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On the substantive point raised by the noble Lord, Lord Kingsland, we think the threshold that we are suggesting is reasonable. It will target the most dangerous offenders without violating risk management. There is an association between the seriousness of an offence and the risk of future conviction and causing future harm, although that is obviously not the only factor in risk assessment. There is also the principle issue about the degree to which one can lock a person up on the basis of future risk. That, of course, goes to the core of the legislation. The question is whether the balance is right, and in the light of experience we think that we have not got it right. It had not been envisaged that the sentences would be used so widely for less serious offenders.
In answer to the noble Lord, Lord Kingsland, as a safeguard, we have included in the threshold legislation exceptions for those offenders who have shown themselves to be very dangerous by committing a particularly serious offence. When an offender has committed one of the offences set out in new Schedule 15A to the 2003 Act, the threshold need not apply to him if he commits future sexual and violent offences. The court will not be obliged to give him a public protection sentence, but will be able to if it sees fit in all the circumstances.
I come to an associated question of how we are improving interventions for those people covered by the current IPP regime. I say to the noble Lord, Lord Ramsbotham, that I well understand the pressures on prison staff. That point is very well taken. We have allocated £3 million to provide for additional assessments and interventions this financial year. We need to provide the right courses, programmes and training, and ultimate responsibility in that context still rests with the Parole Board and satisfying it that the level of risk is reduced. That still rests with the offender, but clearly there is more that we need to do to ensure that the appropriate programmes are in place.
I also take the point raised by the noble Lord in relation to those prisoners who are likely to remain in prison for a very long time. We have debated on a number of occasions the many challenges facing the Prison Service at the moment, particularly in view of the population pressures. But I would say to the noble Lord that in the past few years we have also seen appreciable improvements in many of our prisons in the development of appropriate programmes and in dealing with some of the other issues that impact on these prisoners. The noble Lord mentioned mental health problems, in particular, which I endorse. The working group review established under the chairmanship of my noble friend Lord Bradley is considering some of those matters.
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Clearly a question of judgment is involved. We think the principle of these sentences is right, but we did not get the balance right. We have seen the impact in terms of the number of very short sentences that have become embraced within the system. We will discuss later whether the two-year threshold is appropriate, but overall we think that we have the balance right. This will be a better foundation for this sentence structure in the future.
Lord Thomas of Gresford: Does the Minister accept the interpretation of the noble and learned Lord, Lord Lloyd, of the amendment? That is that the sentence could not be imposed unless one of those serious offences has resulted in a conviction. We will no doubt hear from the noble Lord, Lord Kingsland. We on these Benches are in some quandary as to whether we should support the amendment or not.
Lord Lloyd of Berwick: So am I.
Lord Hunt of Kings Heath: My initial understanding is that the interpretation of the noble and learned Lord is correct. However, I will seek further advice and write to Members of the Committee with a definitive view on this.
Lord Kingsland: My view is that the amendment says what I said that it said when I opened this debate. However, I am happy to talk to the noble and learned Lord, Lord Lloyd of Berwick, between now and Report. If his view proves correct, as it frequently does, I shall recast the amendment accordingly in time for Report.
The real problem with IPPs and prison place availability is that if you are in prison for an IPP and have served your minimum term, you cannot get out without being rehabilitated. Rehabilitation requires considerable educational input by experts on the prison premises, and equally requires the prisoner, as a result of going through this process, to have manifestly changed his outlook on life. It is currently quite impossible to initiate, let alone complete, these processes because of the overcrowding. IPPs are not merely not working at the level which the Government now seek to exclude, they are not working full stop. This is why there is so much discontent in our prisons among those who have been sentenced to an IPP: they are simply not being given an opportunity to get out of jail. Until that issue is resolved—and it cannot be resolved in the present state of overcrowding—we will not see much constructive progress in this area, whatever the outcome of this clause in the Bill.
My difficulty with the clause is that the length of the sentence and the assessment of dangerousness are wholly unconnected. The fact that somebody has been given a sentence with a minimum tariff of two years—which means that the IPP will no longer be applied to him if the Bill gets through—is completely irrelevant to the judge’s view of his likelihood of committing a dangerous offence in the future. That is why the Government are being illogical. The question of the risk and the question of the level of sentence
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Of course, I agree with all Members of the Committee who say that IPPs are not only contributing seriously to prison overcrowding but also affecting the psychological state of many prisoners. That is true. However, with great respect to the Minister, the way that he is going about solving this problem is wholly illogical. We owe a duty to the public to protect them from dangerous people. If judges make an assessment that these people are dangerous, even though they have given a sentence which has a minimum tariff of two years, we must still accept the judgment of the court. That is why I find the Government’s approach so difficult to accept.
7.45 pm
Lord Lloyd of Berwick: Does the noble Lord not accept that if one increases the threshold to five years, the number of those for whom an IPP will be available will be reduced? Necessarily, therefore, the number coming to prison on these sentences will itself be reduced. That must be desirable.
Lord Kingsland: I accept that absolutely and see the attractions of what the noble and learned Lord says. The difficulty is that there is no logical link between the length of sentence for the actual offence committed and the assessment by the judge of the likely future commission of further dangerous offences. It is the discordance between those two things which I—
Lord Thomas of Gresford: Does the noble Lord not agree that, if the interpretation of the noble and learned Lord, Lord Lloyd, of the effect of the noble Lord’s amendment is correct, the sentencing judge would at least know that the defendant before him had committed murder, manslaughter, wounding, rape, use of a firearm, robbery or various sexual offences with children? That would sufficiently indicate that he was a dangerous person if he then went on to commit a further offence.
Lord Kingsland: If the interpretation of the noble and learned Lord, Lord Lloyd, of the amendment is correct, then everything I have said in support of it would be beside the point. The amendment was widely canvassed in another place. As far as I know, nobody interpreted the amendment as the noble and learned Lord has done—but, of course, another place did not have the advantage of the noble and learned Lord’s presence and jurisprudential wisdom which, as all noble Lords know, is vast.
I think the Minister has got the point I am trying to make. I am not going to pursue this matter any further but, of course, we will return to it on Report.
Lord Neill of Bladen: Can an outsider join this conversation between four learned Members of the Committee? Ought one not at least to have in mind a human rights aspect? It seems that indeterminate sentences are now being handed out to people for whom the tariff would be two years. They then find
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Lord Kingsland: That is a characteristically perspicacious intervention by the noble Lord, Lord Neill of Bladen. There seem actually to be two human rights issues here. First, the point about locking somebody up on the basis of future risk itself raises a human rights question. Secondly, the basis on which an IPP order is made by a court is that the individual has a right to be rehabilitated, or a least has the right to an opportunity to be rehabilitated. If that right is in practice a fiction, is that a denial of someone’s human rights under the convention? It must be an arguable case, must it not?
Lord Hunt of Kings Heath: None the less, Parliament has legislated for this provision and widely debated it. It must have satisfied itself at the time, whatever the debate, that this was an appropriate way forward. The issue that we face today is that an unexpected number of prisoners with very short tariffs have become caught by this provision. That is what we seek to deal with through the changes and setting a new bar. We hope that we have the balance right between risk, public protection and being fair to the individuals concerned.
Lord Thomas of Gresford: What is the state of the litigation? I understood that in the High Court—in one case, at any rate—the judges had decided that it was illegal and a breach of human rights to hold someone after the tariff had expired. That was reversed in the Court of Appeal, although it said that the failure to provide courses was illegal and in breach of human rights. Has the case gone to the House of Lords?
Lord Hunt of Kings Heath: We are considering the matter. As far as I understand it, as of tonight we are still considering our position in relation to whether to seek further appeal against that decision.
Lord Kingsland: I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Bach: I beg to move that the House do now resume. In moving this Motion, I propose that the Committee stage does not begin again until 8.52 pm.
Moved accordingly, and, on Question, Motion agreed to.
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West Papua: Human Rights
7.52 pm
Lord Harries of Pentregarth asked Her Majesty’s Government how they intend to respond to human rights abuses in West Papua.
The noble and right reverend Lord said: My Lords, I am grateful for the opportunity to raise an issue that is of such life and death significance to the suffering people of West Papua.
When I go round to our local shops, I almost invariably carry over my shoulder a handmade bag. On this bag is a star against a red background with some blue and white stripes. If I shopped in West Papua with that bag, I would immediately be labelled a separatist and treated with brutality, as a woman was recently who was found making such a bag. Similarly, on 1 December last year, seven West Papuans were arrested for raising this morning star flag in the Catholic Church compound at Kwamki Baru village. Again, when the editor of a West Papuan newspaper was asked what would happen to him if he called for independence, he said quite simply, “Go to jail. Go to jail”. Perhaps this total lack of freedom—the freedom of the press and the freedom to form political parties—does indeed fall into the category of what the Minister said on 13 November last year were abuses,
even though we regard such freedoms as fundamental to the life of this country.
I wonder about torture. Two hundred and forty two cases of torture have been recorded in the past nine years in West Papua. All are well documented and set out in the recent report of Franciscans International. As that report put it:
“Torture is regarded by Indonesian security services as one of the most effective methods to obtain forced confessions and instil a climate of fear and is conducted repeatedly and systematically. Torture in Papua is also used strategically as a means to control the whole community”.
If this is still regarded as abuse “of a relatively small kind”, will the Minister say how many more cases of torture have to be recorded before it is admitted that there are abuses of a very grave kind indeed—abuses that the Government need to address with great seriousness and urgency?
This systematic brutality is of course all in support of the 1969 “act of no choice”. On 14 January this year, the Minister in the other place wrote to a Member describing the act in these words:
“A group of 1,000 Papuan representatives, who were given the responsibility to make the choice on behalf of the Papuan people, voted to remain part of Indonesia”.
The bland disingenuousness of that statement is almost unbelievable. Let us remind ourselves of the facts. Suharto sent this clear order to his military forces in West Papua: “See that the” act “on West Irian’s”—that is Papua’s—
The forces were duly obedient. As Brigadier-General Ali Murtopo put it to those selected to take part in the so-called “act of free choice” on August 1969:
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“This is what will happen to anyone who votes against Indonesia. Their accursed tongues will be torn out. Their full mouths will be wrenched open. Upon them will fall the vengeance of the Indonesia people. I myself will shoot them on the spot”.
So it was that the then Minister in this House, the noble Baroness, Lady Symons, referring to this on 13 December 2004, said that,
- “1,000 handpicked representatives ... were largely coerced into declaring for inclusion in Indonesia”.—[Official Report, 13/12/04; col. 1084.]
Later, the noble Baroness, Lady Royall, described the 1969 process as “extremely flawed”. Will the Minister therefore say, in the light of the recent letter from the Minister in the other place, whether the Government are now back-tracking from the truth which they previously admitted? The acknowledgement of the truth of the 1969 travesty by the British Government has been one of the few crumbs of comfort offered to the suffering West Papuan people in recent years. Is even that crumb of truth now to be snatched away?
If all this is not serious enough, I have yet to come to the most devastating fact of all. In 1971, there were 887,000 Papuan people and 36,000 Asian Indonesians in West Papua, so even after eight years of Indonesian control, Papuans comprised 96 per cent of the population. On the basis of the latest figures, it is estimated that in 2005 Papuans comprised 59 per cent of the population and others 41 per cent. On present trends, by 2030 Papuans will comprise only 15.6 per cent and non-Papuans 84.8 per cent. These figures speak for themselves. Papuans are becoming a minority in their own country. Juan Mendes, UN Special Adviser on the Prevention of Genocide, described West Papua as being among those countries whose populations were “at risk of extinction”.
The most decisive statement to date on the subject of genocide in West Papua has come from the Allard K Lowenstein International Human Rights Clinic at Yale Law School, which published a paper in 2005 entitled Indonesian Human Rights Abuses in West Papua: Application of the Law of Genocide to the History of Indonesian Control. It said:
“Although no single act or set of acts can be said to have constituted genocide, per se, and although the required intent cannot be as readily inferred as it was in the cases of the Holocaust or the Rwandan genocide, there can be little doubt that the Indonesian government has engaged in a systematic pattern of acts that has resulted in harm to—and indeed the destruction of—a substantial part of the indigenous population of West Papua. The inevitability of this result was readily obvious, and the government has taken no active measures to contravene it. According to current understanding of the Genocide Convention, including its interpretation in the jurisprudence of the ad hoc international criminal tribunals, such a pattern of actions and inactions—of acts and omissions—supports the conclusion that the Indonesian government has acted with the necessary intent to find that it has perpetrated genocide against the people of West Papua”.
West Papua is a small country a long way away. Indonesia is a big player with which we have major trade deals. West Papua is rich in natural resources, and major international companies such as BP, Rio Tinto and BAE Systems, among others, are active in utilising them.
There are those who think that if only they stall long enough the problem will go away, solved by
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Mrs Jilani concluded that a climate of fear prevails in West Papua, which has been borne out by the way in which those who sought to contact her have been singled out for special intimidation. The human rights abuses in West Papua are very grave and I ask the Government to pursue that issue with very great seriousness, conviction and urgency. In particular, human rights defenders need special protection, so I would ask the Minister to work for an international presence in West Papua to ensure that those who are raising human rights issues can do so without the present fear of intimidation, torture and death.
8.01 pm
Lord Archer of Sandwell: My Lords, the House is indebted, not for the first time, to the noble and right reverend Lord, Lord Harries of Pentregarth, for calling attention to this tragic situation. This is not the first occasion on which we have discussed the appalling events in West Papua. Sadly, our debates have failed to lead to any improvement for the people of West Papua, or, apparently, to impress on our Government the magnitude of the suffering. The last occasion on which we spared a thought for this situation was on 13 November 2007, when the noble and right reverend Lord asked a Starred Question. My noble friend Lord Malloch-Brown replied with an undisguised candour that the Government do not propose to raise the matter in the Security Council and do not support Papuan independence.
We have not been privy to the Government’s reasoning which led to that conclusion, but if there are two propositions which defy refutation they are, first, that if they were permitted to express a view, the overwhelming majority of the population would choose independence. As the noble and right reverend Lord has said, the so-called act of free choice was a blatantly transparent charade. We know that the American ambassador reported at that time that 85 to 90 per cent of the population were in sympathy with the Free Papua Movement. Secondly, West Papua passes all the tests in international law for a right to the free choice of its own destiny. I shall not weary your Lordships by repeating what I said on that issue on 8 January 2007.
However, the subject of today’s debate is not about the right of self-determination, but about the consequences of leaving West Papuans to the mercy of a brutal, alien regime. During our exchanges on 13 November, my noble friend stated as the Government’s view that, while they are concerned by continuing human rights abuses in Papua, they believe that they are,
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That is hardly the impression which emerges from what we have just heard from the noble and right reverend Lord.
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