Offender Management Act 2007 (Commencement No. 6) Order 2013
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Lord Beecham
My Lords, we have heard a good deal about capacity and incapacity this afternoon. With respect, it does not say much for the capacity of the department that it clearly made an error in the way it presented the report to the Secondary Legislation Scrutiny Committee. It ought to be comforted by the fact that it was an error of only 40% compared with the 90% that appeared in the costing that it applied to higher-value claims in the criminal legal aid consultation paper—the department is moving in the right direction. In all fairness, it should be pointed out that the letter from the committee talked about “probationary trusts”, so capacity is perhaps an issue that extends to the committee as well as the department.
I very much welcome this report, for two reasons to start with: the whole scheme was started by the previous Government and Newcastle University was very much involved in it. Those are two grounds on which I could hardly fail to commend the Government for proceeding. It is right that the project should be taken forward.
I am slightly unnerved by the concept of polygraph testing. To me, it has echoes of “Minority Report”, the Tom Cruise film—I do not know whether the Minister saw it—in which, in a future world, technology is used to predict criminality by potential offenders and they are intercepted at an early stage. That nightmarish outcome is not envisaged under the regulations; on the contrary, they should assist in dealing with potential offenders. I welcome the assurance contained in the explanatory note, and given again by the Minister, that they will not be used as a basis for returning people to custody; nor will they be relied on in court proceedings. They are an indicator as to whether steps should be taken—additional supervision or the like—for offenders. That is a welcome limitation.
However, I have one or two questions. The discussion is about applying the polygraph tests to serious sex offenders. I am not clear what constitutes a serious sex offence for this purpose or how you define serious sex offenders. It would be helpful if the Minister could clarify that.
In addition, it is interesting that the process as currently envisaged sees the technician carrying out the test at the behest of a probation officer. Given the proposed changes in the probation service, do the Government intend that such an approach would always be supervised by a probation officer as opposed to some of the other people who will be carrying out supervision under the new contractual and payment-by-results system which the Government seem intent on pushing forward? Given the nature of the offences we are talking about, it would be preferable for these matters always to remain within the domain of the probation service.
The explanatory note refers to a national rollout targeting not only serious sexual offenders—a point I have already made—but,
“others for whom it is deemed necessary and proportionate”.
Again, can the Minister give an example—if not today, subsequently—of what is envisaged by that rather broad phrase? It seems to me that both parts of that phrase need to be more clearly defined.
In debate in the House of Commons, my honourable friend Jenny Chapman asked whether all sex offenders should be covered by the procedures, as opposed to serious sex offenders only, however defined. There is capacity, it is noted in the note, for a further 200 sexual offenders to be built into whatever contract is eventually arrived at—hopefully not with Group 4 or Serco—for this. That would be in addition to the 750 per year which it is anticipated would be subject to mandatory testing. Actually, the report states that the most recent figure is 780. So we might be talking about 1,000 people altogether, with that extra capacity of about 200.
The question arises whether that will be sufficient. It was argued quite forcefully by the Minister replying to the debate in the House of Commons, Mr Wright, that there was a cost factor here. One understands that, but the cost of this project is estimated at about £3 million. If every sexual offender were to be tested—although I am not suggesting that—that would increase the cost to, say, £12 million. Given the nature of the offences, I wonder whether the financial consideration should be all that material. I repeat that I am not suggesting that everybody should be tested, that would not be sensible—but I hope that an artificial financial limitation will not be imposed on the procedures. That would be a matter of public concern, whereas this whole proposal should reassure the public that their safety is likely to be enhanced by the process, with all the safeguards and qualifications to which the Minister has referred.
The Opposition approve the thrust of the report, and I look forward to hearing from the Minister about the queries that I have raised—either today or subsequently.
Lord McNally
My Lords, I thank the noble Lord, Lord Beecham, for that response. As I made clear in my speech, the department regrets the error that was made, but at least we got good marks from him for our choice of university, so I have come out of this with some merit. I am not a great Tom Cruise fan and I have not seen “Minority Report”, but that is probably a generational thing. I started off with the same scepticism about polygraphs, mainly because of my addiction as a child and a young man to American B-movies where they quite often played a key part. I am thinking of Broderick Crawford exposing the villain.
The noble Lord said that making it available for all sex offenders was a consideration at one point, but the way we are approaching this enables us to target resources on those offenders who are likely to cause the most harm to the public. It will be for serious sex offenders, and just to clarify another of his questions, it will remain part of the public probation service. All offenders released on licence for sexual offences will be managed under the multi-agency public protection arrangements. All MAPPA cases will be retained by the public sector. This means that the providers of polygraph testing will work with offenders who are managed by retained public sector staff. We will ensure that all staff working with high-risk sexual offenders are appropriately trained and supported in how to use polygraph testing to enhance the effectiveness of the statutory supervision.
The noble Lord asked how the choice will be made. It will be made where the MAPPA process indicates sexual offenders who are assessed as being at high risk of both reoffending and causing serious harm. By doing this, it enables us to target resources on those offenders likely to be the most dangerous to the public. As the noble Lord said, I do not think that cost should be the decisive factor, although of course it has to play a part in deciding what we can afford in taking this forward, but more than cost it is a matter of proportionality. It is a useful tool for the offender manager. I am glad that he acknowledged that the whole thrust of both the pilot and now the proposal is to add an extra piece of equipment to the armoury of the offender manager so that he or she can make a better informed assessment of the danger to the public of a sex offender and thus take forward appropriate treatment—including, if necessary, recall. The noble Lord indicated that this was an initiative of the previous Government which we have carried forward and which I think we can recommend to the House with cross-party support.
Lord Beecham
I am very grateful for that response. Could he, in due course, set that out a little more clearly? I revert to this question of what constitutes a serious sexual offence. There are some obvious things—rape, attempted rape—but you get down to indecent assaults and so on. Are you going to be weighing, for example, a lesser offence by a record that suggests that it has been repeated, although it is not of itself a serious offence? In other words, what is the composition? That needs a little bit of elucidation. I am not asking for that now. Also, is there any chance of this system being extended to politicians or even Ministers?
Lord McNally
Even as I was speaking I was conscious that I was sweating but that is more because of our heat wave. Whenever you use words such as “serious” in part that is the professional judgment of the probation officers. It is their judgment and assessment of future danger and risk that qualifies them for this kind of assessment. The intention in bringing this forward is showing that assessing future risk is itself a risky business. We feel that this use of polygraphs as a tool in a wider range of skills and judgment by the probation officers is a useful addition—no more, no less. With that, I recommend the order to the Committee.
Civil Legal Aid (Financial Resources and Payment for Services) Regulations 2013
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The Lord Bishop of Norwich
My Lords, a key reference in this Motion of Regret is to “vulnerable people”, which is why this non-lawyer dares to stand amid such legal luminaries and feels a bit vulnerable himself.
A civilised country is one where we are all free under the law and where vulnerable people are not left defenceless against unjust treatment by another person, organisation or even an agent of government. Vulnerability is relative, of course, but the calculations that inform the regulations under discussion concern people who may be a very long way, as we have heard, from financial comfort and security, and may have multiple other needs.
The level at which permitted disposable capital is set is likely to render some older people in particular less capable of securing legal aid when faced by serious problems requiring legal redress. The levels seem to be set deliberately low. An older person with a capital value in their house of, let us say, £150,000 and an income that is modest yet sufficient to take them over the limits here might have to sell up to pay for legal services in a case, for example, involving mental capacity or criminal negligence. If they do not sell, they will have no access to the law, or, as the noble Baroness, Lady Deech, has just illustrated, they would have to represent themselves.
Do we think that such a person should move away from the support structure of family and friends just when they might need them most, when suffering from an injustice, if they are to realise any capital? Perhaps I am painting too gloomy a picture, but these seem to me to be the likely consequence of the regulations. I should be grateful if the Minister would address such dilemmas and what someone in such a dilemma is expected to do.
Last week, the Justice Secretary’s statement that he was ideologically opposed to legal aid for prisoners in almost all situations, however disabled or disadvantaged they were, caused comment. I know that this is not the focus of this Motion of Regret, but the use of the word “ideological” was worrying. Ideology has too often trumped humanity in the history of the 20th century. Of course, the term emerged from the French Revolution, so its pedigree is argued over.
Although I am sure the Minister will robustly defend the regulations, I hope he will recognise that if they damage access to legal representation for vulnerable people, the Government will have to change course on humanitarian grounds and not defend themselves on the basis of a flawed ideology.
Lord Beecham
My Lords, I congratulate my noble friend Lord Bach on raising this issue by means of the Regret Motion. To prepare for this debate, I did of course read the regulations and the Explanatory Note. It occurred to me that it would be helpful to look at the impact assessment. However, that posed a certain challenge. It took about three-quarters of an hour for the Printed Paper Office and me to track down the appropriate documentation, because the reference in the Explanatory Note is not very helpful, and apparently nobody in the Ministry of Justice was able to respond to a telephone call from the Printed Paper Office.
However, I was eventually able to access the impact assessment, which was revised on Royal Assent. It certainly makes interesting reading. It discloses that a majority of respondents to the initial consultation,
“did not support the Government’s proposals for reform”,
although some did. It would be interesting to know what proportion of respondents supported the proposal out of the 5,000 who responded. “Some” could mean as few as two but conceivably a few more. It would be interesting to know what the balance was.
There has been no specific consultation on these regulations. However, the impact assessment made it clear that the changes have the potential to have a disproportionate effect on women, BME citizens and those between the ages of 25 and 64. Nevertheless, it stated that the Government’s conclusion was that clients should have a financial stake wherever possible. That financial stake could be as much as 30% of disposable income. Disposable income is not generously calculated. Roughly speaking, a contribution of that size would pay for an evening out for the Chancellor and whoever he chose to entertain—Lynton Crosby seems to be quite a popular accompaniment to any Minister.
There is also a serious point, which the noble Baroness, Lady Deech, referred to, about the question of the capital value of property to be taken into account. Given the current level of house prices, certainly in this part of the country, just over £100,000 of capital represents very little in the way of property. Values are substantially higher than would be reflected in other parts of the country. A pensioner on pension credit whose mortgage has been paid off and whose home is worth £110,000, who could be living in a very modest property in London to exceed that figure, will be ineligible for legal aid. A recently unemployed father on jobseeker’s allowance in negative equity with a home worth £240,000 and a mortgage of £250,000—so not in possession of any equity at all—will also be disqualified from receiving legal aid. A disabled man receiving employment and support allowance with a mortgage of £150,000 on a home worth £210,000—again, in London, that will not get you very far—will also be ineligible for legal aid. There is a real question of hardship here. It is certainly undesirable that people in that position should be compelled to have, to use that rather ugly phrase, “skin in the game” to access justice.
There is a particular question on which perhaps the Minister can help me. Regulation 40 states that,
“payment made out of the social fund under the Social Security Contributions and Benefits Act”,
must be disregarded. Does that apply to the Social Fund in its new incarnation, because it is of course no longer a national Social Fund; it has now been passed to local authorities? I do not necessarily ask for an answer tonight, but it is unclear to me whether that disregard will apply to payments made under the new regime.
Another issue, mediation, has been raised by the Law Society, among others, and is something that the Government are very keen to push. I have my reservations about the degree to which it will actually help to resolve cases. Nevertheless, it is available, it has been used, and the Government want to encourage it. The same eligibility criteria will apply. Have the Government taken that into consideration? There is also the issue of the cost of administration of the system. Clearly administering the new regime will involve greater costs than the previous regime.
Then there is the question of how many people will be affected. As my noble friend said, the Government’s original estimate was 4,000. As he said, that is widely viewed as an underestimate. Admittedly the scheme has been going for only a few months, but have the Government made any attempt to ascertain the likely numbers, and can they project them? If they have not done that yet, will the Minister undertake to do so after, say, six months, nine months or a year, so that we can assess the impact on those affected?
It is unfortunate that we find ourselves in the position of considering significant changes to a scheme whose scope is in any case being substantially narrowed. Clearly, the likelihood of people being deterred from pursuing a remedy will be borne out in the event. It is difficult to argue with those who believe that deterring claims is part of the Government’s objective, at least as much as the potential savings that will accrue, at the expense, as the right reverend Prelate pointed out, of many vulnerable people.
I entirely endorse the terms of the Motion and look forward with interest to hearing from the Minister. I join my noble friend in congratulating the Minister on the line that he took this afternoon in questions about human rights. If I may say so, he distinguished himself from some of those around and behind him this afternoon in a very effective way. A little more of that from him would win him even more plaudits around the House. I congratulate him, and I hope that in that spirit he will respond a little more constructively to my noble friend’s Motion than might otherwise be the case.
Public Bodies (Abolition of Victims’ Advisory Panel) Order 2013
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The Minister of State, Ministry of Justice (Lord McNally)
My Lords, that is enough radicalism for one afternoon.
This order abolishes the Victims’ Advisory Panel, which I will refer to as the VAP, using powers in the Public Bodies Act 2011. This Act followed the 2010 review of all arm’s-length bodies, which was conducted to increase transparency and accountability, to cut out duplication of activity and to discontinue activities that were no longer required.
As part of this review, we proposed to abolish the VAP, since its functions are no longer required and duplicate activity elsewhere. There is a clear overlap between the work of the panel and that of the Commissioner for Victims and Witnesses, also known as the victims’ commissioner, who has a statutory responsibility for promoting the interests of victims and witnesses and encouraging good practice in their treatment. That is why the VAP is one of the bodies specified in Schedule 1 to the Public Bodies Act 2011. The Secretary of State has the power to abolish those bodies by order, and it is such an order that we are debating today.
I will now cover briefly the background to the establishment of the VAP and the panel’s membership between 2006 and 2009, before explaining why the Government consider that this order to abolish the VAP is necessary and meets the criteria set out in Section 8(1) of the Public Bodies Act to improve the exercise of public functions.
The VAP was originally established in 2003 as a non-statutory panel to enable victims of crime to have their say, both in the reform of the criminal justice system and in related developments in services and support for victims of crime. The functions of the VAP were subsequently set out in Section 55 of the Domestic Violence, Crime and Victims Act 2004. The VAP was expected to advise Ministers and officials of the views of victims of crime, with particular reference to their interaction with the criminal justice system and its agencies. The panel was also to offer views on the prevention of crime from a victim’s perspective. The Secretary of State was required to consult the panel on appropriate matters concerning victims and witnesses of criminal offences or anti-social behaviour. Where the Secretary of State consulted the VAP in any particular year, the panel was expected to prepare a report to be published and laid before Parliament.
The Coroners and Justice Act 2009 made it a requirement for the victims’ commissioner to be appointed to, and act as, chair of the panel. The Act made no changes to the core functions of the VAP. Between 2006 and 2009, the VAP consisted of around 10 volunteer members, all of whom had either experienced crime first-hand or had provided support to victims. Of those original members, four agreed to extend their tenure beyond July 2009 to support the work of the Government and of Sara Payne as the victims’ champion, until the first victims’ commissioner, Louise Casey, was appointed in May 2010.
I thank the Secondary Legislation Scrutiny Committee for its report on this order. I welcome its conclusion that this order does serve the purpose of improving the exercise of public functions and is in compliance with the test set out in the 2011 Act, which I will set out in detail shortly.
I reassure the Committee that the Government did not prejudge the process by winding down the panel before the 2011 Act came into effect. As Louise Casey announced her decision to resign as Commissioner for Victims and Witnesses in October 2011, during the consultation on our public body reforms, the Government considered that the future of the commissioner’s role should be decided before taking a decision on the future of the VAP. Accordingly, no final decision was made on the abolition of the VAP until it was clear that a new commissioner would be appointed. While the Government decided not to undertake any further recruitment to the panel during the uncertainty around the panel’s future, this did not prevent potential future recruitment if necessary.
With the appointment of a new victims’ commissioner, who has a statutory duty to promote the interests of victims and witnesses, we consider that a statutory obligation to appoint and consult a small advisory panel on victims’ issues is no longer the right approach. The commissioner provides an effective and flexible approach to ensure that a broad and diverse range of victims’ views is independently represented to government.
The noble Baroness, Lady Newlove, the current victims’ commissioner, took up her post on 4 March of this year following her appointment on 21 December 2012. She has already met many victims and their families across England and Wales, as well as the criminal justice agencies, to seek their views. This follows the work of Louise Casey, the previous commissioner, who undertook a wide remit of consultation and provided advice and challenge to government concerning the treatment of victims and their families and the services they received.
Given the role now played by the victims’ commissioner, we consider that the abolition of the VAP improves the exercise of public functions for the purpose of Section 8(1) of the Public Bodies Act 2011, such that making this order is justified. I say this for the following reasons.
First, on efficiency, abolishing the VAP will reduce the duplication of resources and activity in respect of convening panels and their administration. The victims’ commissioner will undertake a wide range of activities designed to engage the views of victims. This allows for a much greater breadth and depth of views to be obtained, which the commissioner will feed back to government and its agencies on a regular basis to inform and shape policy development and service delivery for the benefit of victims.
Secondly, on effectiveness, the abolition of the VAP will not limit the opportunity for victims to articulate their opinions about the criminal justice system and their position within it. The post of victims’ commissioner is an effective way of ensuring that the views of victims are sought and can influence the development of justice policy. During her tenure, the previous commissioner, Louise Casey, met and received correspondence from hundreds of victims who shared their views and experiences. She used this feedback to inform her advice to government, including reports and a review of the needs of families bereaved by homicide.
Thirdly, on economy, the abolition of the VAP will mean that the Government will not need to recruit and run a new panel, which has in the past cost about £50,000 a year. We believe that this additional spend is unnecessary, given that the work which the panel previously undertook clearly falls into the remit of the victims’ commissioner.
Fourthly, on securing appropriate accountability to Ministers on issues relating to victims and witnesses, this still remains through the role of the victims’ commissioner. The victims’ commissioner promotes the interests of victims and witnesses, as is her statutory duty, and is accountable to the Secretary of State for Justice. The commissioner is required to produce an annual report for the Secretary of State for Justice in her role and the work that she has undertaken, to be shared with the Attorney-General and Home Secretary, which is published and laid before Parliament.
Further, we are satisfied that the abolition of the VAP, for the reasons already stated, does not remove any necessary protections. Abolition of the panel does not affect the exercise of any legal rights or freedoms either directly and indirectly. Victims of crime will be able to have their voice heard through the channels operated and promoted by the commissioner and the Government.
The victims’ commissioner regularly meets the Minister for Victims and the Courts and the Secretary of State for Justice. She has publicly stated that she sees her role as providing challenge to government where the criminal justice system or proposed reforms to it fail to meet the needs of victims and their families, as well as working with the Government to improve the criminal justice system.
The appointment of the noble Baroness, Lady Newlove, as the new victims’ commissioner last December was a key part of this Government’s wider commitment to strengthen the voice of victims and to improve the experience of victims and witnesses in the criminal justice system. For example, we have consulted on a revised victims’ code, which includes reference to the victim personal statement for the first time giving victims a louder voice in criminal proceedings. The victims’ commissioner plays a leading role in ensuring that as we deliver these reforms the voice of victims and witnesses is represented to government. I know that the noble Baroness, Lady Newlove, has confirmed in a letter to noble Lords circulated ahead of this debate that she considers the victims’ commission to be best placed to promote victims’ and witnesses’ needs and to represent their views to government. I hope noble Lords will agree with the current victims’ commissioner that the victims’ commissioner is able to fulfil this role fully and effectively without the VAP, a body that duplicates her activities. I beg to move.
Lord Beecham
My Lords, public outrage about the abolition of the Victims’ Advisory Panel has been conspicuous by its absence, and the Opposition and I have no qualms about the Government’s decision to abolish it in the light of the appointment of successive commissioners. For that matter, all of us who heard it were deeply moved by the speech made by the noble Baroness, Lady Newlove, on these issues; I think it was her maiden speech. We have every confidence in her interest, palpably stemming from those tragic personal circumstances to which she referred, and her ability to be an effective voice for victims and a conduit to government.
However, I note that in the Explanatory Notes to the order the Government cite three criteria which they purport to apply to all bodies that are being considered for abolition and find that none of the criteria were met in this case, including a requirement for political impartiality. Having said that, and I repeat that this is no reflection on the noble Baroness, I find that a slightly surprising conclusion in respect of this position because there are potentially significant issues in this area, such as restorative justice, community sentencing, which is now very much part of the political debate under the Offender Rehabilitation Bill, and criminal injuries compensation, which is a sensitive political issue where changes were recently made. No doubt the commission will comment on all these in due course. However, despite the unique qualifications of the noble Baroness, it might be thought to be better in future appointments to have somebody who is less engaged with the political process.
That view is somewhat reinforced by a recent article in the Law Society Gazette, which records that it thought that the views of the commission should be sought about some of the matters that are currently being debated, including the impact of the Transforming Legal Aid proposals on victims and witnesses and concerns about defence work or prosecution work being carried out by, as it put it, inadequate prosecutors. It approached the commissioner—it e-mailed her—and got a telephone call back saying that she had not commented. That was fair enough. The caller repeated that the issue had not been commented on, and matters were left there. However, it turns out that the person at the other end of the phone was a press officer at the Ministry of Justice. This gives rise to the question whether the staffing and support for the commissioner—any commissioner, not just the present incumbent—should be a little further removed than the Ministry of Justice, which of course is responsible for many of the issues with which the commissioner will have to deal.
I do not raise this in a way that is critical of the noble Baroness, but it raises the issue that future appointments need to be considered. The way in which resources are made available to the present commissioner might be looked at again, given that she may feel called upon from time to time to be critical of the policy of the Government of the day, and to have someone working on that line from within the department might be a little difficult. I put it no higher than that. Perhaps the Minister might care to consider that issue in due course with this commissioner, and perhaps it should be borne in mind with future appointments. We are content that the order should be passed.
Legal Aid
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Lord Beecham
My Lords, in our many debates about legal aid, the Minister has constantly justified government policy by referring to the need to cut public expenditure. While making every allowance for the need to make savings, some of us have all along suspected an ulterior motive. Those suspicions were explicitly confirmed, as we were reminded by the noble and learned Lord, Lord Irvine, by the Lord Chancellor in his recent evidence to the Justice Select Committee when he affirmed that the proposal to reduce funding for legal aid to prisoners was ideological, rather than driven by financial considerations. Given the minimal amount that the proposals were supposed to save, that is not surprising. When one takes into account that the savings engendered by denying access to legal aid to prisoners seeking redress is very likely to be outweighed more than fourfold by the costs—for example, of delayed release or of Parole Board hearings, matters referred to by the noble Lord, Lord Carlile, and the noble and learned Lord, Lord Hope—the economic case falls away completely.
This is not the only area in which the Lord Chancellor’s ideological proclivities are shaping policy. The residence test for legal assistance, like its proposed equivalent in the health service, is, as my noble friend Lord Bach has pointed out, another blast on the Tory political dog whistle which is likely to cost more than it saves, apart from its malign consequences for a particularly vulnerable group of people, including children, immigration detainees or even Gurkhas. Are these people to be treated, in Kipling’s words, as,
“lesser breeds without the Law”,
but in this case at our behest, not theirs?
In the crucially important area of judicial review, the savings are estimated at all of £1 million for each of the two proposed restrictions: where legal aid is withheld until permission is granted to proceed with a judicial review, as mentioned by the noble and learned Lord, Lord Brown, and where the case is borderline, even where there may be a public-interest element. Here, the Government’s use of figures would do credit to one of those bankers manipulating LIBOR. They rely on the fact that over half of legal aid applications for judicial review are ended prior to permission being granted. However, as the respected Bingham Centre for the Rule of Law points out, a much higher percentage of cases are abandoned or lost at the subsequent stages by claimants who do not have legal aid. Moreover, as the noble Lord, Lord Low, pointed out, many cases are withdrawn because a defendant body, perhaps a local authority in a planning matter, recognises its mistake and corrects it before the case proceeds.
Again and again, eminent judges, including the president of the Supreme Court, the Master of the Rolls and the noble and learned Lord, Lord Woolf, have stressed the importance of judicial review as a means of holding the Executive and public bodies to account and as a cornerstone of our judicial system, much as our courts uphold the human rights legislation which we should be proud to have caused to be secured in the European convention, but which Tory Ministers seem constantly to denigrate. Even the Attorney-General has expressed his concerns about the impact of these proposals on judicial review. Can the Minister really be comfortable in this tainted company? Is he really a willing accomplice to the political offence of obtaining parliamentary votes by false pretences? I think more of him than that. Indeed, there are false pretences on the strategic scale, not just in relation to the particular issues that have been canvassed today.
The cost of legal aid is falling, not rising, even before taking into account the fact that the cost includes VAT, which of course goes to the Treasury—assuming that HMRC collects it, which it is not always capable of doing, as we have heard recently. From a peak of £2.237 billion in 2009-10, the bill has fallen to £1.917 billion; that is a significant reduction. In cash terms, it now stands at marginally above the cost of legal aid in 2007-08. If one takes into account VAT and the impact of inflation on those figures, it is clear that the cost is not out of control; indeed, in real terms, it is falling and has fallen substantially.
Moreover, as the National Audit Office pointed out, the overall cost of our justice system, including legal aid, is not at all out of line with that of other European jurisdictions, at 0.33% of government expenditure. That is equal to the average. However, as the noble Baroness, Lady Deech, pointed out—I join others in congratulating her on securing this debate—you cannot really compare different legal aid systems when they apply to different judicial systems. In any event, overall, the expenditure on the courts and the justice system is not greater here than elsewhere. In any case, the Government are yet to explain how they will achieve their £220 million saving when their estimates disclose that the figure for 2016-17 is only £118 million.
We are now in the middle of a consultation on the proposed changes to criminal legal aid, which remain highly contentious, despite the fact that a defendant may now choose his lawyer rather than have one appointed, as in the Moscow magistrates’ court of old, by the state. How that will work in the world of the proposed tendering process, not to mention the ludicrous proposition of the fees for guilty and not guilty pleas being the same, is wholly unclear. The noble Baroness, Lady Deech, referred to that clear anomaly. Will any changes to the criminal legal aid scheme be subject to parliamentary scrutiny and, if so, in what form?
Contrary to the impression that Mr Grayling likes to convey—I do not accuse the Minister of this; he is not guilty on this particular charge—concern about the effects of the existing and future cuts to legal aid is not confined to lawyers or expert witnesses, who will also be badly affected. Last week, the Judicial Executive Board, which includes the Lord Chief Justice, the Master of the Rolls and the heads of the main divisions of the High Court, joined the chorus of criticism and concern, while rightly acknowledging the need for savings to be made.
A wide range of voluntary organisations, from Citizens Advice, Mind and Shelter to the 26 children’s charities who signed a letter published in today’s Daily Telegraph—and even several Conservative MPs in a House of Commons debate—have expressed their profound worries about what has happened and what portends. They do so because the cuts already made are having dire consequences. Law centres, CABs and other third sector advice agencies are trapped between soaring demand and reduced resources.
The Newcastle Law Centre, which I played a small part in creating and supporting, is now down to one lawyer and can undertake legal aid only for immigration cases, and even those cases are financed by the council’s Newcastle Fund for voluntary sector projects. Since 29 April, it has had to turn away 80 cases out of 138 which would previously have qualified as being in scope. The cases were mainly on family, welfare and immigration matters. That matches a 59% reduction in cases lost after the cuts at the Islington Law Centre. Newcastle Citizens Advice Bureau has lost qualified professionals and in three months has had a 40% increase in welfare cases, with 157 people who are now out of scope for tribunal representation having to be given unlimited advice on self-help, 83 of them seeking to challenge Atos assessments. As we have heard, fees for interpreters and doctors’ letters can no longer be funded. The CAB in Gateshead lost £500,000 of funding. The Newcastle bureau has to rely on Big Lottery funding for projects, which now have to be bid for every six months—and on a different basis each time.
For hundreds of thousands of people and their dependents, there is a no entry sign where once there was access to justice. As we have heard, that applies to judicial review, to family cases including domestic violence, to prisoners, to immigration, to trafficking, to debt and welfare cases and to children and young people. I hope that the Government will listen to the debate today, which has been virtually exclusively critical of what they are doing and think again about the impact—perhaps not foreseen—that they are having on the lives of too many of our fellow citizens and other residents of this country.
Coroners and Justice Act 2009 (Consequential Provisions) Order 2013
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Baroness Finlay of Llandaff
I am very grateful to the Government for this order, and I am glad to speak to it today. I thank the Government for the way in which this is happening because there has been a gentle transition that aims to enhance the experience of the public. When they are bereaved, people are incredibly vulnerable but there will now be a process that is kinder to them. If an investigation is required it can be conducted. If the investigation shows that it was a natural death, the coroner can simply register the death and the family will be spared the court process if it is not necessary. If, however, a hearing is required, the family will get an inquest and they will have the hearing that they may seek. That means that it meets the needs and expectations of the bereaved. I hope that having a process that is much clearer in its stages will also help with that group of deaths that are deaths by suicide. It has been particularly difficult even to ascertain the data on how many such deaths occur because of how they are often recorded. The term “verdict” is used, which is often seen as suggesting that there was some kind of criminal intent behind the suicide, when death by suicide is a very tragic event for everyone left behind.
This transition should also raise the overall standard of the experience of families from lower standards to the standards of the better and best. I have discussed the order with coroners, and there is an expectation that it will achieve what we have all wanted, which is to drive up the overall standard. I hope that the Government will encourage the chief coroner to have the courage to put pressure on those coroners that people have been concerned about.
My final point is to welcome the flexibility for Wales. We will have new transplant legislation before us in Wales fairly soon, and it will be particularly important that at all times of the day or night the coroner can be contacted in relation to organ retrieval. Having the ability to provide cross-cover should mean that we will have the service that is needed and that the coroners themselves will have a working life and home life that are compatible with enjoying living in Wales, rather than being exhausted. I am grateful to the Government.
Lord Beecham
My Lords, I have some second-hand acquaintance with the coroner system because I was articled to a coroner and subsequently became his partner. He was a part-time coroner in the north-east of England. I cannot resist the temptation—I rarely do—to recount a couple of incidents from that time. The first was the remarkable theory constructed by the coroner’s officer, who is a police officer attached to the coroner’s office, about a chap who was found drowned in the bath. The officer came up with the wonderful theory that this man had committed suicide by deliberately banging himself on the back of the head so that he would become unconscious and drown in the bath. My principal was not entirely convinced by this theory, and accidental death was recorded instead. On another occasion he had to show a bereaved widow the body of her husband for identification purposes. The body was produced from the cabinet and uncovered, and she acknowledged that this was indeed her husband. She turned to go away and my partner, as he then was, began to put the drawer back into the cupboard, but then she said, “Do you mind, Mr Henderson, if I have another look?”. “Oh yes, my dear”, he said, and pulled the thing out again and uncovered it. She looked down at her husband and said, “Well, there you are”—I will not repeat the expletives—“may you rot in hell”. So a coroner’s life can be quite an interesting one.
With regard to the order, my honourable friend Robert Flello raised a couple of points in the other place. The first was to regret the fact that it did indeed take something of a struggle to persuade the Government to retain the office of chief coroner. However, they did that, and I join the noble Baroness in commending that and, up to a point, the changes before us today. She and the Minister are right to refer to the continued availability of Section 13 of the 1988 Act and the possible process of obtaining an order from the Attorney-General. However, that is by no means a simple procedure; rather, it is convoluted and, given that the noble Baroness has reminded us of the state of mind of bereaved families, it is one that is difficult to pursue.
The point is that in the 2009 Act there was provision for an appeals procedure. My honourable friend asserted, and I agree with him, that it would have been better to have retained or implemented that provision, particularly as the alternative to the Attorney-General procedure, cumbersome and protracted as it is, will now be only to rely upon judicial review. Judicial review, of course, poses a question of cost and of course will largely be out of scope of legal aid. It will be yet another difficult process for someone, particularly in the circumstances of bereavement, to negotiate, both practically and emotionally. It is unsatisfactory that the Government have not retained—or, rather, implemented—that provision for an appeals process, and are leaving the potential applicant with an unsatisfactory choice between the Attorney-General process and JR, the access to which is highly questionable .
In replying to my noble friend, the Minister, Mrs Grant, said simply:
“The right answer is to raise standards”.—[Official Report, Commons, Sixth Delegated Legislation Committee, 26/6/13; col. 7.]
As my noble friend pointed out, the two things are not incompatible. Of course it may well be, as both the Minister and the noble Baroness have said, that standards should indeed be raised, but that does not necessarily mean that there will not on occasion be the perceived necessity on the part of bereaved members of the family or others to challenge a decision. There ought to be a proper scope to facilitate that, and the concern is that that is not easily available under the order as it will stand.
The other aspect that the Minister might perhaps touch on is what is left to be done. Just last week we had a response to the consultation on other aspects of implementing the reform, and I assume that there will be further orders to come. I do not know if he is in a position to indicate when that might happen—I hope it will not be for a while so that some of us, the Minister included, can take a breath in the mean time from the tide of regulations and orders that we will be discussing over the next couple of weeks. One might have thought that it made sense for the whole thing to be brought together, but we have to deal with the order today. In the circumstances, we cannot object to it but we have regrets about the limited way in which the 2009 Act is being implemented. We look forward to seeing how the other aspects of it that remain to be dealt with emerge in due course.
Lord McNally
My Lords, I am grateful to both the noble Baroness, Lady Finlay, and the noble Lord, Lord Beecham, for their contributions. I pay tribute to the noble Baroness. Whenever a Government listen to wise advice and make an adjustment of policy, the Opposition immediately and churlishly brand that a U-turn rather than what good government should be, which is to listen to wise advice. I think that everyone now believes in the campaign that the noble Baroness very successfully worked on to restore the office of chief coroner; I do not think that anyone would now go back on that decision. Indeed, one of the more welcome things about what has happened is that His Honour Judge Peter Thornton has hit the ground running in his job. He has been visiting coroners across England and Wales, meeting stakeholders, issuing guidance to coroners on issues such as the location of inquest hearings and less invasive post mortem examinations, and drawing up proposals for specialist cadres of coroners to conduct certain types of investigation. He has been working very closely with my own office, the MoJ, on the rules and regulations under the Act, and has set up a new coroners’ training group and is working with the Judicial College to deliver training for coroners. Therefore, the hopes and expectations that the noble Baroness, Lady Finlay, has for the office are justified by the new chief coroner’s “hit the ground running” attitude to his appointment, as I described it. He certainly has my support in that.
Lord Beecham
I am very grateful to the Minister for raising this matter, which I confess I have also been approached about and had intended to raise, but immersed as I have been in several regulations and debates and preparation for them, I am afraid I had overlooked that. I am particularly grateful to the Minister for making that clear. I suppose that I ought also to declare an interest as a member of the Jewish community in that regard.
Lord McNally
I sincerely hope it is a facility that the noble Lord does not need to use personally for a very long time. As he says, both the Muslim and Jewish communities have raised this issue, which again proves the value of having a chief coroner. It means that when communities raise an issue it can go to the chief coroner, who will now take responsibility for issuing guidance and getting the right responses. I thank the contributors and again hope that this SI will be accepted by the Committee.
Offender Rehabilitation Bill [HL]
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Lord Marks of Henley-on-Thames
My Lords, in supporting this amendment, I would associate these Benches with everything that the noble and learned Lord, Lord Woolf, has said in welcoming it and in thanking the Government and congratulating them on the way in which they have considered and recognised the particular needs of women in the system. In Committee, we moved certain amendments which would have required the recognition of those needs at various points in the system and we are content that this all-embracing amendment meets them.
I would also associate myself with what the Minister said in tribute to the noble and learned Lord, Lord Woolf, who has campaigned so hard for recognition of the needs of women in this area. As a spokesman on these matters for one of the coalition parties, it gives me particular pleasure to note that we have made a great deal of progress on two of the significant issues for which he has campaigned—restorative justice and women offenders.
I particularly welcome the commitment in this amendment to transparency because, as has been pointed out during the passage of this Bill, we are entering a new era for the probation services. The ability to monitor what is being done after this legislation is passed is of considerable importance.
Lord Beecham
My Lords, I join the Minister and the noble Lord, Lord Marks, in congratulating the noble and learned Lord, Lord Woolf, and thanking him for bringing this matter to the fore in the debates on the Bill. I am happy to break the habits of a brief parliamentary lifetime and congratulate the Minister on his constructive response. I hope he finds this habit catching, in which case I promise to reciprocate.
Like other noble Lords, I have received a briefing from the Prison Reform Trust. While welcoming the amendment, there are a couple of matters on which they seek some assurance—and I would echo their request. First, that the Government should require the contractors to specify—within the contract specifications —what particular services would be provided for women, and that the tender criteria, in turn, as part of the contract, would give sufficient weighting to that element. I imagine that should not present any difficulties but it would be good if the Minister could confirm it. Equally, the commissioning bodies will be given guidance along those lines.
Perhaps I may raise a point related to women prisoners that is not specifically covered by this amendment but which has been referred to in the course of our debates—that is, resettlement prisons. It is a welcome concept and certainly should help to reduce reoffending by ensuring that women serve their prison sentences, or at least the latter part of the sentence, closer to where they are likely to return on release. I raised a question in earlier debates about the specific position of women in this respect because, as I understand it, there are only 13 women’s prisons in the country and they are not necessarily geographically distributed in such a way as to facilitate the Government’s intentions. I am not asking the Minister to confirm specifically today, but it would be good to know that that is being considered and that it is an objective which it is hoped the Government will seek to achieve. It would largely complete the work raised by the concerns now embodied in the amendment, which these Benches certainly fully support.
Lord Ramsbotham
My Lords, I support the amendment and I am extremely glad to see that it has been introduced by the Government. For many years people have been hoping that there would be an improvement, and therefore it is to be warmly welcomed. The amendment refers to arrangements for supervision. I would like to raise one point in connection with that because the supervision, of course, involves the probation service.
As noble Lords will know, each of the 35 trusts has a volunteer probation board which is the employer of all the probation staff working in a trust. Apparently, there is an expectation that board members do not criticise the wishes of the Government because although they are volunteers, they are not civil servants. They have been reminded by the head of Transforming Rehabilitation that they should have regard to the constraints imposed on civil servants. I have had representations from board members about the vote which was passed in this House on Report about the requirement for the Secretary of State to allow us to discuss changes to be made to the probation service. Apparently, the board says that planning is going ahead on the timetable which I outlined on Report regardless of the vote in this House. Probation staff around the country are, as he described it, lost for words because it was expected that at the very least the Government would respect the vote of this House and reconsider their proposals, or at least appear to do so. As it seems that that is not happening, and this amendment is all about the supervision of women offenders, I should be grateful if the Minister could tell the House exactly what is happening following the vote on Report.
Lord Beecham
“Provision for veterans’ treatment courts
(1) Within one year of the passing of this Act, the Secretary of State shall report to both Houses of Parliament on the case for establishing veterans’ treatment courts for dealing with ex-service personnel convicted of offences for which non-custodial sentences could be imposed by the trial court (“relevant ex-service personnel”).
(2) The report under subsection (1) shall cover but not be limited to the following—
(a) the statutory basis of veterans’ treatment courts;(b) the composition and functions of veterans’ treatment courts; (c) whether veterans’ treatment courts would be of most effect in diverting, where possible, ex-service personnel from the criminal courts or in overseeing the rehabilitation of ex-service personnel offenders sentenced by the criminal courts;(d) an estimate of the impact of veterans’ treatment courts on the rehabilitation of, and in reducing re-offending by, relevant ex-service personnel;(e) an analysis of relevant international comparators; and(f) an account of consultation which shall be undertaken with all relevant parties including magistrates.(3) Within six months of the laying of the report under subsection (1), the Secretary of State may by statutory instrument make provision for one or more pilot schemes for veterans’ treatment courts, to extend for two years.
(4) A pilot scheme under subsection (3) shall, within six months of its conclusion, be independently evaluated, and a report of that evaluation laid before Parliament.
(5) Within six months of the laying of the report under subsection (4), the Secretary of State may by statutory instrument make provision for a permanent scheme for veterans’ treatment courts.
(6) A statutory instrument made under subsection (3) or (5) shall be laid before, and be subject to approval by resolution of, both Houses of Parliament.”
Lord Beecham
My Lords, this is the fourth iteration of the concept I floated at Second Reading and which we have debated in Committee and on Report. I can claim no credit for the idea. It was conceived in the United States in 2008 where it has been applied with remarkable success in terms of the reduction in reoffending by ex-service men and women and in promoting their welfare, with courts now established in every state. It is now seen as embedded in the justice system and is an integral part of what we in this country call the military covenant, under which we recognise the special responsibility we have as a society for those who have served their country, often in difficult and dangerous circumstances.
The veterans’ treatment courts do not adjudicate on guilt or innocence. Nor do they deal with those who are convicted of, or plead guilty to, crimes for which only a custodial sentence would be appropriate. Their purpose is to promote the rehabilitation and prevent the reoffending of men and women who often find it hard to readjust to civilian life, which is so different from the collective existence—perhaps better described as the regimented existence—that, of necessity, military service often involves. Some will have suffered, and may continue to suffer, combat stress or post-traumatic stress disorders and a number will fall foul of the law, with crimes of a violent or sexual nature being particularly common.
The courts in America are presided over by the relevant judge. A veteran mentor is assigned to each offender, who has to attend monthly court sessions and is helped in a variety of ways to adjust to life in the wider community, receiving practical, psychological and, where necessary, clinical support. Failure to co-operate with the treatment court leads to a return to the sentencing court and the risk of a prison sentence.
It must be said that there is no certainty about the numbers that might be involved in this country were we to adopt the system, even for those serving prison sentences. The MoD estimates that some 3.5% of prisoners at any one time are ex-service personnel. However, other estimates rise as high as double figures. A survey by Mr Colin Back of the Regular Forces Employment Association, who has worked extensively with this group and who attended a recent helpful meeting with the Prisons Minister, Mr Damian Green, has produced an estimate of those claiming and proven to have served in the Armed Forces to be an average of 6% of the inmates in a wide range of establishments, with a lowest figure of 3% and a highest figure of 11%. It is likely, however, that these figures are understated because some of those in prison do not wish to disclose their status to other prisoners or to those who, like Mr Back, are inquiring as to their position, because of concerns about how other prisoners will react or fear of loss of pensions and the like.
Be that as it may, it is clear that the number of ex-service men and women who come before the courts will substantially exceed the number who end up in prison. Even 3.5% of those who receive non-custodial sentences such as probation or community sentences will amount to several times the lowest estimate of those in custody, which is around 2,500. I do not find the number quoted by the Minister on Report for this group of non-custodial offenders of some 5,800 to be particularly credible, except perhaps as an annual figure. Therefore, over time the offending group will be quite substantial and the cumulative total must be considerably higher. We must remember that the figures are but a snapshot at any one time so the total who will have been in the system over time, whether in prison or—particularly relevant here—on non-custodial sentences, will be correspondingly greater. Moreover, at current reoffending rates, the figure would be further inflated. Obviously, addressing the general reoffending rate is the whole point of this Bill. Finally, those who have served in Bosnia, Iraq and Afghanistan are due to return and 20,000 will leave the forces, so the potential for an upward spike in numbers is all too apparent.
Lord Beecham
My Lords, I am grateful to the noble Lords who have participated in this short but important debate. The noble and learned Lord, Lord Lloyd, asked about the term “treatment”. It is not designed to refer to clinical treatment. It is a phrase used in the American system, and treatment can take a variety of forms, including advice and support of all kinds. As I said, it does not necessarily have a medical or clinical connotation.
The noble Lord, Lord Hylton, referred to homelessness as a particular problem, and that of course is true. Indeed, it is the function of the mentor and others in American veterans’ courts to assist precisely with that kind of problem. To a certain extent and as the noble Lord, Lord Ramsbotham, pointed out, it is something that is now increasingly carried on across a number of local authorities, especially those in my home region of the north-east.
Nothing in what the Minister said is excluded from the range of the amendment. The amendment is not at all incompatible with what he said. It sets out a process and one would hope to end up with the option of a system clearly rooted in the experience abroad. It would also have to be tested here, as we are suggesting.
I welcome the warmer response given by the Minister today compared with that given previously. I understand that parts of the Government are addicted to something called the “nudge theory”, in which people can be encouraged by a nudging process to change their ways. I think that it would be appropriate to seek to nudge the Government in the right direction by having a clear expression of opinion on the amendment. Accordingly, I wish to test the opinion of the House. I hope that we can give a clear message that we want the Government to build on their growing warmth and accept the principles set out in the amendment. One hopes that they will move in due course, on the basis of piloting, to making a systemic change in the way that we deal with offenders.
Added Tribunals (Employment Tribunals and Employment Appeal Tribunal) Order 2013
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Lord Beecham
My Lords, we live in a world where failed bankers and departing BBC executives are awarded compensation for their loss of employment running into millions or hundreds of thousands of pounds, often at the taxpayer’s expense. We seem to be about to live in a world where employees, often low paid, not only no longer receive legal advice or legal aid to pursue a claim arising out of their employment problems but will have to pay significant sums to have their case dealt with by an employment tribunal. It costs only between £35 and £70 to issue a money claim of up to £1,000 in the civil courts but, as the Minister confirmed, it will cost £160 to issue a type A claim—for example, for wage theft, withheld holiday pay or all manner of modest claims—in the employment tribunal, and a further £230 for a hearing, with higher fees where a number of claimants seek the same remedy.
In the more serious type B cases, to which the Minister referred—for example, for unfair dismissal, discrimination or equal pay—the fees rise to £250 to issue a claim and £950 for a hearing. The result is that it costs more for a type B hearing at an employment tribunal than it does to lodge an appeal in the Supreme Court, which costs £1,000, and even with a hearing the total Supreme Court costs are only £1,600—£350 more than for a hearing in the employment tribunal.
The Government are anxious to market our courts to the likes of libel tourists or Russian oligarchs but evidently loath to facilitate access to justice for our own citizens seeking redress in the form of modest payments, frequently amounting to only a few hundred pounds, and often less than £100.
The Government’s own impact assessment demonstrates that 22% of employment tribunal claimants are disabled, with 40% of those claiming discrimination in that category. There is a rising number of claims stemming from pregnancy and maternity issues. Those are particularly vulnerable groups of people who will have to put up the money, disproportionate to any other form of civil litigation, to have their case heard.
In any case, the number of claims has fallen over the past two or three years, and the impact assessment shows a saving of only £12 million. The Minister is right when he refers to the overall cost being about £70 million, but the result of these measures will be, only if people pay the sums, to gather in only £12 million.
The proposed fees for multiple claims to which the Minister referred—for example, in relation to equal pay—compound the injustice. For example, seven supermarket workers claiming for an improper shortfall in their pay amounting to only, in one case, £313.90 between them will have to pay £320 to issue the claim and £460 for a hearing. Given the uncertainties, many people will simply be deterred from bringing a case, not least because the money has to be paid up-front, and in the absence of legal advice potential claimants will not have a ready notion of their prospects of success.
The response to the Government’s consultation paper on the issue contains an interesting passage which I quote in full:
“Employment Judges in Scotland consider that there is a significant risk that if a claim is for a small amount of money then a claimant will be discouraged from pursuing that claim, even although they are legally entitled to the sums due. For example, say an individual is entitled to one week’s wages in respect of holiday pay and the individual is paid just above the threshold which would allow them to qualify for remission. That person may decide that they will not pursue the sum due. This could have the consequence of encouraging a less than fair employer to routinely deprive employees of small sums of money to which they are entitled on the basis that the risk of them pursuing a claim will be small”.
The Government airily dismiss this response and disingenuously aver that claimants will not be deterred from lodging claims. What steps will they take and how soon to ascertain the actual impact of these changes? What do they propose to do about the startling fact revealed by the Ministry of Justice’s own study in 2009, which showed that 40% of awards in England and Wales are not paid at all and that fewer than 50% are paid in full?
In relation to concerns raised by Money Advice Group about the situation of claimants whose employers have ceased trading, and against whom claimants have to lodge a claim to access any payment from the National Insurance Fund, the Government said that they would explore the issue further. I invite the Minister to say whether they have reached a conclusion and, if so, what it is. If he is not in a position to do that tonight—and of course I understand that he may not be—no doubt he will write to me and place the answer in the Library.
Of course, not all claims are for monetary compensation. For example, for a claim under Section 12 of the ERA 1996 to determine the particulars of employment there is simply no monetary component, yet the fee, which will be significant for a number of claimants, will still have to be paid. It should also be noted that there are problems with the timescales—for example, in relation to the payment of the fee or in applying for remission of fees. As the Minister said, there is a remission scheme but this pitches the threshold very low. For example, no fee is payable if the disposable monthly income of the applicant and any partner is £50 or less, with a graduated cap beyond that. That is a very low threshold. Crucially, there will also be a capital limit of £3,000. Ironically, a claimant who, shortly before bringing a case because he is being dismissed, receives a redundancy payment—the claim may not necessarily be related to the dismissal but may relate to other matters—will have that payment counted towards the capital limit.
With a matter of only weeks to go before the new system becomes operational, I understand that there has been no user-testing of it, nor any detailed guidance published about how to apply for remission or appeal against refusal of remission. I do not know whether the noble Lord can enlighten us as to whether and when such testing has taken place or will take place, or when the guidance will be issued.
To be fair, there may be cases, usually affecting large claims, where respondent employers feel that it may be more economic to settle a claim even though it may be without merit. Recent changes in procedure initiated by Mr Justice Underhill may well mitigate this problem, and streamline and improve the management of cases, but in any event the fees for that type of case are unlikely to deter claimants who seek substantial sums from hoping to secure a settlement, while at the same time making it difficult for genuine claimants of moderate means and with more modest claims to pursue their remedy. For a settlement of £50,000, somebody may be prepared to gamble £1,200 or £1,500. Somebody seeking a payment of £50 or even £500 would be much less likely to stake a fee which is close to, or even exceeds, the amount claimed. It should also be stressed that the Gibbons report of 2007 made it clear that only a very small minority of claims could be described as vexatious.
My noble friend Lady Donaghy, with her long experience of ACAS, will no doubt comment on how the role of that organisation might be deployed to improve the working of the system, with or without the proposals in the regulations.
There would be little objection, perhaps, to a modest fee being levied that was much more proportionate to the amount claimed, as occurs in other jurisdictions. However, the Government’s proposal seems to be another in a long series of changes favouring defendants and making access to justice more difficult for ordinary people with meritorious claims. As such, it is deeply regrettable.
Lord McNally
My Lords, I thank all noble Lords who have taken part in this debate, many of whom I know have spoken from a wealth of experience of tribunals, ACAS and the trade union movement. It has been helpful to identify and address concerns. Doing so has enabled me to set on record why the Government have decided to introduce fees in the employment tribunal system and, crucially, what has been put in place to ensure that fees are not a barrier to those wanting to access the justice system.
In speaking to his amendment to the Motion on the fees order, the noble Lord, Lord Beecham, expressed regret that its provisions do not effectively protect access to justice, that some claimants will be deterred from bringing claims and that the remission system is inadequate. Neither I nor my government colleagues accept those arguments. We believe that the mitigations we have put in place will properly protect access to justice for those seeking to bring claims. The remission scheme will ensure that those on low incomes can apply to have their fee reduced or waived entirely and, given the importance of the issues at stake, the Government believe it is unlikely that fees alone will deter those with a strong case bringing a claim. These factors, together with the power for the tribunal to order reimbursement of fees paid, will help to ensure that access to justice is maintained for those who wish to bring a claim.
As I have mentioned, we hope that fees will encourage potential claimants seriously to consider options to resolve disputes outside the tribunal system. From 2014, mandatory early conciliation will mean parties cannot bring a claim to the tribunal without first having sought a conciliated resolution via ACAS. Any decrease in claims after the introduction of fees does not mean that claims are being deterred. It is more likely that disputes are being resolved without the need to use the tribunal, which benefits everyone.
The noble Lord, Lord Beecham, raised a number of issues. He asked whether fees should be charged for someone seeking a small amount. All claimants, irrespective of appeal or claim type should make a contribution to the cost where they can afford to do so, and everyone should also think carefully about entering into litigation irrespective of the remedy sought. Claimants should bear the cost of fees where they make an allegation in a claim and fail to pursue it or where the employer is judged to have acted lawfully.
The noble Lord said that the employment tribunal is more expensive than the civil courts. The civil courts do not offer a reasonable comparator in this instance as they charge at up to five points in the court process and fees are set to recover the full cost. Civil courts process significantly higher volumes of claims and therefore have lower unit costs. In the civil courts, parties open themselves to much wider cost powers, so there are different issues to consider.
The noble Lord asked about the changes to the process for the enforcement of awards when fees are introduced. The enforcement of employment tribunal awards is fast-tracked through the civil courts. There are no plans to make any changes as part of the introduction of fees. However, separately the Government have commissioned new research covering England and Wales and Scotland, and the findings are due to be published next year.
The noble Lord asked whether there will be guidance for those paying fees. We will ensure that all users are clear on the obligation to pay fees or to apply for a remission. Existing HMCTS guidance for employment tribunals will be updated to highlight the stages at which fees are payable. There will be fees and remission leaflets to explain the fees payable, how to pay and where to apply for remission.
Lord Beecham
Can the noble Lord say whether they will be in force by 29 July? Will they be available by that date?
Lord McNally
If they are not, I will write and tell the noble Lord. The noble Lord also raised the question of whether the Government know what the impact will be. It is difficult to predict the impact that the introduction of fees will have on behaviour. It may be reasonable to assume that if people who are thinking about bringing a claim have to pay to do so, they will more carefully consider whether they wish to do so and their chances of success than they would if the process was free. If this is a valid assumption, we would expect the number of speculative claims—and therefore the number of claims overall—to fall. We will review the impact post-implementation to ensure that the remissions system acts to ensure that only those who can afford to pay fees do so. To ensure that the fee-charging process is simple to understand and administer, we will examine impacts on equality groups in the light of experience and will verify the amount of fee income raised.
The noble Lord asked how we will review fees. Fees will be kept under review as part of an ongoing review of fees across the justice system. The review will seek to ensure that the remission system acts to ensure that only those who can afford to pay do so. The noble Lord, Lord Beecham, asked if redundancy payments will be taken into account in a remission of application. No, this is considered a capital payment under the current scheme. We are considering whether to change this as part of our recent consultation on remissions.
The noble Baroness, Lady Turner, raised a number of matters. Let me make it clear: we do not want a frightened or submissive workforce, as she implied. We want a highly skilled, adaptable, highly productive workforce that can compete in the world. It is important that the noble Baroness understands that introducing fees into these tribunals is not an attempt to deter individuals from bringing claims, and we do not believe that the provisions in the order will do so. Given the importance of the issues at stake, we believe, as I said, that it is unlikely that fees alone—
Employment Tribunals and the Employment Appeal Tribunal Fees Order 2013
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Lord Beecham
At end to insert “but that this House regrets that the introduction of the draft order will limit access to justice and deter meritorious claims from people who have been wronged in the workplace; and will also create an inadequate remission system for low-paid and vulnerable claimants.”
Offender Rehabilitation Bill [HL]
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Lord Beecham
My Lords, as the noble Lord has made very clear, this amendment addresses issues both of form and substance. I entirely concur with his devastating and magisterial critique of the way the Government are seeking not merely to impose massive changes on a highly successful—indeed, award winning—public service but to do so without an evidence base, proper costings or any parliamentary scrutiny. The farce of the impact assessments has been compounded by the revelations of advice given to Ministers by Ministry of Justice officials on the risks attendant on the implementation of their policies and by the recently leaked document showing that the residual probation service dealing with high-risk offenders that is envisaged by the proposals will face further cuts in funding of 19% by 2017-18.
When the Government drove through their controversial, some of us would say disastrous, reorganisation of the National Health Service, they at least observed the proprieties and made the changes the subject of a Bill that was itself subject to scrutiny. In this case, as I have previously observed, the future of this service, so vital a part of our system of criminal justice and so important in maintaining the safety of the public, would not be being debated at all were it not for amendments emanating from the Opposition and Cross Benches in your Lordships’ House. It is astonishing, indeed disgraceful, that we read today that in their risk analysis Ministry of Justice officials have apparently stated that this Bill has been deliberately kept slim to “minimise the dependence of the reforms” on the passing of the legislation. I do not blame officials for this, nor do I blame the Minister in this House. The blame lies with the Lord Chancellor and Secretary of State Mr Grayling, whose only reaction so far, I understand, is to have ordered a leaks inquiry.
Lord Randolph Churchill famously described Gladstone as an old man in a hurry. The Lord Chancellor is a relatively young man in a hurry, but he, as I am sure the noble Lord, Lord McNally, would agree, is no Gladstone. If anything, he more closely resembles Randolph Churchill and if he continues on his present path, rushing on with eye-catching gimmicks and policies which have attracted the deep concern of the senior judiciary, such as those on criminal legal aid, judicial review and court privatisation, his political career is likely to end in the same way as Churchill’s.
It is characteristic of this Lord Chancellor that he proposes to begin to implement the changes he seeks as early as the end of August this year. What answers does he give to the questions raised by Her Majesty’s Chief Inspector of Probation in her response to the consultation? Many of these relate to the payment by results scheme to which we will turn when we debate the next amendment, but what is the Government’s reply to Liz Calderbank’s concern that the process of advising the court and Parole Board on sentencing and licensing conditions will require increased investment because more full pre-sentence reports will be required where cases will be referred to the private sector for supervision?
She suggests that a more mediated approach to supervising short-sentence offenders, which all of us welcome as a proposal in the Bill, would facilitate the better use of scarce resources. She is concerned that the proposed move to national commissioning instead of by 35 probation trusts,
“could be at the expense of the local perspective”,
cutting across promising developments in partnership work and disrupting successful partnerships with probation trusts. She refers to an issue raised in Committee about the position of small voluntary organisations in a commissioning framework dominated by large private sector providers, the fragmentation of responsibilities and a duplication of work. As she points out, the changes will effectively be irreversible once implemented. Do the words and warnings of this highly experienced public servant count for nothing?
The Lord Chancellor is promoting this agenda in the spirit of the promoters of the South Sea bubble, one of whom, it will be recalled, advertised a project,
“for carrying out an undertaking of great advantage but nobody to know what it is”.
Well, we know what it is, but we do not know what it will cost or whether it will work, and neither do the Government.
Under the Government’s appalling proposals for criminal legal aid a defence advocate will be paid the same fee for a guilty plea as a not guilty plea. The salary of the noble Lord, Lord McNally, I am happy to say, will be the same whatever the outcome of this debate. Nevertheless, I advise him to plead guilty, accept the amendment which would allow a proper consideration of the Government’s proposals, their benefits certainly alongside the risks and costs, and get it over with.
Baroness Hamwee
My Lords, I share the frustration that has been expressed about this Bill not being about what we want to talk about and, indeed, diverting us from the important aspects of rehabilitation. I know we all share the objectives that have found this legislative form even if we do not all agree on the form they have taken in the Bill.
Being rather boring, I want to address the amendment as it is tabled and ask a couple of questions of the noble Lord when he comes to respond, if not of my noble friend. First, although this sounds quite counterintuitive, is there such a thing in legislation as the probation service? The Offender Management Act 2007, which is what I understand the changes which are being described are based on, talks about probation provision, probation purposes, probation service, but not the probation service. Secondly, again looking at the 2007 Act, have the proposers of this amendment taken into account the provisions within the Act for affirmative orders? Section 5(3)(c)—I know this is not the sort of speech that holds the House, certainly without me handing out programmes—provides for the purposes of a probation trust to include a purpose specified in regulations made by the Secretary of State. Those must be made, we find later in the Act, by affirmative resolution. Section 38(2)(a) is about amending, repealing or revoking an enactment and this again requires an affirmative resolution. As I said, being rather tedious, I am struggling a little with the form of the amendment and in understanding quite how it would apply in taking forward the points that have been made by the two noble Lords, given that I think we have to base what we are doing on the existing legislation.
The Minister of State, Ministry of Justice (Lord McNally)
My Lords, far from being tedious or boring, I found that an extremely interesting intervention, and I look forward to the reply of the noble Lord, Lord Ramsbotham. My noble friend is quite right to draw attention to the Offender Management Act 2007, because the plans that we have for the probation service are provided for on a legislative basis in that Act. The Bill before us is not, as we have fully acknowledged from the beginning, about the reorganisation of the probation service. As I have mentioned on a number of occasions, the powers to do that were helpfully left for us in the 2007 Act by the previous Administration.
Under the 2007 Act, the Secretary of State may contract, with a probation trust, providers from the private or voluntary sector, or he may provide probation services directly. The Secretary of State intends to use the powers conferred by that Act, together with his common law powers, to create and sell companies, and to transfer the delivery of a large proportion of the probation service to the private sector via contractual arrangements involving the formation and sale of a number of new community rehabilitation companies. That is the basis of the approach.
Of course, this has not come out of a blue sky. The department’s rehabilitation reforms, like any other major government project, are subject to additional scrutiny by the Cabinet Office and Her Majesty’s Treasury, and through the Government’s Major Projects Review Group. Her Majesty’s Treasury approval is required for projects outside Parliament’s delegated authority, and the programme team is finding this full engagement of particular use in learning from the experience of other government departments.
Therefore, I do not accept that this matter has not received very thorough preparation, as suggested by the noble Lord, Lord Ramsbotham. This major piece of legislation is being managed quite properly. Ultimately, after all the rhetoric, the sting was in the tail. The noble Lord does not want this Bill to proceed and neither does the noble Lord, Lord Beecham. That is good opposition politics.
Lord Beecham
I am sorry but that is not the position. I am certainly happy that the Bill should proceed. An improved version of this Bill should proceed, and one of the improvements is contained in this amendment.
Lord McNally
One problem with piloting this Bill is that I am supposed to sit here and listen to all the aspersions about the capabilities of my department and the intentions of my Secretary of State, as well as all the other brickbats that are thrown. However, if anybody takes on board anything like the full intention behind the amendment, it will be clear that the two noble Lords want to throw a considerable spanner in the works. If that upsets them, I am very sorry but it is true. I remain committed, as I hope the House does—it gave the Bill its Second Reading and went through Committee—to what I have always seen as the deal that this Bill puts forward.
That deal is that we are putting forward a major reorganisation of probation in a way that releases the resources to provide care, guidance and support to a very important section of those who have been sentenced to fewer than 12 months—the group that is most likely to reoffend and to get into that whirligig of crime that we are trying to break. I say that each time the noble Lord, Lord Ramsbotham, tables one of his amendments to delay the Bill. We are putting this forward with good intention, with a great deal of preparation and work, and with a clear determination to put before the House as much information as we can. We are developing a case and we will go into a certain amount of commercial negotiation but with the full acceptance that we are doing something very radical. To use the statistics from a leaked report, as the noble Lord, Lord Ramsbotham, just did, is not worthy of him.
I know that the noble Lord gets upset when he is attacked, yet when one rereads his speech one sees that he is very willing to dish it out. He throws out figures of 80% of this and 60% of that when he knows as well as I do that we are talking about a specific management tool that was used and developed by the previous Labour Government inside government, not to assess definite threats or problems but to identify issues that need further work. That is what the process is.
We have had it before with other Bills—this sudden idea that somewhere inside government these risks are being hidden from the public and Parliament, when the Opposition know full well that what is being gone through is an exercise that enables those who are working on these various bits of policy to identify which particular area of policy they need to develop, do work on and make proposals in relation to. It is not, and never was, a forecast of what is going to happen. It is disingenuous to suggest to the House that that is what it is.
The noble Baroness, Lady Hamwee, was right to look at the amendment as it stands. It is very widely drafted. It states:
“No alteration or reform may be made to the structure of the probation service”,
but that would not just encompass national changes to a new framework; it would also mean that probation trusts in the current model could make no change to their set-up, however minor, without parliamentary approval. I do not want to dwell on this, but I ask the noble Lord to think carefully about whether that kind of parliamentary micromanagement is sensible in legislation.
I turn now to the detail of the changes that we are proposing. First, let me put on record that the Government recognise the excellent work that is done by the probation professionals across the country. I have said that time and again from this Dispatch Box. Our proposals for reform seek to build on those achievements, not to minimise them. We are doing that in two ways: first, by extending rehabilitation to all offenders who need it through the provisions in this Bill; and, secondly, by seeking to restructure the way in which these services are delivered by opening up the delivery of probation services to a wider market and by bringing the retained public sector probation service into a national entity. These latter elements of our reform proposals are crucial to the core aim of our proposals: to break the cycle of reoffending. We do so for three reasons. The first is that by opening up the provision of rehabilitation services to the private and voluntary sectors, we are seeking to promote additional innovation and investment. Despite the excellent work and commitment of those supporting offenders within the public sector, we are unable to achieve this fully under our current structures.
Secondly, by restructuring the public sector probation service into a national entity, we are focusing public sector resources on areas where it is most needed: on protecting the public from harm and providing clear and impartial advice to sentencers. By managing this service nationally, we are seeking to drive excellence across the country, bringing all delivery of these services up to the level of the highest performers.
Finally, and perhaps most importantly, through both elements of this structural reform we are seeking to drive efficiency and savings in current practices and to provide the necessary investment to open up provision to all those who need it. I remind noble Lords that we simply cannot afford to expand rehabilitation to short-sentence offenders without these savings.
I now turn to the detail of the structural reforms that we are proposing. We are committed to maintaining a strong local delivery structure within the public sector probation service. Although current trusts have clearly built excellent relationships with other local delivery partners, much of this local working does not take place at the level of the 35 existing trusts but within the 150 local delivery units that sit beneath them. Our firm intention is to retain a strong local delivery structure based on these units, providing clear representation and involvement within both local authority and criminal justice areas.
Senior managers in the new organisation will have a strong presence within the National Offender Management Service and the Ministry of Justice, with directors for both England and Wales sitting on the NOMS board. Probation has often been viewed as the junior partner within NOMS, and this reorganisation is an opportunity to remedy that.
For probation functions that are being competed for, we are committed to retaining the skills, expertise and experience of operational staff currently within trusts. We are working closely with unions and associations representing probation providers to ensure that any process of selecting staff for the new structures is fair and minimises disruption as far as possible. We have also been engaging with interested parties to develop proposals for a professional body for the probation profession, and are strongly supportive of this idea.
We also recognise how crucial working in partnership is to the successful rehabilitation of offenders, and how probation trusts are integral to many of these excellent local partnership arrangements, including integrated offender management. The Government are determined not to disrupt this, and we are clear that contracted providers will need to demonstrate how they will engage effectively with key local partners when they are bidding for contracts.
As I set out in my earlier correspondence to noble Lords, we have already consulted extensively on the proposals in Transforming Rehabilitation: A Revolution in the Way We Manage Offenders. We received almost 600 formal responses to the consultation and held 14 consultation events that were attended by over 800 stakeholders, and the views received were invaluable in informing the reforms set out in the strategy published on 9 May. Both the transforming rehabilitation consultation document and the strategy were presented to Parliament, and we continue to welcome further interest from parliamentarians in these reforms.
I recognise the expertise that many Peers have on these issues, and I am committed to ensuring that noble Lords are kept informed of and involved in these reforms as they are taken forward. A number of other supporting documents have been and will be published that are available via the Ministry of Justice website: namely, the summary of responses to the consultation, the payment mechanism Straw Man and the prior information notice. In order to make them more easily accessible, I will place copies of these and all future documents giving further detail about the design of the new system in the House of Lords Library. I am happy to arrange an all-Peers meeting as and when we publish further documents. If it would be helpful to Peers, I will also explore through the usual channels the possibility of an opportunity for further parliamentary debate on these proposals outside the realm of this Bill.
In short, I am absolutely committed to ensuring that the Government engage with Peers and other parliamentarians as we develop the detail of our reforms. However, I stress again that the significant benefits that these changes will deliver, including the extension of rehabilitation to short-sentence offenders and the creation of “through the prison gate” resettlement services, are affordable only as part of a wider package of reforms. I hope that Peers will be able to support the Government in taking these reforms forward.
I hope that these points of detail will provide noble Lords with some reassurance as to the structural changes we have proposed, and in light of this I ask the noble Lord to withdraw his amendment.
Lord Beecham
“Proposed reform of probation services
(1) Subject to subsection (2), before instituting a system of payment by results for the provision of services to supervise offenders, the Secretary of State shall prescribe by statutory instrument a scheme for such a system, which shall be laid before and approved by resolution of both Houses of Parliament.
(2) Before such system may come into existence, the Secretary of State shall undertake a pilot scheme lasting three years in duration, which shall be independently evaluated, with the evaluation report laid before Parliament and approved by resolution of both Houses of Parliament.
(3) Any payment by results pilot shall be based upon existing probation trust areas.”
Lord Beecham
My Lords, I begin by reiterating that I and colleagues on these Benches, and indeed across the whole House, are entirely supportive of the Government’s intentions in the Bill to reduce reoffending. We congratulate them on that aspiration. We want to work with them to see its fulfilment but we have legitimate questions to raise about the way in which they seek to proceed. Having said that, I repeat that we are at one with them in the objective of saving large amounts of public money and, equally importantly, helping to reshape the lives of the people and communities upon whom they have an impact.
This amendment, which I trust passes the Hamwee test, deals with payment by results. The Government’s proposals, which are of course not in the Bill, postulate a system in which for short-sentence offenders there will be supervision, from which the probation service will effectively be excluded, in respect of what have been described as low-and medium-risk offenders. That work will be carried out under contract by independent private or voluntary sector organisations, or a combination of the two. The amendment is designed to ensure that such a scheme is properly piloted. It does not rule it out, but it suggests that the scheme be properly piloted and then approved by Parliament as a radical change to the nature of the probation service.
I am grateful to the noble Lords, Lord Taylor and Lord McNally, for answering after a fashion several questions which I raised at Second Reading and in Committee on payment by results schemes in connection with this question of the prevention of reoffending. The noble Lord, Lord Taylor, responded to my request for an explanation of why the Government abandoned pilot schemes by the Wales and the Staffordshire and West Midlands probation trusts, and why they refused an FOI request for details of the evaluation of those pilots, by a curious answer to my first question—to which I shall return—and by responding to my second by falling back on the wholly unsatisfactory defence that the information relates to the formulation and development of government policy.
Lord Beecham
My Lords, I am grateful to the Minister and to other noble Lords for their contributions to this short debate. I begin with the question from the noble Baroness, Lady Hamwee, about the potential conflict of interest. If I may say so, it is potentially rather worse than the two instances that she gave because, in addition to the two services that she referred to, these contractors may be involved in two other areas. The first is increasing involvement with the police service and the second is the latest proposal for the privatisation of the courts. The whole spectrum of the criminal justice system could thus, in one way or another, come to be run by one of these bodies. Therefore, I think that there is real substance in the point that she made.
The noble Lord was kind enough to compare me with Lenin. Apart from the hairstyle I do not think that there is a huge resemblance. He referred to Lenin’s famous dictum about giving support to the social democrats that the rope would give to the hanging man. I would never do that, except possibly to Liberal Democrats, which is a rather different category.
However, there are more serious issues here. The noble Lord quoted with approbation the results of the Peterborough pilot—not so much the Doncaster pilot for fairly obvious reasons—and said that it has shown an improvement of 6%. That was true but it took the situation back only to the preceding year of the period. The crucial point is that the two probation trust pilots were terminated. We still do not know, because no Minister has condescended to tell us, why those two pilot schemes in Wales and Staffordshire in the West Midlands, run by the probation trusts, were terminated; not only that, Ministers will not give us the evaluation. Yet, in Peterborough and Doncaster, not yet halfway through the proposed piloting period, they disclosed results. I find that inconsistency wholly inexplicable.
On the question of payment, I am not asking for details of the eventual payment scheme, but for an indication roughly speaking of what percentage might be attributable to the results. What proportion are we talking about? Are we talking about 10% of a fee, something up to 20%, or somewhere in between? There is no indication at all of the proportions that the Government might be contemplating. It is nice to know that at some point information will be placed in the Library; it will be a little late for this House to use unless the Bill comes back from the Commons in a different form.
Moreover, in relation to piloting, I spoke in Committee of another pilot that the Government are conducting on drugs offences which will not report until 2017-18. The Government, quite rightly, have not produced evidence on that yet but they will not implement anything until those pilots are completed. That is the thrust of the amendment. I repeat that we want reoffending reduced. We like the notion very much of affording supervision to a great many more people. We are not convinced that the Government have the evidence yet on how to do it efficiently, effectively and economically. This amendment would help them to do that in a timescale that I repeat is less than the timescale of the various other pilots about which we have heard. I am afraid that the Minister has not given satisfactory answers to the questions that I and others have raised and I wish to test the opinion of the House.
Lord Beecham
“Low, medium and high risk offenders
(1) For the purpose of the provision of probation services, the definition of a low, medium and high risk provider shall be prescribed by statutory instrument, which shall be laid before Parliament and subject to the affirmative resolution procedure of both Houses.
(2) For the purpose of the provision of probation services and supervision post release, the definition of a low or medium risk offender shall not include offences of a violent or sexual nature, stalking or domestic violence.”
Lord Beecham
My Lords, noble Lords will be relieved to hear that this is not an amendment on which I propose to divide the House. Rather, it is an attempt to try to elucidate some of the issues around the question of risk, to which I have previously referred. It is a matter on which the Chief Inspector of Probation has commented. In particular, she has drawn attention to the movement between risk categories, which is generally assumed to be in the order of 25% with a significant proportion moving from a lower to a higher risk. Indeed, studies carried out by the inspectorate show that as many as 50% of offenders change category. There is a real concern that, given this binary system, the information required to transfer from a low or medium risk to a higher risk category, which would involve a change in supervisor from the organisations that are to be contracted under the payment-by-results system—assuming that they are non probation service, as the Government intend—to the probation service as the body responsible for high risk offenders is, to put it mildly, unclear.
The potential problem is that the information may not be timely, if it is available at all. That may lead to high risk offenders not receiving the degree of skilled supervision which is primarily available from the probation service. What the amendment seeks to do, quite simply, is ask the Government to work through their proposals more substantively than so far appears to be the case with a view to defining the categories more clearly. In particular there is a suggestion that the definition should exclude from the low and medium risk categories those offenders who have been convicted of offences, as the amendment states,
“of a violent or sexual nature, stalking or domestic violence”.
Those should always be regarded as potentially of high risk. The effect would be that people in those categories would be supervised by the probation service. Given the nature of the offences, that seems to be a sensible precaution that will allow the service to monitor the offender and, as I indicated in the previous debate, to relate to the victims. These victims will clearly be vulnerable individuals and usually, although not necessarily, women. It is as much the job of the probation service to protect the safety of those people as it is to promote the rehabilitation of offenders.
Even if he cannot give assurances today, I hope that the noble Lord will consider coming back at Third Reading, perhaps with some formulation that would meet the objectives here. They are not at all inconsistent with the thrust of government policy but do identify a potential problem given the split of responsibilities to which we have referred and which we debated earlier. I hope that, in that spirit, the noble Lord will look at this issue again and respond in a way that would not only be satisfactory to your Lordships’ House but would meet the concerns raised, perfectly legitimately and forcefully, by the Chief Inspector of Probation. I beg to move.
Lord Beecham
My Lords, I am grateful to the Minister for that very full explanation of the Government’s approach, and I derive a reasonable degree of comfort and assurance from it. I am not entirely convinced by the concept of the National Probation Service as an improvement on the more localised service that is currently being delivered through probation trusts at local level. I was not a great admirer of the previous Government’s decision to create the National Offender Management Service either. The Minister and I are apparently at one about that.
Lord McNally
I remember our debates on that decision. Part of the problem with the last reorganisation was what we said at the time would be the downgrading of the probation service by having no national voice. That is the real win in this reorganisation: the probation service being where it should be, at the top table and with direct access to the Secretary of State.
Lord Beecham
I can certainly see the case for an arrangement of that kind, but the operational workings of the service are better driven at a more local level, with the service being involved in the relevant areas— as I said, I think there are 35 at the moment—by engaging with the other partners, which are a necessary part of dealing with the problems of offenders. That includes magistrates, who I understand will no longer be involved in this process, and there is some concern about that among magistrates. It also includes other government departments, such as the DWP, local authorities and the voluntary sector operating at a local level.
I continue to have reservations about the nationalisation of the service, as it were, which again might differentiate me from Lenin. I am reasonably assured by the process that the Minister describes, but on the more substantive issue I still have some anxiety, which may be shared generally, about the process of identifying a change of category and the reference upward to the probation service, however constituted, particularly if there was a large jump from a lower-risk case, which might well be supervised by a contractual or voluntary organisation at a comparatively low level of skill, which might make it more difficult to detect the change. Without suggesting further pilots, since these are not in fashion at the moment, it would be helpful to hear from the Minister at some point, perhaps just informally, whether the transition will be kept under review and an effort made to collate the experience across this scheme to see how it works over a reasonable period.
The other question that arises is how this arrangement of transfer will affect the contract. I suppose it should not be assumed that a transfer of risk necessarily means that the provider has failed in their contractual obligation, because there might not be another offence. Again, I appreciate that we are talking about cohorts, but there are some significant numbers here. Given that 250,000 people are to be involved, I do not know how big the cohorts are to be. I am not asking for an answer to this now—again, perhaps it could be by letter—but if there is a change of category so that at different times you have two separate organisations with responsibility for part of the cohort, how will that impact upon the payment system? Are there any incentives, perverse or otherwise, in that context? For example, if somebody was a bit difficult at the lower level and if there are large numbers, it might be convenient to move them up to the probation service. Will that have an implication for the funding?
That is a rather separate point, I admit, and not covered by the precise terms of the amendment, but it is perhaps worth exploring. However, in the circumstances I beg leave to withdraw the amendment.
Lord Ahmad of Wimbledon
My Lords, the government amendments in this group make a number of minor technical changes to the Bill. In essence, they ensure that terminology is consistent within the Bill and with other legislation.
Amendments 7 and 8 relate to the new “drug appointment requirement”. The amendments replace, in two places in Schedule 1, the word “condition” with “requirement”, which is the term used with other requirements of the new supervision period and is consistent with the title of the requirement.
Amendment 10 relates to the provisions dealing with supervision default orders: that is, when an offender has failed to comply with a condition of their supervision. The amendment simply clarifies that copies of the supervision default order must be sent to the supervisor who is responsible for supervising the offender during the supervision period.
Amendments 11 to 14 relate to Clause 5 and the arrangements that exist where an offender is subject to consecutive sentences. The amendments replace the term “offender” with the more usual construction “P”. This is consistent with the terminology used in the Criminal Justice Act 2003, which Clause 5 amends.
Finally, Amendment 20 relates to Schedule 6, which deals with offenders sentenced by service courts. The amendment clarifies the position in that it ensures that the definition of “the appropriate court”, which relates only to civilian courts, does not apply to overseas community orders under the Armed Forces Act 2006. As I said, these are small clarifications and technical amendments. I beg to move.
Lord Beecham
My Lords, there comes a temptation to move that any of these riveting amendments be piloted. I am happy to concur with the Minister’s proposal.
Lord Beecham
“Veterans’ courts pilot
(1) Veterans’ courts shall be established for the purpose of assisting the rehabilitation of ex-service personnel convicted of offences for which non-custodial sentences could be imposed by the trial court.
(2) Subject to subsection (3), before instituting the provision of veterans’ courts, the Secretary of State shall prescribe by statutory instrument a scheme for such a system, which shall be laid before and approved by resolution of each House of Parliament.
(3) Before such system may come into existence, the Secretary of State shall undertake a pilot scheme lasting three years in duration, which shall be independently evaluated to include consultation with magistrates, with the evaluation report laid before Parliament and approved by resolution of both Houses of Parliament.”
Lord Beecham
My Lords, this amendment replicates the one that I moved in Committee and embodies the proposal that I made when participating in the Second Reading debate. It seeks to address the particular needs of ex-service men and women, many of whom—sadly, rather too many of whom—find themselves in difficulties with the criminal justice system from time to time.
The intention behind the amendment is consistent with the line which we have persistently adopted on these Benches and which has been consistently rejected by the Government—that of piloting a new proposal. As I understand it from the Minister, there may be a sympathetic view of this proposal in government. Whether that extends to piloting, I do not know, but it would seem to make sense to adopt that approach.
However, the main point is that, as part of the military covenant, it should be accepted that there is a case for a special forum before which offenders who have been convicted of, or pleaded guilty to, crimes that would potentially carry less than a custodial sentence can be assisted in avoiding reoffending and become rehabilitated. That is on the basis that we owe people who serve their country in, as I said, often dangerous and difficult circumstances a particular duty.
The amendment follows the precedent of the United States, in which every state now has a veterans’ court manned by a judge, who may often have been the original trial judge, and at which a veteran mentor is available, together with other agencies, to assist the ex-service personnel who has committed a crime. It has proved a remarkably successful way of preventing reoffending in this particular vulnerable group.
Many of those who have spoken in your Lordships’ House—the noble Viscount, Lord Slim, and the noble Lord, Lord Ramsbotham, in particular—have expressed their support for this concept. I note, to my surprise, that even the Sunday Express—not, I confess, a paper that I would normally look to for endorsement—has embraced the concept with enthusiasm. The amendment offers a more sensitive way of dealing with a particularly important and vulnerable group as part of what ought to be a wide-ranging series of provisions in conjunction with the military covenant, which the Government have helpfully adopted. Having had a conversation with the Minister, I apprehend that some indication will be given that this proposal will be taken forward, perhaps as part of a wider-ranging series of provisions, about which we may learn something tonight or in the future. I would very much welcome that and, on that basis, I will certainly not be moving the amendment to a vote.
Recently, a report has been published, commissioned by the Howard League for Penal Reform, and it may be helpful if I address some comments to what it has produced. Incidentally, I note that the Howard League commissioned this report as long ago as Armistice Day 2009, so it has been a long time in gestation, which perhaps is an indication of the importance of the project. It has focused its attention on ex-service personnel in prison. Of course, that is an important group but it is not by any means the biggest group of ex-offenders with whom we are concerned, given that—there are various estimates—there are probably 20,000 people at any one time in the criminal justice system who have served in the Armed Forces, of which the great majority have not been serving custodial sentences. I think that rather distorts the view that the report comes out with.
However, the report makes a couple of significant points. The first is that 25% of those surveyed were convicted of sexual offences, which is well over twice the proportion of prisoners generally. A bigger proportion have been convicted of violent crime, but the figure is not hugely disproportionate in comparison to the ordinary prison population—it is something like 10% or 11% greater. Even so, it is not an insignificant number.
The Howard League makes a number of very sensible recommendations in general about ex-service personnel in the justice system, pointing to the need for a greater emphasis on identifying those personnel at risk before they get to prison, and perhaps even while they are in service. It recommends that probation service standards should be revised to ascertain the status of ex-service personnel. We will then know—or, more particularly, the Howard League and, I guess, those with whom contracts are to be made will know—who are ex-service personnel. There should generally be more research on the characteristics of ex-servicemen in custody, but I would widen that to those who have come into contact with the whole justice system.
The league points out that a wide range of charities and other organisations are involved with service personnel. That is true, but it is something of a mixed blessing. I have heard it said that some of these charities are not particularly effective and, of course, there are so many that it is somewhat confusing. Moreover, according to the Royal British Legion, some of the initiatives in the voluntary sector tend to be reactive rather than, as it would put it, proactive—or, as I would say in better English, active—in pursuing these issues.
Some interesting developments have taken place, and I have no doubt that the noble Lord is aware of them, including a veterans in custody support scheme at HM Prison Everthorpe, which has links to service charities. There is also something called the Prison In-Reach initiative. The Cheshire probation service, interestingly, has a veteran support officer in each of its six offices. I do not know whether that is one for each or whether there is somebody available in each from time to time. It is also looking at a veteran support programme. In parenthesis, I wonder whether the Minister will ensure that such initiatives will survive the very reforms that we were discussing earlier today in a rather more contentious spirit than I hope will be the position on this matter.
However the Howard League, having looked at the American experience, concludes that it is not appropriate to adopt it here. It did that on the rather superficial argument that veteran offenders should not, as a class, be treated any differently in the system from other offenders. That underestimates both the obligations that we have to this group of people and the particular characteristics that they have. I do not see that it necessarily follows that what is being proposed, which is, I repeat, not a separate court to try the issue of guilt or innocence, but one to deal with offenders who are not in prison, in a constructive way in order to avoid their reoffending. The conclusion does not necessarily follow from its analysis and I hope that it is one that the Government will not adopt.
As discussed in Committee, there are other examples of special courts, be they domestic violence courts or drugs courts. It could be argued that this proposal for a veterans’ court is an extension of that concept; it is not hugely out of kilter with the rest of the structure. In any event, I would urge that this group is important enough to warrant at the very least a piloting of what has proved to be an extremely successful process in the United States, with very substantial reductions in reoffending rates, to the extent of 100%, as I understand it, in Buffalo, which was an earlier one, and something like an 85% reduction in reoffending in Minnesota. A number of American states have passed separate laws about the treatment of their veterans. We are not suggesting that that should be the case, but a framework should be established within which their particular needs can be addressed for their benefit, and indeed for the benefit of the community.
I very much hope that the noble Lord will give his blessing to this and that we can take these matters forward in conjunction with appropriate other government departments, notably the Ministry of Defence and the Home Office Minister responsible for prisons. I hope that a conclusion can be reached that will assist these people, help society as a whole, acknowledge our debt to veterans and, at the same time, reduce the likelihood of society suffering from offences committed by this group. I beg to move.
Viscount Slim
My Lords, first, I thank the Minister for the quick conversation that we had on this subject of veterans’ courts. From that conversation I took away two points. The first was that the Minister is still not overly keen on having a trial of veterans’ courts. Secondly, but perhaps more importantly, he said that something had to be done about this subject.
I draw the noble Lord’s attention to the military covenant. The right honourable gentleman the Secretary of State for Defence has to make a report at a prescribed time on the state of the military covenant. In his meetings with various ministries to gather information, I would have thought that the Ministry of Justice would be paramount in the thinking and discussion to find out what the plan is for young veterans who do not have or need a custodial sentence but who need rehabilitation. What is the plan from the Ministry of Justice to achieve this? I also remind the Minister that, with the coalition deciding to get rid of 25,000 soldiers, this problem will get much worse. There has to be a plan. All I am asking is that if the Minister still does not wish to trial veterans’ courts, which I would be sad about and which I consider probably the best way to move forward, the Ministry of Justice must come up with a plan and a decision on how this problem will be handled. Therefore, I sit down and await the Minister’s plan.
Lord Beecham
My Lords, I had hoped that there would be a clear acceptance of the notion that a trial should be made of the veterans’ court concept. I appreciate that it is probably not necessary for legislation for this purpose, but there has to be a peg on which to hang the proposal and this was a suitable example for such an exercise. Given that we are not talking about large numbers and that it would obviously be sensible but not essential to pilot such a scheme, and that the costs would be minimal, I find it difficult to understand why the Government cannot say that they will look at all the issues and give this particular concept a go to see what works. The measure would be, as has been the case elsewhere, whether it results in reductions in the reoffending rates.
As the Minister said, we are not talking about vast numbers of people, and it should be perfectly possible to mount such an exercise and for the Government to give an indication that they will do that. The Government are not slow to announce other initiatives when they choose to—in particular, the Ministry of Justice is not slow to introduce a wide range of proposals and act upon them.
I find myself, as I was in Committee, somewhat disappointed with the response.
Lord McNally
The noble Lord is being uncharacteristically churlish. I do not see how far I can go. I have already told him that the number of people is very small. Where would this court be established? What would it do? Which problem would it address? I have said that these issues can and should be discussed and that we will take them forward on an all-party basis and look for positive solutions. He must realise that I cannot go any further than that. I cannot say, “Right, we will set up a pilot in Newcastle”, and have them all sit round the room, not quite sure what they were there to do and what problem they were addressing. This needs a lot more work. It is an interesting area. We have responded as constructively as we can. The noble Lord has made progress; he should enjoy his success rather than continuing to grumble.
Lord Beecham
I am sorry that the Minister adopts that tone. I am sure he is personally warm towards this proposal. Whether that goes for other Ministers, I do not know; perhaps we will find out. I hope I have not given the impression of being churlish. We are approaching Armed Forces Day. We ought to be in a position to give a clear indication that what is ultimately a fairly simply project—the American precedent is perfectly straightforward, clear and inexpensive; the outcomes are easily measured, and it would be likely to be successful—will be undertaken. I do not ask the Minister to say definitely today that there will be a pilot project or some kind of experiment with a veterans’ court, I just find the tone less positive than perhaps our previous conversations had led me to believe it to be. Perhaps, far from being churlish, I was being a bit naive in interpreting what the noble Lord was saying.
We have a little while until Third Reading. I hope that we can make some progress, given that it is not a huge problem and that the ask in expenditure and organisation is not huge. However, I must reserve the position to bring something back at Third Reading. Of course I appreciate that it would have to be slightly different from this amendment, but I hope that is not necessary because I would like to go through the same Lobby as the noble Lord for a change on an issue of this kind, particularly given the client group that we are talking about.
I will not seek to test the opinion of the House this evening, but I do not rule that out if there is no clear indication of a positive attitude, which would not bind the Government for all time but would allow us to see whether we can learn from that American experience. I am not saying that it would necessarily be the outcome that one would hope for, but I hope that we will have an opportunity to find that out. In the mean time, I withdraw the amendment.
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Lord McNally
My Lords, more than that, LASPO already allows us to extend the powers, if necessary. We therefore want to see the evidence that is emerging. If these groupings of separate facilities and companies seem to be using means to bypass the ban on referral fees, we will revisit our powers under LASPO. I understand the concern of the House on this matter.
Lord Beecham
My Lords, is the Minister aware that a solicitor whose practice is a major participant in referral schemes has recently been reported as saying that if a fee is paid for indirect referrals, whereby the client is merely given the name of the solicitor but has not received the name from the referring organisation, it would be outside the scope of the scheme? Is that a correct view?
Lord McNally
I do not think so. However, a lot of examples have sensibly been raised in the House today, some of them hearsay and some from direct experience, which suggest that what we intended to do in LASPO may not exactly be hitting the target, or that, as a result of organisational devices used by companies, the target has been moved. I can tell the House that we will talk to the regulators and look at some of these examples. If necessary, we will look at the powers that we were given under LASPO to make sure that we do what the House intended, which was to stop the practice of referral fees, particularly in the area of motor insurance.