Offender Rehabilitation Bill [HL]

Baroness Anelay of St Johns Excerpts

Wednesday 5th June 2013 Lords Chamber

[Lord Ramsbotham]

My Lords, I beg to move the amendment standing in my name on the Order Paper.

[Baroness Anelay of St Johns]

My Lords, I wonder whether noble Lords might leave the Chamber quietly and whether those passing in front of the noble Lord, Lord Ramsbotham, which is something we do not normally do, might do so even more inconspicuously. I have given the noble Lord the opportunity to hesitate for a moment as he has some important matters to set out in explaining the purpose of tabling the Motion and what he seeks from the Minister in response.

[Lord Ramsbotham]

My Lords, I am grateful to the noble Baroness the Chief Whip for that intervention.

I suspect that I am not alone in being in something of a quandary about the Bill. I entirely support the main intent behind it, which is to reduce the appalling reconviction rate that is an indictment of our offender management system, particularly as regards those awarded short prison sentences who have the highest reconviction rate and are responsible for so many crimes on release. For many years, I have campaigned for many of the measures that it contains, so why should I be calling on the Government to slow down their headlong rush towards a goal that I share? I do so for two reasons, both based on personal experience. I spent 41 years in the Army before I became Chief Inspector of Prisons, a number of them in Whitehall. My memories of those days were revived today when I read the obituary in the Times of Sir Patrick Nairne, who was a most distinguished civil servant as well as a hugely cultured and civilised man. From him, and others like him, I learnt that when a paper or proposal was intended to be moved towards the Secretary of State, it should be put first to the Army board, but only after it has been properly researched and costed, which research included careful examination of all the consequences, intended or otherwise, that could be identified. Only after such proposals had gone through the Army board, the Chiefs of Staff and then Ministers, would they reach the Secretary of State, and certainly not the outside world.

When I heard about this Bill in the gracious Speech on 8 May, I little thought that it would be published the next day at the same time as the long-awaited response to the consultation document, Transforming Rehabilitation, to which it relates. However, what was even more worrying was that, having been subjected in recent years to a very low standard of impact assessments accompanying Bills, this one was also dated 9 May, which suggested to me that far from being a document which had informed Ministers and officials throughout their deliberations on the Bill, it had been added as an afterthought. Far too many of the impact assessments that I have seen recently seem to have only two options—take it or leave it; or, I, the Secretary of State, have decided that this is what I am going to do. That is one option and the other is to do nothing, which is not acceptable. When you are launching untried theories that affect the lives of literally millions of people, I suggest that this is bad government.

My second experience has been over the past 18 years, when I have been associated with the offender management system itself. When you get down to the guts of offender management, you find that it is all about enabling someone or some people to influence someone else to live a useful and law-abiding, as opposed to a useless and law-breaking, life—nothing more and nothing less. I have observed with considerable dismay the relentless advance of political and bureaucratic interference, and the time and ability of those concerned to do that, with the inevitable result that the reconviction rate has increased. The old Prison Commission, before it was abolished in 1962, was run from a house in Eccleston Square, with a staff of 128 people without computers. Now, admittedly with double the number of prisoners, the computer-assisted National Offender Management Service has a cast of more than 2,000.

Throughout the time that I have watched the system at work, I have been deeply humbled and impressed by the incredible dedication and drive of countless thousands of people working in and for the Prison Service and probation service, who have come up with successful innovation after successful innovation only to see them killed rather than exploited by the bureaucratic system. If only the management system had the wit to monitor what was best and bring it into common practice, I believe that it could introduce cost-effective treatment of offenders in every possible condition.

Legal Aid, Sentencing and Punishment of Offenders Bill

Baroness Anelay of St Johns Excerpts

Thursday 9th February 2012 Lords Chamber

[Lord Beecham]

My Lords, every so often—

[Baroness Anelay of St Johns]

My Lords, the noble Lord, Lord Beecham, is making a very diplomatic hesitation before moving an amendment that I know is not only of importance here but will be taken account of outside this House.

[Lord Beecham]

My Lords, every so often a tragic incident occurs which leads to a change in social policy or, indeed, a change in legislation. One thinks of the cases of Stephen Lawrence, Jamie Bulger, Victoria Climbié and Milly Dowler and, as your Lordships may recall when we were discussing amendments in relation to alcohol and offences the other night, the murder of the husband of a Member of your Lordships' House—the noble Baroness, Lady Newlove.

This amendment and the government amendment arise from the brutal murder of Jane Clough, a 26 year- old nurse and mother of a baby daughter, by the partner with whom she was living who had been charged with very grave sexual offences. The partner was granted bail in the magistrates’ court and the brutal murder occurred shortly thereafter. This morning I have had the humbling privilege of meeting Jane’s parents—John and Penny Clough. I salute the dignity and courage with which they are not only bearing the loss of a beloved daughter in the most appalling circumstances but the way they have campaigned, with support from a wide range of individuals and organisations and across party, for a change in the law to allow an appeal against the granting of bail. I know that they would wish for an expression of thanks to be made to all those who have supported them in this campaign, in particular to Vera Baird, the former Solicitor-General, and to Members of Parliament in the other place, notably Helen Goodman and Jenny Chapman. Penny and John are sitting today below Bar in your Lordships' House. They came the other night but, unfortunately, we did not reach this amendment at that time. They have stayed on in order to see effectively the culmination not only of their pain but also of their campaign.

Irrespective of whether bail is granted in a magistrates’ court or in a higher court, there will never be any guarantee that the person granted bail will not commit an offence. However, these amendments seek to ensure that in the appropriate cases the prosecution, knowing of the circumstances which gave rise to the charges in the first place, can at the very least take the matter to a higher court for determination, and offer a perhaps better prospect of avoiding a repetition of this dreadful incident or any incident like it. In approving a change in the law—I say immediately that I very much welcome the Government’s amendment and am happy to withdraw my amendment in favour of it—we should be able to demonstrate the capacity of Parliament to react to issues of this kind and to encourage others, perhaps facing different circumstances but where a change in the law might be needed, to follow the wonderful example of Jane’s parents, Penny and John, in ensuring that a change in the law is made. I said to them that if this House were given to standing ovations, they would be greeted with such an ovation today. Our hearts, our sympathies, but more particularly and perhaps more relevantly, our legislative endeavours go towards them today in meeting their objectives.

Legal Aid, Sentencing and Punishment of Offenders Bill

Baroness Anelay of St Johns Excerpts

Wednesday 1st February 2012 Lords Chamber

[Lord Thomas of Gresford]

My Lords, Part 2 of the Bill has its complexities, but all sides are agreed on two principles.

[Baroness Anelay of St Johns]

My Lords, I am aware that the noble Lord, Lord Thomas of Gresford, is hesitating so that he may have the Minister’s ear.

[Lord Thomas of Gresford]

All sides are agreed on two principles—access to justice must be maintained and undue cost must be squeezed out of civil litigation. The issue is what the best framework is for achieving these ends. Unlike with Part 1 of the Bill, public money is not directly involved in supporting the litigation that we are referring to in Part 2.

All sides recognise the unforeseen and unintended consequences of the Access to Justice Act 1999, which threw the burden of the success fee and the ATE insurance premium on to losing defendants and removed from the claimant any interest in the amount of the success fees and premiums that they were only theoretically obliged to pay. Save for the recent changes introducing fixed fees in Road Traffic Act litigation, lawyers have been able to charge 100 per cent success fees, whether or not they undertake other, riskier cases. Insurers have fixed levels of premiums with which not even the costs judges on taxation are able or willing to quarrel.

This policy may have helped claimants by allowing them to retain the full amount of the damages awarded to them. However, the removal of the restraint of competition as to the size of success fees and ATE premiums has put an undue burden of fourfold cost on defendant insurers. Ultimately, this is not in the public interest, because insurers take their profit and pass the burden on in increased premiums for motoring, household, employers and public liability insurance. Self-insured large companies and public bodies such as the NHS and public authorities that are funded from the public purse generally carry the burden themselves.

The Bill proposes to shift the burden. The claimant will pay the success fee, which will be limited to 25 per cent of his damages for pain, suffering and loss of amenity and loss of earnings and expense to the date of trial. He will also carry the burden of the ATE premium to an amount that is not limited. The champagne corks will indeed be popping in the City by relieved liability insurers and in NHS trusts, town halls and board rooms all over the country. If these defendants win, all their own costs will be paid by the ATE insurers—assuming, of course, that there is still an ATE market and that the premium is affordable—unless a regime of one-way cost shifting that I talked about on Monday last is introduced at the same time, which will require defendants, win or lose, to pay their own costs.

The Jackson report, which sets out all the consultations that Lord Justice Jackson undertook, demonstrates that insurers and public bodies are up for it and accept that one-way cost-shifting, a system that has operated in legal aid cases since 1949, is a fair price for removing from them their present liability for uncontrolled success fees and uncontrolled “after the event” premiums. If one-way cost-shifting is introduced, at a stroke a claimant will lose the fear of having to pay the defendant’s costs if he loses the case, costs that might ruin him and remove the roof from over his head. At a stroke, the “after the event” insurance premium, which is currently in place largely to cover the defendant’s costs, will be savagely cut back. A claimant will have to cover only the risk that if he loses he will be responsible not for the defendant’s costs but for his own disbursements, court fees, expert and medical fees. Just as it is conceivable that in competing for business a solicitor might advertise that he will not charge a success fee, a solicitor with a large standard practice might well be prepared to absorb disbursements in the cases that he loses. We shall have to see whether that happens.

All this is by way of introduction to my amendments, which deal with a discrete area of litigation—environmental law, involving public law and private claims and the tort of nuisance. Public law cases are judicial review claims brought mainly by individuals concerned by inappropriate development—for instance, whether planning permission has made proper allowance for the effect on local flora and fauna by a particular development or whether a waste dump is in the right place. Private nuisance has enjoyed a real renaissance through the help of independent solicitors since the access to justice scheme came into being. A private nuisance is an interference to land or to rights associated with land caused by the unreasonable conduct of the defender. It is the last resort for local residents who need injunctive relief from a polluter who will not run his enterprise with proper concern for his neighbours, and where the regulator is unable or unwilling to take steps to abate the problem.

I am indebted to Stephen Hockman, Queen's Counsel, a former chairman of the Bar, Stephen Tromans, Queen's Counsel, named as environment/planning Silk of the Year at the Chambers Bar Awards 2011, and Gordon Wignall, a barrister specialising in nuisance cases and editor of the third edition of the Law Society’s Guide to Conditional Fees. I have circulated copies of their joint opinion on the impact of the Aarhus convention on costs and funding rules that are applicable in environmental cases.

The Aarhus convention is concerned with access to justice in environmental matters and was ratified by the United Kingdom in February 2005 at the same time that it was ratified by the European Community. The relevant text is set out in the opinion, but the effect is that the United Kingdom is bound to provide “adequate and effective remedies” in this area,

“including injunctive relief as appropriate, and be fair, equitable, timely and not prohibitively expensive”.

The convention applies both to judicial review claims in the administrative court and to private law actions in nuisance. The Supreme Court, in a recent case, has referred the question as to the test to be applied in order to determine whether proceedings are “prohibitively expensive” to the European Court of Justice. In one case that is quoted in the opinion, for example, a defendant’s costs amounted to well over £3 million. Is that prohibitively expensive?

Since the Minister and others already have a copy of the full opinion, I will simply put the conclusions of the learned counsel on the public record. First, the current costs rules run contrary to the international treaty obligations of the United Kingdom, which the United Kingdom voluntarily accepted. Problems arise largely out of the insistence on the “costs follow the event” rule, which tends to lead to inconsistency with the aims of participating in environmental justice and results in a claimant’s liability to pay prohibitively expensive costs.

Secondly, the compliance committee’s last deliberation in the ClientEarth case required the United Kingdom to review its costs rules and recommended rectification. Thirdly, two detailed reviews relevant to environmental proceedings in England and Wales have subsequently been undertaken and presided over by members of the Court of Appeal. The learned counsel are referring to the Jackson report, which we have been discussing, and to the report of Lord Justice Sullivan on access to environmental justice. These have been endorsed by the senior judiciary, and the primary recommendation was that the use of qualified one-way cost-shifting in environmental cases would have a dramatic inroad into the “costs follow the event” principle.

Fourthly, by withdrawing the recovery of “after the event” premiums, the size of which cannot be met by claimants or their legal representatives, without providing at the same time for one-way cost shifting as a replacement in environmental claims, the Government have elected to retreat from the full proposals of the Jackson report and the Sullivan report, which were conducted by those eminent Lords Justices. Fifthly, the consequence is that the United Kingdom, already in breach of its convention obligations, is diverging from rather converging with its own environmental expectations and those of the international community.

Sixthly, the further consequence is that claimants who wish to protect the environment and participate in environmental justice are even less likely to be able to do so than at present. This is predominantly because of the risk of incurring a liability for defendant’s costs that may well be prohibitively and grossly expensive in any event, but also because of the uncertainty that claimants face about their liability for those costs, which under the Government’s proposals will be known only once the litigation, whether public or private, has been concluded.

Claimants in environmental cases do not want damages; they want relief from the consequence of poor decision-making by public bodies or protection from the degradation of their environment. Even in multiparty actions, damages-based agreements are not a solution. My amendments would enable the Government to honour their international environmental obligations rather than turn their back upon them.

Amendment 147 would provide in subsection (2A) that in an environmental claim the losing defendant would pay the premium in respect of disbursements by way of fees for expert reports paid by the claimant. In subsection (2B), the losing defendant would pay the premium on the costs insurance policy if he had agreed to do so prior to the commencement of the proceedings. There are occasions when a defendant will agree to pay the claimant’s premium for “after the event” insurance whether he wins or loses, because if the defendants succeed then they will get all their costs from the ATE insurers.

Amendment 150 defines “environmental claim” by the same definition as is contained in the Aarhus convention. The use of this definition would ensure that only nuisance cases that were truly environmental in nature would be within the scope of my amendment. Insurance recovery claims and private nuisance—for tree-root subsidence, for instance—would not get the amendment of the amendment.

Amendment 157 would introduce qualified one-way cost-shifting in both environmental claims and other claims. The amendment was drafted before I had refined my own views, which I explained at small length on Monday last on this topic. The word “unreasonably” therefore appears in the amendment but I repeat my objections to the vagueness of the word “unreasonable” and reiterate the necessity for clarity by expanding what is unreasonable, as Lord Justice Jackson did, into the familiar expressions of “fraud”, “frivolous and vexatious conduct” and “abuse of the process of the court”.

Why should we single out environmental law for different treatment from other areas of litigation? Essentially, I am not. In the amendments I am arguing for one-way cost-shifting as a precondition for change and for the premium for cover for disbursements—a far lesser amount than the current premiums recovered against the potential defendant’s cost liabilities—to be recovered from the losing defendant. That is very similar to what I was saying on Monday, when I suggested that there are positive benefits in dividing liability for these lesser premiums between the claimant and the defendant in a staged way. In any event, the issue is far more urgent in environmental cases because of our obligation to comply with the Aarhus convention.

A tidy mind might try to bring every aspect of litigation into one structure, one piece of architecture—the word that the Minister used on Monday—but litigation is not like that. Time and again the Jackson report emphasises that one size does not fit all. I quote from page 44:

“many submissions during the Costs Review have emphasised that ‘one size does not fit all’. The Bar Council, for example, states: ‘What is abundantly clear, from Jackson LJ’s Preliminary Report and from the Bar Council’s review, is that “One size does not fit all.” Particular types of litigation give rise to particular issues, be they funding issues, case management issues or otherwise”.

That is a recurring theme in the Jackson report and every practising lawyer will agree.

Legal Services Act 2007 (Approved Regulators) Order 2011

Baroness Anelay of St Johns Excerpts

Tuesday 5th April 2011 Lords Chamber

[Baroness Anelay of St Johns]

My Lords, noble Lords will know that Whips are multitasked. However, I feel that I would be trespassing on the indulgence of the House if I sought to take such an important amendment. Perhaps I might suggest that the House do adjourn during pleasure for—in fact, not even for a few seconds, because my noble friend Lord Wallace has timed his arrival to perfection.

Crime: Murder

Baroness Anelay of St Johns Excerpts

Monday 24th January 2011 Lords Chamber

[Noble Lords]

Cross Bench!

[Baroness Anelay of St Johns]

My Lords, there is considerable time. I am aware that the noble Lord, Lord Walton of Detchant, has been magnanimous in giving way twice. Perhaps we can hear him first and then from my noble friend.

[Lord Walton of Detchant]

Is the Minister aware that the House of Lords Select Committee on Medical Ethics, which I was privileged to chair, reported in 1993 that in its opinion the mandatory life sentence for murder should be abolished to allow flexibility in sentencing? The Home Office reported to that committee 23 cases in which a positive act by a family member had resulted in the death of a loved one suffering from terminal cancer. In every case, a charge of murder was considered. However, because the conviction of the individual would have given rise to a mandatory life sentence, the charge in all but one case was amended to attempted murder, as it was recognised that no jury would be likely to convict. Was that not therefore a case in which the law was being manipulated?

Elections: Voting Systems

Baroness Anelay of St Johns Excerpts

Tuesday 5th October 2010 Lords Chamber

[Baroness Anelay of St Johns]

My Lords, the noble Lord, Lord Campbell of Alloway, has been waiting for some time. I appreciate that it is a fine judgment but I also appreciate the courtesy of the noble Lord, Lord Foulkes, in allowing the noble Lord, Lord Campbell, to ask his question.

[Lord Campbell of Alloway]

I apologise desperately for causing this trouble, but it is obviously difficult to ask a question from our new perch. Why is there this reluctance, again, to answer the Question as printed on the Order Paper?

Prisoners: Voting

Baroness Anelay of St Johns Excerpts

Wednesday 9th June 2010 Lords Chamber

[Noble Lords]

Cross Bench!

[Baroness Anelay of St Johns]

My Lords, may I assist the House? There is plenty of time remaining on this Question. May we hear for the first time from the Cross Benches and then, perhaps, from the Liberal Democrat Benches?

[Noble Lords]

Oh!

--- Later in debate ---

[Lord Grocott]

My Lords—

[Baroness Anelay of St Johns]

My Lords, I accept that there is great expertise and a great interest in this subject. We have already heard from the opposition Benches. May we hear from the Liberal Democrats?

[Lord Maclennan of Rogart]

In reaching their conclusions, will the Government bear in mind that we should in no way give the impression to the less well informed members of the public that we can pick and choose which rulings of the European Court of Human Rights to implement as the Executive determine?