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Lord Burnham: I may seem very stupid but, as I read it, Amendment No. 37 would make no difference to someone who is serving a sentence of more than two months or someone who is serving a sentence of less than two months. I listened with great care to the noble
Lord and my noble friend and I have heard no word addressing the specific amendment under discussion. Are we perhaps talking to some other amendment?
Lord Carlisle of Bucklow: I should point out that I was talking to the other amendments that are grouped with Amendment No. 37. I share my noble friend's views on Amendment No. 37.
Lord McIntosh of Haringey: Perhaps I may put the noble Lords, Lord Carlisle and Lord Thomas, out of their misery. They were speculating about what kind of behaviour would be classified as reaching the minimum standard or exceeding the minimum standard. Well, Notes on Clauses gives some examples. For the sake of brevity, I shall give examples only of behaviour which might exceed the prescribed minimum standards. Subsection (3) of the notes on Clause 10 refers to,
- "participating constructively in sentence planning (if available);
- effort and productivity in workshops"--
I do not know what proportion of prisoners are in workshops but there must be a substantial number who are not. Therefore, the words "if available" or "if relevant" ought to be added,
- "(where appropriate and available) participating constructively in courses on addressing offending behaviour or in educational or vocational training courses".
- "promoting positive relationships between staff and prisoners".
The examples given by the Government in their Notes on Clauses reinforce the point that noble Lords have made. It is virtually impossible to imagine how one could have consistent, fair, acceptable and accepted standards which could be applied across the range of types of prison and prisoner. Fears expressed by Members of the Committee about the opportunity--indeed, the likelihood--of disruption and disaffection must be very much in the forefront of our minds.
I support what the noble Lord, Lord Carlisle, said about a target release date. I do not know how many Members of the Committee underwent peacetime conscription--that is, peacetime national service--but, when I was a gunner in the Royal Artillery as a conscript, the only thing that kept me going was being able to say:
- "Only 121 days to do,
That's a lot less than you,
Get some more in!"
It is terribly important that people should have that protection, that target; and, indeed, that they should know that their behaviour will contribute to whether or not that target is reached. A target date is of enormous psychological importance.
The Lord Bishop of Lincoln: Perhaps I may express my concern regarding the last point made by then noble Lord, Lord McIntosh, about the uncertainty over the ever-changing release dates. How are probation officers and prisoner resettlement organisations expected to make sensible plans for released prisoners as regards hostel places, local authority housing, housing
association accommodation, job training schemes, and so on, if they cannot tell when the prisoner will be released until such release is imminent? Those difficulties would be avoided or greatly reduced if prisoners were eligible for a fixed amount of early release, unless of course they lost it through the disciplinary system following misbehaviour in prison. That is a very important point.
The Earl of Mar and Kellie: Can the Committee be assured that the minimum prescribed standards in a prison are that you comply with the prison rules and that the test of whether or not you have done so is the fact that you have not appeared before the governor on report?
The Earl of Balfour: I should like to raise one further question about the word "prescribed". Clause 23 says that "prescribed",
- "means prescribed by prison rules".
Having read that, I looked up the prison rules within Section 47 of the Prison Act 1942, but I could not find the word "prescribed" anywhere. However, it is possible that I have not read the most recent edition of that section which is mentioned in Clause 23.
Earl Russell: I am sorry to prolong the discussion but I am afraid that we have not exhausted the evils of the proposals contained in the Bill. On Second Reading, the noble and learned Lord, Lord Bingham of Cornhill, said that he believed that the proposals would prove incapable of fair operation and that they would give rise to a flood of appeals. There are many good reasons why that is so. It is a basic principle of English law that any exercise of public authority is subject to the rules of natural justice. That has been the case for a very long time.
Under the present procedure there is a date for release unless a disciplinary offence is committed which justifies its postponement. In dealing with any such offence, there is an orderly procedure. The procedure is laid down, the evidence is presented, the prisoner is given an opportunity to challenge it, reasons are given for the governor's decision and a record of the proceedings is made. That is a fairly precise outline of the basic minimum requirements of natural justice. It will be a great deal harder under the new and more discretionary system.
Perhaps I may take the Minister's analogy of a teacher. The effect of what is happening is very much as if we were to move from a formal examination to a system of continuous assessment. In a system of continuous assessment, the decisions which affect the ultimate class are taken at a very much lower level and on a very much more daily basis. Therefore, the range of situations in which an abuse of power may take place is very much wider. It is sadly true that charges of sexual harassment are very much more part of daily existence in an American University than is the case in a British one. I do not believe that that is because Americans are more libidinous than the British. I believe
that it is because the power to affect the final grade is more constantly available to an individual professor, or even an individual teaching assistant at quite a low level.It is this devolution down the scale of the power which worries David Roddan of the Prison Governors Association. He is surely right that the work will have to be pushed down the line, possibly to the level of wing staff. Therefore there will be a big risk of infringing one of the basic requirements of natural justice; namely, that a person should not be judge and party in his own cause.
Let us suppose it is alleged that a person has forfeited some of his early release by being offensive to his warder. The warder, in the end, may be the judge of this matter. If that is not the case, I should be extremely interested to hear the reasons why that is not so because those could be extremely helpful to the Committee. If there are to be these detailed decisions made on daily behaviour, there is surely a risk of them being made by people who are directly affected by the prisoner's conduct. It is not only a flood of appeals that we shall get; it is a flood of judicial reviews as well.
It is my understanding that the Government do not like the growth of judicial review. I can see why; I would not if I were them. But it seems to be the effect of legislation which frees public authority from statutory control that the only remaining controls are the principles of natural justice. That must lead to a growth of judicial review. In my opinion the Government frequently complain of that of which they are themselves the author.
There is also, of course, a problem of favouritism. For me to quote or refer to Sir Ivan Lawrence might be thought to be a case of the devil quoting scripture. But fortunately the rules of order restrain me from quoting him in detail. However, I hope I may be allowed one or two words. He said in another place that there was a real risk of cases in which relations between a prisoner and a warder became over-friendly. The risk of being judge and party in one's own cause is surely obvious.
7 p.m.
Lord Williams of Mostyn: Can the Minister help on one practical matter arising out of the detailed questions that the noble Lord, Lord Thomas, asked? Let us consider the situation of a man who is on remand, who behaves to an acceptable standard--rather better than the noble Lord, Lord Thomas, in his domestic circumstances--and who then serves a sentence of six months. Then let us consider a man who serves a prison sentence of 12 months. Is the good behaviour of the man who has behaved well on remand for six months taken into account as regards the overall period that he will serve? If it is not, it seems to me that he will be treated worse than the man who has served no remand time at all. How is that to be adjusted? Is the sentencing judge intended to aim off, as it were, and reduce the overall sentence?
Lord Harris of Greenwich: I wish to say a few words on this matter. When I had some responsibility for prisons at the Home Office I had the opportunity to visit the state prisons in the State of Georgia at a time
when Mr. Carter was still governor of the state, shortly before he became President. I had the opportunity of looking at their system of creating an alternative to remission by earning what was described as "good time". On my return I discussed that and other matters with officials in the prison department. Their view was that it would be quite impossible to administer a system of this sort, yet this is precisely what we are discussing today, except that the prison population was then 40,000, whereas now it is 60,000 and still rising.That is the first problem. I refer to the amount of documentation that will be required in terms of a prison officer having to establish whether an inmate has qualified for being treated in a particular fashion. As my noble friend Lord Thomas of Gresford, has pointed out, there will have to be a record. Presumably that will have to be referred to the appellate authority, whoever that may be. Then, inevitably, there will be a flood of judicial review applications. That is quite inevitable. We should recognise that from the outset.
Last Thursday we had a brief exchange with the noble Baroness, Lady Blatch, during which I believe she referred to tensions in the prison system. There are plenty of tensions but they will be as nothing compared with the tensions which will exist in the prison system if this system is introduced. One can see only too clearly what will happen. Perhaps the noble Baroness, Lady Blatch, will not be a Minister when the problem arises.
However, some unfortunate Home Secretary and junior Minister in the future will be faced with the prospect of serious disturbances in prisons because of the amount of ill will and suspicion that has been engendered as a result of the introduction of this system. Then, no doubt, a judge will be approached and asked whether he will be good enough to investigate the situation in some form of judicial inquiry, as was the noble and learned Lord, Lord Woolf, after the disturbances at Strangeways. We should have no illusions at all about what we are discussing today. We are discussing quite deliberately creating a system which will almost certainly lead to serious new difficulties in our prisons, with the possibility of creating serious disturbances.
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