EARLY RELEASE OF PRISONERS (Hansard, 28 October 1980)

The First Deputy Chairman (Mr. Bryan Godman Irvine)
The next amendment is in page 4, line 15, in the name of the hon. Member for Ormskirk (Mr. Kilroy-Silk), who is not in his place. The amendment is not moved.

§ Mr. Alexander W. Lyon
I have one amendment in the bundle of amendments. The issue that arises is whether this occasion should be taken as an opportunity for using more widely the power of release which is implied in the Bill and which is also implied in the existing power to grant remission. It raises the possibility of giving a 50 per cent. remission, as in my new clause—

The First Deputy Chairman
Order. Is the hon. Member for York (Mr. Lyon) proposing to move the first amendment in the group?

§ Mr. Lyon
I wish to move my new clause.

The First Deputy Chairman
That cannot be done at this moment. We are dealing with page 4, line 15. If the hon. Gentleman is proposing to move the amendment, he will be in order to do so.

§ Mr. Lyon
I beg to move in page 4, line 15, leave out (but not more than six months earlier)".

§ The Chairman
With this it will be convenient to take the following amendments: in page 4, line 15, leave out at such time earlier (but not more than six months earlier) than they would otherwise be so released as may be fixed by the direction and insert— when they have served half their sentence". In page 4, line 15, leave out but not more than six months earlier". In page 4, line 15, after "than" insert 432 (and after not less than 9/10 of the period of imprisonment after which)". We shall also discuss the following: new clause—Early remission of prisoners—

"(1) The Secretary of State shall direct that remission of sentence for persons of any class who are serving a sentence of imprisonment other than imprisonment for life shall be increased from one third to one half.

(2) A direction under this section may define a class of persons in any way including the nature of their offence.

New clause—Remission of Sentences— The Secretary of State shall direct that any person of a class specified in the Schedule to this Act shall be entitled to a remission of 50% of his sentence subject to good behaviour. New schedule—Remission of Sentences— 1. All sentences of less than 30 months. 2. All sentences of over 30 months for offences not involving violence, rape, robbery or traffic in drugs.

§ Mr. Lyon
The Bill places a limit upon the power of the Home Secretary to release by providing that it should be not more than six months before the due release date. It seems that that is an unnecessary limitation upon the powers that he is taking, especially when we consider the present crisis in the prisons.
Having moved the amendment, I think that I can revert to my argument on the new clause that is linked with it, which would give a much wider power to the Home Secretary to give 50 per cent. remission in certain circumstances.
We have talked at some length about the crisis in the prisons occasioned by the prison officers' dispute. However, we have had a crisis in the prisons since well before the period when a former Home Secretary, Roy Jenkins, was talking about it. We have not solved the crisis. That is not because we did not put in resources and not because we did not open new prisons. New prisons have been opened since Roy Jenkins was talking about the matter. We have not been able to keep pace with the rate at which people are being sent to prison.
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An unusual feature of our criminal justice system is that so many people are sent to prison. With the exception of one country, Britain's position is the worst in Western Europe. It is incredible 433 that we should have to send so many people to prison. Every European country faces serious crime, but other countries find it possible to deal with it without putting people in prison to such an extent.
Holland is an outstanding country, in that it copes with the same type of crime pattern by sending people to prison for much shorter periods. If there is a crisis, it must be right to give the experiment a chance and to release people on a wider scale than the clause intends. The clause restricts the position to such an extent that it is unlikely greatly to reduce the prison population. It is simply a way of easing the position should the prison officers' dispute lead to tension in a particular prison. It would then be possible to cope with the situation.
It is more desirable to reduce the whole prison population quickly. As the Lord Chief Justice indicated in a recent judgment that it would be appropriate to pass shorter sentences, this should be the occasion for permitting a once-for-all remission. If such a remission were given in the context of this dispute, it would be more acceptable and would overcome many of the difficulties that have been placed in the path of this proposal in the past. It has been argued that such a proposal would interfere with judicial discretion. If we are to interfere with judicial discretion—as this clause does—we should do so properly. The opportunity must be taken to include a provision for a once-for-all 50 per cent. remission. If that opportunity is taken at a time when the Lord Chief Justice is experimenting with shorter sentences, the numbers in our prisons will fall dramatically from about 46,000 to 25,000 or 30,000. That would be a most productive and salutary result. If that were achieved, many of the problems would be easier to handle, not least the dispute. Prison officers would be more willing to come to an agreement about new rotas and allowances if the strains of overtime caused by overcrowding were reduced by a decrease in the prison population. That would not be inconsistent with the penal policy of any Home Secretary.
The Conservative Party came into office on a platform of increasingly repressive law and order. The Government said that they would stand by the 434 courts in their attempt to stamp out crime. Within a year, the Home Secretary has had to say that shorter prison sentences are a good thing and should be encouraged. We have been saying that for a long time. Surely the fact that the Home Secretary has said that should persuade some Conservative Back Benchers. If such a provision were introduced, people would recognise, within two or three years, the virtues of shorter prison sentences and of using alternatives to custody in the control of crime.
The fact is that nothing is a deterrent to crime except, perhaps, age. When a criminal gets past 30 his criminal activities begin to tail off. Before that age there is not much that can be done to deter him. Every study that has been carried out indicates that the deterrent theory of sentencing is nonsense. Instead, we must provide a proper, suitable sentence for the crime and for the criminal, and we should not seek to pile on the agony after each successive crime in order to try to deter either him or some other person from committing similar offences. It does not work, and it is counterproductive. In those circumstances, one of the virtues of the Bill might be that it gives us an opportunity to carry out the experiment of a 50 per cent. remission in certain cases. It is on that basis that I press my amendments.

§ Mr. Teddy Taylor
The Home Secretary may find my amendment as difficult to understand as I find this clause. However, it gives me an opportunity to ask three questions. First, I wholly disagree with the point made by the hon. Member for York (Mr. Lyon), who said that there is no such thing as a deterrent. We have only one or two specific examples that we can look at—the abolition of capital punishment in this country and the abolition, through the European Court decision, of corporal punishment in the Isle of Man. In both cases the removal of the deterrent was certainly followed by a substantial increase in the crimes that they affected. These are the only two particular cases of which we have recent evidence. I suspect that we should be here a lot longer tonight if we got involved in those issues.
My amendment provides that in addition to not more than six months earlier 435 we should add the complicated words and after not less than 9/10 of the period of imprisonment after which The reason why I have tabled this amendment is that I think it very strange that the figure of six months should be inserted to cover a substantial number of people, all of whom are serving different lengths of sentence. For example, a six months' remission for someone in prison for two years is a different matter from a six months' remission for someone serving a 10-year sentence.
I wonder whether the Minister could indicate how he intends to apply the six-month rule. If he intends to have a general reduction, will he apply it in some relationship to the actual length of sentence? Clearly, it would be ridiculous to have a six-months remission for someone serving a long sentence, and a six-months remission for someone serving two years.
My second question is, six months earlier than what? This is important. The clause says: (but not more than six months earlier) than they would otherwise be so released What does that mean? Does it mean the sentence less the full amount of parole that could be obtained? Is the Minister thinking of six months off the sentence less the appropriate parole and remission that could be obtained in these circumstances? I hope that he will indicate exactly what is meant. It is quite obvious that we would not know what the appropriate remission given would have been if the case had not gone to the Parole Board.
My third question is one that I have asked before, and I am afraid I did not get an entirely satisfactory answer. Unlike clause 4, which was related to the emergency, clause 5, as worded, makes it clear that the Secretary of State shall not give a direction unless it is necessary to do so in order to make the best use of places available for detention. The clause could be used to deal with the general and continuing situation in prisons, which the hon. Member for York mentioned.
The Minister said earlier that the provisions would only be temporary, but that is not what I was asking. It would be wrong if the clause were used to deal with the general problem of overcrowding in prisons and not simply to cope with 436 the direct results of the current industrial dispute. If it is the Minister's intention only to use the power to cope with problems directly resulting from the action of the prison officers, it would be helpful if something along those lines could be inserted in the Bill, such as "in relation to the current dispute".
The hon. Member for York and many others have argued with vehemence for a long time that we should clear out our prisons and reduce sentences. I do not believe that that would help to reduce crime. The remarkable document published yesterday by the Home Office, with a very full press release, indicated that, according to the two so-called experts, reducing sentences would not necessarily lead to dramatic increases in the overall level of crime, but they did not argue that it would not result in an increase. I believe that it would.
The Secretary of State must avoid any impression that he is seeking to use an emergency Bill to deal with a general problem. The prisons were over-full before the prison officers' action. They will probably be so after that action. If the Home Secretary wants to bring forward a measure to enable him to clear out prisons by means of a six-months remission, where appropriate, it should be in the context of a general Bill and not this measure.
I make these three points: six months earlier than what? Is it the full sentence less the full remission that could be obtained if parole were given? Would it not be wiser to give an indication of the scale that it is intended to operate? Presumably, if the Secretary of State considers six months appropriate for a long-serving prisoner, it would not be six months for a prisoner serving a short sentence?
Finally, the measure should be directly related to the emergency. It is difficult to see why we should have the power to deal only with prisons and not approved places when the prisons are emptier than they would have been had there been no strike. About 3,000 people are stuck in police stations who would otherwise be in prison. What is the measure designed for? We accept that it will be for only the duration of the strike, but can the Minister assure us that it will be used to deal only with 437 situations arising directly from the dispute and not with the general overcrowding in prisons? If he intends to deal with that, it should be in a separate Bill.

§ Mr. Freud
The clause deals with the early release of prisoners. The Home Secretary has often enthused about the merits of short, sharp sentences. It is therefore right that he should look most carefully at the early release of prisoners.
I tabled a new clause, which was lumped together with this amendment. The conditions in which prisoners live are the conditions in which prison officers work. Nothing could benefit prison officers and ease tension in their service more than a substantial reduction in the prison population.

§ Mr. Alan Clark (Plymouth, Sutton)
Logically, that must be happening at the moment. Following what my hon. Friend the Member for Southend, East (Mr. Taylor) said, if prison officers are refusing to admit criminals but in the normal course of events they are discharging other prisoners at the end of their time, the prison population must be decreasing substantially.

§ Mr. Freud
That is right. This is a short-term cosmetic way in which, unintentionally, the lot of the striking prison officers is being eased. My new clause aimed to give 50 per cent. remission, obviously without having magistrates aiming off such remission, and would do what may be happening now, but on a much more permanent basis. This has all sorts of implications for our sentencing policy.
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Should we go on imprisoning petty inadequates, who desire only security and could be much more cheaply catered for, perhaps in the new holding centres about which the Minister of State spoke? Should we go on imprisoning fine defaulters—in the average population there are over 100,000 at any one time—with an annual total of 16,000 prisoners who are maintenance defaulters, and no more than that? Should we not do something more about alcoholics? There has been a pretty pathetic performance by both Labour and Conservative Governments in providing detoxification centres. What about the mentally disordered, who now 438 form 20 per cent. of the prison population?
In the short term, the best way of reducing the prison population is to cut the length of some prison terms. This new clause suggests increasing remission. I agree with that. What is desperately important is that if the Home Secretary expects to override people's rights in one respect in pursuit of his Government's confrontation policies, the least that he can do is to experiment with general penal reform.
My suggestion is that we should try. If it is shown that no floodgates are opened, that there is no great increase in recidivism, we shall have done in an emergency Act something towards paving the way for a more consistent and permanent policy of remission.

§ Mr. Budgen
The main reason why I am concerned about the powers that may be granted under clause 5 is contained in the speech made by the hon. Member for York (Mr. Lyon). He plainly illustrated the risk that the Committee may be setting a precedent for Parliament's interference in the discretion and independence of the judiciary. I accept that there was previously no convention by which the House of Commons did not interfere in the discretion of the judiciary. Each time we break through that barrier of reluctance it becomes easier to do it the next time.
I say that it is not a precedent in the sense that it is a legal precedent, binding on our successors. It is certainly an unwise step, which makes future unwise steps easier. I hope that my hon. and learned Friend will tell the Committee how many places we have now relieved the prison system of. We have, as he made plain in dealing with clause I, made Frankland available, and with it 900 places. My hon. and learned Friend has not told us how many places would, in his opinion, be made available by the exercise of powers under clause 3. We have now to add, I regret to say—since I did not get quite the number of allies I hoped for—a number of places under that clause.
We now come to clause 5. Here I marginally disagree with the Home Secretary. He seemed to feel that the powers that he sought under clause 3 were the ones about which he felt the greatest 439 doubts. All that I can say is that at least the people who may be released under Executive bail are not persons who have been convicted and sentenced.
At least those released under Executive bail are entitled to the presumption of innocence, and the non-imprisonment of a person under clause 4 may be a mere postponement of his later imprisonment, because when a person fails to make a monetary payment he is given many opportunities to make the payment. The threat of imprisonment is merely held over him and is not usually imposed by the courts except as a last desperate resort.
The powers in clause 5 go to the heart of the relationship between the Executive and the judiciary. I am sure that my right hon. Friend the Home Secretary will use those powers only with the greatest reluctance and I am sure that he would wish the Minister of State to tell us at what stage it is expected that powers under clause 5 might be requested. He has places available under clause l , with other Army camps in the pipeline. He also has a lot of room for manoeuvre under clause 3 and some room under clause 4.
I hope that the House, recognising the delicacy of its relationship with the judiciary, will not grant the proposed powers unless we know in what circumstances and in order to relieve what numbers it is necessary to grant them.

§ Mr. Hooley
I am curious to know why the period of six months is specified in the clause. We have been told throughout the Committee stage that the Home Secretary must have unfettered discretion to act on his own judgment, yet a limitation is imposed in respect of the release of prisoners. The right hon. Gentleman wants flexibility everywhere else and I am not clear why he is not so anxious to have it in this case.
I agree with what my hon. Friend the Member for York (Mr. Lyon) said about the importance of reducing the prison population, not just in an emergency but by having a more intelligent system under which fewer are committed to prison, and for less time.
If the Home Secretary releases several hundred prisoners in a particular category six months early, only to find that the dispute ends three days later, will he not 440 create considereable bitterness among more deserving cases, who will not be able to obtain remission because the right hon. Gentleman's powers will lapse when the dispute is settled? He will run into trouble with prisoners and their families if that happens. It will not make for a happy atmosphere in the prisons—unhappy places anyway—if that different treatment is abitrarily meted out by fiat of the Home Secretary under such powers.
However, my principal point is to ask why the six months' restriction is imposed, whereas everywhere else in the Bill the Home Secretary has asked for absolutely unfettered discretion.

§ Mr. Soley
I do not like penal reform being pushed through in such a Bill. I am fully in favour of penal reform generally, but I do not like it in a Bill of this nature. Apart from anything else, it disguises the unfortunate aspects of the Bill.
I wholly support the general comments of my hon. friend the Member for York (Mr. Lyon). I hope that the Home Secretary will learn his lesson and draw the conclusion from the clause and others that he should introduce a Bill that will do something to reduce the prison population, so that we do not again get into a similar absurd and discrediting situation.
I should like to say a few words in support of my hon. Friend the Member for Sheffield, Heeley (Mr. Hooley). The real objection to the clause is that by saying that one will release some people one necessarily implies that others will not be released. Because it is necessarily arbitrary, it raises false expectations, and it is therefore totally unfair, not only to prisoners but to their families.
My hon. Friend was right to point out that, if the dispute is over shortly after a number of people have been released, the action will be even more unfair and arbitrary. The Home Secretary should ask himself what will happen when one of two people who were sentenced at the same time for an offence in which they were both involved is released because he happens to be in one institution and the other is not released because he is in another institution. What will the Home Secretary do then, particularly if the second person chooses to go to the European Court for Human Rights, in 441 Strasbourg, with what I think would be a reasonable complaint against the Government?

§ Mr. Budgen
Does the hon. Gentleman agree that the matter might even give rise to the outside possibility that prisoners might wish to foment trouble between themselves and warders in order that the presure upon a particular prison might be relieved through the exercise of these powers? I hope that they would be entirely mistaken in believing that it would have that consequence, but they might try it on in that way.

§ Mr. Soley
That is an interesting thought. I think that there is an underlying truth in what the hon. Gentleman says. Perhaps I may put it in a slightly different way. Already a large part of our problems in prisons stems from a sense of unfairness and from unreasonable rules and regulations being applied where there is gross overcrowding, insanitary conditions, and so on. That can only be added to if one provides for yet more arbitrary actions, which appear to the prisoner to have no rhyme or reason, if he does not see why one man should be released and another should not.
I think that the clause is wholly mistaken—but, then, I think that the whole Bill is wholly mistaken and an assault on our liberties.

§ Mr. Stainton
I do not want to embark on a discussion of penal reform, though we have had some interesting contributions on that theme. We should not get the two matters confused. We are clearly dealing with an emergency provision, and it must not be interpreted otherwise.
The debate gives me an opportunity to raise a question direct with my right hon. Friend the Home Secretary about the status of section 47(1) of the Criminal Law Act 1977. My understanding is that the section permits courts to impose sentences of imprisonment that could be served in parts, with the remainder in suspense. Although the Act is three years old, the requisite order to implement section 47 (1) of the Criminal Law Act 1977 has never been introduced by any Government. My question simply is, "Why not?"

§ Mr. Alan Clark
This is certainly the most objectionable provision in the Bill. It is the one about which the public will feel the greatest apprehension and possibly resentment should certain circumstances flow from it. This is because, qualitatively, it is quite different from any of the other provisions of the Bill. I should like my hon. and learned Friend to state in what circumstances this power may be used. Surely, at the present time, the pressure is outside the prisons and not within them, for the reasons that I tried to give in an intervention during the speech of the hon. Member for Isle of Ely (Mr. Freud).
The prison population is steadily falling. The pressure is outside. We appreciate that the Home Secretary requires powers to deal with that situation. I should like to know, however, in what circumstances it is envisaged that my right hon. Friend might have to exercise the powers under clause 5.

§ Mr. Brittan
If convenient, I shall now try to deal with the various points that have been raised. Some of them involve a consideration of general measures—of amnesty, shorter sentences, and suchlike. I agree very much with the hon. Member for Hammersmith, North (Mr. Soley) and my hon. Friend the Member for Sudbury and Woodbridge (Mr. Stain-ton). Whatever the merits or demerits of proposals of that kind, I do not think that a discussion of emergency provisions of the kind that we are now debating is the appropriate occasion to consider, still less to determine, long-term measures.
I am not decrying the importance of the proposals that have been put forward. The individual proposals would have to be considered on their merits. This, however, is not the right occasion to consider them.
I should like to deal first with the point made about section 47 of the 1977 Act relating to partly suspended sentences. The reason why that has not been implemented is that, frankly, we have been so uncertain of the impact on the total prison population. There are a variety of hypotheses about how it would be used. On at least one of those hypo-these, there would be a severe extra strain on the total prison population. That is 443 a situation that one is reluctant to envisage in the circumstances that have faced Governments of both parties since 1977.
I turn now to the circumstances in which the provision that the Government are putting forward would be used. This topic was raised by my hon. Friend the Member for Wolverhampton, South-West (Mr. Budgen). The answer is that it is impossible to say exactly when it would be necessary to use the provision. It depends very much on the range of other alternatives for which we are taking powers in the Bill. It depends on the availability, for example, of camps in addition to Frankland prison, and it also depends on the actual exercise by the courts of their powers and the extent to which they are influenced by the circular relating to bail and a whole variety of other measures. My right hon. Friend has, however, made clear that he would not operate this provision in any shape or form unless it was necessary to do so.
The point has been made that the provision relates to people already in prison who are to be released, that this is not the problem, and that the problem is getting people into prison rather than out of it. That is not quite the answer, because, apart from the problem of getting people into prison, there is no doubt that the tension within the prisons caused by overcrowding is a major factor in the dispute.
A substantial number of sentenced prisoners are already in police cells. When the Bill is passed, substantial numbers of sentenced prisoners will be placed in the new accommodation that will become available as a result of the Bill's passage. The clause will enable people to be released not only from prison but from the new accommodation.

§ Mr. Tony Marlow (Northampton, North)
Surely that is an open encouragement and incitement to prisoners to riot, gesticulate and cause as much trouble as possible, because that will cause the authorities to say that there is trouble and that the people should be let out of the prisons.
People who will go to the new accommodation and police cells will be about to be sentenced, and it is not likely that 444 they will come up for release during the time that the provision is in force.

§ Mr. Brittan
My hon. Friend is not correct. Tension relates as much to the prison officers as to the prisoners, so m2 hon. Friend's first point is invalid. We are talking about people who are sentenced to short terms of imprisonment. The six-month period is a limit. It is open to my right hon. Friend to decide that people should be released, if it is necessary to use the provision, only at the tail-end of their sentences.
My hon. Friend the Member for Southend, East (Mr. Taylor) asked why there should not be a nine-tenths provision. If there were, the longer-term prisoner and therefore the more serious offender would receive greater benefit. If we were driven to use the provision, it would be important to make the protection of the public our paramount consideration. It would be right to operate the provision in favour of the early release of prisoners with a short period of time ahead of them rather than a long period.
My hon. Friend also asked what was meant by prisoners being released earlier, but not more than six months earlier. Complications are caused by parole provisions. Broadly, the provision means what it says. One uses the date at which the person would be released. Parole that is still being considered causes problems. The issue is complicated. Unless the Committee insists, I shall answer the detail in correspondence.
My hon. Friend the Member for Southend, East asked for an assurance that the provision would not be used, if it has to be used at all, as a means of generally letting people out rather than as a means of dealing with the consequences of the dispute. I can assure him that it is not my right hon. Friend's intention to use it in that way. So I hope that the Committee will feel that this power, deeply regrettable though it is to have to ask for it, has been devised so as to enable my right hon. Friend to use it, if necessary, in the most limited way and in the appropriate circumstances. In determining that last point he will have in the forefront of his mind the need to ensure that the people who are released and the periods for which they are released are such as will secure the protection of the public.

§ Mr. Teddy Taylor
My hon. and learned Friend says that this power will be related only to problems arising out of the dispute. The legislation could be reactivated by order from time to time. Will he consider whether words along these lines could be inserted in the clause at a later stage to identify that the power is to deal with the consequences of something like industrial action? My hon. and learned Friend says that the clause could be used to release people not just from prison, but from the approved places. Does that mean that "prison", in the clause, also means prison plus approved places"?

§ Mr. Brittan
The answer to the second question is "Yes", and to the first "No".

§ Mr. Taylor
I understood my hon. and learned Friend to say that this clause would be used only in an emergency. Will he put that into the Bill? As now drafted, the Bill gives him the power to use it in any circumstances.

§ Mr. Brittan
The Bill is designed to deal with this emergency. I have already gone in some detail into the duration of powers under the Bill, namely, that unless the House decides to renew them they will last for one month. I have given my hon. Friend the assurance as to the manner in which my right hon. Friend will exercise those powers, and I think that that is sufficient protection. I am surprised that he should not be content to leave the matter there, given the ability of the House not to renew the powers if it does not wish to, and the clear indication that I have given of how my right hon. Friend proposes to exercise the powers.

§ Mr. Freud
I beg to move, in page 4, line 23, leave out from beginning to "and" in line 25.
I accept that this is an emergency provision, but I do not accept that fundamental injustice, even in the short term, is even remotely justifiable. The insertion of paragraph (b) makes nonsense of penal policy and respect for justice if, by the application of that paragraph, 446 some people serving a particular sentence for a particular crime in one prison are released earlier because of overcrowding while other prisoners serving similar sentences for similar crimes not being held in overcrowded prisons are kept in custody.
The main preoccupation of prisoners and their families is looking through newspapers for cases comparable with their own and seeing how they were dealt with. I believe that an injustice such as this whereby people who are in one prison are allowed out because of overcrowding with no regard to the sort of crime they have committed or to similar claims for release from prisoners who have committed similar crimes will do the system a great disservice.
I am content with clause 5. This is a rotten Bill and it is a poor clause, but I would not mind keeping quiet on clause 5 if the Minister would give an assurance that paragraph (b) will be deleted. I am sure that he will agree that it does him and his Department little credit.

§ Mr. Brittan
I can see considerable force in what the hon. Member for Isle of Ely (Mr. Freud) said. It could give rise to feelings of injustice if the power were used in relation to some establishments and not others. I absolutely take that point. I assure the hon. Gentleman that in considering how to exercise that power, if it is necessary to exercise it at all, my right hon. Friend the Home Secretary will take that consideration into account. It would be wrong to remove from him altogether the power to do what the hon. Gentleman wishes him not to do. My right hon. Friend does not want to use it. He hopes that he will not have to use it. He will take the hon. Gentleman's point into account. But there could be circumstances in which it would be necessary or desirable for him to use it in relation to a certain establishment. Therefore, I believe that it would be a mistake to remove the provision from the Bill.