I thank my noble friend Lord Clarke of Nottingham for inviting us to foregather at the Dog and Duck and consider what more can be done. I venture to suggest—hint is too weak a word—that there are things that we can still do. We may not be able to go as far as some of the amendments; in a
moment, I will explain why the Government do not yet feel able—to my great personal regret—to accept the amendment proposed by my noble friend Lord Moylan. I will come to that in a moment. Let us look at what we think might be done and might be achievable.
I will take first Amendments 154 and 168, proposed by the noble Lord, Lord Carter of Haslemere. We have touched on the problem of recalls. We have noted that the Government are trying to reduce the delays in the Parole Board in dealing with recalls, which is one of the major problems. These amendments propose that the Secretary of State should have the power of executive re-release, which applies to fixed, determinate sentences. That is a power which in that context—forgive the jargon —is now referred to as a risk-assessed recall review, which is, in effect, a process for executive re-release. While the Secretary of State must have overriding regard to the need for public protection, the Government can see force in the amendments proposed by the noble Lord.
As I said earlier, those amendments might achieve by a different route the result of the amendments earlier proposed by the noble and learned Lord, Lord Thomas, in order to deal with the problem of inappropriate or other circumstances in which it would be right to exercise an executive power to re-release. If I may say it between ourselves—all this feels within the family, as it were, but of course we are talking to the entire outside world—a particular problem that arises from time to time is where the offender in the community is arrested for a new offence; he is then recalled and the police do not prosecute. What happens then? That is a classic practical problem that the power of an executive re-release might address; I make no promises or commitments, but the Government wish to engage further on this aspect as proposed by the noble Lord, Lord Carter, and supported by other noble Lords, and will give further consideration to it prior to Report. That is that.
Amendment 158, tabled by the noble Lord, Lord Blunkett, and the noble Baroness, Lady Chakrabarti, in relation to prisoners imprisoned under the so-called “two strikes” legislation under the Crime (Sentences) Act 1997, is a bit more complicated. As I understand it, although that legislation was abolished in 2005, similar legislation was reintroduced in 2012 and is now to be found in Section 283 of the Sentencing Act 2020, which provides for a life sentence for a second listed offence, the listed offences in question being set out in Schedule 15 to that Act. In terms of sentences of prisoners who are under some sort of two-strike legislation, we are dealing not just with the old 2005 cohort but with others as well. How we deal with those prisoners and in particular what would justify differential treatment of the various kinds of life prisoners we have seems to the Government an important and large question. The Government’s present view is that this problem is somewhat outside the scope of the Bill. That is not to say that we should not continue to consider it. The noble Lord, Lord Blunkett, should be congratulated on raising the issue and putting it further on the radar, and there would be no objection to continuing a dialogue on it, but in the context of the present Bill, it may be too far to go to deal with anything other than IPP.
We will have to see, but, at the moment, the Government are not persuaded that that could come within the scope of the Bill.
7.15 pm
We come to Amendments 159 and 160, tabled by the noble Lord, Lord Blunkett, which would put the action plan on a statutory basis and establish an independent scrutiny panel to measure progress against the plan. I can take this point reasonably shortly. The action plan is a real living instrument; it is there to provide further measures to support those serving IPP sentences, both in custody and in the community. There are multidisciplinary progression panels; a senior IPP progression board, chaired at a senior level, which meets quarterly; and an external stakeholder challenge group, which meets prior to those board meetings. There will be operational delivery plans from each of seven HMPPS operation areas for rollout in April, and various other specific measures. The overall purpose, to follow up on the point made by the noble Lord, Lord Berkeley of Knighton, and others, is to restore hope: to restore confidence that something is being done for these prisoners.
The question is whether this should have some statutory backing and teeth—some facility or process for parliamentary scrutiny, for Parliament to be kept informed, for the Secretary of State to report and all the rest of it. The Government obviously do not want to be tied down in detail on the actual content—word for word, sentence for sentence—of a particular plan. However, one could imagine—I speak again indicatively —that there is a good argument to be advanced for a form of statutory backing and having an action plan; for some indication of what should be in that action plan in broad terms; for a process for that plan to be laid before Parliament, and for the Secretary of State to be accountable to Parliament for its contents, so as to reinforce the commitment the Government are making to do their best to sort out this problem. The details would remain to be considered. It is a matter I would greatly welcome a dialogue with other noble Lords on as we move forward, but I think that would reassure everybody, to an extent at least, and reinforce this message of hope we are trying to convey. That is our position on Amendments 159 and 160, for which, in his absence, I warmly thank the noble Lord, Lord Blunkett. I associate myself with all the remarks that have been made about him and his exceptional integrity in the context of this debate.
I turn to Amendment 161, tabled by my noble friend Lord Moylan, which would change the release test applied by the Parole Board. It has echoes of what the noble Lord, Lord Clarke of Nottingham, and others have said about Section 128 of LASPO, which was, it seems, never brought into force. In this context, I associate myself with was said about the late and much lamented noble and learned Lord, Lord Brown of Eaton-under-Heywood, and the noble and learned Lord, Lord Lloyd of Berwick, whom many of us remember very fondly indeed.
At an earlier stage, my noble friend Lord Moylan was kind enough to inquire after my personal well-being. I am fine, but it gives me personal difficulty to have to say to your Lordships that the Government are not
quite persuaded of the need for or desirability of my noble friend’s Amendment 161. There are basically five reasons for that. Some are more important than others, and I will identify the most important one.
As your Lordships know, elsewhere in the Bill there is a clear reaffirmation of the release test based on public protection grounds. The first point is that the Government are reluctant to take a different approach to IPP prisoners that would not necessarily be consistent with the general thrust of the Bill and the general public protection test set out in the Bill. We need consistency across the Bill.
Secondly, despite arguments to the contrary, the Government feel that the amendment is based, to an extent, on a misapprehension that there is some burden of proof, even if not a formal one, on the prisoner to justify their release. The Government do not consider that there is such a burden of proof or that there should be such a burden on the Secretary of State, because the question for the Parole Board is an objective one as to whether it is safe to release the prisoner. That question is not, and should not be, subject to any presumption in favour of or against release. The implied suggestion that the cards are always stacked against the prisoner is, in my respectful submission, rebutted by the fact that about 80% of those originally sentenced under this provision have been released at least once—so we are down to a last cohort, if you like.
This is the most important point, which the noble Lord, Lord Ponsonby, very fairly started with. I share his look of regret that we are dealing with this very difficult problem. The purpose of Amendment 161, as the Government understand it, is to make it easier to release the remaining cohort, but by definition this cohort is the most difficult of all to manage: they have been up before the Parole Board many times, some as many as 10 times, and many three, four, five or six times. The Parole Board has never so far been satisfied that they are safe to release, so making it easier to release those—