Lord Keen of Elie:

Moved by Lord Keen of Elie

74: Clause 20, page 38, line 7, at end insert— “(4A) In section 244ZA (release on licence of certain violent or sexual offenders), at end insert—“(9) The “requisite custodial period” in subsection (8) does not apply to any person convicted of—(a) rape,(b) assault by penetration,(c) inciting a child under 13 to engage in sexual activity,(d) paying for the sexual services of a child aged under 13,(e) kidnapping or false imprisonment with the intention of committing a sexual offence,(f) creating or possessing indecent photographs of children,(g) grievous bodily harm,(h) grooming,(i) stalking,(j) causing or allowing the death of a vulnerable child or adult, or(k) death by dangerous driving.””

My Lords, Amendments 74 and 75, in my name, concern exemptions to the Government’s so-called earned progression model. We do not oppose in principle the idea that prisoners who demonstrate genuine rehabilitation should be eligible for early release. Where offenders have taken meaningful steps to address their behaviour and reduce their risk, there is a case to be made for earned progression. However, Clause 20 does not deliver that outcome.

Throughout Second Reading and in Committee, the Minister referred to an earned progression model and to examples such as that in the Texas system, yet, as drafted, Clause 20 contains no such mechanism. As the House of Commons Library briefing makes clear, the release point is automatic rather than earned. Prisoners will be released at the one-third point of their sentence unless additional days have been imposed by a court for misconduct. That is not earned progression; it is default release. Barring significant further transgressions, release is determined by the passage of time alone.

The Lord Chancellor has sought to reassure the public by stating that the most serious offences are excluded, yet the Ministry of Justice’s own data confirms that offenders convicted of rape, grievous bodily harm and the creation of indecent images of children will be eligible for this automatic scheme. If those offences do not qualify as serious, it is difficult to understand what offences would.

This is not a technical adjustment to sentencing mechanics; it is a profound change to how the state responds to some of the gravest crimes. As drafted, the Bill would reduce custodial time for over 60% of rapists and more than 80% of child sex offenders. It would permit those convicted of stalking, an offence which we know is strongly associated with escalation into homicide, to be released automatically after serving just one-third of their sentence, without any assessment of ongoing risk.

Amendment 74 would exclude from these provisions those convicted of a range of serious offences, including offences involving the death of a vulnerable person. Amendment 75 would require consultation to ensure that other serious offence categories are appropriately excluded before these measures come into force. In the other place, a similar amendment which included an even broader list of exemptions attracted support from all parties. All 65 Liberal Democrat MPs present for the Division voted in favour of the amendment. Other parties in support of the amendment included the Green Party, the independents, Plaid Cymru, Reform and indeed some members of the Government. It is rare to have such cross-party unanimity, but Members in the other place clearly recognised the dangers that Clause 20 poses to the public.

Noble Lords may notice that Amendment 87, from the Liberal Democrats, includes the same list of offences, as well as two further categories of offences, which should, they suppose, be exempt from automatic release following fixed-term recall. I call on noble Lords to consider consistency here, as much as concern.

Clause 20 applies to a far more serious cohort of offenders than other provisions in the Bill, and clearly there is concern beyond this Chamber. The Domestic Abuse Commissioner has described the early release of perpetrators after weeks in custody as “simply unacceptable”. The Victims’ Commissioner has warned that victims will be left “unnerved and bewildered”. These are not political voices but independent authorities concerned about public safety.

Public confidence is often regarded as fragile where the justice system is concerned. When victims see those who have harmed them released automatically after a fraction of their sentence, trust is bound to be eroded. Amendment 74, in particular, would be a proportionate safeguard to ensure that early release is not applied to those whose crimes are too serious and too dangerous to justify it. If the Government are not prepared to give an assurance with regard to Amendment 74, I will seek to test the opinion of the House. I beg to move.

My Lords, I will speak to Amendment 90 in this group, which would insert a proposed new Clause on extended determinate sentence prisoners, who I will refer to as EDS prisoners.

Currently, the Majority of people serving an EDS first become eligible for parole after serving two-thirds of their custodial term and every two years thereafter, with eventual automatic release at the end of the custodial term on extended licence if they are unsuccessful in gaining parole earlier. This proposed new clause would create a power for the Secretary of State to refer to the Parole Board a prisoner serving an EDS at the earlier halfway point of the sentence, instead of the two-thirds point, if the Secretary of State is of the view that there is a reasonable prospect that the board will direct release. It is therefore in line with recommendation 4.2 of the sentencing review. As that review affirmed, this measure would improve incentives for rehabilitation and enhance the effectiveness of measures to address the overcrowding crisis, without in any way changing the public protection mechanisms that currently apply to EDS prisoners.

The Minister said in Committee, at col. 1842 of Hansard, on 3 December last year, that the Government rejected the independent review’s recommendation 4.2 on the grounds that the EDS was imposed because the offender was considered dangerous. It is quite right that an EDS is a public protection sentence, but, in statute, the parts intended to fulfil its public protection function are the involvement of the Parole Board and the extended licence period. There are no public protection concerns in statute to justify referral to the Parole Board at the two-thirds point of the sentence instead of the halfway point, as is proposed for most other determinate sentence prisoners.

Under the provisions of this new clause, and in line with the recommendations of the review, the Parole Board would still engage in exactly the same careful, reasoned and deliberate decision-making process at the 50% point as it currently does at the 66% point. Moreover, the average length of an EDS is nine years, with many serving far longer than that. It is therefore a serious oversight that, for no good reason, measures to address overcrowding are ignoring EDS prisoners, who constitute 10% of people in prison. That is more than 9,000 people, who are serving an average of nearly a decade.

Furthermore, all the signs point to the contribution of EDS to prison overcrowding only getting worse. There are almost five times as many people in prison serving an EDS as there were a decade ago, when the number was just under 2,000; now, it is well on track to reach 10,000. This trend is likely to continue and increase further as a result of changes in this Bill. This new clause would in no way reduce public protection, but it would enhance the opportunities for incentivising rehabilitation and safely tackling overcrowding in our prisons.

My Lords, I stand to support Amendment 74 in particular. Its motivations have been well outlined by the noble and learned Lord, Lord Keen of Elie.

In a letter relating to IPP prisoners that the noble Lord, Lord Timpson, sent to some of us at some point, I noted down that he said—this does relate, by the way—that there must be a clear reason to consider the early release of the prisoner before they have served the sentence imposed on them by the sentencing court. Thousands of open-ended IPP prisoners are incarcerated without a release date, we were told, because they have to convince the Parole Board that they are safe enough to be released, all in the name of public protection. I raise that now because there must be clear reasons to consider whether people are safe before you release them. Yet here we have an early release scheme—an earned release scheme—in which even serious sexual and violent offenders can earn their way out of prison, but you cannot earn your way out of an IPP, which seems rather inconsistent.

We have already heard that earned progression is not going to be earned anyway. If you read what has been written about earned progression, put forward by everyone from the inspector of prisons to concerned prison officers, the unions and so on, then the idea that there is a consistent way to test the earning capacity of prisoners who are inside to check whether they have earned their right to be free is unlikely. It has been agreed that it is going to be automatic.

We have to consider who we are talking about. Earlier on, I spoke about the violence against women and girls strategy and my concern about our being in a situation in which we potentially make an exemption for non-custodial sentences for what some might call minor sexual offences, or stalking or domestic violence. In a way, one was assured that one should not worry and that these were minor events. Whether we like it or not, we are talking here—let us be honest—about the people who are perpetrating, for example, child rape as grooming gang members. We are talking about rapists and people who have been convicted of sexual assault. In total, thousands of offenders who are sent to prison for serious crimes, very often against women and children, will potentially leave prison early. The public, broadly speaking, might find that disconcerting.

I am not opposed to the concept or principle of earning your way out of prison. At least, it is an interesting experimental idea. I do not think it is what will happen in our Prison Service, but I like the notion. I get all that. I am also not arguing in principle against any early releases, although I cannot bear the fact that they have been conducted on the basis that we do not have room for people. I would rather it was based on some kind of principle than saying, “Oh, it’s a bit overcrowded. What can we do?” That seems the wrong approach. I am in no way a mad “lock ’em up and throw away the key” type, but it is perfectly proportionate for this amendment to say that certain categories of crime will simply not be considered for this scheme. That is fair enough, as far as I am concerned.

I genuinely think that the Government should simply accept this. I genuinely hope that Members from other parties, Cross-Benchers, Liberal Democrats and Back-Benchers from wherever will go along with this, because that is what happened down in the other place. I would expect it to happen here, because it is absolutely common sense. It is also very important that we do not undermine trust in the criminal justice system or the prison system by making a mess of this, and therefore not making this exemption work.

My Lords, we cannot accept that this Amendment is either necessary or right. The Bill is posited on the earned progression model, which involves a phased system of early releases. It is all very well for the noble Baroness, Lady Fox of Buckley, to say that she cannot stand the idea that there will be early releases because of overcrowding, but the fact is that we have a very serious issue which the Bill seeks to address. I, for one, accept the Government’s position that the Bill would be seriously damaged by abandoning the earned progression model in the cases with which this amendment is concerned.

No one can say that, as a party, the Liberal Democrats are not completely committed to the Government’s target to end violence against women and girls, or at least to halve it within a decade. No one can say that we do not take that commitment seriously. We accept that sexual offences are serious offences, but there are many other serious offences as well. The point that I suggest should weigh with the House very heavily is the concern for the position of victims. If this Bill fails to solve the prison capacity crisis then victims will be the losers, as people cannot be brought to justice or imprisoned because there will simply be no space for them. That is the harsh reality.

The position on early release is exactly the same as the reasons that I gave in respect of the first group about the presumption. It requires us to be tough and to resist the blandishments of the sort of points that the noble Baroness, Lady Fox, made. I do not accept the accuracy of the position taken by the noble and learned Lord, Lord Keen, because we would be left with a dangerous problem that we have to solve, so I shall support the Government in opposing the amendment.

My Lords, this debate is about a central purpose of the Bill: to put the prison system on a sustainable footing. There is no doubt that the offences listed in Amendment 74 and referenced in Amendment 75 are serious crimes. Indeed, they are so serious that many perpetrators of these offences will receive life or extended determinate sentences.

I remind noble Lords that there are 17,000 prisoners serving those sentences, convicted of the most serious crimes. They include many serious sexual offenders. These offenders will be unaffected by the reforms we are bringing forward in this Bill. They will remain in prison as long as they do now.

Amendments 74 and 75 raise a more fundamental issue. Are we willing, as the previous Government clearly were, to leave the prison system on the brink of collapse? This did not happen overnight. It was not inevitable. It was the choice the party opposite made again and again for 14 years. They abandoned their posts and put public safety at risk by allowing prisons to reach bursting point. To cover up their failures, they covertly let out more than 10,000 prisoners early as part of their chaotic scheme. If it were not for the decisive action of this Government, the police would have been unable to make arrests and courts unable to hold trials, which would have been a breakdown of law and order unlike anything we have seen in modern times. We must continue to take decisive action to address the consequences of their mismanagement. If these amendments were to pass, they would undermine the fundamental issue that the Bill is designed to fix —the issue they neglected for 14 years.

I took this job to fix this issue and countless others that we inherited. As someone who has dedicated their working life to improving the criminal justice system, it matters to me personally. I am convinced that this Bill is the only and best way to fix this problem. I refuse to stand in front of victims of serious crimes, look them in the eye and tell them that we have no space in our prisons to lock up dangerous offenders and that their rapist or abuser cannot go to prison at all because there is no space. Let me be very clear: running out of space is the consequence if these amendments pass. I hope that all noble Lords will agree with me that we cannot, in good conscience, vote for amendments that we know will cause such great harm. Our immediate priority must be stability, and that is what our measures deliver. We are building more prison places than at any time since the Victorian era. By the end of this Parliament there will be more people in prison than ever before. I recall that the previous Government managed only 500 extra places in 14 years.

I thank the noble Lord, Lord Marks, for his constructive engagement on this amendment and for raising important questions about how victims will be protected. I remind noble Lords that, once released, offenders will be subject to a period of intensive supervision supported by a significant expansion of electronic tagging. The highest-risk offenders, as assessed by probation, will continue to be actively supervised until the end of their sentence. They will continue to be subject to any licence conditions needed to manage risk and protect victims, including restriction zones where appropriate. All offenders will remain on licence with the possibility of recall to custody if they breach the terms of their licence. Of course, if an offender behaves badly in custody, they will spend even longer inside, up to the full length of their sentence.

As noble Lords know, the proposals for the progression model, which Clause 20 seeks to implement, are the result of extensive work by the Independent Sentencing Review. The review, led by David Gauke and supported by a panel of eminent experts from all parts of the criminal justice system, arrived at its recommendation after extensive research and consultation. All proposals, including the new framework for release, have been thoroughly considered. We now need to put in place an effective release framework that will support a sustainable prison estate and protect the public by ensuring that space is prioritised for the most dangerous offenders. I therefore urge the noble and learned Lord not to press Amendments 74 and 75. If he wishes to test the opinion of the House, I encourage all noble Lords to vote against this amendment and help this country end the cycle of crisis in our prisons for good.

Dangerous offenders are also the subject of Amendment 90 tabled by my friend, the noble Lord, Lord Carter. It proposes that extended determinate sentences should include a progression element that would enable the parole eligibility date to be brought forward. While I thank the noble Lord for raising this important issue, the Government’s position remains that prison is the right place for these dangerous offenders. To receive an extended determinate sentence, a specified violent, sexual or terrorism offence must have been committed. The court will also have decided that the offender is dangerous—I repeat, dangerous—and that there is a significant risk of serious harm to the public from the offender committing a further specified offence. These dangerous offenders must remain in prison for as long as they do now. I ask the noble Lord not to move his amendment.

My Lords, we do not oppose an earned progression model in principle but, as was recognised by all parties in the other place, Clause 20 does not deliver an earned progression model. Clause 20 contains no mechanism for earning release. That is not, or at least it was not until recently, a party-political point. The House of Commons Library confirmed that release occurs automatically at the one-third or halfway point for offenders. Barring serious further offences in custody, release is guaranteed.

The noble Lord, Lord Marks, talked repeatedly about the earned progression model. I do not know which one he was referring to, but it is not the one in Clause 20. That is simply a mystery. What we have is a means by which violent and dangerous individuals will be released after they have served one-third of the sentence imposed by a court. Is that supposed to imbue our justice system with public confidence? Automatic early release for serious offenders is bound to undermine that confidence.

While the Minister may make criticisms of prison capacity and what occurred during the previous 14 years of government, I remind him that two wrongs do not make a right. You do not cure one mistake by committing an even worse mistake, and that is what is being proposed here. Automatic early release is going to endanger the public. It ensures that releases apply to offenders whose crimes are serious and dangerous. It is not proportionate, it is not targeted and it is not possessed of any safeguards. I wish to test the opinion of the House.

Ayes 134, Noes 185.

Amendment 74 disagreed.

Consideration on Report adjourned until not before 8.37 pm.