Divorce, Dissolution and Separation Bill [HL]

Baroness Chakrabarti Excerpts

2nd reading & 2nd reading (Hansard): House of Lords & 2nd reading (Hansard)
Wednesday 5th February 2020 Lords Chamber

[Baroness Chakrabarti (Lab)]

My Lords, it has been an absolute privilege to sit through the three hours of this debate. I particularly thank the noble Baroness, Lady Shackleton, for speaking in the gap and giving us the benefit of her pre-eminent expertise in these matters in this country. Once more, this is an example of the quality of contributions that can be made in a Chamber of this kind, for which we can all be incredibly grateful. I also join all noble Lords in welcoming the noble Baroness, Lady Hunt, and marvelling at such a spectacular maiden speech. I think she described your Lordships’ House at its best as demonstrating courtesy, consideration and a determination to do the right thing. All of this could be said of the noble Baroness, both in her former career and in what will no doubt be a wonderful career as a legislator in your Lordships’ House.

I also take great pleasure in welcoming this Bill, as the Opposition did when it was first introduced in the other place. I thank the Minister for returning with the Bill and the way in which he spoke about it, with great humility and reason. Both have been features of the debate in general. However, I have occasionally worried that some of your Lordships have thought of this Bill as a deliberate or perhaps accidental slight on marriage, or a measure which seeks to undermine or trivialise marriage, or facilitate divorce for those who do not take their obligations, promises, covenants and faith seriously. I think that is a misunderstanding of the legislation as it is and as it is intended.

It was WH Auden who famously and rather beautifully compared the law to love in the poem “Law Like Love”. It might be a beautiful poem, but none the less, it is very difficult, if not impossible, to legislate for love. What we attempt to do instead is legislate to protect people. I understand that law has a moral content and that we are concerned about sending signals to people through the law, but the primary, practical purpose of legislation is to protect people. That means protecting people when they get things wrong, screw up and break their covenants, or when the act of faith was in error or made in good faith but things went wrong. It seems to me that no-fault divorce is a no-brainer, for all the reasons eloquently set out in this debate. Unhappy, miserable and traumatic though it is—the great leveller of misery across society—divorce is neither a crime nor a civil wrong. It is a trauma and a very unhappy thing and we should not prolong the agony.

Divorce is neither a crime nor a civil wrong, yet within it, crimes and wrongs take place. We should act to protect people from those crimes and wrongs, particularly the vulnerable and victims of domestic abuse. I have noticed that in the many submissions that we have all received in relation to this Bill, the bulk of those working with vulnerable women and victims of domestic abuse, in particular, seem to support this legislation. That is to be taken seriously, and certainly as seriously as any poll based on percentages of the population as a whole. I am prepared to accept that many, or perhaps the majority of, people believe that there is fault in divorce, but that is because there was fault in their divorces. We can recognise fault without it being enshrined in law in a very unproductive way, prolonging the agony or, as the noble Baroness, Lady Shackleton, said, picking over the carcass of a marriage. I noticed that in some noble Lords’ remarks, there was a reference to broken homes. But homes are broken within marriages, as well as by divorce. Locking people into a legal relationship when they do not want to be there is not a practical or sensible legislative policy.

I was particularly charmed, as I often am, by the remarks of the noble and learned Lord, Lord Mackay of Clashfern. Listening to him, one can well imagine why he has had such a happy union for 62 years—yet there was no hubris, just humanity, compassion, reason and practicality about how to protect people, rather than promote a morality that does not always succeed in practice. There is a difference between the world as we want it to be and the world as it is; between humans as we want them to be and humans as they, sadly, too often are. For the most part the law should deal with the latter, particularly with that aim of protecting people.

I broadly and warmly support the Bill but in relation to some people’s concerns about the vulnerable, and whether it might undermine rather than protect them, I would predictably remind your Lordships of the cuts in the justice system and how those have affected family law, in particular. There is especially the fact that since 2013, legal aid has been removed from divorce cases. That is a terrible mistake if one is trying to protect abandoned people and children, and be equitable in relation to resources and so on. I really urge the Minister to reflect on that as much as he can, and speak to his colleagues about whether, in this new moment when people want to support the vulnerable and hold people to their obligations, it can be fair or right that those who cannot afford a lawyer will not get the protection of the law. That is whether it is in relation to pensions or access to their children, or to the other horrible things that people argue about at this traumatic time in their lives. We can craft the most perfect divorce legislation but it will be a dead letter—a sealed book—if people do not have access to early and consistent advice and representation, so that everyone can benefit from the kind of wisdom and expertise we heard from the noble Baroness, Lady Shackleton, this evening. That must be the right thing.

As I said, I have been particularly moved by the charities and NGOs which work with the vulnerable and support this legislation. They know what they are doing; they deal with these people at the sharp end. In addressing other concerns, can the Minister say something about what the Government plan by way of additional support, beyond this legislation, in public education, advice and so on for people going through these most difficult times? It should be not just legal support but counselling, too, and not just counselling in crisis but—as once more recommended by the noble Baroness, Lady Shackleton—much earlier in life. There should be guidance and education about the inner self, and about what a relationship of such gravity looks like; what it means and what it takes. It may not be that divorce is too easy. It may be that marriage is taken by some too young, too lightly and with the wrong person. That might be a better target for action than trying to lock people into an already broken home.

There are so many other pressures on families in breakdown, as described once more by the noble and learned Lord, Lord Mackay, such as inadequate finance or social housing. All sorts of other social infrastructure are needed to back up the unit of the family. The family is a vital building-block in society but there is such a thing as society outside the family, and families need support.

On the concerns expressed by noble Lords who were less than supportive of the Bill, I think that many of these things can be looked at outside the legislation. I share some of the concerns expressed about online divorce procedure in particular. In responding to this debate, perhaps the Minister might comment on the Law Society’s recommendation in particular, given that there are risks associated with online divorce procedures as opposed to divorce of the more conventional kind. I am concerned about relying on online legal provision rather than advice, representation, judgment and so on.

Generally speaking, it is a great pleasure to be on the same side as the noble and learned Lord the Minister for once—perhaps for the first time, I do not know, but maybe and hopefully not for the last—and to have heard the general humanity, humility and often wisdom and experience that your Lordships have brought to this debate. I commend the Bill as a start, as a part of the kind of process that the noble Baroness, Lady Shackleton, welcomed and advised. I hope that we can, if necessary, improve the Bill but do so in a cross-party, non-party and constructive spirit.

Streatham Incident

Baroness Chakrabarti Excerpts

Monday 3rd February 2020 Lords Chamber

[Baroness Chakrabarti (Lab)]

My Lords, I am grateful to the Minister for repeating that Statement—a difficult duty in very difficult times. I join him in his tribute to our emergency and health services, and in his sympathies with those recovering from this terrible incident.

I hope the Minister will be able to acknowledge the pre-eminence of resources to deal with the threat that we face. He mentioned a number of responses that the Government are considering and/or planning, but resources are required to do anything significant in this area, whether in relation to the prison system, which is under strain, as has been discussed in your Lordships’ House over many years, in relation to the probation service, which is designated with engaging with people who have been convicted, or in relation to precursor terrorism offences or other offences. This also applies, of course, to policing and to our agencies. Nothing that any Government of any persuasion may legislate for can be achieved to “keep our people safe” without putting significant resources into a system that has been under pressure for some time.

In relation to the privatisation of prisons and probation, the issue is not just about resources but about accountability and the importance of those elected to govern—who have, of late, been given a significant mandate—taking ultimate responsibility for that primary duty. I am sure that Members of your Lordships’ House noticed, as I did, the Minister’s comments on sentencing. Few could have a principled difficulty with the idea that those sentenced for terrorist offences should not be released automatically without the input of a decision-maker such as the Parole Board. That, of course, involves significant resources, not just for the Parole Board itself but for those who must engage—by not just isolation but engagement—within the prison system, to make rehabilitation a real possibility; currently, too many of our prisoners are radicalised not on the streets of this country but in the prison system itself.

I also noticed in the Statement more than a hint that the sentencing legislation to come, perhaps on an emergency basis, might well be retrospective in its effect. I hope that the Minister will be prepared to comment a little further on the legal dangers of embarking upon extending the incarceration, or changing the sentence, of people who have already been sentenced. This a very serious principle, under not only human rights law but the common law of this country. Can the Minister give us some comfort, or at least some further explanation, as to why it is necessary to prioritise retrospective legislation—if I have that right—or to extend the sentences of people already convicted, sentenced and incarcerated?

There was also a hint in the Statement—understandably so—about people who will come to the end of their sentence one day or, indeed, as those of us who have dealt with these matters before will know, about people who have never actually been convicted of anything. I would sound a note of caution about a well-trodden and dangerous road that has been embarked upon in the past, in this jurisdiction and elsewhere, of restrictions on liberty, or punishment, or preventative measures, without charge or trial. Such measures bring dangers not just to the rule of law but to counterterror efforts themselves. I ask noble Lords who are just as experienced as I am—or more so—in these matters to consider the dangers of such a path. Have we not learned the dangers of injustices and perceived injustices that recruit and radicalise more people than they ever deter?

The Minister was quite right to express caution about commenting too much on this individual case, which must of course still be subject to intense examination and review. I hope that, in time, your Lordships’ House will be provided with a fuller and more thoughtful review and consideration of what happened in this case, so that there might be some learning in relation to all the matters we have discussed, including how this young man went down the path he did, and how he was engaged with in his younger life, including within the prison system. This is not to detract from the heroic efforts and courage shown by those who put their lives on the line over the weekend, or members of the public who, as always in this great capital of this great country, responded with stoicism, courage and unity.

[Lord Beith (LD)]

My Lords, I thank the Minister for repeating the Statement. This was a very serious incident; our thoughts are with the victims. It could have been much worse but for the rapid action of police officers. We should also recognise, as the noble Baroness, Lady Chakrabarti, did, the contribution of members of the public who came to the aid of the injured.

This terrorist was released by an automatic process which falls short of what we need to do to protect the public. We agree that, in future, release of those convicted of terrorist offences before the end of their sentence should require an assessment by the Parole Board, which will need the resources to do this. The Government have given some indication that they may give these. However, that is necessarily quite a limited thing, which will not in the end make a fundamental difference to the fact that most of these people will eventually come out of prison—a point which I will come to in a moment. If, for example, we have a terrorist conviction for possessing or distributing literature, the amount by which the sentence would be extended, from half to two-thirds, would be small as a proportion of a shorter sentence. In presenting this matter to the public, we should be clear about its limits. Is the Minister telling us—this is the point about retrospection that the noble Baroness referred to—that existing sentenced prisoners currently able to get release on licence at the halfway point will have their custody extended to two-thirds even if they are given a positive review in the Parole Board assessment? That seems to be not only retrospection but punishing prisoners for what others have done while they are inside.

The key point is that most of those we sentence for terrorist offences will eventually be released, so we have to deal with the risks. We need more resources to go into deradicalisation programmes in prisons, using any available expertise from other countries which have also been on this path. We need far more staff in our prisons, trained to deal with these prisoners. I do not think many people in the prison system would recognise the rosy picture tucked away in the Statement of life in our prisons. They house far more prisoners than they are built or staffed to hold, mainly because of longer sentences for a range of non-terrorist offences, which make prisons virtually unmanageable. We need rigorous management of terrorist prisoners, who all too often become members of a radical subculture in prison, which provides recruitment and training for terrorism and inspires the worst kind of fanaticism. When these prisoners are released, we need to be sure that they are supervised by properly financed probation services, police monitoring and, where justified, close surveillance and the involvement of the security services. We look forward to the Jonathan Hall review of multiagency co-operation, which is essential to dealing with this problem.

Finally, this House will want to look carefully at the legislation referred to in the Statement, because it touches on some important civil liberties issues. We must not let the terrorists destroy liberties which we all prize.

Release of Prisoners (Alteration of Relevant Proportion of Sentence) Order 2019

Baroness Chakrabarti Excerpts

Wednesday 22nd January 2020 Lords Chamber

[Lord Hogan-Howe (CB)]

My Lords, I have always been a fairly hard-nosed enforcer in terms of policing and thought that punishment was really important as part of a sentence. However, I am not sure that I support these measures. With around 85,000 people in prison, there are far too many already.

Prison broadly fails. Having 85,000 in prison is at least one mark of success of the criminal justice system. It is often complained that the police arrest no one, the Crown prosecutors charge no one, the courts find no one guilty and even if they do, they never put them in prison. Well, 85,000 people got there somehow, and they have been increasing in large numbers over the last 30 years, so I think that, by one measure, we ought to have confidence that the criminal justice system can work.

But I am afraid that the prison system is failing. It has failed because the proportion of people who commit offences within two years of release is well over 80%. It is the least effective form of preventing recidivism of all the forms we know, and it is the most expensive. Of those who go into prison, two-thirds have a drug habit, but by the time they leave 80% do. One of the most secure places in the country cannot stop drugs getting in, it appears.

My brief final thoughts are these. It seems to me that if we are to take this measure—and I understand why there is some intuitive support—then there have to be some of the counterbalancing measures that some noble Lords have discussed. First, we have to look at sentencing guidelines. These have always drifted upwards. I cannot remember the last announcement from the Government that said, “This prison sentence is far too long, and it is about time we reduced it.”

Secondly, the only people who think that prison is a pleasant place are people who have never visited one. Whether it is four, six or eight years is almost immaterial, but there needs to be honesty in sentencing. What happens now is that people are announced to be going to prison for 14 years when what is meant is that you are going for seven and, in the event that you misbehave in prison, you will stay for 14. It is far better to be honest and transparent in those announcements.

Thirdly, I would invest in technology post release, such as the sobriety scheme we discussed briefly yesterday that monitors people’s alcohol intake, their drug intake and sometimes, perhaps, if they have a mental illness, whether they have taken their medication. These are things that really can have an impact on release.

Finally—and this may seem to be an abstract point, but I think it is really important—one reason we are having so many difficulties, I am afraid, in controlling our prison population is to do with the corruption of some of the staff. I do not say that they are all corrupt, because that would be very unfair, but I am afraid that the Prison Service lacks a prison investigation command. The last Prisons Minister did instigate a prisons intelligence system to look at corruption, but it is no good having intelligence that no one is going to investigate. Many of our prisons sit in rural areas with our smallest forces, and they do not regard it as a priority to look at prison staff corruption and see whether there is a criminal act taking place. I urge the Government to look at that seriously.

Perhaps if we were able, even if we were to extend the period before a licence is considered, to reduce the overall prison population by changes in sentencing, the savings we would make could be invested in some of the things we have all talked about today. It would be wise to make sure that we are safer in the future and that we have a more liberal approach to the detaining of people who are, at the end of the day, convicted of serious offences.

[Baroness Chakrabarti (Lab)]

My Lords, I can be short, as a small mercy to the Minister, because so much has been said with such force in this debate. As was alluded to earlier, there is so much said about the democratic deficit of an unelected second Chamber, but the one thing we might occasionally say in return is that this is a place where it is possible to have a thoughtful, rational, dispassionate and at times passionate debate about law and order, including what works and might work, including rehabilitation and some of the other concerns that have been so well expressed today. It is invidious to pick out a particular speech, but the noble and learned Lord, Lord Garnier, will have to forgive me: he will not thank me for saying that he was perhaps the greatest Conservative Justice Secretary or Home Secretary that we never had.

I can adopt a lot of what has been said, with perhaps one slight distinction. If this were proper populism, why would the dial be moved from the 50% point to the two-thirds point? Will that really satisfy any proper populist instinct in the population? If this is really about chasing headlines, the difference between automatic release at the 50% point and the two-thirds point will not work for very long. If this were to be a proper “hang ’em, flog ’em, throw away the key” kind of policy, or if it were about what was once called honesty or transparency in sentencing, why have automatic release at all?

The Minister quite rightly addressed the value of early release in allowing a period of supervision in the community. I suggest that it also incentivises good behaviour in prison and engagement with regimes that can help cut reoffending post sentence. But that kind of incentive is achieved by a discretionary release, not by automatic release.

As always, I have the words of the noble and learned Lord, Lord Judge, ringing in my ears, as they are designed to do. He quite rightly pointed out that Governments of both persuasions have at times conducted an arms race on law and order, including sentencing. One of the consequences is that you have long sentences to chase the headlines and then automatic release because of overstuffed prisons. That is a ratchet which both sides in politics have contributed to in recent years, and it is not desirable going forward.

If this were proper populism, it would be about complete transparency and no early release. If it were more enlightened, it would be about discretionary release for more serious offenders; however, again, you would then need resources for the Parole Board—or whoever the decision-maker would be—to determine on a case-by-case basis whether people are safe for release.

I have caught the eye of the noble Baroness, Lady Newlove. She and I know from other debates and tragic cases the dangers of releasing dangerous people early in terms of the ramifications for subsequent victims and so on. It is not wrong of the public to be concerned about that. Building public confidence in sentencing is not populist per se, if we build that confidence properly by reducing reoffending. We have heard from all sides of this House how this measure is not likely to reduce offending.

The noble Earl, Lord Attlee, said that he takes issue with debates about austerity. Fair enough. We do not need to do that in this debate, because on the Government’s own case this measure will, I think, cost £680 million. The question in my mind is whether this is the best way to spend that £680 million to protect people, look after victims and make the country a little safer.

I hope noble Lords will forgive me, but we should consider this given the current state of the criminal justice system—and not just the prisons. I know that the contribution on this of the noble Lord, Lord Hogan-Howe, was slightly light-hearted; we do not really measure the success of the criminal justice system by how many people are in prison, not least when rape victims are feeling so let down at the moment and we have, I think, the worst conviction rates on record. I ask myself what £680 million could have done if directed towards rape investigation and prosecution in particular, given how difficult they are.

I do not want to pretend that this is the most fundamental principle being breached by this instrument because, as I say, whether it is automatic early release at 50% or 75% of your sentence, this is just a wasted opportunity. It does not seem at the moment to sit in a broader context of an enlightened approach to these matters.

For reasons that I consider deeply painful and unfortunate, this Government now have a really huge opportunity, if they choose to take it, to turn down the ratchet on law and order. They do not need to play to this imaginary or real gallery. They have an opportunity for some considerable time to change the debate on law and order. That is not to deny public concern about crime but to meet that concern properly, not with a headline or by moving the dial on automatic early release from the halfway point to the two-thirds point but to investigate and work to reduce reoffending, including by investing in community orders and so on and so forth.

This order is therefore a wasted opportunity. I hope that the Minister will not consider it an irritation or an impertinence that some remarks have been made robustly; I do not believe it is because anyone believes that a populist heart beats inside him but because this House, of all places in public debate, cares very much about trying to change the discourse and policy in law and order and about doing something positive with the platform that we have.