My Lords, I first thank noble Lords for their contributions. To those who were kind enough to refer to me personally, I respectfully say that I simply speak on behalf of the Government, not on my own behalf. This Bill, these amendments and the matters we are discussing are government-sponsored matters. It is the Lord Chancellor and my right honourable friend Mr Argar in the other place, and the Government as a whole, who have put forward this Bill and these amendments for your Lordships’ consideration.

I gathered from the most eloquent speeches we heard today that a number of amendments are not going to be moved. For the record only, I will therefore touch only briefly on those amendments and then turn in more detail to those that remain in contention.

Amendments 134 to 136, proposed by the noble and learned Lord, Lord Thomas, would permit offenders to apply to the Parole Board for licence termination after at least a year had elapsed. The Government’s view can be briefly stated: the relevant offenders have to complete only two years on licence, so we are talking about only one possible application to the Parole Board during that two-year period. By the time the Parole Board has determined the application, one would be very close to the end of the two-year period anyway. In the Government’s view, it is not unreasonable to expect an offender to fulfil the required two-year period; that is a clear and certain test. We should not overburden the Parole Board—even more than it is burdened already—with these further applications. That is the brief answer to that point; I will not elaborate further.

On the noble and learned Lord’s Amendment 138, which addresses what are described as inappropriate recalls, I simply point out that, in his recent report of December 2023 on the Probation Service and the power of recall, the chief inspector found that the power was being used in a necessary and proportionate way. I associate myself with the remarks made by the noble Lord, Lord Ponsonby, bringing to bear his experience as a magistrate, about the importance of recall and the circumstances in which it happens. It is very important that the Probation Service is not criticised for the way in which it makes recalls. Be that as it may, in the Government’s view, these amendments, including Amendment 138, are now overtaken by government Amendments 139A and 139B, which provide, in effect, for re-release and for the release not to count if that is in the interests of justice.

I was asked by the noble Lord, Lord Carter, whether I can give any examples of what might be in the interests of justice in that instance. My official advice is that I cannot, because that would pre-judge particular circumstances. I can say in my personal capacity, however, that one could imagine, theoretically and hypothetically, that a recall made rather close to the expiry of the licence term, when the effect might be to restart the two-year clock—or a recall made in circumstances where there had been an arrest but subsequently there were no charges, or nothing was done to pursue the matter that led to recall—might be instances where this kind of power could be useful. I think that is as far as I can go on that matter.

Amendment 139 concerns the power in delegated legislation to change the qualifying period, which at the moment could be either reduced or released. That is a standard provision. The Government cannot imagine the circumstances in which anyone would ever want to increase the qualifying period, but one never knows. Therefore, we are not in favour of changing the statutory power to change the qualifying period.

Following the amendments through in numerical order takes me to Amendment 140. I thank the noble Baroness, Lady Burt of Solihull, for her most moving speech on the additional aftercare duty that the amendment contemplates for prisoners who are suffering from mental health problems in particular. I also thank the right reverend Prelate the Bishop of Southwell and Nottingham for supporting the noble Baroness, Lady Burt, and other speakers likewise.

The Government agree with the noble Baroness that those entitled to the support that Section 117 of the Mental Health Act provides should indeed receive it. It is important to highlight that the purpose of Section 117 is to prevent readmission, so extending it to people who have never been admitted to a mental health hospital does not quite align with the section as it is at the moment. The amendment would widen the purpose and application of Section 117 and extend it beyond its present scope, so it is not an amendment that the Government can support.

However, I draw the noble Baroness’s attention to the efforts we are taking to protect IPP prisoners’ health and well-being through the IPP action plan and other initiatives. The annual report to Parliament on IPP sentences will have a dedicated section that focuses on mental health support for prisoners, so the Government will be held accountable for their actions, particularly on mental health. The Government entirely accept that this is extremely important to the matters we are discussing. HMPPS is also extending the scope of its psychology services, so that it can continue to support some of the more complex IPP cases, not just in prison but in the community.

Another important area of support is that provided by the Secretary of State for Health and Social Care, and the NHS, regarding health and particularly mental health needs provided to all offenders while in custody and as members of the public when in the community on licence. The Ministry of Justice will explore with the Department of Health and Social Care whether an up-to-date IPP offender health needs analysis could be delivered, so that we can inform future Health and Justice joint work supporting this cohort of offenders. The Lord Chancellor will work with the Secretary of State for Health and Social Care to consider what more could be done to meet IPP offenders’ health needs following any such assessment. The annual report will include progress on this work, if taken forward.

In response to the question I was asked by the noble Baroness, I am very happy to meet the Royal College of Psychiatrists to discuss this. The college is already represented in the challenge group and is very familiar with the problems, and it is in the Government’s interest to be as fully informed as possible about these issues. I will take that suggestion forward, as well as writing to my ministerial colleagues at the Department of Health and Social Care to begin work specifically related to the health requirements of IPP offenders. I am sure that the input of the royal college on that kind of matter will also be of importance. So we recognise the specific health challenges faced by the IPP offender cohort and are increasing our support. I hope that, in the light of what I have just said, the noble Baroness will not feel the need to press her amendment, in due course.

I of course pay great tribute to the noble Lord, Lord Blunkett, for all his efforts on behalf of these prisoners. I have already covered his amendments, so will not say any more about them now—save that we all recognise the vital role that the noble Lord has played, centrally, in finding and working towards solutions on this difficult matter. I am sure that he has the thanks of the whole House and the nation for everything that he has done in this regard.

I come to the important amendments—Amendment 145, tabled by my noble friend Lord Moylan and Amendment 149A, tabled by the noble and learned Lord, Lord Thomas, which would modify the release test. I will deal first and briefly with Amendment 145, which introduces a change in the burden of proof. My feeling is that the House would like to address Amendment 149A rather than Amendment 145, but I will make just one comment about Amendment 145, which is about changing the so-called burden of proof and introducing a new burden of proof. On that point, there is no burden of proof in the current release test, in the Government’s view. It is simply up to the Parole Board to assess whether the prisoner is considered a risk to public protection. The Government are opposed to creating a burden of proof on anybody and making this a more legalistic process.

For clarity’s sake, I understand that the Parole Board is preparing to update its guidance to state explicitly that there is no burden on the prisoner to prove that he is safe to release, so that, in lay terms at least, prisoners can understand that it is not up to them to prove anything; their case will simply be considered by the Parole Board.

That leaves us with the one crucial point, stressed by the noble Baroness, Lady Jones of Moulsecoomb, as the last piece of the jigsaw: if only we could move a little on this, we would have met every conceivable suggestion that has been made. The central point about Amendment 149A, stressed in a very powerful speech by the noble and learned Lord, Lord Thomas, and supported by the noble Lord, Lord Carter, the noble and learned Lords, Lord Hope and Lord Garnier, and others, is to introduce the idea of proportionality in the release test. The prisoner may not in fact be safe to release, but he has been there for a long time, so we had better release him anyway; that is what it comes down to. I see the noble Lord, Lord Ponsonby, nodding.

Respectfully, I am pleased to adopt the arguments that the noble Lord, Lord Ponsonby, is putting to the House. We are where we are and everybody regrets it, but we have a dilemma. In almost all cases, these prisoners have been before the Parole Board many times and the Parole Board has said that they are not safe to release. So what do we do? Do we just change the release test and say that we are going to release them anyway—give permission for them to come out, in a sense—or do we take steps to enable them to pass the existing tests to qualify for safe release?

As the noble Lord, Lord Ponsonby, says, we must take this step by step. We have put enormous effort behind producing the action plan. We have dedicated resources, we have reporting systems, we have a report to Parliament, we have increased support for mental health, we have reduced the licence periods and we have special arrangements for DPP. Let that work. We cannot lose sight of the importance of public protection. Let us go step by step, as the noble Lord, Lord Ponsonby, says.

I am delighted to hear that, in the unlikely event of a change of Government, any new Government of which the Labour Party was part would work at pace to make the action plan effective. That is what this Government will do, whether before or after the election, if they are still in power or part of a Government. We have cross-party support; everybody is determined to make the action plan work. Let us not risk public protection by changing the test in a way that would effectively say that these people are unsafe but we are going to release them anyway. As the noble Lord, Lord Ponsonby, points out, if we did that and then it backfired—if something went wrong and there were serious incidents—that would be so damaging for the existing unreleased IPP population that, frankly, we would wish we had never done it. Let us not take that risk.

It is not at all clear what proportionality actually means; it is not a very easy test to apply. The Government’s present view is that proportionality should not be a factor for the Parole Board. It is a very difficult ask of the Parole Board to weigh things up; we should give it one task and one task only: to decide the question of public protection. We should have that test, and that should be the right test for all IPP offenders, however long they have served and whether they are over tariff or not.

I make one final point. Noble Lords have said that this may be the last chance. It is not the last chance, by any means. There is power under the LASPO Act 2012 to change the test. If the action plan does not work out, and if, in later circumstances, a future Government decided that they were prepared to take the risk, they could still do so without any primary legislation, subject to affirmative resolution by both Houses of Parliament. We do not need to press this point now. Let the action plan work.