The Lords of Mercy

What happened to the Government’s plans to increase the time in prison served by serious offenders? On 1st October, Justice Secretary Robert Buckland told the Tory Conference that for the most serious violent and sexual offenders … this Conservative Government will abolish automatic early release at the halfway point”. Two weeks later the Queen’s Speech duly announced a Sentencing Bill which would change the automatic release point from halfway to the two-thirds point for adult offenders serving sentences of four years or more for serious violent or sexual offences, bringing this in line with the earliest release point for those considered to be dangerous. The Bill of course got nowhere before the election was called. 

But on the same day as the Queen's speech, Buckland tabled in Parliament the Release of Prisoners (Alteration of Relevant Proportion of Sentence) Order 2019. This Statutory Instrument (SI) would have brought the same change into force from April 2020- much sooner than primary legislation would have allowed- but for prisoners sentenced to seven years or more, rather than four. Buckland explained the different thresholds to the Justice Committee on 16 October in terms of “trying to make sure that we create a system that is supported by the resources I need”.  

Whatever length of sentence qualifies for the more restrictive arrangements, it’s surprising that secondary legislation can be used to introduce a measure which would so substantially increase levels of punishment, requiring 2,000 new prison places by 2030. But that’s what the Criminal Justice Act 2003 permits. At least the SI had to be laid under the affirmative procedure which means it must be actively approved by both Houses of Parliament.

The Commons Joint Committee on Statutory Instruments raised no concerns about it on 23 October but the following week the House of Lords Secondary Legislation Scrutiny Committee were less sanguine, drawing it to the special attention of the House “on the ground that it gives rise to issues of public policy likely to be of interest” to it.

In particular, the Committee took the view that the Order “represents one piece of a large and complicated jigsaw and the House may wish to ask the Minister for more information about how the pieces fit together. In particular the House may wish to seek reassurance from the Minister that adequate resources will be available in good time to meet this expanded remit, both in relation to prison accommodation and prison service staff”. The dissolution of parliament meant there was no time for such reassurance to be sought so the law has not been changed.

Should the Conservatives form the next government, the policy will presumably return whether through primary or secondary legislation. Before it does, the Ministry of Justice should take a step back and conduct a proper review of sentencing unlike this summer’s charade.

The MoJ redeemed itself a bit by preparing a detailed impact assessment about the longer periods of imprisonment. These highlighted not only the financial costs of the policy but the possible effects on prisoners and their families, on stability in prisons and on the lengths of sentences imposed by courts. In the light of these broader concerns, the House of Lords declined to be steamrollered in the way that Mr Buckland presumably hoped. It performed a valuable service.