Peers ponder way out of IPP impasse

The life sentence-like IPP was imposed on thousands of people between 2005 and 2012. Abolished in 2012, but not retrospectively, almost 3,000 people remain languishing in prison, sometimes for years after the term set by the court.

Compared with the big challenges any government faces, this is a simple problem to fix. And while Conservative ministers and their Labour shadows agree that something must be done, Parliament remains deadlocked on the solution.

The current Justice Secretary, Alex Chalk, wrote back in 2017 that, “although [IPPs] were abolished by Ken Clarke in 2012, their toxic legacy endures,” adding: “Society should not have a bleeding heart about its prisoners. But it shouldn’t have blood on its hands either.”

Even the architect of IPP as home secretary, Lord Blunkett, said in 2021 that “this situation cannot go on,” adding: “I got it wrong. The government now have the chance to get it right.”

And the former Supreme Court Justice, Lord Brown of Eaton-Under-Heywood, wrote in 2020: “I have no hesitation in describing the continuing aftermath of the ill-starred IPP sentencing regime as the greatest single stain on our criminal justice system.”

In 2022, the justice select committee called for a comprehensive approach to tackling the IPP scandal, chiefly through a resentencing exercise overseen by an independent panel.

However, the government rejected this recommendation on the grounds of public protection and opposed an amendment by committee chair Sir Bob Neill, a widely respected Conservative MP, on IPP resentencing to the Victims and Prisoners Bill, currently going through the House of Lords.

Labour also felt unable to support Neill’s amendment on grounds of public protection, with shadow minister Kevin Brennan telling MPs that, “given the impact of the government’s effective destruction of the criminal justice system, we lack the infrastructure and resources to keep the public safe, should his new clause be implemented immediately.”

Brennan added that, if the amendment was enacted “without provisioning for significant improvements in probation and parole, we would potentially significantly increase the risk to the public and to the prisoners themselves.”

Although I and many others do not agree with the Labour position on this, we acknowledge their caution, and are therefore calling on all parties to support Amendment 167C to the Victims and Prisoners Bill proposed by Earl Attlee, grandson of Labour’s great post-war prime minister, Clement Attlee, which seeks to legislate for the resentencing exercise while also addressing concerns about the state of the probation service.

It is actually an amendment to Baroness Fox’s amendment 167 — a rerun of the Neill resentencing amendment — which seeks to delay this exercise until the government is “satisfied that the probation service has the capacity and resources to protect the public following a resentencing of those serving a sentence of imprisonment for public protection.”

The amendment also instructs the government to “commission a thematic review by the chief inspector of probation that considers the extent to which probation services have the capacity and resources to manage additional supervision as a result of resentencing.”

We recognise this falls short of what people serving IPP, their families and those who have worked so hard on their behalf should rightly expect. We also think it is vital to keep pressing for progress on the scandal of IPP sentences.

By addressing Labour’s concerns, we think the Attlee amendment, while a compromise, offers a way out of the current impasse. The party is no doubt also aware that it will either have to help fix this problem before coming to power or be forced to deal with it by themselves when in government.

There may be other compromises that make a resentencing exercise more palatable to Labour, such as putting the Law Commission or a similar body in charge of the expert panel, and these will hopefully be explored fully when the IPP amendments are debated by peers, pencilled in for Tuesday March 12.

Despite cross-party agreement about the ongoing injustice of IPPs, formidable parliamentary obstacles to meaningful reform remain.

Even if Labour were to summon the spirit of ’45 and support the Attlee amendment, which would send a powerful message and most likely mean more debate on this in the Commons, the government could just use its majority there to knock it back.

And if the upper house were to try again — what’s called parliamentary “ping-pong” — supportive peers would be under intense pressure to bow to the supremacy of the elected chamber and withdraw support.

With a general election fast approaching, neither the Conservatives or Labour will want to risk being seen as “soft on crime.” Although this doesn’t mean Parliament should stop pressing for an end to IPP injustice, we must recognise that electoral politics will be foremost in the minds of many MPs.

But while it’s understandable that both main parties will continue to stress the importance of protecting the public, this can’t come at the expense of our long-held principles of justice.

As Lord Moylan, who is leading efforts among peers to tackle the IPP injustice, told the podcast Trapped — The IPP Prisoner Scandal: “The Secretary of State for Justice is constantly saying that his first job is to protect the public. That isn’t what it says on the door of his office building. On the door of the office building it says Ministry of Justice, not Ministry of Public Protection.”

And the UN Special Rapporteur on Torture, Dr Alice Jill Edwards — who wrote in 2023 that “these sentences have become cruel, inhuman and degrading” — is also scathing about “the misleading public safety arguments against reviewing these unfair sentences,” pointing out that “the UK, as a society with a strong rule-of-law tradition, has measures in place to protect the community after individuals are released.” She added that “locking people up and, in effect, throwing away the keys is not a solution, legally or morally.”

All parties promise not to use IPPs — and prisons more generally — as a political football, but immediately seem to do exactly that. To wipe this stain off our criminal justice system for good, all sides are going to have to work together. Hopefully the Attlee amendment can help make that happen a bit sooner.

This article was originally published in the Morning Star.