Thousands of prisoners will be released on license early, once they have completed 40% rather than 50% of their sentence, if a Statutory Instrument is approved by the House of Commons today (25 July 2024). This is not the first time delegated legislation has been used to address the prison overcrowding crisis by implementing what are significant and contentious policy changes. This underscores the importance of a robust scrutiny system for such legislation; but in practice the treatment of the three pieces of delegated legislation concerned demonstrates many of its systemic weaknesses.
Matthew England
Researcher, Hansard Society
Matt joined the Hansard Society in 2023 to focus on the Society’s ongoing research into delegated powers and the system of scrutiny for delegated legislation. He also maintains the Society’s legislative monitoring service, the Statutory Instrument Tracker®. He graduated with a BA in Philosophy, Politics, and Economics from the University of Oxford in 2020 and an MSc in Political Theory from the London School of Economics and Political Science in 2021. Before joining the Hansard Society, Matt worked as a researcher for a Member of Parliament focusing primarily on legislative research.
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The Government said recently that male prisons have been "routinely operating at over 99% capacity" for the past 18 months. While the merits of the policy changes introduced by both the current and previous governments in response to the crisis have been hotly debated, the legislative method to implement these changes—largely delegated rather than primary legislation—has received less attention. This blog examines three of these policy changes—early release, shorter recalls of prisoners, and early deportation—and the critical role that delegated has played in enacting them.
Provisions in the Criminal Justice Act 2003 specify the conditions under which prisoners are entitled to automatic early release on license. Most prisoners with fixed-term sentences are released on license after serving half their sentence (the ‘requisite period’), though for some serious offenders it is two-thirds. Once released, the offender serves the remainder of their sentence in the community, supervised by probation and potentially liable to recall to prison if they breach their license conditions.
The Criminal Justice Act 2003 (Requisite and Minimum Custodial Periods) Order 2024 (‘the Order’) lowers the requisite period to 40% for most of the offenders who are currently covered by the 50% requirement, allowing them to be released from prison earlier. Those sentenced to more than four years for violent offences, as well as those with sentences of any length for sexual offences, domestic abuse, or offences relating to national security or terrorism, are excluded from the 40% early release.
While the title of the Order indicates it concerns minimum custodial periods it gives no hint that it lowers the threshold for such a custodial period and therefore provides no clue as to the seriousness or otherwise of the Instrument’s content.
The Order is a Statutory Instrument (SI) that is subject to the draft affirmative scrutiny procedure, which means it must be debated and approved by both Houses of Parliament before it can be signed into law. The debate on the Order is to take place in the House of Commons chamber rather than the more usual Delegated Legislation Committee (DLC). Only around 7.5% of Commons debates on draft affirmative SIs in the last two Sessions took place in the Chamber, with the rest taking place in Delegated Legislation Committees off the floor of the House. However, Delegated Legislation Committees cannot be set up until the ‘Panel of Chairs’ – from which the chairs of DLCs are drawn – and the ‘Committee of Selection’ – which nominates the members of DLCs – are set up, which usually takes several weeks after the start of a new Parliament.
The SI will come into force on 10 September 2024 for prisoners with sentences of less than 5 years, and on 22 October 2024 otherwise.
The requisite periods Order is distinct from another early release scheme introduced by the last Government – called the End of Custody Supervised License (ECSL) scheme. Under this scheme, announced in October 2023, prisoners could be released from prison up to 18 days before their automatic release date (currently halfway through the sentence). That maximum was increased to 35 days in March 2024, and to 70 days in May, just before Parliament dissolved.
In practice this means that many prisoners are already being released before they have served half their sentence, with recent data indicating that over 10,000 prisoners have been released under the ECSL scheme. Indeed, for any offender with a sentence of less than 700 days, a 70-day early release would see them released earlier than even the new 40% point.
The ECSL scheme relies on a different power to the requisite periods Order, namely section 248 of the Criminal Justice Act 2003, which allows the Secretary of State to release a prisoner on license if they are satisfied that there are “exceptional circumstances” which justify the release “on compassionate grounds”. However, this power is not exercisable by Statutory Instrument. Ministers were able to implement what amounted to a significant policy change by using a non-legislative ‘direction’ which is not subject to parliamentary scrutiny. The question of whether Parliament ever anticipated or intended the term “compassionate grounds” to extend to prison overcrowding, and relatedly whether the Minister was thus acting within the boundaries of the power that Parliament had granted, could not therefore be tested in any form of parliamentary approval process prior to implementation of the decision. Parliament was in effect sidelined despite the measure being of considerable political salience and having significant public policy implications.
If offenders released on license go on to breach their license conditions, then another Statutory Instrument enacted by the last Government is likely to shorten the length of time for which they are recalled to prison.
When an offender is recalled to prison, they can be issued with either a fixed-term recall or a standard recall. If issued with a fixed-term recall, the offender is recalled to prison for 14 days if their sentence is under 12 months, or 28 days if it is over 12 months. Under a standard recall, the offender can only be released again if the Parole Board or Secretary of State direct them to be released, and in theory they are liable to remain in prison on recall until the end of their sentence.
In February 2024, the Criminal Justice Act 2003 (Suitability for Fixed Term Recall) Order 2024 was laid before Parliament and was made into law the following month. This Order introduced mandatory fixed-term recall for prisoners with sentences of less than 12 months, so that no offender with such a sentence would be given a standard recall. In practice this means that offenders who are recalled back to prison are spending up to several months less in prison than they might otherwise have done prior to the introduction of the Order.
The SI raises issues of considerable political and legal importance, yet it was debated in a Delegated Legislation Committee for just 22 minutes, with speeches made only by the Government minister and Opposition spokesperson.
This is far from uncommon for a DLC debate. The average length of a DLC is around 30 minutes, and the MPs on the DLCs – effectively selected by the Whips who control the Committee of Selection – are encouraged to turn up to the debate and work on constituency correspondence, rather than raise questions or make speeches.
In the first quarter of this year, eight DLC debates lasted for less than 10 minutes, with one lasting just four minutes. The setting up of these Committees wastes valuable resources, particularly the time of Ministers, Shadow Ministers, MPs and staff.
Even if MPs on a DLC were inclined to ask questions or express concerns, they are not able to table amendments or call expert witnesses, as they can in other legislative committees. The most they could do is vote against the motion before the DLC that the committee has “considered” the SI. A vote on a contentless ‘consideration motion’ invites ridicule for being pointless.
The Secretary of State also has the power to remove foreign national prisoners from prison if they can be immediately deported. Until earlier this year, prisoners could only be removed for deportation up to 12 months before the earliest release point of their sentence. That maximum limit was increased to 545 days (approximately 18 months) by the Criminal Justice Act 2003 (Removal of Prisoners for Deportation) Order 2023, laid in October 2023 and made in to law in December 2023. As was the case before the SI was made, foreign national prisoners still need to serve half of their ‘requisite period’ (the current half-way period when they are automatically released) before they can be released for deportation. A prisoner with a sentence of six years, for example, can now be released for deportation after serving just 18 months, rather than two years.
A further consequence of this week’s Order lowering the requisite periods for sentences will be that by reducing the requisite period from 50 to 40%, most foreign national prisoners will only need to serve 20% of their sentence, rather than 25%, before they can be released for deportation, allowing earlier deportations to take place. Here we have an example of two SIs which each have an effect on the operation of the other, and which interact to achieve one purpose, but MPs have no opportunity to question legal or policy experts about the inter-play between the two.
The last Government planned to go even further in the use of delegated powers to address the prison overcrowding crisis, with new powers in the Criminal Justice Bill to implement bilateral agreements to accommodate UK prisoners in overseas prisons. This approach was criticised in our briefing on the Criminal Justice Bill, precisely because the details of such schemes would be left entirely to delegated legislation. The provisions were lost in the legislative ‘wash-up’ prior to the dissolution of the last Parliament. Whether the new Government will continue to employ and to expand the use of delegated powers to tackle crises like these remains to be seen. But if they do, it is vital that any resulting Statutory Instruments are subject to parliamentary scrutiny that is appropriately tailored to reflect the impact and political significance of the content of the regulations.
The Hansard Society has proposed reforms to achieve a more sensible correlation between the content of an SI and the scrutiny procedure to which it is subject. These proposals include the abolition of DLCs and their replacement by a ‘sift and scrutiny’ system to tailor scrutiny to the concerns raised by the content of the Instrument. Two or three permanent Regulatory Scrutiny Committees could hold Q&A sessions with the Minister, officials, or stakeholders and their debates would be held on an amendable substantive motion (rather than the toothless ‘take note’ motion used by DLCs). We hope that our reform proposals will now be considered in this Session by the new House of Commons Modernisation Committee.
The Hansard Society’s work on delegated legislation is generously supported by The Legal Education Foundation
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