Release of Prisoners (Alteration of Relevant Proportion of Sentence) Order 2019
Debate between Lord Ramsbotham and Lord Marks of Henley-on-Thames(4 years, 3 months ago)
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Lord Marks of Henley-on-Thames (LD)
My Lords, this order is a populist response to perceived public concern and uninformed press comment. Lacking any genuine evidence base, it is, I regret, one among several policies for putting more people in prison, for longer, without any proven justification. The only possible argument in its favour is the simplistic one that individual offenders will be in prison for longer and so personally unable to commit further crimes during their extra time inside.
The impact assessment contains this core justification for the Government’s proposal. Referring to the serious offenders affected, it states:
“They have been given a lengthy sentence to reflect the seriousness of their offence, and, because these are the most serious types of offences with the gravest of consequences, they should therefore serve a greater proportion of their sentence in custody.”
That is a complete non-sequitur, because it attempts to justify counting the seriousness of the offence twice over: once when the judge passes sentence for the serious offence, and again when increasing by a third the proportion of the sentence to be spent in custody. Put simply, you get more time for committing the serious offence—and then even more time for precisely the same reason.
Members of this House and across Parliament, and clear majorities among academics in the field and legal professionals, have long argued, as did the noble Lord, Lord Beecham, that we imprison too many people in this country and for too long, and that we must reduce the prison population to improve rehabilitation. For serious offenders we have argued for a reformed and functioning probation system; more through-the-gate supervision prior to and following release; more, and more effective, supervision of prisoners after their release; more use of early release, through release on temporary licence and home detention curfew schemes; and reducing sentence inflation in the courts. All these steps would help former offenders turn their lives around.
We have regularly debated overcrowding. Our prison estate is still both packed and dilapidated, with degrading and inhumane conditions in many prisons. Overcrowding has been matched by understaffing, so prisoners have spent far too long cooped up in cells that are too small because staff have been unable to manage or provide adequate education, vocational training, meaningful work or sport and leisure activities—a point made by the noble Viscount, Lord Hailsham. As if these failures of our present regime were not enough, issues of mental health and drug and alcohol addiction are addressed inadequately or not at all—and these problems are often worse for women in custody.
It is hardly surprising, then, that this toxic cocktail of neglect and underresourcing has led to a crisis of ever-increasing violence in our prisons, with appalling records set nearly every year for assaults by prisoners on other prisoners and staff, incidents of self-harm, suicides and homicides. It is a tragedy that good work done by prison governors and staff who seek to implement best practice conscientiously and selflessly is undermined by a pervasive bad atmosphere, low morale and failure of rehabilitation across the prison estate. Yet, against this background the Government introduce a measure, with no hard evidence to support it, that will increase the prison population by around 2,000 in a decade, at an annual expected cost of £70 million, with a capital building cost at present rates of £440 million. That is on top of an expected increase flowing from the recruitment of 20,000 more police officers.
The impact assessment accepts that there is a risk that delay in providing the new places may mean that the extra capacity required will be too late or simply insufficient to meet demand. Will the noble and learned Lord say what evidence the Government have taken into account of the risk of overcrowding getting worse, pending the provision of extra prison places? Are the Government to provide extra staff to improve prison staffing levels for the greater number of serious violent and sexual offenders in custody for longer?
Furthermore, the impact assessment takes into account an expected reduction in the cost of probation for 2,000 former offenders, who will have a reduced period on licence post-release, down from half sentences to one-third, representing a reduction of 34% in the time spent on licence. This will lead to an estimated saving of £8 million in reduced case load, but what it does not take into account is all the evidence that supervision for longer periods on licence helps to get former offenders reintegrated into their communities and back into jobs, housing and their families. That reduces reoffending and cuts not only the cost of crime but the number of future victims of crime. A policy intended to help the victims of past offences risks increasing the number of future victims.
The impact assessment recognises this danger and makes two valid points. The first is that longer periods in prison mean longer separations from prisoners’ families. Successful return to family life protects against reoffending and longer separations increase family breakdown. The social and financial costs of family breakdown in human misery, risks to children, risk of homelessness and increased calls on social services, taxation and benefits are considerable.
The second point made in the impact assessment is that the Government acknowledge that shorter periods on licence support former offenders’ transition into the community, a point again made by the noble Viscount, Lord Hailsham. The impact assessment claims that this is an “unknown” but accepts that there is a risk that this could increase demand on prisons to provide offending behaviour interventions in custody and reduce the probation capacity to provide the full range of rehabilitative services. One wonders how the Government could claim that this is an unknown, when all the evidence is that these risks are clear and real.
This is a bad instrument, and I regret that it reflects badly on the instincts of the Government who introduced it.
Lord Ramsbotham (CB)
My Lords, as has already been said, this order implements a commitment made by the Prime Minister in the summer of 2019. That commitment was made as part of a review, conducted not after a public consultation—which might have been expected on an issue with such major implications—but merely as an internal Ministry of Justice exercise.
The Secondary Legislation Scrutiny Committee, in its report of 30 October 2019, drew the House’s attention to the fact that the order represents
“one piece of a large and complicated jigsaw.”
Among the other pieces are: the announced sentencing Bill, to be preceded by a White Paper on sentencing more generally; the programme to build 10,000 additional prison places, announced in 2016 and repeated by the Prime Minister in 2019; the announced recruitment of 20,000 more police officers; and the royal commission on improving the efficiency and effectiveness of criminal justice system processes, announced in the 2019 Queen’s Speech. The Secondary Legislation Scrutiny Committee suggested that this House may wish to ask the Minister—which I now do—for more information about how all these pieces fit together.
Last week, the Ministry of Justice released the horrifying statistic that 58% of UK prisons—68 in total —were overcrowded, nine of them by more than 50%. This is not a situation that is likely to be rectified quickly yet, by this order, the Government are knowingly adding another 2,000 prisoners. The Chief Inspector of Prisons is continually drawing attention to the lack of purposeful activity in prison and the number of prisoners who spend all day locked up in their cell doing nothing. One factor leading to this situation is the lack of staff, not least because the Government wilfully dispensed with 80,000 years of operational experience. It is all very well to talk of recruiting additional numbers, but in addition to being inadequately trained, inevitably new recruits are inexperienced and, being frequently subject to horrifying assaults, too many are leaving early.
Frequently in this House I have commented on the poor quality of impact assessments. The one accompanying this order is no exception to that stricture, because only two options are examined: take it or leave it. However, there is what I might describe as a common-sense third option: I urge the Minister to defer until the issue can be properly examined in the context of the “large and complicated jigsaw”.
I have already mentioned the lack of any public consultation about what should be, to quote Erskine May’s definition of the affirmative procedure,
“a substantial and important piece of delegated legislation”.
There has been only an internal review at the Ministry of Justice. The wide implications of the issue, and my suspicion that the proposal results from a confusion about what should be done with terrorist prisoners—highlighted by the tragic events at the Fishmongers’ Hall—reinforce my plea for implementation of the order to be deferred until it has been considered in the context of all related and relevant issues.
Criminal Justice and Courts Bill
Debate between Lord Ramsbotham and Lord Marks of Henley-on-Thames(9 years, 10 months ago)
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Lord Marks of Henley-on-Thames (LD)
My Lords, in this group I speak principally to Amendment 43C in my name, and in the names of my noble friends Lady Linklater, Lord Carlile and Lord Dholakia.
In spite of the comment of the noble Lord, Lord Ramsbotham, to the effect that our amendment was unduly complex—
Lord Marks of Henley-on-Thames
I am very grateful: I certainly heard “complex” and was slightly surprised, because I have support from the Back Benches. I thought that we were rather saying the same things. A feature of this debate is that all the amendments in this group, including that of the noble Lord, Lord Hodgson of Astley Abbotts, have been directed really towards the same concerns and issues.
Since the proposal for secure colleges was published as part of the Bill it has provoked a great deal of public and well informed criticism. For my part, I am indebted to the Children’s Rights Alliance for England, the Howard League for Penal Reform, the Standing Committee for Youth Justice and others for their advice, for full and well informed briefings, and for meeting me.
We have sought in our amendment to set out two mandatory principles, the need for which we now consider is firmly established, and a number of aims that we believe the Secretary of State must strive to meet if the proposal for secure colleges is to be implemented. We completely agree with the aim of the Secretary of State to ensure that young people in custody enjoy full educational opportunities. He is right to start from the position that the involvement in education of many of our young people in custody has in the past been minimal and their educational attainment virtually negligible. If we are to address their criminality, a good starting point is to try to give them some genuine education from which they may benefit in their future lives. The question is how we achieve that effectively.
We are concerned that the idea that we could somehow create on a residential basis in the prison estate large but secure colleges with some resemblance to schools may be misguided and unrealistic. As I mentioned earlier today, the number of young people now in custody is below 1,100. On all the best evidence it is simply inappropriate to attempt to contain large numbers of those young people together, regardless of gender and age. As has been repeatedly emphasised in this debate and at Second Reading, young offenders in detention represent a group of young people with a mixture of diverse and serious problems.
The first subsection of our proposed new clause would therefore provide the two mandatory points mentioned: that secure colleges may not be used for the detention of girls or persons under the age of 15. The evidence has satisfied us that it is simply unsafe to mix boys of all ages from under 15 to 18 together with girls in custody in one institution. Given all the evidence, we cannot believe now that the Government would wish to proceed on any other basis. I invite the Minister to confirm as soon as he can that that is the position.
Our second subsection is designed to ensure that the welfare of persons detained in any secure college has to be the primary consideration that the Secretary of State will have in mind in making any decisions that affect the lives of those in custody. In one sense, that may be obvious, but we feel it should be clearly stated in the Bill.
Our third subsection, comprehensive or complex as it may be, sets out a number of aims that the Secretary of State should be required to keep at the forefront of his mind when setting up and providing any secure college. I do not shirk from saying that I fear that many of these aims are incompatible with what we understand to be the Government’s present intention to establish a large, secure college in the Midlands housing nearly one-third of all young offenders currently in detention.
The first consideration must be the provision of a safe and secure environment for all those detained in secure colleges. The next aim must be that any secure college is of an appropriate size. Having considered the question of size, I now have no doubt that what we mean by “appropriate” is “small”. All the evidence we have considered suggests that a small institution capable of giving young offenders individual attention is essential to rehabilitation and educational attainment.
We also believe that it is very important that young offenders are detained close to home. Their families should be able to visit them and stay overnight if necessary. We have stressed throughout this Parliament the importance of rehabilitating young offenders within their communities specifically so that upon release they may come out and rejoin their families, friends and communities with some hope of local employment to come. Education in custody should be directed to that end.
One aspect of the current proposal for secure colleges that causes us concern is the idea that young offenders may be moved miles from their families, which could prove profoundly damaging. An associated concern that follows from that is that supervision before and after release, which we have made a priority, will lack the continuity that we have promised. If an offender is in custody, as is proposed, in an institution near Leicester and is to be released to Cornwall, it is unlikely that there can be any meaningful continuity of supervision.
Furthermore, we believe that if secure colleges are to achieve what they set out to achieve, real thought needs to be given to the type of educational opportunities that can realistically be offered. It is bound to be very difficult to provide suitable courses for young offenders who are sentenced at different times, due to be released at different times and sentenced for different periods. The noble Lord, Lord Beecham, mentioned that 79 days is the average period in custody. We cannot imagine that courses can be arranged that will meet the needs of more than a very few offenders at a time. Given what noble Lords have said, I ask my noble friend to elucidate what the Secretary of State has in mind. The question of distance or online learning raised by my noble friend Lord Hodgson of Astley Abbotts may well merit further consideration.
There is also the question of outdoor and sporting facilities and facilities for indoor recreation. It is crucial that the recreational needs of these young people be catered for. In the proposed very large pathfinder secure college, we are concerned that these facilities may be, if not entirely, at least very largely, lacking.
There is considerable concern, which has been mentioned by other noble Lords, about staffing and the need for staff with specialist training across a range of skills: not just teachers but counsellors, medics and others. My noble friend needs no reminding that many of the young offenders detained in these colleges will have special educational needs. Many of them will also have particular problems relating to their physical and particularly mental health. A number of young offenders have problems arising from drug or alcohol abuse; many come from profoundly dysfunctional backgrounds, many from criminal families. These issues need careful and focused personal attention. Will a secure college environment, as is proposed, be able to meet these needs?
Our final proposed new subsection would require the Secretary of State to consult the Youth Justice Board as to how the aims that we have set out might be achieved. I fear that there is a great deal of work to be done. We doubt that the present proposal can in its present state properly proceed, and we urge the Secretary of State to ensure that all decisions in this area are firmly based on sound evidence and good advice. The rehabilitation of young offenders is too important to be the subject of a gamble on a less than fully developed idea.
In summary, we fully support the Government’s aim to provide more and better education in custody, but we doubt that the present proposals for secure colleges have any realistic prospect of achieving it.
Lord Marks of Henley-on-Thames
My Lords, Amendment 42L is merely formal. This group refers to the use of force in the secure colleges, and in particular to force against young persons detained there.
Amendment 42M, which is not purely formal, would require the secure college rules, in so far as they authorise the use of force against young offenders—it is much narrower than the other amendment relating to procedure—to be made by statutory instrument under the affirmative rather than the negative procedure. Under this amendment, it would also be a requirement that the Secretary of State should consult on the proposed secure college rules with the Youth Justice Board and the Independent Restraint Advisory Panel before laying a draft before Parliament.
The requirement for an affirmative resolution for secure college rules authorising force was a recommendation of the Delegated Powers and Regulatory Reform Committee, on which I serve. The recommendation was made notwithstanding that other prison rules—even for young people, as my noble friend has pointed out—are subject to the negative procedure. However, these are extremely important rules concerning the use of force against children. The committee was very influenced by the clear views of the Joint Committee on Human Rights and the decision of the Court of Appeal in 2009 in C v the Secretary of State for Justice that the proposals for the use of force for the purpose of maintaining good order and discipline were, as they stand in the Bill, inconsistent with Article 3 of the European convention.
The provisions authorising the use of force in the Bill for contracted-out secure colleges are indeed profoundly discouraging. As I mentioned, force is to be permitted to be authorised for purposes which include ensuring good order and discipline on the part of inmates and attending to their well-being. These purposes are far too wide. They smack of a military origin and are out of sympathy with contemporary views on the restriction of the use of force against children. Your Lordships will wish to be extremely vigilant where we are concerned with the authorisation of such force. We accept the Joint Committee’s clear view that the proposed authorisation of force would infringe Article 3.
Contemporary views on the use of force against young people are that the correct way to frame such authorisation is to ensure that the force used is minimal and restricted to what is absolutely necessary. Our Amendment 42N attempts to achieve this and its purposes are restricted by reference to five conditions. It says that,
“the first condition is that the force is authorised only for the purpose of … self-defence or the protection of others, including the protection of the person against whom the use of force is authorised … the prevention of serious damage to property”,
preventing escape and carrying out an authorised search. The second condition, which is crucial, is that force can be authorised for use only “as a last resort”. The third is,
“that the force authorised must be the minimum necessary to achieve the purpose”.
The fourth is that the force must be used,
“for the minimum duration necessary to achieve”,
that purpose, and the fifth is that the force should be,
“limited to techniques forming part of an approved system of restraint”.
We have added to that a requirement that:
“Secure college rules must provide that”,
all those who are “authorised to use force” should have been properly trained,
“in the use of force and in minimum restraint techniques”.
This represents a sensible contemporary view of the appropriate authorisation of the use of force in such colleges as are proposed for the restraint of young people. We contend that these restrictions should appear on the face of the legislation, in the terms that we have described. I beg to move.
Lord Ramsbotham
My Lords, I shall speak briefly to Amendments 46 and 46A in this group. All I want to say is that I for one simply do not understand why there is any need to have this proposal in here, when already there has been an independent review of restraint in juvenile secure settings, which was chaired by the previous chairman of the Royal College of Psychiatrists. She was a most eminent adolescent psychiatrist and she produced what were called minimum rules, which were published by the previous Secretary of State. If minimum rules for the use of restraint in secure children’s settings have already been produced by a Secretary of State, I simply cannot see why there is any need to go down this route, which seems to be an own goal of monumental proportions when there is already something to prevent you even being on that pitch.
Criminal Justice and Courts Bill
Debate between Lord Ramsbotham and Lord Marks of Henley-on-Thames(9 years, 10 months ago)
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Lord Ramsbotham
My Lords, in supporting my noble and learned friend Lord Brown and saluting my noble and learned friend Lord Lloyd on his determined and tenacious momentum on this issue, I want to say just one thing. I am amazed that the Government are not tabling this amendment. As the noble Lord, Lord Wigley, mentioned, £40,000 a year for 773 prisoners is £35 million per year. If you have an overstretched and underresourced Prison Service, surely it makes sense to examine where you could make savings to put the money to better effect, rather than spend it on prisoners who should not be there. I fail to understand why, in the face of all the arguments, all the legal statements and all the evidence, plus the legislation passed in 2012, the Government have not taken the common-sense step of approaching this forcefully themselves.
Lord Marks of Henley-on-Thames
My Lords, I join other noble Lords in paying tribute to the noble and learned Lord, Lord Lloyd of Berwick, for his campaign to achieve justice for IPP prisoners. I remember well the debate on 27 March secured by the noble Lord, Lord Wigley, who raised this issue on that occasion.
The continued imprisonment of those who are serving tariff sentences of less than two years for so long after those tariff sentences were completed, and now long after IPP sentences were abolished by the LASPO Act, is nothing short of disgraceful. The noble and learned Lord, Lord Phillips of Worth Matravers, mentioned “Fidelio”. In that opera, it took the courage of Florestan’s wife Leonore, who, dressed as Fidelio, risked her life to save her husband from unjust imprisonment, to secure his release. All that is necessary for this Government now is for the Secretary of State to exercise his power—given to him, as has been pointed out, by the second limb of Section 128 of the LASPO Act—to introduce a simple presumption in favour of release unless the continued imprisonment of any such prisoner on an IPP can be positively and clearly justified. It is a simple presumption. It meets the justice of the case. It answers any need that remains for the protection of the public. I suggest that this unfairness must be ended, and now.