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Can the Secretary of State tell the House what the current state of the prison-building programme is, how many new places will be opened this year, and why the prison-building programme this year and last year fell so far behind plans?

Sir Alan Beith (Berwick-upon-Tweed) (LD): The hon. Gentleman just quoted the previous Lord Chief Justice and his motion ill-advisedly quotes the present Lord Chief Justice. I say ill-advisedly because it is not good to draw judges into debate in that way. Does he recognise that both of those learned judges have considered a wider range of issues at length, including the effect of heavy spending to meet growing prison numbers on the very expenditure that could be used to keep people out of prison?

Nick Herbert: The plans that we have set out effectively propose diverting resources spent on reconvicting prisoners in order to try to prevent them from reoffending, which would be the transfer of resources that the right hon. Gentleman seeks. All of us want to see a reduction in the long-term growth of the prison population, but the question is how that is to be achieved. The Government’s approach is wrong, as I am about to set out, and those who believe that there is an easy way of preventing the sentencing of prisoners in the first place by diverting prisoners into community sentences in which the public have no confidence are misguided.

Faced with the reality of their failure, the Government are trying a new tack. Since they do not have the prison places, they want to fetter the ability of judges to hand down custodial sentences. They call it, in the words of their amendment to our motion, “a structured sentencing framework”. The new device is a sentencing commission. They pretend, in the words of the amendment, that it is about delivering “greater consistency in sentencing”, but there is already a statutory duty on the Sentencing Guidelines Council and the Sentencing Advisory Panel to promote consistency in sentencing. It is by no means clear whether the Government have any idea of how compliant judges are with the guidance of the Sentencing Guidelines Council at the moment.

The Government have never said that demographic or geographic sentencing disparity is a problem that a sentencing commission is designed to iron out. The idea that a sentencing commission would simply promote consistency is a canard. The Government’s proposals are nothing other than a back-door attempt to manage down the prison population by fettering judicial discretion. As we have said before, linking sentencing to resources in that way is wrong in principle because it would provide a formal mechanism for the Executive to exert control over sentencing and the judiciary.

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Lord Carter himself admits that there are many drivers of the prison population, not least the amount of violent crime, reoffending rates and the volume of foreign prisoners detained after their release date, awaiting deportation. The Government’s record on those external drivers of crime and the prison population is frankly appalling, as we all know. In the light of that, any artificial method of linking sentences to resources would be dangerous and wrong. Violent crime has doubled under Labour. If that trend were to continue under a system that links resources to sentencing, we may find sentences for violent offenders would be shortened because of a lack of capacity.

Mr. Straw rose—

Nick Herbert: As the Secretary of State is about to intervene, I ask him whether that shortening of sentences is what he intends.

Mr. Straw: No, and I shall deal with that point later. The hon. Gentleman’s claim that violent crime has doubled is untrue. He must know that two separate changes occurred in recording crime—one in 1998 and the other in 2001. Both increased the recording of all crimes. In 1998, the change increased the recording of violent crimes by 80 per cent. overnight. The problem that we faced, to which we have now adjusted, was that, under the system that the Conservative Administration used, an awful lot of crime was not properly recorded.

Nick Herbert: The Government always fall back on the defence of counting changes. As the Secretary of State knows, even with those changes, violent crime has increased under the Government. Does he at least concede that? A huge amount of crime continues to go unreported. If he is in denial about the amount of violent crime in our country or public concern about it, he is in an even more serious predicament than the Government.

Mr. Straw: I am in no sense in denial about the matter. When increases in crime occur, I am ready to admit to them. It is important in such a debate to deal with reliable statistics. One violent crime is too many, but does the hon. Gentleman acknowledge that, according to the British crime survey, which the previous Administration rightly established in 1981, violent crime has decreased by 31 per cent. since 1997?

Nick Herbert: The right hon. Gentleman knows that the British crime survey misses out swathes of criminal activity, including crimes against young people. The Government rely on it when it suits them. Indeed, some crimes have been increasing according to the British crime survey recently.

Mr. Straw rose—

Nick Herbert: Hold on. Instead of trading statistics across the Dispatch Box, let me make a proposal to the Secretary of State. The publication of crime figures should be on a basis that is wholly independent of the Government. They should be published by a body that reports to the House, not to the Government. Will the right hon. Gentleman concede that the Statistics
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Commission criticised the Home Office for its presentation and spinning of crime statistics, and that we cannot accept the defence of recounting from a Government who have been so quick to manipulate figures when it suited them?

Mr. Straw: I certainly do not concede that. The Government have progressively ensured that the Office for National Statistics is entirely independent—I personally supervised that policy over 11 years. I went to the launch of the Statistics Commission, which is independent of Government. I agree that there will be no public confidence in official statistics unless such bodies are independent. However, if, according to the hon. Gentleman, crime has increased, why did the Leader of the Opposition accept that

Who is right?

Nick Herbert: I doubt whether the Leader of the Opposition said that. Of course, some crimes—for example, acquisitive crimes—have decreased, but the right hon. Gentleman should know about public concern, especially about violent crime. The publication of crime figures is not properly independent of Government. It is our policy that they should be independent so that they are not capable of manipulation and we have a proper index of the amount of crime in which the public and all hon. Members can trust. Unfortunately, the Government’s consistent manipulation of crime figures means that that trust in the figures does not currently exist.

Let me revert to the issue of the proposed sentencing commission, because it is an immensely important matter that raises issues of principle about the relationship between the House, the Executive and the judiciary, which should be independent. I repeat the point that I made to the Secretary of State. If a sentencing commission is introduced, we may find ourselves in a position whereby sentences for violent offenders, irrespective of any decision by the House, could be shortened due to a lack of prison capacity. Indeed, I assume that that is the right hon. Gentleman’s real objective. Ministers would avoid their responsibility to ensure public safety, and effectively outsource sentencing decisions to a quango. Linking sentences to resources will entail a massive reduction of judicial discretion.

Mr. Straw: I am grateful to the hon. Gentleman for giving way again. Let me reassure him that what he has outlined is in no sense the purpose of the proposal. I shall explain it in more detail in my speech, and I hope that he and other Conservative Members will then be reassured about it.

Nick Herbert: We will wait and see. It is difficult to know why the Secretary of State is so keen to pursue the idea of a sentencing commission, if not with the express purpose of finding a means of managing the prison population down. However, I look forward to hearing what he has to say about it.

Linking sentencing to resources could entail restrictions on judicial discretion. To manage down prison populations successfully in the United States—an international example, which I know the Secretary of State and Lord Carter have studied—individual state sentencing commissions allow almost no room for judges to depart from the
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prescribed sentence range in any given case. The ability to treat cases differently must be severely curtailed for any such system to have a chance of working.

Perhaps the Lord Chancellor should remind himself that his statutory duty is to protect the independence of the judiciary. Even if the regime is restrictive, there is no guarantee that the prison population can be effectively managed down. As Nicola Padfield of the law faculty at Cambridge university said in her evidence to the Justice Committee,

The judiciary is deeply concerned about the proposal, as the Secretary of State must know. The most senior criminal judge in the country, Sir Igor Judge, remarked that

The restrictions that sentencing commissions place on judges encourage them to game the system, which leads to manipulation and perverse outcomes. There is strong evidence that, in Minnesota, judges sentence offenders to local jails rather than state prison to keep the headline prison population low. That shows that prescriptive regimes may not even work as intended. Sentencing commissions manage growth in prison populations through artificial, arbitrary and dangerous methods.

Sentencing commissions do not reduce overcrowding and manage prison populations through some magic formula. They identify pressures on the prison population, caused by the external drivers, which Lord Carter cited, and then shorten prison sentences and reduce the impact of previous convictions on certain classes of offenders. That is how they work.

It would be no surprise if such an approach reduced pressures on the system, but that is no way to keep the public safe. It is no way to build public confidence, either. The Bar Council recently said that

I ask the Justice Secretary today to reconsider the misguided policy and to confirm that the working group that Lord Gage leads does not represent a commitment by the Government to introduce such a mechanism, come what may.

The Government have found another way to reduce the prison population by stealth. More than 500 early release prisoners on home detention curfew and criminal suspects are being housed by a company called ClearSprings in more than 150 properties in residential areas. In a letter to colleagues in April, the Minister of State, Ministry of Justice, the right hon. Member for Delyn (Mr. Hanson) stated:

He omits mentioning that consultation is limited to those parties. It does not include the residents of streets where those de facto open jails are dumped on to local communities without warning.

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Ministers have referred to residents being notified. Is the Justice Secretary aware of what notification by ClearSprings entails? For his benefit, I have a copy of the leaflet that ClearSprings put through the door of a local resident in my constituency, which was the only notification that ClearSprings gave the public when it attempted to open such a property in Arundel. It reads:

The leaflet then supplied a contact number. In what way does that explain the role that the property will play? There was no explanation about early release prisoners or suspects being accommodated and no reassurance about the policing and security arrangements, just a flier and a national rate telephone number.

The Minister of State, the right hon. Member for Delyn, has said:

On what grounds is the service proving a success? Here is the give-away:

That is what the scheme is about. The Government have simply encouraged the courts to make more use of bail, as the prison overcrowding crisis has worsened. The bail accommodation and support service run by ClearSprings is the result.

Ms Dari Taylor (Stockton, South) (Lab): The hon. Gentleman is making an appropriate statement to the House, and I totally agree with some of what he has said. Consultation with the local community has been rather thin on the ground, and it would have been infinitely better had it been more defined. However, he can take it from me that the relationship between that organisation and the police in my constituency has become very effective. There has been no objection in the community, because frankly there has been no reason to object. Does he accept that what we are attempting to do—reintroducing offenders into the community, which his party has said is an appropriate way of doing things—can have some beneficial outcomes?

Nick Herbert: The hon. Lady cannot have spoken to the many people, from all over the country, including from constituencies represented by hon. Members in all parts of the House, who have contacted my office to express concern about the policy. We are talking about effectively open jails, which open next to people in residential areas without their knowledge. ClearSprings does not provide active supervision of the prisoners concerned.

In many cases, the properties have been opened in wholly residential areas, where the prisoners or suspects have no access to any of the necessary support services. People who live next door to such properties have expressed concern about disruption, noise, the constant police presence and the potential effect on property values. The policy is, frankly, disgraceful, and it is made more disgraceful by the fact that an attempt has been made to conceal it from the local community.

The scheme has caused immense distress to local communities up and down the country. I might add that it was not debated in the House before it was introduced.
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It is a discredited policy and it must be suspended, pending a thorough review and a debate in which hon. Members in all parts of the House can relay the problems that they have been experiencing with the operation of bail hostels by ClearSprings.

Prisoners released on end of custody licence and those let out on home detention curfew are not the only ones to benefit from early release. Under the Government who pioneered stealth taxes, we now see the stealth release of prisoners. Numerous measures in the recent Criminal Justice and Immigration Act 2008 were explicitly designed to reduce pressures on the prison population. We had the failed attempt to abolish magistrates’ powers to impose a suspended sentence, as well as measures to reward tagged prisoners with days off their jail term to take account of time that they had spent in bed at home while on bail. We also had measures to align release arrangements with a technical change, smuggled late into the Act, that allowed automatic release at the halfway mark to apply retrospectively for offences committed before 2005.

Now we have learnt of another stealth release scheme, in new guidance from the Prison Service on time unlawfully spent at large. The latest Prison Service instruction says:

unlawfully at large

What circumstances? The instruction sets them out:


In addition,

That time is time unlawfully spent at large. It gets worse—the document says that the time counted may be

Prisoners who escape may be allowed to count the time spent on the run as having been spent in prison. This is what the latest Prison Service instruction says:

That means two days off automatically for any prisoner who escapes. Only this Government could give time off for bad behaviour.

Those policies of stealth release may save a few prison places, but they are no solution to the problems that we face. Stealth release does lasting damage to public confidence in the criminal justice process and sends the wrong message to criminals. If ever there was a time for new thinking, it is now.

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