Sentencing Bill

Lord Carter of Haslemere Excerpts

Wednesday 12th November 2025 Lords Chamber

[Lord Carter of Haslemere (CB)]

My Lords, it is a pleasure to follow the noble Baroness, Lady Chakrabarti. I declare an interest as a trustee of the Prison Reform Trust, but I add that my points here are mostly my own. I wholeheartedly support the Government’s ambition to rehabilitate more prisoners so that we move away from the endless cycle of successive Governments ramping up the length of sentences so as to be seen to be tough on crime. For far too long, sentencing law has been focused exclusively on punishment, and insufficient attention has been paid to the other statutory purposes of sentencing, especially reduction in crime and rehabilitation. We all know that 80% of offending is reoffending—a really shocking statistic.

I welcome the recommendations of the sentencing review, and there are many good things in the Bill that build on that review. However, the Bill has not implemented all the recommendations, even though the review considered them to be

“a holistic package of measures that will work best in conjunction with each other”.

Many points could be made but, for the purposes of Second Reading, I will focus on what I consider to be the most important area; namely, the way in which the Bill provides for so-called earned early release at the one-third point of the sentence, and the likely consequences of that. My comments will echo points made by the noble Lord, Lord Bach, the noble Baroness, Lady Prashar, and indeed just now by the noble Baroness, Lady Chakrabarti.

Earned release is a commendable rehabilitative concept, which originated in the Criminal Justice Act 1967. That Act provided for Parole Board release for fixed-term prisoners at the one-third point of the sentence, if they had satisfied the board that they had been sufficiently rehabilitated so as to make it safe to release them—but it was a big if. A prisoner could be released on licence, with a two-thirds reduction in time served in prison, only if they could show they had taken steps to rehabilitate. That is not this Bill.

The Bill provides that a prisoner will earn early release at the one-third point merely by behaviour that avoids additional days for breaches of the prison rules; for example, offences against discipline, threatening, abusive or violent behaviour or possessing unauthorised articles. Immediately, one sees the likely adverse consequences of that approach. First, it will lead to a concentration of vulnerable and challenging prisoners within the prison environment. Individuals who struggle with multiple and complex needs, such as mental health, neurodiversity and substance dependence, are most likely to break prison rules and get placed on report and adjudications. Over time, therefore—and we must look at the long term, since this Bill will probably remain the law for years to come—the prison population will comprise a disproportionate number of people who have not accessed early release due to this factor.

Secondly, who will award additional days and on what basis? This becomes a critical issue if early release at the one-third point is to depend on avoiding such adjudications. If it is prison officers, that could clearly be open to abuse. It could also negatively impact on staff-prisoner relationships.

Thirdly, is avoiding additional days for things such as threatening, abusive or violent behaviour so as to gain early release really “earning it” in a meaningful sense? The 1967 Act experience teaches us that release is only truly “earned” 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. In an ideal world, therefore, release at the one-third point should not be automatic merely by avoiding punishment. It should be properly earned—as was recommended by the sentencing review—so as to demonstrate that the prisoner is less likely to reoffend or breach licence conditions when in the community and end up being recalled to prison.

I recognise that Clause 20 is partly an emergency mechanism to alleviate current capacity pressures. To provide that release at the one-third point must depend on engagement in purposeful activity might deprive Clause 20 of its utility, since the state of capacity and staffing crisis in prisons are such that access to such activity is severely limited. However, this means that the burden of rehabilitating prisoners will fall exclusively on the Probation Service, which will already be on its knees with the upsurge in community sentences. There is a massive danger that, in trying to create more prison capacity with release at the one-third point, the measure might in fact diminish it because of the number of recalls.

This is not fanciful. Let us take the number of prisoners who were released early last Autumn under the Government’s emergency release scheme SDS40: MoJ figures published on 30 October show that, between April and June, there were more than 11,500 releases under the SDS40 scheme and over 10,000 recalls, which is 15% higher than in the same quarter in 2024 and is a record high. Although some of these recalls may have been unrelated to the scheme, the department acknowledges that the unprecedented increase was likely driven partly by the implementation of SDS40. If there has been such an increase following release at the 40% point, how much worse might it be if prisoners are released at the one-third point under this Bill? Meaningful purposeful activity in prison before release would surely have reduced the number of such recalls.

But I recognise that the Government are between a rock and a hard place on this: on the one hand, they need to release more prisoners early so as to create more capacity and, on the other, they risk putting so much pressure on the Probation Service that a large number of released prisoners will be recalled to prison, thereby defeating the whole point of Clause 20. I do not know the answer to this in the short term, which must surely depend partly on a vast injection of new probation resources, the like of which we have never seen. Even then, you cannot wave a magic wand to produce overnight significantly more trained probation officers with the experience to deal with the increased burden. Whatever the answer in the short term, it still leaves the long-term problem of how purposeful activity in prison can, at some future point when capacity issues have subsided, be made a requirement before release at the one-third point. Otherwise, prisoners will have no incentive to participate in such activity, since Clause 20 will guarantee their release at the one-third point anyway.

Something needs to be done now, since otherwise Clause 20 will continue, unless amended by a future Bill, to require release at the one-third point irrespective of whether prisoners have taken steps to rehabilitate. The burden of rehabilitating prisoners would then, for the foreseeable future, fall exclusively on the Probation Service. One suggestion, so as to build some flexibility into the system now, would be to insert an enabling power in Clause 20 for regulations to be made which, at a future point, when capacity and resources allow, would enable Clause 20 to be modified so as to incorporate a requirement for purposeful activity. This would give the department the option of modifying Clause 20 in the future without the need for a fresh Bill. It would keep the options open, which is never a bad idea where prisons and probation are concerned.