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Saturday, 9 November 2013

To ask Her Majesty's Government what further steps they will take to release prisoners serving indeterminate sentences for the protection of the public in the light of the recent decision of the European Court of Human Rights in James, Wells and Lee v UK.

House of Lords

Tuesday, 23 April 2013.

2.30 pm
Prayers-read by the Lord Bishop of Exeter.

Prisoners: Indeterminate Sentences


2.36 pm
Asked by Lord Lloyd of Berwick
    To ask Her Majesty's Government what further steps they will take to release prisoners serving indeterminate sentences for the protection of the public in the light of the recent decision of the European Court of Human Rights in James, Wells and Lee v UK.
The Minister of State, Ministry of Justice (Lord McNally): My Lords, the European Court's judgment did not find sentences of imprisonment for public protection to be unlawful. Therefore, it remains for the Parole Board to determine whether to direct the release of an IPP prisoner once he has completed his tariff. The National Offender Management Service continues to improve opportunities for IPP prisoners to progress towards release.
Lord Lloyd of Berwick: The noble Lord will know that currently more than 3,500 IPP prisoners have passed their tariff date and are waiting to come before the Parole Board. Does he accept that, at the current rate of release on licence, which is running at about 400 a year, it will be nearly nine years before the backlog is cleared? If so, is there not an overwhelming case for the Lord Chancellor to exercise the powers he was given under Section 128 of the 2012 Act to vary the release test to make it easier for these prisoners to satisfy the Parole Board?
Lord McNally: My Lords, the noble and learned Lord's figure on the release of IPP prisoners is roughly correct; I do not think it is until Thursday that we release the full figures, but his estimate is not far out. That compares with 300 releases in 2011, 97 in 2010 and 53 in 2009. I hope he will acknowledge that the abolition of IPPs in LASPO and the greater flexibility that we are now employing in trying to manage the IPP sentences are going in the right direction. I acknowledge that it is a slow process. I will take back to my right honourable friend the Lord Chancellor the noble and learned Lord's point about the power that was given in the LASPO Act, but even if that power were exercised the Parole Board would have to take public safety into account in making its decisions.
Lord Thomas of Gresford: My Lords, at its conference in 2012 the Prison Governors Association passed a motion overwhelmingly welcoming the ending of what it described as the "iniquitous" IPP system. It also

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said that unless some action is taken either to resource appropriate interventions to reduce perceived risk or to review the Parole Board criteria on what constitutes risk to the public, existing prisoners will face disproportionately long sentences. What action have the Government taken?
Lord McNally: My Lords, I think the key word is "risk". The fact that these prisoners were given IPP sentences indicates that it must have been in the mind of the judge imposing the sentence that they posed a significant risk to society that had to be dealt with before they could be considered for release. That was the intention behind IPPs and that must remain uppermost in our minds when deciding the future of these prisoners. However, we are bringing in accredited courses, which may help to make the point that they are available for these prisoners. Other interventions such as work, education and employment may also provide evidence of reduced risk. NOMS is investing in interventions that have the most beneficial impact in reducing risk, and priority for those programmes is given to IPP prisoners.
Lord Wigley: Does the Minister accept that these prisoners are in a totally invidious position, a Catch-22 position, in that they have to undergo rehabilitative courses in order to be considered for eligibility for parole, yet the vast majority of them have not been offered such courses. Does what he said a moment ago about new courses mean that a substantial number of these prisoners will now be offered them?
Lord McNally: My Lords, within the constraints that we are having to operate in we are trying to introduce new courses. I fully accept that one of the reasons we abolished IPP is that it contained that Catch-22 whereby you had to fulfil certain courses, which may not be available, to qualify for release. I believe that NOMS is doing its best to bring in new systems and that there is greater flexibility in qualifying for release. However, I go back to the point that we are dealing with men who were sent to prison because the judge who sentenced them judged that they posed a serious risk.
The Lord Bishop of Liverpool: My Lords, one of the problems is that when a prisoner is transferred to another prison, they find that there is no accredited course in that prison. Who has the specific responsibility for ensuring that when a prisoner is transferred, there is an accredited course in the prison to which that prisoner is transferred?
Lord McNally: I understand that almost all IPP prisoners now have a managed programme to help them prepare for release. That should be part of sentence planning. But, again, I freely acknowledge that in some cases prisoners have been moved for other reasons and then find that they cannot complete the relevant courses. We are trying as best we can to iron out of the system what the noble Lord referred to as a Catch-22 situation so that prisoners can qualify, but to leave

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with the Parole Board the overriding assessment of whether they are suitable for release or whether a risk remains.
Lord Beecham: My Lords, what is the Government's estimate of the number of prisoners to whom the judgment in the European Court of Human Rights case of James, Wells and Lee v UK applies? Have the Government estimated the cost of providing sufficient resources to comply with the requirement to ensure that prisoners have an opportunity to progress and to be properly assessed for release on licence?
Lord McNally: I am not sure of the number of prisoners to whom the judgment applies, but cases are being taken. It may be of interest to hear that two of the three prisoners involved in that case are now back in prison due to breaching their terms. We are being very careful to make sure that the system is flexible enough and effective enough to allow prisoners to earn-that is the reality of it-their release. However, we have to consider this issue in the context of prisoners who were given this sentence, when it existed, because they posed a threat to the community. It is for the Parole Board to assess whether they are fit for release.

Judicial Review


Asked by Baroness Whitaker
    To ask Her Majesty's Government how their proposed new policy on judicial review ensures the right to a fair hearing in respect of time for individual applicants to prepare and lodge their cases, and the opportunity for an oral permission hearing in all circumstances.
Lord Ahmad of Wimbledon: My Lords, I begin by congratulating the noble Baroness on her impeccable timing because today the Government published their response to the consultation on reforming judicial review. The response sets out changes to the judicial review procedure which the Government intend to take forward. As set out in the response, we believe that these changes to the fee structure, oral renewals and time limits will help to reduce the burden of judicial review while, most importantly, maintaining access to justice, the rule of law, and the right to a fair hearing.
Baroness Whitaker: My Lords, the consultation paper refers to problems with challenges to large planning developments. Why should individual applicants, often unfamiliar with legal processes or perhaps not even very good at reading and writing, like some Gypsies and Travellers, pay the price with so much less time? Secondly, does the Minister agree with Lord Justice Laws when he said,
    "that judges ... change their minds under the influence of oral argument",

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is central to the system, bearing in mind that more than 60% of all hearings are successful? Where is the justice in reducing them?
Lord Ahmad of Wimbledon: The noble Baroness is right to raise the important issue of vulnerable groups and people who represent themselves. However, a total of 11,359 applications were lodged in 2011, of which only 144 were successful. I hear what the noble Baroness says, and I am sure she will appreciate that for every application made in written form it is down to the judge to make an adjudication on whether it has merit to go forward. Even if the case is decided in the negative, the individual still has a right to take the matter forward to the Court of Appeal.
Lord Pannick: My Lords, will the Minister draw the attention of the Lord Chancellor to the oral evidence given to your Lordships' Constitution Committee on 13 February by the president of the Supreme Court, the noble and learned Lord, Lord Neuberger of Abbotsbury? I refer in particular to where he said:
"If you have shorter time limits, the risk is that people start proceedings when maybe, if they had more time to think, they would not. There would be many more applications for extensions of time and you might find that the bright idea of cutting time limits turns out to increase the amount of litigation rather than decrease it".
Does the Minister share these concerns? I declare my interest as a practising barrister.
Lord Ahmad of Wimbledon: The noble Lord always comes to these matters with great wisdom and experience, which I fully acknowledge. Various groups, including the judiciary, were fully consulted in putting forward the response. The senior judiciary who were consulted included the president of the Queen's Bench Division, the Master of the Rolls, the vice-president of the Court of Appeal, the Civil Division and Lord Justice Richards, the deputy head of Civil Justice. As I said earlier, in the case of such appeals the judge is there to decide if an extension is required to the time period. The noble Lord may have an opinion that this may extend the period, which his quote highlighted, but it is important that the right thing is done. If the judge decides to extend the time, so be it.
Lord Marks of Henley-on-Thames: My Lords, I declare a similar interest. The Government propose withdrawing the right to an oral hearing in cases deemed on paper to be totally without merit. Does my noble friend accept that unrepresented applicants often find it very difficult to express their cases adequately on paper, and that it is only at oral permission hearings that judges can sometimes discern from such applicants an arguable case which was not apparent on paper? Will the Government consider limiting the restriction of the right to an oral permission hearing to legally represented applicants?
Lord Ahmad of Wimbledon: I thank my noble friend for raising this concern, but I believe that the risk is somewhat limited. I am sure that many members of the judiciary both in here and those practising outside

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will agree that the test of "totally without merit" is something that is well understood by the profession and is, indeed, applied by judges. This reform applies only to the weakest cases, and as I said in a previous response, if there is still an issue, the right to apply to the Court of Appeal remains for the individual.
Lord Beecham: My Lords, does the Minister agree with the observation of the Master of the Rolls, Lord Dyson, that there is no principle more basic to our system of law than the maintenance of the rule of law itself and the constitutional protection afforded by judicial review? When will the Government publish their response to the consultation on their proposals, and can the Minister indicate whether the view of consultees that has emerged from the consultation on the question of shortening the time limits for procurement and planning cases has been noted?
Lord Ahmad of Wimbledon: First, I agree totally with the noble Lord. The point of judicial review is to hold the Executive and public bodies to account, and that is a principle to which the Government are utterly committed. I have referred already to the issue of time extension. If an extension of time is required, the judge can grant it. It is important to highlight three key points around these changes. The reduction in time limits on planning and procurement, the introduction of fees and the dismissal of decisions that are totally without merit were all referred to the judiciary and, indeed, carried their support. Matters were raised in the consultation which the judiciary felt were not right to take forward; the Government have listened and are not doing so.
Lord Bach: My Lords, linked to the issue of judicial review is the idea of a residence test, which is presently being consulted on. If put into effect, that residence test would mean that someone here lawfully but who had not been here for 12 months or more would not be entitled to legal aid in civil actions, presumably including judicial review, however overwhelming their case might be. Does the Minister agree that such a proposal goes against the traditions and principles of British justice and is more akin to the traditions of more unsavoury judiciaries?
Lord Ahmad of Wimbledon: I do not agree with the noble Lord. It is right to say that our justice system is one of the best in the world, demonstrated even in cases such as that of Abu Qatada. Here is a man who does not believe in our democracy, who does not believe in the freedoms our country stands for, and who takes a noble faith, hijacks it and then presents it in his own erroneous way. Even then, our justice system stands up for him. That is British justice at its best and those rights are protected within judicial review. The noble Lord also noted that these matters are currently out for consultation. The whole issue of legal aid for anyone seeking to apply for it is to protect the vulnerable. That remains the central aim in terms of how the Government will continue to support such cases.

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