Imprisonment for Public Protection Scheme

Question for Short Debate

Asked by

To ask His Majesty’s Government what progress they have made in producing a new action plan for offenders still serving indefinite sentences under the Imprisonment for Public Protection scheme.

My Lords, I am most grateful for the opportunity to bring this issue before your Lordships’ House today. My noble friend Lady Hamwee, who originally managed to secure this debate, has stood by to allow others more time to speak, as this is an important issue about which noble Lords feel strongly, given the number who have put their names down to speak today. I will follow her lead by being as brief as possible in my remarks

I heartily welcome the report of the House of Commons Justice Committee on IPP sentences. The report pulls no punches in its description of the dysfunctionality of the current IPP system and the mental toll it takes on those trapped within it. It makes clear that unless considerable resources and improvements to the system are employed, the current rump of about 3,300 IPP prisoners—either on recall or never having been released at all—will not diminish significantly anytime soon.

I do not want to spend time going into the history of how we got here—only to say that, since 2016, several action plans have been implemented—but progress has been slow, to put it mildly. The current plan focuses on 15 different work streams, each of which seeks to tackle a different aspect of the problem, such as mental health issues, progressive transfers and so on. This is clearly ineffective without resources and without regular monitoring, reviewing and evaluation of the effectiveness of the different programmes.

The report recommends a fresh action plan to include clear performance measures for each work stream, someone accountable, and a timeframe for completion of each activity. Then we will know what the targets are and be able to measure how effectively they are working within the target timescales. The committee recommended that this revised plan be published by around March 2023.

I must tell the Minister that I have a lot of questions, and if he is unable to answer any of them today, will he kindly undertake to write to me and other noble Lords with the answers?

On the new action plan recommendations, are the Government currently working on a new action plan along the lines of the Justice Committee’s recommendations? Will they at least aspire to meet the timescale for producing the plan recommended in this report? Will the plan include clear performance measures for each work stream? Will someone be held accountable for performance within a specific timeframe?

The report is graphic on the psychological harm caused by IPP sentences. Will the MoJ and the HMPPS set out how they intend to improve access to mental health support? Will the Government publish the commissioned report by Professor Paul Moran into the offender personality disorder pathway by this December, as the Joint Committee report recommends?

Another major inhibitor to progress is the lack of appropriate parole preparation courses. Long waiting lists add time to sentences before the prisoner can even reach the starting gate for assessment. Will the MoJ and HMPPS ensure there are enough places on courses?

My Lords, that was a masterly introduction to this debate, and I am honoured to follow it. As the noble Baroness, Lady Burt, says, this report is to be welcomed greatly.

Your Lordships’ House has long recognised the shocking injustices suffered by all those sentenced under this scheme—injustices continuing and growing 10 years after its abolition. We have hitherto been given to understand that the other place, the all-powerful elected Chamber, is unpersuadable; we have been told they do not have the appetite to change the law in a way which could put at liberty some who could reoffend and who are currently—however unfairly and most of us regard it thus—lawfully locked up.

This House of Commons report is not so hard-hearted, but nor is it soft-hearted; rather, it is hard-headed. It contains a masterly analysis of the wrong and what is necessary to put it right within the system. At last, it is recognised that the scheme has resulted in a gross injustice. IPP sentences are effectively life sentences by the back door. The committee describes it as “preventive detention”, imprisoning people

“on the basis of what they might do, rather than on the basis of what they have done.”

As the committee recognises, the only actual, long-term, final solution is for those still affected to be resentenced according to just principles.

Of course, everybody ever sentenced to an IPP sentence—between April 2005 and December 2012, until its prospective abolition under LASPO—is still subject to this injustice; not only those still detained, many for years beyond tariff dates and several beyond the statutory maximum for their offence, but everybody. That is a total of 8,711 IPPs, the only exceptions being the tiny handful who have finally secured the discharge of their licences by definition, 10 years after their initial release. All these are to be regarded as victims of an unjust scheme, who desperately need far greater help than most have been getting in order to secure and then retain, at long last, their liberty. As the committee recognises, what is needed now is an intensive, well-resourced, new scheme, custom built to maximise the prospect of safe and sustainable release for this whole cohort of our unfortunate fellow citizens. The report points the way ahead.

My Lords, in a short debate such as this, it is often not possible to say anything at all and certainly not anything original. However, the two previous speakers, the noble and learned Lord and the noble Baroness—I congratulate her on achieving this debate—have demonstrated that my first premise is wrong. I congratulate them on what they had to say.

That said, I happily refer once again to my connections to the Prison Reform Trust and a few other charities connected to the welfare of prisoners, and pay tribute to the small band of noble and noble and learned Lords, many of whom are taking part in this debate, who have kept the continuing injustice of indeterminate sentences for public protection before your Lordships’ House, the Government and elsewhere.

I shall make a couple of points. First, the Commons Select Committee report is a powerful document, as the noble Baroness made clear. It needs to be taken seriously by the Government and not just put in the “too difficult” file. The Government must act quickly on the recommendations that can be dealt with now and make a solemn promise, despite the many other matters on the public agenda, to produce a plan or schedule to deal with those recommendations that will take a bit more time. Whatever the timetable, the work must start now. Procrastination or equivocation will no longer satisfy the need for justice to be done and for hope to be restored to all those still incarcerated many, many years after their tariffs expired. The burden of proof is very much on the Government to show why no or little action is the answer, and why those still in prison beyond their tariff or those who have already served longer than the maximum for the underlying offence should not be released.

Secondly, historians can occasionally identify watershed moments in the past which turned events. There have been debates, books or public events which, it can be said with the benefit of hindsight, influenced, or even catalysed, the course of history. Is it too fanciful to ask my noble and learned friend the Advocate-General to recognise that we are now at a time when the Government must do things about IPPs which in the future can be seen to have made that real and civilising difference? This sentence, which the noble Lord, Lord Blunkett, has bravely admitted should never have been enacted, was abolished 10 years ago; let us strike out now and clear its foul stench from our justice system. If our forebears stopped sending children up chimneys and abolished slavery, I rather think that we can get rid of the remaining injustices caused by IPPs. Can I see a Wilberforce or a Shaftesbury on the Treasury Bench?

My Lords, I look to the noble and learned Lord, Lord Garnier, for a sign that the message has got home. This injustice should never have happened in the first place but, having happened, surely there is a very heavy burden on the state to rectify the injustice for which it is responsible. I hope this reminder, if it is needed—I hope it is not—gets home and persuades the House and those responsible in this area of government that enough has been enough.

My Lords, I pay tribute to the noble Baroness in securing this debate and to the noble Lord, Lord Blunkett, who has admitted that this was a mistake.

I want to make three points. First, we now have what is essential for policy, which is an evidence-based report. The committee listened to everyone on all sides. It has produced a clear analysis. The conclusion from that analysis is clear: although there are a few people who present an ongoing danger for a long time, the position of the vast majority needs reconsideration as incarcerating them for longer puts the public at greater risk.

Secondly, we must bring to an end delay, procrastination and failing to grasp the problem. It is very long standing. When I visited Leeds Prison in February 2006—some months after the sentence had been introduced—it was clear that the problems that have emerged were already apparent. There is no excuse for the inordinate and inexcusable delay. The report sets out with absolute clarity the effect of inaction. Inaction in many cases does not necessarily make the position worse but in this case it has. I have sat on cases where it is self-evident that the terms of the IPP sentence have made the prisoner more dangerous. That we cannot go on with. The reasons are set out with the utmost clarity. They are completely accurate and I need say no more.

Thirdly, I welcome all the solutions, but in the time allowed I will say something about resentencing. This was first raised with the Government by me in 2010, so it is nothing new. There are very good examples of where the judiciary and the Government have worked together to get sentencing right. The 2012 Act was got right with such work, save for this one problem. The experience of dealing with resentencing on murder—in which I had a role to play—has worked. Although there are difficulties, they can be overcome.

My Lords, it is an honour to follow the noble and learned Lord. I read yesterday his judgment in the Roberts case in 2016, in which the Court of Appeal described the circumstances of various offences which had led to the imposition of IPP sentences in the relevant period. The court, for the reasons explained in its decision, had to reject the appeals because they were not good as a matter of law, but I was left reflecting that those individual offenders had committed offences that were certainly serious—they were not trivial—but far from being the most serious types of offence that come before the courts. Those offenders, if still in prison, and some may well be, would have been sitting in prison now for 15 years or so watching other offenders come and go. These other offenders who had committed markedly more serious offences and have since been released while they remain in prison, unable to obtain parole for a number of reasons powerfully and devastatingly set out in the House of Commons committee report.

Coming for the first time to understanding the detail of this shocking state of affairs, the reasons, it strikes me, include the following. First, an outrageous lack of resource was made available following the imposition of this new and strange regime. Secondly, the striking fact, as given in evidence by a number of prisoners, is that prison is sometimes not an easy place to demonstrate that one is of a peaceful disposition. It is sometimes a place in which it is unwise to make that claim to your fellow inmates. Thirdly, and most troubling of all, is the fact made so strikingly in this report that this regime, with its unfair and cruel imposition of potentially indeterminate imprisonment, has itself impaired the mental health of many of these prisoners in a way that has made it even more difficult for them to satisfy the Parole Board release test.

I think there are still around 3,000 IPP prisoners in prison. That is a shade over a third of all those subjected to these sentences in the first place. That is a lot of prisoners. Apart from the possibility of a resentencing exercise, which I can see will generate problems, but may well be inevitable—if it is going to happen, it should happen now—there is one possibility that I respectfully ask the Minister to consider in his response. It is that canvassed by the committee report, namely using the power under Section 128 of the LASPO Act 2012 to reverse the burden of proof for IPP prisoners when they make their applications to the Parole Board so that the burden rests on, as it were, the state to demonstrate that the relevant prisoner remains dangerous. That would reduce some of the current unfairness.

My Lords, rarely can a report from a Select Committee have been welcomed with such joy by those directly affected by it. What is perhaps most welcome about it is its sense of urgency and dispatch. We have discussed this topic for quite a long time now. We have had warm words and sympathy from Ministers, but we have not had evidence of the urgency and dispatch that this report so rightly calls for. Ministers and officials wish to be seen as just, but they know that they are practising a major injustice. They wish to be seen as humane, but they know that they are continuing a monument to inhumanity.

Think about this briefly from the point of view of those affected: prisoners who are told that they are in prison for life but can get out if they demonstrate this, attend certain courses and go through certain hoops. They then find that they cannot demonstrate it: the courses are not available or, if they can get on one, they then find they might be moved to another prison before they can attend it. No wonder their mental health has deteriorated. No wonder they do not talk about it. Look at paragraph 49:

“I don’t speak to staff as any mention of a mental health issue goes on your prison record and will be brought up at board and can block release. The truth of it is we are all suffering from mental health problems because of the sentence but we are frightened to speak up”.

Imagine being in that position.

Think about the licensee, the person out on licence, having to demonstrate for 10 years that they are of good character or whatever, subject to being capriciously taken back into incarceration. Look at paragraph 115, which tells you that the majority of those taken back into prison have not committed a further offence; they have simply failed to satisfy their parole officer that they should remain out.

Think also here about the psychologists involved: people who are there to heal, but know that by giving a correct clinical judgment about the mental health of the prisoner, they are not assisting that prisoner but condemning him to continue in the circumstances that are the cause of the mental health problem. They feel deeply compromised in the role they are asked to carry out in prison in dealing with IPP prisoners. One of the most touching things in the report was the evidence of the prisoner who said that the best thing that ever happened to him was being sent to a mental hospital during his sentence, because at least there he was treated like a human being.

My Lords, I thank my noble friends Lady Burt and Lady Hamwee for securing this debate and pay warm tribute to Sir Bob Neill and his committee. Sir Bob has been a constant supporter of prison reform and that is reflected in this report. I also send my good wishes to the new Prisons Minister, Rob Butler MP, who was an assiduous and thoughtful member of the Youth Justice Board during my tenure between 2014 and 2017.

My locus in this debate is that I was the Minister who took the LASPO Bill through the Lords and abolished IPPs—as we thought. I made it clear that good existing IPPs would be dealt with by various means, including prisoners being able to earn their release through various training schemes and rehabilitation programmes, to which the noble Lord, Lord Moylan, just referred. The truth was that that idea was foiled by the various Catch-22s to which the noble Lord referred, including a lack of resources.

No one has claimed that LASPO denied judges the opportunity to hand down strict sentences—I was pleased to hear the noble and learned Lord, Lord Thomas, refer to this—and the LASPO regime has stood the list of time. What remains is a hangover, which both the Minister who introduced IPPs, the noble Lord, Lord Blunkett, and the Minister who thought he had abolished IPPs, have said does not work as we thought it would and remains a stain on our justice system.

Let me put one shade of doubt into our debate. Throughout my time in the Ministry of Justice, attempts at prison reform were knocked back by 10 Downing Street with the simple message “not politically deliverable”. Throughout this time, we have had to face the problem that both Front Benches have been keen to avoid being outflanked on the right by being seen to be soft on prison reform. I fear that this is still the problem and it will need a great deal of courage to overcome it. This is not a plan to set free dangerous criminals but what a civilised country would do. I hope the Minister has come with a brief accepting the report and committing the Government to legislative action to right this wrong.