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Lord Harris of Greenwich: I confirm what the noble and learned Lord, Lord McCluskey, has just said, speaking as a former chairman of the Parole Board for England and Wales. The most dangerous prisoners and the people who represent the greatest risk to the general public on their release behave impeccably in prison. Their position will be greatly improved as a result of this Bill. If the only test is good behaviour in prison--and that is what it is--there is an increased risk to the
safety of the public as a result of the Bill which we are now discussing. I return to a point made earlier by the noble and learned Lord the Lord Advocate--
Lord Mackay of Drumadoon: If I may--
Lord Harris of Greenwich: I hope I may discuss this point as I am about to refer to the noble and learned Lord. I shall then gladly give way. The noble and learned Lord has said, in terms of providing reassurance as regards the position of the privately-contracted prison--if I may so describe it--that a Crown servant would make the decision as to whether someone should or should not be released, or whether his appeal should or should not be accepted. Who would sit with the Crown servant? Would he sit on his own or with others?
It is a fundamental question because we are moving away from a system where, by and large, the inmate population accepts the fairness of the present system. We are moving into uncharted waters where there are constant risks. A new procedure has been created as a result of which it could be represented that what was previously fair has become grossly unfair. That raises the risk of disturbances in prisons. We have seen in England and Wales just such difficulties, some of which were touched on in the report of the noble and learned Lord, Lord Woolf.
Secondly, what is the position of this Crown servant who will decide the matter? Does he decide it on his own, and if with others, who are they?
10.30 p.m.
Lord Mackay of Drumadoon: I do not know the full answer to that question. I understand from information I have that it is intended to remove from those employed by the private company the carrying out of the statutory duties set out in Clause 31(3). There is an elaborate appeal procedure, as I indicated earlier. Rather than elaborating without the precise details, it would be better if I undertake to write to the noble Lord. I understand that it is intended to involve Crown servants who will be directly responsible to the Secretary of State and through him to Parliament, and of course subject to judicial review in the courts.
However, perhaps I may pick up the point raised by the noble Lord about the fact that the Bill would result in those who were the greatest risk to the public having most to gain and being in an improved position. I suggest that that ignores the provisions of Clause 1 of the Bill. The noble Lord referred to sex offenders. If they were sent to prison on a second occasion, no matter how good their behaviour, and it was decided at the expiry of the determinate part that they remained a risk to the public, the Parole Board would have to be satisfied that that risk no longer existed before they were released. Serious sex offenders admittedly tend to behave well when in prison, in part because they are kept away from "the ruffians", as the noble and learned Lord, Lord McCluskey, refers to them, and kept with people who have offended in a similar manner. However, contrary to the comment of the noble Lord, I believe that when the provisions of Clause 1 come into effect, such good behaviour will not necessarily
result in their release. Upon proper assessment--this is where the issue of risk assessment arises, to refer to a point raised by the noble Baroness, Lady Carnegy--they will not necessarily be returned to the community just because the five or ten years have expired.
Lord Sewel: We are potentially on the threshold of introducing a thoroughly ill-conceived practice into the prison system. Essentially that is the conflation of a judicial function in determining early release dates with responsibility for prison management and the maintenance of good order and discipline within a prison. That conflation will potentially have extremely adverse consequences for the future proper management of the Prison Service.
It is late, and it is not my intention to divide the Committee. However, I hope that even at this stage the noble and learned Lord the Lord Advocate will recognise that on this issue the concerns expressed on this side of the Committee are genuine and sincerely held. Our concern is essentially for the proper functioning and ordering of the prisons and to avoid the risk of prisons, which we know are difficult institutions to manage, being put in an even more difficult position. I hope that the noble and learned Lord will at least reflect a little on what has been said this evening. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Mackay of Drumadoon moved Amendment No. 139:
The noble and learned Lord said: In moving this amendment, with the leave of the Committee I shall also speak to Amendments Nos. 140 and 141.
These are technical amendments to ensure that changes set out in other legislation are brought into being in consequence of changes made in Part III of Chapter I. The Committee will see from the first and third of the amendments that they refer to the Repatriation of Prisoners Act 1984. They are technical in the extreme. I beg to move.
On Question, amendment agreed to.
Lord Mackay of Drumadoon moved Amendments Nos. 140 and 141:
The noble and learned Lord said: I spoke to these amendments with Amendment No. 139. I beg to move the amendments en bloc.
On Question, amendments agreed to.
On Question, Whether Clause 30 shall stand part of the Bill.
Lord McCluskey: I do not oppose the Question. However, I wonder whether I have misunderstood the
I believe it follows that if a person is sent to prison for life under Section 205A--for example, a second rapist--then he does not enjoy the benefit of the one-sixth early release provisions. Those sex offenders who enjoy the benefit of the one-sixth early release provisions are persons who, however many sex offences they may have committed, have not been twice convicted in the High Court and therefore fallen under Section 205A. I wonder whether the noble and learned Lord is able to confirm that I am right about that.
Lord Mackay of Drumadoon: I am, and I hope that I did not mislead the Committee. I had not intended to refer to Section 205A other than to deal with the point raised by the noble Lord, Lord Harris.
Lord McCluskey: I am happy that the noble and learned Lord is able to make that clear. I have no opposition to this clause standing part of the Bill.
On Question, Clause 30 agreed to.
Lord Sewel moved Amendment No. 141A:
The noble Lord said: This amendment continues the theme of honesty in sentencing with which both the Government Benches and the Benches on this side of the Committee are in full accord. The amendment basically seeks to make clear the time to which a prisoner is being sentenced and what in fact the early release terms will be. In other words, we are bringing up front in the process of sentencing the precise situation that will obtain. We are making sentencing more explicit and more transparent. It is all part of our combined endeavour to achieve honesty in sentencing.
The Deputy Chairman of Committees (Lord Elton): I should advise the Committee that if this amendment is agreed to, it will not be possible for me to call Amendments Nos. 142 to 144.
Lord Mackay of Drumadoon: I compliment the noble Lord on the originality with which he thinks up amendments to which he can link the words "honesty in sentencing".
As I have already explained in discussing Amendment No. 137, it is an essential principle of the Bill's scheme that early release should be earned by
The main problem with this group of amendments, which includes Amendments Nos. 144A and 144B, is the calculation of how many early release days a prisoner may be entitled to during his sentence. It can be a complex task and I am quite sure that members of the Scottish Court Service would not welcome taking it on. I am satisfied that it would not be appropriate for them to do so. Equally, I do not believe that the sheriffs would wish to sit down, having decided on the appropriate sentence, and embark on the exercise of calculating right through to the end of the sentence. That would involve working out precisely when the period of five-sixths was reached.
Questions of early release have always been for prison staff to calculate, with the assistance on many occasions, I suspect, of prisoners themselves. The prison staff not only have the necessary experience but they also have available to them knowledge of any other warrants for imprisonment which may relate to the prisoner concerned.
The effect of Amendment No. 144A would be to leave the door open for a future Secretary of State to use a statutory instrument to reduce the level of early release below 12 days every two months. We believe that this level of early release represents the minimum necessary to ensure good order and discipline in our prisons. We do not believe that such a minimum should be reduced by way of subordinate legislation. We would expect any future government who wished to alter the Bill in that regard to come before Parliament, as we have done. For all those reasons, I invite the Committee not to accept Amendment No. 141A.
Page 35, line 36, at end insert ("the Repatriation of Prisoners Act 1984, section 74(6) of the 1984 Act,").
Page 35, line 39, leave out ("either") and insert ("any").
Page 35, line 41, at end insert--
("( ) to the amendments made to the Repatriation of Prisoners Act 1984 by paragraph 5(2)(b) and (3) of Schedule 1 to this Act;").
Page 36, line 15, leave out subsections (2) and (3) and insert--
("(2) The court shall inform the prisoner at the time he is sentenced how many early release days (being twelve for each assessment period) to which, subject to subsection (3), he is entitled, calculated in accordance with the length of his term of imprisonment.
(3) Where a prisoner is found guilty of a disciplinary offence, the number of early release days to which he is entitled--
(a) may be reduced, up to a prescribed maximum; and
(b) if so reduced, may be reduced by more than the number of days notionally relating to the number of assessment periods which he has already served.").
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