Criminal Justice Act 2003 (Requisite and Minimum Custodial Periods) Order 2024

Motion to Approve

Moved by

That the draft Order laid before the House on 17 July be approved.

My Lords, following the Oral Statement which I repeated in this House on Wednesday 24 July, your Lordships will know that our prisons are in crisis. The male prison estate has been running at around 99% capacity for 18 months, undermining safety for staff and offenders and making the justice system vulnerable to unforeseen events. If we do not act urgently, our prisons will reach full capacity, and the justice system may grind to a halt. The courts would have to stop holding trials, the police would be unable to make arrests, and criminals would be free to act without consequence. If we do not act now, this will become reality by September. Taking immediate action is the only way to protect the public from a breakdown in law and order.

I want to assure your Lordships that we have explored all options. In the little time we have, we cannot build more prisons nor add more prison blocks. While we are deporting foreign national offenders as fast as is legally possible, this will not save enough places to address this crisis. Much of the pressure comes from the straightforward growth in the remand population—those who are in prison awaiting trial. While we are committed to making progress on remand, it would take time that we do not have. This has left us with only one option.

Before I set out the details, let me say that I am grateful to your Lordships for agreeing to bring this SI forward before the Joint Committee on Statutory Instruments has been re-formed and therefore able to consider it. As I have already set out, this change may be implemented with urgency. It has therefore been necessary to ensure that we have a full debate on the substance of the issues as soon as possible. I look forward to reading the committee’s report and that of the Secondary Legislation Scrutiny Committee.

Returning to the SI that we are considering today, it will change the law so that prisoners serving eligible standard determinate sentences will have their automatic release point for those sentences adjusted to 40% rather than 50%. This will mean that around 5,500 offenders will be released in two tranches in September and October. They will leave prison early to serve the rest of their sentence under strict licence conditions in the community. Thereafter, all qualifying sentences will continue to be subject to the new 40% release point. This change applies to both male and female offenders. It also applies to some youth offences, specifically youth sentences under Section 250 of the Sentencing Act 2020, which are imposed on under-18s for more serious offences. They are included, because such offences are likely to end their term in the adult estate. However, as these sentences are for serious crimes, many are likely to be excluded from this measure, as I will go on to explain.

While this measure must address the crisis in our prisons, this must be balanced with public protection. Therefore, certain sentences will be excluded. The worst violent and sexual crimes, which are subject to a 67% release point, will not be eligible. Neither will serious violent offences subject to a sentence of four years or more under Part 1 of Schedule 15 to the Criminal Justice Act 2003. Sexual offences will be excluded, including offences related to child sexual abuse, and we will exclude a series of offences linked to domestic abuse, including stalking, controlling or coercive behaviour and non-fatal strangulation. National security and terrorism offences under the Official Secrets Act and the National Security Act 2023, and offences determined to have been carried out for a foreign power, will also be excluded, as will serious terrorism offences and terrorism-connected offences, which remain subject to a 67% release at the Parole Board’s discretion. No sentence subject to Parole Board release will be included. In each case, we have excluded specific offences rather than cohorts of offenders. That is a legal necessity. The power to make the SI applies to the release point of qualifying individual sentences, rather than to types of offender. In addition to these exclusions, there will be stringent protections in place around an early release.

This new legislation’s six-week programme release planning period will give the Probation Service the time it needs to prepare. It will deliver more predictable and stable release dates, meaning that the Probation Service will have sufficient time to work with all offenders to prepare them for release and to consider and arrange accommodation for them. That is particularly important for offenders who are at risk of being homeless, and who can access transitional accommodation for up to 84 nights. Probation services will also have more time to ensure that offenders leaving custody have continuity of healthcare, including mental health support.

ECSL did not have the same exclusions that this new legislation has. It provided no exclusions for offences linked to domestic abuse, stalking, non-fatal strangulation, controlling or coercive behaviour, or for order breaches, for example of non-molestation orders or domestic abuse protection orders, which are excluded in this SI.

ECSL was one of a series of decisions that must be examined more fully. That is why the Lord Chancellor announced a review into how this capacity crisis was allowed to happen. The review will look at why the necessary decisions were not taken at critical moments and will conclude by the end of the year; we will shortly be appointing an independent chair for it.

However, the measure that I have set out today does not end the prison crisis or provide a long-term solution. It buys us time to take further measures to address prison capacity, not just now but in the future. Later this year we will publish a 10-year capacity strategy outlining the steps the Government will take to acquire land for new prison sites. It will ensure that building prisons deemed to be of national importance is a decision that is placed in the Minister’s hands. We must also drive down reoffending, which I am personally committed to achieving. A stronger Probation Service will be crucial to that, and we will start by recruiting at least 1,000 new trainee probation officers by the end of March 2025, bringing forward an existing commitment to address the challenges more quickly. We will also work with prisons to ensure that offenders can get the skills they need to contribute to society on their release, as well as bringing together prison governors, local employers and the voluntary sector to help them into work, because we know—and I have seen first-hand—that having a job makes offenders less likely to reoffend.

The prison population remains within a few hundred places of criminal justice collapse. I learned recently just how challenging the situation is when we had to temporarily close HMP Dartmoor last week, taking around 200 places out of the prison estate. Although we are able to withstand that loss of capacity, any further challenges, be that a further loss of supply or an unexpected increase in demand, could tip us into crisis. Until this measure takes effect, we will continue to monitor the prison population closely and be ready to introduce further emergency measures if required. We are not out of the woods yet, but I am proud to be part of a Government who will take the necessary action and brave decisions necessary to protect the public. The change that we are debating today is the only safe way forward in the time we have available to act. I beg to move.

My Lords, I welcome the Minister to his position; this is the first time I have been able to debate with him. I hope he has plenty of time to sort out the mess of the prison system. I support the order; there is obviously no alternative to passing it.

The Minister touched on the reasons why that has occurred. My understanding is that the offender management unit in the Ministry of Justice calculates what the demand will be for prison places, taking into consideration all the changes in legislation. Anything that we do in legislation makes it change its calculation, and I am pretty confident that the unit told Ministers a long time ago that we had problems. One reason why I got involved in looking at the penal system was a debate initiated by Lord Brown of Eaton-under-Heywood in 2017 on overcrowding in the prison system. We just let it go on and on until eventually we had to do something, which is exactly what the Minister is doing.

My only question is: is there any scope to do something about unnecessary recalls? Released prisoners can be recalled for fairly trifling bureaucratic reasons, which causes a lot of disruption and an increase in the prison population. Also, is there any scope to reduce the remand population, which the Minister mentioned? I look forward to supporting the Minister in his work.

My Lords, it was a pleasure to hear the categories that will not be up for release, because nobody wants sexual predators and misogynists out on the streets—so I am delighted to hear that. But when the issue of prisons comes up, we always have to ask ourselves: what are they for? They ought to be for keeping dangerous people off the streets, but that is not what we do at the moment; we throw into prison an awful lot of people who should not be there. Through the Minister, this Government could think about changing who we put in prison because, quite honestly, the number of people going to prison is ludicrous when you think about some of the crimes they have committed.

Drug law reform is an obvious area. It seems absolutely ridiculous to put people in prison because of drugs offences when they have access to even more drugs there than they do out on the streets. Prisons are failing in that way, and I would be interested to hear what the Minister had to say about drug use in prison. Unfortunately, our new Prime Minister has indicated that he wants to continue the ideological war on drugs. Can the Minister at least review the evidence from the Advisory Council on the Misuse of Drugs and publish its advice? The Conservative Government kept it secret because it called for the decriminalisation of personal possession of drugs.

It is good to hear about restorative justice, which is something further that that this Government could talk about. It is a voluntary process whereby people who have been harmed can work with the people who have caused the harm and perhaps identify how both parties can resolve or move on from it. We had amendments on this to the Victims and Prisoners Bill, so it would be good to hear the Government’s thoughts on this area.

Of course, if we are going to let people out of prison, we have to remember the scandal of the IPP prisoners. I was sad that the Minister did not mention them today because that category has clearly suffered the most incredible injustice. The legislation was designed to keep serious offenders in prison, but instead we ended up with nearly 3,000 people, most of them non-violent, trapped in prison. IPP prisoners turn to suicide and hunger strike. This is a legacy of the last Labour Government that the new Labour Government need to fix, as I pointed out.

I wonder whether I may ask a very simple question. I very much support what is being put forward, but in my history no Government have ever answered the simple question: how come Britain locks up so many more people than comparable countries in the rest of Europe? It seems pretty barmy. I do not feel any less safe in Paris or Berlin than I do in London, and yet both those countries do not lock people up in the way we do. It is a fundamental and simple question. I hope very much that we will pass this, of course, but I hope it will be in the context of the Government being the first of any political party—the previous Labour Government refused to look at this as well—to look at this fundamental question and ask themselves, “Why?”

The answer must be that there are better ways of doing what we are trying to do. If it means ignoring pressure from the Daily Mail, then I am afraid that is what we have to do. Given the brave statement the Chancellor of the Exchequer made today about cuts, it might be a very good opportunity for this Government to take a new look at why we lock people up.

My Lords, I welcome the noble Lord to the House and to his place on the Government Front Bench. He is getting an easier ride on this statutory instrument in your Lordships’ House than might be the case in a more populist environment, but I have no difficulty in lending my support to it as well. Like the noble Baroness, Lady Jones of Moulsecoomb, I want to focus my few minutes on IPP prisoners.

It is clear, of course, that there are mathematical challenges involved in reducing from one percentage to another a quantum that starts out being indeterminate, and so a straightforward application of reducing from 50% to 40% the sentences imposed on IPP prisoners is not going to work. That is obvious and straightforward, but it does not mean to say that we should be passing by these prisoners when we consider this instrument, and yet that is in fact what we are doing.

The noble Baroness, Lady Jones of Moulsecoomb, gave some figures earlier. Your Lordships’ House is familiar with this scandal, and she described not only the numbers but the mental health issues people are suffering. I would add only two things. She did not mention—I am sure she would have, had she gone on—the mental health problems caused to the families of IPP prisoners, which are serious and persistent and have gone on for years, in many cases. Nor did she say, as has been said by other noble Lords—not least the noble and learned Lord, Lord Thomas of Cwmgiedd, on a number of occasions—that the root cause of these mental health problems does not arise from the prisoner himself, or in a few cases herself, but from what we have done through the criminal justice system to these people. It is on us that they have these mental health problems.

I read in the press—here, I am possibly setting myself up to be slapped down by the Minister—that the Minister has said that IPP prisoners cannot be included here because they are peculiarly, particularly or distinctly dangerous, as opposed to prisoners with determinate sentences. As I am sure he would agree, on reflection, that is simply not the case. What is distinctive about IPP prisoners is not the danger they pose but the nature of the sentence they are serving. There are far more dangerous people with determinate sentences who will be released at the end of their sentence, however dangerous they are, be it after 40%, 50%, 67% or 100% of their sentence. The doors of that jail will open and they will walk free, however dangerous they are. It is not the danger they pose to society that determines whether prisoners are released; it is the character of the sentence imposed on them, and that needs to be borne firmly in mind. With that in mind, I have three questions to put to the Minister. I will fully understand, of course, if he is not able to answer them today, and if he is not, I am sure he will want to take the opportunity to write.

Thirdly and finally, and slightly more vaguely, will the Minister, as he takes this statutory instrument through—and he mentioned the possibility of further legislation—consider whether there is scope for bringing IPP prisoners within this approach, and seeing that their release at greater pace, although not necessarily in every case, can contribute to the Government’s objective here, which is to relieve the pressure on the prison system? They should not be ruled out as a matter of course but should be looked at on a sympathetic basis where that can be done safely.

We have all welcomed the Minister in three debates on three successive sitting days, so he has been thrown in at the deep end of parliamentary accountability. However, he has received some pretty sound advice from all the preceding speeches, including in the well-directed questions from the noble Lord, Lord Moylan.

Today what we are faced with from a parliamentary accountability point of view is not satisfactory. We know that the Government are caught in a difficulty whereby they have had to deploy a statutory instrument without it having gone to the Joint Committee on Statutory Instruments, on which I have served. That is a shame, because that committee and its excellent team of advisers go through statutory instruments in great detail and sometimes find mistakes. They occasionally find mistakes that throw into question the validity of the instrument and the ability to enforce it, so I hope that extreme and extra care has gone into the drafting of this instrument, which is quite complicated. For example, there are 54 excluded offences, and many other complications affecting various categories of prisoner. So we hope that it is looked at very carefully—and, in a defect is found, we hope that the Government will come back at a later stage with a revised instrument.

What we have today is not a policy but a response. The Minister gave some indications of how policy might be developed, but we are not there—we are not at that point. We are simply observing a government response to a desperate crisis, which any incoming Government would dread—well, it is happening. It is the result of underinvestment and delayed investment in prison building over a long period and the constant rise in the number and length of custodial sentences, as well as the large rise, to which the Minister referred, in the number of remand prisoners, which itself is largely the result of the huge backlog in serious cases coming to court, as part of the wider chaos that we find in our criminal justice system. I ask the Minister: is it in fact the case, as alleged in the press, that sentencing hearings for prisoners on bail have been deliberately delayed to avoid further sentences sending people into our already overcrowded jails?

My Lords, I am intervening just to ask a question. The Minister used the word “stabilised” twice, I think, during his presentation of this instrument—he is looking forward to a stage when the Government can feel that the prison crisis has stabilised. Can the Minister explain a little more of what he means by the word “stabilised”? The point is this, as the noble Baroness, Lady Jones of Moulsecoomb, made clear: we are sending too many people to prison, and therefore one of the ways of stabilising the problem is by addressing rigorously the overuse of prison as a means of punishing crime. I am sure the Minister is well-equipped to carry out that campaign.

The other feature of our present treatment of offenders, particularly serious offenders, is the length of the prison term. I was Lord Justice General in Scotland some years ago, when I had the task of reviewing the tariffs to be imposed on discretionary life prisoners. These are people who, unlike murderers, were sentenced to life imprisonment because of the gravity of the crime they had committed. The average tariff I was imposing in line with what was the current practice then—this was about 20 or 30 years ago—was something like 11 years; now, it is way above that, at 17 or 18 years, or more, and lengths of sentences are going up into the 30s. In my time as Lord Justice General, such lengths of sentences were quite unimaginable, and I am not sure it is doing any good except to keep people in prison longer than ever before. That is why the crisis has grown. There is a fundamental problem that has to be addressed, and I urge the Minister to explain what he means by “stabilise”. Perhaps the Minister could also address more closely—not today, and not even in writing to me, but later, in discussion with officials—how the problem can be corrected, so that we do not find ourselves in two years’ time facing the same crisis we are facing today.

Beyond that, I commend the drafting of the regulation. I think a great deal of thought has gone into the measure. It has been carefully thought through and, as a means of dealing with the crisis, it is exemplary. However, it is the underlying problem that must be addressed, not the particular crisis itself.