HC Deb 23 July 1981 vol 9 cc689-97

6.3 am

Mr. Nick Budgen (Wolverhampton, South-West)

I am pleased to raise the next subject for debate, the extension of parole to shorter sentence prisoners, and to do so particularly after a speech from my right hon. and learned Friend the Chief Secretary, because to some extent my speech is directed towards him, and it follows on some of his remarks about riots.

Recently, in May this year, the Home Office published a review of parole in England and Wales. To demonstrate that my loyalty and subservience to the Home Secretary is total, I shall read the preface that is immediately above the Home Secretary's signature: The review has now been completed and this document presents the outcome. It not only provides a historical survey of the payrole system and a description of its present working, but also examines some possible changes in its scope and methods of operation. In particular, it raises the question of how some equivalent of parole might be provided for prisoners sentenced to terms of imprisonment of eighteen months or less. The Government has as yet come to no conclusion on that question, or on whether any other changes are desirable, but I believe that it will be most helpful to Parliament and the public to have this document available as a basis for informed discussion of these matters". I cannot pretend that I am capable of raising much in the way of informed discussion at this time in the morning, but I hope that I can get a little on the record, possibly to assist the Home Secretary and perhaps even the Tory Party conference when it discusses law and order.

I wish to prevent the simple cry that the Tory Party believes in stiff sentences. That is not a matter for us. I also do not want this Government to go down in history as the Government who opened the doors of the prisons by Executive action that might later be supported by legislation.

It is certain that the aftermath of the riots demonstrated above all else that the people of Britain felt that almost the most important duty of the State was to safeguard them and their property from internal violence. They made it plain that they required the support of the police and perhaps, if the worst came to the worst, the support of the Army. They look to the judiciary in the excercise of its discretion and independence, if necessary, to impose deterrent sentences on those properly convicted of crimes connected with the riots.

Ironically, in the aftermath there are proposals designed to open the doors of the prisons by Executive action and to release persons who have been properly sentenced to periods of imprisonment before they have completed the whole of that sentence, even subject to remission. That seems a remarkable proposition because I believe that the principal justification for it is that of expense. I yield to no one in my desire to reduce the public sector borrowing requirement. I am, I hope, not a person who spends time promising tax cuts or increases in public expenditure to curry favour with a part of the electorate.

If one believes, as I do, in a limited State and a limited role for the Government, that does not mean that one believes that the Government should be weak or lacking in efficiency or generosity in carrying out the essential functions of Government. One of their essential functions is the provision of proper prisons. In terms of the enormous size of public expenditure, that does not involve a great proportion of public expenditure.

The most recent public expenditure White Paper shows central Government expenditure running at £58 billion at 1980 survey prices. Page 91 of the White Paper, table 2.9, shows that in the year 1981–82 capital expenditure on prisons is expected to be £29 million and current expenditure on prisons £286 million. It is interesting that between 1980–81 and 1981–82 capital expenditure will have fallen slightly by £1 million. That shows that expenditure on prisons, although a significant sum, is not vast compared with the £1 billion spent on the miners, £1 billion on the railways and, over a number of years, £2 billion on British Leyland.

If we tell the man in the street that, on occasion, it may be necessary to allow judges or magistrates to send people to prison, and that there is a risk that they will be prevented from doing so because of considerations of expense, and that Parliament may, if we are not careful, fetter the discretion of the judiciary, many will say that the provision of proper prisons as an integral part of the State's duty to provide law and order is under-rated in the value judgments of those who rule us. We should be prepared to spend more on prisons.

There are disadvantages in interfering in the discretion of the judiciary. I do not wish to make a major point about what the Tory Party said in its election manifesto. I am not a believer in the manifesto—

The Minister of State, Home Office (Mr. Patrick Mayhew)

It is very important.

Mr. Budgen

It is important, but a Government are riot under an obligation necessarily to bring into legislative form every comma in their manifesto. I do not entirely agree with the doctrine of the manifesto in every form. It is an important document and guide to the spirit that pertains in the party as it seeks to obtain power. In our manifesto under the passage "Deterring the criminal" we promised: we want to see a wider variety of sentences available to the courts. We will therefore amend the 1961 Criminal Justice Act which limits prison sentences on young adult offenders The spirit behind that promise was that it was wrong to fetter the discretion of judges, and that there might be occasions when judges would wish to send young offenders to prison.

The proposal being made in the review of parole goes completely against the spirit not only of what was said before May 1979 but of that detailed promise in the manifesto. It also goes against the spirit of what the Home Secretary said in his much-admired speech at the beginning of the recent debates on the riots: Some of the charges will result in custodial sentences. It must fall to me to ensure that I provide for necessary facilities so that the sentences can be properly fulfilled. As the House will be aware, the prison population had been increasing even before recent disturbances began. It now stands at the figure of 45,500. The prison system is under great pressure and I warmly appreciate the prison service's response in dealing with the additional numbers who have been committed to its custody and the inevitable strains that the present level of population places upon it. We are discussing with the staff the measures that are now required. Within the system, arrangements are in hand to provide extra detention centre places at Lowdham Grange in Nottinghamshire and at Erlestoke House in Wiltshire and these will be ready next week. I have also made arrangements with my right hon. Friend the Secretary of State for Defence to use military camps to provide additional prison accommodation. The first of these will be at Rollestone on Salisbury Plain and others will be brought into use if they are required."—[Official Report, 16 July 1981;Vol. 8, c. 1403] My right hon. Friend has demonstratd that if there is the political will to provide additional prison places it can be done. The argument of expediency is merely a matter of the Home Secretary, or his authorised deputies, being unprepared to face the Chief Secretary and the Chancellor and get the money. If there is a proper sense of urgency and of political pressure, the places can be found.

I hope that the Government will not introduce these proposals, which would be to introduce legislation to allow for, as they put it, the automatic paroling of shorter sentence prisoners. I say, "as they put it", because I contend that the scheme is not really parole at all. The essence of parole is that it involves a second consideration of the circumstances of the man who has been sentenced by a quasi-judicial body that is ultimately responsible to the Home Secretary, and, in the light of the new circumstances, a consideration whether the prisoner may be released.

It is proposed in the review of parole—I refer to the proposals that are set out in paragraph 53—that there should be automatic release of shorter sentence prisoners. That does not embody the essential characteristic of parole. To describe the proposals as an extension of parole is dangerous. If they are introduced—I hope that they are not—and if they become unpopular and the object of considerable criticism within the country, it will be not only criticism directed against this so-called extension of parole but criticism that will rub off on to the whole of the parole system. It will undermine what was thought to be a considerable experiment with great risks when it was first introduced but which has now become an established feature of our penal system, and one which in my opinion we should not run the risk of jeopardising by leaving it exposed to too much public criticism.

This is a fortunate moment to be considering the review, because yesterday, in its fourth report, the Home Affairs Committee commented upon these proposals. I regret that it took a different view from me about the matter. At paragraph 96, it is suggested that it would support the proposals to amend the parole system and to apply it to sentences of between six months and three years". The Committee took the view that the widest possible consultations were necessary to decide the lower and the upper limits of eligibility. It was concerned that there might be a tendency of the courts to increase further the length of sentences to take account of the automatic release that might occur after one third of the sentence had been served.

Yesterday also, there was an interesting report in The Daily Telegraph, in which it became plain that the Magistrates' Association was opposed to the proposals. It was opposed on the ground that the scheme would drastically reduce the sentencing powers of magistrates, change the nature of parole and have serious effects on the resources of the probation service. The opposition of the Magistrates' Association is no minor matter. I suppose that all of us who think about the criminal law are a little inclined to overestimate the importance of the red judge and the professional judiciary in these matters. However, in reality, the bulk of criminal cases are handled by the lay justices. They are perhaps the most vital element in our system of the judiciary. They provide contact with public opinion and with the experience of ordinary life, which in many instances members of the Bar do not have to the same extent; they are the broad base and the grass roots of the judiciary. If their view is that such a scheme is undesirable, their view, although I do not describe it as a veto, is nonetheless an important inhibition on the introduction of such a scheme.

Therefore, I hope that the Home Secretary will, as his first method of dealing with the serious problem of overcrowding in prisons and the conditions of utter squalor and degradation in so many prisons, try to increase the prison budget. I hope that he will not attempt to reduce the prison population by turning his back on most of the important promises that we made about law and order at the last election. Although I do not say that this is an attack on the independence of the judiciary, it is a substantial reduction of the discretion of the judiciary.

We, the politicians and legislature, interfere with the judiciary at our peril. We ought not to make generalised statements about whether prison is a good or a bad thing, or whether it is good for certain types of person. The judiciary ought to have a proper level of professional competence. It also ought to have a diversity of opinion that is not forced upon it by the passing prejudices even of a legislature. I hope that we shall not fetter its discretion, because many disadvantages could arise if we were to do so.

Such an approach might be self-defeating. It might simply lead to the judiciary imposing longer sentences, taking into account the fact that there would be automatic release after a third of the sentence had been served as well as the fact that parole existed in any event. It might undermine public confidence in the parole system. It might create resentment among the magistracy generally. Ironically, it might also lead to an increase in costs, because if the magistracy felt that its powers were so severely fettered that it was unable to deal with the bulk of those who either were found guilty or pleaded guilty, it might tend to commit a much greater proportion of persons for sentence to the Crown Court, and that would lead to a second expense.

Many important reservations ought to be aired about this proposal to cut sentences by automatically releasing persons who had served only a third of their sentence. This is an important and highly contentious proposal. It has not yet been fully debated. I dare say that this debate will pass completely unnoticed. I hope that it does not. I also hope that public opinion is brought to bear upon the Home Office.

6.32 am
The Minister of State, Home Office (Mr. Patrick Mayhew)

I wholly agree with the concluding words of the speech of my right hon. Friend the Member for Wolverhampton, South-West (Mr. Budgen), as does my right hon. Friend the Home Secretary. It was with the express purpose of attracting expressions of public opinion on this subject that the proposal set out in the review of parole was put forward in that form.

My right hon. Friend has from the outset made it abundantly clear that that proposal, floated in that rather tentative form, was designed to attract the sort of expressions of opinion that my hon. Friend has contributed this morning in a valuable speech. My right hon. Friend will read it with great interest, not least because it began with an expression of my hon. Friend's subservience to the Home Secretary.

The proposal for a scheme comparable with parole for shorter-term prisoners who are not eligible at present for parole is canvassed in a general review of the working of the parole scheme, which, as my hon. Friend reminded us, was carried out by the Home Office and published on 14 May. The review examines the way the scheme has worked since it came into operation in 1968, and considers a number of possible changes in its scope and methods of operation.

The review notes that the rule that prisoners must serve at least 12 months before being considered for parole has the effect of excluding all those serving sentences of 18 months or less. It comments that, while parole has proved to be one of the more imaginative developments in modern penal practice, it cannot be said to have reached its full potential while this group, who make up almost half of the sentenced prison population, are excluded.

For this reason, a number of suggestions have been made, most recently by Lord Justice Waller to the effect that the lower limit for the parole scheme should be reduced. The review concludes, however, that it is not possible to extend parole in its present form to shorter-term prisoners because there would not be sufficient time for the lengthy process of assessing their suitability for release while in custody which is the reason for the present 12-months rule.

It seems reasonable to suppose, however, that a period of supervision outside prison which yet constituted part of the sentence might prove of value in the case of shorter-term prisoners, too. The review therefore suggests another method of achieving a similar effect. I entirely agree with my hon. Friend that what is proposed in the review is not an extension of parole, for the reason that he gave. There is not the element of selection which is a characteristic of parole.

It must be firmly stated that the courts need, and will continue to need, strong powers to enable them to deal severely with serious crime. The present Government have never needed reminding of this and recent events have served only to emphasise the point. Accordingly, it is right to make it clear at the outset that the proposed innovation tentatively proposed in the review of parole would have no application at all to sentences exceeding three years.

I was glad that my hon. Friend referred to the manifesto, because I believe that our policies there set out in the sphere of law and order are important and certainly should not be diluted or diminished in their application. As we said in the manifesto, long sentences are not necessarily the best way to deal with offenders who do not represent a serious threat to society.

The nature of what is now put forward for discussion is that the central concept of parole, which is release under supervision, should become an integral part of shorter sentences. In brief, an offender sentenced to a term of, say, between six months and three years would, on completion of one-third of his sentence in custody, be released under the supervision of a probation officer for the middle third of his sentence, which would be held in suspense. Remission for good conduct would continue to operate as at present for the final third of the sentence, with any loss adding to the period in custody.

The period of supervision would carry conditions as to the offender's behaviour, and if he failed to observe any of them he could be dealt with by the court. If he committed a further imprisonable offence while under supervision, the court could reactivate the remaining part of the suspended period in addition to any other penalty that it might impose.

This proposal is expressed in the review of parole only in broad outline. Clearly, many details would require further thought—for example, the range of sentences to which such a scheme might apply. The review itself suggests a lower limit of perhaps six months with a view to providing a sufficient minimum period of supervision. For a six-month sentence, it would be two months. An upper limit of three years would minimise anomalies which would otherwise result in relation to the parole scheme.

Another important question is whether there should be a measure of discretion, for example in relation to offenders who had previously failed under supervision. The review notes that there are arguments for and against the approach of allowing the court discretion to disapply the scheme in the case of offences or offenders of a particular category.

I have already mentioned that the proposal was put forward in tentative terms only. My right hon. Friend the Home Secretary explained in his foreword—which my hon. Friend has cited—that the Government had not yet reached a final view on the proposal, but that they hoped that the review would serve as the basis for informed discussion of these matters.

To that end copies of the review were circulated widely to the judiciary and to professional and other interested bodies on publication.

That is still the position. We shall, of course, pay close attention to reactions to the review—both within the House and outside—in deciding whether to ask Parliament, in due course, to approve a scheme along these lines. In that connection, the parliamentary all-party penal affairs group has already expressed its approval of the proposal. In addition, the Select Committee on Home Affairs sees many advantages in the proposal and has expressly endorsed it in its report on the prison service, published yesterday. The Committee also drew attention to some detailed points about the implications of the proposal—which we shall examine closely—including the question whether there should be some discretion vested in the courts to disapply the provision in certain cases.

As my hon. Friend said, one of yesterday's newspapers carries a report containing grave reservations about the proposal on the part of the Magistrates' Association. However, these are early days. Although some misgivings have been expressed, it is fair to say that on the whole the proposals have been welcomed. We have noted, in particular, the observation made by the Lord Chief Justice. In the press he was reported as commenting shortly after the review was published that the proposal could prove successful and worthwhile, as had been the case with the innovation of parole. In reaching a decision, we shall of course take particular account of the considered views of Lord Lane.

The Magistrates' Association is concerned that the effects of the proposal might unduly encroach on the sentences available to magistrates. I gladly take this opportunity to emphasise that what is envisaged would not be a reduction in sentence lengths as such. Rather it would be a question of restructuring the nature of sentences so that part of the sentence is served in custody and part under supervision in the community. Thus, a six-months sentence would comprise two months in custody, two months under supervision and two months, subject to good conduct, remitted.

This two-month supervision would be as much a part of the sentence as the period spent in prison. The period spent under supervision would be conditional on co-operative behaviour. The offender would, as I have explained, be liable to be returned to custody for the unexpired portion of his sentence if he re-offended. Similarly, if an offender merely breached the requirements of supervision he would be subject to an appropriate sanction.

In the review of parole we envisaged that the sanction would be a fine. We have since thought further about that and would wish the courts to be able to order up to, say, 30 days return to custody for such a breach. We fully recognise that a scheme on these lines is not parole as such.

Nor, I must say to my hon. Friend, would this suggestion constitute the opening of the doors of the prisons by Executive action. If this proposal were to attract the approval of Parliament, it would involve not executive action but legislative action. When my hon. Friend said that great care must always be taken not to restrict or fetter the discretion of the judges—a sentiment with which I have considerable sympathy—he was not, I feel sure, implying that Parliament ought not to express its views and embody them in legislation on the nature of sentences that should be available to the court.

Mr. Budgen

I was expressing, no doubt rather badly, my belief that it is necessary for Parliament to set maximum and minimum sentences for various offences. Within that range, I do not say that Parliament should not, but rather that Parliament should be reluctant, to interfere with the discretion of the judiciary.

Mr. Mayhew

With that sentiment I agree. We would not be interfering here with the discretion of the judiciary because it would be open to the judiciary to set what sentence length it chose. It seems a serious defect of the penal system that the benefits of the principal feature of parole—supervised liberty conditional on co-operative behaviour—are withheld from half the prison population. Anomalies arise at present, for example, where a prisoner sentenced to three years is released on parole after 12 months on the same day as a co-accused, sentenced for a lesser offence to 18 months imprisonment, is also released after 12 months.

Apart from that, the prospect of release on supervision followed by supervision under licence may well be as influential upon those serving sentences of less than 18 months as parole is for longer sentence prisoners now. It is widely held that it is the initial impact of the prison sentence that has most effect. Clearly, the courts must continue to determine the length of sentence according to the seriousness of the offence and they would still be able to do so. This scheme preserves the powers of the court to differentiate in this matter while maximising the impact of the initial period of custody.

My hon. Friend rightly said that the most important, or almost the most important, duty of any Government is to defend the community from attack upon itself and upon its property. I wholly agree. We have to seek to ensure that our penal system and our system of criminal law are best geared to that objective. Nothing that lies behind the thinking of this proposal implies that an abandonment of that concept of duty on behalf of the Government.

This leads me to wider considerations. My hon. Friend, with his knowledge of the criminal justice system, will, I am sure, agree with me that it is not sensible to look at one part of it in isolation. Changes in one area often have important implications elsewhere. The possible effects of this proposal in relation to parole and the prison system are of fundamental importance. On the former, it is arguable, as the review suggests, that if the proposed new scheme were to apply to all sentences up to three years, that would strengthen the parole scheme by allowing it to concentrate on longer term and more serious cases which call for closer scrutiny.

On the latter, the House will need no reminding either of the appalling and increasing pressure on the prison system, graphically described in today's report by the Select Committee, or of the determination of my right hon. Friend the Home Secretary to relieve it. The prison population is now over 45,000. My right hon. Friend has repeatedly warned that this level of imprisonment is dangerously high—much too high in relation to the capacity of our prisons, with a certified normal accommodation of under 39,000, and much too high to permit the prison service to play its full part in the defence of the community.

My right hon. Friend has therefore welcomed the lead given by the Lord Chief Justice in the Court of Appeal in the cases of Upton, Bibi and others, to the effect that, if it is necessary at all, courts should in each case seek to ensure that a prison sentence should be no longer than is absolutely necessary. We shall be assessing the apparent effect of those judgments on sentencing practice. However, we must expect the effects to be gradual, and it is clear that the trend in the prison population is still moving upwards.

It is not correct to suggest, as my hon. Friend did, that the principal argument advanced in favour of this proposal is that of expense. We are committed, having inherited no prison building programme when we took office, to a limited programme of new prison building. Two new starts a year are planned from this year onwards. But, as the Home Affairs Select Committee recorded in paragraph 22 of its report, this will produce 5,000 places in the 1980s, at a cost of just over £30 million over the next five years, but will not add to the total number of places available in the period in which they come into force because of the places that are being lost through dilapidation in the prisons.

The substantial effect on the numbers in prison that the proposal for early release could have, as noted in the review, is therefore an important factor, but not the sole factor by any means. The review properly sounds a note of caution because there are so many other factors to take into account. It suggests, however, that the reduction could range as high as 7,000 places. A reduction of that magnitude would be a valuable contribution, and that is also something that we shall have to keep well in mind in considering the proposal.

I return briefly to the point raised by the Select Committee and others, that the proposal will impose an additional work load on the probation service, and that any additional resources which are necessary should be made available to the service. That is something of which we are keenly aware. The requirements can be met.

Questions about crime, about criminals, and about the effective protection of the public from both, are profoundly complex and controversial and perhaps not best explored in the relatively early hours of the morning. Nevertheless, I think I can still manage to say that I am grateful for the opportunity to explain the nature of the proposal for early release which is floated in the review of parole. It is one upon which the Government have taken no decision, since we wish to consider what is said about the proposal by others.

The Government have, however, in any event no intention of curtailing the discretion vested in the courts in their jurisdiction to sentence offenders. It would remain open to them to set what length of sentence they thought fit—subject, of course, to the present right of appeal. What lies behind the proposal is a recognition that for the less serious offender a period of supervision in the community in the course of his sentence may exercise a beneficial influence on the offender's future conduct and prove entirely compatible with the safety of the public, as is so in the case of parole.

That, of course, is not the beginning and the end of the matter by a long chalk, but it would be idle to deny that the proposal is made more attractive at this time by the reduction which its implementation would make in a prison population at present so high and therefore so overcrowded as to amount to a public scandal—and an exceedingly dangerous one at that.