Inheritance and Trustees’ Powers Bill [HL]
Baroness Hamwee Excerpts(12 years ago)
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Lord Lloyd of Berwick (CB)
My Lords, in his very helpful letter of 30 January 2014, the Minister referred to the amendment moved by the noble Viscount, Lord Hanworth, at a meeting of the Special Public Bill Committee on 16 December. He indicated that the present amendment is to the same effect.
These things go out of one’s mind so quickly that I have had to refresh my mind as to what took place at the two meetings that we have had. At our previous meeting on 13 November, the noble Lord, Lord Beecham, asked why the fixed net sum should be reviewed only every five years and not annually. The noble Viscount, Lord Hanworth, strongly supported that suggestion. Professor Cooke said that she would look into why the Law Commission had come up with the figure of five years in the first place. In her letter of 28 November, she explained the Law Commission’s reasons: on the evidence that it had received, five years was a compromise figure.
By the time of our next meeting on 16 December, the noble Viscount had drafted his amendment, but it contained two, quite separate features. It contained, first, the requirement of an annual review such as we had discussed at our first meeting, but it also contained the new feature of a compulsory order if the consumer prices index should increase by more than 15%.
There was support for an annual increase from the noble Lord, Lord Beecham, but doubts were expressed by the noble Baroness, Lady Hamwee. I took the same view as the Law Commission; in other words, that an annual review was too frequent, certainly if it led to an annual revision of the fixed net sum. There was very little, if any, discussion of what is now before your Lordships; that is, the proposal for a compulsory review if the index rose by more than 15%—I think that a passing reference to it was made by the noble Lord, Lord Plant.
In due course, the noble Viscount sought leave to withdraw his amendment, but said that he would come back on Report. It is now proposed by the Government that we should accept the second half of the noble Viscount’s amendment but not the first—I think that I understand the Minister right in saying that. There is to be a compulsory review if the consumer prices index is increased by 15%, but there is to be no annual review.
My only concern is that this new amendment now before your Lordships, confined as it is to the compulsory feature, was not considered in any way by Professor Cooke—at least not to my knowledge. However, it seems a sensible amendment, and I cannot imagine the Law Commission, had it been asked for its views, having any objection. It makes sure that the Lord Chancellor will in only limited circumstances be, as it were, brought up to the mark, even though he will then—again, if I understand the noble Lord correctly—have discretion as to the amount. In my view, this represents an improvement to the Bill and I therefore support the amendment.
Baroness Hamwee (LD)
My Lords, I will not be the only person in the Chamber this evening who remembers when mortgage interest rates were 15%, and very painful they were too. I have one question for the Minister, relating to the term “available” in proposed new paragraph 3A(1)(a). When does the figure become “available” within the meaning of the provision? Does it mean published or “available” to the public? The figure must be available to others privately before it is published. I do not know whether it means published in the sense that the consumer prices index uses the word “published”, but we need to be clear about how one identifies when a figure becomes available.
Lord Beecham (Lab)
My Lords, in Committee, I raised a number of issues and said that I would consider the position further before Report. I took advantage of seeking advice from leading counsel, Mr Nugee, who gave evidence to the Committee. I have to say that he received the same fee for his services as the Minister receives for his in his present capacity, and I am obliged to Mr Nugee for his advice. Having considered it, I am not proposing any further amendments today. He would perhaps be inclined to support such amendments but, taking things in the round, thought that the position that had been reached in Committee was reasonable.
We are discussing an amendment stemming effectively—I agree with the noble and learned Lord, Lord Lloyd—from the contribution of my noble friend Lord Hanworth. As I said to him just before we entered the Chamber, he has the law in his genes because his grandfather, the first Viscount Hanworth, was Attorney-General in the coalition and subsequent Conservative Governments in the early 1920s. Clearly, he has inherited that gene and deployed it to some effect. I have no difficulty with the amendment that the Minister has moved, but I have one query.
In Committee, I moved an amendment to Clause 1 which did not succeed because it referred to simple interest. Are the amendments now being proposed compatible with Clause 1 as it now stands, which appears to provide for the interest rate referred to in paragraph (B) of case (2) of the table to be the Bank of England rate? I may have misunderstood the original effect of Clause 1 and the amendment. I assume, but perhaps wrongly, that Clause 1 deals with the situation that the amendments now seek to modify. I just hope that the provisions are compatible but that, if they are not, perhaps by Third Reading we might have the necessary change. On the face of it—again, I may have misunderstood the position—the two are to some degree in conflict.
Lord Faulks
My Lords, I am grateful for the contributions to our short debate on this and for the thorough contributions to the Bill Committee which discussed these important, although relatively obscure to some, provisions.
The noble and learned Lord, Lord Lloyd, referred to the fact that Professor Cooke had not specifically considered the question of the 15% trigger. I can assure him, and the House, that she has now considered it and approves the amendment, which has her blessing as well as that of the Government. The Government think the 15% trigger is high enough to ensure that the level of the statutory legacy is adjusted only where there has been enough of a rise in inflation to warrant it. I, too, remember the days referred to by the noble Baroness, Lady Hamwee.
In answer to the question raised by the noble Baroness about the word “available” in new paragraph 3A of the amendment, this refers to the Statistics Board publication of the consumer prices index for a particular month. The index is published on the website of the Office for National Statistics. The monthly publication dates are published a year in advance.
I turn to the query of the noble Lord, Lord Beecham. Clause 1 refers to the interest payable on an unpaid statutory legacy. New Schedule 1A refers to the level of the statutory legacy overall. I understand that the different rates apply in different circumstances and are compatible. We will take cognisance of this matter and refer it back at Third Reading if there is any residual doubt on it.
Baroness Hamwee
My Lords, before the Minister finishes, I will test the patience of the House and say that I understand his common-sense answer, which was what I expected. However, I am not completely convinced that the Bill, incorporating this amendment, actually says that. I will leave that with him, as it is not very sensible for the noble Lord, Lord Ahmad, to go to and from the Box to answer a rather technical question. However, we are all such pedants in this Chamber that I know we all want it to be correct.
Lord Beecham
I follow the noble Baroness to take a little further our discussion on the impact of Clause 1 and the amendments. If I understand the noble Lord correctly, there are two situations. One will be governed by one rate of interest, as specified in Clause 1, and the other will be covered by these amendments. This raises a further question of why there should not be consistency, in terms of the interest to be calculated, in respect of what appear to be two separate situations. If they are not separate situations, there is a degree of confusion; if they are separate, there needs to be a rationale for having two different rates of interests. I invite the noble Lord to consider that before Third Reading. It may or may not need tidying up. On the face of it, there seems to be something slightly awry with the position we will be in when the amendment is passed.
Criminal Legal Aid (General) (Amendment) Regulations 2013
Baroness Hamwee Excerpts(12 years ago)
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The Earl of Sandwich (CB)
My Lords, I am extremely honoured to be in this learned company and I will try not to take too much time because everything has been said.
We have been here before. I spoke in the debate of the noble Baroness, Lady Deech, as did many other noble Lords. On that occasion, I mentioned the work of the CAB. But today, like others, I am much more concerned about the effect of these regulations on young people in difficulty, including asylum seekers in detention, unaccompanied minors and even young people released from prison and wishing to make a new life. These young people would normally benefit from professional legal advice at a critical stage in their lives when they are separated from their families or being made homeless at the moment of leaving prison. Specialised agencies such as the Howard League mentioned by the noble Lord, Lord Carlile, have given hundreds of people not just hope but essential practical advice on restarting their lives. This kind of work, as the noble Lord, Lord Ramsbotham, said, characterises fairness in our society. It is not charity.
I notice that the Minister has been a member of the Select Committee looking at mental capacity, so he will be more aware than most of the special problems of the mentally ill already mentioned. Many of those people are in prison through no fault of their own. I said in the legal aid debate that those with mental health problems were especially vulnerable. There were no exceptions for children nor for prisoners accepted to have a disability. A detained child unable to identify legal issues will not have the financial resources, let alone the intellectual resources, to pay for lawyers or even to frame their complaint to the prison authority, as is suggested. That is a serious point that the Minister has to answer. It would be a serious personal crisis for young people.
A case of a 12 year-old boy was mentioned to me by the Howard League. He was an unaccompanied minor who had been detained in a secure children’s home. He had behaved well, earned himself early release and had sought help with resettlement. The lawyer concerned approached social services but only then discovered through an interpreter that he had been wrongly detained in the first place and had to appeal against his sentence. None of this will happen if cases are not referred in the future and legal aid is unavailable.
Last September, there were 1,789 immigration detainees spread across the UK in removal centres and short-term holding facilities simply waiting to be removed. Many are moved from place to place and I doubt if the Minister or anyone else can keep count of how many of them are young people. I heard from a Member of Parliament last week that one young detainee, originally from his constituency, had been moved eight times. Mental health problems loom large in these situations because no one knows when they can leave or even when they can receive a hearing. Detainees depend heavily on outside advice. This may be a subject for the Immigration Bill next month, but it is surely highly relevant to the present regulations. Is it fair to exact cuts that will impinge on young people in these conditions and restrict their lives even more than at present?
It is true that the Joint Committee on Human Rights accepted that it was legitimate for the Government to introduce a residence test, as the Minister may mention, and to restrict the scope of prison law funding. But it strongly recommended that there should be more and broader exemptions from these proposals to make it less likely that they will lead to breaches of the fundamental right of effective access to justice.
What is especially unfortunate, as the noble Lord, Lord Pannick, mentioned, is that young people in prison had been receiving much better attention over a long period. For example, the Minister will know that in 2002 there was a court ruling that the welfare and child protection duties in the Children Act apply to children in prison just as they do to children in the community.
The amount and percentage of cuts has already been discussed. They are surely disproportionate. I shall lastly mention one piece of evidence given to the Select Committee last July. I was surprised to read that the Justice Secretary had changed his mind about equal shares in legal aid work. He told the committee he had been persuaded that competition among legal providers was more essential than advice shared equally. He said:
“That is something that the market has said to me: ‘Actually, the principle of choice is one that we regard as more important’”,
than equal shares. If the market is speaking in this way, many young people and their families are going to suffer from these regulations.
Baroness Hamwee (LD)
My Lords, the noble Earl mentioned the debate in this House last July. I looked back at that and reminded myself that the title of the Motion of the noble Baroness, Lady Deech, was “Effect of Cuts in Legal Aid Funding on the Justice System of England and Wales”. I think that that was a very well chosen title because the effect of the cuts is not just on individuals but on our system of justice.
I was not going to talk about whether this was a matter of ideology on the part of the Justice Secretary. I had a look at the transcript and am not sure that that was quite the exchange about ideological differences, but I am tempted to wonder whether that was an admission or a boast.
I want to say very clearly—though noble and learned Lords, and noble Lords who are not technically learned, have put it much better than I can—that for those who are convicted and sentenced by the courts, the punishment is imprisonment. The punishment should not extend to the loss of rights, whether convention rights or at common law.
A number of threads seem to run through the Government’s approach. The first is a reference to and reliance on judicial review. I do not need to comment on the paradox in that given the policy regarding judicial review. I was not aware of the Daily Mail article quoted by the noble and learned Lord, Lord Goldsmith. I do not think that I need to spend any time on saying how undesirable it is to rely on judicial review. But I will mention the skill that is needed, at what I shall describe as first instance, to ensure that the right points are raised and dealt with in order that there is a basis for an application for judicial review. I think that that is not a job for someone who is not trained.
Another theme which I picked up from the JCHR report is that the Justice Secretary thinks that the number of cases affected will be very small. If that is so, I do not understand why the Government do not give in gracefully. We know about the cost pressures on the MoJ. We know that the Government want to focus public resources on cases with sufficient priority to justify the use of public money and to get value for money for the taxpayer. But I know that I am not alone in this Chamber in setting justice high in my priorities as a taxpayer.
What seems to be a common theme in the responses to the Government from those who work in the sector is a mention of the “see-saw impact”—that is, cuts here meaning costs there. Concerns around mother and baby units and the cost of keeping a baby in care is one example, undermining the principles of rehabilitation and the costs associated with all that. We will all have seen and read particular cases. I shall mention one which I found very compelling—the story of a 17 year-old who was given a 36-month custodial sentence. He was studying for his A-levels at the time. With the work of solicitors, who engaged in both detailed representations and liaison with a clutch of agencies, he was granted release on temporary licence to attend college part-time and then home detention curfew, and so he lost only one year of education, not the further years which were in prospect.
Of course, there is also the cost of the loss of expertise among solicitors. I have seen, and heard about tonight, a large number of points relating to costs rather than savings. We really have not got any better, have we, at joining up and reading across budgets? I have actually been defeated—my level of energy depleted—in trying to understand the savings projected as against the knock-on costs. I hope that when the Minister—who has everyone’s sympathy in this—replies he will be able to unpack this for the House.
The third theme I picked up was the emphasis on the non-judicial complaints system. I do not see this as an either/or. There should be a good complaints system. That should then alleviate to some extent the necessity for lawyers to be involved. There should be an effective system that inspires confidence. However, there are limits to the system that we have—to the powers, to the remit, which does not extend to making recommendations to external agencies or investigating them. These concerns seem rightly to have been stressed.
We have heard, although not tonight, about ambulance chasing—if that is the right term—by some solicitors in prison, soliciting work and planting the idea in prisoners’ minds that they have real claims. However, that should not mean that proper advice, assistance and representation is not available.
I do not suppose that the MoJ has found much which it regarded as supportive or constructive in the responses to the proposed changes. The House has managed to cover quite a lot of ground, and I will end by citing a point made by the Council of Her Majesty’s Circuit Judges, which noted, according to the Howard League, that:
“The practice of prison law is so unique; its impact on the most vulnerable within society so profound; and the potential savings suggested by these reforms so limited at best, and so obscure in any event, prison law should be removed altogether from the scope of the legal aid reforms”.
Anti-social Behaviour, Crime and Policing Bill
Baroness Hamwee Excerpts(12 years ago)
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Lord Hope of Craighead (CB)
I want to add just a very few words to what the noble and learned Lord, Lord Phillips, has just said. If one stands back from this debate, everybody in this Chamber will recognise that there will be some cases, although no doubt very rare, where the state should compensate an acquitted person for the trauma, to which the noble Baroness, Lady Kennedy, referred, of being put into prison and detained there for perhaps a very long time on a completely false basis.
There are two ways of going about this. One is, as it used to be in this jurisdiction and still is in Scotland, to have an ex gratia scheme. That is, it is left to the Minister to form his or her own view in light of all the facts, without being constrained by any kind of statutory definition. In this jurisdiction—I mean England and Wales—we have departed from that and therefore we are up against the requirement of having to define in statute the nature of the exercise that the Minister performs.
The noble Lord, Lord Wigley, put his finger on the origin of what we are trying to do, which is to be found in Article 14.6 of the International Covenant on Civil and Political Rights. That states that when a final decision,
“shows conclusively that there has been a miscarriage of justice”,
the person should,
“be compensated according to law”.
There are three requirements for that: you should find that in the decision; it should show it conclusively; and it should show that there has been a miscarriage of justice. Our question is therefore what we mean by a miscarriage of justice.
I do not want to elaborate on what my noble and learned friend Lord Phillips said, but of course one bears in mind the presumption of innocence. That point emerges not just from the Strasbourg jurisdiction. As the noble and learned Lord, Lord Kerr of Tonaghmore, said in the Supreme Court in the case of Adams, on which many of us sat, the way in which the courts operate in this country does not require innocence to be demonstrated to the satisfaction of the court before a conviction is set aside. As he said,
“to prove innocence … is alien to our system of justice”.
Our methods do,
“not provide a forum in which”
that question can be examined. The question for the Appeal Court is whether the conviction was safe or unsafe.
There are some jurisdictions—the noble and learned Lord, Lord Kerr, referred to New Zealand—where a tribunal could address that issue. Of course, then it would be properly examined but we do not go that far; we do not need to because we have always believed that there was a presumption of innocence. That drives us back to the question of whether it makes sense for us to use the very words of the presumption to set out the test that is to be applied. Of course, one bears in mind the point that emerges from the European Court decisions that one should respect the presumption of innocence in the language that is used when dealing with the rights of an acquitted person.
Without elaborating, the better choice—to put it that way—is to follow the wording of the amendment that my noble friend Lord Pannick proposed, rather than the wording of the Bill proposed by the Government which has these various flaws in it that I suspect would lead to challenges one would wish to avoid.
Baroness Hamwee (LD)
My Lords, at the previous stage of the Bill, I said, not quite in these words, that I was glad to be able to follow those far more expert than I, as they did the heavy lifting on the amendment. I feel much the same today. Colleagues have said that they feel somewhat out of their depth on this subject. To that I say, “Yes, but you understand the concepts of proof of guilt and proof of innocence”. I congratulate the authors of the amendment, if that is not too presumptuous, and its mover, who seem to have found a way to achieve the Government’s aims, which as I understand them are greater certainty and to reduce costs—that is, not the costs of compensation but of proceedings.
As we have heard, there have been very few claims and fewer have been successful. It is not a matter of compensation for every failed prosecution, more for every quashed conviction—and there are very few of those. On those occasions, the sky has not fallen for the Government but it has for the individuals concerned. That is why compensation seems inadequate—I agree with the noble Baroness, Lady O’Loan, on that—but money is how we deal with it, so compensation is appropriate and important. For the integrity of the system, to which the noble Baroness, Lady Kennedy, referred, we must not let the sky fall because of the application of the test in this clause in the Bill.
Lord Cormack (Con)
My Lords, the last three-quarters of an hour has proved two things to me. One is what an immense privilege it is to be a Member of your Lordships’ House and to listen to those who have true and deep knowledge of the subject; the other is how dangerous it is sometimes to listen to the debate when one has come in with a completely open mind. What I have heard this afternoon has demonstrated to me that it will have to be a very powerful and convincing answer from my noble friend, whom I welcome to the Front Bench, if I am to be persuaded to support the Government on this.
I can claim no legal knowledge. I can, however, draw on 40 years in the House of Commons, when, during most of that time, I had two prisons in my constituency. I used to hold surgeries in one of those prisons and met many of those who had been convicted. In almost every case, it seemed to me, whether the punishment was exactly accurate or not, they were deservedly punished. However, that was not always the case. I came across one or two cases, one of which I took to the Criminal Cases Review Commission under the great Professor Zellick—this country owes him a great deal for what he did. There were cases where I knew in my bones, as they say, that the people concerned were not guilty of the offence for which they had been imprisoned.
There is nothing worse that a society which bases itself on the rule of law can do than to send someone to jail, to incarcerate someone, for a crime of which he is not guilty. I often quote the old adage which will be familiar to every one of your Lordships: it is far better that a guilty person goes free than that an innocent one is imprisoned.
As I understand it from the erudite and persuasive speeches to which we have listened, we are talking about how we treat individual human beings and how we, as a society based on the rule of law, deal with those who successfully appeal against their convictions. No one can measure in financial terms the anguish, the destruction of life, that incarceration for a crime one has not committed inflicts not just on the individual concerned but, in the case of one prisoner I have in mind, his family—his children and wife. His marriage was ruined, his career was destroyed, his business was destroyed. You cannot adequately compensate for that. You can have laws which make it possible in some tiny measure to recompense for the anguish that society has inflicted on the unjustly imprisoned person.
What I have heard this afternoon makes me utterly convinced that it should not be up to that individual to be able to demonstrate beyond any doubt that he or she is innocent. After all, in some cases—one or two have been cited this afternoon—that person will have been in prison for a decade or more. Most of the material witnesses to the event may be dead or have dementia, or something. How can you prove innocence? If the conviction is so unsafe as to restore to life—one thinks of The Tale of Two Cities—someone who has been imprisoned for a very long time, we should err on the side of generosity and not place further tests on them.
We have heard from some of the most eminent lawyers in our land this afternoon. They have spoken with quiet passion but total conviction and I believe that we should heed what they have said. I hope that my noble friend, who is newly on the Front Bench, but very deservedly so, will be able to show that he has reflected and that we will be able to make some real progress by not altering the law in the way currently proposed but heeding the wise words of the amendment moved so eloquently by the noble Lord, Lord Pannick.
Anti-social Behaviour, Crime and Policing Bill
Baroness Hamwee Excerpts(12 years, 3 months ago)
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Baroness Hamwee
Baroness Hamwee (LD)
My Lords, I will also speak to Amendment 9. I thought that after the previous debate on the Bill I would be faced with saying, “Follow that”, but lunch overtook us. However, it is in fact a question of “Follow that”.
Amendment 6 would alter the definition of “force” in the new provision. Noble Lords might wonder why I am worrying about that. In fact, I propose that the definition be the same as the definition in Section 63A(6) of the Family Law Act 1996—in other words, the definition for the forced marriage protection order. I had wondered why different definitions were used in the Bill and existing legislation.
I wonder that even more after the previous debate on the Bill. The noble and learned Baroness, Lady Scotland, referred to psychological means of coercion which are not referred to in the Bill but are referred to in the 1996 statute. She talked about emotional blackmail which might be exerted by members of the very observant part of the Jewish community.
My noble friend Lord Ahmad certainly used the term “psychology”. If there are intentional differences between the grounds for the two different offences—as we are calling both of them—then the Committee ought to be clear that that is intended. If it is not intended that there are differences, then, again, the Committee should be clear that that is the case.
The noble and learned Baroness, Lady Scotland, talked about “emotional blackmail”; I would include that with the term “psychological coercion”. There may be quite porous demarcation lines in attitudes and the way in which one deals with one’s children. However, trying to stand back and look at it objectively, given the emotional blackmail which she described, from what we have heard from other noble Lords and what we know from our own experience, psychological means should not simply be left aside without noble Lords addressing their minds to them.
My Amendment 9 is much more straightforward. Its purpose is merely to obtain confirmation that a habitual residence—“habitually” is the term used in the Bill—is as it is understood under the Hague convention and the case law which has developed from that. It is obviously not defined within the Bill. I believe that it is used elsewhere in legislation, although I have not been able to find it myself—although I found myself going down different byways of reading, looking at reports of cases on the internet. However, if my noble friend could confirm that, I would be grateful. I beg to move.
Lord Ahmad of Wimbledon (Con)
My Lords, I am grateful to my noble friend Lady Hamwee for explaining her Amendments 6 and 9 to Clause 108. It is important that we get the definitions of the new offences right and I welcome this opportunity to explore them in more detail.
Amendment 6 would amend the definition of a forced marriage. Clause 108 defines it as including the use of,
“violence, threats or any other form of coercion for the purpose of causing another person to enter into a marriage”.
My noble friend Lady Hamwee proposes that this should be replaced with alternative wording that, as she explains, would mirror the language used in the Family Law Act 1996 in relation to forced marriage protection orders.
The main difference between the two formulations is that the amendment refers to “psychological means”, while Clause 108 refers to,
“any other form of coercion”.
This is intended to make it very clear that the offence recognises the different types of pressure that can be put on victims. Victims are continually faced with different types of pressure in the course of being forced into marriage, including physical, emotional, financial and sexual pressures. It is therefore right that the definition of the offence should fully cover all of the behaviours that could be employed by the perpetrators of this absolutely horrendous practice. That is what Clause 108 does. On that basis, therefore, I do not believe my noble friend’s Amendment 6 to be necessary.
My noble friend’s Amendment 9, as she has explained, is designed to probe the meaning of the word “habitually” as used in Clause 108(5)(b). The clause provides that an offence is committed outside the United Kingdom if either the victim or perpetrator is a UK national or “habitually resident” in England or Wales. This means that the new law will apply, for example, in a situation where someone who lives in England or Wales is taken abroad in order to be forced into a marriage.
The term “habitual residence” simply means the ordinary residence of a person. As my noble friend alluded to, in fact, the term was introduced into English law from the conventions under the Hague Conference on Private International Law, where it was developed due to the perceived problems with establishing the domicile of some persons, in particular children. The term is commonly used in legislation without further definition and I am satisfied that that is the correct approach to adopt here. Based on those clarifications and explanations, I hope that my noble friend will be minded to withdraw her amendment.
Baroness Hamwee
My Lords, I will probe the first one a little further. Of course I agree with my noble friend that we have to cover every situation, or as he said, “every type of pressure”. However, as regards the definition, is there a distinction between the provision in the Bill and the provision in the 1996 Act? If there are differences, can we know them? He has not addressed that point. If they are the same, can we know that?
Lord Ahmad of Wimbledon
My Lords, as I said about the language to which my noble friend alluded, Clause 108 has been drafted to ensure that it clearly covers the wider range of factual scenarios that exist in forced marriage cases. That addresses why there is a difference between Clause 108 and Section 63A. Clause 108 is intended to be all-encompassing.
Baroness Hamwee
My Lords, that begs the question of whether the 1996 Act is not all encompassing. I do not want to make life more uncomfortable this afternoon—I stress this afternoon—for my noble friend, but would he be able to write to me about that, following today’s Committee proceedings? This looks like a lawyer’s point, but it is a very real one. We have already talked today and will continue to talk about the choice between the two routes. Of course, one of the factors in the choice will be if the definitions are different, and therefore if the criteria for choosing one route are not the same as the criteria for choosing the other. I gave notice to my noble friend—although probably not directly to him—of the points that I wanted to raise on these two amendments. I will not tease him about the fact that he has not told us which other legislation the term “habitually resident” is in. However, that is probably enough from me for now, and I beg leave to withdraw Amendment 6.
Baroness Hamwee
My Lords, in the Government’s response to the JCHR, they reject the proposal for an annual report but say that they will be,
“happy to update Parliament on the progress of our work in this area in due course, including as part of the normal post-legislative scrutiny of the Act”.
That is a shame. To many parliamentarians, “in due course” means something rather longer than it does in normal language—but maybe I am too cynical.
Like other noble Lords, I think it is important that what is kept under review—that is another phrase I should avoid because it also has connotations—is far more than the narrow impact of the legislation. I have written down “prevention strategy”, “safeguarding”, “professional training”, “update on CPS strategy and outcomes”, “continuing work with stakeholders”—the list could continue. As I have said before today, I am concerned at the overreliance on girls coming forward for help. Another thing that I am sure stakeholders are very aware of is the impact on the whole family, with other family members, siblings of the child in question, being at risk if they do not support the parents’ decision. There is a range of victims as well as perpetrators in this situation, and that is another thing that we need to keep an eye on.
I hope that, having had the advocacy of a number of very effective Members of this House, the Minister can be a little more encouraging than the Government were in their response to the committee.
Lord Hylton (CB)
My Lords, earlier today we had an interesting and worthwhile debate on whether it was better to deal with forced marriages by criminal or civil sanctions. In the light of that, there is a need for reporting on the effect of this legislation. I support the intention of the amendment in the name of the noble Baroness, Lady Manzoor, although the precise wording may need to be widened.
Baroness Hamwee
My Lords, I was quite right to wait for others to table the amendment before adding my name, so that they could all go first with the arguments. I tried to canter through them at Second Reading in considerable haste and will try to be quick now. I accept that the new clause is to do with compensation, not the criminal law, otherwise every overturned conviction would lead to a right to compensation and Section 133 makes it clear that that is not the case. However, what has been troubling me is that if you do not have to prove innocence at the original trial and then the matter turns on a new or a newly discovered fact, surely you would not have had to prove that. If the fact had been available at the time of the trial, this would not have changed whether you would have to have proved your innocence, which you did not have to do. I do not see that bringing in a new fact should change that at all. I do not see why that is necessary now.
The noble and learned Lord, Lord Brown, has said that this is about who should be entitled to compensation. The Government say that it is about clarity. They do not argue in any effective way that the amounts involved are such as to require a change in the law in order to save the taxpayer. The impact assessment on this clause says:
“The intended effect is to lessen the burden on taxpayers and reduce unnecessary and expensive legal challenges to Government decisions to refuse compensation”.
Those are two quite separate points. The lessening of the burden on taxpayers is very small, but legal challenges to government decisions are another matter. That goes to clarity and it seems to me—I am not nearly as well qualified as everyone else who has spoken—that the chain of cases we have has produced the clarity. The impact assessment says that we need the provisions to be unambiguous and decisions on eligibility to be more transparent. I should have thought that the cases have taken us to that point.
Lord Faulks
My Lords, I fear that I do not share the view just expressed by my noble friend Lady Hamwee that the law is clear at the moment. The number of decisions, one following another, with disagreements between judges in the same tribunal indicates the difficulty of the question and, I conclude, the lack of clarity in the test that should be applied. One of the reasons for this provision is in order to provide clarity. That, I believe, it does. The second question is whether it is appropriate and whether it offends the presumption of innocence. I am part of the Joint Committee on Human Rights and originally I took the view that it did offend the presumption of innocence. I have changed my mind, having thought about it. Although I was not often able to persuade the noble and learned Lord, Lord Brown, of anything, he has contributed to persuading me, on the other hand, of the merits of the arguments he advanced, both at Second Reading and today.
I have also had the opportunity of reading the cases of Allen v the United Kingdom and KF v the United Kingdom and I agree with the noble and learned Lord that they do not in any way require the retention of the law in its current state, or that they offend the presumption of innocence—provided, it seems, that some judge, in declining to award compensation, does not make any comment to the effect that there is any doubt about someone’s innocence.
I also respectfully disagree with the noble Baroness, Lady Kennedy, that the point of these applications for compensation is to hold the state to account. The point of the applications is to obtain compensation, and the difficult question is that of who is entitled to it. It is not an easy question, but in my submission the Government have come to the correct answer. Sadly, a few people who are genuinely innocent will not obtain compensation, which in my view, for the reasons given, is an unsatisfactory element. However, it does not involve people being deprived of their liberty; it is simply a question of compensation.
Lord Judd (Lab)
My Lords, I strongly support the amendment. I remember, on a visit to Holloway, being tackled very forcefully by a prison officer, who said how outraged she was, fulfilling her duties, sometimes quite late at night, of receiving and processing people who were being taken in to that prison after court proceedings, that only at that stage did the staff discover that there was somebody vulnerable at home. It is outrageous in any decent society that there is any possibility of something like this happening. I think sometimes that we just do not think through the consequences. Apart from the possible inhumane results, not that infrequently a vulnerable person in that situation will have been in the care of a woman or a man—it is not exclusively a matter for women—in a home that has had more of its share of disrupting influences on that child. For the child suddenly to be left in this predicament only compounds the insecurity that that child has faced in life and, indeed, could well accentuate a tendency to anti-social behaviour at a later stage.
If we are trying to reduce crime and encourage the young to forgo the possibility of delinquent behaviour, a demonstrable sense of care by society is very important. From that standpoint, it seems to me that this amendment is crucial. I will be very sad if the Minister feels unable to accept it, because I am quite certain that it must be pursued on Report. For a prison officer, who was deeply concerned, to raise the matter with me brought the point home to me all the more forcefully. It is quite shocking that this sort of situation can occur. The sooner we eliminate that possibility, the better.
Baroness Hamwee (LD)
My Lords, I can well understand the problem that individuals facing sentence may be in denial about the consequences. In what I think is a parallel example, working on adoption through the Select Committee earlier this year and talking about placements of children and whether it was right for a child to be placed away from its birth parents, we were told time and again that it was at a very late stage that other members of the birth family would come forward offering to care for the child. I do not want to leap to conclusions on how this proposal might operate, so I ask the noble Lord whether he or those involved with this campaign—I regret that I have not seen the detail—have consulted, first, the courts and, secondly, the Local Government Association about the operation of such a scheme.
Inheritance and Trustees’ Powers Bill [HL]
Baroness Hamwee Excerpts(12 years, 3 months ago)
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Baroness Hamwee (LD)
My Lords, I had friends—not Quakers—whose favourite activity of a long winter’s night, when we were all students and young lawyers in practice, was to make and remake their wills. I do not know whether they filled in the odd half an hour with the odd codicil as well. Many of us, like them, at some point in middle age, go from, “I am immortal” to, “I cannot face thinking about it”. It is no surprise that the Nuffield study used by the Law Commission reported that family circumstances and the wish to avoid family arguments, as well as having assets, is the prompt to make a will. I say “assets” rather than “wealth” because there is also awareness, particularly of the cost of housing and the positions of one’s children and grandchildren.
I was fascinated by some of the information at the back of the Law Commission report. I have to say that when I picked it up last night I thought, be careful what you wish for. The jump in the number of intestacies in the three years in the middle of the 2000s—or, as the Law Commission explains, probably deaths five years previously, when the grant was in those years—is very puzzling. The report is impressively thorough; one would expect no less.
Many people think that the law must automatically reflect what they perceive to be sensible and right, but, as other noble Lords have already said this afternoon, what you think is right may not coincide with what I think is right. I was taken by the emphasis the Law Commission put, and which the Minister has analysed and repeated, on rules, without affecting freedom of personal decision. The aim of bringing the law into line with needs and expectations reflects exactly what the law should do, but there are, as has been explored, new forms of family and some very complex permutations, given sequential marriages, step-relationships and so on. I could tell from the Minister’s speech that that is well recognised. I knew that with my noble friend Lord Marks taking part in the debate there would be no need for me to linger on the issue of cohabitation, but I agree with him on the complexity and importance of international aspects too.
I was particularly interested in the provisions for adopted children who are part of a new family. I was lucky enough to take part in the recent work of the Select Committee looking at adoption legislation. It highlighted for us the importance to many adopted young people of their sibling relationships and of the maintenance of contact with their birth siblings. The issue of different rights in the case of children of deceased birth parents, where some interests are vested and some are contingent, had not occurred to me, but I realise that it must be very difficult, both for adopters and for adoption agencies, to handle this issue. I suspect it may also be pretty difficult if adopters who have a child whose interests are contingent have children who have significantly less wealth than their adoptive sibling but, as the Minister said, this is typically a very open arrangement.
The provisions about maintenance and advancement seem eminently sensible. Given what applies to which trusts created when, I did wonder whether this might be some sort of job creation scheme for lawyers, who will all be advising their clients to make new wills. However, in defence of the profession, I did not recognise the scenario painted by the noble Lord, Lord Wills, although I accept there are bad apples in every profession. I did have a parallel thought in that I object to the market that the banks have created in wills and probate. The noble Lord, Lord Beecham, is nodding. It is a good thing that they are not as creative in their timing as the noble Lord, Lord Wills, has suggested is possible. I would be intrigued to see his solution to this. It is in the interest of solicitors—I am a solicitor, despite not having practised for some time—as well as of clients that there is simplicity. Dealing with a client at war with his family after a death in that family is stressful for everyone, including the solicitor. Some arguments can never be solved.
There will be points to probe in Committee. Along with the noble Lord, Lord Henley, I wondered about assets which are classed as investments if they are only narrowly investments. I was thinking about works of art—what a pity if they cannot be enjoyed as well as being investments. I know people who collect works of art who justify it to themselves as being an investment, but a lot of people enjoy seeing the works on their walls. I have not thought this through but I wonder whether there is any interaction here with the inheritance tax provisions, which are different for personal assets and for the assets of a trade or business. That comes from having been a partner in a firm that acted for a lot of people in the arts world.
There will be points such as that to probe but there is one that I should like to raise now. I should be glad to know before we reach Committee whether it is intended that different provisions of the Bill will come into force at different times. I appreciate that the commencement sections of a Bill really are for the geeks but it is important here to understand this, because a lot of the provisions work as part of a complete package. No doubt, along with other Members of this Committee, I soon will be off to add remaking a will to my to-do list.
Legal Aid
Baroness Hamwee Excerpts(12 years, 7 months ago)
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Baroness Hamwee
My Lords, it is entirely sensible that anyone who feels in need of legal assistance will seek it and will seek the best—the Government themselves do that. Many Members of this House have said to me, “You’re a lawyer; you must understand such and such”, which is not always true, but I say that both to declare an interest as a non-practising solicitor and to remind myself that we in this House are a very advantaged group.
What is “best” is different in different circumstances. I want to deal with one type of best. First, I will mention something that I heard earlier this week about refugees applying for family reunification, which is a right, who are unable to tackle the complicated application without legal help or who borrow from loan sharks in order to get that help. That is an example of the “underclass” to which Treasury counsel have referred.
The authors of the many and substantial briefings that we have received will be disappointed that it is not possible to include all their material. However, we have read it—I put that on the record—and, more important, so will the Government, along with the 16,000 responses to the consultation. I welcome the fact that there will be a re-consultation, which must itself give time to be real.
We used to be concerned about Tesco law; it may now be Stobart law. Although the supermarkets have established small outlets, they are small versions of the same; the specialist stores have disappeared. I want to mention the specialist firms, which have a national reach—not that they get paid for travelling. Niche providers need to be national to generate sufficient volume to be sustainable; I know that the Secretary of State is concerned about that. Many such firms have chosen to remain small so that each solicitor has the ultimate responsibility for the client and sees a case through. Being specialised gives you the ability to deal efficiently with complicated issues, to recognise core issues and to gain the client’s confidence—and it is important to have their confidence in order to give difficult advice such as whether to plead guilty. A single solicitor who supervises a number of unqualified or less qualified paralegals will not inspire that confidence. I know all this from my own experience of struggling occasionally with unusual cases.
The Justice Secretary at the Select Committee said last week that,
“the most important judge of quality is the qualification”.
That is by no means the whole of it. The CPS has also commented on this:
“There are some types of case … that require a specialist service if they are to be dealt with efficiently and fairly”.
Of course, there are specialists in a number of areas; children and juveniles have been mentioned. Among these are many that involve the state very directly: human rights, civil liberties, terrorism, the police, trafficked people, asylum-seeking children where there is a dispute as to age, challenges to the UKBA and a raft of immigration issues.
Almost all miscarriage of justice cases have involved small firms. The proposals extend, too, to the experts who often complement lawyers in complex cases involving vulnerable individuals—the interface between law, psychiatry and psychology, as has been said. We must be careful that, in reducing fees, we do not have the obvious effect on the market in relation to the experts available.
I have mentioned cases to which the state is party; I do not mean just routine crime cases. I am particularly concerned, like other noble Lords, about the combined impact of tendering and the proposals for judicial review—the state restricting challenge of the state or in other cases a sort of double denial of access to public services. Lawyers bringing weak cases no longer being reimbursed makes me wonder whether we have learnt anything from conditional fees, but there is no time for that today. Nor is there time to say anything more on the residence test than, number one, babies and, number two, it depends on whether you see tax as what you pay for the sort of society you want or as a price paid on an individual basis to gain entry to the club.
I would like to say more about whether the public disquiet that we are told about is general or whether it is about those obviously hugely wealthy individuals mentioned by my noble friend who manage somehow to qualify. I would like to say more about conflicts of interests and the market. I appreciate that both clients and lawyers must be disincentivised from thinking that there is a sort of TARDIS of a piggy-bank available for legal aid, but few think that. Most lawyers I know want to do their best for the clients, even if they become fat along the way, although I point out that my noble friend the Minister does not use that term. They want their clients not to be subject to luck-of-the-draw representation and justice and they want to train their successors and to secure the legal service for the next generation.
Offender Rehabilitation Bill [HL]
Baroness Hamwee Excerpts(12 years, 7 months ago)
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Lord Beecham
My Lords, as the noble Lord has made very clear, this amendment addresses issues both of form and substance. I entirely concur with his devastating and magisterial critique of the way the Government are seeking not merely to impose massive changes on a highly successful—indeed, award winning—public service but to do so without an evidence base, proper costings or any parliamentary scrutiny. The farce of the impact assessments has been compounded by the revelations of advice given to Ministers by Ministry of Justice officials on the risks attendant on the implementation of their policies and by the recently leaked document showing that the residual probation service dealing with high-risk offenders that is envisaged by the proposals will face further cuts in funding of 19% by 2017-18.
When the Government drove through their controversial, some of us would say disastrous, reorganisation of the National Health Service, they at least observed the proprieties and made the changes the subject of a Bill that was itself subject to scrutiny. In this case, as I have previously observed, the future of this service, so vital a part of our system of criminal justice and so important in maintaining the safety of the public, would not be being debated at all were it not for amendments emanating from the Opposition and Cross Benches in your Lordships’ House. It is astonishing, indeed disgraceful, that we read today that in their risk analysis Ministry of Justice officials have apparently stated that this Bill has been deliberately kept slim to “minimise the dependence of the reforms” on the passing of the legislation. I do not blame officials for this, nor do I blame the Minister in this House. The blame lies with the Lord Chancellor and Secretary of State Mr Grayling, whose only reaction so far, I understand, is to have ordered a leaks inquiry.
Lord Randolph Churchill famously described Gladstone as an old man in a hurry. The Lord Chancellor is a relatively young man in a hurry, but he, as I am sure the noble Lord, Lord McNally, would agree, is no Gladstone. If anything, he more closely resembles Randolph Churchill and if he continues on his present path, rushing on with eye-catching gimmicks and policies which have attracted the deep concern of the senior judiciary, such as those on criminal legal aid, judicial review and court privatisation, his political career is likely to end in the same way as Churchill’s.
It is characteristic of this Lord Chancellor that he proposes to begin to implement the changes he seeks as early as the end of August this year. What answers does he give to the questions raised by Her Majesty’s Chief Inspector of Probation in her response to the consultation? Many of these relate to the payment by results scheme to which we will turn when we debate the next amendment, but what is the Government’s reply to Liz Calderbank’s concern that the process of advising the court and Parole Board on sentencing and licensing conditions will require increased investment because more full pre-sentence reports will be required where cases will be referred to the private sector for supervision?
She suggests that a more mediated approach to supervising short-sentence offenders, which all of us welcome as a proposal in the Bill, would facilitate the better use of scarce resources. She is concerned that the proposed move to national commissioning instead of by 35 probation trusts,
“could be at the expense of the local perspective”,
cutting across promising developments in partnership work and disrupting successful partnerships with probation trusts. She refers to an issue raised in Committee about the position of small voluntary organisations in a commissioning framework dominated by large private sector providers, the fragmentation of responsibilities and a duplication of work. As she points out, the changes will effectively be irreversible once implemented. Do the words and warnings of this highly experienced public servant count for nothing?
The Lord Chancellor is promoting this agenda in the spirit of the promoters of the South Sea bubble, one of whom, it will be recalled, advertised a project,
“for carrying out an undertaking of great advantage but nobody to know what it is”.
Well, we know what it is, but we do not know what it will cost or whether it will work, and neither do the Government.
Under the Government’s appalling proposals for criminal legal aid a defence advocate will be paid the same fee for a guilty plea as a not guilty plea. The salary of the noble Lord, Lord McNally, I am happy to say, will be the same whatever the outcome of this debate. Nevertheless, I advise him to plead guilty, accept the amendment which would allow a proper consideration of the Government’s proposals, their benefits certainly alongside the risks and costs, and get it over with.
Baroness Hamwee
My Lords, I share the frustration that has been expressed about this Bill not being about what we want to talk about and, indeed, diverting us from the important aspects of rehabilitation. I know we all share the objectives that have found this legislative form even if we do not all agree on the form they have taken in the Bill.
Being rather boring, I want to address the amendment as it is tabled and ask a couple of questions of the noble Lord when he comes to respond, if not of my noble friend. First, although this sounds quite counterintuitive, is there such a thing in legislation as the probation service? The Offender Management Act 2007, which is what I understand the changes which are being described are based on, talks about probation provision, probation purposes, probation service, but not the probation service. Secondly, again looking at the 2007 Act, have the proposers of this amendment taken into account the provisions within the Act for affirmative orders? Section 5(3)(c)—I know this is not the sort of speech that holds the House, certainly without me handing out programmes—provides for the purposes of a probation trust to include a purpose specified in regulations made by the Secretary of State. Those must be made, we find later in the Act, by affirmative resolution. Section 38(2)(a) is about amending, repealing or revoking an enactment and this again requires an affirmative resolution. As I said, being rather tedious, I am struggling a little with the form of the amendment and in understanding quite how it would apply in taking forward the points that have been made by the two noble Lords, given that I think we have to base what we are doing on the existing legislation.
Lord Elystan-Morgan
That, I think, is a very narrow and technical point. It may well be that, if Amendment 1 had referred not to the probation service but to the probation system, it would have been unexceptionable, and a very short, simple manuscript amendment would probably bring that result about.
As for the present amendment, I wholeheartedly support it, and it is all the more relevant now, on account of the earlier amendment being passed and incorporated in the Bill.
I was somewhat surprised by the Minister’s attitude to the amendment, and to the noble Lord, Lord Ramsbotham. If anyone has served the public interest with great, dispassionate and conscientious commitment in so many fields, it is he. It is entirely wrong that he should be listed with the “bad lad” wreckers such as me, who may sometimes be accused of having a somewhat subjective neutrality on the Cross Benches.
The noble Lord, Lord Beecham, referred to Punch and “Dropping the Pilot”, but I am thinking of another well known Punch cartoon, about the curate’s egg. The Bill is good in parts, but is thoroughly rotten in others. It is good and splendid in what it seeks to achieve, which is somehow or other to rid society of, or at least to ameliorate, the curse of reoffending. I have already cited, in an intervention on the noble Lord, Lord McNally, the National Audit Office’s figures, which he accepts. In 2010, the parameters were from £9.5 billion to £13 billion. The noble Lord now says that they are from £9.5 billion to £14 billion. That is apparently the point, in relation not only to the earlier amendment but to this one, too. He says that if there is a reduction of 5%, 10% or 20%, we will obviously achieve a massive public saving.
However, why must we assume that we shall make that saving? The probation service, which is now about 100 years old, is one of the most distinguished public services that this country has ever had. These changes are the greatest ever conceived for that service, and have the capacity to wreck it and emasculate it completely. If we get them wrong and they are failures, and if that, not unnaturally, results in more reoffending, we could be talking in terms not of saving millions but of the possible loss of millions, or even more. Why should we automatically assume that there will be a saving? The Minister may say, “I am assuming that because I believe the transfer of 70% of the probation service to private enterprise will succeed”. Why is anybody entitled automatically to come to that conclusion?
I have spent a great deal of my life in the courts, as a solicitor, a barrister, a recorder and a circuit judge, and I believe that the probation service is a Rolls-Royce service. Indeed, the evidence supports that. Of 35 units —I think it is 35—four were classed as “excellent” and all the others as “acceptable” and “good”. There could be no better bill of health, so there is no justification for the changes on that basis. This is a sortie into the dark—a voyage into uncharted waters. It may be successful; I will not argue that transferring those responsibilities to private entities carries an absolute guarantee of failure. What I am saying is that there is a huge danger, and there are huge question marks over exactly what could happen.
One problem that I foresee involves the probation service’s present quasi-judicial functions, in reporting to the court that there has been a breach. A decision has to be made on how to balance a number of factors against another set of factors—a decision that sets the machinery in the courts in motion. How can lay men, however well tutored in the short term, ever achieve that sort of expertise? How can there be confidence in the exercise of that quasi-judicial function?
Here we have the most massive upheaval that the probation service has ever seen in its 100 years’ existence. We are running massive risks, and everything must be done by this House to try to reduce those risks and to see to it that the laudable motivation behind the Bill, of reducing reconviction rates and all that emanates from that, is given the best chance possible. That is my plea. If I am to be labelled by the Minister as a wrecker on that account, I plead guilty and do so with pride.
Baroness Hamwee
My Lords, my noble friend the Minister will know that I have been concerned about a payments-by-results service, not least because of the threat, as I see it, to innovative, interesting, small-scale provision which is delivered so effectively by a number of organisations that are very often—because this is the way with the voluntary sector—working on something of a knife edge. I have had reassurances, which I have very much welcomed, about the financial arrangements being such as to support small organisations which—I do not want to be pejorative towards them—may feel that they are lurching from month to month not being entirely certain that their income is sufficiently stable. They are also at a disadvantage compared with bigger organisations when it comes to a bidding war. There are a lot of sectors where some sort of beauty parade is undertaken. Sometimes, the money gets spent on the beauty rather than the content, and that is what wins the contract. I say again that I have heard reassurances about support for small organisations for part of the bidding process.
I want to take this opportunity to ask my noble friend for reassurance about something that struck me only earlier today. It is entirely likely that large outsourcing companies—we know the various names—will bid for some of the contracts. We also know that the proposed changes to criminal legal aid are likely to mean that the same large organisations may, through different parts of their workforce, bid to undertake solicitors’ services under the new legal aid contracts. What occurred to me was the danger of a conflict of interest, whereby two parts of the same organisation are representing an offender and providing rehabilitative supervisory services. I am using this occasion to ask my noble friend for an assurance about the solidity of the Chinese walls that will be required to be put in place, and the monitoring of them, if these two parts of the Government’s proposals go ahead more or less at the same time and more or less hand in hand.
Lord McNally
My Lords, it is always a great pleasure to joust with the noble Lord, Lord Beecham, as he is such a well read man and we heard about the Kaiser “dropping the pilot”. However, I like to think that the Opposition’s support for the Bill, which he again gave fulsomely at the end of his remarks, is like the rope that supports the hanging man—in saying that, I look to Lenin rather than the Kaiser—and so he introduces another amendment which would at least throw a considerable spanner in the works, if not wreck the Bill.
I say to the noble Lord, Lord Elystan-Morgan, that I, of course, consider the noble Lord, Lord Ramsbotham, to be a saintly man. However, my reading of Lives of the Saints makes me well aware that one or two of them were quite capable of landing fairly lusty blows. Therefore, I have never equated saintliness or sanctity with pacifism or a lack of willingness to trade blows. If noble Lords read today’s opening speech of the noble Lord, Lord Ramsbotham, they will see that it contained a few lusty blows directed at the Secretary of State and the department, but is none the worse for that. I am sorry that, acting in their individual capacities and making up their minds individually, not a single Cross-Bencher managed to support me in the Division, as I understand it, but that is the nature of things.
The noble Lord, Lord Beecham, really should stop reading spy and thriller novels because his speeches are based entirely on sinister facts. As regards the FOI request, our refusal to release the relevant information was based on the criteria in the Freedom of Information Act, which the Labour Government crafted. As he well knows, that procedure gives the Government the opportunity to develop policy before premature disclosure occurs. As in the previous debate, the noble Lord saw all kinds of sinister motivations behind the use of a management tool which his Labour Government developed in Whitehall to allow those developing policy not to make predictions but to test possible dangers before making policy public. We have published the process of evaluation of our pilots at Peterborough and Doncaster and our justice reinvestment pilots. We do not have formal evaluation reports of the other pilots because they were discontinued. However, we have learnt from the process of designing the pilots and we are applying that learning process to the design of the new system. That is part of our policy development process.
I have known the noble Lord, Lord Elystan-Morgan, keep the House going for a long time over one wrong word in a piece of legislation so it is a little rich for him to ask what is in a word. I again make the point to the noble Baroness, Lady Hamwee, that we have given considerable assistance to small innovators in the voluntary and charitable sectors. We want to make sure that they play their full part. We are running a two-part £500,000 grant to voluntary organisations to overcome the barriers to their participation in the rehabilitation reforms. We will open up the delivery of probation services to a far wider range of potential providers, including the voluntary sector. We are keen to see partnerships between voluntary organisations or between private and voluntary providers coming forward for contracts. We continue to develop a strategy to support the voluntary sector to participate in future competitions and are working closely with the Cabinet Office to develop the capacity and capabilities of voluntary organisations to deliver payment by results contracts.
Lord Ponsonby of Shulbrede
My Lords, Amendment 16 would put a duty on all providers of probation services to,
“participate in, and be accountable to, community safety partnerships and to co-operate with crime and disorder reduction partnerships and local integrated offender management schemes”.
Following Second Reading, I entered into correspondence with the office of the noble Lord, Lord McNally, on this question and was referred to Section 6 of the Crime and Disorder Act 1998, which places duties on various responsible authorities to formulate crime reduction strategies, which in practice is done through community safety partnerships. In Committee, the noble Lord, Lord McNally, argued that there does not need to be further legislation on this matter and stated:
“Integration at local level works best when it is not mandated centrally”.—[Official Report, 5/6/2013; col. 1217.]
London Councils, which has briefed me on this amendment, argues that there is clear evidence from the Work Programme that commissioning services from the market, when applied on a large scale and managed on a national scale, can lead to low levels of engagement with local partners and therefore low levels of effectiveness. Therefore, the purpose of this amendment is to ensure that community safety partnerships have a role in performance managing the future delivery of contracts. There should be accountability measures within the contracting process and action should be taken where providers fail adequately to work in partnership at a local level. Community safety partnerships should have access to performance data from prime and subcontractor providers in order to have a local oversight of delivery. Although I was very grateful for the advice that I received from the noble Lord’s office, the purpose of these amendments is to put meat on the bone so that local authorities can properly play an influential and well informed role in managing local provision of services. I beg to move.
Baroness Hamwee
My Lords, I declare an interest as one of the three joint presidents of London Councils. I have seen the briefing from that body and support the points that have been made. I entirely agree with my noble friend that “bottom-up” is best, but sometimes structure is needed to allow these things to function well. I am not sure whether the example I am going to give is appropriate, but I will give it anyway.
In the London borough of Sutton, where this issue is “bottom-up” but structured, there is a very interesting partnership between the local authority and the police. The structure is such that there is joint management of certain services provided by those two parts of the public sector. Sutton tends not to go in for strident self-publicity so it does not seem to have made very much of this, but what it has done is extremely interesting. The joint management whereby the two arms are brought together works well as there is joint accountability. Whether or not that is a good example, I take the point about the need sometimes to have a framework. It is much better if that can happen locally but facilitation through legislation does not go amiss. If the Government still maintain that there is no need for this, are they considering issuing any guidance? I would rather not have central government guidance on what should happen locally, but sometimes a little prompting is helpful.
Lord Ahmad of Wimbledon
My Lords, Amendment 16 seeks to ensure that all providers of probation services are required to,
“participate in, and be accountable to, community safety partnerships and to co-operate with crime and disorder reduction partnerships and local integrated offender management schemes”.
As was said in Committee, the Government are clear that nothing we do to tackle reoffending will work,
“unless it is rooted in local partnerships”.—[Official Report, 5/6/2013; col. 1217.]
I have seen how that works in practice. We absolutely expect future probation providers to engage with the relevant statutory partnerships. It will be in providers’ interests to work with other partners to achieve the best results. Our payment mechanism, which will reward reductions in reoffending, will incentivise them to do so.
In tabling the amendment, the noble Lord seeks to ensure that all probation service providers are both members of, and accountable to, community safety partnerships and other crime reduction initiatives such as integrated offender management. Section 5 of the Crime and Disorder Act 1998 sets out who should be the responsible authorities for the reduction of crime, disorder and anti-social behaviour as well as for reducing reoffending. A provider of probation services will be a responsible authority for these purposes where the arrangements entered into with the Secretary of State provide for it to be a responsible authority.
As a responsible authority, current probation providers already have a number of obligations including being involved with the formulation of the local CSP strategy and plan for community safety, attending CSP meetings and sharing depersonalised information with the other four responsible authorities. Community safety partnerships are subject to overview and scrutiny by the local district council. As a responsible authority, providers of probation services already participate in this process. Nothing in this Bill will amend or change the Crime and Disorder Act. Providers will need to demonstrate how they will work in and strengthen local partnerships if they are to be successful in bidding to deliver probation services. Specifically, we are including a requirement for providers to evidence in their bids how they will relate to and incorporate integrated offender management arrangements into their proposal and contracts will reflect this. I hope my noble friend is reassured by that.
We are reviewing the current statutory partnership requirements to ensure they are appropriately assigned and discharged in the new system and we envisage that the contracts will reflect the statutory partnerships providers are required to participate in. Furthermore, the National Probation Service and contracted providers will be required to develop effective operational and strategic partnerships with each other and agree their respective roles and responsibilities in relation to statutory partnerships to minimise duplication and maximise effectiveness. Once the system is up and running we will monitor local partnership working as part of obtaining assurances of the delivery of services and we will liaise with police and crime commissioners, local authorities and other relevant partners as appropriate.
I understand the noble Lord’s concern. Indeed, he approaches these issues with great expertise and I appreciate the sentiment behind this amendment. However, I fear that some unintended consequences may arise from it. The amendment would in effect mean that every provider of probation services in an area, no matter how big or small, would have to participate in and be accountable to community safety partnerships and other crime and disorder reduction partnerships. Different areas of the country will have different partnerships, of different sizes and with different challenges. The right approach is to look at this carefully before deciding which provider, at which level, is a responsible authority. A tailored approach, rather than a blanket one, seems to me to be the right way forward.
I have outlined the existing legal responsibilities and requirements on providers of probation services and reiterated our commitment to local partnerships, together with the steps we are taking to ensure that our reforms are rooted in local partnerships, so that offenders can access the broad package of support they need to get their lives back on track. I have also outlined potential unintended consequences of the amendment. I hope, with the clarifications I have given and the assurances I have made, that the noble Lord will be minded to withdraw his amendment.
Offender Rehabilitation Bill [HL]
Baroness Hamwee Excerpts(12 years, 8 months ago)
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Lord Beecham
I am obliged for the noble and learned Lord’s intervention but perhaps I should decode what is happening for the benefit of those who do not understand—it took me some time—the effect of the amendment as originally drafted.
As originally drawn, the amendment would have removed from Clause 13(7) reference to,
“activities whose purpose is reparative”,
and substituted “restorative justice activities”.
The two things are not the same. Reparative justice will involve doing work, for example, of the kind that I came across when involved in a justice reinvestment project in the north-east. In fact, there were two significant projects: one led to the effective reconstruction of Albert Park in Middlesbrough and the other at Saltwell Park in Gateshead, both Victorian parks which had become very run down. Offenders were brought in to work on these and benefited from being taught skills, which it is to be hoped will be useful later. They made a visible contribution to the communities which they had damaged by their offences. It was a very good scheme.
Taking that out would exclude work of that kind. As the noble and learned Lord said, Amendment 27A reinstates that in addition to restorative justice so that the complete range of options would remain available. I hope that the Minister will accept the noble and learned Lord’s amendment, as amended by my restoration of the paragraph in the original Bill. It would be extremely disappointing, given that the Government are supportive of the principle of restorative justice, if statutory recognition was not incorporated in the Bill at this time and the opportunity not taken in its passage to lend weight to the growing support up and down the country for the concept in our system.
Baroness Hamwee
Not having come with a long speech, I want to register my support and that of my noble friends on these Benches for these amendments and, as the noble Lord, Lord Beecham said, the growing support for the concept of restorative justice. The more I hear about that, the more it seems a very important part of rehabilitation. It has many aspects and one of those fits neatly within the thrust of this Bill and in the new Section 200A. Among the things it can achieve is redirecting offenders who can be described, as many noble Lords have done at previous stages, as having chaotic lives. Being able to put the chaos of one’s life into the perspective that this kind of activity can help achieve is an important objective of rehabilitation.
Lord McNally
My Lords, first, I pay tribute to the noble and learned Lord, Lord Woolf, for the very long campaign he has fought to put restorative justice on a statutory footing. Although I am sure he is right to pay tribute to and thank the Opposition for their support, it is also worth pointing out that it was this Government who actually did that. In the battle to do so, I pay tribute to the former Prisons Minister, Crispin Blunt, who joined battle with me within the department to make sure that we got the first foothold as far as restorative justice is concerned.
I am glad that we have the eagle eye of the noble Lord, Lord Beecham. Of course, reparative and restorative justice are not the same thing. I fully associate myself with the points that the noble Lord made about the value of reparative justice. It can be very significant, in not only what it does but also getting the confidence of the community—the point made by the noble and learned Lord, Lord Woolf. The community sees a derelict site cleaned up or some piece of community work restored as part of reparative justice and has confidence that it is worth while.
I also fully agree with the noble and learned Lord, Lord Woolf, about what we are trying to do in this Bill. We are doing a little smoke and mirrors with the money we have available—I freely confess that—but even if we had all the money we wanted, it would still require that change in culture to which the noble and learned Lord referred.
I hope that we can make this work and carry it through. I am not sure whether we will ever carry the great British press with us. My office always gets very perturbed when I attack the British press. I merely observe that the regular comments on this area of policy always leave me in despair, not about humanity but about journalists.
Baroness Hamwee
Baroness Hamwee
My Lords, I will speak also to Amendment 32. I suspect that on Amendment 31 I am in for a little more teasing from my noble friend Lord McNally. The noble Lord shakes his head; that is a shame. In that case I am in for more teasing from the noble Lord, Lord Ahmad.
Clause 16 would insert a new section into the Criminal Justice Act 2003, with regard to the permission that is required before an offender who is the subject of a relevant order may change residence. In new Section 220A(4) we are told that there are two grounds available to either the officer or the court, which in effect is the appeal body here from a responsible officer’s decision. I would like to be completely sure that these are the only grounds. I am sure that they are, but I wanted to make the point.
We also wanted to add another provision which would, in effect, alter the presumption in these circumstances. When refusal was given, there would not simply have to be an opinion that a change of residence would be likely to prevent compliance with a requirement or hinder rehabilitation; it would go further. The purpose of the requirement or the rehabilitation would have to be significantly less likely to be achieved if the offender were to change residence. The reason is that a restriction on moving one’s home or one’s household—possibly having to move because of family problems such as the offender and partner splitting up, or because there are job prospects somewhere easier to reach from a new home—are all extremely important and part of rehabilitation. I am not convinced that every possible circumstance is covered by subsection (4)(a) and (b) of new Section 220A. I beg to move.
Lord Ponsonby of Shulbrede
My Lords, the noble Baroness, Lady Hamwee, raised some interesting points about the role of the responsible officer when an offender applies to change their residence. When considering this amendment, I immediately thought of all the potential problems that might arise. There is also the general point about the level of independence of judgment of the responsible officer when considering these applications. Two questions came to my mind. What would be the position if somebody with a series of convictions for domestic violence wanted to move into a house with a new girlfriend? That might hinder rehabilitation; it would be a judgment that would have to be made by the responsible officer. I do not know what the result might be. I am not sure that the responsible officer would necessarily be told that that was the situation.
Conversely, what would happen if the girlfriend wanted to move into the offender’s current address? If told about it, the responsible officer may have a responsibility to the new girlfriend to ensure that she is informed of the offender’s previous convictions. These are difficult matters which need a lot of expertise to be able to deal with them and there needs to be guidance—maybe non-statutory guidance—for the officers. In general, I am sympathetic to the amendments which the noble Baroness has moved, but I am conscious that there may well be many problems with making those decisions.
Baroness Hamwee
My Lords, of course, I shall not pursue the amendment. The points made by the noble Lord, Lord Ponsonby, are very interesting, but I do not think that my amendment would alter the situation either way. He has no doubt made us all start to look at this from a different perspective, which is extremely helpful. The problems raised go wider than just this situation.
When the Minister started to explain some of the reasons that might be behind a decision here, I rather felt that we were going a little close to what might be for the convenience of the provider rather than to the benefit of the offender. I fully accept the importance of the relationship between the offender and the individual who is undertaking the supervision, but that could easily tip over from a company looking at this from a commercial point of view to what might tick the right boxes for that provider.
I was glad to hear the Minister say that there might be many reasons to support a move, but the provisions of Article 8 of the Human Rights Act would seem to provide higher obstacles to a challenge on the part of an offender than would be the case if something of the sort of my amendment on the issue of balance were written into the clause. The amendment would give much more straightforward, less expensive grounds for appeal, as it were, from the decision of the responsible officer to the court. Of course, Article 8 will apply whether we say so or not, but I know that the Minister would accept that praying it in aid to the extent of a challenge to a decision is quite heavy. I will read the Minister’s explanation, as well as having listened to it, but for the time being at any rate, I beg leave to withdraw the amendment.
Baroness Corston
My Lords, I am delighted to support the amendment tabled in the name of the noble and learned Lord, Lord Woolf. It is 15 months now since we had the first vote specifically on this issue that I can remember. At that time there was a tied vote and we were promised a strategy. Subsequent attempts to amend legislation to provide for gender-specific services have failed.
My reading of the current government policy on transforming rehabilitation is that we are going back 10 years, because we are going to have an offender strategy that can be tweaked for women, rather than asking what kind of strategic priorities we need for women offenders. Those are missing. We have a two-page statement, not a strategy, from the Government about what is going to happen for women. If this was a serious undertaking, this kind of amendment would have formed part of the Bill. It would not be up to Members of the House to try to put it into the Bill.
The other thing that I found very troubling during the course of my review was how many women knew that their lives were spiralling out of control but knew that there was nowhere they could go to get assistance. That is what was so amazing about the seed-corn money, although it was £15 million, that the previous Government put into keeping women out of prison by providing women’s centres as alternatives to custody. I know that the Minister has visited at least one, and I am sure that noble Lords who are interested in this area will have done the same. You hear stories of women who have gone through a period of the most amazing redemption because they have had these gender-specific services from people who understand the reality of women’s lives and the centrality of family and children. They understand that when women go to prison, unlike men, there is no one to keep the home fires burning, and they usually lose their children and do not get them back.
All these issues can be dealt with easily if you make provision statutorily for gender-specific services, because people have to think about it. It is not a question of women being an add-on. I accept that, given the overall prison population—there are about 86,000 men in prison and 4,000 women—you could say that women are an add-on. However, given that some 17,000 children a year are affected by their mothers’ imprisonment, and a significant proportion of those children end up in prison themselves, such provision seems to me to be the most important preventive strategy. I cannot for the life of me understand why the Government are so reluctant to have this in the Bill, because it would be a matter of pride to do so. I know that the Minister will tell me how much has happened, and I will listen with patience but with some irritation, because, given my experience in the 21 years since I first set foot in a women’s prison, I know that it will not be enough. So I say to the Government: if this amendment is not accepted, we really want to see something that will work.
Baroness Hamwee
My Lords, my noble friend Lord Marks spoke on the needs and importance of specific services for women. I hesitate to follow the noble Baroness because I cannot be nearly as powerful as she was, but I cannot keep silent either. I spoke on the issue on the previous day in Committee. I appreciate that this is a different amendment that addresses a different matter from those that we have looked at before. On short sentences and a period of supervision, I want to make one specific point before I come to the more general. Unless the supervision requirements are appropriate, for all the reasons that we have talked about, the likelihood of a breach of the requirements by the offender must be higher, and that will mean that she is back in custody. That is exactly what we want to avoid.
I know how strongly my noble friend Lord McNally feels about this, and I know that we are going to hear that work is under way, led by his colleague, Helen Grant. However, I will make one point and ask one question. My point is that a marker of some sort should be put down that shows the importance with which this House regards this issue—like the noble Baroness, one finds it difficult to find the words, but they are not specialist services, because they are not an add-on; they are a different group and they need different services. Furthermore, the marker should acknowledge the importance with which this issue is regarded outside this House by, I think, everyone in the offender management penal reform field to whom I have spoken.
My question to my noble friend, who is probably at least as frustrated as I am, is what amendment, if this is not accepted, would put down that marker, get past the Treasury, if that is where the problem is, and not restrict the progress of work done in the MoJ but enable us to make the point? Many noble Lords have put down a string of amendments. If none of those is going to get a tick from the Minister, can he help us—I know that he is on side—by suggesting what would take the matter forward at this stage?
Baroness Linklater of Butterstone
My Lords, I, too, cannot remain silent. I am so glad that we are privileged to have the noble Baroness, Lady Corston, to add her voice to this debate. The crucial thing is that we have not managed to listen hard enough before. There is no question that women are different from men. They are not just differently shaped; they have particular needs and they are absolutely specific. We have known this for years. It is possibly boring but quite graphic to look at just a few of the facts and figures. Women serve very short sentences on the whole, with 58% serving six months or less and many only four months, or a matter of weeks. The sentences are for non-violent offences; we do not need to be protected from these women. Some 81% are for shoplifting, and we know that most shoplifting is for food for their children or for drugs. About 60% of the women, in fact, are drug users.
The final thing, which the noble Baroness, Lady Corston, also mentioned, is that the collateral damage of the imprisonment of women is absolutely unquantifiable. If more than 17,000 children a year experience and suffer separation from their mothers, that damage does not really take a lot of imagination to assess. Some terribly graphic reports have been published. For many children, to be separated in this way from their parents is like a bereavement: in their eyes, their mothers have died. This is a terrible thing to have to experience, but this is what we are doing to this primarily non-violent, very vulnerable, group of people from whom we do not need to be protected.
The centres, which we have models for, do exist and it would not be difficult for the Government to develop them along those lines. Several years ago now, when I chaired the Rethinking Crime and Punishment initiative, we funded the Fawcett Society, which issued an important report, before even the noble Baroness, Lady Corston, saying that we should make this specialist provision. We now have one or two important Together Women groups, and a total in this country of about 55 groups altogether, which is not very many. We have the 218 service in Glasgow and the Willow partnership, which we are very proud of, but they are a drop in the ocean compared with the needs of these women. I have been to a women’s centre recently and not only were the women telling me how much their lives were being changed but there were people at the centre who had been users and were now coming back to support other people who were going through the same terrible experience.
The facts and the figures, as well as this kind of affective argument, seem irresistible. I hope that when this amendment talks about the particular needs of women that the Government will have ears to hear and will take this forward immediately.
Offender Rehabilitation Bill [HL]
Baroness Hamwee Excerpts(12 years, 8 months ago)
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Baroness Hamwee
My noble friends Lord Marks of Henley-on-Thames and Lord Dholakia and I have Amendments 10, 11 and 12 in this group. The three amendments are on the same subject, the needs of female offenders, but are a little more specific. I very warmly support the amendment moved by the noble and learned Lord, Lord Woolf.
According to Section 217 of the Criminal Justice Act 2003, the court, in certain circumstances, has to avoid “as far as practicable” imposing a requirement where there might be,
“conflict with the offender’s religious beliefs”,
or with the times when,
“he normally works or attends any educational establishment”.
I use the term “he” to mean any offender, of course. To take the issue of female offenders’ concerns a little further, it seemed to me that those include family circumstances and the need to act as a carer, not just to children but perhaps to a spouse, an infirm elderly parent or to other family members. Building on what we have in the 2003 Act, I suggest that the supervisor shall “have regard to”—using the same words as the noble and learned Lord in that respect—“the compatibility” of the supervision requirements with “the offender’s family circumstances”. Caring is something particularly in my mind. The requirements might include one to attend at a particular place, such as one of the various centres which provide services and activities of a rehabilitative nature. When the offender, generally the mother, is responsible for a child and it is desirable that the child goes with her, that should be taken into account. My noble friend, I think on the first amendment, referred to both “flexibility and common sense”. These seem to me to be common-sense points but it does no harm to spell them out. Although the noble and learned Lord, Lord Woolf, said that there should be no need to be specific, Section 217 is quite specific.
On the second amendment, although we will of course be told that this is the case, I would, again, like the reassurance that a requirement specified under new Section 256AA must be “reasonable and proportionate”. It seems to me that those words are themselves reasonable and proportionate. I hope that the Minister who is answering—it looks as if it is going to be the noble Lord, Lord Ahmad—can give me that reassurance. New Section 256AA(6) provides that the Secretary of State has to “have regard”, as we have said, to the purpose of rehabilitation. However, it seems important to apply these restrictions and to require the compatibility to which I have referred.
Section 217 of the 2003 Act applies to relevant orders which are defined in Section 196 of that Act. I was persuaded by my noble friend that it would be going over the top to check out the drafting of the Bill by tabling an amendment to that section, but I would be glad to know, if not today then before Report stage, whether Section 196 is being amended, and if it is not, whether it does not need to be amended. It refers to community orders, custody plus—which, of course, has gone—suspended sentences and intermittent custody orders.
Finally, I come to Amendment 12. We have referred to flexibility. I am unclear how supervision requirements can be varied during the fixed one-year term of supervision and my Amendment 12 is directed to the ability for the supervisor to deal with variation. I am particularly pleased to be able to support the lead amendment in this group tabled by the noble and learned Lord, Lord Woolf.
Lord Judd
I hope noble Lords will forgive me but, to make a clean breast of it, I came in when the noble and learned Lord, Lord Woolf, was in mid-stream. I just feel I cannot sit here without saying that I think this group of amendments is crucial. It puts into perspective what we are doing. Are we primarily about finding alternative means of punishment or are we primarily about rehabilitation? If we are about rehabilitation, it must be tailored to the individual concerned. If this in any way makes the rehabilitation to full, productive membership of society more difficult—and we all know that in many cases it is because people’s lives are in chaos that they end up in these situations—then we are not helping at all. These amendments are there to strengthen the intention of the Bill, if it really is about rehabilitation.
Baroness Hamwee
Before the noble and learned Lord withdraws the amendment, as I assume he will, I wish to refer to that last point. Perhaps the Minister could ask his officials to let me know how Section 217—the one that I quoted about compatibility with religion and so on—can be brought to apply in the circumstances under this Bill if Section 196 is not amended. It is a matter of how it all knits together.
I wish to make one point. As the noble and learned Lord implied, rehabilitation can be the objective, but there are people who do not take into consideration the appropriate matters to move towards rehabilitation in a way that most people would think they should. It could be that some people in the criminal justice system think that one can achieve rehabilitation without putting the individual into his, or in this case her own, circumstances and context.
Perhaps we can pursue this after today but, bearing that in mind, as the supervision requirements are spelled out in detail in Schedule 1, are we in danger of them being construed so as to exclude the types of matters which I think all noble Lords who have spoken have referred to? Might they override those considerations because they are there in the statute? Anyone looking at it would say, “The only requirements that the Secretary of State may specify as being an executive action are the ones that are listed in paragraphs (a) to (j), so the other considerations do not have the same status or weight and I can disregard them, or at any rate have less regard to them”. Perhaps I can leave that thought with the Minister.
Lord Woolf
My Lords, I hope that the Minister, for whose response I am grateful, will reconsider what he has said today. With great respect, I do not think that he has met the points that we are making. In the future, we hope that the special position of women will be considered properly. For a very long period, the criminal justice system has failed in that respect. I am very grateful to the noble Lord, Lord Judd, for timing his entry into the Chamber so admirably. He picked up the great importance of the issue.
The problem is that the present Administration may not take this seriously if there are no clear signposts in the Bill. The Bill is meant to deal with particular problems that exist. The Minister recognised that in his remarks in relation to female offenders. Therefore, we have to break away from a clearly established pattern. It is very important that this constructive legislation shows clearly that it intends to tackle this issue. I hope that the Minister will think about what has been said during the course of the debate. I am extremely grateful for what other noble Lords have said and I am glad of their support. Their words deserve very careful consideration, which I hope they will receive. On Report, I hope that the Minister will have some good news for those who see this as a situation that needs to be addressed in a positive way. In those circumstances, I am happy to withdraw the amendment, and I thank those who took part in the debate.
Baroness Hamwee
My Lords, before my noble friend responds, I should deal with the terrible slur from the Front Bench about the narrowness of my bedtime reading. In fact, my bedtime reading at the moment consists of Caroline Shenton’s book, The Day Parliament Burned Down—a wonderful book that the Minister himself recommended to me.
Lord Marks of Henley-on-Thames
My Lords, first, I am grateful to my noble friend for indicating that he will consider Amendment 16 and come back to the House on it at a later stage. I am also grateful for his assurance that he has great confidence that the Sentencing Council will indeed publish the guidelines, and I quite understand his reason for not wishing that to be included in the statute because of the danger of compromising that body’s independence.
As to the lead amendment in the group, while I completely appreciate the Minister’s position that “may” is discretionary—I have no doubt that my noble friend Lady Hamwee, notwithstanding her additional bedside reading, will confirm my view when she has considered the response—I still feel that setting a test for the use of discretion might be helpful. Perhaps the Minister will consider that also. I beg leave to withdraw the amendment.
Offender Rehabilitation Bill [HL]
Baroness Hamwee Excerpts(12 years, 8 months ago)
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Baroness Hamwee
My Lords,
“The isle is full of noises,
… that give delight and hurt not.
Sometimes a thousand twangling instruments
Will hum about mine ears, and sometimes voices”.
I will leave it to my noble friend on the Front Bench to add his take on what those voices are saying. I certainly do not cast the noble Lord, Lord Ramsbotham, as Caliban, who is offensive, aggressive, cringing and pathetic by turns. None of those applies.
The Bill was announced in the Queen’s Speech with the description that it would,
“reform the way in which offenders are rehabilitated in England and Wales”.
Of course, as we know, the problem is that too many are not. Like other noble Lords, I consider it a statement of the blindingly obvious to say that I support rehabilitation—but I will say it.
I was struck by an observation in the recent report, Intelligent Justice, from the Howard League for Penal Reform, that perhaps the first practical step would be to ensure that any court sentence should observe a principle analogous to the Hippocratic one: first and foremost, it should operate to minimise harm. Too often, prison adds to the damage. It seems that the academies programme was in operation in prisons—that is, learning about crime—long before the Department for Education took an interest.
As other noble Lords said, one must ask whether there is any value in short prison sentences. As we have heard, there must be in almost half the cases. Among the problems is the potential loss of a job and a home, yet we know that what underlies offending and reoffending will include unemployment, mental health, family problems and the generally chaotic lifestyle to which my noble friend Lady Linklater referred. A community sentence is much less likely to add to those problems.
I am sure that the Minister will be able to reassure me that the Government are working with magistrates and the Sentencing Council on how the new provisions will operate and to avoid imprisonment when the position is borderline in the way to which my noble friend Lord Dholakia, and the noble and learned Lord, Lord Woolf, referred. I hope that he will also assure me that the Government are working with local government, which has an important place in commissioning relevant services.
The mentoring programme could be very effective, for both the mentor and mentee. I, too, was at the speech by the Deputy Prime Minister this morning. Frances Lawrence talked about young people—although, as she said, her remarks applied to all mentors—and the value for them of acting as a role model and reaching out. The connection for them is life enhancing. However, it is not something that can be done on the cheap, and it is not something that is a substitute for—I hesitate to use the word, because I do not want to be pejorative about a mentor—professional work. They are complementary. Like my noble friend, I would not suggest that volunteers are by definition amateur, not at all, but there is a place for all in this programme.
There is much that a mentor can discuss, and ways in which he can discuss it, because he is talking to a peer with shared experience. If you like, the mentor gets it. Literacy is one of those things. The noble Lord, Lord Bates, spoke very powerfully about the importance of education, but we all know that education can be resisted if it is not promoted in the right way. Victim awareness is another thing that a mentor can, perhaps very effectively, raise. Supervision will be needed for offenders acting as mentors, not to control, but to guide, support and monitor. I am not clear whether supervision has been costed into these arrangements.
I hope to hear that there has been considerable consultation with prison staff. The Justice Secretary, in his Statement in the House of Commons, suggested that it was just starting—I do not suppose that it can only just have started—but another point made this morning was about a prison governor who refused access to an ex-prisoner. What message does that send to everyone about the possibility of there ever being rehabilitation?
The needs of women that are different from those of men have rightly been raised this afternoon. NOMS is reviewing the women’s custodial estate and is due to report soon. It is considering post-release supervision and support. There is also Minister Helen Grant’s group. How far are we appropriately anticipating what they might report? For women and men—but possibly especially for women with family commitments—the requirements for rehabilitative activity outside prison must be realistic. They must be seen as part of a programme, but not—and I have come across this in other contexts—imposed in a way that makes attending a course or being at a job impossible. I look forward to looking at the provision in the Bill for this.
When the noble Baroness, Lady Howe, asked a Question in March about licence arrangements, the noble Lord, Lord Ahmad, told us that 5% of the prison population was on recall. As noble Lords have said, it would be self-defeating if a breach of supervision or a breach of a licence automatically meant recall to prison, bumping up the numbers. The penalties for non-compliance have to be flexible. The Criminal Justice Alliance has suggested that legislation may need to be considered to make recall to custody on breach genuinely a matter of last resort.
Turning to resettlement prisons, I am sure that the geography does not work, and this will have to be a matter of evolution. Like others, I would like to see all prisoners serving their sentences as close to home as possible in order to maintain family links. However, I believe that some prisoners positively do not want to return to their old environment, so we should not be saying that prisoners should be released near home. It should be a matter of choice for prisoners; they should have some input. After all, if you are not consulted, you feel downgraded. I am concerned about the transition here and in the probation services. We are looking for diversity and innovation and to incentivise the services, but the risk will be carried by providers. However, it is necessary to take risks in this work to achieve results whatever the definition of “result”, when the result will be assessed and how much will be withheld from payment for the result or non-result.
I was going to ask the Minister how the MoJ, which we know has to make very considerable savings, will be able to pump-prime or provide seed corn for the smaller players in this field. However, this morning, I was pleased to hear the Deputy Prime Minister announce a package of support for bidding but, as I heard it, that was for putting in the bid, which is not the same as what will be needed for providers to function, get going and develop. Is the MoJ working on something like a model contract for bidders to look to?
I do not want to seem unenthusiastic about what the Government are proposing. I am enthusiastic, with appropriate moderation. The momentum must be kept up. Thinking about today’s debate, it occurred to me that to be a reoffender must often feel to the person concerned like condemning oneself to a life of crime, and that the second occasion must be significant. As my noble friend Lady Linklater said, the younger the age of the offender, the more reoffending rates increase. Work at and outside the prison gate is hugely important, but so is work on the wrong side of the prison gate, and so is work, as often as that is possible, when there is no gate at all.