Rishi Sunak was warned by senior civil servants a week before he called the election that he was at risk of breaching his legal responsibilities if he failed to take action over the prison overcrowding crisis, a leaked document reveals.
The advice, sent to the former prime minister on 15 May, said that failing to make an urgent decision on prison capacity would mean the criminal justice system in England and Wales reaching the point of “critical failure”.
The Cabinet Office memo, seen by the Guardian, warned that the administration of justice would become “untenable” to the point that the police and judiciary would no longer be able to exercise their legal duties.
Senior civil servants felt that the prisons overcrowding crisis was so severe over the following weeks that the cabinet secretary, Simon Case, chaired emergency Cobra meetings himself on how to respond.
The new justice secretary, Shabana Mahmood, last week set out emergency measures to prevent the prison system from reaching the point of collapse, with jails operating at 99% capacity since the start of 2023.
The government will temporarily reduce the proportion of certain custodial sentences served in prison from 50% to 40% in England and Wales from September. It has said that it will implement safeguards and exemptions to keep the public safe, with clear release plans to manage offenders safely in the community.
Alex Chalk, the previous justice secretary, has confirmed that he also prepared plans to release some prisoners after 40% of their sentence and to send fewer people to jail in the first place but these were shelved over fears of a lack of support in parliament.
Ministry of Justice (MoJ) officials and Chalk, who served as justice secretary from April 2023, are understood to have repeatedly warned Downing Street that all other levers available to them had been pulled and they would have to go for early release to avert disaster.
However, they were blocked by Sunak’s key aides amid concerns in No 10 they would not get the necessary secondary legislation through parliament, with Tory rebels including former home secretary Suella Braverman likely to oppose it.
Yet the Guardian has been told that just two days before the election was called, Sunak finally agreed to meet demands from the MoJ to release thousands of inmates early to ease pressure in overcrowded jails.
Ahead of the meeting in No 10, Chalk is understood to have written a personal letter to the former prime minister, described by former officials as setting out “the end game”. They suggested that had Sunak refused the former justice secretary would have quit.
Sources said that a departmental memo on the meeting showed the former prime minister had said he would permit the standard determinate sentence [SDS] scheme, despite knowing the election would make it virtually impossible to deliver.
However, other insiders suggested Sunak had only agreed on the need to relieve pressure on the system and had asked the MoJ to work up different options, amid concerns that the system had not yet “squeezed” the estate as much as it could through other means.
One ally of Sunak said: “Rishi was always adamant that SDS40 should be an absolute last resort and something we should only pursue when every last alternative was exhausted.”
The leaked document, a rare intervention by the senior civil service on such a high stakes government policy, was sent to Chalk and Sunak by Darren Tierney, the cabinet office’s director of propriety and ethics, on 15 May, exactly a week before the Tory leader called the election.
“Based on the advice received from Her Majesty’s Prison and Probation Service and the MoJ, it is clear that an urgent decision is required in respect of prison capacity to ensure the continued functioning of the criminal justice system [CJS]. Such a decision is for ministers,” it read.
“The advice to date has been clear that there are no viable alternatives to addressing the prison capacity shortage beyond laying an affirmative statutory instrument under the [Criminal Justice Act] 2003 Act to vary the 50% minimum sentencing period to release eligible prisoners early. It states that all options have been exhausted and that inaction would lead to a critical failure of the CJS.
“If, noting the stark advice and the legal, operational, and safety considerations therein, ministers chose not to agree with official advice on this issue, it would give rise to serious propriety and legal considerations.”
The senior civil servant concluded: “Failure to act would bring the CJS to the point of critical failure and as a consequence the administration of justice itself would become untenable, to the point that the police and judiciary could no longer exercise their functions in line with their statutory obligations.
“It would also become extremely difficult, and in my view impossible, to present any respectable argument that both ministers and civil servants were discharging their legal duties and professional obligations.”
Mahmood has pointed the finger of blame at Sunak and his Downing Street advisers, describing them as “the guilty men” who should be held responsible for “the most disgraceful dereliction of duty” by failing to address the prisons crisis.
With only hundreds of places left in the adult male estate, prisons have been routinely operating at more than 99% capacity since the start of 2023. Prison cells are expected to run out within weeks, the government has said.
Under the new government’s plans, sentences for serious violent offences of four years or more and sexual offences will be automatically excluded. In a distinction from the end of custody supervised licence scheme (ECSL), the early release of offenders in prison for crimes related to domestic abuse will also be excluded.
Anyone released under the new scheme would be strictly monitored on licence by the probation service – which will recruit 1,000 more officers – through measures that could include electronic tagging and curfews. Those freed face being recalled to prison if they breach their conditions.
The rules will not apply to the most serious offenders, who already either spend two-thirds of their sentence behind bars or have their release determined by the Parole Board. However, some violent offenders with a sentence of less than four years will be eligible for the scheme.
A spokesperson for the Cabinet Office declined to comment on the leaked document.
