Prisons

Debate between Baroness Berridge and Lord Beecham

Tuesday 29th October 2019 Lords Chamber

[Baroness Berridge]

My Lords, I am grateful to the noble Lord for giving me advance notice. The statistic that I have been provided with from a 2015 Ministry of Justice survey is that 40% of male remand prisoners have a common mental health problem. I agree with the noble Lord that that figure is too high, but I assure him that mental health training and specific self-harm and suicide prevention have been introduced into the basic prison officer training. Over 25,000 new and existing staff have completed at least one module of that latter training and 14,000 have completed the specific mental health module. I am also pleased to tell the noble Lord that the Samaritans were given £500,000 last year, and there is a commitment to give that amount every year for three years to help vulnerable prisoners.

[Lord Beecham (Lab)]

In every year since 2014 the Government have proposed to increase our overcrowded and all-too-often squalid prisons by 10,000 extra places. Despite having among the highest incarceration rates in Europe, they have failed both to achieve their own target, now reiterated by the Prime Minister, or even to replace dismal Victorian buildings as promised. How long are prisoners and prison staff expected to endure what the Prison Reform Trust describes as a policy that is likely to make overcrowding worse and produces an indecent prison system that puts lives at risk—and that is before taking into account the Prime Minister’s aspiration to promote longer sentences?

[Baroness Berridge]

My Lords, I am grateful to the noble Lord for his question. Since 2010 there has been a net increase in the number of places of just over 1,100. It is precisely to avoid an increase in crowding that the Victorian estate cannot be closed at this time. Ten thousand new places will come on line, and an additional 3,000 are committed to at Wellingborough and Glen Parva. Central to the modernisation programme is to get back to the point in 2015 when new prison places came on line without an increase in crowding.

Justice and Security Bill [HL]

Debate between Baroness Berridge and Lord Beecham

Tuesday 17th July 2012 Lords Chamber

[Baroness Berridge]

My Lords, I will speak briefly in support of Amendment 62. My noble and learned friend the Minister has outlined that this is a balance of security and fairness. In a closed material procedure, I do not think it is wrong to say that the national security issue is a higher priority for the Government who are party to the proceedings, and fairness is higher up the priority list for a claimant who has been excluded.

Let us take the example of a claimant who has been excluded from the hearing and is sitting in the corridor whiling away the hours while the proceedings go on, and turns to the rules of court that have been drafted and looks at Clause 7, as we have it, unamended. How is the claimant not going to conclude, when looking at those rules, that almost the sole interest the court is required to take into account is national security? According to paragraphs (c), (d) and (e), the court has to consider giving a summary, but this is not required. To preserve the integrity of the court, Clause 7 is too constrained around the requirements of national security and does not bring in the need for fairness of the claimant, who will be sitting there wanting to know as much as possible about the evidence and, if possible, to know the gist of the case. Bringing in some consideration of the need for the claimant to have enough information to provide instructions is incredibly important. There must be some requirement given to the court to consider the issues of fairness under the rules.

Secondly, although I take full notice of the views of the noble Baroness, Lady Manningham-Buller, that the special advocates who are there on behalf of the excluded party cannot be the sole judge of whether national security is breached if a particular summary of the case is given, what would be the objection to including the special advocate in the process of deciding what the summary is? Perhaps they could be involved with the relevant party because, as the legislation is drafted, the duty of not revealing national security has in any event been given to the court, so why not have a process where at least the claimant would know that the special advocate is able to partake in that process to determine the summary and the court is the final gateway to ensuring that national security is not breached? Therefore, I support Amendment 62.

[Lord Beecham]

My Lords, the noble Baroness, Lady Berridge, has identified and emphasised the crucial nature of Clause 7. It is the fundamental problem with the Bill that, despite the protestations of the Lord Chancellor, it gives little discretion ultimately to the judge as to whether the closed material procedure should be invoked. Clause 7(1)(c) requires the court to give permission if,

“the disclosure of the material would be damaging to the interests of national security”.

It seems clear that any disclosure of matters affecting national security would suffice to preclude the material being made available. Therefore, we come back to the position that the noble Lord, Lord Faulks, referred to, as enunciated by the noble and learned Lord, Lord Hoffmann.

It is almost exactly 50 years since I first became acquainted with the noble and learned Lord, Lord Hoffmann, as a new student at University College, Oxford—where I was succeeded in due course, several years later, by the noble Lord, Lord Marks—and I have a great admiration for noble and learned Lord, who was a distinguished opponent of the South African regime. I find it rather surprising that he came to the conclusion that matters of this kind are a matter for the Executive and not the judiciary. It is not a view that can be recommended to your Lordships’ House. It strikes a dagger at the heart of our system, and the amendments before us provide the right approach to procuring a level of fairness that allows the judge to make a decision on the basis of a balancing exercise.

I entirely agree with the noble Baroness, Lady Berridge, and others who have laid an emphasis on the need to have that balancing exercise carried out. The amendments in the names of the noble Lords, Lord Thomas, Lord Pannick and Lord Lester, clearly are directed at securing that important balance and fulfilling the—unjustified—claims made for the Bill that ultimately it will be the judge who actually takes the decision; otherwise the decision is effectively made for him by the Secretary of State, and that is extremely undesirable. It follows that the amendments in relation to gisting, which the noble Lord, Lord Pannick, described as a minimum requirement, also have their place in a system which is fair to the parties.

The noble and learned Lord referred to the application of the European Court of Human Rights. Although I am sure that he is clear in his own mind that there is no real conflict with the human rights legislation, there is, perhaps, a question about that. Clause 7(1)(e), to which other noble Lords have referred, makes it clear, in relation to gisting, for example, that a summary does not contain material the disclosure of which would be damaging to the interests of national security. However, it is apparently the position that the European Court has previously struck down decisions made under the existing closed materials procedure on the basis that they were incompatible with the right to a fair hearing which, of course, Article 6 prescribes.

The case law suggests—I am referring now to a briefing from Justice, the organisation concerned with civil liberties and matters of this kind—that,

“a person must be given as much disclosure—whether through the provision of documents, evidence or a summary—as is needed to secure a fair trial”.

It refers in its briefing to the case of A v United Kingdom, in which,

“the Grand Chamber concluded that where insufficient material had been disclosed to an individual subject to a control order”—

of course, we are not talking about control orders here but about a civil claim—

“this rendered the hearing unfair and incompatible with the Convention”.

The briefing also refers to the case of AF, to which the noble Lord, Lord Pannick, referred. There must be a question as to whether the assurance of the noble and learned Lord, obviously given in good faith, that Clause 11(5) resolves these matters—because it emphasises the duties of the court under the Human Rights Act, such that,

“Nothing … is to be read as requiring a court or tribunal to act in a manner inconsistent with Article 6 of the Human Rights Convention”—

amounts to very much. On the face of it, it would appear that the provisions of the Bill, as drafted, would lead to conflict with Article 6.

Justice and Security Bill [HL]

Debate between Baroness Berridge and Lord Beecham

Tuesday 17th July 2012 Lords Chamber

[Lord Beecham]

My Lords, this amendment and the others in this group stem from the report of the Constitution Committee and representations from organisations such as Justice. The Constitution Committee records that my right honourable friend Sadiq Khan, the shadow Justice Minister, asked a question in the House of Commons about the number of cases in which a CMP had been adopted under the existing provisions, which relate to control orders and the like. The reply of the Minister, Mr Djanogly, was that there was no information, it had not been collated and it would be too expensive to provide such information. The Constitution Committee rightly points out that these are matters of considerable interest to the public and, indeed, to Parliament and such a record should be made available. It invites the House,

“to consider whether the Government should be required to maintain consolidated records”.

Amendment 67B looks to provide such information, as does Amendment 67A, again following the recommendation of the Constitution Committee and representations, in this case from Justice, that the Government should report on the impact of the provisions of the Bill. The noble Baroness, Lady Berridge, has a similar amendment, Amendment 88.

Amendment 67A talks of a three-year period because it seems sensible, given the suggestion that there are likely to be very few cases, to allow sufficient time to elapse to gauge whether that is right or not. It would perhaps be wrong to rely on a single year’s experience as the basis for a review. Three years is long enough, in my judgment. Justice suggests a five-year period, which seems to me to be too long, given the scale of the changes. I hope that the Government will accept that these amendments, which are of course tabled on the basis that we end up with a CMP provision, will facilitate a greater understanding of how the system works and allow consideration of modifications should any of the difficulties which some of us have canvassed today in Committee and on previous occasions be warranted. I hope that the Government will look benignly on these amendments: they are not in any way destructive and should allow a proper consideration of how matters progress should the legislation pass in something like its present form. I beg to move.

[Baroness Berridge]

My Lords, I shall speak to Amendment 88, which, as the noble Lord, Lord Beecham, has said, is in my name. I concur with much of his reasoning and concerns about the recording and reporting of these matters. The amendments would enable Parliament to monitor the use of these unusual court proceedings. I would be grateful if my noble friend would say whether the response given in the other place to the question from Mr Sadiq Khan still stands, as the Government have very helpfully agreed to compile a central database of closed material procedures for the use of special advocates. If the Government are able to compile that database for special advocates, could they not also do so for Parliament?

If the closed material procedures are granted by Parliament, it would be on the basis of there being a very small number of cases. This amendment would enable Parliament to monitor whether that is indeed the case. Unfortunately, things that are intended to be rare have a tendency to creep, as apparently Lord Williams of Mostyn assured your Lordships’ House in 1997 in relation to the introduction of SIAC. The closed material procedures are now used in a large number of statutory situations—I think about 14 different jurisdictions. I expect there will need to be some agreement as to how frequently a report is laid but it is important with such a closed system that as much information as possible comes into the public domain, particularly information that can be assessed by Parliament. Although not the subject of this amendment, the same argument applies to the use of closed material procedures generally, so that Parliament would know how often they are applied for, granted, appealed and, in particular, successfully appealed, as well as which government departments are making use of the procedures and under which legislative regime they are being used. I also believe that there could be useful comparative statistics on how often appeals are brought in jurisdictions where appeal is allowed on a matter of law alone compared to on a matter of fact, as in the civil proceedings considered under this Bill.

Amendment 88 adds the requirement for the independent reviewer of terrorism legislation to bring a report to Parliament, which I understand would be similar to the role of the independent reviewer in relation to control orders and now TPIMs. It could also perhaps provide a means for the independent reviewer to receive the continuing views of the special advocates, which have been such a concern to many people including the Lord Chancellor. Unless someone independent reads all these closed judgments in an area, I do not know how we will know if there are inconsistent decisions and perhaps cases that have been decided without knowledge of a previous precedent due to the fact that these are secret judgments. Some of that risk will of course now be averted by the new central database that I have mentioned, which will be available to special advocates. However, it will not be completely averted, in my view, due to the nature of the system and not in a way that Parliament can be assured of the integrity of the body of these decisions. The independent reviewer of terrorism legislation might even need a method of passing cases that he or she is concerned about to be reviewed by the court for the reasons I have outlined.

I believe it is very much in the Government’s interests to have as much information in the public domain and as much scrutiny as possible of a closed system. I also hope, along with the noble Lord, Lord Beecham, that there will be good news on Report on the principle behind this amendment.