My Lords, I am going to speak to four amendments in this group: Amendments 137 and 146 on executive release, on which I can be very brief; a new amendment in my name, Amendment 148; and a few words about Amendment 149A, which was tabled by the noble and learned Lord, Lord Thomas, to which he and others have already spoken.

Starting with executive release and Amendments 137 and 146, I am delighted and grateful to the Minister for bringing forward his Amendment 139B, which incorporates neatly into one clause those two amendments, which I will now obviously not press. I have just one question on the Government’s amendment: as regards the licence being treated as having remained in force following executive release if it is in the interests of justice, what sort of cases are covered by the “interests of justice”, a phrase which was not in my original amendment? I would be grateful if the Minister could say a few words about that.

As I seem to be on a bit of a roll as regards my amendments being accepted, Amendment 148 is a new amendment but on the same theme of helping to reduce the time spent in prison following a recall. This is about ensuring that IPP cases will be referred by the Secretary of State to the board within 28 days, or earlier if the prisoner makes written representations about the recall. This 28-day deadline already exists in statute for determinate sentence prisoners, and my amendment simply requires the same thing for IPP prisoners, not unlike executive release. There is no reason for any difference. Many recalled determinate sentence prisoners will involve more preparation before referral to the Parole Board than IPP prisoners, so why treat them differently? Since it is currently MoJ policy, as I understand it, to refer recalled IPP prisoners to the board within 28 days, let us be consistent and make it a statutory duty, as with determinate sentence prisoners.

Your Lordships may ask what difference it will make, given that it may be many months, if not years, before the board then considers the case. On paper, it is perhaps only a little, but it is only once the case is referred to the board that the process towards a paper or oral hearing can be initiated. It is easy to forget that every day in prison matters hugely for the prisoner concerned, particularly just after the psychological trauma of a recall, with all the frustration and despair that involves.

Although this amendment is only a small step when set against the unfair delays that currently arise at the board stage, it should make some difference for IPP prisoners to know that there is at least a statutory time- table governing the immediate aftermath of a recall. A statutory deadline would also mean the Secretary of State would have to ensure adequate resources were put into ensuring that a properly documented referral can take place within that timescale. I make no apology for that. Every day in prison matters hugely to the prisoner concerned. So I very much look forward to the noble and learned Lord saying, as he did with my executive release amendments, that he sees force in that one.

I want to say a few words about Amendment 149A, which has been spoken to by other Peers and was tabled by the noble and learned Lord, Lord Thomas. I very much support this amendment. The need for the public protection decision to take into account the proportionality of the term served to the seriousness of the offence is especially crucial in respect of IPP prisoners, because it is one of the main reasons why the sentence is so “unfair” and “indefensible”—the Government’s words.

The Minister may say that proposed new Section 28ZA(9), in Clause 41, already allows the Parole Board to take into account any matters it wishes, including length of time served, when making a public protection decision. As the noble and learned Lord, Lord Thomas, explained, the problem is that, unlike the matters listed in proposed new Section 28ZA(5), the board is not required to take this into account and frankly, there is no indication it ever would. It should therefore be required to do so, and this amendment would achieve that.

The Minister may say that this is not relevant to the risk the IPP prisoner may still pose, but the risk that a prisoner may reoffend if they are released is not new or unique to IPP prisoners, as we have heard. The Government accept it daily when determinate sentence prisoners are released on licence. The Justice Committee said in its third report that some determinate sentence prisoners will have committed far more serious offences and present much more of a risk on release than an IPP prisoner. Yet, society lives with that risk because the terms of their fixed-term sentence allow them to be released, however dangerous they may still be. Why is society prepared to accept the risk in their case, but IPP prisoners are told that society is not prepared to do so in theirs? Is that justice, especially given that less than 10% of serious reoffending is by life or IPP prisoners and overall reoffending rates on release are lower for IPP prisoners?

I want to give a couple of examples that I have been given permission to use, because they vividly illustrate this point. Aaron Graham punched a man in the face when he was 25. He was convicted of GBH in 2005 and sentenced to IPP with a tariff of two-and-half years. He has now served more than 20 years. Had he committed the offence 12 months earlier, before IPP was introduced, under the law at that time he would probably have been sentenced to about five years and been out on licence after two-and-half years. Luke Ings committed two robberies and assault in 2006, when he was just 17. He was given an IPP sentence and a tariff of 18 months. He has served 18 years of a DPP sentence—longer than he had been alive at the time he committed the offence. Again, if he had committed the offence a year or two earlier, he would have been given a determinate sentence and been out on licence after 18 months.

These are two cases among many, and they amply demonstrate the need for an explicit proportionality assessment, taking into account length of time served. We must grasp this nettle now, since it could be the last chance for many IPP prisoners. If we are not to have a resentencing process, this is an essential alternative in order to mitigate continuing unfairness and injustice. I look to forward to hearing the Minister’s response.