Justice: Indeterminate Sentences
Lord Wigley Excerpts(11 years, 7 months ago)
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Lord McNally
My Lords, the Government have done something. IPPs were abolished by the LASPO Act, but unwinding the system has to be done very carefully. We are not talking about people who are innocent, but people who have been sentenced for long periods for serious crimes. The IPP system was introduced by the previous Government with, I think, a genuine intent to deal with this problem. We are bringing in a more flexible approach and we have both the Parole Board and NOMS working closely on it. However, it is not simply a matter of throwing open the gates of the prison because in some cases we are dealing with very dangerous people, so we must have public protection in mind when deciding how to deal with them.
Lord Wigley
My Lords, does the Minister accept that there could well be implications arising from the James case for the 3,500 prisoners who have passed their tariff that could lead to them claiming compensation against the Government either under tort or under Section 8 of the 1998 Act? In those circumstances, do the Government accept that they may have to pay compensation?
Lord McNally
One of the reasons why we are studying the judgment is to make sure that we get this right. There are three very early cases which go back to before the reforms brought in by the previous Administration in 2008 in order to bring in more flexibility. It is interesting to note that the court did not find that IPPs themselves were in breach of the Human Rights Act. The weakness that quickly became apparent was the Catch 22 whereby the prisoners were supposed to carry out certain restorative and rehabilitative programmes that were not available. After 2008, the Government brought in some reforms and we have had further discussions with the Parole Board and NOMS to try to speed them up. But I emphasise again that we are not dealing with innocent people. These are people who have been before a court and found guilty of the crimes which have brought forward this programme. We are trying to manage them out of the system as quickly as possible, but with due care for public safety.
Legal Aid, Sentencing and Punishment of Offenders Bill
Lord Wigley Excerpts(12 years, 1 month ago)
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Lord Wigley
My Lords, I also welcome the Government’s shift on this matter. I am sure it is one that will give the noble Lord, Lord McNally, considerable satisfaction, given the family dimension and his understanding of this condition. It will, I hope, be of considerable benefit to many thousands of sufferers and their families. I join in congratulating the noble Lord, Lord Alton. I am aware of his campaigning ability from many years in another place. We campaigned sometimes together and sometimes on opposite sides. When one was on the opposite side, my goodness, one knew one had a contender to deal with. The diligence that he and other colleagues across parties have applied to this issue will be of considerable satisfaction to the groups of campaigners who represent sufferers and their families.
I want to raise a couple of points with the Minister. I note with interest that the definition of diffuse mesothelioma used here is the one that was incorporated in the Pneumoconiosis etc. (Workers’ Compensation) Act 1979. Another dimension of what he mentioned a moment ago is the fact that there are still people who cannot trace their employers or pinpoint which employer was responsible at the time at which the disease may have developed. That is the case for a number of diseases. The 1979 Act, as noble Lords will remember, arose largely from the position of slate quarriers, but many other workers were affected in the cotton and pottery industries and some in the steel industry.
I am not going to reopen the debate that we lost the other night. We lost that one, and so be it, but there will be some cases in which there is suffering that is not covered by any other provision. When the review is undertaken, I hope that some consideration can be given to whether there are other cases of industrial workers who have suffered loss of health, and in many cases loss of life, and do not have an avenue through which to get compensation. If they do get compensation, they should not have that compensation unreasonably eroded. I hope that can be taken on board by the DWP. I understand that the noble Lord, Lord Freud, the Minister in the DWP who may be handling this, also has a good understanding of the suffering that arises from these conditions, so hopefully we can make progress.
Finally, this may be a lesson for us in this House to try and try again. We could have abandoned this the other night without insisting on the amendment that we put through to the other place. We did not and that is what enabled progress to be made on this occasion. There may be other instances when we need to be equally tenacious and determined in order to make sure that the other place gives adequate attention to a subject and that progress such as this can be made.
Lord Thomas of Gresford
I add my congratulations to the noble Lord, Lord Alton, on all the very hard work that he has put into this matter. I also pay tribute to the work of the Greater Manchester Asbestos Victims Support Group, in particular to Tony Whitston, who has lobbied so hard on behalf of victims; and there are other support groups, such as the Merseyside support group, which have lobbied just as hard.
I argued on Monday that success fees ought not to be claimed by solicitors in this type of case. I was pleased to hear the Minister in another place, Mr Djanogly, say yesterday:
“this is not an issue of causation. I heard Lord Thomas speak in the other place yesterday, and I very much agree with what he had to say, which was essentially that in cases in which causation is not an issue, there is—in many respects—no reason why solicitors should have a success fee for that type of work”.—[Official Report, Commons, 24/4/12; col. 831.]
I was strongly supported on Monday by my noble friend Lord Faulks, and I am grateful to him for the concern that he has shown on this issue. An objection was made by the noble Lord, Lord Bach, that it was impossible to guarantee that solicitors would not charge a success fee against their clients’ damages.
I interjected that if public opinion saw it as an abuse, no doubt the Lord Chancellor would step in to deal with it by way of regulation. There is another way in which this issue could be approached. I suggest to Mr Whitston, his excellent organisation and other similar support groups that he should draw up a list of solicitors who have indicated to him that they would not charge a success fee when, ultimately, the new regime for CFAs is introduced for mesothelioma sufferers. The support group could receive applications from solicitors to be put on an approved list and satisfy itself that firms that are accessible to victims in those industrial parts of the country where the disease is most prevalent—shall we say Newcastle, Leeds, Manchester, Birmingham, Bristol and, of course, the industrial areas of north and south Wales?—are geared up and competent in this area of work. Sufferers from mesothelioma turn to the support groups, and if they had a list of solicitors who had undertaken not to charge success fees against the damages they receive and who they are satisfied are competent, that would be a great way forward.
Lord Wigley
I follow the point that the noble Lord made the other night; I well understand it and have some sympathy with it. Clearly, if the sort of provision he is suggesting were to be made, it would be very helpful. Does he feel that it should be limited to mesothelioma, because there are many other cases of compensation in which it is equally unreasonable that there should be a deduction of up to 25 per cent from the compensation?
Lord Thomas of Gresford
The noble Lord will recall that on Report, I referred not only to cases of mesothelioma that Mr Tony Whitston drew to our attention from the Brymbo steelworks in Wrexham but to cases of pneumoconiosis that I have known. He is a slate quarry person; I come from a colliery area and I know of the long-term suffering of those victims. With mesothelioma, that could be done now and could be extended to other diseases in due course.
The support groups would be uniquely placed to monitor the service that such firms gave to mesothelioma sufferers, who could report back on their experiences to both the support groups and their successors. That is the answer to those who say that solicitors will not do this work at all unless they are cosseted by success fees. It spreads the work around the country to areas that are particularly concerned with this disease, where experience could be built up by firms of solicitors. It may discourage any idea of focusing litigation of this type in the City of London branch offices of firms that then claim to be paid at City of London rates. Anecdotal evidence suggests that that happens in some CFA cases.
As my noble friend Lord Faulks said on Monday, there are lawyers who are dedicated to achieving the best result for their clients and not so much for their fees. I have no doubt that they would flock to be placed on an approved list and forbear charging a success fee at all. I hope that such an approach will appeal to the Minister, the Lord Chancellor and the Ministry of Justice.
Legal Aid, Sentencing and Punishment of Offenders Bill
Lord Wigley Excerpts(12 years, 1 month ago)
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Lord Clinton-Davis
My Lords, I agree with what the noble Lord has said. I can remember that many years ago, when I undertook my surgery in my constituency, people came there who were all too often inadequate, vulnerable and inarticulate. I do not know how they could have possibly represented their case on the telephone; they were afraid of the telephone. All I wish to say in my brief remarks is that I have first-hand knowledge of what the noble Lord has said and that what is now being proposed will affect such people. The majority of people who sought aid and assistance that they would otherwise not have received were incapable of representing their perfectly justified remarks.
Lord Wigley
My Lords, Amendment 24B improves on the original amendment rejected by another place in that it specifies the criteria that should be taken into account when determining the client’s needs.
The proposed telephone gateway would simply not be a suitable means for many people to access legal advice. Among the groups which the amendment seeks to protect are those whose disabilities and frailties would prevent them from being able to convey their case across the telephone; those whose first language is not English; and those whose cases are so sensitive that they would be hindered in discussing the details over the phone. That could include clients who have experienced abuse, rape and those with HIV/AIDS conditions.
The Government’s proposals have no regard to the individual circumstances of individual cases. People’s dignity should not be compromised in order to make what are likely to amount to modest savings. Cases should not be unnecessarily prolonged by operators with little or no legal training. The Government should surely listen to the many voices that oppose these proposals and reform this risky scheme.
Lord Low of Dalston
My Lords, I, too, have grave doubts as to whether a telephone helpline of the kind we are talking about can be regarded as fit for purpose if the purpose is to disentangle the client’s case with empathy and give appropriate advice on it. The matter is made worse if use of the telephone gateway is to be made mandatory. There may be a place for a telephone gateway—it can have a role in filtering cases, as the Minister said—but it is surely entirely inappropriate that it is made the sole route to discriminating and informed advice.
This is not a matter of speculation for we have been here before and we know what we are talking about. I am talking about the experience that we had with the student loans company when it took over the administration of the disabled students’ allowance. This was administered by a service staffed by the kind of people who will, presumably, be staffing the telephone gateway. They proved to have little understanding of or empathy with the kind of problems disabled students have and for which they were seeking the support provided by the disabled students’ allowance. In fact they were inclined to make light of them and even suggest that the students were somehow swinging the lead or making unmeritorious excuses for financial support from the state.
Those applying for disabled students’ allowance have much in common with the kind of vulnerable people we are talking about needing help with welfare benefits cases. I would not wish to place my confidence in a service of this kind as the mandatory gateway to legal advice and I do not think the House should either.
Lord Wigley
My Lords, the House of Commons has rejected this amendment on the spurious grounds that it is inappropriate. That is a matter of opinion and judgment, no more and no less. Amendment 32 would exempt industrial disease claims from these changes. I supported the amendment that has just been passed by the House that relates specifically to exempting cases of respiratory disease from these changes. Amendment 32 goes wider to cover all diseases, conditions and illnesses that arise from a breach of duty owed by an employer to an employee, some of which may be much more complex than cases of mesothelioma, as we heard a moment ago. In the debate in the House of Commons, the argument was put that there should have been no specific amendment for one condition, such as mesothelioma, but a general approach. By passing this amendment, we give the House of Commons an opportunity to consider having that general approach.
I wish to draw to your Lordships’ attention to the meagre hour allowed in the Commons for debating Amendments 31 and 32. The Minister, Mr Djanogly, concentrated overwhelmingly, almost exclusively in fact, on Amendment 31. He said:
“the amendments are unnecessary. The legal climate in which mesothelioma cases can be brought has wholly changed in recent years”.—[Official Report, Commons, 17/4/12; col. 264.]
The whole tenor of the debate was in the context of mesothelioma, which we dealt with in our debate on the previous amendment. Of the 20 MPs who spoke, 15 spoke specifically about mesothelioma and 15 supported Amendment 32 when it came to a vote. The case against Amendment 32 was just not made in the Commons. We are supposed to respond to what the Commons has told us. It had not debated it at earlier stages, and it did not debate Amendment 32 in the hour that it had on 17 April.
At earlier stages during the passage of the Bill, the case has been made on the basis of road traffic claims and the savings that could be made in that context. Industrial disease cases are wholly different from road traffic accident claims; and, as many organisations, including the Association of Personal Injury Lawyers, have advised me, in road traffic accident claims liability is far simpler to prove than in industrial disease cases. That is why we need to have support for those cases, whatever the condition arising from industrial disease, not just mesothelioma. There is a range of other diseases. In the earlier debate, the Minister referred to further thought being given to mesothelioma by the Government and the DWP later this year. Presumably, on the basis of the argument that he put a moment ago, that further thought will also be given to the more complex cases that arise from other backgrounds in the industrial context. It is important to have the Minister’s response on the record on that.
We have been through these arguments many times, and I am not going to take up the time of the House in reiterating them. I beg to move.
Lord Bach
My Lords, I can be very brief on behalf of the Official Opposition. The Motion that was passed last time in this House was in my name, and it follows that we support the Motion in the name of the noble Lord, Lord Wigley, today. He has summed up the case extremely well, and in our view this amendment should be supported. It is quite wrong that any part of the damages awarded in industrial diseases should be taken from the successful claimant. In principle, it is wrong. Therefore we support the amendment.
Lord McNally
My Lords, I am grateful for my noble friend’s support. We should move quickly to a decision on the matter. This is a very wide amendment. It ducks the issue that the Government have made central to this Bill and which I made in our debate on mesothelioma. Singling out a sector for special treatment is unfair across the board. We are looking in that case for non-legal solutions to the problems of the victims. The Government have taken action on a number of areas of specific industrial diseases and will continue to do so.
As I said at the beginning of my remarks, we will not undermine what most people saw in the system that is now in place: a very inflationary form of financing litigation where neither the claimant nor the lawyer has any need to concern themselves about cost. That is why Jackson was set up and why he came up with the solution that he has. As in previous cases, the idea that the 25 per cent is compulsory is not necessary. I should like to see much more competition and willingness to take these cases. Noble Lords have seen that it is easy to take very hard cases and then to say, “Well, we can’t go along with this”. If you do that, you dismantle the Jackson reforms. I believe that the debates in both Houses over the full period of this Bill have been mainly supportive of the central architecture of the Jackson reforms. I hope that when they vote on this amendment, noble Lords will see its flaws and will support what the Commons has proposed.
Lord Wigley
My Lords, I have listened carefully to what the Minister has said in this short debate, but the fact remains that if one considers the debates that took place at Second Reading, in Committee and on Report in the House of Commons, these issues have not been handled in depth and in detail. We have not seen the figures on how financial savings will arise in detail from the changes that are being made. If there are complexities in law with regard to many of the cases for compensation for injury or disease in a place of work, surely without financial support people will not be able to get the compensation to which they are entitled. If they are entitled to compensation, it is downright unacceptable that up to 25 per cent can be skimmed off.
Time after time the Minister has said that there is no compulsion to take up to 25 per cent. There may not be compulsion but it is available, and the Government have chosen to make it available. To my mind, and I believe to the minds of many noble Lords, that is unacceptable. The House of Commons needs to get its act in order and to apply itself in detail to these questions in a way that did not happen on 17 April when about one-third, at most, of an hour was allotted to the content of this amendment. For those reasons, I wish to test the will of the House.
Lord Wigley
My Lords, I am glad to have the opportunity to support the amendment of the noble Lord, Lord Bach, and the comments of the noble Baroness, Lady Doocey, and the noble Lord, Lord Low, particularly in the context of disability. I speak having sat through the Welfare Reform Bill, as a number of us did for many months during the winter, and having seen the complexity that was just referred to a minute ago by the noble Lord, Lord Howarth. When the regulations under this legislation come forward and people’s well-being—the basics of their lives—may be at stake, they may need the ability to follow appeals to wherever they go.
I want to ask the Minister about the new provisions set out by the Government in Amendments 240A and 240B. They are welcome in that they preserve legal aid for welfare benefits advice for onward appeals to the Upper Tribunal, the Court of Appeal and the Supreme Court. As mentioned earlier, such appeals rest on points of law that are highly complex and which lay people can hardly be expected to cope with alone. Now that the Government have started to recognise the problems inherent in points of law in appeals, why do they not see fit to roll out the same provisions for other areas of law where points of law would arise? Surely such provisions should not be limited just to welfare benefits appeals. Now that the Government have the power to change this Bill by order, especially in respect of the scope of legal aid, I would welcome the Minister’s assurance that they will look again at retaining legal aid for advice on points of law in other complex areas of law, for example immigration appeals. Important principles arise from the changes being made and I would be very glad to have some indication from the Minister about where this might be taking us.
Lord Martin of Springburn
My Lords, the noble Lord has made many very interesting points but, at the end, he said that it would be good if the House of Commons had another chance to look at this matter. If the amendment were carried, the other place would have a chance to look at this. I heard the Minister’s comments about financial privilege, but I do not share his point of view that if we put back the amendment we are being unfair to the House of Commons or to the traditions of this House.
I think of the situations that I had to face in my former constituency where there was a great deal of poverty. I heard many academics say that it was terrible that in the east end of Glasgow and in parts of the north end of Glasgow the life expectancy of people was such that you had a better chance of survival if you lived in Calcutta. It is all very well for an academic to say that, but people in areas of great poverty in my former constituency did not always get the benefits to which they were entitled. But if they go to the first line of appeal, it will be most unfair if they do not get legal aid. In the city of Glasgow, many lawyers recognise that people who have little or no income need the help of lawyers to articulate their cases.
We should not forget that when an appeal is made, often a recipient cannot speak up for themselves—perhaps because they are stroke victims—and cannot communicate, and therefore the carer has to worry about the benefits that they are losing. The carer has a 24-hour job. When someone says they are a carer it rolls off the tongue, but that carer can be up at three in the morning or may be denied the opportunity of a social life. They have to worry about going along to a tribunal on behalf of someone whom they love dearly and whom they are caring for seven days a week and it is a great relief to many of those people if they can get legal aid which will help them so much.
It used to be the case—I know it was a while ago—that if a working man or woman had to get the help of a solicitor, they had to go into the city centre but then lawyers realised that help was needed in the peripheral areas. Many legal companies operate in what used to be shops. They rent shops and now they are in the heart of very poor communities. It would be most unfortunate if people who need help, particularly carers, do not get assistance from those who are legally qualified and able to articulate a case for them.
Legal Aid, Sentencing and Punishment of Offenders Bill
Lord Wigley Excerpts(12 years, 2 months ago)
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The Lord Bishop of Ripon and Leeds
My Lords, as the first speaker from these Benches in this debate, I add my gratitude for all the work of Lord Newton of Braintree. It seems strange to be sitting here without his advice from behind me, as the noble Lord, Lord Bach, said earlier in the debate. He had immense care and concern for children’s needs and rights, which was evident right up to last week. Not to have his sharpness here in this debate is a loss for all of us, so our thanks to him.
The amendments would go a long way to providing security of legal aid for some of our most vulnerable children, at minimal cost. We seem now to have reached a point where legal aid will be provided for many children. I have listened carefully to what has been said by the noble Lords, Lord Thomas of Gresford and Lord Avebury. It seems to be almost accidental whether a particular child will come under the provisions of the Bill. The amendment moved by the noble Baroness, Lady Grey-Thompson, gives us the opportunity to treat all children in difficulties equally, with particular concern for education and sanctuary issues.
We all recognise the importance of education for all, so we must be concerned that Black Caribbean pupils, for example, according to the children’s commissioner, are four times more likely than others to be excluded permanently from school. Those children will often be vulnerable, frightened and very unsure about their future. They need the structure of the legal system to provide them with support at that point in their lives. Equally, we continue to affirm that we have an immigration system that deliberately provides sanctuary for children who have been victims of abuse of whatever kind. They may have been trafficked into this country—and I, too, welcome the Government’s changes on that issue. However, many will not have been trafficked; trafficking is extremely difficult to define. Nevertheless, they may have suffered sexual exploitation, domestic slavery or abuse. They may have been brought into this country as domestic slaves and will often have been abused. Some will be the subject of custody cases, which may lead to abuse or separation from a parent. Others would be in danger of abuse if they returned to a country where exploitation would continue.
Justice demands proper legal representation and the amendments provide a way of securing that at minimal cost. They would demonstrate our concern for the most vulnerable young people in our society. They are absolutely in accord with the Government’s aims and purposes, and I hope, therefore, that they will accept them
Lord Wigley
My Lords, I rise to support the amendment moved by the noble Baroness, Lady Grey-Thompson, and apologise for missing her opening remarks. However, before briefly addressing the amendment, I would like to associate myself with the words in remembrance of Lord Newton. In another place I worked very closely with him, as Tony Newton, when I was vice-chair of the parliamentary All-Party Disablement Group. Even when he could not meet us in all our demands, he was always very positive and looked for ways to come at least some of the way towards us. He will be a great loss for all of us in this House as well as for the many thousands outside the House for whom he worked so hard.
I also thank the noble Lord, Lord McNally, for some of the concessions that he has been able to make at other times—particularly for those with learning difficulties—which I was unable to acknowledge earlier.
On this specific amendment, all of us who have had reason to work on behalf of disabled children will be aware of the need to ensure that they get fair play within the system. If there is any danger of them losing out and not being able to go to appeal on benefits then there need to be safeguards in legislation.
Many of us served for weeks on end on the Welfare Reform Bill. We hoped that some amendments would strengthen it and make it more easily understood. In reality, the amendments failed. There will be challenges to the interpretation of the legislation that will need to go to the courts. Unless provisions such as those in the amendment are included in the Bill, people will miss out. Therefore, even if some aspects—to which the noble Lord, Lord Thomas, referred—are already covered elsewhere, others are not. Therefore, let us give another place a chance by agreeing the amendment. If there is then a need to pare it back, all well and good—but at this point, unless we agree the amendment we will lose everything.
Lord Phillips of Sudbury
My Lords, I was the constituent of Lord Newton of Braintree—Tony Newton—for nearly 20 years, and he was a close friend for the rest of his life. If I need a little courage in order not to follow the Whip today on at least one of the amendments in this group, I will get it from his memory. He was an extraordinary man of both first-class intellect and a really big heart. I do not know anybody who managed to marry intellect and heart in quite the effective way that he did.
I have practised law for more than 50 years. The memories that stick with me most are of trying to help—and often to help young people under 18 and their worried parents get fairness from a barbarically complicated legal system. I understand the extraordinary difficulty faced by my noble friend Lord McNally—and by the Government. They have the hugely difficult and unwelcome task of cutting back and saving on public expenditure. However, we are faced here with a balance between £6 million to £8 million, and justice for the particularly vulnerable and needy group of our fellow citizens who are under 18.
Looking down the list of issues that Amendment 3 covers, it is almost impossible not to believe that they are all essential elements of justice in the 21st century. The noble Baroness, Lady Grey-Thompson, made the point that the downstream costs of not addressing these sorts of issues with at least timely advice are likely to exceed any up-front savings. The King’s Fund report made that clear.
On balance, I am persuaded by my noble friend Lord Thomas of Gresford that I need not support Amendment 4. In the same way, I will be able to compromise on Amendment 5, even with the shadow of Tony standing over me. To extend the age limit to 24 would have a dramatic effect. Those in the 18 to 24 age group are more likely than the younger group to be able to look after themselves when it comes to advice and a limited amount of representation.
Finally, I wish that the noble and learned Lord, Lord Howe, was in his place. Those of us who have been practitioners in the law will remember the happy days ushered in by the Conservative Government of 1980, and the noble and learned Lord’s creation of the green form scheme, which meant that we could advise on all these things automatically, without reference to anybody and with a cap on how much we could charge. I wish we could get back to those happy days. In the mean time, I fear that I may be forced at least to abstain on Amendment 3 unless my noble friend Lord McNally comes up with a wholly unexpected concession —and I hope that he will.
Legal Aid, Sentencing and Punishment of Offenders Bill
Lord Wigley Excerpts(12 years, 2 months ago)
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Lord Wigley
My Lords, I support the amendment moved by the noble Baroness, Lady Corston, which will see the establishment of a women’s justice policy unit to review the treatment women received when they enter the criminal justice system. The unit would develop a government strategy for dealing with women offenders and the problems surrounding reoffending. Both these functions would be welcome.
In Committee, I supported an amendment tabled by the noble Baroness, Lady Gould, which called for courts to have regard for the effect of sentencing on dependants when sentencing women. I referred to the admirable work that the noble Baroness, Lady Corston, and her influential 2007 report have done to raise awareness of the particular problems facing women in the penal system. Women tend to fall into crime for specific reasons and, it is often claimed, are penalised more harshly than men.
The effect that prison has on women is more taxing. As the report by the noble Baroness, Lady Corston, points out, prisons were designed for men and thus the conditions are particularly unforgiving for women. For example, recent figures suggest that 37 per cent of women prisoners have attempted suicide, 51 per cent have severe mental illness, 47 per cent have a major depressive disorder, and 50 per cent have been subject to domestic violence and 33 per cent to sexual abuse. Developing a specific strategy to ensure that women in the penal system receive more appropriate services is fundamental if these appalling statistics are to be improved.
That the unit would tackle the problems which often give rise to women offending is welcome. It is a venture which would limit the number of women who end up in contact with the justice system in the first place. This is particularly important when we consider that, according to the Government’s figures, 54 per cent of women who are imprisoned are reconvicted within 12 months, rising to 64 per cent if the sentence was shorter than a year. To tackle offending and to limit reoffending, it is vital to eliminate the problems which cause women to fall victim to this vicious cycle of crime.
I am pleased to see that the unit would review the delivery of services relating to children and families. In Committee, we discussed the effect that sentencing can have on dependants. Some 66 per cent of female prisoners have children compared with 59 per cent of men. The Howard League for Penal Reform estimates that only 5 per cent of female prisoners’ children remain with the family when their mother is incarcerated compared with 90 per cent of male prisoners’ children. Clearly sentencing has an undeniable and often disastrous impact on women’s families. For that reason, more than most, the implementation of a unit to oversee and review strategies for women in the justice system would be a positive improvement, not just for these women, but for society at large.
Baroness Lister of Burtersett
My Lords, I want to make a very brief point in support of my noble friend Lady Corston. She talked about how we cannot leave the issue of women in the criminal justice system to the Ministry of Justice alone. My noble friend Lord Judd made the case for an interdisciplinary approach. Many women get caught up in the criminal justice system because their crimes are crimes of poverty. Women are more vulnerable to poverty than men, and many women in this country are experiencing poverty. They have to manage poverty while looking after their children. As well as a criminal justice system better attuned to the needs of women, we need an anti-poverty policy better attuned to the needs of women. A unit such as this could link the two.
Legal Aid, Sentencing and Punishment of Offenders Bill
Lord Wigley Excerpts(12 years, 3 months ago)
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Lord Phillips of Sudbury
My Lords, I started in a Suffolk solicitor’s office in the late 1950s. As was common then and now, a lot of preliminary advice, particularly to people who could not pay anything, was given by junior members of staff. Ever since, I have been imprinted by early recollections of how difficult it is for some people to give instructions at all. Later, I became non-executive director of a company that ran the first telephone helpline in the country, and observed first-hand, as one might say, how that worked. Of course, a great many people in the present age feel perfectly comfortable with telephones. Provided that there is no cost factor, to which the noble Baroness, Lady Grey-Thompson, referred, that may prove an adequate way to give instructions. However, we know that there are many, even now, who are not comfortable with telephonic communication and for whom, if the matter they are seeking advice on is painful to them or arouses great emotion, it is not a satisfactory way to try to impart instructions.
If one thinks of poor people—perhaps I should not have said poor people, because they can be highly articulate, but inarticulate people and those who cannot begin to analyse their problem and do not know quite what it is—the telephone is unlikely to be an effective means to impart information without which the adviser cannot hope to help them to best effect. We are all wholly aware of the Government’s need and wish to save expenditure on legal aid, but I put it to my noble friend that this is the falsest of false economies. Anyone who has given such advice will readily say that the cost in the adviser’s time is released when the client is in front of them, when they can help the client, who is often confused or emotional, to give them the precious information without which they cannot hope to do a satisfactory job. On cost grounds, the savings assumed for the telephone helpline as an exclusive channel of advice are misconceived. More importantly, I think we all agree, so it does not need emphasising any further, that justice cannot be done if there is no alternative to deliver advice by face-to-face means.
I end by saying that where the person needing help is poor, confused and deprived, the notion that one should add to that catalogue of disadvantage the inability to access the only advice that will work for them—face-to-face advice—would be a terrible indictment of our claim to be a democracy where we are equal before the law.
Lord Wigley
My Lords, I shall speak briefly in support of Amendment 119, moved so persuasively by the noble Baroness, Lady Grey-Thompson. The amendment removes the provision contained in Clause 26 for the Lord Chancellor to make legal advice services available by telephone gateway or other electronic means. It would instead place a duty on the Lord Chancellor to ensure that individuals eligible for legal aid advice are able to access that advice in the forms most suited to their needs, including initial face-to-face contact.
Clause 26 is perhaps one of the most controversial elements of the Bill and has attracted widespread criticism from disability groups and campaigners. The clause contains provisions to establish a compulsory telephone gateway and to make this gateway the only method by which advice in certain categories of law is available. These proposals will in effect disfranchise individuals with learning difficulties or disabilities that impair their ability to communicate efficiently from being able to access advice. As Scope has pointed out, many legal aid clients experience complex and multifaceted problems that would be difficult to explain over a telephone, while those with limited English or with language or speech problems may be deterred from seeking advice at all. Common sense suggests that cases that are not dealt with at an early stage will be more costly to resolve at a later stage.
The proposals represent a retrograde step that would put up shocking barriers to equal access to justice. The Government acknowledged this in their own impact assessment, recognising that:
“Disabled people … may find it harder to manage their case paperwork through phone services. They may also find it harder to communicate or manage any emotional distress via the phone”.
What is more, as pointed out once again by Scope, these proposals could end up costing the Government more money, as opposed to making savings. The impact assessment published in June 2011 predicted modest savings of about £1 million to £2 million, while a study compiled by the Legal Services Research Centre found that advice provided over the telephone can unnecessarily prolong cases, as was mentioned a moment ago, and thereby make them more difficult to resolve.
In summary, Clause 26 adds further stress to already distressing situations and risks excluding vulnerable individuals from accessing legal advice altogether. The proposals go against the principle of equality of arms before the law and, frankly, display a cavalier attitude towards the needs of those with disabilities or impairments. Individuals with disabilities should be treated with the utmost respect and dignity in all areas of society. It is our duty to ensure that they are not disfranchised by a scheme that aims to provide justice on the cheap.
The Lord Bishop of Chichester
My Lords, I, too, support the amendment. Quite a number of people find it quite hard to find their own voice and need the support of a friend. As a priest I know how many of the clergy spend a lot of time accompanying people and enabling them to speak for themselves: not providing a voice for the voiceless but enabling the voiceless to find a voice. It seems that a lot of people are simply not able to put their own case individually over the telephone and need to have friends and supporters with them. It seems essential that this alternative means, the face-to-face interview, is available for those people so that they can have friends and advocates with them.
Baroness Butler-Sloss
My Lords, I apologise for not being present at the beginning of this debate. My name is on the letter and I want to underline my support for it. As a judge, I was involved with a number of these extremely sad cases, particularly at the Court of Appeal. The letter has been very helpful in setting out what is needed. I apologise to the noble Lords, Lord Alton and Lord Avebury, for not having heard most of what they said, but I have a shrewd idea that it was said extremely well.
Lord Wigley
My Lords, I support Amendment 132AA and wish to speak to the group which is associated with it, standing in the names of the noble Lords, Lord Alton and Lord Bach. I do so enthusiastically as I indicated in Committee. Whereas the noble Lord, Lord Thomas, may well have arguments in certain cases in relation to the legal processes that he outlined, I come to this from the point of view that compensation should be available in full to people, reflecting their suffering and the condition they have had, and that any legal fees should be other than the sum allocated as a response to that suffering. If this group of amendments is not accepted, the House will no doubt hear the noble Lord’s proposals in a later group of amendments. The scope not only of Amendment 132AA but also Amendment 132AB, which goes wider and covers a number of other equally distressing and deserving conditions, means that they can be supported when it comes to a vote if it does indeed come to a vote.
These amendments would have the effect of exempting cases involving claims for damages for respiratory illnesses following exposure to harmful substances from the range of changes proposed in Clauses 43, 45 and 46 of the Bill. The case for doing so was covered extensively in Committee but, unfortunately, the Minister has not so far moved towards accepting the changes that we hoped he might accept at that stage. A couple of weeks ago, at a St David’s Day dinner, I found myself sitting opposite a widow from my home area of Caernarfon. She had lost her husband to asbestosis six years ago. She described what he and they, as a family, had suffered. She received a modest sum of compensation. However, she told me that she had been following our debates in Committee and doubted that she would have got that compensation under the changes that are coming through. My goodness, if that is the effect that they will have on people who have suffered in that way, we have to make sure that the Bill is watertight and looks after people who have suffered as a result of the work that they have undertaken.
If Clause 43 is agreed unchecked, success fees under a conditional fee arrangement will no longer be recoverable from the losing party in all proceedings. Instead, in cases where claims are made against an organisation as a result of illness due to negligence, the fee will be recovered from damages awarded to the injured person, sometimes substantially eroding those damages. Likewise, if Clause 45 is agreed as it now stands, “after the event” insurance premiums will no longer be recoverable from the losing defendant and will also be taken out of the damages awarded to the injured party. Similar changes are proposed in Clause 46, which prevents organisations recovering their insurance premiums from a losing party. Unsuccessful cases involving more than one claimant can be highly expensive if there are multiple defendants whose costs need to be covered in the event of the case being lost. Without recoverable insurance premiums, these cases simply will not, in practice, be able to proceed.
Many organisations, including the Association of Personal Injury Lawyers, have been at pains to make it clear that damages are awarded for the pain and suffering caused by prolonged and debilitating illnesses. As I said earlier, damages were never intended to pay towards legal costs. Making an insured person or their family suffer an erosion of the financial compensation to which they are entitled on top of the physical distress they have endured is neither just nor dignified. It is wrong that the Government are intent on ploughing ahead with these changes without making exceptions where they are due.
In Committee, the Minister spoke of the Government’s overarching aim as being,
“to create an architecture which squeezes inflationary costs out of the civil justice system”.—[Official Report, 30/1/12; col. 1433.]
Those are grand words indeed but they cover a multitude of sins. As the noble Lord, Lord Alton, remarked, the only people who will be squeezed as a result of these changes are those who are already suffering from fatal diseases and their families. That does not sound like justice to me.
In Committee, the Minister also assured me that a number of possible routes of redress would be made available for individuals who had contracted diseases such as mesothelioma and asbestosis through schemes operated by the Department for Work and Pensions. We have heard reference to this but, as yet, I have seen no further detail on how these schemes may work. In the mean time, we should proceed on the basis that they are not there yet. However, I would welcome any clarification that the Minister might give and will listen carefully to what he has to say.
I support not only the group of amendments spoken to by the noble Lord, Lord Alton, but support very strongly Amendment 132AB in the name of the noble Lord, Lord Bach. It is relevant to a group of industrial diseases such as pneumoconiosis, silicosis and associated lung diseases, which are certainly of considerable importance to me and the community from which I come.
If these clauses are agreed unchecked, individuals who have suffered harm and distress will be dealt a further blow and access to justice will be severely undermined. It is perhaps futile to press the Government to agree to changes that they have already so utterly dismissed out of hand. However, I urge noble colleagues to support these amendments and to argue the case that individuals already suffering due to negligence should not face further hardship.
Lord Newton of Braintree
My Lords, may I briefly split up the Cross-Benchers, albeit in support of everything that they and most others have said? I have a couple of prefatory remarks. I cannot quite share the enthusiasm of the Liberal Democrat and former Liberal Democrat Benches for the anniversary of my noble friend Lord Avebury, although not because I do not have the highest regard for him. However, I was in the Conservative research department at the time and it was a major culture shock, which did not tempt me to join the Liberal Party. It could yet happen of course, but not today.
The Minister may be glad to hear my other prefatory remark. This will probably be my last foray on the Bill because, in general, I regard Part 2 as being above my pay grade. I have been reinforced in that view by the speech of the noble Lord, Lord Thomas of Gresford, which left me feeling—I hope he will not find this too rude—as though I had been enveloped in fog.
I spoke on this matter at an earlier stage and I do not intend to repeat myself. I simply endorse some points that have been made. In an earlier incarnation, when I was Minister for Disabled People, I was also the Minister for the Industrial Injuries Advisory Committee, so I know a bit about industrial diseases, including respiratory diseases such as this one. While they all have their problems and the scheme has its offerings, this disease is pretty unique for reasons that the noble Lord, Lord Alton, has outlined so clearly with his medical knowledge. This was reinforced by what the noble and learned Baroness, Lady Butler-Sloss, said about her experience of seeing and being involved in such cases. We cannot dismiss that.
I said earlier that we need to recognise that this disease is not only terrible but moves very fast. Someone gave the figure of nine months. To repeat something that I said earlier, we also need to acknowledge that this is one of those cancers—it is effectively a cancer—that is still growing. It is not diminishing. There is a long time fuse on exposure to asbestos. We have known about it for a long time and action has been taken; when asbestos is found, there is great expenditure on getting rid of it. However, there are still more cases to come than there have been because of that long fuse. One way or another, it is a pretty special case. I just do not like the idea that it can be dealt with only under CFAs, with the consequences that were so eloquently outlined by the noble Lord, Lord Alton.
This is not part of the mischief of exploiting whiplash injuries. It is very much sui generis and needs to be treated as such. The notion that someone who has just been told that they have nine months or less to live will engage in a lot of frivolous legal activity is far fetched in the extreme.
The noble Lord, Lord Thomas of Gresford, referred to all sorts of other ways of getting compensation, including schemes that the Government have and the possibility of a rival to the Motor Insurers’ Bureau. We are talking about people with nine months to live. It will probably take nine months for them to find out where to start under some of those arrangements, let alone to get some compensation. In any event, what we are offered here are not the alternatives that the noble Lord, Lord Thomas, outlined. They are not here and would have to be worked up. What we have is what is in the Bill. We need to look at that with care and, once more, we need to ask the House of Commons to think again.
Legal Aid, Sentencing and Punishment of Offenders Bill
Lord Wigley Excerpts(12 years, 3 months ago)
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Lord Wigley
My Lords, in Committee many speeches stressed the importance of securing accessibility to our justice system for everyone. However, the Bill, as it still stands, would effectively abandon many vulnerable individuals to go it alone without the support that is surely the hallmark of a decent society.
I support Amendment 21, outlined by the noble Baroness, Lady Howe, which would bring civil legal services for vulnerable young people back within the scope of legal aid. These vulnerable young people would include those younger than 25 years of age who are disabled, those who were formerly in care and those who are victims of trafficking. It would retain support for those who have suffered neglect or trauma and for the most disadvantaged. The amendment would also bring private family proceedings back within the scope of legal aid, as well as proceedings relating to Section 140 of Learning and Skills Act, which concerns assessments of learning difficulties—something of importance to me as patron of Mencap Wales.
I also support Amendment 11, moved by the noble Baroness, Lady Doocey, which would retain legal aid for social welfare cases. I thank the noble Baroness for her perseverance in this matter. I hope she will get the support that she deserves. Organisations such as Scope have drawn attention to the fact that the proposed cuts to legal aid will have a disproportionately negative impact on disabled people, since they will find it most difficult to challenge the decisions that affect them. It is frankly perverse to expect individuals with an impairment or disability to be litigants in person or to navigate courts and tribunals without much needed support and expert assistance. These are the people whom the system should pull out all the stops to support. Apart from increasing the timescale of cases and putting further pressure on the already overloaded justice system—there will inevitably be an increase in litigants in person—the reforms will disadvantage those who are already in need of extra care and support. Amendment 11 would retain legal aid for people with the most complex welfare and benefit issues, such as in cases where individuals challenge government decisions via appeals or reviews.
May I suggest that it is, to say the least, a highly unfortunate coincidence that legal aid should be withdrawn from welfare and benefit cases at the very time when the Government are overhauling the benefit system to introduce universal credit? Denying disabled people the expert advice necessary to help them in challenging inaccurate decisions, which might be made when they are reassessed, is particularly unacceptable. According to the Government’s impact assessment, the proposals to remove legal aid from welfare and benefit cases will affect roughly 78,000 disabled people. As the noble Lord, Lord Newton, mentioned a moment ago, current DWP guidance for this area covers 8,690 pages. It is simply unpalatable for people with disabilities to be left to steer their own way in such an intimidating and overwhelming area. I strongly urge the Minister to have regard to the issues that have been discussed today, and to respond positively to the amendments.
Viscount Slim
My Lords, one word has been left out of our discussions—“veteran”. I refer to veterans of all ages. I respectfully remind the Minister that there are still disabled veterans from World War 2 and from right the way through until today’s campaigns and those that will come. The military covenant lays down that a veteran—man or woman—must be cared for. The right honourable gentleman the Secretary of State for Defence has to make a public report nationally at given times. I see nowhere that legal aid or legal advice is automatically offered or given to a disabled veteran in need. Has the noble Lord’s department discussed with the Ministry of Defence how they will handle this and make legal aid and legal advice available to veterans, as required by the military covenant? Is the noble Lord hearing me?
Lord Howarth of Newport
My Lords, I, too, welcome the concession that the Government propose in Amendment 68, in so far as it goes, to allow legal aid to be available in cases where infants have suffered perinatal injury. As the parent of a child who suffered perinatal injury, I can only welcome it. I simply ask the Minister on what argument of principle he extends legal aid to that group of people but not to others whose lives may be ruined through the experience of clinical negligence.
Lord Wigley
My Lords, I shall speak briefly in support of Amendment 13, proposed by the noble and learned Lord, Lord Lloyd of Berwick, and Amendment 15, tabled by the noble Baroness, Lady Grey-Thompson, both of which would go some way to bring civil legal proceedings relating to clinical negligence back within the scope of the Bill. I welcome the comments made by the noble Lord—my friend, outside the political arena—Lord Cormack and by the noble Lord, Lord Carlile, on the cases that he has been following up. I shall be very interested to hear the replies to them.
Having campaigned with the noble Lord, Lord Ashley of Stoke, on the question of thalidomide, many years ago, those comments ring bells. We must ensure that, in drawing up a strict structure which is meant to avoid exceptions, other than those provided for specifically, we do not lose the possibility to secure justice for people who may be, as the noble Lord, Lord Carlile, rightly said, in the same position in this day and age.
Legal Aid, Sentencing and Punishment of Offenders Bill
Lord Wigley Excerpts(12 years, 4 months ago)
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Lord Wigley
“Abolition of certain sentences for dangerous offenders (No. 2)
All those already serving sentences of imprisonment for public protection for serious offences must either—(a) have access to relevant rehabilitation programmes, or(b) have their sentences rescinded,within 30 days of the commencement of this Act.”
Lord Wigley
My Lords, the amendment, tabled in my name and that of the noble Lord, Lord Judd, pertains to the abolition of sentences of imprisonment for public protection, more commonly known as IPP sentences, as provided for in Clause 113. Of course, some of these issues have already been aired in our debates today. The amendments linked to Amendment 179 in this group contain provisions to apply this abolition retrospectively for offenders serving existing IPP sentences and deal with associated issues. Indeed, they may do so more comprehensively than my own amendment, so I will listen with interest to the noble Lord, Lord Thomas of Gresford, and my noble friend Lord Ramsbotham when they speak to their amendments in the group. I realise that I am very much a layman in discussing these issues and that I stand alongside colleagues with a lifetime of professional experience, so I am grateful for the indulgence of the Committee.
As I said at Second Reading, IPP sentences were the result of controversial measures which effectively introduced life sentences via the back door for a great number of offences. Although the courts were able to set a minimum tariff which was to be served before a prisoner could apply for parole, I am told that the system rarely worked as intended. Little thought was given to determining prisoners’ tariffs and not enough focus was put on directing IPP prisoners towards relevant rehabilitation programmes, with the result that over 6,000 prisoners are now lingering in our prison system serving indeterminate sentences, over half of whom are past their minimum tariff.
Because of the requirements set by the Government, far too few of these prisoners are able to access the necessary courses which would entitle them to be considered for release. When we consider that these prisoners are serving on average 244 days beyond their tariff and that it costs something like £30,000 to keep someone in prison for that period, it is abundantly clear that the system surrounding IPP sentences is costly and, indeed, unacceptable. The Government are certainly right to abolish the IPP sentence, although I have some misgivings about what will be introduced in its place. Clause 114 will introduce a mandatory life sentence for those convicted of a second listed offence, and my concern is that judicial discretion will be damaged, an issue that we have already touched on in other contexts. What is important when sentencing offenders is to ensure that they are given sentences that are the most beneficial to the public, the victims and, indeed, to the criminals themselves, as mentioned by my noble and learned friend Lord Judge in an earlier debate, and indeed by the noble Baroness, Lady Stern.
Consideration should also be given to the treatment programmes or courses that such prisoners should undertake when in prison in order to get them to understand the gravity of their crimes and the impact on their victims. Introducing what are effectively mandatory life sentences for a second listed offence will strip the courts of their obligation to consider the individual circumstances surrounding each case.
To return to the matter in hand, I welcome the abolition of indeterminate sentences for public protection as provided for in Clause 113, but the reason I have tabled Amendment 179 is to probe the Government on why abolishing the system cannot also apply retrospectively. As I have said, thousands of prisoners are still languishing in the system without hope of rehabilitation or release. Without being directed into rehabilitation courses, this state of limbo will continue. That is why Amendment 179 would require the Government to grant these prisoners access to rehabilitation programmes or to rescind their sentences within 30 days of the commencement of the Act.
I note that a similar principle lies behind the amendments in this group tabled by the noble Lord, Lord Thomas of Gresford, and my noble friend Lord Ramsbotham. However, Amendments 179ZA and 179ZB would require the Government to refer prisoners serving existing IPP sentences to the Parole Board unless there is compelling evidence that they continue to pose a significant risk of reoffending. Amendment 180 goes slightly further, calling for the Secretary of State to ensure that plans are in place to release within three months of the enactment of the Bill all prisoners currently serving IPP sentences. However, the amendments have in common the desire to end the indeterminate legal limbo in which prisoners serving existing IPP sentences find themselves. Perhaps I can put it to the Minister in this way. In the football parlance that he used in an earlier debate, he might be far from happy if a Blackpool player had incurred a red card and did not know for how long he would be suspended. I urge the Government to consider these amendments. I beg to move.
Lord Dholakia
My Lords, I spoke about this matter at Second Reading and have great sympathy with the sentiment behind the amendment of the noble Lord, Lord Wigley.
In common with the overwhelming majority of people involved in the penal system, I am delighted to see the back of the sentence of imprisonment for public protection. The sentence has been a disaster for criminal justice and for the prison system, which, as a number of noble Lords have already commented, is now clogged, with more than 6,000 IPP prisoners having no certain release date. It is particularly unjust that many of those prisoners who have passed their tariff dates are on lengthy waiting lists to start offending-behaviour courses which could reduce the risk they pose and make them good prospects for release.
I share the Minister’s concern that everything possible should be done to speed up prisoners’ access to these courses so that they do not continue to languish in prison unnecessarily. Will he consider making one other change to help the position of those serving IPP sentences? This matter was referred to also by the noble Lord. The Secretary of State’s directions to the Parole Board include a very strong direction that a life-sentence prisoner should normally spend a period in an open prison before release. This is a sensible proposition for many life-sentence prisoners. They usually spend many years in prison; they are often institutionalised; and a gradual adjustment to freedom by going to an open prison will often increase their chances of a successful release.
Lord Wigley
Before the noble Lord comes to a conclusion, perhaps I may press him on one matter. He has given a list of steps that are currently being taken. When does he assess that all those who are currently being held back on IPP because of the non-availability of courses and rehabilitation will have been cleared? Have the department or the Government set themselves a target for getting this done?
Lord McNally
I do not think so, my Lords. I do not think that it would be sensible to go into such targetry. We are talking about individuals of whom individual assessments will be made. As I said, we are disarming a time bomb; we are looking at a backlog of, in many cases, extremely dangerous prisoners. Therefore, it is not just, as someone pointed out, a matter of throwing the gates open; this has to be a managed process. However, I hope that I have made it clear that that process is being managed—a point made by the noble Lord, Lord Ramsbotham—and that we are trying to target resources to make sure that this is carried forward with due urgency.
Lord McNally
I do not know the detail of how the group is managing its work, but I do know that we are bringing forward a coherent programme to deal with what I readily acknowledge is one of the problems to which the noble Lord, Lord Wigley, and others referred. In some of these cases, there was a definite and horrible Catch-22 situation for prisoners. They were being asked to prove their fitness for release by carrying through certain programmes but were then told, “By the way, those programmes are not available”. That Catch-22 was not fair to those prisoners. We are trying to address that problem and focus resources on it. I will write to the noble Lord about whether the group to which I referred is an umbrella strategy group or an action group, but I know that all IPP prisoners will be assessed carefully and, where progress can be made with due concern for public safety, that will happen. I think that we can manage this safely and constructively out of the prison system very rapidly once the legislation is in place.
I should also say that parole hearing processes have become more streamlined, with reviews made through a combination of written evidence and oral hearing, and significant resources have been deployed to increase the ability of the Parole Board to increase its throughput. That has significantly reduced backlogs and significantly increased the number of parole dossiers produced on time. I note the suggestion that prisoners should be referred back to the Parole Board every six months. The maximum period that can elapse between the post-tariff review hearing is two years. All decisions on the timing of the next review are based on the individual circumstances of the particular case. Review dates are determined taking into account the extent and nature of the outstanding work that the prisoner needs to do to address his or her risk factors, and where necessary the testing and monitoring needed to demonstrate the impact and efficacy of the work done to address those risk factors.
A fixed period of six months between review periods would not take into account the prisoner’s individual circumstances, so could be counterproductive as it would require prisoner cases to be reviewed without consideration for the time needed to address the risk factors presented. Currently, review periods of between 12 months and two years are usual, but review periods of less than 12 months have been set.
On the Parole Board’s release test, to which several amendments relate—we are also debating whether Clause 117 should stand part of the Bill—I should say that I do not think it appropriate at this stage to change the release test in this legislation. Clause 117 gives the Secretary of State a power to change the release test, which is set in statute for IPP prisoners and prisoners serving the new extended sentence. We will continue to monitor the progress of current IPP prisoners and will consider the use of the power to change the release test, alongside careful consultation.
The Secretary of State is committed to such prior consultation. It is absolutely not the Government’s intention to use the power to make it harder for prisoners to demonstrate reduced risk. However, by way of safeguards, the use of this power is subject to an affirmative procedure in both Houses. I fully understand colleagues who say that we have not gone far enough and some of the detailed criticisms in this debate. I go back to the point I made in the earlier debate. Often these interventions are crafted compromises and, as such, they will have weaknesses and will not go as far as some would want. However, in getting rid of IPPs we are removing what is, to put it politely, an error of judgment in our penal policy, and we are doing it in a way that disarms the time bomb without raising public concern. I hope, in those circumstances, that the noble Lord will withdraw his amendment.
Lord Wigley
My Lords, I have listened carefully to the Minister but his opening remarks remain in the back of my mind—that IPP was something akin to a train crash. The victims of that train crash have been left in the wreckage for an indeterminate time before these issues will be sorted out. Of course, there has to be reference to the Parole Board and it may not be appropriate for some to come out. Surely, when the Government themselves have recognised that the system is not fit for purpose for the future, to continue it for those who are incarcerated without any indication of a timescale is doing them and the whole system a grave disservice.
I accept entirely that my amendment has faults and that there may be a version that meets the theme, which I suspect is accepted on all sides of the Committee, that further work needs to be done by the Government on this.
I very much hope that between now and Report the Minister will seriously consider how the Government can respond to the pressure that has come from so many sides, with many different suggestions for relieving the problem. I hope that they will consider this, and that an amendment will be tabled on Report so that their mind is focused on the issue and we do not allow the people who listened to the debate in this House to have all their hopes snuffed out by the response of the Front Bench. On that basis, I beg leave to withdraw the amendment.
Legal Aid, Sentencing and Punishment of Offenders Bill
Lord Wigley Excerpts(12 years, 4 months ago)
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Lord Wigley
“( ) The court when requesting a pre-sentence report must ask for a social history on the offender from the Probation Service.”
Lord Wigley
My Lords, in moving Amendment 175 I shall also speak to Amendment 176. I have been asked to do so by the noble Baroness, Lady Gould, who apologises that she cannot be present today. These amendments add new provisions to Clause 61 in respect of sentencing guidelines. I will endeavour to put across the points that the noble Baroness wished to make and to combine them with my own remarks.
Amendment 175 would place a duty on courts to ask for a social history of an offender from the probation service when it requests a pre-sentence report. I do not have a legal background, but this issue has been brought to my attention by colleagues who sit on the panel of the independent Parliamentary Inquiry into Stalking Law Reform, whose excellent report was published today. They say that such a provision would be welcome in ensuring that courts were made aware of the history of offending of a particular perpetrator. Sadly, many perpetrators of ongoing, unacceptable behaviour such as domestic violence and stalking are able to get away with it simply because a court examines only individual instances of their behaviour and does not take into account the cumulative effect that long-term patterns of behaviour can have on victims.
Similarly, many stalkers and rapists have multiple victims, which can sometimes go unnoticed if the pattern is not recognised. When we also consider that perpetrators of dangerous and obsessive offences such as stalking frequently have a highly manipulative personality and can persuade criminal justice professionals that they are simply misunderstood and deserve a second chance, it is clear that changes need to be introduced to counter this. All too often, that second chance allows the perpetrator to continue his harassment of victims, sometimes even resulting in those victims’ deaths.
The noble Baroness, Lady Gould, and I were assisted in preparing for this debate by Napo, the probation officers’ union, which has highlighted key case studies in the recent past where women have been subjected to harassment and stalking over a sustained period of time. In those cases, court reports have concentrated on the immediate offence, thus ignoring evidence that would be vital in determining the risk of reoffending.
I draw the attention of your Lordships' House to a case from the East Midlands in which a 44 year-old male was charged with breaching restraining orders three times, all resulting in community sentences. For the index offence on this occasion, he received a 12-month suspended supervision order. The stalking behaviour had been going on for five years, and there had been sporadic periods of harassment. At one time, the victim was reporting breaches daily. He was later convicted for assaults on a new partner, who also suffered harassment for a period after the break-up. He also participated in a domestic violence course in the community, but that was discontinued because of further breaches of restraining orders.
The probation officer believes that cases such as this are looked on as low-level domestic violence, yet have the potential to escalate quickly to serious violence and even to the death of women and children. She reports that in her area there is an increase in the number of men being convicted for a breach of restraining orders, but she thinks that they are not being dealt with effectively. Cases are not dealt with consistently even within probation areas. The harassment in this case has being going on sporadically for 20 years, and has been very intense in the past six years.
I have been given a dozen similar examples; the same common theme emerges from them all. Professional staff believe that short prison sentences do not allow them to develop and complete offender behavioural work to an extent that makes an impact, and that appropriate sentences must be developed and applied. In some instances, patterns of psychologically harmful behaviour have not been sufficiently recorded, meaning that the offenders in question were not treated. This is partly an issue of resources, since courts are under increasing pressure to settle for a fast delivery report, which means that there is not enough time to investigate previous behaviour. It seems only common sense that a court, prior to sentence, should be required to educate itself as to the history not only of a particular case but of a particular offender. Many lives will be saved if this provision can be accepted, and I therefore urge the Government to accept this amendment.
Amendment 176 would require courts, when handing down a sentence, to consider the effect of it on dependants. I know that in tabling this amendment the noble Baroness, Lady Gould, had in mind particularly the high instance of women who are incarcerated for relatively short periods, and the devastating effect this can have on their families. As was well documented in the 2007 report of the noble Baroness, Lady Corston, Women in the Penal System, the demographic fingerprint of women who enter the penal system is staggeringly different from that of men in the same system. Women prisoners are far more likely to be primary carers of young children, so the effect on families of a mother entering prison is far harsher than the effect of a father being incarcerated. Latest statistics show that 66 per cent of women prisoners have dependent children.
The Howard League estimates that more than 17,000 children in England and Wales were separated from their mothers in 2010 due to their mothers’ incarceration. Roughly 6,000 of these children were under five years old, a quite staggering figure of 33 per cent of them. Even more far reaching is the likely effect on single-mother families if a mother is put into prison, leaving the children to enter care. The Howard League estimates that only 5 per cent of female prisoners’ children remain in the family home once their mother is imprisoned, which contrasts with 90 per cent of male prisoners’ children. It is often said that prison is not the best answer when handing down sentences for women. On a practical level, Ministry of Justice statistics show that 54 per cent of women jailed are reconvicted within 12 months, rising to 64 per cent if the sentence was for less than a year.
Equally, however, many organisations argue that we should be more lenient, particularly when considering the common reasons that lead to women entering into crime in the first place. These include relationship problems and coercion by others. The conditions within prison aggravate underlying problems afflicting many women prisoners: 51 per cent have severe mental illness; 47 per cent have a major depressive disorder; 50 per cent have been subject to domestic violence, and 33 per cent to sexual abuse. Against this background, is it surprising that no less than 37 per cent of women prisoners have attempted suicide? Mental health problems are still far more prevalent among women in prison than men, and self-harm is a significant problem.
Lord McNally
That is an interesting and helpful intervention from my noble friend, which I will take away and consider.
Lord Wigley
My Lords, the Minister said in his opening remarks that he was in an unusual situation in that he was responding to a debate that had not overtly attacked the Government or him. I am in a novel situation as well, having had the Minister’s response. I thank everyone who has taken part in this short debate. It has been very worth while. I pay tribute to the work undertaken by my noble friend Lady Howe in this whole area, but particularly in the context of today’s report on stalking. I am very grateful for her comments.
The noble Lord, Lord Clinton-Davis, has doubts about whether the amendments add very much to the law. The pressure that we have had as the tablers of these amendments has come from professional probation workers, who are at the sharp end and feel that a change is necessary. Whether that change is correctly encapsulated in these amendments may be another question. It may be that further guidance can be given to meet some of these points, but an issue certainly arises, otherwise there would not have been the wealth of examples. I could have quoted a dozen or more most moving examples that need the attention of Parliament.
Today’s report on the reform of the law on stalking by the independent parliamentary inquiry contains five recommendations that are directly relevant to the points covered by these amendments. I was grateful to the Minister for saying that he will give further thought to the amendments in the context of the debate we had last night as well as in that of the report, which add up to a need to give attention to this.
The noble Lord, Lord Thomas of Gresford, gave a very graphic example from direct personal experience. Quite clearly there needs to be some guidance to avoid some of the dangers he outlined in the context of videolinking. Whether that can be done by law or needs to be done in other ways, it is not a satisfactory situation and I can well understand how he feels about it.
The noble Baroness, Lady Farrington, referred to the severity of events not always being properly taken into full account. I can well understand that. The severity, the incidence and the whole background need to be taken into account before proper judgments can be made.
My noble friend Lord Elystan-Morgan spoke from his immense experience as a judge and a barrister. He emphasised the need for previous history to be available in determining appropriate sentences. Quite clearly, the history is a guiding factor in determining what is or is not appropriate. On dependants, he emphasised the need for courts to consider the totality of the case and the implications that the sentence would have in that totality of circumstances.
The noble Lord, Lord Faulks, questioned whether the courts are neglecting their duties. I imagine that most courts strive in every way they can to undertake their duties and to meet the requirements but, as always, safety nets in law are necessary when there could be courts that fail to do so. I refer to the evidence that has been sent to us by those who are involved in detail on these questions. I am sure that the Minister will take these points on board.
The noble Lord, Lord Howarth, asked me whether the intention is that the amendment should apply to magistrates’ courts. It was the intention that it should apply to both Crown Courts and magistrates' courts, but if there are problems here, by all means let us have a look at them. There might be problems with the workload on the courts and the nature of the courts. That might raise the question of which court is most appropriate for some of these matters. These are questions that no doubt the Minister will be willing to consider.
I thank the noble and learned Lord, Lord Judge, for being a supporter of these amendments. He referred to the need for rehabilitation and therefore for maximum information to be available to facilitate that purpose and minimise future crime. That must always be our objective.
I thank the noble Lord, Lord Beecham, for his support for these amendments from the Front Bench. He emphasised the degree of self-harm among women in prison. This must be very high in our minds as we address these questions.
I thank the Minister for his offer of discussions and further meetings to consider the implications of these amendments in the context of other developments. I am sure that the noble Baroness, Lady Gould, will be delighted to accept that offer, and on that basis I beg leave to withdraw the amendment.
Legal Aid, Sentencing and Punishment of Offenders Bill
Lord Wigley Excerpts(12 years, 4 months ago)
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Lord Wigley
My Lords, in earlier debates on the Bill we discussed the need to ensure equality of arms before the law and the wider principles surrounding access to justice. I support Amendment 172B, to which the noble Baroness, Lady Quin, has spoken so effectively, and the linked amendments, all of which promote a particular aspect of access to justice—that is, the need to ensure that people of all abilities are able to understand the criminal justice system, be they the victims or the perpetrators of crime. I warmly support the points made by the noble Lord, Lord Ramsbotham, and we are all indebted to him for bringing his wealth of experience to our debates on these matters.
Amendments 172B and 173 would amend Clause 61, which places a duty on courts to give reasons for, and explain the effect of, sentences that they hand down to perpetrators. The clause outlines a duty on the court to explain in “ordinary language” the court’s rationale for arriving at a particular sentence. “Ordinary” is a relative term. The amendments add that the language should be,
“appropriate to the intellectual ability and understanding of the individual offender”—
that is, to ensure that the court recognises the need to adapt its means of explanation in cases where an offender has a disability or learning difficulties. I should declare my interest as a patron of Mencap Cymru.
Our justice system should be both accessible and comprehensible, and steps should be taken to ensure that victims and perpetrators of crimes understand the implications and the gravity of the crime committed. If this is not done, there is every risk that the perpetrators in question may not be amenable to successful rehabilitation and will regress into committing similar crimes in future.
Amendment 178ZA would amend Clause 86 of the Bill, which makes provision for a court to impose conditions on a child who it has remanded to local authority accommodation. The clause also states that the court may impose certain requirements on the child if they are being granted bail, including, in some cases, electronic monitoring. Under subsection (7), it is stated that when a court imposes conditions on a child or varies those conditions, the court must explain the rationale behind this in “ordinary language”. There again, that troublesome phrase crops up. Amendment 178ZA would clarify that the language needs to be appropriate to the intellectual ability and understanding of the individual child. The necessity of using appropriate language is surely overwhelming when considering situations that hinge on the well-being and the education of impressionable children.
Amendments 181 and 182 centre on a related, though slightly different, issue. They would amend Clause 118, which itself makes amendments to the Prison Act 1952 in respect of the employment and payment of people in prison and those detained in remand centres, secure training centres and young offender institutions. Subsection (2) provides that the Secretary of State may continue to make rules about the employment of persons who are detained in secure training centres or young offender institutions. Subsection (4) inserts a new section into the 1952 Act which similarly confers new powers on the Secretary of State to make rules about the employment of prisoners.
Perhaps not enough attention is always focused on the importance of employment in prison. Society is still divided on the purpose that prisons fulfil. However, if we are to take steps to ensure that prison is anything other than an expensive means of giving society a break from criminals, we must invest time and effort in ensuring that those incarcerated use that time constructively to learn about the benefits of a life without crime and to understand the implications of the crimes they have committed. This avenue should be available to all prisoners. That is why Amendments 181 and 182 seek to add further paragraphs to this clause to ensure that the Secretary of State must also make rules about,
“(c) the availability of support to carry out employment; and
(d) the availability of support to understand the terms of employment in prison”.
These amendments, if accepted, would go towards certifying that all those incarcerated in our criminal justice system have the same opportunity for rehabilitation regardless of ability.
Finally, Amendments 184 and 185 seek to amend Clause 124, which sets out the anatomy of youth cautions. Clause 124 repeals Sections 65 and 66 of the Crime and Disorder Act 1998, hence abolishing the final warning scheme. It instead inserts new Section 66ZA, which establishes a new out-of-court disposal for young offenders—the youth caution. New Section 66ZA sets out that a constable may give a child or young person a youth caution if the youth has admitted to committing an offence and if the constable decides that the youth should not be prosecuted. The section outlines that if a constable gives a youth caution, they must ensure that the implications of the youth caution, and the reasons for issuing it, are explained in—once again—“ordinary language” to the person or, if they are 17 or younger, the appropriate adult accompanying them.
Amendment 184 would leave out “ordinary language” and insert instead:
“in an accessible way that may include, but will not be limited to, simple use of language”.
The amendment therefore has the effect of ensuring that most disabilities are catered for. Amendment 185 also ensures that the constable would have a duty to explain the reasons for issuing the caution, as well as the implications of the caution, to an appropriate adult not only if the child is younger than 17 but if the child,
“requires support to communicate or understand the process”.
This would make sure that children who have a disability or impairment which would hinder their understanding of the process would not be left disfranchised by the criminal justice system simply because of their age.
Taken together, these amendments succeed in widening access to justice and expanding the clarity of our justice system for people with disabilities. It is only common sense that they should be taken on board. In no way do they undermine the objectives of the Government in the Bill. I urge the Minister to accept them or, at the very least, to undertake to consider them between now and Report to see how these objectives can best be achieved.