Prisons: Child Suicides
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The Lord Bishop of Guildford
Would the Minister care to comment, in the light of the reports of HM Inspectorate of Prisons of May this year on the increased violence at Ashfield and Feltham—it is 10 years to this month since the Commission for Racial Equality produced its report on Feltham—on the desirability of the elimination of the use of batons and routine strip searches in juvenile prisons?
Whole-life Sentences
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Lord McNally
My Lords, I fully agree with the noble Lord, and I think that both interventions have helped to clarify something that is not necessarily clear in coverage by the media. This judgment did not say that anybody should be released immediately or that whole-life tariffs may not be imposed, but it did say that we should look at such sentences in the light of what was described as penological purpose—punishment, rehabilitation and prevention. The court held that the system in England and Wales, which provides only for compassionate release, was not sufficient.
The Chancellor of the Duchy of Lancaster (Lord Hill of Oareford)
My Lords, it is this side. Then I am sure we will have time if we get a crack on.
Lord McNally
I think the best thing that I can do is place a list in the Library. Over the years, the court has held against Britain in about 3% of cases. During that period, we have had the great benefit of being part of a continent-wide concept of upholding human rights, of which we should be proud.
Lord Elystan-Morgan
Does the Minister accept that implementing faithfully a decision of the European court is not a peripheral luxury but something that binds us in law and in honour, and that the greatest architect of this institution was in fact Sir Winston Churchill?
Lord McNally
There are a number of architects; Sir David Maxwell Fife was a notable originator. However, what the noble Lord said is absolutely right. That is precisely why, given the importance of this judgment, we intend to give it a full analysis and will provide our considered response in due course.
EU: Police and Criminal Justice Measures
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Offender Rehabilitation Bill [HL]
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Lord McNally
We are working within a very strict budget. Because we have other commitments as far as the overall expenditure of the department is concerned, we have also said that we will be spending a little less than the £1 billion that is spent on probation at present. We believe that with our experience of piloting other schemes we can bring that down. But that will unfold as we test against the market. One of the reasons why we cannot give the precise figures is that we will be going into negotiations with commercial operators who would very much like to know in advance what our baseline would be, along with our other financial operations. We know the figures in broad terms and, as we have said before, while this will make some savings, it is the flexibility, the hard bargains that we were able to drive with the private sector, and the efficiencies that we will introduce which will bring the costs down.
Yes, we all use the term “probation service” rather loosely. What my noble friend Lady Hamwee drew attention to was that there is no definition of it in statute, and therefore she was warning the noble Lord, Lord Ramsbotham, of a possible defect in his amendment in calling it as such.
Lord Elystan-Morgan
My Lords, perhaps I may put a point to the Minister. No doubt he will recollect that at the end of 2010, the National Audit Office calculated that the cost of reoffending lies between the parameters of £9.5 billion and £13 billion per annum. Is it not therefore a reality that, even with the best will in the world and the most accurate attempt at analysis, it is impossible to arrive at any meaningful figure for what these new and revolutionary changes will bring about? It is not a question of not showing your hand in what might be a commercial negotiation that will have to follow, but that the figures are virtually unquantifiable and could mean massive public loss.
Lord McNally
I am extremely grateful to the noble Lord for that intervention, which probably was not intended to be helpful, but certainly was. That is because these are the stakes we are playing for. I do not doubt the figures he has given and indeed I have seen them. Reoffending costs this country between £9 billion and £14 billion, so let us not say that we are going to aim to prevent 50% of reoffending. If we could get it down to 40%, just think what that would mean in hard cash. That is the prize we are aiming for. Of course it takes some radical thinking and means taking risks that are outside the box—that is exactly what we are doing. When there is a new idea, it is a lot easier to throw spanners in the works or to say what is so often said about any new and radical idea, “Let’s have a bit more time to think about it and take it all a bit more slowly”. We have put a lot of work into this project and, as we develop and unfold it, we are willing to share information with Members of this House and others. However, the noble Lord is quite right that, as well as the impact on offenders who are taken out of the cycle of crime, and apart from the impact on victims who will avoid the crimes that the rehabilitated will not commit, there really is big money to be saved by carrying this through. I am as enthusiastic and confident about it now as I was when we started, and I hope that the House will feel the same as it did when it gave the Bill an overwhelming Second Reading.
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.
Offender Rehabilitation Bill [HL]
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Lord Ramsbotham
I support the amendment so ably moved by the noble Lord, Lord Bradley, and, in so doing, declare two interests, one as chairman of the All-Party Group on Speech and Language Difficulties and, secondly, as a vice-president of the Centre for Mental Health, which has the privilege of hosting the follow-up work being done by the noble Lord on his excellent report, which he mentioned.
My concern over this issue was heightened by a paragraph I read on page 9 of the White Paper, which describes how the Ministry of Justice will put in place a system which will give providers sufficient grip to make sure offenders engage with the rehabilitative services. I am not certain that “grip” is the right word to use in connection with these people.
The noble Lord rightly mentioned his concern about the training and education of the supervisors who do not, of course, come from the probation service but from a whole host of providers yet to be realised. He mentioned the Legal Aid, Sentencing and Punishment of Offenders Act, during the passage of which my noble friend Lord Rix and I met with the chairman of the Queen’s Bench Division to discuss how offenders could be made aware of these issues during the judicial process. We were most particularly concerned about the increasing incidence of police taking action without going to court, and making certain that offenders have the necessary representation on the part of responsible adults who can interpret matters for them. This issue needs to be looked at.
That allows me to make another observation about the White Paper. Although it is acknowledged that many of these offenders have mental health problems, including learning disabilities, there is no mention of commissioning mental health services for them, which gives the probation service a problem. With the emergence of a new commissioning process under NHS England and of health and well-being boards, it will be important for the probation service to be associated with those boards to make certain that the proper support is available, not just in relation to the subject raised by the noble Lord, Lord Bradley, but in relation to all aspects of mental health problems experienced by offenders.
Lord Elystan-Morgan
My noble friend Lord Northbourne’s comments on the word “rehabilitation” have stimulated my thoughts on this matter. He is absolutely right: rehabilitation can only mean a return to a condition which once existed. I am not enough of a linguist to say exactly how the word is constructed, but that is clearly what it means. I wonder, however, whether the word “reform” might be appropriate in the circumstances. I well remember one of the very first days that I attended this House, in 1981. A speech by the Lord Chief Justice, Lord Lane, a most distinguished gentleman, was given very great publicity and attention by the House. Its theme was that in the whole of his experience, both as counsel and as judge, he did not think that prison had reformed a single person. I remember asking myself how that could be, side by side with Rule 1 of the Prison Rules of the time, which said that the chief purpose of imprisonment was the reform of the offender. Both could not possibly be right. Putting aside that irrelevance for the moment, it may very well be that the word “reform” would be a more appropriate description of the situation than “rehabilitation”.
The noble Lord, Lord Bradley, raised the question of the condition of supervision that a person should be of good behaviour. It may well be that Parliament should define that situation more closely and specifically. There are two aspects here. The first is the boundary that it is Parliament’s duty to place and the second is the communication of the exact location of that boundary to the defendant in appropriate circumstances. It is part and parcel of the duty of the sentencer in any aspect of sentencing to make it clear to a defendant exactly what the court means. Over and above that, it is also their duty of the interview solicitor and counsel before leaving the matter, to make quite certain that the defendant knows exactly what is meant and what is expected of him or her.
Lord Lloyd of Berwick
Before my noble friend sits down, surely “rehabilitation” is the correct word because it relates, not to the period before he went to prison, but to the period while he has been in prison.
Lord Ramsbotham
My Lords, I support my noble and learned friend Lord Woolf on Amendment 7. I understand that at this moment the Justice Select Committee in the other place is conducting an inquiry into women offenders. One of the areas on which it has had a lot of evidence of concern is payment by results. With reference to what we were told yesterday about cohorts, I presume that women offenders will be separate cohorts as far as payment by results is concerned and that the results that have to be achieved will be tailored to women and very carefully considered.
Lord Elystan-Morgan
I do not think that my noble and learned friend Lord Woolf need apologise in any way for the amendment. There is no suggestion of arrogance in spelling out duties such as these. In the past 30 years, we have had about 30 criminal justice Acts, whether they carried that name or not, and I would be very surprised if one were not able to find in each and every one of them some structure not unlike that proposed by my noble and learned friend. If one thinks of the very basis of a prison sentence, at least 25 years ago that structure was spelled out in a way that some might think embarrassing to a sentencer, because it seems to me that no sentencer would ever conceive of approaching the problem in any other way. The statute states that the sentencer has to consider whether the offence that has been committed is serious enough to justify imprisonment in the circumstances and that he must then go back to see, in the light of all the circumstances, including the personal circumstances of the defendant, whether it is necessary for there to be a sentence of immediate imprisonment. In one respect, one could say that that is utterly insulting. Could there ever have been a sentencer so lacking in understanding and conscience not to approach his or her duty in that way? Yet, as a circuit judge, I had to look at that section day in, day out, and I found it utterly reassuring. I plead the point that there is nothing wrong in spelling out a duty, even though that duty might be obvious to everybody looking at the situation.
Like so many others who have been involved with the criminal courts, I have taken the view that men commit offences on account of all possible features in the range of human wickedness. In the case of women, it is very different. The splendid report on women in prison written some years by the noble Baroness, Lady Corston, reinforced the point that many of them are not criminals at all and should not be in prison. I am not saying that some of them have not committed truly horrendous offences, but that must be a very small proportion, and a very high proportion of women in prison should not be there. Including these principles in legislation, obvious though they are, would do no harm whatever.
Lord Ponsonby of Shulbrede
My Lords, Amendment 9, which is part of this group, would add a mental health assessment as a supervision requirement in Schedule 1. As noble Lords will be aware, a high percentage of prisoners suffer from mental health difficulties, and the purpose of the amendment is that the sentencing court should be able to add a mental health assessment as a requirement that would benefit offenders when they came out of prison. Of course, it is far more desirable that this is picked up far earlier upstream, but there may be occasions where it has not been picked up, and it is obviously an issue. Sentencers should be able to add this as a requirement, so if it is not going to be picked up in prison it will be when the supervision period starts. That is the purpose of Amendment 9.
Probation Service: Community-sentenced Offenders
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Lord McNally
My Lords, at no stage—either at this Dispatch Box, in private meetings or in any other meetings elsewhere—have I ever said anything other than that I am in awe of the work that our probation officers do. It will remain a matter of concern that we get the balance right between our public probation service and the new ideas, initiatives and ways of doing things that we hope this rehabilitation revolution will bring about. I personally hope that one of the outcomes of this rehabilitation revolution will be a probation service that is enhanced in public respect and public confidence. Indeed, I would look to the day when we have a chartered institute for probation, with the same kind of professional status as other professions.
Lord Elystan-Morgan
My Lords, the Minister speaks of a new way of doing things. Is it not the case that when legislation was passing through Parliament, we were told that certain bonuses of a financial nature would be paid to those supervising the system, based on success? Will there be an aliquot penalty in the case of failure? In the case of success, what will be the indices of performance in respect of which success will be judged and at what level?
Lord McNally
My Lords, part of the exercise is what is roughly called “payment by results” for those that take on these undertakings if they manage to achieve a rehabilitation, which means people not reoffending within a specific time. Part of the problem we face is that nearly half of offenders leaving prison reoffend within one year. We hope that the system will incentivise those providing services to think creatively about rehabilitation. The worst thing for victims and the taxpayer is this revolving door, which successive Administrations are faced with and which, I believe, the rehabilitation proposals we are bringing in give us a real chance of breaking into.
Magna Carta: 800th Anniversary
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Lord McNally
For one minute, I thought that I was going to be dragged into Scottish politics. My brief tells me that Scotland did not sign the Magna Carta—neither did King John, before anyone corrects me on that. Every time we have this Question on the Order Paper, another good suggestion comes forward. I must say that the suggestion of the cleaning is an excellent one.
Lord Elystan-Morgan
My Lords, does the Minister accept that although, at the request of King John, three months after the sealing of Magna Carta, the charter was annulled by His Holiness the Pope, it nevertheless remains one of the most noble documents of human history, representing as it does the interface between principle and power and, indeed, the challenge of the rule of law to raw authority; and that, in that respect, it has much in common with the European Convention for the Protection of Human Rights?
Lord McNally
I like the definition of the late Lord Bingham, which was that the great thing about Magna Carta was not so much the absolute political detail—yes, it was repealed about three months afterwards—but that it remained part of the DNA of this country for 800 years. People know what we mean by Magna Carta. When Eleanor Roosevelt announced the UN Declaration of Human Rights, she said that it was a Magna Carta for all mankind, and “all mankind” did not need a translation; she knew what it meant. I share the views of the noble Lord about the European Convention on Human Rights.
Civil Legal Aid (Merits Criteria) Regulations 2012
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Lord Beecham
Assuming that the appellant has the knowledge of that procedure, he might ask it to review its decision, but the review will amount to nothing unless the tribunal convicts itself, as it were, of an error in law. If it makes that mea culpa then under the Government’s amendment there is a potential for legal aid to be granted, but not otherwise.
Lord Elystan-Morgan
My Lords, I support both amendments. I am sure that it is not necessary for me to add my voice to the very distinguished contributions that have already been made in this regard. Both amendments turn upon undertakings that have been solemnly given—and, no doubt, in the best faith—by the right honourable Kenneth Clarke. I accept that completely. If there has been mischief, it has probably been the mischief of mandarins thereafter in trying to release him in some way from an undertaking that he solemnly and sincerely gave.
The other feature that is common to both amendments is that they deal with situations where preliminary machinery is set up before a person can qualify for legal aid. In both cases, in my view, that machinery imposes such a burden upon the potential applicant to make his or her case virtually impossible—in other words, a total denial of what otherwise would be a fair and just application by that person.
In the circumstances, bearing in mind the weight of authority that has been projected towards the Government in this case, it would be a very rash Minister who did not concede the obvious points made in the amendment moved by the noble Lord, Lord Pannick. If the noble and learned Lord, Lord Mackay, is correct about the interaction of Regulations 39 and 53, and if it be that Regulation 53 in this regard is totally and absolutely governed by the relevant provision in Regulation 39, then that is it—the Government do not lose one millimetre advantage, because that situation has already been covered and fully determined. However, if that is not the case, then it seems that the argument put so powerfully by the noble and learned Lord, Lord Goldsmith, must have come into play. That is that the director could come to the conclusion that indeed all reasonable avenues had been pursued but that there were unreasonable avenues that had not been pursued. That would be an absurdity and a miscarriage of justice. It is either one or the other.
As far as the amendment of the noble Lord, Lord Bach, is concerned, it seems to me that there again is an irrefutable case. I am not at all clear what triggers the situation where there would be a review by the first tribunal. Would it be something entirely within the discretion of that tribunal, or would it be on application? If it is within the discretion of the tribunal, it is a very strange situation that a tribunal is invited to consider whether it is in error.
Of course, I draw the distinction that has already been pointed out by the noble Lord, Lord Beecham. There is a world of difference between a point of law and an error of law. When a judge has adjudicated in a civil case and is invited to grant leave to appeal, he is not saying, “I am wrong”, or, “I am sure that I am wrong, please appeal”. What he is saying is that there is a point of law that is properly arguable. That is a very different situation from a tribunal which says, “We are wrong”. In fact, I do not know of any other circumstance where such machinery exists in law, but I am sure I will be corrected with regard to that.
The basic principle that we are concerned with here is that legal advice on a point of law should belong to the beginning of an action, not to the end of it. So much anguish will be saved by a very modest expenditure. I believe that so much money from the public purse will be saved because there are undoubtedly downstream costs which will be massive in scale in relation to this. However, above all it is a question of miscarriage of justice.
We think of miscarriage of justice as a situation where a tribunal has come to an utterly wrong decision. It is not limited to that at all. A miscarriage of justice occurs where a person has a just, meritorious case, and on account of lack of money is unable to have that case properly adjudicated. If you ask any decent citizen of this land, whatever politics or total lack of politics he or she may have, “Do you believe in a miscarriage of justice?”, we all know what the answer would be.
Leveson Inquiry
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Lord Elystan-Morgan
My Lords, I resist completely any temptation to embarrass the noble Lord in relation to the issue of legal aid, something that I have assiduously sought to do over the past six months, but does the Minister accept that Lord Justice Leveson says in his report that any complaint should be made,
“without cost to the complainant”?
Therefore it does not matter whether that comes from legal aid or some other public purse—there should be that complete freedom and guarantee in this regard.
Lord McNally
As with other parts of the Leveson report, we will have to look at this. However, one of the things that I know is in the report is the suggestion that, rather than a purely legalistic solution, there should be a road for settling complaints against the press that is cost-free.
Justice: Legal Advice
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Lord McNally
We continue to support the concept of legal advice centres, but they too have had to make some tough decisions in these circumstances. I hope that we can retain a good network, but we have had to make tough decisions in this area.
Lord Elystan-Morgan
The Minister says that we are poorer, but we are not poorer. When legal aid was established immediately after the Second World War, we were absolutely skint. We had to negotiate a crippling American loan. The economic situation we are now in is infinitely better than it was then. Why is legal aid being sacrificed on the altar of economic need?
Lord McNally
Legal aid is not being sacrificed on any altar. I pay tribute to the foundation of legal aid in 1948, but by the time we came into office, the legal aid budget was over £2 billion and the outgoing Government were already planning to cut it. I want to make sure that we maintain a legal aid system that will remain one of the most generous in the world and focus it on the most needy.