Inquiries Act 2005 (Select Committee Report)

Baroness Stern Excerpts

Thursday 19th March 2015 Lords Chamber

[Baroness Stern (CB)]

I begin, if I may, with a word about the noble Viscount, Lord Tenby. He may remember that when I arrived here 16 years ago I felt totally bewildered and utterly overwhelmed by it all. It is absolutely thanks to the noble Viscount and how he looked after me that I found my feet—I think I found my feet—and I have never forgotten his kindness and understanding.

I felt very privileged to have been a member of this Select Committee; it contained a vast wealth of wisdom and we have heard much of that today. The staff were hugely impressive and we had a chairman who held it all together, kept us in order, made us laugh, and got out of us what I feel is a very important report. We say in our summary:

“Inquiries into matters of major public concern are now an integral feature of the governance of this country”.

Indeed, they are a very important part of the arrangements we make to respond to and to resolve wrongs, disasters and failures. I appreciate the remarks of the noble Lord, Lord Soley, which spelt that out in some detail.

In my remarks I want to concentrate on the significance of inquiries to good governance in relation to their role in giving satisfaction to injured parties, helping to lay matters to rest so that they do not fester for years, and giving to people who have suffered a sense that justice has been done. The word “justice” can be used in different ways. It can mean that someone is convicted and punished or blamed and shamed. It can also mean that injured parties find out the truth of what happened. I am sure that some noble Lords heard on the BBC a woman whose son had died at Hillsborough talking about the effect on her of hearing the truth that came out at the inquest about what really happened on 15 April 1989. After all those years of waiting it was very forceful.

We explored this aspect with most of our witnesses and we conclude in paragraph 9 that one of the purposes of having public inquiries is “catharsis”, which we define as,

“an opportunity for reconciliation between those affected by an event and those whose action caused it or whose inaction failed to prevent it”.

We heard much interesting evidence on this theme. Liberty told us:

“Inquiries provide a means for the truth about an event or series of events to be reached by an independent and authoritative body, but in a manner which is more inclusive and restorative than litigation”.

The words, “inclusive” and “restorative” are significant in this context.

Ashley Underwood QC told us that if you did not have the cathartic element you were likely to fail. You simply will not have allayed the public concern if you do not get reconciliation and do not have people thinking they have had their voices heard. Robert Francis QC, now Sir Robert, told us that the cathartic effect of being heard is a very important part of the inquiry. Hazel Shaw of Inquest said that the standing of the victims or bereaved families in an inquiry was very important. She said that often they are asking some of the most searching and difficult questions and performing a function in the wider public interest. That point is worth stressing. Although the victims—those who have suffered wrong—are at the centre or core of an inquiry, which is why we call them “core participants”, the outcome is of much wider importance for the public as a whole.

I want to thank those who gave evidence who have suffered some grievous wrong, and were prepared to put effort and commitment into making a success of the inquiry that looked into what had happened to them. I think, for example, of Christopher Jefferies who had been vilified by the press, mistakenly as a murder suspect—he gave evidence to the Leveson inquiry—and Julie Bailey who was such a leading figure in the Mid Staffordshire inquiry. We considered in some depth how such core participants were dealt with in the inquiry process, and whether it was appropriate. We heard about good practice from the noble and learned Lord, Lord Cullen, who spoke earlier and who, as an inquiry chairman, had meetings with the bereaved before the inquiry started,

“so they have a chance to see what I am like”.

The noble Lord, Lord Gill, who also chaired an inquiry told us that he met the core participants in advance. He said:

“You have to make it clear to them at the outset that everything is coming out in the open, that nothing is being held back”.

These are very useful examples of good practice.

The committee recommended that interested parties, particularly victims and victims’ families, should be given an opportunity to make representations about the final terms of reference. The Government, in their response—that most unfortunate document that we have been talking about for much of the time throughout this debate—accepted that recommendation very half-heartedly. The response states that it is,

“accepted to the extent that it may be helpful in certain instances”.

One of the elements of the inquiry that is important for public confidence and for core participants in particular so that they feel that they will be treated fairly and nothing will be swept under the carpet, is independence. Our committee made recommendations about independence from government. The noble Lord, Lord Trimble, referred to those, as did the noble and learned Lord, Lord Cullen. For example, we recommended that the Minister should appoint a panel member only with the consent of the chairman. That was rejected. The Government response rejected that recommendation because,

“there may be occasions when the minister and chair have different views”.

We recommended that the Minister should get the consent of the chairman to appoint assessors. That was rejected. We recommended that,

“the Act should be amended so that the consent of the chair is needed before the minister can set or amend the terms of reference”.

That was also rejected because,

“ministers will wish to retain control of the details”.

Recommendation 19, which is that,

“the power of the minister to issue a restriction notice under section 19, restricting public access to an inquiry, should be abrogated”,

was also rejected. The Government said that Ministers must keep this power because:

“They will understand the nature of national security and other sensitive material”.

We must draw from that the unavoidable conclusion that, in the view of the Government, a learned judge chairing a public inquiry will not understand such matters.

Recommendation 21 was that,

“where the minister wishes to terminate the appointment of a panel member other than the chair”,

the Act,

“should be amended to require the chair’s consent”.

That was rejected.

In light of the rejection of these recommendations and particularly in light of the reasoning given, I hope that the Minister will affirm the Government’s commitment to the independence of public inquiries. I hope that this debate will convince your Lordships’ House and the wider public who follow our proceedings that public inquiries are of considerable importance in ensuring transparency, accountability, truth finding and catharsis, and that our recommendations deserved a more thoughtful and intelligent response than they received.

Criminal Justice and Courts Bill

Baroness Stern Excerpts

Monday 21st July 2014 Lords Chamber

[Baroness Stern (CB)]

My Lords, I will not add to the Minister’s misery for too long and will speak briefly in support of these amendments.

In 2011-12, according to figures from the Justice Select Committee, there were 8,419 incidents of “restrictive physical intervention”, which I know means force, on children and young people under 18 in custody. This figure was a 17% increase on the figure for the preceding year. Two hundred and fifty-four of these incidents led to injury, 236 of those were minor injuries and 18 children were seriously injured. We know about these children. Nearly all of them grew up seeing violence between men and women, by men and women on children, by children on each other and on their streets—violence is all around them. Then they progress to the care of the state, when they are classified as offenders or remanded in custody en route to becoming offenders, and we subject them to more violence. We should restrict as far as is humanly possible the amount of violence in institutions run by the state, not open the door to its greater use. Therefore, will the Minister explain why, since these are to be secure colleges and places of education where children will presumably be helped to build self-esteem and confidence, the Government are opening a discussion on widening the circumstances in which the use of violence is permitted?

Furthermore, I understand that in the current system to which the noble Lord, Lord Ramsbotham, has just referred, two pain infliction techniques are still allowed. One involves bending the thumb backwards until the pain is so severe that the restraint is successful and the other involves applying pressure to the child’s neck. The argument for these techniques is that, in a life or death or serious danger situation, inflicting pain is a quick way of stopping the dangerous behaviour. Will the Minister tell the House whether it is envisaged that pain distraction techniques will be available to the teachers and other staff in secure colleges to deal with threats to good order and discipline? I mention teachers specifically because it is hard to see how a person helping a child to learn can also inflict painful violence on that child. I would also like to ask the Minister how he, as an extremely eminent lawyer, views the compatibility of the Government’s proposed regime for the use of force in a secure college with the United Kingdom’s obligations under the Convention on the Rights of the Child.

[The Earl of Listowel]

My Lords, experienced practitioners in residential settings, particularly local authority secure children’s homes, always tell me that the key to behaviour management and to avoiding escalation into using force is building relationships with the staff.

I was grateful for the Minister’s careful and considered response to earlier concerns. However, I go back to the staffing because in this country there seems to be such an underestimation of the level of qualification, understanding and support and development that staff need to work with vulnerable children, certainly those in our children’s homes, which I frequently visit. Ninety per cent of staff in children’s homes in Denmark have a degree-level qualification. In Germany, the figure is 50%, whereas in this country it is 30%. That was the situation about five years ago. Yet in Denmark and Germany half of children in care are kept in residential settings, so they have a far lower level of complex needs. We have far less qualified staff working with more vulnerable children. I am afraid that is a common experience across our children’s services in this country. We underestimate the skill involved in working with children who have been deeply damaged and the need to have really well qualified, reflective practitioners.

I visited Rainsbrook Secure Training Centre shortly after the death of Gareth Myatt while he had been restrained. My sense from that visit was that there was great regret but that it was okay: procedure had been followed. That generally sums up the culture in this country. We train staff up to be competent and follow procedure. In certain circumstances that is exactly right. What those on the continent have done is to recruit and select people who can think and who are deeply reflective, and who are trained to understand child development. They work hand in hand with mental health professionals to reflect on their relationships with young people and get the best from them.

If the Minister is successful in getting contracts for qualified staff who understand child development and, because they do that, work with mental health professionals to reflect constantly on their relationships with young people, we will be able to avoid the use of force as far as possible. In a large institution, however, it may be more problematic. There have been 16 deaths of children in custody since 2000; all of those have been in the larger institutions, the YOIs and the STCs, and not one in a local authority secure unit. Obviously they have had more children go through them, and that is important to bear in mind. I look forward to the Minister’s response.

Criminal Justice and Courts Bill

Baroness Stern Excerpts

Monday 30th June 2014 Lords Chamber

[Baroness Stern (CB)]

My Lords, I shall concentrate my remarks on the proposal for the establishment of secure colleges. Before that, I turn briefly to the excellent comments made by the noble and learned Lord, Lord Lloyd of Berwick, who deserves huge admiration—he certainly gets that from me—for his determined pursuit of the issue of life-sentence prisoners and the overuse of that sentence. He suggested that I might have some figures about the use of life sentences in England and Wales, compared with other European countries. I would not wish to let him down, so here are the figures. Per 100,000 of the general population in 2012, the Netherlands had 0.18 life-sentence prisoners, France had 0.77, Sweden had 1.63 and Germany had 3.05. England and Wales had 13.57 without indeterminate sentences; with indeterminate sentences, they had 24.31. As I recollect, the noble and learned Lord and I have said in past debates that there is a peculiar addiction to indeterminate sentencing in England and Wales, and that seems to be continuing.

I now move on to secure colleges. I begin by putting this proposal in the context of youth justice policy. For many years, policy on children and young people in trouble for whom loss of liberty has been deemed to be appropriate has been marked by a range of experiments. These experiments, introduced by enthusiastic government Ministers of all parties, have an aura of “Now at last we’ve found the answer”. The treatment of adults in prison has barely changed in essence for a century, but the treatment of young people changes according to enthusiasms that can be very seductive at the time.

It may be that this happens because there is a strong feeling, which I share, that the number of young people involved in delinquency is so small, and the benefits of turning them from a life of crime so great, that an answer is well worth finding. It is thought that there must be something new that would work. A century ago, a small village in Kent called Borstal became widely known because reformers had the idea of putting young people in trouble with the law into an institution modelled in every way on a public school. The wings were called houses, the assistant governors were called housemasters and there was even a matron. The regime was intended to be kindly and reformative, with teachers, a lot of sport and good relationships between staff and prisoners. It was a seductive idea, which sounded as though it should have been successful. It was not successful, and borstals are no more.

Some noble Lords will remember the short, sharp shock, a detention centre regime announced in 1979 and designed to provide a firm, disciplined, semi-military regime. It was felt that it was a good way of helping an errant teenager turn his life around. It was seductive idea that sounded as though it might work, but the short, sharp shock detention centres faded away, and they are now a small note in history.

The Minister is now trying to seduce us with the idea of secure college for 12 to 17 year-olds, starting with a 320-bed establishment in Leicestershire where, according to Clause 29, the governor will be called the principal and the deputy governor will be called the deputy principal. This establishment will be like a school and will be staffed with by people with the values of education rather than the values of incarceration. Education is very important and a basic right. Young people should have it whether they are imprisoned or not. The noble Lord, Lord Carlile, is right that it is a very good thing if a young person in prison has certificates in maths around his walls. It is a pity that he will never be able to be a maths teacher because of his convictions and his record, but education is undoubtedly hugely beneficial.

Will the secure college produce the results dreamed of? I suggest to your Lordships that it would be wise not to be too easily seduced. We heard the Minister in his fine attempt to persuade the House of the merits of the Bill. I admire his skill in this respect, but he must have suspended disbelief when he had to argue that each custodial place for a young offender costs £100,000 a year, 70% of them go on to reoffend within 12 months and, therefore, we shall set up a secure college. That is a non sequitur. There is no logic whatever in proceeding from saying, “We spend a lot; when they come out they are convicted of another offence; the answer is to spend £85 million on an establishment in Leicestershire which will, in theory, have an educational ethos”.

I should add that the Minister did not say in this House, as the Lord Chancellor said in another place, that the cost per head per year will be £60,000 and that, according to the impact assessment, the aim is to,

“reduce the overall cost of youth custody, focusing in particular on driving down the cost of the most expensive provision”.

I am very grateful to the noble Lord, Lord Ponsonby, for the research he presented to us, making it clear that this proposal has no logic in terms of custodial places where they are needed and in what numbers—no logic at all.

Although we spend £100,000 a year, the reason why seven out of 10 of those on whom the money is spent are reconvicted is that the money is not spent well enough to affect the deep-seated damage that most of these children and young people have suffered in their young lives. The highly respected deputy children’s commissioner, Sue Berelowitz, told the Public Bill Committee on 11 March that in all her many visits to young people in custody, she had,

“never yet met a young person … who did not come from a very troubled environment, who did not need a lot of intense support and who did not need help in forming relationships”.—[Official Report, Commons, Criminal Justice and Courts Bill Committee, 11/3/14; col. 6.]

She goes on to describe the best environment for such young people: a small environment where good relationships can be made between young people and staff. The noble Baroness, Lady Linklater, described exactly the sort of environment that is needed by describing to us her marvellous school where the children have to learn that they are valuable and worth something. I hope I have quoted her accurately.

This proposal takes us backwards. Thanks to the excellent work of the Youth Justice Board in recent years—I, too, warmly welcome the appointment of the noble Lord, Lord McNally, and expect great things from him—the institutions have become somewhat more child-centred and based on good relationships. To be particularly applauded is the reduction in the numbers in custody.

Before I end, there is one more matter I must raise. In this debate, we must get on the record the names of Adam Rickwood and Gareth Myatt. At this point I must pay tribute to the noble Lord, Lord Carlile, whose work to draw attention to the ill treatment of children and young people in custody has been untiring and hugely effective. Few people may now remember Adam Rickwood, except perhaps a few lawyers, judges, experts in the care of children and, I hope, some Members of your Lordships’ House. He was 14 when he died, having, as a judge said,

“the mournful distinction of being the youngest person to die”,

in custody in the UK. He died after he had been restrained by four prison staff because he refused to go to his room and had had administered a blow to his nose—a technique in use at the time to regain control by inducing pain. He hanged himself with his shoelaces from a curtain rail. The outcome of Adam’s death was the revelation that force to restrain children held in secure training centres, with the addition of inflicting pain, was being used to get young people to obey orders contrary to the secure training centre rules. Eventually the courts ruled that using force to restrain young people to preserve good order and discipline was in breach of the European Convention on Human Rights.

Let me remind the House also of Gareth Myatt, a 15 year-old boy sent to custody in 2004 for the first time. He was small for his age—four feet and 10 inches tall, weighing six and a half stone. He was restrained because of a dispute over the cleaning of a toaster. Three staff restrained him using force; he said he could not breathe. He became unconscious and died of asphyxia. That technique used by the staff was never used again. Following the deaths of these two children, it was some small consolation to their families that lawyers went to court and won their cases, and the methods of restraint were changed. It helps to think, after such an injustice, that at least this will not happen to someone else’s child.

I hope that the Minister has heard the contributions to this debate, about the use of force on children in detention and the need for stringent restrictions on its use. I look forward to making the Bill better in Committee.

Civil Legal Aid (Remuneration) (Amendment) (No. 3) Regulations 2014

Baroness Stern Excerpts

Wednesday 7th May 2014 Lords Chamber

[Baroness Stern (CB)]

My Lords, we in this House owe a great deal to the noble Lord, Lord Pannick, for his untiring attempts to preserve access to justice for vulnerable and powerless people—the legally aided claimants. I rise in support. I wanted to ensure that we had on record the concerns of some of the excellent people who work hard to get access to justice for powerless people, and I felt very privileged to hear the contribution from the noble Baroness, Lady Campbell of Surbiton, who is one of the stars in that firmament. Liberty does a great deal of this sort of work—I declare an interest as a trustee of the Civil Liberties Trust—but Liberty says that from its experience,

“the prospect of irrecoverable costs will place an unsustainable burden on claimant lawyers, making it simply too risky to pursue legal aid claims”.

I also want to mention young legal aid lawyers. Personally, and I am sure that other noble Lords will agree with me, I think we should be grateful that there is an organisation called Young Legal Aid Lawyers, and one wonders what they live on. The organisation has written to me about its work on legal aid immigration cases and the fear that the firms that these lawyers work for, in spite of their commitment to social justice, just cannot afford the risk of taking on some of these cases, even when they feel deeply that an injustice has taken place.

The Howard League for Penal Reform is extremely concerned about the effect of this measure on vulnerable people, including serving prisoners and those leaving prison. The Howard League referred me to the 2009 case of G, regarding a young person in trouble who was sleeping rough in a car. Through the Howard League he got a solicitor who brought judicial review proceedings about the responsibility to house him. Eventually the case reached the House of Lords where the noble and learned Baroness, Lady Hale, supported by the noble and learned Lord, Lord Hope, came out with a judgment that has resulted in a profound change in the way in which homeless young people are dealt with by local authorities. That one case has had a substantial effect on the lives of many children and saved a great deal of money.

Other judicial review cases have profoundly affected and improved the treatment of vulnerable prisoners—for example, a successful judicial review challenge with regard to the failure to transfer a prisoner with mental health problems from prison to a secure hospital for treatment; a successful judicial review challenge on behalf of a severely disabled prisoner in relation to the prison authorities’ failure to provide him with a motorised wheelchair and allocate him to an adapted disabled cell; a successful judicial review claim on behalf of a female prisoner with regard to the lack of disabled facilities in women’s open prisons; a successful judicial review on behalf of a prisoner with learning disabilities relating to the prison authorities’ failure to adapt offending behaviour programmes; and a successful judicial review challenge on behalf of a prisoner to stop prison authorities from reading his legal mail.

Those are all important matters that relate to the just treatment of vulnerable individuals and those who face discrimination. They are decisions that change the way in which things are done so that prisoners with learning disabilities can do offending behaviour programmes and maybe get parole, prisoners with serious mental health problems go to hospital and get treated and disabled prisoners are treated with respect for their human dignity. Does the Minister not regret just slightly that these sorts of developments will become more rare? Will he explain what he actually has against people such as those who have been described during this debate getting the wrongs that are done to them righted?

[Lord Howarth of Newport (Lab)]

My Lords, we should be grateful to the members of the Secondary Legislation Scrutiny Committee and the Joint Committee on Human Rights for their two excellent reports; and, of course, to the noble Lord, Lord Pannick, for securing this debate. Parliament ought to be vigilant for the liberties of the people. The committees and the noble Lord have indeed been so.

There are constitutional principles at stake in these regulations of bedrock importance: the principle that effective remedy should be available against arbitrary government and the principle that there should be equality under the law. Indeed, it is the rule of law itself which is in question. The law should be for the convenience of the people and not their governors. It is essential, therefore, that remedy should be available that is practical for an aggrieved citizen to seek, and that is available regardless of his personal means, against a public body that conducts itself in a manner that is unlawful, procedurally incorrect, incompetent, oppressive or unreasonable. If judicial review is not available to enable a challenge to wrongful decisions by the state or its agencies, we move away from a liberal constitution and towards executive absolutism.

Noble and learned Lords have explained in exactly what detailed respects these regulations are so offensive and how they would do their damage in practice. I pay tribute to them as I do to the range of admirable organisations and individuals who have made representations to us. It is extraordinary that we should be asked to rely on the funding of remedy against bad government at the discretion of the same Government who are themselves being impugned.

If it is unsure that legal aid will be available for the preparation of meritorious cases, then the freedom to seek judicial review is no more than the proverbial freedom of the poor man to dine at the Ritz. If a significant number of applications will not, under these regulations, be able to proceed, we lose important opportunities for the clarification of the law and for the improvement of public administration that the pressure of judicial review brings about.

Are these regulations really designed to save money? The Explanatory Memorandum asks us to accept that they are, and says that the primary objective of the Government in bringing in these regulations is to bear down on the overall cost of legal aid. I do not believe it. The Ministry of Justice’s estimate of how much might be saved is in the range, as the noble Lord, Lord Carlile of Berriew, mentioned, of between £1 million and £3 million. That is an extraordinarily vague assessment. We are also told by the department that somewhere between 20% and 69% of applications, if one goes by recent experience, would no longer receive legal aid. Again, the vagueness of that range—between 20% and 69% of cases—is horrifying. It would seem that the department has not done its homework and, certainly, that it has no clue as to how much it might be going to save. That is before we consider what would happen to net costs. There can be little doubt that the costs of the changes brought in by these regulations would be shunted elsewhere and would certainly not, in the end, be avoided.

Nor has the department been able to make clear how the payments system will work. Reasonably enough, if solicitors and advocates cannot foresee with any confidence that they will be paid, they will not be willing to take on cases. This is a shoddy and improper way in which to legislate. I also believe that the generality of citizens of this country, if apprised of the significance of the issues at stake, will be more than happy to pay whatever taxes it takes to pay for a proper system of judicial review.

Criminal Legal Aid (General) (Amendment) Regulations 2013

Baroness Stern Excerpts

Wednesday 29th January 2014 Lords Chamber

[Lord Goldsmith (Lab)]

My Lords, it is a privilege to follow the statements that have been made by so many of your Lordships universally condemning these regulations and identifying the specifics of why they are wrong in principle and wrong in fact.

I have not been someone who has objected to any legal aid cut. I have been concerned about some but, as a member of a Government who themselves had to look at legal aid issues, that was not the concern. However, what particularly concerns me about these regulations is the point that the noble Lord, Lord Pannick, made early in his contribution when he referred to the reasons given by the Secretary of State, the Lord Chancellor, for making this change—said to be ideological.

While there may be that ideology so far as the Lord Chancellor is concerned, noble and learned Lords have already made it plain why it is legally wrong: because prisoners have rights. Therefore, if the justification is that, ideologically, they should not have rights, he is saying that they should be in the same position as the people in the black holes of Guantanamo.

I am still shocked by the piece that the Lord Chancellor wrote in the Daily Mail on 11 September 2013, in which he described judicial review, not once but twice, as,

“a promotional tool for countless Left-wing campaigners”.

That is completely untrue, of course. I do not think that the Daily Mail would be regarded as a left-wing campaigner, yet it used judicial review to challenge the Leveson inquiry. Much as I admire it, I do not think that the Countryside Alliance, when it brought a judicial review against hunting, would have regarded itself as a left-wing campaigner.

It is deeply worrying that that is the ideology that underlies these changes. It would be deeply worrying if it came from anybody, but coming from a Lord Chancellor—a Secretary of State for Justice—it is a matter of the gravest regret, which is why I am very happy to support the noble Lord, Lord Pannick. It is wrong for these reasons. It is wrong because legal aid is about justice, not about ideology. It should be about ensuring that people can vindicate their rights where properly those rights deserve to be vindicated. Therefore, the Lord Chancellor—the Secretary of State—is ideologically unsound and also legally wrong.

This measure is, I regret to say, shabby, and a political and populist move which does no credit at all to a Government. Equally, it does no good, as noble and learned Lords and noble Lords have pointed out, in terms of cutting the budget. I very much hope that the noble Lord—and I, for one, welcome him to his place on the ministerial Bench—will do his best to make sure that that point is driven home within the Ministry of Justice and that the Secretary of State recognises eventually that this sort of move, which he regards as ideological, is in fact utterly to be regretted.

[Baroness Stern (CB)]

My Lords, my memory of the gradual application of the rule of law in prisons also goes back a long way—as far back as that of my repentant noble and learned friend, whom I have the great honour to be sitting next to and of whom my opinion has warmed considerably as the years have gone by.

I recollect the days when prisoners were found guilty of disciplinary offences and sentenced to lose many days of remission without being heard or allowed to defend themselves. I remember a riot at Wormwood Scrubs prison in which 54 prisoners and 11 prison officers were injured. It was hushed up. The full facts emerged after two and a half years and no one was ever held to account. I am sure that there would be no support in 2014 for the rule of law not being maintained in prisons. The arrival of lawfulness improved immeasurably the working conditions of staff, the treatment of prisoners and the safety of the environment in which they both lived. My noble and learned friend Lord Woolf was right to say in his report on the Strangeways riot in 1991 that,

“the system of justice which has put a person in prison cannot end at the prison doors”.

Therefore, within this context, since this is a Motion of Regret, I regret very much that the framework of lawfulness in which prisons operate is to be reduced. I understand the argument about cost, but these measures will certainly save no money at all, and they will shrink one of the elements that keep prisons fairly safe and fairly manageable—that is, the provision of access to a remedy when a decision seems arbitrary and unjust.

Perhaps I may mention one specific situation so that it may be on the record. I refer to prisoners who are held in extreme conditions, such as in the case quoted by the Chief Inspector of Prisons when he gave evidence to the Joint Committee on Human Rights. It concerned a woman with severe mental health problems in Bronzefield prison who was held for five years in conditions that amounted, in his view, to cruel, inhuman and degrading treatment. In future, such a woman seems very unlikely to be able to get legal aid to challenge her conditions and her placement. Women who have their babies taken away have already been mentioned, and I endorse the comments of the noble Baroness, Lady Kennedy.

I end by endorsing the remarks of the noble Lord, Lord Carlile, about the excellent work done by the Howard League and the Prisoners’ Advice Service. Neither of those specialist legal aid prison law firms will be able to continue under these arrangements, and that, too, is a matter for profound regret.

Legal Aid, Sentencing and Punishment of Offenders Bill

Baroness Stern Excerpts

Tuesday 20th March 2012 Lords Chamber

[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.

[Baroness Stern]

My Lords, this amendment does not ask for much. It is indeed modesty itself. It asks for a focus, a group of people in the Ministry of Justice whose job should be to carry forward the excellent policies that the Minister told the House about in Committee. It makes it clear that the Ministry of Justice cannot do this on its own and calls for the Ministry of Health, the Department for Communities and Local Government, the Department for Work and Pensions and the Home Office to be involved—a point that has just been ably made by the noble Baroness, Lady Lister. It makes it clear that they should report to a ministerial group and that there should be an annual report.

This amendment is not a criticism of the Government’s work so far, nor of that of the previous Government. It is recognition that this is a particularly intractable problem. Efforts are made by many people, and the situation gets a little better, but then it reverts. The Minister will know, because he has just kindly answered a Written Question that I asked, that the Chief Inspector of Prisons said of the Keller unit at Styal prison that it constitutes,

“a wholly unsuitable place to safely hold and manage very seriously damaged and mentally ill women”.

The conditions in which such women are held in Styal prison have been criticised on and off for many years. On 15 February, in Committee, the Minister said that,

“one does not need to visit many women’s prisons to see that far too many prisoners should not be there”.—[Official Report, 15/2/12; col. 876.]

Ministers have said that before. This is not politically contentious. There is wide agreement about what should happen but sadly it does not change or it changes at the margins—one aspect improves while another deteriorates.

That is why there is wide support among those who are concerned with this issue for a statutory framework, a strategy, a focal point and an annual report that will allow Parliament to see if at last we are moving forwards and seeing improvements that last. I very much hope that the Minister will support this modest proposal.

[Baroness Howe of Idlicote]

My Lords, I, too, welcome this proposal. All of us have been talking about this area for so long, it is not true. The point about action now, which was made by various speakers, is entirely right. My noble friend Lord Wigley has quoted a number of horrendous figures, which I will not quote again, but the fact that 5 per cent of women’s children stay in the family home should be enough to indicate just how disastrous the effect of imprisoning women is on family life and on the futures of those children.

I very much hope that the actions already begun by this Government, and those started under the previous Government, to do much more to keep women out of prison will continue, which is entirely the right way to work. There needs to be intensive work and support at differing levels, both at professional and volunteer levels, to see the women out of these crises. Women prisoners outnumber men who self-harm, have mental health problems and so on. The situation is horrendous.

Without overemphasising absolutely everything about this issue, I hope that all departments will come together. I want to see good examples of what can happen in a women’s prison, but I also want to see it as an example of what would be effective for a number of men as well, particularly young offenders. I hope that the Minister and all those involved in this issue will treat it with urgency.

Legal Aid, Sentencing and Punishment of Offenders Bill

Baroness Stern Excerpts

Wednesday 15th February 2012 Lords Chamber

[Baroness Hamwee]

My Lords, I added my name to the amendment of the noble Baroness, Lady Gould, because I wanted my noble friend to have a voice from behind him. I know that he needs no prompting on this issue; it is something about which he feels strongly. Therefore, he will recognise that my adding my name is in part a tactic in what I hope will be discovered to be a thought-through strategy.

I was attracted to the amendment because of the issue that it addresses but particularly by its reference to so many facets of women in the criminal justice system and areas beyond that system, including housing, social services and employment. The knock-on effects of the treatment of female offenders on their children, their housing situation and the likelihood of their becoming homeless are well understood and I do not need to reiterate them at this time of night. However, as has been said, women in this situation have particular needs and are affected by particular factors.

I was attracted by four words in the noble Lord’s Amendment 182C: namely, “just and appropriate treatment”. I stress all those words. I was also attracted by the reference in the amendment of the noble Baroness, Lady Gould, to “services to women”. That is a very important phrase to include in the amendment. I hope that the Minister will give us a positive response. Therefore, I do not wish to take up any more of the Committee’s time as I am aware how much business we need to get through tonight.

[Baroness Stern]

My Lords, I support the aims of these amendments. In my view the issue of women in prison is one of the great injustices that have still not been dealt with in our society in spite of tremendous efforts by totally dedicated people and many excellent reports all saying the same thing. To impose punishment on someone who manifestly needs help and treatment is inhuman, degrading and quite unacceptable. I wish to concentrate my brief remarks on those women in prison who are seriously mentally ill.

What a long history we have of locking up such women and failing to find another way. I still remember the 2006 BBC2 film that opened with a young woman cleaning up the blood of the latest incident of her cutting herself very severely. The basin was filled with blood, as was the toilet bowl. The film related that every night several of the prisoners tried to hang themselves and showed prison officers running from one attempted suicide to the next. Has this problem been solved? Not according to Clive Chatterton, the former governor of Styal Prison, whose comments have already been quoted by the noble Baroness, Lady Gould. In his letter to the Lord Chancellor, quoted in last Sunday’s press, he describes a 20 year-old on remand for theft who repeatedly slashed her arms, then attempted to hang herself before setting fire to her body. When taken to hospital, she tried drinking a bottle of toxic disinfectant. Her last failed suicide bid involved swallowing a tampon and drinking water in the hope that the cotton would swell and obstruct her windpipe so that she would choke. Self-harming, he observed, was frequently the single element of their lives where the women could exert control.

Rachel Halford, director of the excellent campaign group, Women in Prison, said that these women “have no power, which mirrors their previous experiences of abuse and neglect”. A woman in prison told her, “Putting the blade in and watching the blood come down is the only time I can control something that’s happening in here and stop the pain”.

Nick Hardwick, Chief Inspector of Prisons, has just reported on Styal women’s prison. He said that the condition of the women in the mental health unit was,

“more shocking and distressing than anything I have yet seen on an inspection. Despite the best efforts of the staff at Styal, the Keller unit remains a wholly unsuitable place to safely hold and manage very seriously damaged and mentally ill women”.

I understand that the Government are in talks with the Department of Health about putting an end to holding mentally ill women in a totally unsuitable place—a place of punishment. I would be grateful if the Minister could tell us how these discussions are progressing and whether the Government see a way of ending a situation that many of us in this House have talked about time and time again. I see that the noble Baroness, Lady Gale, is present. She has raised this issue frequently. Under this Government will some arrangements at last be put in place along the lines of the measures proposed in these amendments so that this disgraceful situation does not continue for another 19 years?

[Lord Dholakia]

My Lords, I have spoken on this issue on a number of previous occasions. I particularly recall the moving debate on this subject initiated by the noble Lord, Lord Ramsbotham.

We must accept that factors which affect female offenders are fairly complex. The use of more non-custodial options seems to bypass female offenders. We are told that the reason why we do not have a separate framework in law for women is because we have a different structure for them.

When I last spoke in a similar debate, I was told that to go down the route towards a women’s justice board could risk marginalising women further when what is needed is to mainstream the provision that we give women and ensure that under the national offender management structure sufficient priority is given to service provision for and management of female offenders.

The fact remains that there are shared issues and special and specific issues which affect women. I wish to spell out in what ways female offenders’ characteristics and needs are different from those of male offenders, and what needs to be done about this. First, a much higher proportion of female prisoners have mental health problems than do male prisoners. Surveys show that more women prisoners have a psychiatric history before entering prison. Many more have histories of self-harm than male prisoners, as explained by the noble Baroness, Lady Stern. More have personality disorders, neurotic disorders, learning disabilities and problems of substance abuse, and much more, as far as having more than one diagnosis is concerned. Many more women prisoners have suffered past physical or sexual abuse at the hands of adults or partners.

Secondly, a much higher proportion of women prisoners are sole carers for young children. In most cases where male prisoners are parents of young children, the child’s mother is looking after them on the outside, but in only a quarter of cases of mothers in prison are the children being looked after by their current or former partners.

Thirdly, because there are far fewer prisons holding female prisoners, women are much more likely to be imprisoned a long way away from their home areas. This makes visits from their children and other relatives more difficult.

Over the last 18 years the courts have responded to the growing mood of toughness in penal policy by adopting a more punitive stance towards women offenders. During that time the number of women prisoners has risen more than twice as fast as the male prison population. Yet most women sent to prison are neither violent nor dangerous and the majority have few previous convictions.

Against this background, what is the case for the establishment of a women’s justice board? The analogy the noble Lord, Lord Ramsbotham, made with the Youth Justice Board is very appropriate. The Youth Justice Board has set standards for provision for young offenders; commissioned provision for young offenders; and developed initiatives ranging from intensive supervision and surveillance schemes for persistent young offenders, to youth inclusion programmes for young people at risk of offending.

There is an equally strong case for the establishment of a women’s justice board. A women’s justice board with responsibility for commissioning provision for women offenders could set standards to ensure that provision meets women prisoners’ particular needs. This would include standards meeting women offenders’ needs for mental health services, for the maintenance of family contact and for culturally appropriate support for foreign national prisoners. A women’s justice board could commission smaller units for imprisoned women spread around the country, so that women could be held nearer their families and home areas.

In short, the establishment of a women’s justice board could be the single most important step we could take towards improving the treatment of women offenders. These amendments will go a long way to deal with the issues I have identified.

--- Later in debate ---

[Baroness Stern]

My Lords, I rise briefly to speak in support of the amendment which has been moved so ably by the noble Baroness, Lady Miller. I recall how encouraging it was to see the coalition Government, when they came into office, making it clear that new laws were not the answer. Speaking at the Liberal Democrat annual conference in September 2010, the Minister said:

“Labour created thousands of new offences and used a steady stream of criminal justice and anti-terrorism laws to ratchet up the powers of the state and to diminish the rights of the citizen. This coalition comes into office to reverse that tidal flow of laws …Which is why my department, the Ministry of Justice, will now check each new criminal offence. And if we don’t need it, it will be blocked”.

In the light of that admirable sentiment, I wonder if I could ask the Minister why, having heard the noble Baroness, Lady Miller, he still feels that this would be a good new offence to introduce.

[Lord Judd]

My Lords, I congratulate the noble Baroness on having put this issue before the Committee. I am not sure that I see some of the points she made as quite as clear-cut as she suggests they are. There can be tremendous complexities and very real, painful stories behind houses that stand empty for longer than six months. There may indeed be social issues that in themselves need to be addressed. But what I think she is absolutely right about is that if a high percentage of the people who are squatting in the way described are particularly vulnerable with a disproportionate number of problems, for the life of me I cannot see how adding criminalisation to all the other complexities that they face so inadequately will help them to sort out their lives. It seems to be a cynical and cold-blooded approach. I have moments, when listening to the Minister, when I fear that he has got embarrassed about liberal principles and feels he must distance himself over and over again. I certainly do not recognise any liberal principles in this piece of legislation.

Legal Aid, Sentencing and Punishment of Offenders Bill

Baroness Stern Excerpts

Thursday 9th February 2012 Lords Chamber

[The Lord Bishop of Chichester]

My Lords, it will not surprise you that I wholeheartedly support the amendment. I am very grateful to the noble Lord, Lord Judd, for warning against sentiment. There is a robustness about offering human beings hope that contributes specifically to the rehabilitation and reconstruction of which he spoke. However, this is about much more than simply giving hope to individuals, because a society that does not give hope to individuals is unlikely to have hope for itself in areas in which it feels as a society hopeless. In terms of a civilised society, this is a very humane amendment which is necessary for our societal good as well as for the individuals for whom it is designed.

[Baroness Stern]

My Lords, I support the amendment and endorse the excellent speeches made by all those who have spoken so far. I stress, as they have, that this is not an amendment about releasing any particular person who has done any particular thing; it is an amendment about what sort of penal system we have and its values.

One of the consequences of the very welcome abolition of the death penalty—I declare an interest as chair of the All-Party Group for the Abolition of the Death Penalty—was a search for another sentence for the most serious and dreadful crimes. A few countries decided to adopt the life-without-parole alternative. In the United States in 2009, there were more than 2,500 juveniles serving a sentence of life without parole, which is probably at the extreme end of the use of the sentence.

I have always been of the view that a non-reviewable life sentence, or what is called by the courts an irreducible life sentence, with no provision for reconsideration by the authorities whatever the circumstances—be it their health condition, their extreme old age or a dramatic change in the way the person sees the world—must surely constitute inhuman and degrading treatment. I was one of those disappointed by the European Court of Human Rights not reaching that view in the case of Vintner and others v United Kingdom. That case was barely reported, probably because the court found in favour of the Government; it seems to be the other cases that are always widely reported and commented upon. As the noble and learned Lord, Lord Lloyd, said, the court’s judgment was by a slim majority of four against three. I shall quote briefly from the opinion of the three dissenting judges. They said:

“we conclude that there was a procedural infringement by reason of the absence of some mechanism that would remove the hopelessness inherent in a sentence of life imprisonment from which, independently of the circumstances, there is no possibility whatsoever of release while the prisoner is still well enough to have any sort of life outside prison”.

In 2007, the European Committee for the Prevention of Torture said of the whole life sentence:

“the CPT has serious reservations about the very concept according to which such prisoners, once they are sentenced, are considered once and for all as a permanent threat to the community and are deprived of any hope to be granted conditional release”.

The German constitutional court found in 2010 that if someone had no practical prospect of release, a life sentence would be cruel and degrading and infringe the requirements of human dignity provided for in Article 1 of the German Basic Law. I also remind the Committee that the statute of the International Criminal Court—which, as noble Lords will know, deals only with the most heinous crimes—expressly provides for a review of detention by the court after 25 years.

Legal Aid, Sentencing and Punishment of Offenders Bill

Baroness Stern Excerpts

Thursday 9th February 2012 Lords Chamber

[Lord Clinton-Davis]

I find myself in complete agreement with the noble and learned Lord, Lord Lloyd. As far as this clause is concerned, the onus rests firmly with the Government. Nobody around this Chamber—Labour, Conservative, Cross-Bench or Liberal—disagrees. It is vital for the Government to prove that this clause is relevant. So far, they have not done that. There has been a chorus of disapproval surrounding this clause from all Members who have spoken, and it is virtually impossible for the Minister to be able to convince us that this clause is relevant. I will listen with bated breath, as I always do, to what he has to say, but I have dismissed it already.

[Baroness Stern]

My Lords, I shall add a few remarks to the chorus of disapproval. I welcome the noble and learned Lord, Lord Lloyd, raising this matter. I shall say a little about the use of life sentences in our law. I have some comparative figures for 2008 about the use of life sentences per 100,000 of the general population. For England and Wales, including IPP sentences, the figure is 20.9; for life sentences that are not IPP sentences, it is 12.71. I suppose the Minister might regard those as reasonable comparators. For France, the figure is 0.85, for Germany 2.41, for the Netherlands 0.14 and for Sweden 1.68. On the face of it—and I am reasonably confident about the accuracy of the data—there is an extraordinarily different way of sentencing within the criminal law in this jurisdiction from in the jurisdictions of continental Europe.

It says nothing about sentence length—that is an entirely different question—but it says a great deal about the admiration and affection that we seem to have for indeterminacy as a way of dealing with people. In the last group of amendments, the noble Lord, Lord Ramsbotham, spoke eloquently about the impact of indeterminacy on the sentenced person. The sentenced person is left in limbo. He has a very vague idea of what the future holds and of whether a sensible plan could be made for the years that stretch ahead. He has no idea of who has the power to decide whether, and when he is released, how those decisions are made and how he can have an influence, by behaving in a certain way, on what happens in the future. I would imagine that it is a less desirable option than a fixed sentence, where it is clear to the person and to the family in the outside world what the future looks like and how it can be affected.

The proposal for another mandatory life sentence is highly undesirable and I support the amendment.

[Lord Beecham]

My Lords, in replying to the debate on the last group of amendments, the Minister spoke of his residual affection for the Labour Party in terms that he might have used about an elderly relative. I half expected him to cross the Floor and offer me a cup of tea and a biscuit. I appreciate his kind thoughts.

On the substance of what we are now discussing, I am not at all comfortable with the line the Government are adopting. I entirely support the amendment of the noble and learned Lord, Lord Lloyd. Either the Government intend there to be an effective mandatory life sentence policy, which would be wrong in principle; or they want to give the impression of so doing when they do not intend that, which would be disreputable. I am sorry that the noble Lord appears to be lending himself to either of those approaches.

The Minister referred to the party to which I belong as being less than liberal. Those who know me within the party I represent, here and elsewhere, know that I have not been uncritical from time to time of the penal policy of the previous Administration, for what that is worth. I was going to say that the noble Lord should perhaps look behind him, but there is only one Peer from the Conservative Party in the Chamber and she has the respect of us all.

I recall a poster in the 2005 election—I cannot resist reminding noble Lords about this—which I noticed en route from Heathrow Airport into London, which said:

“What would you think if a bloke out on licence raped your daughter?”.

That was the style of an election campaign of the noble Lord’s current partners. I do not for a moment imagine that he or his colleagues on the Liberal Democrat Benches, then or now, would approve of that approach.

One can debate the merits or otherwise of various party policies but that does not get us very far. However, the Minister talked about disarming a time bomb. The fear is that while he is disarming a time bomb he might be planting a minefield in terms of the effect of this provision about life sentences if it is carried out. Here I must plead guilty, before being charged, to inadvertently misleading the House when I gave statistics earlier, which I said related to the extended sentences. In fact, they related to the mandatory sentence provision. But they are the statistics and they demonstrate that over a decade around 5,500 would be added to the very long-term sentences if this provision should pass into law. A great proportion of them would involve serious crimes of violence against a person, as well as other offences. That was the substance of the Written Answer to the parliamentary Question to which I referred.

The noble and learned Lord has more than adequately, as one might expect, disposed of the case, such as it is, for Clause 114. I hope that the Minister today will agree that it should cease to form part of the Bill or at the very least undertake to look again at the provision and come back at Third Reading on the issue.

Legal Aid, Sentencing and Punishment of Offenders Bill

Baroness Stern Excerpts

Monday 21st November 2011 Lords Chamber

[Baroness Stern]

My Lords, I am very glad indeed to follow the noble Lord, Lord Macdonald, and wholeheartedly endorse his comments about free legal advice in police stations. However, I shall concentrate my remarks on the sentencing part of this Bill, Part 3, which contains many proposals that are broadly welcome.

The Lord Chancellor has said on more than one occasion:

“A sensible review of sentencing policy is much overdue”.

This followed his statement soon after his appointment that he was “amazed” that the prison population had doubled since he was Home Secretary in the early 1990s and now stood at more than 85,000, which he described as “an astonishing number”, which he would have,

“dismissed as an impossible and ridiculous prediction”

if it had been put to him as a forecast in 1992. He said:

“We need an enlightened and effective penal system that the public can both trust and afford to pay for … Too often prison has proved a costly and ineffectual approach”.

These are very sensible words that have proved a little difficult to put into policy.

It is perhaps worth noting, in support of the Lord Chancellor’s view, that it is a feature of England and Wales that our use of prison is high compared to similar countries, and our use of prison rises year by year, unlike similar countries. England and Wales have 154 prisoners per 100,000 of population; Germany, a similar, large, western country, has about 87. So we are about 70 per cent higher. Germany’s prison population has not been on a steady upward trend for the past 20 years; it has fluctuated around 90 per 100,000, and has gone down by 6 per cent since 2007. In England and Wales, the prison population has gone up steadily for the past 20 years and has increased by 6 per cent since 2007.

The Lord Chancellor is right to think that there are models of an “enlightened and effective” penal policy, and prison numbers can be reduced, especially since there is no evidence to connect imprisonment rates and crime rates; for example, in New York, the number in the city’s jail system has been going down steadily. In 2010 it fell below 100,000 for the first time since 1987, and at the same time there has been a big and much publicised reduction in New York City’s crime rate. Whether the legislation we are debating here this evening will take us in that direction remains to be seen, but it might be worth noting that features of the European countries with lower and stable prison populations are, to generalise, first, broad discretion for judges; secondly, strenuous efforts to keep young people out of the system and to divert lesser offenders; thirdly, strong, well resourced probation and social services; and finally, a recognised role in the system for victims of crime.

There is therefore much to welcome in Part 3 of this Bill. For example, there are provisions for greater use of compensation orders, which take victims into account. There is flexibility for the court in dealing with breaches—that is, more discretion for judges; greater discretion and flexibility in supervising community orders—and probation staff are likely to be more effective if they are given the opportunity to use their discretion and tailor what they do to the individual before them; more flexibility in imposing referral orders, trusting the court to do what is best for the juvenile before it; and reducing remands in custody, and, in particular, juvenile remands.

Obviously many of us who have spoken so often in this House about the injustice inherent in the IPP system will welcome the abolition of the IPP sentence, and also the proposal to reform the release test for prisoners serving IPP sentences. The Convenor of the Cross Benches, the noble Lord, Lord Laming, has received and passed to me a huge packet of letters from the families of current IPP prisoners—I believe that they have also written to the noble Lord, Lord Ramsbotham—pointing out the injustice of their continued detention. Many of them are without access to the facilities that would enable them to progress towards release. Can the Minister also tell the House in his response what the Government plan to do to deal with those currently serving IPP sentences?

Not everything that has been put before us in Part 3 of the Bill is so welcome. Curfews of up to 16 hours, with the length of curfew periods up from six to 12 months, seem to me neither sensible nor enlightened, especially for children and young people. The provision for mandatory four-month detention and training orders—that is, prison sentences for 16 and 17 year-olds—for threatening with a knife could bring another 200 to 400 teenagers into prison every year. It is not clear to me that that is sensible either.

I must end with a word about the legal aid aspects of the Bill, although I can see that the Minister feels he might well have heard enough about them. It is my experience when dealing with improving observance of the rule of law in countries where it is grossly deficient that the one measure most likely to create a more lawful, fair and democratic society is to give poor people access to justice and access to means of redress of abuses by the powerful or by the state. In a democratic society, people—whatever their social position—should be able to get wrongs righted and injustices rectified. So I am in wholehearted agreement with the very powerful points that have been made all around the House, calling for the Government to think again about what it means when a rich person can go to court and fight for his or her rights and a poor person cannot do so.