Sentencing Bill

Debate between Lord Carter of Haslemere and Lord Bach

Committee stage
Wednesday 3rd December 2025 Lords Chamber

[Lord Bach (Lab)]

My Lords, my Amendment 94A touches on an issue that arose in a number of important speeches at Second Reading, particularly one by the noble Lord, Lord Carter of Haslemere. I thank the Prisoners’ Education Trust for its advice with this amendment. It relates to the issue of earned progression, which all noble Lords know is at the very heart of the Government’s worthy intention in this Bill: to restore our criminal justice system so that it can once again, in time, be the envy of the world. The issue is what the earned progression model means, or perhaps ought to mean, now and in the future, and it is one of the few differences in approach between the recommendations of the Independent Sentencing Review, or ISR, and the policy of the Bill we are debating.

The executive summary of the Independent Sentencing Review says at page 10:

“While it is for the Government to decide which of the Review’s recommendations it will accept, the Review considers its recommendations as a holistic package of measures that will work best in conjunction with each other”.


I believe that the Committee will say amen to that. The ISR’s superb report, produced so speedily and clearly, along with the Minister’s own convictions, experience and obvious passion, are the catalysts for these once-in-a-generation, long-overdue changes to our outdated penal system.

It is not unknown for there to be differences in matters like this, even in those of serious importance. Here, though—and this is important to my amendment—there is good will on all sides and in no way is this amendment intended as anything other than a friendly, and hopefully helpful, contribution. It is obviously right when scrutinising the Bill, as is our duty, that these differences be openly debated.

Put simply, at page 57 of its report, the ISR argues:

“The criteria for compliance should include, but not be limited to, compliance with prison rules. Actions which violate prison rules”,


which it then sets out,

“and do not follow lawful instructions by immigration officials in deportation proceedings … would result in the offender’s release point being pushed back”.

It goes on:

“The criteria for compliance should also include the expectation that the offender will engage in purposeful activity and attend any required work, education, treatments and/or training obligations where these are available. This Review holds the view that, as prison capacity eases and fuller regimes become possible, compliance requirements for earned release should become more demanding”.


The Bill, on the other hand, argues that the criteria for maximum early release will be limited to complying with the prison rules. Once those are complied with, the maximum discount will be available. The arguments for the ISR’s stronger criteria are well known and were set out at Second Reading here and, if I may say so, in an excellent speech by my honourable friend Linsey Farnsworth MP at Third Reading on 29 October in another place. I can summarise those arguments. First, there is the danger of too many recalls if no purposeful activity has been undertaken by the offender. Secondly, there is no need for positive effort by the offender, who knows that they will be released if they do nothing wrong. Thirdly, there is the even greater pressure on the Probation Service. These are attractive arguments to me and many others; however, the Government’s response must be listened to. I anticipate that they will not oppose the principle that earned progression should involve something more than obeying prison rules, but that the reality of the present position, bequeathed as it undoubtedly has been, is that for the prison system to function in the near future, it is necessary to ensure that prisons are never put under such pressure of numbers. Thus, the Government propose weaker criteria.

This is an important issue, but people of good will who want this new system to work can see the strength of the arguments on both sides of the case. That is why it is important that a way through be found, both now and in the future.

My amendment suggests that there should be a statutory reminder in the Bill that, in due course, regulations should be introduced to alter the criteria for participation in purposeful activity. Indeed, the Minister in the other place said that the Government would like to go further. There are alternatives to my amendment, and we may hear about them in due course.

I will make two urgent points before I sit down. First, there needs to be an even greater effort, as a matter of urgency, to increase the amount of purposeful activity across the board. I pick out education, which is crucial to any future success. It is rumoured that cuts have been made to the education budget. Can the Minister tell us the truth of the matter on cuts? Secondly, all this argument places extra concentration on the Probation Service. As this Committee has heard time and again, it is at the heart of any success or failure of this brave new scheme, and that should be remembered when we are looking at this issue. I beg to move.

[Lord Carter of Haslemere (CB)]

My Lords, I am going to comment on Amendment 94A tabled by the noble Lord, Lord Bach, and then I will present my Amendments 95 and 128. I declare my interest as a trustee of the Prison Reform Trust.

I very much agree with the spirit of the amendment tabled by noble Lord, which he presented very powerfully. As I said at Second Reading, earned release is a commendable rehabilitative concept, but this Bill, as the noble and learned Lord, Lord Keen of Elie, just reminded us, allows early release at the one-third point without any real rehabilitation having been earned. A prisoner will earn early release at the one-third point merely by behaviour which avoids additional days for breaches of prison rules such as offences against discipline; threatening, abusive or violent behaviour; or possessing unauthorised articles.

The experience of the Criminal Justice Act 1967 teaches us that release is truly “earned” only if the offender engages in meaningful purposeful activity and attends any required work, education, treatment and/or training obligation, where these are available. Only then can they be said to have taken steps to rehabilitate before their release. The amendment tabled by the noble Lord, Lord Bach, recognises that the capacity and staffing crisis in prisons is such that access to purposeful activity is severely limited, and that early release cannot currently depend on engagement in purposeful activity. It therefore proposes an enabling power so that, when the time is right and staff capacity issues allow, provision can be made for purposeful activity to be taken into account in deciding early release at the one-third point of the sentence, not least to give prisoners an incentive to undertake purposeful activity which they otherwise would not have.

I previously supported, and indeed suggested, this approach at Second Reading. However, it raises issues of fair and equal treatment of prisoners, and the quality and consistency of the regime available to them. I listened carefully to the debate on Monday on the amendment tabled by the noble Baroness, Lady Neville-Rolfe, on mandatory purposeful activity for custodial sentences, and it was clear that there are concerns about the impact on prisoners who are unable to take part in many forms of purposeful activity due to learning or physical disabilities, as well as problems with the estate having insufficient resources to provide such opportunities. Amendment 94A therefore has the potential to create unfairness for prisoners who are not offered such opportunities or cannot take them up for reasons beyond their control. However, I am very interested to know the Minister’s view, especially on when this sort of change might be feasible, since it is obviously sensible when resources allow.

I now turn to my Amendments 95 and 128, beginning with Amendment 95. For certain serious violent and sexual offenders, the Bill retains an automatic release point of 66% without an opportunity for earned release at the halfway point. The new clause introduced by Amendment 95 would bring this cohort into the scope of earned release. The Secretary of State would be empowered to exercise his or her discretion, at the 50% point in the sentence, to refer the case to the Parole Board for consideration of release. It thereby gives effect to the recommendation of the ISR that a progression model apply to all prisoners serving a standard determinate sentence.

This amendment and my next one relating to EDS prisoners would not create the same risk of unfairness that I mentioned in relation to the amendment of the noble Lord, Lord Bach, since the Parole Board would consider a much wider range of factors than purely “purposeful activity”: for example, whether the offender has worked on addiction issues, whether they have addressed their offending behaviour or whether they will be honest with their offender manager, et cetera.

Victims and Prisoners Bill

Debate between Lord Carter of Haslemere and Lord Bach

Report stage
Tuesday 21st May 2024 Lords Chamber

[Lord Carter of Haslemere (CB)]

It was Winston Churchill; I am corrected—both great names.

If we have progressed at all from the way prisoners were treated in the past, we should be enabling whole-life prisoners to find some meaning and purpose in a life that is certain to end in prison. This includes providing opportunities for them to have some social interaction and build relationships, even though they can never expect to be released—in fact, especially because they can never expect to be released. This reflects the long-standing legal position. It is trite law now that prisoners enjoy basic human rights, such as respect for their private and family life, their religion, freedom of expression and access to a lawyer etc. Under Article 12, prisoners have the right to marry and form a civil partnership.

My noble friend Lord Pannick has already referred to the case of Frasik. I will quote again that passage from the court’s judgement, because it is so powerful. Imprisonment, the court said, does not mean that those detained

“cannot, or can only very exceptionally, exercise their right to marry”.

Yet is that not exactly what Clauses 55 and 56 say? The ECHR memorandum conveniently sidesteps that by saying that marriage by whole-lifers

“undermines public confidence in the Criminal Justice System”.

We have just heard from my noble friend Lord Pannick on that one; it is, in effect, code for “offends public opinion”. But the Frasik judgment, as my noble friend said, says that the Bill cannot do that—it cannot automatically prevent prisoners forming marital relationships.

It is not all about the law either. Compelling legal points, such as those we have mentioned, often arise from a rotten policy, which is what we have here. The Government’s justification seems to be the case of Levi Bellfield. Awful as that is as an example of the right to marry being abused, it is one case of about 70 whole-lifers in the system. They have all committed terrible crimes, but their whole-life tariffs are the punishment for that. Even Ministers have recognised that we send people to prison as punishment, not for punishment. Automatically denying prisoners, even whole-life prisoners, the right to marry or enter a civil partnership amounts to nothing more than the state imposing additional, entirely gratuitous punishment on this cohort of prisoners for no reason other than to show the public that it is tough on crime.

The noble Lord, Lord Ponsonby, expressing his personal views at Second Reading, put it well when he described it as a “petty measure”. The noble Lord, Lord German, who unfortunately cannot be with us tonight, rightly called it cruel. It also punishes prisoners’ partners, who are entirely innocent in all this. It punishes them emotionally, of course, but it may also affect their entitlement to, for example, a widow’s pension on the death of a whole-life prisoner or a spouse’s exemption from inheritance tax. Has any consideration been given to the effects of this policy on partners? I would be most grateful to know the answer to that.

There is a simple solution to the Government’s wholly justified concern about the Levi Bellfield case, which would deal with all the legal and policy objections that have been mentioned. The existing law entitles a prison governor to refuse an application to marry or form a civil partnership only if it would create a security risk to the prison. Why not ditch Clauses 55 and 56 and legislate to widen the basis for refusing such applications to include cases where there are reasonable grounds for believing that the application is not made in good faith but from some improper motive? This could easily be made legally watertight to minimise the possibility of unfounded legal challenges.

In conclusion, and at this late hour, in the dying breaths of the Bill, I urge the Minister to ignore the word “reject”, which is in his briefing notes in capital letters, underlined, in bold type. Why not surprise everybody, not least his officials, by agreeing now to remove Clauses 55 and 56 and adopt the more proportionate, but no less effective, solution that I have just proposed?

[Lord Bach (Lab)]

My Lords, I do not intend to say much, for the very good reason that I do not have to. The arguments put forward by the noble Lord, Lord Carter of Haslemere, and particularly by the noble Lord, Lord Pannick, are overwhelming. I do not want to put the Minister, for whom I have huge respect, on the spot, but I have a suspicion that he has more than a bit of sympathy for the arguments that have been put.

The only point I want to make is this: commentators have said that, when the Minister and the Secretary of State came to their positions, there was likely to be a different attitude towards issues of this kind than there was under some predecessors. The evidence is that that is true, and we have seen examples tonight and this afternoon of the Minister no doubt using his influence in persuading the Secretary of State to have sensible views and change the Bill where it needed to be changed.

This is exactly a case of a clause that is both against the European legislation we have adopted and against all common sense; it should be removed. It would be a real shame if this Bill, which contains some really excellent stuff on both prisoners and victims, has at the tail end of it, as the noble Lord said, this rather ridiculous and very anti-British way of dealing with this issue—so I do ask the Minister to please think again.