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Lord Swinfen: My Lords, I begin by thanking my noble friend Lord Mackay of Ardbrecknish for persuading the usual channels that while dealing with this Bill we should not also deal with the Disability Discrimination Bill. All of those who took part in the debates on this Bill will probably be taking part in the debates on that Bill and would have had an exhausting time, so it was a great relief.

I echo what was said by my noble friend Lord Campbell of Alloway in regard to regulations and delegated powers. We see more and more delegated powers in Bills that pass through this House. As he said, and as the House knows, this Chamber cannot alter regulations. I feel that somehow we must provide a method whereby regulations can be properly examined and altered before they are completely accepted. Some method of agreement must be reached between this House and another place. The amount of secondary legislation being introduced is far too great.

As the House will also be aware, I have, as I normally do, striven to improve the lot of disabled people in this Bill. I do not feel that I have done a particularly good job because I have not been all that successful. One small success, in company with other Members of the House, was in procuring for carers of people with disabilities at least 48 hours warning of having to take up employment. In my view that still gives them precious little time to arrange care for those they love and for whom they are responsible.

I take this opportunity also to thank the voluntary organisations which have been advising me on the Bill. Without their help I can do very little. They know to whom I am referring and I do not feel that it is proper to mention names. I am extremely grateful to them. I hope that in the near future my noble friend will bring forward another Bill on jobseekers considerably to improve the poor position in which this Bill will leave them.

Lord Mackay of Ardbrecknish: My Lords, perhaps I may respond briefly. The noble Earl, Lord Russell, intrigues me with the comparisons he makes and the quotations he dredges up from either the books he has read or the people he has met. I wish that I had a memory like that for all the wise or clever things people have said in my presence. I was particularly struck by the noble Earl's comment about whether this was a game or a war. In fact it is too serious to be either. If it was a game we would demean democracy and if it was a war we would be destroying democracy. Therefore it must be something in between.

I do not want to make too many political points in response to what has been said. But perhaps I may reiterate that I hope that the noble Baroness, Lady Hollis, will take the opportunity of the Recess to read her right honourable friend's Mais lecture. I was intrigued, as was my noble friend Lord Inglewood, when the noble Earl, Lord Russell—for the second time in my recollection—indicated that the Liberal Democrats would repeal the Bill, and he invited the noble Baroness, Lady Hollis, to

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indicate that the Labour Party would make a similar commitment. Like him, I have not noticed that commitment.

On a lighter note, my noble friend Lord Inglewood and I were pleased at being described as batsmen facing the West Indies fast bowlers. Dare I say as a mere Scotsman that we seem to have managed to carry our bat for a bit longer than the average English batsman in recent years.

I thank noble Lords for their kind remarks. I appreciate that they in no way negate their objections to the Bill. But it is right and proper—and I hope that we would all do it—that we approach the issues which arise in a Bill such as this, and every other Bill, seriously and attempt to address them. While I do not expect noble Lords always to agree with the answers, I like to think, as does my noble friend, that I attempt to answer the questions that have been put to me.

With our thanks to all the officials who have helped us and, as I think noble Lords opposite mentioned, to the people who have been in the Box on their side to help them, I ask the House to pass the Bill.

On Question, Bill passed, and returned to the Commons with amendments.

Prison (Amendment) Rules 1995

9.55 p.m.

Lord McIntosh of Haringey rose to move, That a humble Address be presented to Her Majesty praying that the Prison (Amendment) Rules 1995 [SI 983] be annulled.

The noble Lord said: My Lords, it is something of a peculiarity that I should be doing this because, although this Prayer is in time—in other words, it is within 40 sitting days of the date when it was laid before Parliament—I see from the front page of the rules that they came into force on 25th April. My first question to the Minister is: how can it be that rules under the negative procedure which take 40 days to achieve immunity from parliamentary action can be brought into force within 21 calendar days of the date of their being laid before Parliament? But the issue is far more serious than one of procedure.

The Home Secretary, in a speech on 18th November followed by a Home Office press release, responded in his inimitable way to a lot of press pressure about a very small number of offences committed by prisoners on home leave. His response was not a rational one—just to point out that only in at most 1 per cent. of the cases have prisoners on home leave committed further offences of whatever kind, whether or not related to the offence for which they were originally put in prison. Oh no, he did not respond rationally by giving the figures. He simply announced that he would change the rules so that there would be a 40 per cent. reduction in home leave.

The history of home leave, which is a provision of Rule 6 of the Prison Rules, is not such a short history and not such a dishonourable history that it can be properly subverted or indeed reversed by this knee-jerk

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reaction—there must be a better phrase than that but that is really what it was—of a Home Secretary who is more interested in the approval of the Conservative Party Conference than he is in the criminal justice or prison system. The Prison Rules have provided for many years that there should be home leave and other types of temporary release from prison: on compassionate grounds; on grounds that they are necessary for work or for education; that they permit family visits outside a prison; that they permit overnight stays with families.

It has always been the case that home leave has been a privilege and not a right. It has always been within the discretion of the governor of the prison rather than laid out in great detail. But innumerable Prison Service circular instructions over the years have set out the advantages to the Prison Service, to the prisoners and to society of an effective system of home leave. As recently as 1992, Prison Service circular instruction 43/92 set out the advantages of home leave in terms of increased self-confidence among prisoners and the ability for prisoners to readjust to society.

It is not as if these Prison Service circulars have ignored the issue of public safety. Circular 11 of 1993—only two years ago—said:


    "It will be right to refuse any application where there is any doubt about a prisoner's behaviour whilst at liberty".

So there is no question whatever but that the existing rules provide for protection and that it is the responsibility of prison governors to ensure that society at large is not damaged by those who are let out from prison on home leave. So it is not as though the existing rules were inadequate to meet the dangers to which the Home Secretary professes he is responding.

It is much worse than that. The Woolf-Tumim report of 1991 on prison disturbances actually argued strongly for an extension of home leave. They pointed out that our provisions for home leave are markedly more cautious than in the rest of Europe. They quoted a Council of Europe report on that subject from 1992. They argued that there should be,


    "substantial increases in the number of home leaves granted"

and that that should be done by extending the eligibility for home leave to other kinds of prisoners and to those at different stages of their prison sentence.

That report was accepted and welcomed by the then Home Secretary, Mr. Kenneth Baker. He doubled the provision of home leave in open prisons. The 1991 paper Custody, Care and Justice, was the basis on which the Prison Service said that it would be considering further extension of home leave arrangements.

So what has changed other than sheer panic in the face of Conservative activists? What has changed is that the Government have turned 180 degrees. They are now proposing that there should be a 40 per cent. reduction. By the way, one cannot get any of this information from the statutory instrument itself; it has to be deduced from the orders that were issued to prison governors between November 1994 and the present date.

There will now be three kinds of home leave or what is now called "licence". As before, there will be a compassionate licence for urgent personal family and other crises. There will be a resettlement licence which

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will not now be available at all to those serving sentences of 12 months or less. It is available only one-third of the way through the sentence for those serving one to four years, and it will be available only half-way through the sentence for those serving four years or more—in other words, the time of the first parole application. There will be a facility licence which is not available in the first 25 per cent. of the sentence and not available to category A or B prisoners.

Any suggestion that these provisions are either to protect the public or to improve the morale and effectiveness of the Prison Service is thrown away by the admission by the Prison Service working group which considered these matters. It referred to the period before people are eligible for these licences as the "punitive period". This is a punitive order and nothing else. Any pretence that it is there to protect the public is a sham.

It is punitive not only to prisoners, but to families and to the children of families. If one delays the eligibility of prisoners for home leave to later in their prison sentence, one may still be allowing them to re-establish family links which are so important when they come out at the end of the sentence, but one is stopping the possibility of maintaining family links and relationships from an early stage of the sentence. All the evidence from research in the United States and in other places, makes it clear that the lack of family support increases recidivism—in other words, it increases the likelihood that prisoners will re-offend when they come out of prison. Cutting back on the eligibility for home leave increases the probability that those who come out of prison will re-offend. Despite the directions given to it by the Home Secretary, there are plenty of examples in the Prison Service of that actually working. Since February 1994, one open prison has had a "compact" which provides a trade-off between home visits and visits in the prison itself. The effect has been significantly to reduce reoffending at the end of a prison sentence.

No, this is not a rational or humane response to even the very small number of cases of reoffending which have been identified. It is a punitive measure. It does not deserve the confidence of Parliament and I believe that we are right to ask Her Majesty that this measure be annulled.

Moved, That a humble Address be presented to Her Majesty praying that the Prison (Amendment) Rules 1995 [SI 983] be annulled.—(Lord McIntosh of Haringey.)

10.5 p.m.

Lord Rodgers of Quarry Bank: My Lords, it seems wrong at 10 o'clock at night and in only an hour to be considering the limited entitlement to temporary freedom of the men and women we choose to lock up in our prisons for what we judge to be good and sufficient reasons. As the noble Lord, Lord McIntosh, said, this is a serious matter and I am sorry that we are not debating it in more suitable circumstances.

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I support all that the noble Lord said about the shortcomings of the statutory instrument. I regret it and think that it is a retrograde step in penal matters. Most importantly—this should be of greater concern to the Minister—I believe that no good will come of it.

I think that it is right to say that the aim of home leave is not to make life softer for those in prison or in any way to temper the harshness of their imprisonment. It is not an unsolicited act of generosity. The reason for home leave has been clearly stated by the noble Lord, and was set out most plainly of all in that paragraph of the Woolf Report which quoted Prison Service Circular Instruction 9/1988, which states:


    "(a) To help restore self confidence by placing trust in a prisoner under conditions of complete freedom; and


    (b) To help the prisoner to readjust to life outside prison by giving the opportunity to maintain links with family and friends and in the case of long home leave, to contact prospective employers and make firm plans for release".

Home leave is not in the self-interest of the prisoner—although he may like and enjoy it. It is in the self-interest of the community as a whole. It helps in the resettlement of a prisoner. It is good for his family. In addition, it makes the management of prisons that much easier by helping to reduce some of the tensions that might otherwise exist.

As the noble Lord, Lord McIntosh, said, some of us were led to believe that the arguments in favour of prison leave and of extended prison leave had been accepted in the White Paper of four years ago, which was entitled Custody, Care and Justice. That White Paper set out the case plainly, endorsing what Woolf had said. The introduction stated:


    "This White Paper charts a course for the Prison Service in England and Wales for the rest of this century and beyond".

That was the view of Kenneth Baker as Home Secretary, and was endorsed by the Cabinet, of which the present Home Secretary, Michael Howard, was a member, yet within three years of that statement of policy it is being abandoned and we have not been given an adequate reason why.

In his speech in the debate on the Address on 18th November, the Home Secretary said:


    "In too many cases, the system has been abused".—[Official Report, Commons, 18/11/94; col. 244.]

He explained that he would be conducting a review. He called it a "thorough review". If that review has been published in its entirety, I have missed it. I should be interested to know what figures were available to the Home Secretary in the course of that review which were not available to the then Home Secretary three years ago. What change was there in that period? It would be helpful if the Minister could explain that to us.

In his speech, the Home Secretary said that the safety of the public must be paramount. We cannot dispute that, except to say that there is bound to be an element of risk not only in releasing a prisoner for a period of home leave, but in releasing a prisoner altogether at the end of his sentence. Of course we must accept an element of risk unless we are to incarcerate prisoners for ever, and not even the present Home Secretary is recommending that.

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It may well be that, although preventing prisoners from having the home leave to which they might previously have felt themselves to be entitled may reduce some short-term risk, home leave makes it much less difficult to rehabilitate prisoners afterwards. If they do not settle back into their families, the risk to the community is very much greater than if they have had the opportunity to become accustomed to the life they will lead after their release.

A balance must be struck. Those of us who do not have the obligations and duties of the Home Secretary must be aware of that, but the balance will not be struck in the right place if the order is proceeded with. We have had no adequate explanation of why the Home Secretary made the decision, based on the purposes of home leave and the merits of the case. I wait with great interest to hear whether the Minister will be able to fill that gap tonight.

10.11 p.m.

The Earl of Longford: My Lords, the arguments against this nefarious order have been expressed so adequately and knowledgeably by my noble friend Lord McIntosh and by the noble Lord, Lord Rodgers, that I shall not detain the House for more than a few minutes. My noble friend Lord McIntosh made all the main points that I would have liked to have made, and he made them more effectively. The noble Lord, Lord Rodgers, added a few points of his own, including the important reflection that if we are to avoid all risks in relation to the release of prisoners we would keep all prisoners in prison for ever. That was worth saying. I only hope that the lead given from these Benches by my noble friend Lord McIntosh will be taken up just as strongly elsewhere. I look forward with hope to that happening.

Over 60 years ago, I had a great friend called Esmond Warner, the son of Sir Pelham Warner, after whom the Warner Stand at Lord's was named. I am picking up the cricketing metaphors used earlier by the noble Earl, Lord Russell. Sir Pelham Warner was manager of the MCC team in Australia at the time when Mr. Jardine adopted the policy of bodyline bowling, which nearly broke up the Commonwealth, as your Lordships may remember.

Sir Pelham Warner wrote back to his son, who showed me the letter, and asked, "Is Douglas mad?", referring to Douglas Jardine, the captain. The implication was that he probably was. With Mr Michael Howard, one is left to ask, "Is he mad?" As was explained in the previous two speeches, he has reversed the policies followed by his predecessors without giving any reason except—I shall not call it panic—an attempt at calculation. The only person who I think would agree with him is someone called Judge Argyle, who writes in the Sunday Express and who has said on occasion that we have been governed recently by a pro-crook lobby. That is no doubt the way that Mr. Howard sees things.

I find it difficult to understand how a man whom we know to be a successful barrister and good family man, and, so far as I know, a man of impeccable private life,

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can embark upon these sadistic policies. It is peculiar. No one holds the Minister responsible. I regard her as the victim of circumstances. She has to get up and defend this sort of nonsense time after time. We do not think any the worse of her. We just feel very, very sorry for her.

The arguments have been put forward very well and I shall not repeat them. Perhaps I may give an example of the stopping of family leave. It did not occur as a result of Mr. Howard's policies; it occurred independently of them. The case came to me through the federation of the organisations which support prisoners' families. I do not know whether Mr. Howard is allowed to read debates such as this or whether they are kept from him in order to avoid causing him a trauma. If he is allowed to read them he might like to bear this in mind as a example of what happens when family leave is denied.

A lady whose son was involved came to see me today. She had tea with me in the House and therefore I have heard about the case almost at first hand. The lady's husband was sent to a prison where he was no longer allowed home leave. The son was so horrified by the fact that he could not see his father without going to the prison that he had a breakdown. Eventually after leaving school he had to have psychiatric treatment. That is an example of what happens when home leave is denied. With 40 per cent. of home leave being stopped, there is no doubt that we shall have a great deal of psychological and moral collapse.

The speeches of the noble Lord, Lord Rodgers, and my noble friend Lord McIntosh, brought out the fact that the issue relates not only to providing a more agreeable time for prisoners. I believe that prisoners should be given a more agreeable time. Indeed, I think most prison officers believe that in the end if we are to try to educate prisoners, we should treat them better and not worse, which is the Howard philosophy. The issue relates also to family life and to the interest of the whole community. I strongly support what was said by my noble acting Leader, Lord McIntosh.

10.16 p.m.

Lord Hylton: My Lords, I agree most strongly with and support all the previous speakers. This is an all-party issue. I regret that there is no Back-Bencher on the Government side to join in the debate.

I strongly object to the mixing of remand and sentenced prisoners, which is provided for in the order, bearing in mind that many remand prisoners are proved to be innocent. The only possible justification for such a course would be with the prisoners' consent and for the prevention of gross overcrowding within a prison or the prolonged use of police cells—and it is common knowledge that your Lordships object most strongly to that.

I urge Her Majesty's Government, and the Home Secretary in particular, to reflect on the experience of the Northern Ireland prison service. Generous home leave for long-term prisoners has been an outstanding success there. Christmas and summer leaves have helped family relationships and the return rate of

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prisoners to prison has been virtually 100 per cent. Working-out and work experience schemes have been equally successful. Of course, Northern Ireland is not directly comparable with England and Wales but at least it gives food for thought as regards incentives for good behaviour and a positive approach to resettlement.

I greatly regret that Her Majesty's Government are rejecting all the available advice, including the 1991 Woolf Report, the White Paper which followed that, the prison service circular No. 43 of 1992, and the advice of the Committee of Ministers of the Council of Europe dating back to 1982. As if that were not enough, there is also the advice of the Control Review Committee, which I understand to be a governmental body.

By rejecting that wealth of advice the Government are likely to increase the punishment of prisoners' families. They certainly increase the risk of family breakdown and they are likely to damage the successful "Compact System" which is now in operation. They make it harder for offenders to obtain their own accommodation and new employment on release. They therefore, through this combination of circumstances, very much increase the risk of re-offending. I should just like to ask: from where did the Home Secretary get his arbitrary figure of 40 per cent. less home leave and temporary release? Why does he want to concentrate the remaining amount on longer sentences and late in the total sentence? I beg Her Majesty's Government to have second thoughts on this matter.

10.21 p.m.

The Minister of State, Home Office (Baroness Blatch): My Lords, the noble Lord, Lord McIntosh, began by asking about the regulations and why they came into force only 21 days after being laid. I have to say that the 21-day rule is a rule of practice required by the Joint Committee on Statutory Instruments. It does not of course affect the 40-day time limit for the introduction of a negative resolution seeking to annul a statutory instrument. My understanding is that it is common for such instruments to come into force before the 40 days have expired.

The noble Lords, Lord McIntosh of Haringey and Lord Rodgers of Quarry Bank, were concerned about this being a punitive Bill and about the tightening up of release rules for prisoners. First, the new rules are directed not only to the need to ensure that prisoners are not released if they present a risk to public safety, but they are also intended to protect the public's confidence in the administration of justice. It really does have to be said that the public have a right not to see criminals who have been sentenced to imprisonment walking freely up and down their streets in their towns and villages too early in their sentences.

The noble Lord, Lord McIntosh, asked whether the new scheme would make it harder for prisoners to maintain contact with their families, especially at the start of their sentence. Again, eligible prisoners may be released towards the end of their sentence in order to maintain family ties. However, it has to be said that the Prison Service is committed to enabling prisoners to maintain close links with the family. In recent years

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various initiatives, including the installation of card phones and the provision of more visits, have meant that prisoners are able to see and talk to their families a great deal more often than has been the case in the past.

The noble Lord, Lord Rodgers of Quarry Bank, asked whether the working group's report would be available publicly. I can say that a copy of the full report and a summary of the working group's study of the operation of temporary release and home leave schemes were placed in the House Library by the Home Secretary in November of last year. The noble Lord, Lord Rodgers, also asked about the figures which were available to the working group. A number of statistical exercises were undertaken in support of the working group review in 1993. One of the results of the review was the establishment of a new system to monitor the operation of the new scheme. These figures will feed into the review of the new scheme which will be carried out later this year.

The noble Earl, Lord Longford, gave us an interesting anecdote, but could I say to him in response to the point he was making that of course there are now no prisons where temporary release is completely unavailable.

The amendments to the prison rules achieve three purposes. They will introduce a new and more focused scheme for the temporary release of prisoners; they will permit the greater involvement of unconvicted prisoners in positive regime activities while in prison; and they will increase the powers of governors to maintain a disciplined environment inside our prisons.

The amendments were debated in another place on 17th May. In that debate the Opposition indicated that they broadly supported the provisions in these amendments, which were in line with their response to my right honourable friend the Home Secretary's announcement in another place on 18th November for changes to the arrangements for temporary release, which the amendments to Rule 6 underpin. On that occasion, the Opposition Front Bench spokesman, the honourable Member for Blackburn, said that he was, and I quote—


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