cohort of prisoners, who have been treated so unfairly, do not come up very often. I urge the Minister to keep an open mind on everything that has been said and on these amendments, all of which would improve the position of IPP prisoners. I am very grateful to him, and encouraged by his reaction to my amendments. I urge him to have that same openness of spirit and to be bold for the sake of this group of prisoners, who have been treated so unfairly over the years. That injustice is continuing. With that, I beg leave to withdraw my amendment.

Amendment 154 withdrawn.

House resumed. Committee to begin again not before 8.08 pm.