Domestic Abuse Bill

Baroness Kennedy of Shaws Excerpts

Committee stage & Committee: 4th sitting (Hansard) & Committee: 4th sitting (Hansard): House of Lords
Wednesday 3rd February 2021 Lords Chamber

Moved by

[Baroness Kennedy of The Shaws]

139: After Clause 68, insert the following new Clause—
“Reasonable force in domestic abuse cases
(1) Section 76 of the Criminal Justice and Immigration Act 2008 (reasonable force for purposes of self-defence etc.) is amended as follows.(2) In subsection (5A) after “In a householder case” insert “or a domestic abuse case”.(3) In subsection (6) after “In a case other than a householder case” insert “or a domestic abuse case”.(4) After subsection (8F) insert—“(8G) For the purposes of this section “a domestic abuse case” is a case where—(a) the defence concerned is the common law defence of self-defence,(b) D is, or has been, a victim of domestic abuse, and(c) the force concerned is force used by D against the person who has perpetrated the abusive behaviour referred to in paragraph (b).(8H) Subsection (8G)(b) will only be established if the behaviour concerned is, or is part of, conduct which constitutes domestic abuse as defined in sections 1 and 2 of the Domestic Abuse Act 2021, including but not limited to conduct which constitutes the offence of controlling or coercive behaviour in an intimate or family relationship as defined in section 76 of the Serious Crime Act 2015 (controlling or coercive behaviour in an intimate or family relationship).”(5) In subsection (9) after “householder cases” insert “and domestic abuse cases”.”Member’s explanatory statement
This Clause seeks to clarify the degree of force which is reasonable under the common law of self-defence where the defendant is a survivor of domestic abuse alleged to have used force against their abuser.

[Baroness Kennedy of The Shaws (Lab) [V]]

My Lords, like others, I want to express my gratitude to my friend, the noble Lord, Lord Wolfson, for his generosity in giving time to discuss my amendments with me and those supporting me in seeking reform in a place where it is needed. I am grateful that he heard me and listened. I do not know what the response will be, but I ask him to listen again very carefully, because this is a matter where justice really should say that there must be some sort of conformity in law available in what I would say are very comparable circumstances.

It is important to remember that domestic abuse can lead to death. We have just heard a very powerful debate about strangulation, which really emphasised the ways in which those who have experienced non-fatal strangulation described how they felt they were going to die—that they could not breathe and somehow were losing consciousness. Of course, that is what happens if the pressure is continued. We also heard the statistic that one in seven of the women killed after a history of abuse have experienced strangulation. Let me tell you that this one in seven statistic is based on the circumstances where women have already given accounts to others—to their doctors, family members and lawyers—about experiences of strangulation. There are many women who have not given those accounts because of the shame still associated with domestic violence. Some of us have acted in cases involving fatality; one can rely only on the fact that strangulation is a very common feature in the patterns of domestic violence that lead to death.

Today, I will speak about a different set of circumstances from those that have engaged the House up until now. One of the tragic outcomes of domestic violence and abuse can be that the person at the receiving end of it ends up being the person in the dock, having taken the life of their abuser in the end. This happens rarely, unlike the other way around, where two women a week are murdered in this country by a spouse or partner. The statistics show that the number of women killing abusers is very small.

I can draw from my experience—it may be that my noble friend Lady Mallalieu has the same experience—as a criminal lawyer and a Queen’s Counsel for 30 years this year: the women I represented in homicide cases have invariably had a background of abuse, and one of the patterns or things that they describe in the histories that they give is fearing for their life on occasions. The women who end up killing a partner who has abused them have almost invariably felt that they were going to die on many of the occasions when they were assaulted previously.

It is important to remember that, when an accused person ends up in the dock, they can be wrongly convicted because of the law’s inadequacy—remember Sally Challen, a case that we have spoken about before in this House. This was a case in point where gaps in the law had failed a woman because she was convicted initially of murdering her husband before coercive control, which she had suffered for years, was understood properly by the courts.

In a high percentage of the cases that I have dealt with where women have killed a partner, pleading self-defence should have been available to the accused—the woman—but she has ended up seeking recourse in the fact that, very often, because of long-term abuse, women end up suffering from post-traumatic stress disorder of some kind or another, or depressive illness. Those are the tolls that domestic abuse takes on victims. It is one of the great scandals of our system that we do not often think about the impact of things relating to women and domestic abuse until pretty late in the day.

A great deal of thought has gone into the amendment that I am presenting to the Committee today. It looks at self-defence and the objective test of reasonableness that is applied in self-defence, and I shall explain in a minute what that means.

--- Later in debate ---

[Lord Wolfson of Tredegar (Con)]

I am grateful to the noble Baroness, Lady Hamwee, for those various questions. On the issue of the person’s circumstances, I hope I set that position out in my reply. Perhaps it is the sort of point I could set out to her in writing in a couple of paragraphs, if she would not mind.

We are concerned when defences may be being misused; I made it clear that there are some concerns with the victims of slavery defence in that context. On the last point, which I think the noble Baroness accepted was somewhat rhetorical, she is certainly right that we always seek a balance. The point she makes that the law must keep up with the expectations of civil society is a profound one; it is, indeed, one of the big advantages of the common law. I am sure, therefore, that the issues raised by these amendments will continue to be discussed. The question before the Committee this evening is whether the legislature should provide for explicit statutory defences in these terms. For the reasons I have sought to set out, in my opinion, it should not.

[Baroness Kennedy of The Shaws (Lab) [V]]

My Lords, I should tell the Committee that I turned a page too soon in my opening address on these amendments. I did not have the chance to really lay out the second of the statutory defences I am promoting, in Amendment 140.

I regret that I used the term “read-across,” because there are always lawyers who will use language literally. Of course, I did not mean it is an absolute read-across to talk about a householder as distinct from a victim of abuse, but the gravamen is the same. The core of it is about somebody put in fear in the place they want to feel safe: their home. I cannot think of any domestic homicide where I have represented a woman who has killed her partner or ex-partner that did not happen within a household—a place where she was hoping to feel safe but did not, and where experience had taught her to feel fear and terror.

I am afraid I have to say to the Minister that some time, I will take him by the hand into a women’s prison and have him sit down and listen to the accounts of women, by asking them to look him in the eye and tell him their stories. They are so often there because of childhood abuse, having been brought up in abusive households and with direct experience of partner abuse. We could almost empty our prisons without them having women who are there because of their mental health. They are not mentally ill for no reason; almost invariably, it is because of the kind of abuse we have heard about in the debates on this Bill.

I say this respectfully, but the Government are again falling into the trap of saying there are nice victims and bad victims, or of saying: “We will change the law for the good, conforming victims but not for the victims who somehow transgress”. These are the victims who, in the end, defend themselves because they are so in terror for their lives, who are so in fear of a partner that they commit a crime—carrying the drugs from A to B or hiding them in their sock drawer, for example. All I am saying is that there is a double standard in this debate: as soon as you move to that which involves crime and a woman, or anybody who is abused, is in the dock, then suddenly your compassion for the issue of domestic abuse somehow dissipates.

I am very concerned that there is not enough real consideration of the toll of abuse: we are moving into the field where somebody ends up transgressing the law but it is really because of what they are experiencing. If a psychiatrist were to speak to this Committee, they would tell noble Lords that when somebody has experienced fear for their life—we have heard about it in relation to strangulation—and thought “I am going to die at the hands of this person”, and then suddenly smells that level of fear again, in the air, in those circumstances they might take a knife and defend themselves, or take a heavy weapon and hit somebody fatally on the head. The test of “reasonableness” or whether the force was “disproportionate” has to be read in the context. That is why I am saying that it would have to be “grossly disproportionate” for it not to afford a defence of self-defence for somebody who has experienced long-term and serious abuse.

What we are seeing here are the very double standards that are so often experienced by victims of abuse and by women. It goes back to the nature of law and its patriarchal roots. It is about saying that, yes, women who are abused deserve all our compassion but if they overstep the mark, they do not.

Our prisons are full of women who have had these experiences—indeed, I have acted for women who have ended up killing a partner. They do not do it because they suddenly want to wreak vengeance; they do it in exactly the circumstances of the householder who feels in absolute terror for their life.

The failure to make those links and to understand this may be because one has not spent enough time sitting in a cell with people who are coming up for trial. I can tell the Committee that that is the circumstance, and if you can afford, because the Daily Mail demands it of you, to lower the standard of reasonableness and be more flexible for a householder—as indeed you should—then that kind of flexibility should be available to those who have been experiencing long-term abuse.

I ask that the noble Lord look again at the double standard that is operating here. It is partly, of course, because Governments always want to play the law-and-order card and do not want to be seen to be soft on people who commit crime. But very many of the women who end up in prison did what they did because they were under the coercion and control of somebody else, and were absolutely in fear of that person. I really regret the response I have received from my friend, the noble Lord. I ask him to take his great lawyer’s skills and go back to the drawing board again, because he is missing something very important here, which is about justice for women. I beg leave to withdraw the amendment, with great regret, and I am really disappointed in the ministerial response.

Amendment 139 withdrawn.

Office of Lord Chancellor (Constitution Committee Report)

Baroness Kennedy of Shaws Excerpts

Tuesday 7th July 2015 Lords Chamber

[Baroness Kennedy of The Shaws (Lab)]

My Lords, I beg the indulgence of the House that I might speak briefly in the gap. I missed the deadline for putting my name on the speakers list.

I, too, want to remind the House why the Lord Chancellor’s role was such a triumph in our constitution. I still believe very strongly in the importance of that role being in the hands of a lawyer of distinction with a lifetime’s experience in the law. Of course, it was sometimes held by someone who had also been a practising elected politician in their past, but the thing that distinguished previous Lord Chancellors was that they had an understanding of the law, the importance of law in constitutional matters coursed through their veins and their commitment to the rule of law was visceral. In the end, at the point when they came to be Lord Chancellor, they would feel that the law was their master and not of any strategic political advantage.

The sadness that I feel about all this is that reform took place in such an abandoned way back in 2005. Until then, we had somebody who sat in this House with no further political ambition, who was at the apex of their career and who no longer harboured any secret passion to become Prime Minister or Chancellor of the Exchequer or to hold any other kind of office. Because of that, they were able to take the long view, they were able to argue in Cabinet against some of their ministerial colleagues who were seeking to respond to populist demands, and they were able to argue for the importance of law as against, sometimes, the appeal of order. In that balancing of law and order, there was this voice speaking for justice. That person, sitting in this House, did not have to look to constituents or face the vicissitudes of regular elections, and so did not fall prey to the populist pressures of, for example, the Daily Mail—they did not fear what the next day’s headlines might be. That was why the role was such a success.

That does not mean that there was not a need for reform, and I was one of the people who argued that the time had come for there to be a judicial appointments commission and that there might be a review of whether any judicial role could be held by the Lord Chancellor. The Lord Chancellor could sometimes sit as a judge but that had more or less been abandoned and could easily have been reformed. The issue of the role of Speaker being part of the Lord Chancellor’s responsibilities could also easily have been reconsidered.

I am afraid that the folly of the reforms undertaken by Labour in government came as a bolt from the blue. They were ill considered and constitutional madness. In my view, it was the act of a capricious Prime Minister abetted by a determined Home Secretary, and this House has often had the opportunity of expressing its regret that that happened.

Of course what Labour at that time was saying was that there should be a Minister of Justice—somebody speaking for justice in the House of Commons. And that may make perfect sense. Labour also argued that it might often be difficult to make sure that that person was a lawyer and therefore it could be somebody who was committed to those issues but was not a lawyer, if no MP who was a lawyer was suitable for the role. But what Labour did at that time was to abolish the Lord Chancellor role—that was the announcement. Then, of course, it had to revisit that, because it is a role that is deeply embedded in so much legislation that it could not possibly be dealt with in that fleeting way. So the idea of the Minister of Justice became coupled with the Lord Chancellor’s role, and into it went the notion that it could be a non-lawyer. That should remain a source of regret and should be looked at, I hope, at some suitable point, because I believe that we should still have a Minister of Justice in the House of Commons but a separate Lord Chancellor’s role. I regret that the committee did not make such a recommendation.

We have seen the consequences of the botched reforms in the performance of Mr Grayling, who seemed to have no appreciation of what the role really entailed and what his constitutional commitments ought to be. In Mr Gove I hope that we have someone who draws on a deeper well of constitutional understanding and wish him well in the role.

The idea that the Government have not listened to the careful report from this committee is a source of disappointment. I hope that the Minister will respond to the concern expressed by everyone.

Queen’s Speech

Baroness Kennedy of Shaws Excerpts

Monday 1st June 2015 Lords Chamber

[Baroness Kennedy of The Shaws (Lab)]

My Lords, I join colleagues in welcoming our new Lords and thank them for their contributions today. I look forward to hearing from them in the many months and, I hope, years to come.

Like others, I have grave concerns about the legislative programme which will be coming before this Parliament. Echoing fears expressed already, I think that one of my major fears is that the pursuit of an agenda to eviscerate public services, to play around with our membership of the European Union and to tamper with the rights and freedoms of our citizens by, perhaps ultimately, abolishing the Human Rights Act, will drive a deep wedge between parts of this kingdom. I also fear that that might accelerate its demise as a union.

The Prime Minister promised one-nation governance, but that means genuinely having to take into account what the election results meant. I know that people on the other side of the House are enjoying a victory, but they have to remember that it involved only 36% of the electorate—I remind Labour Members that in 1997 when the Blair Government got in, again it was on as low a section of the electorate. Governing as a one-nation party means speaking to the many and going beyond just the traditional Conservative voter.

I am sure that the defeat of Labour is giving a great deal of contentment to Conservative Members of this House, but that will be short term. It seems to me that the real message of the results of this election is that people were not very taken by the old political parties and their way of doing business. We have to recognise that the political class is distrusted by a large section of the population. That distrust will grow if the promise to govern for all of this kingdom is not kept.

Many people have expressed a certain amount of relief that there will be further consultation before legislation on a British Bill of Rights, but why has it taken so long? The Conservative Party has included in its manifestos since 2002 its desire to create a British Bill of Rights and to abolish the Human Rights Act. It has had a lot of time: it has set up committees and had the benefit of lawyers on the Conservative side advising it. Why is it that it cannot put together a coherent Bill?

I sat on the commission set up by the coalition Government on whether there could be a British Bill of Rights and we consulted. If consultation is what is wanted, let me tell you that we consulted up hill and down dale only a few years ago and further consultation is not necessary. The Government needed to pause because of the complexity of what is involved and because, as described by the noble and learned Lord, Lord Woolf, a lot has happened since the Human Rights Act came into being. The developments that have taken place have been important and it will be hard to unravel them now. The plan for a British Bill of Rights was ill conceived, incoherent and, in my view, dangerous.

The impact on Scotland should not be taken lightly. When we created the Scotland Bill at the initial time of devolution, we said that change would involve the consent of the people. Having consulted in Scotland over the possibility of a British Bill of Rights, it is clear that it would be seen as the arrogance of Westminster. The Scots are content with the incorporation of the European convention and do not want it interfered with.

We also consulted in Northern Ireland. While I smiled when the noble Lord, Lord Trimble, suggested that all that would be involved would be putting in a small amendment suggesting that there had to be compliance with the British Bill of Rights rather than the European Convention on Human Rights, that small amendment would be highly contested by a large number of those persons who signed up to the Good Friday peace agreement. I suspect that the non-dominant community would find that hard to swallow.

We also have to think about its impact on foreign policy and our treaty obligations and the effect it would have on our reputation worldwide. Britain is a beacon for the rule of law imbued with commitment to human rights. I say this as chair of the International Bar Association’s Human Rights Institute. Britain is looked to around the world for guidance and inspiration on these matters. I worry that this has been kept in the back pocket as a card to be played if the referendum goes towards maintaining the European Union; that it is to give red meat to Eurosceptics.

Others have spoken about the many misconceptions about the European Court of Human Rights and its role. It is not a final court of appeal. Our Supreme Court is exactly that—it is our Supreme Court. I am not going to rehearse what other people have said. Our constitutional situation is serious and we will make it more serious by interfering with some of the things which actually are about empowering citizens.

The triumph of the Scottish National Party north of the border in the general election is not fully understood by many people in this House and elsewhere. It is not understood, certainly, by sections of my own party nor by the Liberal Democrats or the Government. Many people voted for the Scottish National Party but not because they are nationalists; it was not about disliking their cousins in England or “Braveheart” intoxication. If you feel that, you are deluded.

The people of Scotland voted the way they did as much from a feeling of disconnect with central government here in Westminster as from nation-bound interests. They felt that their traditional party MPs had taken them for granted for too long. People should reflect on that, rather than throwing stones at those who ended up winning the election. The Scottish people are not stupid. They felt that they were not getting responsive, accountable government, and that is what they voted for. It was not about whether they thought they would be richer or poorer, but whether their society might be fairer. When considering one-nation governance, we should remember that they were concerned that their tradition of social justice was under threat. I urge the Government and all the parties represented in this House—because the Scottish nationalists are not here—to realise that that is what the majority of Scottish people were concerned about.

I will not rehearse the arguments about what devo-max will involve, and so on, but I do want to say that we have to have much more serious discussion about constitutional matters. I have been involved in arguments about reform and the need for a different kind of voting system for almost 20 years. I chaired Charter 88 and the Power inquiry, and they were saying the things that I hear in opposition: the light goes on, and people suddenly realise that perhaps the voting system is not fair, that they want decisions to be made closer to where they live, and that sometimes systems are not working in a modern and sensible way.

I, too, want to endorse the creation of a convention. I hope that when the Government say that they will govern for all of this kingdom, they do so in a positive spirit. There was negative campaigning, and the negative way that Scots felt they were talked about really went to their hearts. We cannot go on like that. I hope that we start having a conversation about why this union is a good thing, and why the Scots, the Irish and the Welsh, as well as the English, play a vital part in creating it.

Criminal Justice and Courts Bill

Baroness Kennedy of Shaws Excerpts

Monday 27th October 2014 Lords Chamber

[Lord Phillips of Worth Matravers (CB)]

My Lords, if those in this Chamber who were opposed to these amendments at the start of this debate have not been converted by what they have heard, nothing that I can add is going to convert them. I simply say to the noble Lord, Lord Tebbit, that Parliament did not create judicial review; the judges did. It was, I hasten to say, before I became a judge and was one of the best things that our common-law judges have ever done. These amendments are designed to ensure that Parliament does not damage that which the judges created, and they deserve the support of this House.

[Baroness Kennedy of The Shaws (Lab)]

My Lords, I know that there is always a sigh in this House when a debate is dominated by lawyers. However, I remind the House that sometimes it is lawyers who know the pain that citizens in our country experience, because we represent them, and that this is about the actual lives on which judicial review has an impact. It is always about the person whose business is to be closed down from trading, based on a department’s or a local authority’s decision that they want to challenge, or the person whose mother is in a care home and suddenly finds that it is being moved or closed down, with no consultation as to the impact on her and her family. It may be about the effect on a disabled child of a decision about their schooling. Those things are about real people’s lives and that is why this is not just a constitutional debate of high flown words or complicated legality—it is about the real impact on the lives of ordinary people.

When your Lordships come to vote in our Lobbies, as I am sure you will be asked to do, I say to those of you who are not lawyers that this is really about people’s lives and about the law coming into play to protect citizens. That is why lawyers and organisations such as the Bar Council, the Law Society and Justice—cross-party and no-party organisations—know why the rule of law matters in our nation and our democracy. This is not, I say to the Minister’s noble friend Lord Tebbit, about judges somehow usurping the power of Parliament. This is about justice, fairness and the things that we hold dear, so I say to my colleagues in this House who are not lawyers that this is not a festival of lawyering. It is about ordinary people.

[The Minister of State, Ministry of Justice (Lord Faulks) (Con)]

My Lords, we now turn to Part 4 of the Bill, which has proved to be one of the more contentious areas at Second Reading, in Committee and today. The debate has ranged far and wide and it has been magnificent. We have discussed the constitution of the United States, the merits of the European Union, the Council of Europe, King Charles I, fracking, the Severn barrage and HS2, to name a few topics. I am sure that noble Lords will understand if I do not deal with all of them.

Similarly, there have been speeches of an omnibus nature, particularly by the noble Lord, Lord Beecham, and my noble friend Lord Marks, in the sense that they have covered matters beyond Clause 70. I will deal with those arguments when we come to the relevant groups. We are focusing on Clause 70 at this juncture. The Government have listened with great care to the arguments raised by noble and learned Lords and noble Lords during those debates. I assure my noble friend Lord Cormack that I have listened carefully again this afternoon to the speeches made by a large number of your Lordships. However, we do not resile from our central contentions, which I trust the House will allow me to set out briefly.

First, it is our contention that judicial review, when used properly, is an essential component of the rule of law. It allows individuals and businesses to invite the court to test the lawfulness of public bodies’ actions. Secondly, judicial review as it presently stands is not always perfect. On several occasions, the Government have set out some of the examples of delay and cost which can be caused, such as the challenge to the exhumation licence concerning the mortal remains of King Richard III which the noble Lord, Lord Beecham, described as “ludicrous”, despite his own view that York is the more appropriate resting place.

Thirdly, while we have taken some steps, working with the judiciary where appropriate, to rebalance the current approach, such as through the creation of the planning court, some further reform is needed. Noble Lords may be aware that the use of judicial review has increased more than threefold in recent years from around 4,200 in 2000 to around 15,600 in 2013.

The noble and learned Lord, Lord Woolf, was kind enough during our Committee debates to offer me a copy of De Smith’s Judicial Review, of which he is a distinguished editor. I have to say that he honoured his pledge most generously. I have been in receipt of De Smith and I have done my best to reacquaint myself with its contents. The preface to the seventh and most recent edition reads as follows:

“English administrative law is now one the most celebrated products of our common law and doubtless the fastest developing over the past half century”.

We accept that many judicial reviews will be well founded and brought in good faith, and that much of the growth has been driven by the number of immigration and asylum cases, but it remains a simple fact that a well timed judicial review can delay the implementation of crucial policies or projects for months or even years. Even when decisions are perfectly in line with due process, months can be spent preparing for and defending claims when that time would be better spent taking forward the reforms that the country needs.

The debates have been, perhaps predictably, dominated by those with long experience of the law and, of course, on the government Benches we welcome the expertise which has been brought to bear, even if we do not always welcome the contents of all the speeches. However, there is another side to judicial review—one which pertains to what happens, or does not happen, outside the courtroom as judicial reviews proceed. As they proceed, arguments are made and countered; witness statements are prepared and probed; and fine points of law are weighed and determined. Crucial projects with direct implications for jobs are delayed, perhaps lost.

For example, a judicial review was initiated by a competitor to the proposed development of a supermarket in Skelton, North Yorkshire. That challenge was described by the judge at the earliest possible opportunity as “a hopeless case”. Yet work was delayed for six months. Irrespective of the rights and wrongs of the case itself, is it right that a hopeless judicial review can be used to such effect? The risk of this happening was recognised by that great judge Lord Diplock who, when emphasising the importance of the permission stage in judicial review said:

“The requirement may also prevent administrative action being paralysed by a pending, but possibly spurious, legal challenge”.

I quote from Inland Revenue Commissioners v National Federation of Self-Employed and Small Businesses 1982 appeal case 617 at page 643.

It is important that we do not ignore the fact that such cases place a considerable burden on the public purse in terms of the time of judges, lawyers, Ministers and officials. Overall figures are not recorded, and are probably not recordable, but by way of illustration, I can report that the total legal costs of the Richard III case to the Ministry of Justice alone have been put at more than £90,000, none of which is recoverable. Consequently, we make no apology for having taken some sensible steps already, and none for making a few more small but important changes.

Outside your Lordships’ House the debate about these reforms has been rather long on hyperbole. Reference has been made during the debate today, and indeed in Committee, to left-wing causes. Of course, I entirely accept that it is irrelevant whether a cause is left-wing, right-wing or apolitical. What matters is whether the challenge is justified and whether it has merit. However, I have seen it suggested that the Government wish to do away with judicial review altogether and even that these reforms will lead to imprisonment without trial. As I will explain, these fears are entirely ill founded. The Government believe that the roles of Parliament and the courts should exist within a relationship of mutual respect and co-operation. In that context, I should emphasise what the provisions do not do: they do not seek to undermine or fetter judicial discretion; they do not seek to challenge the basis on which judges approach questions of judicial review; and we have not altered legal standing, much as that was open to criticism. That was a response to the consultation paper.

Criminal Justice and Courts Bill

Baroness Kennedy of Shaws Excerpts

Wednesday 30th July 2014 Lords Chamber

[The Chairman of Committees (Lord Sewel)]

I have to inform the Committee that if Amendment 74 is agreed, I cannot call Amendments 74A to 74L inclusive by reason of pre-emption.

[Baroness Kennedy of The Shaws (Lab)]

My Lords, I support the amendment. I notice that the Minister has invoked the senior judiciary in other aspects of the Bill. I remind the Committee that there is considerable judicial support for interventions—and not just in the Supreme Court. Judges have a very wide discretion in allowing such interventions. Only last October the noble and learned Baroness, Lady Hale—who is a Supreme Court judge, but she was speaking generally—spoke about how the more difficult a matter is on an important subject in the courts, the more help we need to try to get the right answer.

Interventions are enormously helpful. That is the view of the judges dealing with these kinds of cases. They have discretion as to whether to allow the intervention. Interventions come from organisations that do not have great resources. More often than not, the lawyers are in fact acting pro bono for NGOs and bodies such as Justice, of which I am chair of the council. The idea that this will now involve the real risk of incurring costs will have a very detrimental effect on something that is of enormous benefit in reaching a just resolution to many issues. I strongly support the amendment. I hope there will be second thoughts as to whether the change should be introduced.

[Baroness Campbell of Surbiton (CB)]

My Lords, I wish to speak in support of all the amendments in this group and, in particular, Amendment 74, in the name of my noble friend Lord Pannick, and to oppose the Question that Clause 67 stand part of the Bill.

There is a very strong presumption that interveners will be liable for the other party’s costs arising from an intervention, as well as their own, unless there are exceptional circumstances. This, as I understand it, is regardless of the outcome of the case and of whether the intervention helped, so potentially they could be liable for the legal costs of the party who loses the case. As a lay person, I do not see the justice in that. At present, the court decides who pays the costs and, for me, this works perfectly well.

This provision appears to the lay person to be designed for one purpose only—to deter interventions from organisations with limited resources. Unlike government departments, they could not contemplate such a risk. That applies to many charities; I spoke about this at Second Reading. Many of them have very small budgets and are run by volunteers, who are only too aware—perhaps they are overcautious—of their responsibility to avoid any financial risks.

Judges have consistently acknowledged the value of interventions in helping them to come to the right decision. It is in the public interest that they hear relevant evidence on important issues. If fewer interventions are made, they will lose vital sources of expertise, especially in relation to those most in need of protecting. The intervention of the Equality and Human Rights Commission in the case of R (B) v DPP in 2009 is a really good example of this. In this case the Crown Prosecution Service stopped a prosecution because the victim had a mental illness. This led to valuable new guidance on dealing with vulnerable witnesses and defendants in the criminal justice system.

During my time at the Disability Rights Commission —I was on the legal committee at that time—the DRC’s intervention in Burke, a case concerning the GMC’s guidance on the withdrawal of food, hydration and treatment, was, unusually, singled out for praise by Mr Justice Munby. He referred to,

“a particular and highly relevant informed expertise which none of the other parties could bring to the task in hand”'.

I have to declare an interest here as I was closely involved as part of the intervention body. This landmark case has had a profoundly positive effect on the patient/doctor relationship in this country when it comes to planning end-of-life treatment.

Interventions have a long and distinguished history and we cannot allow that to be weakened for the sake of the one or two examples of the bad apple. Where would we be today without the Leslie Burke case?

--- Later in debate ---

[Baroness Kennedy of The Shaws]

Can the Minister address the following concern? A distinction has been made between those who voluntarily intervene, in that they approach the court and indicate that they might be able to contribute something of special value, and those invited to participate. I chair the council of Justice, which, as this House knows, is an absolutely cross-party and no-party organisation—it is an independent organisation of lawyers, one of the organisations regularly described as acting as an intervener. It does so because of its commitment to the rule of law and the recognition that it is a lawyers’ organisation that has things to say about law which may be missed in the kind of judicial review where a particular issue is being raised that may have much more generalised concerns.

I am concerned that every so often Justice will identify an issue in an action that is not immediately obvious and will therefore draw the court’s attention to that fact; consent is then given to its intervening. I am, therefore, very worried about this distinction between the voluntary and the invited-in. Often it is the volunteer organisation saying, “We think there is an issue here that the court should hear”, which is of great value. I shall give an example of that. Noble Lords heard from organisations such as Justice and Liberty during the torture case. I know that it went all the way through but there are cases where there are legal issues, and when my noble and learned friend Lord Mackay—I refer to him as a friend because he is a dear friend—raises the issue of why we have seen some growth. It is because our world is more complicated and because we are dealing with issues such as international terrorism and more complicated issues in medicine that interventions from specialist organisations can be useful. Often, however, the courts do not know how they could be assisted until the voluntary suggestion is made that something of value is on offer.

[Baroness Lister of Burtersett]

My Lords, I asked a number of practical questions that had been put by Justice. I want to save the Minister from jumping up and down and I do not want to come between your Lordships and lunch, so perhaps he could write to all those who have taken part in the debate with the answers.

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I urge that the use of legislation to interfere in the settled processes of the development of procedure is not something that we should encourage, and allowing it to happen in this way, particularly with the introduction of a Henry VIII clause, as has been emphasised by the noble Lord, Lord Davies, makes it clear why the legislation should not be adopted.

[Baroness Kennedy of The Shaws]

I too feel very concerned about this capping of costs. I see it as being part of a pattern of seeking to reduce the discretion of judges. Of course government Ministers do not say, “We don’t have confidence in the judiciary”, but that essentially is what this is about. It is about saying, “We have to use law to do this because the discretion of the court cannot be trusted to do what we seek to effect”. This amendment is about insulating the Government against challenge. All the clauses that we have been discussing today are essentially about seeking to limit judicial discretion, judges being the people who can weigh up carefully the merits in order to reach just decisions. That is being interfered with to protect the Government from challenge. That is what it ends up being about.

I too, therefore, support the amendment. The Government should think again about how this is perceived. The sitting judges cannot stand up and speak on their own behalf, as we know, so it falls on those who have been judges or who are active in the courts to alert the general public to what is happening. What we are doing is fettering the power of judges to do that which is right in a given case.

[Lord Beecham]

My Lords, it might be convenient to consider this group and the following group as one. The noble Lord, Lord Marks, has addressed his amendments in that group. I strongly support the amendments tabled by the noble Lords, Lord Pannick and Lord Marks, to which I have added my name, together with the noble and learned Lord, Lord Woolf, and the noble Lord, Lord Carlile. I speak therefore briefly to the amendments in my name. Amendment 75 is particularly important in that it addresses the problems facing applicants for permission in the absence of legal aid for that stage. Amendment 75A provides that the court may make an order at any stage of the proceedings, in connection with Clause 68(3), and Amendment 75B would extend this potential protection to interveners whose position we have debated in a somewhat different context earlier today. Amendment 75E removes the reference to the court considering information of a financial nature if such is only “likely to be available”—a phrase that we have already debated —in respect of Clause 68(5).

Without the protection of the amendments in the group, not least from the Government’s proposals about a public interest test, which the Lord Chancellor conveniently empowered to define the terms of such a test, the protection offered to parties by this clause would be diluted to homeopathic proportions.

In the next group, Amendment 80B would apply to Clause 69(2) and provide that a costs capping order limiting or removing the liability of the applicant to pay another party’s costs where an order is not granted should “normally” rather than mandatorily limit or remove the other party’s liability to pay the applicant’s costs if that is the case. That introduces an element of reciprocity. Amendment 80C alternatively would allow discretion by substituting “may” for “must” in the subsection; again the issue of judicial discretion raises its head.

We have heard powerful speeches from non-lawyers—the noble Baroness, Lady Campbell, and my noble friends Lady Lister and Lord Davies—and, if I may say so, a magisterial rebuke to the Government from the noble and learned Lord, Lord Woolf; that was not for the purposes of delivering an admonition but to persuade them of the error of their ways, which I hope the noble Lord, Lord Faulks, will convey to the Lord Chancellor with some effect. These provisions thoroughly dilute what ought to be a sensible measure to protect claimants in this particularly important area of jurisdiction.

Criminal Justice and Courts Bill

Baroness Kennedy of Shaws Excerpts

Wednesday 23rd July 2014 Lords Chamber

[The Earl of Listowel]

My amendment would give 17 year-olds detained by the police the right to be held in local authority accommodation rather than a police station. I draw the Committee’s attention to the “Newsnight” programme broadcast on Monday 14 July, in which parents whose children had been affected by the current arrangements spoke very movingly about their experiences. I would be glad to furnish your Lordships with a link to that. Certainly, I will make it my job to ensure that those taking part in the debate have that link.

Children under the age of 17 already have the right to be placed in local authority accommodation, and for good reason. Police custody is an unsuitable environment for children. It is a highly intimidating environment and staff are not trained to support vulnerable children, unlike in local authority accommodation. Recent cases have demonstrated the terrible consequences that can result from detaining children in such an unsuitable environment at what is a deeply frightening time for them.

Kesia Leatherbarrow was a vulnerable 17 year-old. Her inquest has not yet taken place but we know that she was discovered dead in a garden in December 2013, after being arrested and held in a police cell for three days. Kesia was arrested for possession of cannabis and criminal damage. She was kept in custody at Ashton police station over the weekend before being sent to Tameside magistrates’ court on the Monday morning. She was bailed to return the following day, when the youth court would be sitting, but died shortly afterwards. Being held in the more supportive environment of local authority accommodation might have made all the difference. She could still be with us today.

Seventeen year-olds can appear very adult, but they are not: they are children. The UN Convention on the Rights of the Child is clear on this point—children are those below the age of 18, and all are entitled to the same protections. A 17 year-old should not be treated differently from any other child. However, the Police and Criminal Evidence Act is inconsistent on this point. The police station is the only remaining part of the criminal justice system where 17 year-olds are not uniformly recognised as children. The one other part where an anomaly exists—the Criminal Justice Act 1991 in relation to cautioning—will be amended by this Bill.

In police stations, 17 year-olds have some of the protections afforded to children but not all. This is an ongoing issue and one which the Home Secretary has said she will resolve. However, I am disappointed that she has not yet done so, despite a clear ruling from the High Court. In 2013, in the case of HC v Home Secretary, Lord Justice Moses ruled that it is unlawful for 17 year-olds in the police station to be treated as adults and denied the protection of having a parent or other adult with them, which is given to younger children. The court ruled that they must not be treated as if they were adults. In particular, they must be allowed to have a parent or appropriate adult with them. After the case, the Home Office accepted the court’s ruling and gave assurances that it would conduct a full review of all laws that treated arrested 17 year-olds as adults, not just the provision of an appropriate adult. For example, in a letter to Nick Lawton, whose son Joe killed himself after being treated as an adult in police custody, the Home Secretary wrote:

“We will ensure that in future that 17 year olds will receive the appropriate assistance and support while they are in police custody”.

Then in response to a Parliamentary Question in October 2013 the Minister for policing said:

“We will consider all legislation which appears to treat 17-year-olds as adults in the criminal justice system and bring forward legislative proposals as necessary”.—[Official Report, Commons, 21/10/13; col. 65W.]

Despite these assurances, the Home Secretary has so far made only limited changes that were specified by the High Court, which means that 17 year-olds now have the right to have a parent with them, as I have mentioned.

The point of most concern is the fact that young people have no right to be transferred to local authority accommodation even if the police are concerned about them and can see that they are very vulnerable. The police still do not have the right to make such a transfer. This is the matter that my amendment addresses. The parents of Kesia Leatherbarrow, along with the parents of Joe Lawton and Eddie Thornber, two other children who died after being treated as adults in police custody, are campaigning to get the Home Secretary to make the changes necessary to ensure that 17 year-olds are always treated as children in law. A recent letter to the Home Secretary said:

“I personally am very upset and feel wronged by both your letters because you have only changed one part of the code and failed to take the steps to get Parliament to amend any other relevant legislation. Had you looked into and changed all the legislation, as you intimated in your letter to me, there was a good chance that Kesia would be with us today. You could include in the current Bill before Parliament changes to Section 38(6) of PACE about the transfer to local authority care as opposed to being kept in a police cell overnight … We are distraught that another 17 year old has died unnecessarily when you as Home Secretary were fully aware of your duty to 17 year olds. While we cannot bring back our own children, we will not stop campaigning on this issue until every piece of legislation that treats 17 year olds as adults in the criminal justice system is amended to give the most vulnerable among us the help we are entitled to under the UN Convention on the Rights of the Child and other laws”.

We owe it to these families and to 17 year-olds throughout the country to ensure that they have the protection to which they are entitled. The right to local authority accommodation is a fundamental protection that is available to all other children, and I hope that the Government will make good on their promises and accept my amendment. I recognise that they have been looking at this issue, I beg the Minister to bring something into this legislation, perhaps by the time we reach Report. We can then be confident that no more young lives will be lost in these circumstances. I beg to move.

[Baroness Kennedy of The Shaws (Lab)]

My Lords, I support this amendment. I urge the Minister, before we reach Report, to take the opportunity to contact a really wonderful NGO, Just for Kids Law, which is run by a remarkable set of lawyers led by Shauneen Lambe. The lawyers have been supporting and sometimes acting as intervenors in cases involving young people of 17 who are being kept in custody or interrogated without an accompanying adult. Anyone who is the parent of a teenager or whose children were recently teenagers knows that at that age a person is on the cusp of adulthood. They are moving out of childhood and into adulthood. It is often a very difficult stage where young people appear to be very mature and yet at the same time they are childlike and vulnerable, as the noble Earl said. I know that the Home Secretary and the Home Office have been looking at this issue—I see that the Minister is nodding his head in confirmation. For some time there has been a problem around the ages defined in different pieces of legislation. I would urge the Government to look at this amendment closely. Even if a categorical answer cannot be given to us today, I hope that the opportunity is taken to speak to the people at Just for Kids Law because they really know their stuff in this area. They have all the details about the families who suffer so terribly at the loss of their children.

Criminal Justice and Courts Bill

Baroness Kennedy of Shaws Excerpts

Monday 21st July 2014 Lords Chamber

[Baroness Kennedy of The Shaws (Lab)]

If the Government have so many reservations about this clause, surely their position should be to oppose it. The Government’s position at this stage should be to say that they think the Committee should look closely at this clause because they are not happy with it. Surely that should be the Government’s position.

[Lord Faulks]

The Committee is looking carefully at the clause. I have endeavoured to assist with various questions to indicate that certain technical amendments would have to be made, which would not alter the fundamental purpose behind the clause, but would nevertheless make it more satisfactory.

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[Baroness Kennedy of The Shaws (Lab)]

My Lords, it is important that this proposed new clause is drawn with real care. While I hear the discussions about the motivation to degrade and humiliate or to secure sexual gratification, it is important to draft widely without specifying the nature of the motivation. That is because it is always difficult to pin down motivation. A case in Canada is currently attracting a great deal of public attention in which a woman judge has been suspended from the judiciary while an inquiry takes place because her husband put on to the web images of her that had been taken in intimacy.

The concern for the judiciary is that this undermines her authority in the courtroom, because these images are available. It is, if you like, bringing the judiciary into disrepute. The consequences for her life are therefore considerable. It is an interesting and rather difficult debate in Canada. She has remained with her husband and seems to have forgiven him for his transgression, but the issue has moved beyond the pair in the relationship to be an issue of public concern.

I urge that we think about the implications of the drafting. In Canada, a woman’s career has been held in abeyance. She has remained in a marriage because of her commitment to it, but certainly it is causing problems. It is really an issue about consent: has a person consented to the disclosure of intimate photographs? It is not an issue of speculating about what the motivations might be.

[Baroness Morris of Bolton (Con)]

My Lords, my noble friend Lady Berridge set out strongly the case for Amendment 40 with which I am associated—namely that the appalling act of revenge pornography should be a serious sexual offence. I take on board what my noble friend Lord Marks and the noble Baroness, Lady Kennedy, said about the drafting. Neither of us would seek to be draftsmen, but we should make sure that we capture whatever needs to be captured in these amendments.

I was unable to speak at Second Reading but this is a matter that concerns me and rightly concerns many in your Lordships’ House. The issue is how we address that concern. The amendments brought forward by my noble friend Lord Marks would classify the online posting of revenge pornography as an ordinary criminal offence. This fails to recognise the sexual nature of the crime and the impact that it has on the victim, which is a clear violation of the victim’s dignity. Further, this failure to recognise the gravity of the sexual offence leads to an unduly lenient penalty, allowing for imprisonment for no more than 12 months. The courts must have adequate sentencing powers to reflect the severity of this act. For these reasons, I press strongly for this crime to be classified as a sexual offence.

Revenge is a horrible and destructive motive generally, driven as it is by anger, malice and cruel calculation. Perpetrators choose many ways to pursue their revenge, such as harassment, stalking, humiliation through social media by posting malevolent or hurtful comments or spreading rumours concerning work, family or finances in order to ruin reputations. But the greatest betrayal is to choose to use naked or sexually explicit images that should be a private and deeply personal matter between a couple and which were never intended to be seen by anybody else. In this way, the perpetrator commits an act of sexual abuse against the ex-partner, specifically designed to subject them to humiliation and degradation.

If we look at the criminal offence of sexual assault under Section 3 of the Sexual Offences Act 2003, we see that:

“A person (A) commits an offence if he intentionally touches another person (B) … the touching is sexual … B does not consent to the touching and … A does not reasonably believe that B consents”.

To my mind the posting of revenge pornography online is in essence a virtual form of sexual assault since the perpetrator is intentionally posting the naked or sexually explicit image without the subject’s consent, the posting of the image is sexual in nature, the subject does not consent to the posting and the perpetrator does not reasonably believe that the subject of the image consents.

Victims of revenge pornography face extraordinary difficulties, as we have heard, in trying to have their photographs taken down from websites set up specifically to display this type of material. Clearly criminalising this type of activity should give an incentive to internet service providers and search engines to take material down. As things stand, some victims have had to pay so-called fees of hundreds of dollars to host websites based in the United States just to have their photograph taken down from the site.

The law needs to set out clear boundaries about what is and what is not acceptable behaviour, including sexual behaviour. As technologies change, we need to ensure that we keep up with changes in behaviour. This is why we should take this opportunity to recognise revenge pornography as a sexual offence.

Assisted Dying Bill [HL]

Baroness Kennedy of Shaws Excerpts

Friday 18th July 2014 Lords Chamber

[Baroness Kennedy of The Shaws (Lab)]

My Lords, this is one of the most challenging moral issues of our times. On the one hand, we are dealing with the right to individual autonomy and to bodily integrity, and with the right to make decisions about our own lives. So it is a profound issue of human rights. On the other hand, there is the need to preserve the wider fabric of an ethical society with an overriding principle that human life is to be valued and guarded against violation and abuse.

That is the bigger picture of sustaining the culture in which human rights, particularly those of the vulnerable, will be protected. This Bill, I have no doubt, is derived from good motives. I respect the aims of those who wish to relieve the suffering of people at the last stages of their life. But it is about respecting the individual. The conception of human rights that we have developed in Europe is different from that in America. We believe that it is not all about individual rights; it is about striking a balance with other rights and it is always about considering the impact on wider society. It is why we here find it so baffling that in the United States they cannot get control of their gun laws, because the individual right trumps the needs of the wider community. That is not so here.

This Bill carries us unfortunately across a line. It takes us to a different place and to deny that is not right. I believe that it will change the moral landscape. The question is whether we are creating a climate of greater compassion or stimulating a climate of chillier decision-making. Are we raising the bar of humanity or are we creating a society where our ethics are made of coarser cloth? We could with good intentions be planting a seed that bears unexpected fruit, so that we end up with different calibrations about the quality of life and about humanity. What is exceptional today so easily becomes standardised tomorrow. Sometimes that is to the good, but sometimes it is to the bad.

It is a fundamental principle of law that we should safeguard life—it is an absolute principle—and I think that it is too important for us to abandon it. Like the noble Lord, Lord Macdonald, I am concerned that this Bill creates immunity from inquiry, and I would like to hear more from the movers of the Bill about that matter. Is there to be no inquest after a death, so long as it ostensibly conforms to the Bill, with the forms filled and the consents secured? Is there to be no examination of the quality of the consent or the judgment of the doctors? Perhaps it is my experience as a criminal lawyer that makes me concerned about such total immunity from the processes of law and how the malign or reckless can misuse such processes. As the former Director of Public Prosecutions, the noble Lord, Lord Macdonald, said, these cases are currently examined. They cross the desk of not just any prosecutor but of the most senior in the land. In virtually every case nowadays, there is no action. However, it is important for people to know that there will be close consideration of the process and that there will be consequences for wrongdoing, because that is what prevents abuse.

We must ask ourselves whether this legislation will lead progressively to other changes in end-of-life care that we would not want to see, even if we can decide when the end of life is imminent—and I question whether we are able to do that with much success. It is inevitable that the creation of powers of attorney will be the next step. We can be sure that people will say, “I’d like to be able to name a person to whom I will give a proxy consent, so that when I lose my faculties they can make the decision for me”. Many would want to see that happen.

Like everyone, I am moved by the terrible stories of miserable ends. I think that sometimes doctors err too much on the side of caution in assisting the gentle passage of the dying because we have created a society laden with fear of accusation and litigation. We need to do more about the adequate training of all doctors in dealing with pain and death. Nor are we supporting doctors and nurses well enough as they make difficult decisions. Our medical world has been infected by a model of care that is increasingly commercialised. Reforms to our health and care system are reducing trust between patients and their carers—their doctors and nurses—and sometimes reducing compassion because there is so much pressure on the time of the carers. Relationships are built through consistency and time spent, as they were in the past when we had the GP whom we knew, rather than saw someone different every time, and there were teams who consistently worked together with sets of patients. However, I am afraid time is in short supply in our market-driven regimes.

I share concerns about the pressure that we put on the aged and the disabled, expressed powerfully by many in this debate. I know that choice is the great aim of our age—choice in all things, as though we were all shopping. But who gets the choices? How many people in our communities have real choice? The issue of choice is a snare and a lure. I look around and I think that compassion is in short supply. Our society is becoming a harder place—harder on the elderly, the young, offenders, the unemployed and the poor. Society is full of people who have very few choices.

We must be careful about creating huge moral changes when we see austerity policies already having such an impact on the disadvantaged. We keep being told that this is just a small step and we will not go further. However, I am afraid I am not so sanguine about our society’s sensibilities. I look around and see such cruelty to refugees and asylum seekers. I see what is happening to the destitute and the effect of cuts on the poor. I am not so confident that our expressions of altruism can be relied on into the future. I am not so sure that there is enough commitment to the vulnerable.

Changing law is very important. Law is the bedrock of our nation; it is at its foundation. Some laws matter more than others, and this law will certainly matter. It speaks to who we are and how we want to be. Law is our national autobiography. There are good chapters and bad chapters. We should be very careful about what we are writing now.

Criminal Justice and Courts Bill

Baroness Kennedy of Shaws Excerpts

Monday 14th July 2014 Lords Chamber

[Lord Beecham]

My Lords, tagging—or electronic monitoring, to give it its official title—is potentially a useful tool in cases where it is necessary to protect the public by, for example, prohibiting contact with named individuals, imposing a curfew or restricting access to particular places. Even so, we are all conscious of the appalling experience with the Government’s favoured all-purpose contractors, G4S and Serco, which resulted in the repayment by those companies in the end of £214 million, roughly equivalent to the total of a year’s savings engendered by cuts to legal aid. Clause 7 takes us, as we have heard from the noble Lord, Lord Marks, into new territory with the extension of the use of this system to prisoners on licence, and that on a mandatory basis. The Chief Inspector of Prisons has been highly critical of this proposal, since in the absence of evidence of absconding or committing offences while on licence this is not, in fact, a significant problem. What is the evidence on which this proposal is based and what is the cost of the equipment and the necessary monitoring? The impact assessment states:

“Though benefits likely to arise from the increased use of ELM have been identified, we are not able to quantify these benefits at this stage … As such, we are unable to calculate impact”.

That is an extraordinary basis on which to import into this legislation a mandatory requirement. It seems, as an approach to legislation, to be matched only by the Home Office’s approach to record keeping.

Dan Jarvis MP, my honourable friend in the Commons, has identified some significant risks. They include the possibility that the technology might not be capable of delivering the service at an economic cost. The use of tagging might not have the anticipated deterrent effect. The new licence conditions might lead to an increase in breaches, such as not wearing the tag, which could lead to more prison places being required. On the latter point, the impact assessment rather weakly admits that the number of additional prison places required, “cannot be accurately estimated”. If ever the Government’s own impact assessment has made the case for properly piloting a provision, this is clearly such a case. Moreover, there is widespread concern about making this a mandatory condition, something that is at odds with the whole purpose of release on licence, which is to help offenders reintegrate into society. One has to ask whether making it mandatory is a provision dictated by the potential contractors’ need for an assured case load and associated financial returns rather than any substantive merits of the procedure.

There is also the unacceptable position that the Secretary of State may impose a code of practice especially about the data acquired through the process without parliamentary approval. The Joint Committee on Human Rights regards safeguards in relation to the collection and storage of such data as crucial. Where are we in relation to the drafting of a code? Amendment 12 deals with this issue.

Amendment 13 calls for an early review of any scheme in order to assess its actual impact on individuals, on reoffending, and on cost. Amendment 11, which we seek to repeat in Amendment 44 applying to secure colleges, would make the contractors subject to freedom of information procedures. Last year, the Information Commissioner asked the Justice Committee, in this respect, if more and more services are delivered by alternative providers which are not public authorities, how do we get accountability? This is particularly relevant in the context of the justice and penal systems, where there have been too many worrying failures and instances of quite disgraceful treatment of prisoners and detainees by such contractors. If, as is quite right, state prisons are subject to the Freedom of Information Act, what possible reason could there be for excluding other providers, including those who are to provide the tagging mechanisms here?

I hope that the Minister can deal with some of these questions, as well as the points of substance raised by the noble Lord, Lord Marks. It is absolutely impermissible for these powers simply to be imposed by order, and on the basis of such flimsy evidence as the Minister produced, to support the extension in the way that the Bill prescribes.

[Baroness Kennedy of The Shaws (Lab)]

My Lords, I know that it is normal that the Front Bench on this side finishes any debate before the Minister answers, but I really have a bad feeling about the clause and I want to support the amendment. The provision smacks to me of the outcome of lobbying by those who will have highly remunerative contracts, if it comes to pass. We are not hearing any costings on this, and I would very much like the Minister to tell us what it is going to cost the public purse. As others have said, there are circumstances in which it is very useful to tag someone when there are concerns about whether they might not respond to the ordinary inhibitions on their liberty during a period of parole, but I am concerned about it being used in this wide way. Behind the provision is the lobbying by those private sector companies that now make a great deal of money out of this very kind of thing. Have any costings been done? How much will it cost the public purse?

[Lord Ponsonby of Shulbrede]

My Lords, I want to pick up on the point that my noble friend Lady Kennedy of The Shaws has made and speak to Amendment 13, on the review of this extension of tagging. My honourable friend Dan Jarvis made the point in the other place about possible unforeseen consequences of this extension. I was talking to a magistrate colleague of mine only last week, and she pointed out to me that the new GPS tags are physically much larger than the existing tags used today. That means that they are possibly easier to remove—but there is another possible consequence, in that they need charging much more often. The existing tags do not need recharging because the battery lasts for the length of the period that the person is tagged. Potentially, that raises a whole series of issues with offenders—people out on bail or offenders in the case that we are now discussing—who are not properly recharging their GPS-driven tags. My understanding is that they would have to do it by an induction loop; it would not be a physical connection. That could raise a lot of unforeseen consequences, which is why I reiterate my support for Amendment 13, so that it can be looked at when the provision comes into force.

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We must be ready to use innovative ways of managing offenders in the community. It is an important element in our strategy to improve public protection, reduce reoffending and assist in the successful detection and prosecution of crime. Based on my assurances, I hope that the noble Lords will not press their amendments.

[Baroness Kennedy of The Shaws]

Before the Minister sits down, perhaps I may ask a question. Was there lobbying by security companies to have this change in law introduced so that it would be compulsory for all prisoners on licence to have tags placed on them? Was there lobbying to create this change in law?

[Lord Ahmad of Wimbledon]

The noble Baroness asks a pertinent question. Representations are always made in any part of government, but the Government are, as I hope I have indicated, taking these steps forward in line with the concerns that exist and based on the evidence that I have presented to the Committee today.

Criminal Legal Aid (General) (Amendment) Regulations 2013

Baroness Kennedy of Shaws Excerpts

Wednesday 29th January 2014 Lords Chamber

[Lord Pannick (CB)]

My Lords, another week, another set of legal aid regulations to regret. These regulations will severely limit the availability of legal aid advice and assistance in prison law. I shall mention four examples of issues for which legal aid advice and assistance will no longer be available by reason of these regulations. The first is Parole Board proceedings for indeterminate sentence prisoners—ISPs—where the Secretary of State refers the case before the expiry of the minimum term for advice on a move for the prisoner to open conditions, and also where an ISP is removed from open conditions and the Minister seeks advice from the Parole Board on a return to an open prison. This will no longer be covered. The Parole Board itself said in its written evidence to an inquiry on this subject by the Joint Committee on Human Rights that because most prisoners require a period in open conditions before the Parole Board can be satisfied that they are safe to release:

“There is in consequence, a great deal at stake for prisoners at these reviews”.

The need for high standards to be applied at such hearings, in the interests of the prisoner and in the public interest, is obvious, and because of the impossibility of prisoners representing themselves effectively at such hearings and problems such as how to manage a prisoner cross-examining a professional witness giving evidence about the prisoner’s conduct in prison, the Parole Board told the Joint Committee in its written evidence that it believed the proposal to remove legal aid,

“is very likely to impede our attempts to deal with cases fairly, promptly and effectively”.

It is very surprising that the Secretary of State should have proceeded with the changes despite the concerns expressed by the Parole Board.

The second example of decisions which will be excluded from legal aid is decisions to place or keep a prisoner in Category A—that is, prisoners assessed to be a high security risk—which of course affects prison conditions. A third excluded category is the allocation of places in mother and baby units. Vulnerable women will be denied access to legal advice on whether they should be separated from their babies. A fourth example is decisions on removal from association—that is, segregation decisions. One could give many more examples.

What are the justifications offered by the Secretary of State for denying legal advice and assistance in such important matters, even if all other eligibility criteria are satisfied? The main answer given by Mr Grayling, the Secretary of State for Justice, in his oral evidence to the House of Commons Justice Select Committee on 3 July 2013 is that the difference between him and his critics was “ideological”—his word. Indeed, he used that word three times in as many minutes in response to questions on this matter. The report of the evidence is published as HC 91. Mr Grayling told the Justice Committee:

“I do not believe that prisoners in jail should have the right to access legal aid to debate which prison they are put in”.

He went on to say that they should not have the right to legal aid to raise other questions about their treatment, with limited exceptions.

This is to reverse 35 years of progress in the approach adopted by the legal system to the treatment of prisoners. The modern era of prison law began in 1978 when the Court of Appeal required fair disciplinary proceedings for those alleged to be involved in the Hull prison riots. Since that decision, our courts have repeatedly made it clear that administrative decisions in prison must comply with basic standards of legality, procedural fairness and rationality.

The application of legal standards to decision-making within prisons has immeasurably improved the quality of those decisions and ensured greater transparency and accountability. No one, with the possible exception of the Secretary of State for Justice, could doubt the public benefits in enabling prisoners to hold prison authorities to basic standards of legality and fairness or the indispensable contribution which has been made in this respect by legal aid. That a Secretary of State, and indeed a Secretary of State for Justice, should now, for so-called ideological reasons, wish to reverse such developments is very much a matter for regret.

Mr Grayling’s second point is that legal aid is not needed because the internal prison complaints system and the Prisons and Probation Ombudsman will provide redress where appropriate. Without legal assistance a prisoner is simply not going to be able to make his or her points effectively and speedily by reference to the applicable legal requirements. Unhappily, many prisoners lack basic skills of literacy or suffer from other problems which impede their ability to present an effective grievance. Her Majesty’s Chief Inspector of Prisons, Mr Nick Hardwick CBE, echoed these concerns in his evidence to the Joint Committee on Human Rights, as recorded in paragraph 174 of the Committee’s seventh report.

As the Law Society has pointed out in its helpful briefing on this Motion, at present many complaints are simply, effectively and speedily resolved by a solicitor’s letter setting out the legal position to the person taking the decision. The Prisons and Probation Ombudsman can only make recommendations and provides a much slower method of seeking redress than a solicitor’s letter. The ombudsman, Mr Nigel Newcomen CBE, told the Joint Committee on Human Rights that he was concerned about the Government’s proposals, in particular because his office was unable to cope with the expected increase in workload.

These regulations will not even save public money. The cost of maintaining legal aid in ISP cases before the Parole Board, for example, is minimal, and the cost of ISPs remaining unjustifiably in closed conditions when they could safely be allowed to move to open conditions is high. The Howard League for Penal Reform has pointed out that the Ministry of Justice has put the cost of dealing with each complaint to the ombudsman at £830, which is more than three times the £220 fixed fee for a solicitor doing this work under the legal aid arrangements.

In the Supreme Court last April, in the case of Osborn v the Parole Board, reported in volume 3 of the 2013 Weekly Law Reports page 1020, paragraph 72, Lord Reed stated for the court that,

“procedures which involve an immediate cost but contribute to better decision-making are in reality less costly than they may appear”.

I suggest that the Minister conveys the suggestion to the Secretary of State for Justice that the words of wisdom of Lord Reed should be displayed on Mr Grayling’s desk in very large letters.

These regulations will do enormous damage to the rule of law in prisons and there is no justification for them. I beg to move.

[Baroness Kennedy of The Shaws (Lab)]

My Lords, I echo everything that has been said by the noble Lord, Lord Pannick. I, too, regret that the Government are taking this course and regret profoundly what was said by the Secretary of State for Justice, Mr Grayling, in describing the differences between those who supported the maintenance of legal aid and those who were agin it. It is as though it is not enough to go to prison and lose your liberty, and experience the deprivations that we know imprisonment means, so we are looking for other ways to punish.

I will speak specifically about women. As we in this House all know, women in prison are very largely those who have experienced abuse or domestic violence. They are often in prison because of serious social problems, they have mental health problems, and often have problems of addiction. The panoply of problems that they have do not make them people who will be well able to represent themselves in trying to get their rights in prison.

I will mention the issue of mother and baby units. In the past I have been involved in such cases, where a woman seeks to prepare for an application to have her baby remain with her, and has to secure supportive evidence, expert reports, and so on. It is impossible for a woman to do that without the help of a solicitor. Representations have to be made in relation to any refusal to offer a woman a place in a mother and baby unit, and I can assure noble Lords that that is sometimes done—and not done—for the best of reasons.

Women sometimes make applications for temporary release when something disastrous is happening at home with other children; they seek a temporary licence so that they can spend time at home. Many female prisoners are their children’s primary carer. We know that 55% of women in prison have a child under 16 and wish to make use of that release on temporary licence when they have emergencies at home. I know from experience that the application of the release on temporary licence policy is frequently misapplied by prisons, and women who are eligible are incorrectly refused. Legal help is vital to them for making their application, making representations, drawing on supportive evidence, and so on, but it is no longer available.

Disabled prisoners often have real problems about the suitability of their accommodation or other services they need, and need legal help to acquire them. Mentally ill prisoners do not get legal help to deal with many of the attendant matters that go along with convincing the authorities of the seriousness of their problems, whether that is on the depressive scale or as regards behaviours that clearly show disturbance, but which often bring them into dispute with the authorities in the prison. There are often arguments about the capacity of such women. They present with difficult and challenging behaviour which is often met with a strong disciplinary response from the prison so that they are awarded extra days as punishments, when in fact mental health is the problem. As extended prisoners, women often have the date of release set further and further away because of their behaviour, but that behaviour is due to their mental ill health.

In those sorts of cases you need to have the representation of someone who is legally qualified to help take the appropriate course and find the appropriate expertise to support applications. The Government’s response is that prisoners should use the internal complaints procedures—the noble Lord, Lord Pannick, described the inadequacy of that. The process of appealing to the ombudsman is often slow and does not give the remedy that is sought. Add to all that the poor educational attainment of most women in prison and the situation is hopeless.

Before this debate a Member of this House said to me, “Are you speaking in the legal aid debate?”, to which I replied, “Yes”. He said, “You know it’s hopeless”. My response to that was that it may be hopeless, but I hope that by having this debate some members of the Government will feel shame. I am speaking of the most vulnerable today. I hope that a feeling of shame will enter into discussions among the Government and between the coalition partners about the impact of this on the lives of some of the most fragile people in our society.