There is a point when momentum becomes irresistible.
When I listened to Nick Hardwick speaking about IPP prisoners at the Great Expectations event last week, it struck me that we may finally have reached that point for IPP prisoners.
The ‘IPP problem’ has been calling for a solution for several years but politicians and policy-makers have continued to treat it like a hot potato.
Very few politicians have the courage to associate themselves with a law change which allows prisoners to be released earlier than they may otherwise have been.
They know that they face the risk of being slaughtered by the press, particularly tabloid newspapers, if something goes wrong and a prisoner who has been released 'under their watch' goes on to re-offend and to create another victim.
The sentence of imprisonment for public protection was introduced under a Labour Government. It was the product of a Labour administration trying to rid itself of the image of being ‘soft on crime’. The sentence was designed as a response to the repeat offending of a cohort of prisoners, some dangerous and most anti-social.
The impact of the IPP sentence should have been predictable but the planning and preparation for it was woeful. It widened massively the scope of offences which could attract an indefinite sentence (equivalent to a life sentence).
Offences which used to attract a maximum sentence of as little of six months’ imprisonment could now result in a sentence without any release date at all.
The first generation of IPP sentences allowed almost no discretion to judges and resulted in an enormous increase in the number of people serving indefinite sentences.
Judges were obliged to calculate and set a 'tariff' or 'minimum term', the period that a prisoner serving an IPP sentence would have to serve before they could be eligible for release.
In order to achieve their release, a prisoner would need to show at the end of their minimum term that their risk of causing serious harm had reduced enough for them to be released safely into the community. This resulted in ludicrous situations such as IPP prisoners with minimum terms as short as 27 days hoping to persuade a Parole Board that, now that a month had passed, they were no longer dangerous.
The release test obliges the Parole Board to assess whether or not a prisoner serving an indefinite sentence still needs to be confined for the protection of the public. Prisoners can only achieve their release if they can point to clear evidence of change which means they should no longer be regarded as a risk to the public.
This will almost always require them to complete treatment programmes and to secure reports which conclude that their risk has reduced.
In addition, prisoners will usually need to answer questions at a parole hearing which show that they have taken on board their learning and internalised it.
The only way that this system could possibly have worked would have been if the necessary resources had been provided for additional long-term prison places and for programmes and assessments to take place on time. This did not happen. Prisoners, taxpayers and the wider criminal justice system are still paying the price.
Almost every prisoner who received an IPP sentence has now completed their minimum term. However, there are still well over 3000 IPP prisoners who do not know when they will ever be released.
If they had received the equivalent fixed sentence for their offence, all of them would have been released back into the community already.
The majority of those still stuck in the system are the 'difficult', angry, inarticulate and learning disabled who have not been able to navigate the path to their release.
They are usually young men or at least were when they got their sentence. Many have lost hope.
Where are we now?
The first real glimmer of hope for IPP prisoners arrived with the announcement by the then Secretary of State, Michael Gove, that he was concerned about the plight of IPP prisoners and had asked the Parole Board Chair, Nick Hardwick to carry out a review.
The announcement of a nonspecific 'review' is often a means by which difficult problems are kicked into the long grass.
However, it is likely that Michael Gove recognised that by handing the baton to Nick Hardwick, it might allow a speedier and more decisive response.
Until his appointment as Parole Board Chair in March of this year, Hardwick was an outspoken Chief Inspector of Prisons who had spoken publicly, articulately and angrily about deficiencies in the prison system and had made specific reference to the plight of IPP prisoners in many inspection reports.
At the Great Expectations event last week, Hardwick stated clearly: "we cannot go on as we are".
This was not a glib, detail–free soundbite.
He explained that one option would be for Parole Board Members to interpret the risk test in a more robust way which could safely increase the release rate of IPP prisoners.
He was acutely aware that this would not be a sufficient solution in itself. Parole Board Members are legally and constitutionally obliged to remain independent.
Like judges, they cannot be told what decisions to make in a particular case.
Put bluntly, Nick Hardwick cannot tell them to release any individual prisoner.
To make any serious difference, there has to be action by ministers.
The most obvious action by ministers which has been trailed in today’s announcement is to change the release test for IPP prisoners.
Section 128 of the LASPO Act gives a power to the Secretary of State to change the release test by Order. This means that it would not need to wait for the interminable process of passing new legislation.
Changing the release test would mean that the Parole Board would have to apply a different test.
Hardwick has described the predicament placed by IPP prisoners that they have to ‘prove a negative’ i.e. that they are not a risk to the public.
In strict, legal terms, it is not for the prisoner to ‘prove’ anything. The Parole Board can interpret their legal duty as requiring them to release a prisoner unless they are satisfied that they continue to pose a significant risk of harm.
However, in practical terms it is extremely difficult for a prisoner to achieve their release without being able to call on concrete evidence to show they are no longer a risk.
I think it is very likely that Nick Hardwick knows what he is doing by making a public call for the release test to be changed in the first few days after the appointment of a new and relatively inexperienced Secretary of State.
Hardwick has provided Liz Truss with perfect cover. She can rely on his expertise and advice to take a bold, progressive step and can blame him if it goes wrong.
It is to be hoped that she continues to push the door which Hardwick has left wide open for her.