Justice: Reform of Punishment, Rehabilitation, Sentencing and Legal Aid
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The Minister of State, Ministry of Justice (Lord McNally)
My Lords, I would like to repeat a Statement made by my right honourable friend the Secretary of State for Justice following his Written Ministerial Statement laid in the other place earlier today:
“Last autumn, the Government launched two consultations on far reaching plans to reform punishment, rehabilitation and sentencing of offenders, and legal aid in England and Wales respectively. Today, I have laid before Parliament the Government’s responses to these consultations. I am also introducing the Legal Aid, Sentencing and Punishment of Offenders Bill to give effect to those measures we are taking forward that require primary legislation.
Protecting the public from crime and punishing law-breakers are the most fundamental responsibilities of the state towards its citizens. But the sad truth is that—after 13 years of government, over 20 criminal justice Bills, more than 3,000 new criminal offences and an explosion in the prison population—Labour left the system in crisis. Most of our prisoners spend their time behind bars idling in their cells with ready access to drugs. A bigger scandal still is our reoffending rates, which are straightforwardly dreadful. Within a year of leaving jail, half of offenders will have been reconvicted of further offences. The same people cycle round the system endlessly, committing more crimes against more victims. The best way to reduce crime is to reduce reoffending, and that remains the central feature of our programme of radical reforms.
Prisons must be places of both punishment and reform. Today, I can confirm that we plan to deliver a full working week across the prison estate. We will legislate to extend powers to use money earned by prisoners to support victims. We have never proposed that community sentences should replace prison sentences, but we will introduce tougher, properly enforced community punishments where offenders work longer hours, unpaid, at least four days a week.
Drug abuse lies behind much, if not most, criminality in this country. It is not acceptable that drugs are readily available in prison. We are taking forward plans to reduce addiction across the prison estate, improving security and introducing drug-free wings in jails.
We must tackle other root causes of criminality, particularly alcohol addiction, mental illness and lack of skills. But we will ensure that we put taxpayers’ money only into those rehabilitation programmes that actually work.
Public confidence in the criminal justice system is unacceptably low. That is why we want to take forward plans for a new offence with a mandatory minimum prison sentence of six months for adults who use a knife to threaten and endanger. We will also consult on proposals to criminalise squatting, and will bring forward legislation to clarify the law on self-defence. In addition, I can confirm our intention to improve the use of remand and reduce the number of foreign national prisoners in our jails.
Discounts for early guilty pleas have been part of the criminal justice system for decades, and for good reason. Personally, I was particularly impressed by the representations of the senior judiciary and other criminal justice experts who said that increasing the maximum discount on offer for an early guilty plea at the earliest possible stage might result in the sentence served being too short in some serious cases. I considered addressing that problem by introducing greater judicial discretion, but we could not make that work. We have therefore decided to retain the present system.
The consultation also produced strong opposition to the indeterminate sentencing framework. This was introduced by the previous Government and sold as a way of protecting the public from a small number of the most dangerous offenders, but it has never worked as Parliament intended. It has created a flawed system where thousands of offenders have already served their normal sentence or tariff but no one can predict when or if they might ever be released. That is why, as the Prime Minister confirmed earlier today, we are reviewing indeterminate sentences of imprisonment for public protection, with a view to replacing them with a more sensible, tough system of long determinate sentences. This will see judges handing down life sentences in a greater number of very serious cases, including mandatory life sentences for the most serious repeat offenders. Serious sexual and violent offenders will spend at least two-thirds of their sentence in prison rather than being released halfway through. We intend to return to the best aspects of the system before IPPs were introduced.
I turn to legal aid reform. We have much the most expensive system in the world, except for Northern Ireland, costing £39 per head of population compared with £8 per head in New Zealand, a country with a broadly similar legal system. The previous Government consulted on this subject more than 30 times since 2006 and still left us with the mess that we now have to tackle. In some cases, the system encourages people to bring issues before courts where other solutions might be better. In others, it enables people to pursue litigation that they would not contemplate were they paying for it from their own pockets.
Following careful consideration of more than 5,000 responses, I am bringing forward proposals which I believe will ensure access to public funding in those cases that most require it, encourage early resolution of disputes instead of unnecessary conflict and ensure much better value for money for the taxpayer.
I can announce that we will retain legal aid in cases where people’s life or liberty is at stake, where they are at risk of serious physical harm or immediate loss of their home, or where their children may be taken into care. In response to consultation, this will include strengthened provision for victims of domestic violence and for children at risk of abuse or abduction and the retention of legal aid for special educational needs cases.
Legal aid will no longer be routinely available for most private family law cases, clinical negligence, employment, immigration, some debt and housing issues, some education cases and welfare benefits. It will also no longer be available for squatters resisting eviction.
We have also decided not to abolish the current capital disregards for pensioners and for equity in the main home in assessing an applicant’s eligibility for legal aid. We will not introduce a £100 contribution from capital for those assessed as having £1,000 of disposable capital.
What all this amounts to is a balanced and sensible package of reforms of the kind that the Government were determined to achieve when we published our proposals. Our plans mean a return to common sense in the justice system. On legal aid, the overall effect will be to achieve significant savings while protecting fundamental rights of access to justice; on sentencing, we will deliver punishment, protection and a renewed focus on breaking the cycle of crime and reoffending”.
My Lords, that concludes the Statement.
Lord McNally
My Lords, I thank the noble Lord for his response. I will try to deal with the issues that he raised. I suppose that the first point to make is that moral outrage butters no parsnips. The issue that the Ministry of Justice was faced with, as were the Government, was that we were spending beyond our means. We had to accept, as part of the spending review necessary to repair this country’s economy, a cut. I hear a groan from across the Floor, but it is no use opposition Members pretending that if they had won the election they would not have had to come into office to face some of the realities that we have faced, including having to make cuts in some areas. We can all enjoy being in office in good times; it is in difficult times that the necessary and hard decisions have to be made in government. We were faced with cutting our expenditure from £10 billion to £8 billion. Noble Lords opposite will know very well that this department really only has four big tickets; it spends on prisons, on probation, on legal aid and on staff and court services. Each of those has had to take some very difficult hits.
To take the points made, as my right honourable friend the Prime Minister and the Lord Chancellor made clear, the decision on the 50 per cent discount change was as a result of consultation and discussion within government—something that is very common in coming to a final decision. As was indicated, there was quite a weight of opinion from the judiciary, as the Lord Chancellor made very clear in his Statement, that this was a bridge too far as far as discounts were concerned, despite some attractive possible savings and some impact. It is the truth that early pleas have a beneficial effect on victims, and some victims are spared the trauma of going through a trial. But the weight of advice was that such a discount offered to certain offenders would be unacceptable to the public and judiciary. We listened and we changed the proposal that was in the Green Paper. That is what Green Papers are for; I am old enough to remember Harold Wilson introducing Green Papers to allow a period of more flexible discussion than White Papers provided.
On changing the name of the Bill to include punishment of offenders, it is partly a presentational matter, but one that I do not think we should ignore. I am very eager that we win the discussion in this country about prison reform and rehabilitation of offenders, but we will not win that debate if the public at large believe that the proposals that we are putting forward leave out punishment of offenders and concern for victims. Therefore, presentationally, the added words will reassure the public. While a large amount of the Green Paper’s and the Bill’s thrust is to examine ways in which to get into that cycle of reoffending, both to save the cost of reoffending and save the trauma of what reoffending does to future victims, we need public opinion to help and support us in that task. In that, we have to reassure the public that we do not forget the element of punishment in the approach to crime.
Our remand proposals remain in place and will be taken forward. The policy is to restrict the availability of custodial remand in cases where it is apparent that there is no real prospect of the defendant being sentenced to imprisonment if convicted.
The IPP was a product of the consultation. Just as a lot of the feedback on the Green Paper was against the 50 per cent discount, a lot of the evidence from the judiciary was that IPPs do not work, build up problems and leave doubt and uncertainty in the system. We have listened, we are going to consult and we will bring forward proposals by the autumn to replace the present regime.
The noble Lord mentioned the fact that the Prison Service and the probation service are going to be put under pressure by these cuts and by further demands being made on them. I think that that is true. The whole thrust of the strategy in the Green Paper and now in this legislation is to try to get more for less. There are some indications that we are not being over-optimistic in that. We are challenging both the Prison Service and the probation service to look at their own efficiencies in the way that they carry out their roles. We have a wide range of proposals right through the criminal justice system to bring in both the private and voluntary sectors to participate in payment-by-results pilots to see if there are alternative ways of delivering the service of both custody and post-custody treatment. This will also be part of a more general approach to treat people more holistically while they are in custody and post custody.
I understand what the noble Lord said about social welfare. It is an extremely sensitive subject. Again, I have answered questions before on this: you cannot have a system that is supposed to be targeted at the most disadvantaged in our society, cut the budget to that programme and not by implication cause problems for those who are so disadvantaged. The Government are not abolishing funding for social welfare law. About £50 million will be spent in this area. Not all social welfare law cases will be outside scope, but neither are they all of equal importance. We are trying to ensure that where we retain the social welfare programme, we will keep to areas where there is a real problem in debt, housing and community care and subject them to analysis. In developing our proposals we have taken into account the importance of the issues at stake, the individual’s ability to present their own case, including their vulnerability, the availability of alternative sources of funding and the availability of alternative routes to the resolving of this issue.
We must face up to tough choices and focus resources on those who need them most—the serious cases where legal advice and representation are justified. We are maintaining funding for mediation services and trying to ensure that funding is directed at the most vulnerable. We are also looking at whether we can help by offering advice in those cases. The noble Lord rightly declared that that was important in this area. This is not an easy case to make in the context of legal aid but we have to face up to economic reality, as I suspect noble Lords opposite would have to do if they were standing at this Dispatch Box. I certainly have no problem in arguing the moral case: we have made the tough decisions that one needs to make in government and in doing so we have tried to keep faith with the most vulnerable in our society.
Lord McNally
My Lords, today we have committed to a review of indeterminate sentencing, which we hope will be concluded by the autumn. We will then bring forward proposals on what happens next. On the question of what we are doing with the people who are already on IPPs, each individual prisoner will continue to be assessed on a case-by-case basis by the Parole Board. The review will look at all the ways in which these assessments operate, to ensure that the real work is done to reform offenders when they are in prison. When my noble friend sees the full proposals, I think that he will also see that we are taking a lot more care to try to address the rehabilitation of these long-term offenders while they are in prison.
I take my noble friend’s point about judges’ discretion. The longer I have been in this job, the more convinced I have been that we should rely on the discretion of a well informed judge, rather than on Parliament second-guessing the judiciary at long distance by too-restrictive legislation. We will see how this unfolds, because one idea that is certainly being brought forward is the use of mandatory life sentences for serious repeat offenders. I have to point out that this Bill will go through both Houses and I am quite sure that I will hear more of the argument that my noble friend deployed when the Bill comes before this House later in the year.
On clinical negligence, legal aid is currently available to those who have suffered negligent medical treatment and qualify financially to seek damages against any type of public or private medical practitioner. While these claims are for money compensation, we consider that they often raise serious issues, especially where the damages are required to meet future needs, and some litigants will be vulnerable because of disabilities resulting from the negligent treatment. However, although the issues raised are likely to be very important, we consider that there is a viable source of alternative funding to legal aid in conditional fee arrangements, which are more readily available in such cases than they are for other claims. We therefore consider that legal aid is not justified in these cases and that our limited funding would be better targeted on other priority areas.
I take the point that my noble friend makes about solicitors. One of the good things about them is that they are increasingly branching out into offering mediation services—something that we very much support.
Lord Lloyd of Berwick
My Lords, I, too, welcome the review of indeterminate sentences, which were introduced by the previous Administration in 2003 for the protection of the public. Given that the opposition to IPPs is so strong on all sides, including—if I understood the noble Lord correctly—among the judges, I, like the noble Lord, Lord Bach, wonder why a review is necessary. Why can we not simply repeal the relevant section in the 2003 Act and leave it at that?
Secondly, as the noble Lord knows, I do not like mandatory sentences for the use of knives to threaten or endanger. Is there any evidence at all that the sentences currently being imposed by the judges in those cases are too low? If not, why do we need a mandatory sentence?
Thirdly and lastly, the most noticeable absence from the Statement is anything about Schedule 21, which imposes on judges a rigid framework in murder cases. There was a great deal of opposition to that, too, and yet there is nothing about it at all in the Statement. Once again, why do we not leave it to the judges who handle these cases to impose the appropriate sentence, advised as they are by the Sentencing Council, which was created for that very purpose?
Lord McNally
My Lords, even as I was saying the words about the decision on mandatory sentencing, I had the noble and learned Lord very much in mind. I know his views on the matter. We will have to see how the matter goes through. I know that there are conflicting opinions on it. As I have said, my inclination is for a lot more judge power to be employed, rather than finding the prison population surging not because of a surge in crime but because changes have snared people who might not otherwise have been sent to prison.
On Schedule 21, we want a simpler and more transparent sentencing framework that is also more coherent. We consulted on a proposal to reform Schedule 21—as a possible simplification of the sentencing framework, rather than a measure to change sentencing practice—which sets out the starting point for determining the minimum terms to be served by an offender receiving a mandatory life sentence for murder. There was some support for revisiting the drafting of those provisions, but others took the view that the courts have already interpreted them in a consistent and flexible way. We have therefore concluded that reform is unnecessary at present.
Lord Beecham
My Lords, under civil legal aid, how many of the estimated 700,000 cases for which entitlement would have been lost under the original proposals will now be retained? What is the estimated cost of those changes to restore legal aid and advice that would otherwise have been removed? Secondly, is it correct that 90 per cent of the 5,000 responses disagreed with the proposals for legal aid?
Lord McNally
I am not sure what the statistics are on the responses. If you are about to cut a budget and you ask for opinions, I would guess that you are more likely to get more people objecting to the cuts than you are people in favour. That does not take away the validity. We had a large number of responses, and a large number pointed out various impacts, such as the point made by my noble friend Lord Thomas: sometimes solicitors on legal aid give early advice that saves problems further down the line. It is a difficult balance.
I have never tried to mislead the House by denying that, in part, the things that we have done have been for cost reasons, because of the constraints. That means that some decisions have been hard. The estimate is that we will reduce cases by about half a million—about 600,000 cases will be removed from scope. On the social welfare end, it is an extremely severe cut. Part of our debate will be about our arguments that, in this area, there has been too much publicly funded litigation and that there is much more scope for mediation and non-legal advice. That will be tested as the Bill goes through the other place and through this place when it arrives.
Lord Mayhew of Twysden
My Lords, the Statement refers with approval to some judicial consultation that has already taken place. Can my noble friend tell us whether judicial consultation has yet extended to the plan for a mandatory sentence for knife crime? If so, can he tell us the character of the judicial response?
Lord McNally
I know that my right honourable friend the Lord Chancellor has very regular meetings with the Lord Chief Justice and other senior members of the judiciary. However, those meetings are private and he certainly has not made me aware of whether he has discussed any aspect of these proposals with the Lord Chief Justice or the judiciary. If he has, I shall respond in writing to my noble and learned friend. I am not aware of a formal consultation but, if one has taken place, I shall make him aware of it.
Lord Clinton-Davis
When mediation fails, as it sometimes can—and there is plenty of room for obstruction as far as that is concerned—does the noble Lord envisage that a remedy will be available for a person who is prejudiced by that sort of position?
Lord McNally
If you were pushing towards mediation but, as the noble Lord says, somebody refused to take up the mediation or tried to sabotage it, that would cause problems. I suspect that that would not be sufficient to enable the injured party to get legal aid if he had been outside its scope. However, again, I shall get clarification on that and, if I am wrong, I shall write to the noble Lord.
Lord McNally
In any event. However, my feeling is that, save in exceptional circumstances, mediation would be the end of the road unless people found a means of financing their litigation other than with legal aid.
Lord Phillips of Sudbury
My Lords, I declare an interest as someone who has been in the solicitors’ branch of the profession for over 50 years and I admit to having had a passion for legal aid for the whole of that time. Does my noble friend not agree that legal aid has been the one thing that has allowed a citizen to get some sort of equality before the law and that the severe cuts to the scheme announced today, although long foreshadowed, will inevitably strike at the heart of access to justice?
Does my noble friend also agree that one reason why this country is more dependent on legal aid than perhaps any other on this earth is that we legislate at a greater rate than any democracy that I have yet been able to discover? I have done some research on this. The torrent of law that we pour forth from this Parliament is of itself a great creator of legal need among the whole of society, including poor people no less than rich. Is it not a sort of organised hypocrisy for us to go on doing as we do and, at the same time, to cut the citizen’s access to desperately needed advice and assistance?
Lastly, and practically, will my noble friend please have particular regard to the needs of the citizens advice bureaux, of which there are over 1,000 in this country? The bulk of their effort is voluntary. To sustain them with government assistance will yield a better return on scarce money than perhaps anything else.
Lord McNally
The wider point that my noble friend makes about the amount of legislation is probably for another debate. We are not abolishing legal aid, but we are making cuts on the civil legal aid side. We will abolish the Legal Services Commission and vest responsibility for the administration of legal aid with the Lord Chancellor. We will, as I said, implement reforms to the scope of civil legal aid services, enable the courts in ancillary relief cases to make interim lump sum payments against a party with means to pay other parties’ costs and facilitate the creation of a supplementary legal aid scheme by enabling a percentage of a litigant’s damages to be paid back into the legal aid fund to support the funding of future cases. We will implement Lord Justice Jackson’s reforms to the costs of civil litigation, abolish the recoverability of success fees and after-the-event insurance premiums from the losing party and amend the Prosecution of Offences Act 1985 to cap payments made to acquitted defendants from central funds. We are reforming legal aid, we are targeting legal aid, but we are not abolishing legal aid, because I share my noble friend’s concerns about its importance in our system and in the citizen’s access to justice.