The parliamentary battle to reform the IPP sentence

Debating amendments to the Victims and Prisoners Bill, Peers from across the political spectrum called for urgent measures such as mentoring for people serving IPP, reversing the unjust release test, and establishing a mass resentencing exercise as recommended by the Justice Select Committee and the UN special rapporteur on torture.

Only this last measure, resentencing, failed to secure crucial backing from Labour, signalling potentially a Commons showdown before summer between warring wings of the Conservative Party – as long as no general election is called.

A stain on the justice system

When the Bill was debated in the Commons, Justice Secretary Alex Chalk, who calls IPPs a “stain on the justice system”, introduced changes to reduce the post-prison licence period from 10 years to three. But he rejected other amendments, including one from his Conservative colleague, Sir Bob Neill, chair of the Justice Committee, calling for an expert panel to oversee resentencing.

And in the Upper House last Tuesday, the Government again rejected the same amendment – this time moved by the non-affiliated Lady Fox – along with most of the other new amendments proposed by Peers. With an election fast approaching, Labour also felt unable to support resentencing on the grounds of public safety, but in a surprise move, shadow minister Lord Ponsonby gave his party’s backing to the other amendments – a necessary but not sufficient condition to win votes at the next stage of the Bill, due in late April.

Looking closer at these amendments, the most symbolic is Conservative Lord Moylan’s attempt to reverse the release test for certain long-serving prisoners. Under IPP, prisoners must show the Parole Board they are safe to be released, but this proposal would shift the burden of proof so that the Parole Board instead must make the case that an IPP prisoner is not safe to be released – a much more reasonable test that can be justified on the grounds of the exceptional circumstances of the IPP prisoner population.

Other changes could have a big impact too. Alongside Labour Lady Blower’s call for independent mentors and advocates to assist over-tariff prisoners, a number of measures to make it fairer and easier for people serving an IPP to end licence were proposed by influential crossbencher Lord Thomas of Cwmgiedd, a former Lord Chief Justice.

Former Labour Home Secretary Lord Blunkett, himself the architect of IPP who has since bitterly regretted this, made a number of proposals, from placing the IPP Action Plan on a statutory basis overseen by an independent scrutiny panel to urgent measures to address the special injustices endured by prisoners serving Detention for Public Protection – IPP sentences for children.

Lib-Dem Equalities spokesperson Lady Burt, supported by the Bishop for Prisons, the Bishop of Gloucester, sought to expand aftercare duty owed to people serving IPP, while crossbencher Lord Carter of Haslemere tabled amendments on additional executive release powers.

The Government doesn’t have a majority in the Lords, and has lost many votes there in recent months. If Labour, the Lib Dems and other opposition parties, alongside other blocs including the Bishops and crossbenchers, all work together and whip their members in the right direction, then they can win votes and send amendments to the Commons. This normally leads to what’s called “ping-pong”, when the Government uses its Commons majority to overturn such amendments and sends Bills back to the Lords, sometimes with minor concessions. But ultimately, the Lords almost always back down and bow to the will of the elected Chamber.

Two possible paths to the statute book

However, there’s a remote but distinct possibility that these amendments will enjoy a different fate, with two possible paths to the statute book. The first is if Sir Bob, who is stepping down at the election and has made it his mission to resolve the injustices of IPP, can rally the support of around 25 fellow Tory MPs to rebel at ping-pong, which should be enough for victory as the Government’s majority has fallen from 80 after the last election to about 50 due to by-elections and defections. The second is if Alex Chalk can persuade his boss, Rishi Sunak, to accept the Lords amendments.

This isn’t as implausible as it sounds – the role of the House of Lords, after all, is to act as a revising chamber, to improve legislation, and there are enough moving parts within the Tory Party right now for this to be worthy of Sunak’s serious consideration.

Chalk is currently caught up in an almighty battle between the Ministry of Justice, which he runs, and the Home Office, which is in the hands of the Tory right, over the future of the Sentencing Bill, announced in the King’s Speech but in limbo since its first debate in December.

The Bill contains progressive measures designed to reduce prison overcrowding, such as early release under virtual house arrest of some prisoners by up to six months, and a presumption of community sentences instead of prison spells of under a year. But it has met fierce opposition from the “hang ’em and flog ’em” brigade, who accuse their party leadership of being “soft on crime” and are threatening to vote against, causing huge embarrassment for the Government if it has to rely on Labour votes to pass into law.

Even with the recent emergency panic measures such as releasing some prisoners up to 60 days early, Chalk is reported to be warning Sunak that prison overcrowding could spark major disturbances if the Sentencing Bill isn’t passed. But so far the PM seems more interested in party politics than stopping prison riots. He doesn’t see the point in taking on his own backbenchers before an election he’ll almost certainly lose, and would rather just hand this ticking time-bomb over to Labour.

But instead of counting on greater prison capacity in the future, Labour should embrace the opportunity now to make the case for a smaller prison population, offering support to the Justice Secretary’s sensible measures to reduce overcrowding – provided that sufficient resources are invested urgently into the already overstretched Probation Service.

The Lords IPP amendments are aimed at helping people serving IPP to get out – and stay out – of prison, and so would also help tackle the overcrowding crisis. Two major hurdles remain – votes in the Lords and votes in the Commons.

If an election is held before autumn, the Bill will fall and it may be years before the next Government makes any changes at all to IPP. But with Labour’s support, massive grassroots pressure from campaigners, and a bit of luck, we may get closer to IPP justice faster than anyone thought possible.

Charley Allan provides the secretariat for the Justice Unions Parliamentary Group, which is supported by the POA, Napo, PCS and UCU trade unions, and the Police Federation of England and Wales.