In my last post on this blog, I celebrated what looked like the impending abolition of the vicious system of IPPs, or Indeterminate Sentences for Public Protection. It seems I spoke too soon. Ken Clarke’s enlightened proposal to replace IPPs by longer fixed sentences for serious crimes in the Justice Bill shortly to go through parliament is under strong attack, not only from the more reactionary of the tabloids and the usual suspects on the right of the Conservative party, but now also, incredibly, from the Labour party in parliament: see, for example, the report in the Guardian of 29 June 2011 at http://bit.ly/mDBoWa, including especially its report of remarks by Labour’s shadow Justice Secretary, Sadiq Khan MP. There is mounting evidence that this combination of forces gearing up to oppose reform of IPPs may well inflict yet another defeat on one of the most liberal and enlightened features of Ken Clarke’s penal reform programme, already largely emasculated by the prime minister’s fear of the tabloids. If Labour too persists in opposing abolition of IPPs, that might well tip the scales against this reform.
So there’s an urgent need for everyone who recognises the case for ending the cruel and unjust system of IPPs to email or write to their MPs or Ed Miliband, or Sadiq Khan MP (the Labour shadow Justice secretary) or David Cameron, or as many as possible of them, urging them to put their principles before their fear of being labelled ‘soft on crime’ and to support the replacement of IPPs by fixed sentences for the most serious crimes. Please also consider writing about it to a national or, failing that, your local newspaper. There’s an increasingly urgent need to do everything possible to stimulate support for the replacement of IPPs in the imminent Justice Bill, and in particular to try to shame the Labour leadership in the House of Commons into dropping its shocking support for the most reactionary elements in UK politics who are campaigning to keep IPPs. If you have influence with MPs, ministers or shadow ministers, or with civil rights groups such as Liberty, Justice, the Howard League, or the Prison Reform Trust, please go into top gear and do everything possible to mobilise vocal public support for ending indeterminate sentences, as currently proposed in Ken Clarke’s reform programme (what’s left of it).
Some of the arguments against IPPs are deployed at, for example, –
and
http://www.barder.com/2625 and http://www.barder.com/696, including especially the numerous ‘comments’ appended to these, many of them from the families, children, parents and lovers of the more than 3,000 prisoners serving indeterminate sentences who have served the punishment element of their sentences but see no hope of ever being released.
Time is running out. Please do whatever you can, and urge your friends, colleagues and contacts to take action too.
Brian
There are more good things in what’s left of Ken Clarke’s sentencing reform measures than most liberal commentators admit. The biggest and best is the promise to scrap Indeterminate Sentences for Public Protection (IPPs). Last December’s Justice Ministry Green Paper, setting out Clarke’s preliminary proposals for public consultation, shrank from suggesting outright abolition of IPPs, the option preferred by almost all penal reform organisations and specialists, offering instead extensive changes in the system which would have removed many (but by no means all) of its most pernicious features. The government’s conclusions, following consultations on the Green Paper, abandon the attempt to smooth the rough edges of the IPP régime, and come out firmly for its outright abolition, promising to conduct –
an urgent review of sentencing for serious sexual and violent offenders. Consultation highlighted numerous weaknesses with the indeterminate sentence of Imprisonment for Public Protection. It has never worked as Parliament intended, creating instead a flawed system, which is not well understood by the public. We will conduct an urgent review with a view to replacing the current IPP regime with a much tougher determinate sentencing framework – which would be better understood by the public, and command greater confidence.
(For ease of reference, I have put the main passages in the government’s document relevant to IPPs on my website, here.)
Predictably, the potentially controversial decision to scrap this poisonous and indefensible system is offset by ‘tough’ promises to impose longer sentences for the most serious crimes (defined as serious sexual and violent offences), extending the point at which serious offenders become eligible for release on licence or parole, and so forth. Some serious offences, if repeated, are to attract automatic life sentences – because “the public like them”, according to the prime minister at his press conference to unveil the new policies. Life sentences, with their tariffs or minimum periods of imprisonment imposed by the sentencing judge, resemble IPPs in some respects; but there is clearly a place for such sentences in the judges’ armoury. The proposal to maintain the mandatory sentence of life imprisonment for murder, regardless of the circumstances of each individual case, is disappointing and retrograde, as are the other proposed new restrictions on judges’ discretion. Various new offences are to be created, on generally unconvincing and suspect grounds.
Clarke’s enlightened hopes of sharply reducing the grossly bloated prison population, thereby enabling the prison and probation services to focus more intensively on rehabilitation and thus bringing down currently intolerable levels of reoffending, have been ruined by David Cameron’s panicky intervention. Once again, as in New Labour’s worst excesses of illiberal populism, penal policy has been dictated and progressive measures vetoed by the Daily Mail, the Murdoch rags and the primitives on the Tory back benches. The hysteria whipped up by a single over-casual and wilfully misrepresented radio interview has hi-jacked the entire debate on general prison and penal policy, with almost the entire media from left to right frantically arguing the pros and cons of increasing the sentence discount from the present 33% to a maximum of 50% for rapists (and incidentally all other offenders) if they plead guilty at the outset. As Richard Garside, the director of the Centre for Crime and Justice Studies at King’s College London, acidly observed in a penetrating commentary,
That so many reformists invested so much in defending and championing a minor and uninspiring bureaucratic tweak to sentencing policy says much about the state of the current debate, and signals how much needs to change.
There was a solid case for the proposed increase in the sentence discount up to 50%, but let’s remember that it’s a form of plea bargaining, liable to place the innocent who fear a likely conviction in an intolerable dilemma, and eroding the principle of a fair trial. Its demise falls some way short of tragedy, even though the motives for its destruction were patently disreputable, a compound of populism and timidity.
Dr Marion Fitzgerald, of the School of Social Policy, Sociology &. Social Research. University of Kent, and specialist adviser to the Home Office Select Committee, speaking on the BBC television news channel on 21 June, welcomed many of the progressive features and aspirations of the Clarke policy document, even after its savaging by the cowards at No 10 Downing Street. Dr Fitzgerald even speculated that the 50% discount proposal might have been included with the intention of sacrificing it if necessary to the reactionary jackals so as to improve the chances of salvaging some of the document’s more significant reforms.
Like several other liberal commentators, Dr Fitzgerald lamented the dismal failure of the Labour opposition leadership to give Clarke’s progressive proposals the sturdy and principled support they deserved. Instead, the shadow justice secretary and the Labour leader proved unable to rise above petty point-scoring, at one low point actually calling for the resignation or dismissal of Ken Clarke. So much for Ed Miliband’s inspiring promise, in his speech after being elected party leader, to acknowledge the shortcomings in New Labour’s record on civil rights and to chart a new course in this area under his leadership. Can he really be so intimidated by yesterday’s men such as Messrs Blunkett, Straw and Reid, with their ancient shabby records to defend?
But let us accentuate the positive, for once, even if Labour’s front bench can’t see it (and Mr Cameron presumably hasn’t noticed it). Indeterminate Sentences for Public Protection have inflicted, still inflict, massive injustice, hardship and suffering on many thousands of people, including men and women who have completed their punishment but are kept indefinitely in prison in preventive detention, not knowing when or even whether they will ever be released; tortured by Kafkaesque conditions for possible release which can never be satisfied, frustrated by gross and inhumane maladministration of the whole system by officials who are pathologically risk-averse, more concerned to safeguard their own reputations for prudence than to act fairly and humanely in the name of justice. The torment inflicted by this nightmarish régime on the partners, wives and husbands, children and lovers of the victims of IPPs is almost impossible to imagine. Now at last it is to be swept away. Many questions remain to be answered: what is to be the fate of those currently incarcerated under IPPs? will the parole boards be instructed to apply completely new criteria in considering applications for release after the prisoner has served his or her tariff? will the onus for demonstrating that there is solid justification for refusing release be transferred to the parole boards, or will the prisoner still be required to prove that he won’t reoffend, an obvious logical impossibility? will prison governors be severely penalised if they fail to make available the courses which IPP prisoners are required to attend as a de facto condition for consideration for release? will judges be allowed to continue to impose wildly inappropriate IPPs for relatively minor offences, or for notionally serious offences even where there are manifestly extenuating circumstances? Let’s hope that all these questions will be discreetly answered in a spirit of reform and justice, preferably without arousing a fresh storm of irrational hysteria on the part of the hangers and floggers in the murkier reaches of the media and the reactionary elements in both the main political parties. Which reminds me: where were the LibDem coalitioners when an embattled Ken Clarke badly needed them? Nowhere to be seen; silent, invisible.
Amid the wreckage of an enlightened justice secretary’s aspirations for radical reform of a seriously defective penal system, it’s just possible to discern at least one flickering flame of hope. IPPs are to be a thing of the past. As Mrs Thatcher would probably not have said, Rejoice!
Brian
The UK has become a semi-federation as a result of devolution to three of the four UK nations, but we still lack most of the institutions and safeguards that a federal system needs and can provide. One of these is a federal-type senate as the second chamber of our semi-federal parliament at Westminster. Nick Clegg’s newly published proposals for a leisurely and partial ‘reform’ of the House of Lords over the next dozen years or so do nothing to address this need. They were rightly dismissed by Martin Kettle in the Guardian of 3 June, with the argument that outright abolition of the second chamber would be preferable to the Clegg plan. On 6 June, the Guardian published my letter advocating neither abolition nor the Clegg plan for reforming the Lords, but instead a federal-type UK senate. The published version of my letter omitted a couple of points from the text I had submitted, which, for the record, read as follows:
Martin Kettle is right to dismiss Nick Clegg‘s hotchpotch of proposals for reforming the House of Lords (Nick Clegg’s House of Lords reform is folly. Abolition would be a better option, 3 June), but surprisingly omits to consider another option besides abolition: a second chamber on the pattern of the Senates of such successful federations as the US and Australia, with equal representation for each of the UK’s four nations. With devolution to three of our four constituent nations, we have become a semi-federation, but we still lack most of the safeguards offered by a fully-fledged federal system. A UK Senate with, say, 20 members elected by PR in each of the four nations would give Scotland, Wales and Northern Ireland much needed protection against the constant threat of being outvoted by the English members, just as the smaller Australian states such as Tasmania are protected by equal representation in the federal Senate against domination by New South Wales and Victoria.
Full federalism would entail other safeguards against English domination too, but this would be a vital one. The UK Senate could have much the same limited functions as the present House of Lords and since it would not produce the government, nor include ministers, it could never threaten the primacy of the House of Commons. If the United States can manage with 100 Senators, two from each state, we could surely get by with 80, instead of the 831 members of the present House of Lords (!). There’s no need to wait for the completion of the federal project (i.e. a parliament and government for England): a federal-type Senate could be established within three or four years, given the will.
I try not to miss any opportunity to point out the huge advantages that a fully federal system would bring to all the UK’s four nations, and the fact that once our political leaders pluck up the courage to recognise the logical conclusion of the half-completed devolution process by instituting a separate parliament and government for England — and sharply reducing the powers and functions of the Westminster parliament accordingly — we shall have a de facto federation on our hands, whether we like it or not.
Our present semi-federal system (devolution to Scotland, Wales and Northern Ireland) has come about primarily to satisfy the legitimate demands of the Scots for more power over their own internal affairs and much less meddling and interference from the over-centralist government and parliament at Westminster. Because England, with some 84% of the population of the UK, is so much bigger than the other three nations put together, there is a natural tendency for England to dominate the affairs of all four nations. Devolution, by transferring powers in domestic matters from Westminster to three of the four nations, does offer those three a degree of protection from being dominated by England, as well as the obvious benefits of bringing decision-making closer to the people whose lives are affected by those decisions. But Westminster still retains sweeping powers in all four nations, and Scottish resentment of this is clearly one of the factors in the victory of the Scottish National Party’s achievement of an overall majority at the elections of May 2011 — a convincing victory by a party committed to full independence for Scotland even while a majority of Scots, according to all the opinion polls, still prefer increased autonomy for Scotland to full independence and secession from the UK.
So further safeguards against the dominating power and wealth of England are required if relations between the four nations are to be placed on a sound, fair, democratic and durable footing and the integrity of the United Kingdom preserved from disintegration. Further devolution of powers in all domestic matters is certainly one ingredient in this. But the now near-universal support for reform of the second chamber offers a golden opportunity for another. A federal-style second chamber at Westminster, with equal representation for each of the four nations regardless of population but with the limited powers of the present House of Lords, would provide an important further safeguard against the dominance of England. As I argued in my Guardian letter, a UK senate could well be no bigger than 80 members, 20 from each of the four nations, compared with the 831 members of the present House of Lords. Even if there were to be a new separate (but small) parliament for England, there would still be fewer parliamentarians in the UK as a whole than we have at the moment: so the argument that no-one wants even more politicians does not apply.
There remains one argument for the existing House of (unelected) Lords: that the presence in the so-called Upper House of eminent and acknowledged experts in their field, from retired army generals to gynaecologists, adds value to the debate on legislation as it passes through parliament. Lord Winston, for example, is a great expert in human fertility with experience in other medical fields, and undoubtedly speaks (and votes) with special authority on such matters when they come before Their Lordships. But it’s not easy to see why he should be given the privilege of speaking and voting in our national law-making body on such matters as, for example, defence or foreign affairs, on which his opinion is doubtless as good as anyone else’s, but not necessarily any better. The same thing applies to other Lordships appointed for their expertise in specialised fields. Such experts could easily be invited to participate in debates on questions within their field of specialised knowledge, both in parliamentary committees and indeed in plenary debates on the floor of the second chamber (why not?), but there is no reason for them to be appointed as members of the chamber or for them to have the right to vote in it. That should be reserved to those who have been directly elected, either by First Past the Post in the case of members of the House of Commons (until the people, in their wisdom, decide to change the electoral system), or else by proportional representation in the case of a new federal-type senate. The senate could best be elected for longer terms than the House of Commons, with a third or a quarter retiring every so many years, as in the case of the US Senate, so there would be no question of the two chambers duplicating each other; and the senate, although directly elected, could never challenge the primacy of the Commons, since it would not produce the government, ministers would not be eligible to sit in it (although they could be required to participate in its debates and to answer its questions), and above all it would no more be able to nullify the decisions of the Commons than the present House of Lords: only to delay them, as now.
(There should be no need to set out here the arguments against granting representation in either chamber of the national parliament to priests, mullahs, rabbis, or other representatives of any religion or sect, unless they are prepared to submit themselves successfully for election like anyone else. )
The benefits of a federal-style senate, which could be introduced forthwith, followed over the next several years by a gradual move to a fully federated United Kingdom, are so obvious that it’s mystifying that no major (or indeed minor) party has spotted the opportunity to pick them up and run with them. With all our politicians mesmerised by the pursuit of the middle ground, it seems that we are condemned to mediocrity and a failure of imaginative, progressive or radical thinking, for all time. How can we wake them up? Perhaps the Scots will do us all a favour by giving the Westminster mafia a terrible fright, and forcing them at last to think the currently unthinkable. But time is running out!
Brian
