Criminal Justice Act 2003 (Suitability for Fixed Term Recall) Order 2025

Considered in Grand Committee

Moved by

That the Grand Committee do consider the Criminal Justice Act 2003 (Suitability for Fixed Term Recall) Order 2025.

My Lords, this Government inherited a prison system on the brink of collapse. The previous Government added just 500 net spaces to our prison estate, while at the same time sentence lengths rose. As a result, the prison population is now rising by 3,000 each year and outstripping supply.

When we took office, we were left no option but to introduce a temporary change to the law that allows prisoners serving an eligible standard determinate sentence to be released on licence after serving 40%, rather than 50%, of their sentence in custody. This enabled the end of the dysfunctional and unmanageable end of custody supervised licence scheme. But we knew this was a first step.

Since taking office, this Government have delivered almost 2,500 prison places. In the most recent spending review, we committed a further £4.7 billion to open 14,000 more by 2031. This is the largest prison expansion since the Victorian era. That longer-term investment is necessary, but not sufficient in itself, to avoid the capacity issues that we have faced in the criminal justice system for many months. In May, the Lord Chancellor announced that the adult male custodial estate across England and Wales was forecast to run out of places by November this year. Alongside the Government’s long-term building strategy and sentencing reform, this grave projection requires immediate action, particularly in respect of the current use of recall.

Last October, we commissioned the independent sentencing review, led by the former Lord Chancellor David Gauke, to find sustainable policy solutions and ensure that no future Government are ever again in a position where we have more prisoners than prison places, and are forced to rely on emergency release. This review suggests that recall should be rare and a last resort, replacing standard and short-term recalls for those on standard determinate sentences with a 56-day fixed-term recall. The Government have in principle accepted this recommendation, which requires primary legislation to implement.

A Bill will soon be introduced to implement many of the review’s recommendations. However, it will take time to take effect. The impact of sentencing reforms will not be felt before spring next year. We therefore remain in a critical position until then. Our custodial estate stands as a reservoir filled to the brim. Any further influx risks overflow, with serious consequences for the system and society alike. That is why we are taking targeted action on recall, which remains a significant driver of prison demand.

The recall population has more than doubled since 2018, from 6,000 to 13,600 prisoners in March this year, without a corresponding growth in offending rates. With more people in prison and under community supervision serving longer sentences, recall rates have naturally increased. When recalled, offenders serving standard determinate sentences can currently receive either a standard or a fixed-term recall. The length of a fixed-term recall is set out in primary legislation. It is set at 28 days if the sentence is 12 months or more, or 14 days if the sentence is under 12 months. During this time, the Probation Service will put in place robust risk management plans and stringent licence conditions for their release. After this period, they are automatically re-released. Those not suitable for a fixed-term recall may currently receive a standard recall, under which they remain in custody until the end of their sentence, unless re-released earlier by the Secretary of State or the Parole Board. Our latest data shows that at least 48% of all recalls are fixed term rather than standard.

If further information is received following a recall that the offender has been charged with an offence, that they are a terrorist or pose a terrorist risk, or that they would be managed at MAPPA levels 2 or 3 on release, they may be detained for longer on a standard recall at the discretion of the HMPPS public protection team. Their re-release would then be determined by the Parole Board or the Secretary of State.

I am most grateful to the noble and learned Lord, Lord Thomas of Cwmgiedd, the noble Lord, Lord Watson of Invergowrie, and to all the noble Lords and noble Baronesses serving on the Secondary Legislation Scrutiny Committee for their diligence and expert review of this order. Their thoughtful scrutiny and commitment to upholding the integrity of secondary legislation are greatly appreciated. I would like to respond to their comments and provide assurances to this Committee on matters which I know are at the forefront of your Lordships’ minds.

The extent of this instrument and its territorial application is for England and Wales. An impact assessment has been prepared for this instrument and has been published. It concludes that there will be an increase in demand for various services due to an increase in referrals. This includes probation, community accommodation, local health services and electronic monitoring services. We have been working closely with partners nationally and regionally to ensure the impacts of this measure on services are well understood and manageable, and to ensure that they are sufficiently resourced to respond in the immediate and longer term.

I am grateful to the noble Baroness, Lady Newlove, for the thoughtful and important concerns she raised regarding victims in her letter to the Lord Chancellor following the announcement of our intention to legislate for this measure. Her long-standing advocacy in this area is incredibly valuable, and her contributions continue to inform and strengthen our approach. I recognise the concerns raised about the potential impact of this measure on victims, particularly survivors of domestic abuse, and on public safety. I assure noble Lords that these serious matters have been at the forefront of our considerations. However, as I have noted, the consequence of not acting is catastrophic. This reform is targeted and proportionate and the safeguards are robust. The exclusions we have established are purposefully designed to capture those assessed as posing a higher risk, thereby ensuring that these individuals can remain subject to standard recall procedures.

Let me be clear that victims are central to our work. We are determined to both support victims now and to reduce reoffending, so that there are fewer victims in future. Current or potential risk to victims continues to inform all release planning. Probation will impose appropriate licence conditions, such as tagging, curfews and exclusion zones. Any offender who breaches these conditions, or whose risk is considered elevated, can once again be recalled to custody. Victims who have opted into the victim contact scheme will still be notified and retain their statutory right to make representations in relation to the licence conditions imposed. For those not eligible for this scheme, established public protection practices remain, and police may still issue disclosures where there is imminent risk. Measures in the Victims and Courts Bill will enhance victims’ access to information about an offender’s release, strengthening confidence in the system.

I do not shy away from the reality that an increase in the number of offenders managed in the community will place additional demands on the Probation Service. It is vital that the Probation Service is properly equipped and resourced to deliver this change effectively. We are already making progress to rebuild the Probation Service’s capacity. We are committed to recruiting 1,300 trainee probation officers in 2025-26 to help meet additional demand, having exceeded our ambition to recruit 1,000 trainees last year. We are reducing the administrative burden on probation officers by investing an initial £8 million in pilots of new technology. This will allow probation officers to focus more of their time on those higher-risk offenders, who need closer supervision to reduce the risk they pose.

I have seen how much impact probation officers can have when they spend time one to one with an offender, helping to rebuild lives and creating valuable members of society and fewer victims. We are increasing probation funding by up to £700 million by the final year of the spending review; that is an increase of around 45%. This will mean thousands more tags, more staff, and more accommodation to ensure that offenders are tracked and monitored closely in the community. We are working closely with Serco to ensure that any additional demand on electronic monitoring is deliverable in the introduction of these new measures. We remain confident in our ability to expand the electronic monitoring service.

Probation’s capacity will continue to be closely monitored as new measures are introduced across the service. The Ministry of Justice carefully considers any policy changes with operational colleagues and workforce modelling teams. A transformation programme is also under way, which aims to ease workload demands and streamline processes for probation staff.

This draft instrument is necessary to avoid an imminent capacity crisis, freeing enough prison places, as safely as possible, to ensure that the criminal justice system can continue to operate effectively until the implementation of longer-term reforms.

My Lords, I am grateful to the Minister for outlining this SI. Both the Prison Service and the Probation Service are in a mess. There is no point in wasting time apportioning blame. My family motto, ar bwy mae’r bai—who can we blame? —is used far too much in modern situations.

The criminal justice system is out of kilter. There are not enough judges. There is no money to fund the number of sitting days for which the Lord Chief Justice has called. There are not enough prosecutors to man the courts that do sit and it is no longer profitable for barristers to appear for the defence. The simple consequence is that there are 17,000 remand prisoners sitting idly in cells awaiting trial. That is nearly 20% of the prison population. Compare that to the 1,300 new prison places that this measure envisages.

The next problem is the length of sentences. There is no God-given standard for the amount of time a person should spend in prison for an offence. An eye for an eye is about as far as the Bible ever took us, along with a lot about forgiveness and redemption. Henry VIII made himself head of the Church, but 72,000 people were executed in his time, 75% of them for theft. In Elizabethan times, the death penalty was imposed for theft of more than a shilling. There were no problems of an excessive prison population at that time, but neither did it solve the crime problem.

When I was in mid-flow in my practice in the 1980s, sentences were probably a half to two-thirds of what they are currently, but political competition created a demand for longer sentences. Which party could be tougher on crime? They were fully aided by the media in this, and public pressure to increase sentences was the result. I discussed this with the late Lord Judge, when he was Lord Chief Justice. The gist of his reply was that you must expect the judiciary to react to and follow what the public want. The recent battle between the Lord Chancellor and the Sentencing Council was deeply depressing; they should really be on the same side.

My Lords, I declare my interest: I was the lead non-executive director of His Majesty’s Prison and Probation Service from 2018 to 2025. I support the proposal that the Minister has put before us. I note the noble Lord’s family motto, but am nevertheless compelled to observe that many of these short-term fixes that are being put in place to deal with the capacity crisis could have been addressed by the last Government much sooner.

I think I am right to say that the recall population is growing faster than the overall prison population as a whole—no doubt, if that is not correct, the Minister’s officials will correct me. Nevertheless, we should have addressed the growing recall population long before we were forced to by the capacity crisis. Too many offenders are recalled with little benefit and much disruption. This reform, small though its impact is—the noble Lord is quite correct about that—will put a brake on the length of recalls but not reduce substantially the number of offenders recalled. As the Minister said, we will have to wait until the implementation of the sentencing reforms proposed by David Gauke to make long-term reform to the numbers of people being recalled. I hope we will address that problem robustly. As I say, I support this reform, but we really need to put an end to these short-term fixes and get a grip on the whole sentencing issue. We will have the chance to do that before long.

I have two caveats of concern in this proposal. First, I quite understand the concerns that people have about the public protection safeguards, particularly for offenders who have committed offences involving domestic violence. The Minister referred to those and I know from my experience in HMPPS that the safeguards are robust and I hope that they will protect those victims appropriately.

I am also concerned about probation capacity and capability. There is no scenario, if we implement this reform and the others that are coming, in which the probation system will need to do less. It will have to do a great deal more and a lot quicker, and, as the Minister said, it will be dealing with much more high-risk offenders. I should like some reassurance from him that the resources that have been made available in the spending review and wider reforms, including the use of technology that he talked about, will really make a fundamental step change in the performance of the Probation Service, without which all this would not be adequate.