Today’s Guardian (20 Aug 2012) publishes a letter from me dismissing one suggested solution for Mr Assange’s future and proposing another:
Letters: Diplomatic dilemmas and Julian Assange
Your editorial (17 August) states categorically that “an embassy car is not diplomatically protected”, although I don’t know how you square that with Article 22(3) of the Vienna Convention (“The premises of the mission, their furnishings and other property thereon and the means of transport of the mission shall be immune from search, requisition, attachment or execution”). This, however, seems unlikely to help Mr Assange to get himself to Ecuador without being arrested when he leaves the embassy to get into the car or at the port or airport when he gets out of it. A safer way might be for Ecuador to appoint him to the diplomatic staff of their embassy in London, for which the UK government’s agreement would not be required. Mr Hague would then expel him, after the Ecuadoreans had refused to waive his diplomatic immunity. But Assange would retain his diplomatic immunity from arrest until he had left the UK, presumably on his way to Ecuador and political asylum. Such diplomatic chicanery to enable Assange to escape British and Swedish due process would lay Ecuador open to retaliation – Britain could expel its ambassador or even break off diplomatic relations – but the Ecuadoreans might think it worthwhile. No doubt Mr Assange would!
Brian Barder
London
Since I submitted my letter, a friend much better qualified than I has queried my assertion that the British government’s approval would not be required for Ecuador to appoint Mr Assange to the diplomatic staff of its embassy in London, citing Article 8 (2) and (3) of the Vienna Convention:
2.Members of the diplomatic staff of the mission may not be appointed from among personshaving the nationality of the receiving State, except with the consent of that State which may be withdrawn at any time.
3.The receiving State may reserve the same right with regard to nationals of a third State who are not also nationals of the sending State.
Mr Assange, being an Australian citizen, would be covered by (3), which seems to entitle the British government to withhold consent from the appointment to the Ecuador embassy of a national of neither Ecuador nor the UK — but arguably, by implication (“may reserve”), only if HMG has availed itself of the permission given in 8(3) to reserve that right in respect of nationals of a third state and has notified Ecuador that it has decided to exercise it. The Convention seems unclear about whether the right under (2) of the receiving state (the UK) to withdraw its consent to an appointment “at any time” also applies to (3) and therefore to Mr Assange. All one can say is that an attempt by Ecuador to go down this route would seem likely to provide lucrative employment for many years to lawyers representing Ecuador, the United Kingdom, Mr Assange, and Sweden, and probably the judges of one or more international courts and tribunals, before the matter could be resolved. Throughout this time, Mr Assange would presumably continue to be confined either to the London flat which serves as the embassy of Ecuador, or possibly to an English prison while he once again contests, this time on grounds of his disputed claim to diplomatic immunity the UK’s right to extradite him to Sweden.
The other letters on the subject also published today (including one from the indefatigable Mr Keith Flett) raise some other interesting questions. One letter-writer thinks the British government should “insist” on Sweden sending its prosecutors to interview Assange in the Ecuadorean embassy in London — forgetting that it’s for the Swedes, not us, to decide where they should question him about serious allegations made by Swedes about crimes allegedly committed in Sweden. If the questioning were to result in a decision to prosecute Assange, he would clearly need to be in Sweden to be arrested and charged, which could hardly happen in a 
foreign embassy in London. Another letter questions William Hague’s announcement that HMG doesn’t recognise the concept of diplomatic asylum, recalling that Britain didn’t object the the Americans sheltering Cardinal Mindszenty from the communist government of Hungary for 15 years in their embassy in Budapest. But Mr Hague’s announcement probably refers to a convention on diplomatic asylum signed by a number of South American states, including Ecuador, but not by the UK, which among other things obliges the country where a refugee has been given shelter in a foreign embassy to give the refugee safe passage to the embassy’s home country. HMG has already made it clear that it will not give Assange safe passage to Ecuador or indeed to anywhere else other than Sweden, and Britain has absolutely no obligation to do so under international law.
Today’s excellent Guardian editorial provides a refreshing reminder that the issue at stake here is the serious allegations of sexual assault and rape made against Mr Assange arising from his conduct in Sweden. The Guardian has tried to work with Mr Assange and knows whereof it speaks. Those who are emotionally committed to him as the founder of Wikileaks and the orchestrator of the publication of a vast mass of American classified documents hardly seem the kind of people who would argue that a serious rape allegation should not be followed up by proper investigation; radical feminists have long protested at the frequent failure of police forces here and elsewhere to take accusations of rape and other offences against women sufficiently seriously. It is these allegations which Mr Assange is struggling so ingeniously and energetically to avoid answering, not extradition to the United States on an application by the US which has not been issued, to face charges which have not been laid. The motives of the Ecuador government in coming to his rescue to save him (temporarily) from extradition to Sweden seem connected with its practice of irritating Washington (which clearly has no love for either Wikileaks or its founder) whenever possible, and strengthened by Mr Hague’s inexplicable blunder in explicitly threatening to use non-existent powers to send his coppers into the Ecuador embassy without its permission to arrest Mr Assange, in plain contravention of international law, thus regrettably putting Britain in the dock alongside Mr Assange. None of this should distract attention from the only serious issue: should Mr Assange go to Sweden, preferably voluntarily but otherwise in handcuffs, to answer the allegations against him? Of course he should.
Postscript: Amid the plethora of blog posts and comments on the Assange affair, here are two which usefully explode some myths and provide clarification of the law:
http://www.newstatesman.com/blogs/david-allen-green/2012/08/legal-myths-about-assange-extradition
and
Brian
If I were to be asked, however improbably, to advise the Foreign Secretary, William Hague, on the position regarding Julian Assange and the alleged right of the British authorities to enter the Ecuadorean embassy to arrest him without Ecuador’s permission, I might write a submission on these lines:
Summary
The British government’s threat to force its way into the Ecuadorean embassy to arrest Assange without Ecuadorean consent was a tactical and public relations blunder, and the claim that Britain had a right in law to take that action was embarrassingly wrong. Under the Vienna Convention, which can’t be overridden by any UK law, the embassy has immunity from search or entry without its consent. There should be an inquiry to establish the responsibility for such an extraordinary blunder. How best to try to end the impasse over Assange’s future (and if possible to fulfil our legal obligation to extradite Assange to Sweden) depends now on persuading the Ecuadoreans to persuade, or compel, Assange to leave the embassy and give himself up, as the only alternative to lifelong detention inside the embassy, or to persuade Assange himself of this reality, or to persuade the Swedes to drop their application for Assange’s extradition (given that he has not been charged with any offence), or to turn a blind eye to an Ecuadorean arrangement to fly him to Ecuador without being arrested between the embassy and the plane. Several of these options, but regrettably not the last, are worth trying simultaneously. If they all fail, there may be no alternative to doing nothing, and accepting that Assange will remain indefinitely in the Ecuador embassy.
Background
Julian Assange, an Australian citizen and the founder of Wikileaks, has taken refuge in the embassy of Ecuador in London to avoid being arrested by the Metropolitan Police under an EU arrest warrant and extradited to Sweden, where he is wanted for questioning about alleged sexual offences, although he has not been charged with any offence there. Assange fears that if extradited to Sweden, he risks being re-extradited by the Swedes to the United States and prosecuted there for offences (some of which might carry the death penalty). Meanwhile the government of Ecuador has granted Assange political asylum as a political refugee; the British government says it will not grant Assange safe passage from the Ecuadorean embassy to a UK airport or port to enable him to go to safety in Ecuador; and the Foreign & Commonwealth Office has reportedly informed the government of Ecuador in writing that the UK government claims the right, under the UK’s Diplomatic and Consular Premises Act 1987, to send its policemen or others to enter the Ecuadorean embassy, if necessary without the consent of the Ecuador ambassador, and there to arrest and remove Mr Assange — a claim vigorously rejected by the Ecuador government as contrary to the Vienna Convention, 1961, and thus in breach of international law.
The legal position
Assange has been lawfully arrested for extradition to Sweden under a valid warrant which HMG is legally obliged to try to execute. Assange has violated his bail conditions by taking refuge in the Ecuador embassy and is therefore liable to be re-arrested and held in UK custody pending extradition to Sweden. The immediate question is whether HMG may lawfully arrest Assange inside the embassy without the consent of the Ecuadorean authorities.
The Vienna Convention 1961 provides that “The premises of the [diplomatic] mission shall be inviolable. The agents of the receiving State may not enter them, except with the consent of the head of the mission… The premises of the mission … and the means of transport of the mission shall be immune from search, requisition, attachment or execution” (Article 22). That seems as clear as it could possibly be.
The UK’s Diplomatic and Consular Premises Act 1987 purports to empower the Foreign Secretary to decide what land and premises may have diplomatic or consular status and thus be entitled to diplomatic immunity, and to withdraw diplomatic or consular status from any land or premises if “a State ceases to use land for the purposes of its mission or exclusively for the purposes of a consular post” (S. 1(a)) — but the Secretary of State may exercise his powers under the Act only “if he is satisfied that to do so is permissible under international law” (S. 1(4)). (The limitation expressed in the word “exclusively” applies only to consular premises, which are irrelevant to the present case. Diplomatic as distinct from consular premises, such as an embassy, may obviously be used for purposes other than and additional to those of the mission, without risking withdrawal of their diplomatic status and immunities by the Secretary of State.) The Vienna Convention forms part of international law and thus part of UK law, binding on the government and everyone else. Accordingly, the Secretary of State’s powers under the UK law can’t override the protection given to the Ecuador embassy under the Vienna Convention. In fact, they couldn’t anyway, even if the UK law didn’t stipulate that they can’t. A state can’t escape from its obligations under international law by passing a law purporting to give itself permission to do so. If it could, all treaty obligations would be worthless, including those imposed by the United Nations Charter.
It’s worth noticing that not only the embassy itself but also “the means of transport” of the Ecuador embassy — such as the ambassador’s official car — are “immune from search, requisition, attachment or execution” under the Convention, which suggests that if Assange could be put into an embassy car without leaving the embassy premises, he could then be driven to an airport or port without any fear of the car being stopped and Assange hauled out of it and arrested. On the car’s arrival at the airport or docks there might in principle be a few moments when Assange could be arrested and prevented from escaping to Ecuador, but probably not before then.
Political aspects
The protection given to embassies under the Vienna Convention is essential if diplomats are to be able to do their jobs without interference and harassment by the local government. There are many British embassies and high commissions around the world which would be vulnerable to invasion and perhaps personal violence, the seizure of confidential documents, the wrecking of communication systems and the arrest of embassy staff, if the host countries were able to ignore their Vienna Convention obligations — and some would be quite likely to attack our embassies if they could quote as a precedent for doing so action by HMG to invade the Ecuador embassy in order to arrest Assange in clear contravention of our international law obligations and indeed of our own law.
By the same token, Britain (like many other western countries) has from time to time been able to protect refugees from oppression or injustice in totalitarian states by giving them temporary asylum in one of HM embassies, pending discussions with the host authorities of safeguards to be observed when they leave the embassy. Such a case occurred during my own time as a First Secretary in the British embassy in Moscow in the early 1970s, at the height of the cold war. The case of Cardinal Mindszenty of Hungary also comes to mind. In the words of Wikipedia,
The Venerable József Mindszenty (March 29, 1892 – May 6, 1975) was a cardinal of the Roman Catholic Church as the Archbishop of Esztergom in Hungary. He supported Church freedom. He was an opponent of communism and the Stalinist persecution in his country. As a result, he was tortured and given a life sentence in a 1949 show trial that generated worldwide condemnation, including a United Nations resolution. Freed in the Hungarian Revolution of 1956, he was granted political asylum and lived in the U.S. embassy in Budapest for 15 years. He was finally allowed to leave the country in 1971. He died in exile in 1975 in Vienna, Austria.
Even communist Hungary in cold war days resisted the temptation to violate the immunity of the American embassy in Budapest by forcibly entering it to arrest the Cardinal, although for 15 years he was unable to leave the embassy’s premises for fear of being arrested immediately if he did so.
It has been suggested that our legal obligation to extradite Assange to Sweden overrides our Vienna Convention obligation to respect the immunities enjoyed by the Ecuador embassy. Such an argument doesn’t survive a moment’s thought. We are obliged to arrest and extradite Assange if and when we can legally lay hands on him. At the moment, we can’t. There can be no blame for failure to do the impossible, an established legal principle as well as a matter of common sense.
It’s thus safe to predict that if Britain were to act in the way we have apparently threatened to do (even claiming the legal right to do), and forced our way into the Ecuador embassy to arrest Assange without the ambassador’s permission, we would arouse a storm of protest and indignation around the world. The episode could only end in our humiliation and a formal undertaking never to repeat our offence. Legal action against us would be almost certain. We would have few, if any, defenders. Assange might even benefit from the event, since the courts might well rule that his arrest on foreign diplomatic premises had been illegal.
Recommendations 
By threatening the Ecuadoreans with action in plain contravention of international law, we have wrong-footed ourselves, incurred widespread international incomprehension and dismay, and fatally antagonised the government of Ecuador just at the time when we need their help and cooperation in ending the impasse over Assange’s future. Before doing anything else, we should make it publicly clear that in no circumstances will there be any entry into the Ecuador embassy in London without the consent of the ambassador, for the purpose of arresting Assange or for any other reason. That done, we can consider the options, however unattractive they might be:
a. We could informally indicate to the Ecuadoreans that we will turn a blind eye to any action they might take discreetly to remove Assange to Ecuador, without fuss or publicity.
b. We could equally discreetly seek to persuade the Swedish authorities to agree to question Assange by telelink between Stockholm and the Ecuador embassy in London (as Assange has suggested), in the hope that following questioning they will decide that there is insufficient evidence to warrant charges: or try to persuade them to agree to withdraw the arrest warrant on the grounds that in the absence of any charges against Assange, continued attempts to extradite him to Sweden would be oppressive.
c. We could appeal to the Ecuador government to accept that we have a legal obligation to try to extradite Assange to Sweden, that he can be confident of due process and an impartial judicial system in both the UK and Sweden, and that rather than sentencing him to what could amount to life-long imprisonment in the Ecuador embassy without his having been charged with or convicted of any crime, the lesser evil is to persuade him to leave the embassy and give himself up to face extradition and questioning — not necessarily even prosecution — in Sweden.
d. We could do nothing, and hope that eventually either Assange will get tired of being cooped up in the Ecuador embassy and walk out of his own free will, or the Ecuadoreans will get fed up with harbouring their controversial guest (never the most accommodating or cooperative of friends) in their smallish embassy, and will set a deadline beyond which he will not be allowed to stay.
e. We could try to deport Assange to Australia as an undesirable alien. But to do that we would need to take physical possession of him, which in turn would depend on success with (b) or (c). And once he is in UK hands, there should be no further obstacle to extraditing him to Sweden as we are legally obliged to try to do. Deportation to Australia might become an option if Sweden withdrew its application for extradition.
Of these, (a) is the most tempting. But our tacit complicity would inevitably become known and Sweden would have just grounds for complaint. Both (b) and (c) are worth a try, not being mutually exclusive, although we have damaged the chances of success with (c) by trying to bully and bluff the Ecuadoreans instead of inviting their help and cooperation in the search for a solution. If both (b) and (c) fail, there will be no alternative to (d).
One final recommendation. The threat to force our way into a diplomatic mission without its ambassador’s consent and in contravention of international law was a major and incomprehensible blunder which has done us great harm, as well as greatly complicating the search for a solution to the problem of Assange’s future. Not only ministers and MPs but also the general public are entitled to know who was to blame for this blunder: at what level in the FCO or other department it was approved: whether the FCO legal advisers or the Law Officers of the Crown were consulted about it in advance and if so what advice they gave: and whether ministers knew of it in advance, were advised of its illegality as well as its inadvisability on practical grounds, and approved it nevertheless — and if the answers to any of those questions is Yes, which ministers and/or officials should be held to account. This clearly points to the need for a public inquiry. Ministers should announce one now.
PS: The media and the pundits are gleefully rehashing the old myth that inside an embassy one is on the sovereign territory of that embassy’s home country, and that the laws of the surrounding country don’t apply in the embassy’s buildings and grounds. This, sadly, is not so. Diplomats are required by the Vienna Convention to “respect the laws and regulations of the receiving State. They also have a duty not to interfere in the internal affairs of that State” (Art. 41). They are immune from being prosecuted or (in most circumstances) even sued if they break the law of the country in which they serve, but that doesn’t mean they have no obligation to “respect” (i.e. comply with) them, and if they break the law in a sufficiently serious way, the receiving State is entitled to expel them. The FCO seems to be arguing that by harbouring Assange, a bail-breaker wanted by the police, the Ecuador diplomats are either breaking UK law or at least behaving in an unacceptable manner, incompatible with their responsibilities as diplomats. Unfortunately for the FCO, the many precedents, from Cardinal Mindszenty downwards, don’t support this argument, which, if accepted, would blow a large hole in international theory and practice regarding the right of asylum in diplomatic premises for fugitives from harsh treatment in the receiving State, whatever the rights and wrongs of the case. In any event, complaining about the behaviour of the Ecuadorean diplomats does nothing to promote a solution of the main problem — what to do about Assange? — apart from further antagonising the very people whose cooperation we need if ever we are all going to escape from the present impasse.
Update (2330, 16 Aug 2012): An excellent post on ‘The Blog That Peter Wrote’ corrects many widespread misconceptions about Assange, and also performs an invaluable service by supplying a link to the text of the FCO ‘letter’ — actually an Aide Memoire, less formal than a letter but still an expression of British government policy — which is available on the Web here. The relevant passage in this revealing document reads as follows:
- We must reiterate that we consider the continued use of the diplomatic premises in this way incompatible with the Vienna Convention and unsustainable, and that we have made clear the serious implications of same for our diplomatic relations.
- You should be aware that there is a basis in law in the UK (the Diplomatic and Consular Premises Act 1987) that would permit us to take steps to arrest Mr Assange within the current premises of the embassy.
- We sincerely hope that such a point is not reached, but if you cannot resolve the presence of Mr Assange on your premises, that route is open to us.
If that’s not a threat based on an unsustainable assertion of a non-existent legal right, I don’t know what is. If harbouring a dissident or refugee from the authorities of the host country in one’s embassy is incompatible with the Vienna Convention, the FCO needs to explain why Britain and numerous other western countries have repeatedly allowed our embassies to be used in precisely this way; and even if it were to be accepted that this behaviour is incompatible with the Convention, there is nothing in the Convention that would entitle a host government to respond by entering the embassy premises without the ambassador’s consent. The worst that the host government could legally do in response to behaviour in an embassy that it believed to be incompatible with the Convention would be to break off diplomatic relations with the country concerned, or (slightly lower on the scale) expel the ambassador, with or without other members of her diplomatic staff. Either measure would prompt reciprocal retaliation and have extensive ramifications going way beyond the problems presented by Mr Assange.
Brian
It seems that my celebration in a recent blog post of the abolition by parliament of the vicious system of Indeterminate Sentences for Public Protection (IPPs) was a little premature, although we have all long recognised that much more remains to be done to rescue existing IPP prisoners and their families from their continuing Kafka-esque plight. It now transpires that –
- The provision of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO) which abolishes IPPs still hasn’t been brought into effect by the Ministry of Justice, despite the Act having received the Royal Assent and passed into law on 1 May this year;
- There have been indications that IPP abolition may not be brought into effect until well into next year, if then;
- Judges have continued to hand down IPPs in some cases even after Parliament had formally approved their abolition (perfectly legally, since the relevant clause abolishing them has still not been brought into effect, but in clear contradiction to the will of Parliament and the government);
- Nothing has yet been done to correct the obvious defects in the current criteria used by parole boards in deciding whether or not to release IPP prisoners who have served the punishment part of their sentences, even though the effect of those criteria is to ensure that in practice very few IPP prisoners are ever released. The Ministry of Justice has publicly recognised the need to change them;
- Even when an IPP prisoner is released, now or in the future, he – it’s almost always he — is released on licence, usually for ten years, and is liable to be recalled to prison, potentially indefinitely, even if he has not broken any law again (“reoffended”), essentially on the whim of the probation officer supervising him.
No wonder the thousands of people serving IPPs and their families are wondering bitterly whether the purported abolition of IPPs in LASPO is going to make any practical difference to them or indeed to anyone else.
All this and more, including some of the likely reasons for the delays and failures to follow through on LASPO, is spelled out in detail in Mark Mullany’s admirably clear and informative post here. This should be compulsory reading for all who remain worried about IPPs and the ominous inactivity ever since their apparent abolition by statute. Additional light on this frustrating situation is shed by comments on my earlier post about IPPs here, here and here (warm thanks to their contributors).
Many of LASPO’s provisions not connected with IPPs are open to serious objection. Some of these, such as the additions to the list of offences that will now attract mandatory life sentences regardless of the circumstances of individual cases and overriding the judges’ discretion, have clearly been forced on the Ministry of Justice as a quid pro quo for the abolition of IPPs and eventual liberalisation of the criteria for deciding whether to release existing IPP prisoners. It’s an open secret that there has been strenuous objection to the abolition of IPPs from the more reactionary elements on the Tory back benches, potentially from the more primitive tabloids, and – if rumours are to be believed — even from the home office and perhaps from some of the prime minister’s advisers. It would be intolerable if political cowardice were to be allowed to frustrate the will of Parliament as expressed in the approval of LASPO, prolonging the uncertainty and misery of tens of thousands of victims of this disgraceful system (most of them wholly innocent of any offence). The inertia (to put it at the most charitable) of the Labour front bench in the face of this foot-dragging by the government on an issue of clear principle defies comment.
So pressure on ministers is still necessary after all. Write to your MP, and to the newspapers, and to any of the members of the House of Lords who have been tireless in raising these matters, such as the admirable Lord Ramsbotham, and to the Labour shadow minister of Justice. Having at last won the main battle, it would be obscene now to lose the war.
Brian
Yesterday, May Day 2012, was a very special day for a little noticed reason. On 1 May 2012 an Act of Parliament abolished the infamous system of IPPs (Indeterminate Sentences for Public Protection). This régime, the brainchild of Labour’s David Blunkett when he was Home Secretary, has kept – and still keeps – literally thousands of men and women in prison cells long after they have served the portion of their sentences deemed by the judges to be sufficient for their punishment. They remain incarcerated indefinitely. The only way they can regain their freedom is by satisfying a risk-averse parole board that something has happened to them while in prison which demonstrates that they will not reoffend if and when they are released. Predictably, this requirement to prove a future negative has set IPP prisoners an almost impossible task, and only a tiny percentage (around 4%) of IPP prisoners have ever been released, even though in many cases their original offences have been relatively minor – as their often short minimum sentences have shown.
The Act of Parliament which has at long last swept away future IPPs, the Legal Aid, Sentencing & Punishment of Offenders Act 2012, or “LASPO”, deals with a wide range of topics in addition to the abolition of IPPs. Many of its provisions are controversial, and some are certainly objectionable. It seems clear that some of the more draconian provisions of the Act have been included as the price that Ken Clarke, the Justice Secretary, and the government’s house liberal, has been forced to pay for the abolition of IPPs, a measure that goes against the grain of much Tory backbench opinion and the reactionary policies of the feral tabloids. The Labour frontbench, much to its discredit, has dismally failed to give even lukewarm support to Clarke’s efforts to rid us of IPPs: indeed, there have been moments when shadow ministers have come close to opposing abolition, whether from fear of the tabloids or because of pressure on them from the succession of illiberal Labour home secretaries responsible not only for IPPs but also for numerous other indefensible laws on crime and punishment and under cover of the so-called war on terror. So the abolition of IPPs owes nothing whatever to the Labour opposition in Parliament or to the massed ranks of retired colonels on the Tory back-benches.
However, it’s too soon to say ‘Mission Accomplished’. Thankfully, no more IPP sentences can now be passed. But all those handed down before 1 May 2012 remain in force, and those thousands of prisoners who have paid their debt to society, but still see no hope of ever being released, still face the same impossible requirements for regaining their freedom as if LASPO had not been passed into law. The gleam of hope for them lies in the power given by LASPO to the Justice Secretary to set new criteria to be used by the parole boards in deciding whether an IPP prisoner can safely be released. It’s clear from earlier Justice Ministry documents that the intention will be to remove the onus for demonstrating that the prisoner will not reoffend from the prisoner, requiring instead that the parole boards must order the prisoner’s release unless there are solid and specific grounds for believing that he will reoffend if released. This change can’t happen too soon if a huge weight of fear and uncertainty is to be lifted, not only from the prisoners concerned, but also from their families and other loved ones. Now is the moment, not only to liberalise the criteria for releasing IPP prisoners, but also greatly to accelerate the processing of all those who have served their minimum sentences (‘tariffs’) but who still languish in jail under what can only be described as preventive detention.
Ken Clarke and his Justice Ministry deserve congratulations and thanks for steadfastly sticking to their guns and getting this significant reform through Parliament and onto the statute book, in the face of widespread timorous doubts and much outright hostility, some of it from powerful quarters. They need no reminding that the task is not completed until the last post-tariff IPP prisoner walks through the prison gates to freedom.
As a postscript, this blog is glad to have played a part, however small, in the campaign for the abolition of IPPs, including the provision of a space on the Web in which literally hundreds of relatives of IPP prisoners have been able to appeal for advice and support, as well as expressing their anguish and fear at the appalling uncertainty facing them and their loved ones, never able to be sure that the person concerned will ever be released. Many have written in comments on blog posts here about the disgraceful games of cat and mouse played with IPP prisoners by parole boards and the prison authorities in the effort to postpone indefinitely a decision on whether a prisoner has demonstrated that he will not reoffend if released. This cruel behaviour by an effectively unaccountable authority should now be ended by an entirely new regime, to be installed by the Ministry of Justice, to ensure that the great majority of IPP prisoners are systematically, but rapidly, processed and released without further delay.
Historians of penal reform by a right-of-centre government, sulkily opposed by a supposedly left-of-centre opposition, may care to read through some of the posts on this blog over the past several years, including especially the hundreds of comments appended to them by others: http://www.barder.com/3419, /3372, /3355, /3350, /3331, /3326, http://www.barder.com/politics/liberty/ipps-extracts-from-parliamentary-papers-october-2011, and many, many more.
So: three cheers for May Day, 2012 and the end of IPPs. By all means open the bubbly! But tomorrow there’s more work to be done before those infamous IPPs can be said to have been consigned to where they belong: the dustbin of history.
Brian
The Labour leadership has made a regrettable mistake in seeking to put the problem of antisocial behaviour at the top of the party’s list of priorities, however large it might and does loom in the lives of its many victims.
In the first place, the problem is inherently insoluble, so any measures proposed as Labour policy are doomed to be seen as failures, even if some of them achieve occasional partial success.
Secondly, this is preeminently a problem to be tackled in local communities, not by a novelty silver bullet (‘restorative justice’) fired by swingeing legislation from the centre. To mix the metaphor, one size will never fit all.
Thirdly, and perhaps most importantly, putting top emphasis on antisocial behaviour is fatally reminiscent of the Blair years, giving the impression that Labour is more concerned to sound tough than to promote progressive reform, uphold civil liberties and defend human rights. It should increasingly obviously be an urgent priority for the Labour leadership to mark a sharp break with New Labour: to make the fresh start promised by Ed Miliband in his speech at the party conference immediately after the leadership election.
On far too many subjects Labour under Mr Miliband sounds like a continuation of Blairism. Some of the old stagers of the Blair and Brown governments need to be pensioned off, or at any rate invited to keep quiet: above all, not to complain if some of the more glaring deficiencies, errors and indeed crimes of the Blair years are now explicitly disowned by the party he led. For evidence of this pressing need, you only need to look at Bradford West. Whatever people might think of George Galloway as a politician and a person, thousands of us have been yearning to hear our Labour leaders talking pretty much the same language as Gorgeous George – so far, in vain.
There’s also the question of priorities. When we have the most reactionary government in living memory systematically dismantling the welfare state; enriching the bankers at the expense of the unemployed, the homeless and the disabled; squandering millions on pointless and unwinnable foreign wars; maintaining an ‘independent British nuclear deterrent’ which is not independent, which is not British, and which deters no one; selling off the NHS to private interests; privatising state education and removing it from local authority control; tackling an economy in depression through lack of aggregate demand by slashing the disposable incomes of working people and throwing millions of public servants out of work, thus throttling such demand as still survives – when a Tory-led government is doing all these appalling things, it beggars the imagination that a Labour leader and Leader of the Opposition can be seriously proposing that the main focus of the party’s national policy should be antisocial behaviour.
I’m not saying that antosocial behaviour doesn’t matter: obviously it is the bane of very many people’s lives. But so are aeroplane noise, inefficient public transport, travelling conditions in the rush hour, bullying and sadistic bosses, interminable road works, customer service call centres, criminally over-priced restaurants and petrol pumps, rotten standards of nursing in hospitals and Mr Nick Clegg. National politics can do something about some, but not all, of these familiar pestilences. None of them, though, not even antisocial behaviour, qualifies for the top billing in the national policies of a great political party, at a time when our whole liberal democracy is under active threat (not to mention such issues as climate change and global poverty). Right now the worst and most damaging kind of antisocial behaviour is that of Messrs Cameron, Osborne and Clegg. First things first, please, Mr Miliband.
[This is an edited and expanded version of a comment on an article about Labour policy on antisocial behaviour in LabourList, here.]
Brian
The European Court of Human Rights is preventing Britain from deporting the radical Moslem preacher, Abu Qatada, to his native Jordan on the grounds that he would not get a fair trial there if, as is likely, much of the evidence against him would have been obtained by torture. Instead of joining the clamour for the public to be protected by ever more draconian and illiberal measures from the threat posed by this pantomime villain, Yvette Cooper, Labour’s shadow Home Secretary, would be better advised to attack the coalition government from a liberal and enlightened position, perhaps using the following script:
“The Home Secretary, Theresa May, and her illiberal right-wing supporters in this House, should be ashamed of themselves for their reckless and populist attacks, not only on the European Court of Human Rights for preventing the government from deporting Abu Qatada to be tried in Jordan and probably convicted there on evidence likely to be tainted by torture, but also for attacking our own judge, the chairman of the Special Immigration Appeals Commission (SIAC), who has rightly ordered that Abu Qatada should be released on bail, subject to extremely stringent conditions, since he clearly cannot and should not be kept indefinitely behind bars any longer when apparently — and inexplicably — our police and prosecuting authorities can’t find any evidence on which to charge and try him, and under the ruling of the European Court, there’s no prospect that we shall be able to deport him any time soon.
“It is a sad reflection on British justice that we have kept this man in prison in England for a total of 8-1/2 years — the equivalent of a 17 year prison sentence — without having charged him with any offence, still less having put him on trial. Half a dozen countries around the world reckon that they have enough evidence to put him on trial, if they can get their hands on him. Apparently we are the only one that can’t. One of our oldest and most jealously guarded liberties is the right not to be deprived of our liberty except after a fair trial by our peers. How can the Home Secretary demand that this individual, however evil he might be, should be kept in prison even longer when we aren’t prepared to charge or try him, and we can’t legally deport him? Does Mrs May want to sentence him to another eight or nine years behind bars when he is entitled to the presumption of innocence until a court of law convicts him of an offence? If we can’t put him on trial and we can’t deport him, he is absolutely entitled to his liberty. Once he is free, he can be subjected to intense surveillance by the police and the security services, so that the moment he steps out of line the evidence will be there for him to be tried, convicted and given an appropriate sentence, not by a government minister, not by the bellowing colonels on the back benches opposite, and not by the tabloids, but by an impartial judge.
“The Home Secretary says ‘it is simply not acceptable that Britain cannot deport a radical Moslem cleric who poses a serious risk to our national security.’ Does Mrs May not understand the basis on which the European court has ruled that to deport Abu Qatada to Jordan where he is unlikely to get a fair trial would be a breach of his fundamental human rights, as defined in the European Declaration of Human Rights to which this country has subscribed, in accordance with the ruling of a European court whose jurisdiction we have accepted? Does the Home Secretary, of all government ministers, not subscribe to the rule of law? If she can’t grasp the importance of respecting the legal rights of everyone in this country, however vile they might be, perhaps she should have a talk with her colleague, the attorney general, who understands these things so much better. (I hope I won’t get him into trouble by saying that.)
“The government says it is considering the possibility of an appeal against the decision of the European court, presumably welcoming the likelihood of further humiliation. It is also continuing to pursue the possibility of deporting Abu Qatada to Jordan. I suppose they hope to extract from the Jordanian government a document that will say: ‘Normally we do like to torture a few witnesses in terrorism cases to make sure they will give the evidence we want, but since you have asked us to make sure that we don’t use torture to convict Abu Qatada, we will do what we can to comply, although we aren’t sure that we have total control of our prosecutors, who do seem to have potentially controversial ways of making people talk. We have deliberately qualified this promise a little, because we are not really that keen to have this man back in Jordan: we would much sooner he was kept in Britain for another decade or so. After all, he’s your problem, not ours.’
“The Home Secretary and some of the retired colonels on the benches behind her have lost no time in seeking to exploit the case of Abu Qatada in support of their campaign against the European court of human rights, a body which Britain took a leading part in establishing and whose decisions we are bound to respect and obey as a treaty obligation under international law. The Prime Minister is taking the lead in accusing the court of interfering in the rights of national governments and parliaments to make their own policies and carry them out. Sir Nicolas Bratza, the distinguished British judge, appointed by Britain to represent us on the European court and currently the president of the court, has taken the unusual step of publicly reprimanding our Prime Minister for misrepresenting what the court does and for failing to understand its history and role. Yet again the Prime Minister brings Britain into disrepute. Predictably, the right-wing tabloids and other chauvinistic voices have set up a clamour about the ruling of the European court and the decision of our own British SIAC that Abu Qatada must be released on bail. Do the Prime Minister and the Home Secretary do their duty by defending the role and decisions of the judges against ignorant, prejudiced criticism, and pledge to act in accordance with the law, however unpalatable its requirements might be? On the contrary: they join in the clamour, ensuring by their example that it becomes yet more subversive of the rule of law, more disrespectful of Britain’s international and domestic obligations, more shrill.
“Those of us who served in the New Labour governments of Tony Blair and Gordon Brown are justifiably proud of their many achievements. But as Ed Miliband said in his speech to the Labour Party conference immediately after his election as party leader, Labour’s attitude in office too often seemed casual about British liberties. Too often we sponsored legislation to enable us to imprison without trial people who had not been convicted of any offence, but who were thought likely to commit an offence if they were left at liberty. People given Indeterminate Sentences for Public Protection (IPPs) are still behind bars in punitive conditions after having served the punishment part of their sentences, sometimes years ago. They go on being punished, no longer for what they have done, but for crimes that someone thinks they might possibly commit if they are let out of jail. Other people have been placed under control orders which make it impossible for them to lead ordinary lives, earn their living and socialise with their friends, deprived of most of their liberty without ever having been charged or convicted of breaking the law. The present government, to its credit, has abolished control orders, but it has replaced them by something very similar – T-PIMs, control orders lite. The Justice Secretary, Ken Clarke, also to his credit, is taking steps to abolish IPPs — but introducing new mandatory prison sentences which eat into the discretion of the judges. Now the Home Secretary and her supporters are damning the Special Immigration Appeals Commission for ordering the release of Abu Qatada on bail conditions similar to those imposed by the old control orders, not because these are too severe but because they think Abu Qatada should not be let out at all but should be kept in prison indefinitely, even if this would be against the law.
“When the coalition government was formed, we were promised that its junior partners, the Liberal Democrats, would be able to restrain the authoritarian and illiberal tendencies which are the traditional mark of the Conservative Party. Yet the voice of the LibDem members of the coalition is silent while the Prime Minister and the Home Secretary flout and vilify every principle of a civilised society which respects the rule of law. I have to confess that until now what should be the liberal voice of the historic values of the Labour Party on the opposition front bench on our fundamental human rights and liberties has also been either muffled or silent. I now pledge that this will change. We should no longer have to rely on the government’s two token small-l liberals, the Secretary of State for Justice and the Attorney General, to uphold our traditional British values. We claim to be a law-abiding people. It’s time we had a law-abiding government.”
Come on, Yvette: you can do it!
Brian
A government Bill, the Legal Aid, Sentencing and Punishment of Offenders Bill (‘LASPO’), now going through parliament aims to replace the infamous system of Indeterminate Sentences for Public Protection or IPPs, a legacy of Mr Blunkett’s tenancy of the home office, with ‘tougher’ determinate sentences for various very serious offences. Replacement of IPPs won’t, however, be retrospective. Nearly 7,000 IPP prisoners are currently adding to the grotesque overcrowding in our jails, and more than half of them have served out their tariffs and ought, in justice, to be released unless in a few exceptional cases it can be demonstrated that they represent a genuinely serious risk to the public if set free. The LASPO Bill makes no direct provision for these. But we now have a valuable statement of the position from an authoritative source.
The following letter from a senior official at the National Offender Management Service, stating the government’s policy on existing IPP prisoners following the ‘reform’ (or replacement, or abolition) of IPPs under the LASPO Bill currently going through parliament, is important, cautious but generally encouraging. [Hat-tip: Mr Robinson of Emmersons Solicitors and the Facebook IPP Campaign website]:
Dear Mr Robinson
Thank you for your e-mail of 22 January about the indeterminate sentence of Imprisonment for Public Protection (IPP).
You ask what is happening to speed up the release of post tariff IPP prisoners and what will be done to ensure post tariff IPP prisoners are treated fairly when the IPP sentence is reformed by the Legal Aid, Sentencing and Punishment of Offenders Bill (LASPO) Bill. On 26 October the Government tabled amendments to the LASPO Bill which will reform sentencing for dangerous offenders. We will replace IPPs with a tough new regime which will see more dangerous criminals given life sentences, and others spending long periods in prison and being supervised for long periods after their release. Prisoners currently serving an IPP sentence will not be released unless the Parole Board authorises it.
However, there is concern that those currently serving IPP sentences should be supported in progressing through their sentence and reducing their risk. We will be using our best efforts to improve the progression of these prisoners through sentence, including improvements to assessment, sentence planning and delivery, and parole review processes. We continue to monitor outcomes to ensure further improvements in this area.
In the Sentencing and Rehabilitation Green Paper last year we raised the issue of whether the Parole Board’s test for release in these cases was the right one, and this is a question that we will explore further. Our legislative proposals also give the Secretary of State a power to change the release test used by the Parole Board for IPP prisoners and prisoners serving the new extended sentence. We plan to consult on whether the current release test for IPPs and the new Extended Determinate Sentence ensures effective public protection while allowing offenders to demonstrate that they can be safely managed in the community.
Yours sincerely,
Polly Churcher
ISP Policy Lead
Public Protection Operational Policy Team
NOMS Offender Management & Public Protection Group
Ground Floor, Grenadier House 99-105 Horseferry Road London SW1P 2DD
For multiple statements and examples of the giant miscarriage of justice represented by IPPs, please do a search for ‘IPPs’ on this blog, including for the most recent (here). Thanks to an enlightened Justice Secretary, it looks at last as if IPPs are on the way out, whatever misgivings we might have about some of the measures proposed to replace them. It’s good to know from Ms Churcher’s letter that if and when IPPs are replaced, the fate of those serving IPPs when LASPO bec omes law won’t be forgotten. It would be a gross denial of justice if any significant number of IPPs were to be left languishing in prison well beyond their tariffs, their release delayed by mainly bureaucratic factors. Polly, we look to you to make sure that not only justice is done to these people, but also that justice is done briskly and humanely.
Brian
Unless one is a fanatical Scot, it’s impossible to read the whole torrent of comments on the new-found Scottish Question, so selection is unavoidable. Actually, it’s only necessary to read one blog post and two articles from the UK press of recent days: Neal Ascherson in the Observer of 15 January, and Simon Jenkins in the Guardian of the 12th. An Observer sub-editor has tried to put readers off Ascherson’s article by giving it a misleading headline (confusing ‘sovereignty’ with ‘devo max’), but the article itself, as usual with Professor Ascherson, is spot on. Some 70% of Scots, according to the polls, want devo max, and their elected First Minister is apparently prepared to offer it as an option in the referendum. All signs are that with devo max on the ballot paper, the independence option would be defeated. So what do the leaders of all three main UK unionist parties say? That devo max should not be offered as an option in the referendum, which should be confined to two options, independence or the status quo, neither of which the majority of Scottish people appear to want. No one has been able to put forward a single argument for denying to Scotland a constitutional development which a clear majority of Scots do want, which would be capable of changing the relationship between Scotland and the rest of the UK for the better while leaving the Union intact, and which might well save the UK from disintegration. Truly, those whom the gods wish to destroy, they first make mad. Wake up, Mr E. Miliband!
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According to a report in the Daily Telegraph, a group of right-wing Tory grandees are planning to derail the cuts in legal aid provision proposed by the Justice Minister, Ken Clarke, in his Legal Aid, Sentencing And Punishment of Offenders Bill currently going through the House of Lords. If the Lords vote to delete the cuts, there is likely to be a battle royal between the Lords and Commons when the Bill returns to the Commons, where the government will presumably seek to restore them. Fortunately or otherwise, the same Bill provides for the abolition (euphemistically described as the ‘replacement’) of the scandalous system of Indeterminate Sentences for Public Protection, or IPPs, under which nearly 7,000 men and women are crowding our jails in preventive detention, despite having in most cases completed their punishment for the offences they have committed. Those who care about justice must hope that abolition of IPPs will not fall victim to a battle between the two Houses over legal aid, which has nothing to do with indeterminate sentences: these are an ugly blot on our justice system and Mr Clarke, the coalition’s house liberal, is absolutely right to want to get rid of them.
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It may be some time before we know why the Italian cruise ship Costa Concordia hit the rocks in one of the biggest ever disasters in the world of cruising. Nor do we know yet why the evacuation of the ship seems to have been so chaotic, although some survivors are already being quoted as claiming that there had been no boat drill since the start of the cruise several hours earlier. Costa executives, currently no doubt unusually busy, can be forgiven for not yet having removed from the Costa website the page devoted to the joys of cruising on Concordia:
It’s here, on this futuristic and exclusive ship, that the fun, relaxation and excitement of a special holiday take shape. Imposing and majestic, Costa Concordia is one of the biggest ships in the Costa fleet, a real floating temple of fun that will amaze you. Wellness, sport, entertainment and culture: a thousand different experiences on a unique holiday await you on board Costa Concordia.
Excitement indeed, and ‘a thousand different experiences’! And, as the Costa website also promises:
Costa sails always with you: Stay connected from wherever to start your holiday right now! Immerse yourself in the world of Costa Cruises …
According to Wikipedia, Costa Cruises is part of the predominantly American Carnival group, which comprises eleven individual cruise line brands (including Cunard and P&O Cruises), operating a combined fleet of over 100 ships with a total of over 190,000 cabin berths. Carnival Corporation and Carnival UK control operations in North America and the UK, while Costa Cruises Group, based in Italy, control operations in the rest of Europe. The latter is responsible for operation of Costa Cruises in Italy, AIDA Cruises in Germany and Ibero Cruises in Spain. AIDA was previously a subsidiary of P&O Princes Cruises PLC, being transferred to Costa following the merger of Carnival Corporation and P&O Princess in 2002. Ibero Cruises is a new brand, created in 2007 as a joint venture between Carnival Corporation and Orizonia Group. Tracking down the ultimate responsibility for what happened to Costa Concordia will be no simple matter.
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Returning to Scotland for a moment, lovers of the natural beauty of the Lanarkshire landscape are appalled by the threat to one of its most outstanding and historic beauty spots posed by an imminent application for planning permission to undertake opencast sand and gravel quarrying on a vast scale in the immediate vicinity of the Falls of Clyde. This is officially designated a UNESCO World Heritage Site, yet the Lanarkshire and Scottish planning and preservation authorities mostly seem to have been persuaded (how?) that there is no need to object to the quarrying application. Luckily a professor at nearby Glasgow University (and an old friend), Mark Stephens, has set up a campaign, Save Our Landscapes, to try to save the Falls of Clyde and the surrounding area from ruin. As another distinguished economist has pointed out in a letter to The Scotsman, there is plenty of sand and gravel all over (or under) Scotland, and no need to pick on an area of special natural beauty to dig it out. Please have a look at the Save Our Landscapes Facebook page, and if you’re convinced by it, write a letter to The Scotsman or the Glasgow Herald, or to your MSP (if you live and vote in Scotland), or to South Lanarkshire Council, or to Scottish National Heritage (“We are the Government funded body that looks after all of Scotland’s nature and landscapes across all of Scotland for everyone“), urging that the quarry company, Cemex, be told to look elsewhere for their sand and gravel.
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As a consequence of trouble with ageing, arthritic fingers plus outstanding filial generosity, most of this web post has been produced by dictation to a program of voice recognition software, Dragon NaturallySpeaking, absolving me from almost any need to hammer away at a keyboard. Initially sceptical about the possibility of any software reproducing my dictation without the need for me to spend as long correcting it as it would have taken to type it in the first place, I have been dazzled by the eerie accuracy with which this disembodied secretary reproduces virtually every word I say, down to the last name and comma. You have to ‘train’ the thing to get used to your tone of voice, accent, vocabulary and normal volume, by reading some prose to it and giving it some documents that you have written for it to scan and commit to memory. Once you have done this, it seems to know what you’re going to say even before you have said it. However quickly you type, Dragon will reproduce your dictation at 10 times the speed. No, I don’t have shares in the company that produces Dragon, so I feel free to recommend it to those whose typing is substandard or whose eyesight is beginning to fail, condition all too common in my age group. Just speak up!
Brian
An editorial in today’s Guardian and an accompanying column by Simon Jenkins state with admirable vigour the unanswerable case against the vicious system of Indeterminate Sentences for Public Protection (IPPs). Both should be compulsory reading for anyone who cares about justice, or who has any lingering doubts about the affront to fundamental principle represented by IPPs. Both Guardian pieces rightly lambast the Labour leadership of Ed Miliband (unfortunately confused with his brother in Jenkins’s column, a typo that must have Simon chewing the carpet this morning) and Labour’s shadow Justice Secretary, Sadiq Khan, who happens to be my MP and a friend, for their cowardly failure to come out loud and clear against IPPs. Presumably they are still intimidated by the instigators of IPPs, David Blunkett and Jack Straw, who don’t want their dismal ministerial records disowned — unless it’s the synthetic wrath of the Sun and Daily Mail newspapers that is frightening them into their lamentable defence of the indefensible.
Some of the comments on the Guardian editorial (“Sentencing: Bloodlust for life”) on the paper’s ‘Comment is Free’ website make sad reading, reflecting the fog of ignorance and prejudice that surrounds the whole issue of IPPs. In reply to one of these, by no means the worst, I have added my own two-penn’orth of support for IPP abolition:
It’s sad to read the pedantic criticisms by the anonymous ‘syncretist’ of this powerful and cogent editorial, which makes an unanswerable case for abolishing IPPs. The ‘presumption of liberty’ is a pithy way of stating the principle that a person who has completed his punishment is entitled to be released unless there’s an overwhelming likelihood that he’ll be a danger to society if he is, whereas under the perverse logic of IPPs the onus is on the prisoner to prove that he won’t reoffend — an impossible requirement, as the editorial rightly points out.
‘Kafkaesque’ is an apt word for the dilemma described — where the IPP prisoner can’t convince the parole board that it’s safe to release him until he has taken a specified course, eg in anger management, but when he applies for a place on the course, he is turned down because he isn’t assessed as sufficiently dangerous to warrant a place on it! Kafkaesque indeed — and Helleresque too, as you say (a classic case of Catch 22). Also Alice in Wonderland. It accurately describes the nightmarish predicament that IPP prisoners who have paid their debt to society and completed the punishment imposed by the court are still likely to face — effectively a life sentence for an offence that no-one could possibly think deserves imprisonment for the rest of a person’s life.
Not a single penal reform organisation and not a single authority with experience of penal affairs, from former Inspectors of Prisons to the Chair of the Prison Governors Association, or from Liberty to the Prison Reform Trust, supports the retention of IPPs. Their continued use is an affront to justice and Labour’s opposition to their abolition is indeed shameful (and I write as a lifelong Labour supporter). Well said, Guardian (and also Simon Jenkins on the preceding page).
Brian Barder
IPPs are unjustifiably wrecking the lives of tens of thousands of people — nearly 7,000 IPP prisoners who have no way of knowing whether they will ever be released, and their families, partners and friends who dread the real possibility that they will never see their loved ones return to their homes again. The system will be abolished if Parliament passes the relevant clauses of Ken Clarke’s reform Bill now going through its various stages. Unfortunately the same Bill includes much more questionable provisions as well, including indefensible limits on legal aid and backward-looking proposals for new mandatory sentences for the most serious offences, in addition to those for murder. Swallowing the latter may be the price that has to be paid for getting rid of IPPs, which must be the top priority. If you care about justice and want to see the righting of a great wrong, please use every means open to you — blogging, Tweeting, Facebook, writing to your MP or a national newspaper — to urge everyone to read the two forceful pieces in today’s Guardian, and to use whatever influence you might have with the Labour Parliamentary leadership to shame it into supporting the abolition of IPPs, now at last in sight.
PS: For more detail of the monstrous defects of IPPs, please see earlier posts on this website here, here, here, here and here — including the comments on them and links in them to yet more articles on the subject. And having read all that, have a very happy Christmas.
Brian
The Labour leadership is making a sad mistake in opposing the government’s decision to abolish IPPs (Indeterminate Sentences for Public Protection), as I argued in a new blog post yesterday. The other sentencing changes announced last night by the Justice Secretary, Kenneth Clarke, and adequately summarised on the Guardian’s website here, also deserve general support by all small-l liberals, despite justified misgivings over the expansion of offences that are to attract mandatory life sentences. It would make a welcome change if the Labour front bench were to respond to the reform programme as a whole on the following lines, which I commend to the shadow Justice Secretary, the Rt Hon Sadiq Khan (also my MP):
“The most important of the new measures announced by the Justice Secretary is the welcome decision to replace Indeterminate Sentences for Public Protection (IPPs) by tough fixed-term sentences for the most serious offences. This should help significantly to reduce the excessively large prison population, of which more than 6,000 are currently serving IPPs, over 3,500 of them having already served their tariffs (the part of their sentences set for punishment). I welcome Ken Clarke’s assurance that only some 20 of those 6,000 IPPs would have qualified for the new mandatory life sentences for very serious sexual and violent crimes. Labour has serious reservations about introducing mandatory life sentences for crimes other than murder, as the government now proposes: we think judges, not politicians, should decide each sentence in the light of the circumstances of each case; but Ken Clarke has promised that ‘Judges would retain the discretion not to impose a mandatory sentence if it would be unjust to do so’, which should preserve reasonable flexibility. Mandatory life sentences will apply only to cases where an offender has twice been convicted of a serious offence attracting a sentence of at least 10 years on each occasion, so in practice the addition to the prison population resulting from this measure should be small.
“We especially welcome the proposal for a four-month mandatory prison sentence for aggravated knife possession for 16 and 17-year-olds, but not for younger children. Those convicted of ‘using a knife or offensive weapon to threaten and endanger’ are to be given a four-month detention and training order, two months in a young offenders institution and the rest undergoing training in the community. Adults will receive an automatic six-month sentence for the same offence. This should help to meet widespread concern about the menace of knife crime.
“Our concern until now that if IPPs are abolished, prisoners will be released while still a threat to our security, is adequately allayed by the promise of longer sentences for the most serious offences, allowing more time for reform and rehabilitation, and by the decision that serious offenders will not become eligible to apply for release on licence or parole until they have served two-thirds of their sentences, instead of the current half-way mark.
“It is a sorry indictment of the coalition government that these generally positive reforms have been so long delayed by widely reported opposition to them within the Cabinet and no doubt also from the unregenerate ranks of reactionary Tory back benchers. If the Liberal Democrats in the coalition, with their claims to be the champions of liberal reform, have been supporting the Justice Secretary against his right-wing critics in the long drawn-out argument over these reforms, we have yet to hear of it. It is not only over Europe that both the Conservative party and the government are split from top to bottom, with their Lib Dem allies standing helplessly on the touchline.”
Unfortunately, however, I have little confidence that Ed Miliband or Sadiq Khan will take anything like such a positive line in response to Ken Clarke’s reform programme. Labour is apparently still trapped in the retrograde, pathologically risk-averse mind-set of successive New Labour home secretaries on the subject of prisons, crime and punishment. It’s time to return to Labour’s liberal reformist roots. How bizarre that it’s a Tory Secretary of State for Justice who is blazing the trail!
Update (pm 27 Oct 11): The Justice Secretary was quoted on the Daily Politics programme today as having said he would be consulting about the idea of making it easier for Parole Boards to “let out” those serving the Indeterminate Sentences that he’s getting rid of. You can hear the relevant words here, beginning at 18’50″. This is the first reference I have seen or heard in the interviews and media coverage since Mr Clarke’s proposals were published last night to their implications for existing IPP prisoners. It’s encouraging, as far as it goes. But it will be controversial.
Brian
