Authors:Rob Preece
Last updated:2023-11-28
‘Hyperactivity in law-and-order legislation’
Marc Bloomfield
Description: Prison view through wire over outside area (falco_Pixabay)
Parliamentarians will have plenty of criminal justice legislation to scrutinise in the run-up to the next general election, with the 2023 King’s speech putting forward a total of five bills concerned with law and order.1See also The King's speech 2023: background briefing notes, Prime Minister’s Office, 7 November 2023.
The Criminal Justice Bill promises, among other things, to force defendants to attend their sentencing hearings and to establish powers to transfer people in prison to serve their sentence abroad – two changes that might be summarised as easier said than done.
A Victims and Prisoners Bill, carried over from the previous parliamentary session, proposes controversial changes to the parole system that would give ministers a greater role in decisions on whether to release people from prison.
Plans to empower intelligence services to deal with national security threats and enhance public protection are set out in two bills: an Investigatory Powers (Amendment) Bill and a Terrorism (Protection of Premises) Bill.
The remaining piece of planned legislation is a Sentencing Bill. On the one hand, this proposes more whole life order sentences and forcing people convicted of rape to spend every day of their sentence in prison. On the other, it would extend the use of home detention curfew and introduce a presumption in favour of suspending custodial sentences of 12 months or less.
Two-thirds of prisons in England and Wales are overcrowded,2Population bulletin: monthly October 2023, Ministry of Justice, 10 November 2023. so it makes sense to limit the use of short sentences, particularly as the Ministry of Justice’s (MoJ’s) own research has proven that they are ineffective. A paper that it published in 2019 concluded that:
… sentencing offenders to short term custody with supervision on release was associated with higher proven reoffending than if they had instead received community orders and/or suspended sentence orders (The impact of short custodial sentences, community orders and suspended sentence orders on reoffending, page 1).
If reducing reoffending is the aim, however, forcing people convicted of rape to spend every day of their sentence in prison seems especially wrong-headed. The bill’s own impact assessment on changes relating to serious sexual offences states that spending less time on licence could increase the chance of someone becoming involved in crime again (paras 20–21, page 9).
These are the fine details that must be unpicked, and that process began only two days after the speech when the Howard League for Penal Reform held an online ‘Spotlights’ event to examine the bills in depth. The charity’s chief executive, Andrea Coomber KC (Hon), chaired the event, with contributions from Andrew Neilson, director of campaigns, and membership officer Tim Kerr, with a wide range of questions from the audience.
Andrew briefly outlined the government’s proposals, then set them in context with a chart showing that the number of law-and-order Acts of Parliament to receive royal assent has increased significantly in recent years. This includes not only MoJ legislation, but also acts introduced by the Home Office and other departments that have created criminal offences.
‘What you can see is just how much law-and-order legislation is passed these days, compared to days of yore,’ Andrew said. ‘In the 1980s and 1990s, it was relatively unusual. Things really ticked up in the New Labour years and you can see the explosion in legislation from the 1990s to the 2000s.’
‘Astonishingly,’ he continued, ‘even with the pandemic curtailing parliament’s business for a period, we have already had 30 pieces of law-and-order legislation since 2020. If all five of these bills in the King’s speech end up being passed, we will surpass the total amount of law-and-order legislation that was passed in the entire previous decade.’
‘I am not suggesting that some of that legislation might not have been necessary in some way,’ Andrew explained, ‘but when you look at the slide it really does show what I can only describe as hyperactivity in law-and-order legislation. I would argue that, ultimately, it is that hyperactivity in legislating that goes to the heart of why the prison population is threatening to run off the rails and why we have just had this rather strange smorgasbord of measures in the King’s speech.’
Tim, who has personal experience of life in prison and receives many letters from Howard League members inside, said that the high turnover of law-and-order legislation had an ‘unsettling impact’ on the prison population. ‘When you are in there,’ he explained, ‘and suddenly these new laws appear, you are not sure what they mean and it just adds uncertainty.’
Tim had visited a prison the day before the event, and some of the people he met were worried about the government’s proposals. ‘Some of the life prisoners and [imprisonment for public protection]-sentenced prisoners we saw yesterday were very concerned about changes to the Parole Board processes that are mentioned in this bill,’ he said. ‘That adds a real uncertainty to your sentence and perpetually moves the goalposts. I think we all need a bit of certainty in life, and uncertainty is certainly something that really unsettles particular prisoners and leads to downstream consequences for them as well.’
‘But,’ he added, ‘I think there will be some welcoming of the more progressive measures. A lot of prisoners realise that short sentences are problematic for them in prison. It takes up a lot of staff time just processing new prisoners, new receptions, and being on a prison wing you want to be more settled and get on with the rehabilitation that might be occurring. I think it will be perceived as a mixed bag within prisons.’
The Howard League will have a key role to play in briefing politicians about the realities of the criminal justice system as the bills move through parliament. If you would like to support the charity’s work, visit the Howard League’s website.
1     See also The King's speech 2023: background briefing notes, Prime Minister’s Office, 7 November 2023. »
2     Population bulletin: monthly October 2023, Ministry of Justice, 10 November 2023. »