Prison Reform

Lord Beecham Excerpts

Thursday 21st January 2016 Lords Chamber

[Lord Beecham (Lab)]

My Lords, I join all those who congratulated the noble Lord, Lord Fowler, on securing this wide-ranging debate. My admiration for him was undimmed by the occasion when he spoke in a debate on a Motion of mine and described me as having risen from “the serried ranks” of the Labour Opposition, who consisted in their entirety of me and a single Whip.

In a similar vein, it would be churlish not to welcome Mr Gove’s appointment as Lord Chancellor, although almost anyone would have been an improvement on his predecessor. Mr Gove’s announcement about secure colleges, the reversal of the decision on books in prison, a review of prison education and the replacement of old and unfit buildings are most welcome. His speech, “Rescuing Broken Lives”, acknowledged in broad terms the failings of the present system and emphasised the importance of rehabilitation as a vital element in penal policy and of our justice system. But perhaps understandably, his brief address did not really begin to make clear the scale of the crisis in our prisons. That emerges with stark and deeply troubling clarity from Nick Hardwick’s last report as Chief Inspector of Prisons. The House will wish to pay tribute to him for his service and for my part—and I suspect many others—I regret his departure, which followed Mr Grayling’s decision not to reappoint him but to invite him only to reapply for the job that he had done so well.

The Minister will no doubt be aware of the five-page letter that Mr Hardwick sent to the Permanent Secretary in December protesting about the latter’s interference in the way that he was carrying out his responsibilities and reminding him that the chief inspector is and must be independent and is a Crown appointment. Will the Minister confirm that position and assure the House, the chief inspector and his successor that there will be no repetition of the matters about which Mr Hardwick complained?

As we have heard today, the fundamental problem in penal policy is that we have far too many people in prison—we have heard the figures: 85,000, which is twice as many as a couple of decades ago—and occupying in March 2015 97.7% of usable capacity. Even Texas, the jailhouse capital of the western world referred to by the noble Lord, Lord Beith, is striving to reduce its prison population. Furthermore, too many of our prisons are, as we have heard, overcrowded and understaffed, with the consequences that the chief inspector’s report spelt out. As he noted, assessed outcomes in prisons fell sharply last year to be the worst in 10 years. Prisoners were more likely to die in prison, be murdered, commit suicide, be assaulted or self-harm than five years ago. Serious assaults in that time rose by 55%. Such assaults on staff rose by 58% and some of this has no doubt been fuelled by increased access to drugs in prison, where the incidence of drugs found in 2014 reached an all-time high since 2000 at 5,973—a 40% increase on the previous year alone. Meanwhile, as the noble Lord, Lord Marks, pointed out, staff numbers fell by 29%. BME and especially Muslim prisoners, and those with learning disabilities, are recorded as having experienced a worse time than others. As the noble Lord, Lord Trefgarne, pointed out, the number of older prisoners, some of them very frail, is rising sharply.

We debated education in prison earlier this week and, without going over that ground again in detail, it is apparent from the chief inspector’s report that, as the headline to the relevant section of his report makes clear, “purposeful activity” presents a dismal picture, with only 25% of adult male prisons performing well or reasonably well—the worst position in a decade. In a former life, Mr Gove would no doubt have intervened in schools that failed. What action will now be taken in relation to failing providers of this service within prisons? I hope that he will take notice of the suggestions of the noble Lord, Lord Ramsbotham, in that respect. However, to judge by the reaction to the latest of many scandals affecting G4S, one must not be too hopeful that action will be taken where the provider is a branch of the oligopolies that increasingly dominate the provision of our public services.

It is a reflection of the depths to which the service has sunk that the welcome initiative to prescribe a core day of activities,

“was fatally undermined by staff shortages and this affected outcomes in all areas”,

so that:

“It is not currently possible to say how well it will work if staffing levels increase to agreed levels”.

But will they increase given the gap in salaries revealed by the University and College Union between prison education staff and staff in other sectors?

It is also deeply disturbing that 50% of prisoners were locked in their cells during the working day and 20% spent less than two hours a day out of their cells, with exercise in fresh air only 30 minutes a day in most closed prisons. Teaching standards were found wanting in two-thirds of the prisons inspected, and leadership and management of learning and skills in 74% of prisons were found inadequate or requiring improvement. That surely raises the question of whether it is not high time for more joint working in peer review across the sector to identify and promote good practice in this and other aspects of the service.

The report also echoed the concern of HM Inspectorate of Probation and Ofsted, mentioned by the noble Lords, Lord Farmer and Lord Marks, that family contact—a critical issue—was often seen as a privilege rather than part of the resettlement process. Therefore, welcome though the replacement of some of the existing prisons will be, we trust that the Government can give assurances in relation to the siting of new facilities, notably but not exclusively those that serve London, so that access will be facilitated rather than made more difficult.

Another area of concern relates to boys in custody where the use of restraint, including what are euphemistically described as “pain compliance techniques”, had increased in three establishments. Again, there were problems with access for families, which is particularly necessary in the case of young offenders, with a mere 35% saying that it was easy for family and friends to visit. While generally education and training were good, there was, again, much too little opportunity to exercise.

Two other areas outside the immediate Prison Service were also the subject of comment, namely; police custody and court custody. In relation to the former, there were found to be far too many vulnerable detainees for whom risk assessments were too variable, with some staff being too casual in their work and more monitoring required. The accommodation in police custody was often substandard and the quality of healthcare remained variable. I assume that that is a matter that should be taken up by the Home Office. Perhaps the Minister can convey that concern if that department has already not begun to grapple with it.

Shockingly, however, the report states:

“Court custody contained some of the worst conditions we saw on inspection. Leadership was fragmented and ineffective and there was unwillingness to … address the filthy and unsanitary conditions we often found”,

on court premises. The needs of vulnerable detainees were little understood, and I was amazed to see that a previous report had commented on the failings of the escort service, including the lack of seatbelt provision while transporting prisoners in vehicles.

The Ministry of Justice has a clear responsibility to address these issues and could perhaps learn from the good practice in military detention facilities, which were warmly commended in the report, in relation to a wide range of concerns that appear so far not to have been properly addressed within the rest of the custodial sector.

In addition to the low levels of educational attainment, especially literacy, which Mr Gove rightly stated characterised many offenders and with which he was of course familiar in his previous role, more recognition needs to be given to some other factors. Among those are the high levels of prisoners with one or more mental health problems, referred to by my noble friend Lord Bradley, and the disproportionate number and length of custodial sentences on BME defendants with comparable records to those of other offenders and in relation to comparable offences. Here, the sentencing clearly needs reviewing. The noble Lord, Lord McNally, and the noble Baroness, Lady Benjamin, referred to that important issue.

Mr Gove has made a very promising start in his approach to the crisis in our prisons, although I hope that he returns to the important report produced by my noble friend Lord Harris, and I join others in urging him to look again at the vexed question of IPP prisoners, referred to by the noble and learned Lord, Lord Brown, and other noble Lords today and on previous occasions. We must hope that he secures the support of his colleagues in a major effort to build on the aspirations of Transforming Rehabilitation by indeed transforming a dysfunctional and all too frequently failing Prison Service and, in so doing, make no longer contestable the claim of one former Home Secretary that “prison works”.

Legal Services Act 2007 (Claims Management Complaints) (Fees) (Amendment) Regulations 2016

Lord Beecham Excerpts

Monday 18th January 2016 Grand Committee

[The Minister of State, Ministry of Justice (Lord Faulks) (Con)]

The Legal Services Act 2007 (Claims Management Complaints) (Fees) Regulations 2014 enable the Lord Chancellor to charge fees to regulated claims management companies to recoup the costs of the Legal Ombudsman’s work in handling complaints about these companies. Since January last year, the Legal Ombudsman has been able to consider consumer complaints against claims management companies. It is funded for this work by grant-in-aid from the Lord Chancellor, and the 2014 fees regulations enable the Lord Chancellor to recoup the costs from the companies themselves. It is right that the costs of handling such complaints fall on the claims management sector and not on the taxpayer.

The draft regulations before us amend the level of fees set out in the existing 2014 fees regulations for the financial year beginning 1 April 2016 and for subsequent years. This will ensure that the Lord Chancellor can recover the full costs of the Legal Ombudsman in dealing with complaints about the claims management industry in the 2016-17 financial year.

The Legal Ombudsman has one year’s experience of operation of the complaints scheme. During this time, the Legal Ombudsman has dealt with fewer cases requiring an ombudsman decision than expected, although the number of complaints is increasing. The number of initial consumer contacts and inquiries to the scheme has been substantially more than envisaged.

In the light of its experience so far, the Legal Ombudsman has revised downwards its estimate for the number of cases that will require ombudsman resolution during the next financial year and therefore the expected costs. However, in addition to the Legal Ombudsman’s expected costs for 2016-17 we also need to recover a shortfall in the amount invoiced for 2014-15 and 2015-16. This was the result of a greater number of market exits than was estimated in the fee model. This means that the total cost to be recovered from the market for 2016-17—around £2.3 million—remains broadly similar to that for 2015-16. Due to the contraction in the market, however, fees have had to be increased. Effectively, it is a smaller cake.

Noble Lords will be aware that a fundamental review of the regulation of claims management companies is currently taking place. The review is considering what powers and resources are required for a strengthened regulatory regime and what other reforms may be necessary, and is due to be completed in early 2016. As such, I cannot say any more about it at the present time.

The claims management sector has undoubtedly acquired a poor reputation as a result of a small number of companies engaging in poor business practices. The Legal Ombudsman provides redress for consumers of regulated claims management companies, including the potential for awards of compensation, and will continue to assist the claims management regulator in driving out poor standards and practices in the market.

I know that noble Lords welcome the fact that the Legal Ombudsman is now able to deal with complaints about claims management companies. It is therefore right that the Legal Ombudsman’s costs relating to regulated claims management complaints continue to be met by the claims management sector, in the same way that the costs relating to complaints about the legal services sector are met by that sector. I commend the draft regulations to the Committee.

[Lord Beecham (Lab)]

My Lords, the Government are right to take action in this matter, and I certainly endorse the new arrangements that have been laid out, but it has a rather curious history. Looking at paragraph 4.2 of the Explanatory Note, I can see that it was some seven years after the passage of the 2007 Act before steps were taken to deal with this issue. The paragraph contains this rather curious sentence:

“This provision treats the designated Claims Management Regulator as an approved regulator to be levied in the same way as other approved regulators for the costs of the Legal Ombudsman”.

It goes on to say:

“However, there is currently no designated Claims Management Regulator and the function is fulfilled by the Secretary of State”.

One might have thought that he had more important things to do. Obviously, Mr Gove and his predecessor will not have been involved in this personally, but it is a curious situation that for some years there apparently was no functioning regulator in post.

The position appears to be, as the Minister has indicated, that a £500,000 shortfall has occurred in a very short period. I do not know whether he is able to indicate how many cases there were. He said that there were not many, but £500,000 is a reasonably large amount of money. It will be interesting to know how many cases there were and how many of those were from small companies, which appear to be leaving the market. But the very fact that after all these years there are clear deficiencies in how some of those providing this service are operating raises questions about the degree to which their activities are regulated in advance of the unfortunate outcome, which sometimes leads them to be subject to charges for maladministration or their conduct. Does the review to which the Minister referred encompass looking at the qualitative regulation of the industry? Should there not be a floor above which the resources of these companies should be fixed? If not, we will continue to have a situation in which, quite apart from the financial implications for the Government, people who have consulted these companies presumably are being short-changed. One wonders what has happened to valid claims that have gone astray as a result of maladministration. That side of it does not seem to be touched on at all in relation to this order, but it may be encompassed within the review. I certainly hope that that is the case, but if it is not, perhaps the Minister could undertake to look into the nature and quality of the supervision that ought to be exercised and, if necessary, what improvements should be made to what has gone on recently.

[Lord Beith (LD)]

My Lords, I very much agree with the noble Lord, Lord Beecham, about the rather curious nature of the regulatory arrangements for claims management companies. The Lord Chancellor left himself holding the baby when the original legislation was taken through. I never thought that this arrangement would last as long as it has. It is quite right that it should be subject to review. It is obviously right that the costs of dealing with what the noble Lord called the maladministration in the industry is visited upon the industry and not the taxpayer. Therefore, I support the order and the principle behind it.

The history of claims management companies has been one of things that go beyond individual complaints. There have been systemic changes to the way the legal system operates and attempts to turn it into an ambulance-chasing activity. We all have some worries about whether, in another area, the necessary referral fee bands have actually brought some of the claims management activities in-house, into some solicitors’ practices, where once they were precluded. This is a very difficult area and the regulatory problems that it generates are not just individual cases being badly dealt with but systemic weaknesses. I hope that when we dispatch this order successfully as an appropriate means of dealing with the costs arising from individual claims, we will not neglect some of the wider issues that this industry has generated.

--- Later in debate ---

I hope that, notwithstanding the reservations that have been expressed about the length of time it took to set up this system, and notwithstanding the general concern that the Committee has about claims management companies, noble Lords will accept that there is an importance in providing the route for redress for consumers of regulated claims management companies that is provided, and that it is right that the companies should pay for the costs of complaints handling rather than the taxpayer.

[Lord Beecham]

I entirely endorse what the Minister has said, but the danger is that the process of finding companies works only if the companies are in existence and have resources. Therefore, it seems to me that the regulation needs to be at an earlier stage to ensure that they do not carry on business unless they can demonstrate that they have the financial capacity to meet their liabilities. I assume—but it would be good to have the confirmation, if not today than perhaps subsequently—that that element is being considered as part of the review to which the Minister referred.

[Lord Faulks]

I am grateful for that, and I understand the noble Lord’s concern about having prior approval rather than waiting for things to go wrong; I think that is effectively what he is saying. I do not want to pre-empt what is in the wide-ranging report. Of course, there are a number of ways of ensuring that, including the possibility of professional indemnity insurance, or something of that sort. But I accept his point that it is important that there is protection before, rather than after, the event. I do not undertake that the review will cover that point, but it is none the less a valid concern.

Prison Service: Trans Prisoners

Lord Beecham Excerpts

Tuesday 24th November 2015 Lords Chamber

[Lord Faulks]

The noble Lord makes what he may think is a clever point, but I refer him to paragraph 2.6 of the instruction system, on “The Approval and Implementation of Policy and Instructions”, which provides as follows:

“Regardless of expiry dates, instructions remain in force until specifically cancelled, marked ‘obsolete’ or replaced and removed from the Intranet”.

That policy does not fall into that category; it remains current.

Of more substance—of course it is very important that in formulating any change to the Prison Service instruction we take account of the trans community’s views; we are doing so, as my ministerial colleague explained in answering a question of a similar nature to the House of Commons last Friday.

[Lord Beecham (Lab)]

My Lords, the whole House will join the Minister in expressing condolences to the family of Vicky Thompson, and also welcome the Government’s response to this tragic case and look forward to the outcome of the review that has been announced. There have been 186 suicides in prisons in the year to September, and a 21% rise in self-harm. Those statistics reflect the pressure on prisons and staff, echoed in the latest report on Feltham young offender institution. Therefore, will the Government’s review extend to the size of the prison population, and will the training of prison staff—the briefest of any comparable country—be substantially extended in time and depth?

[Lord Faulks]

I do not wish to pre-empt what may be considered appropriate to be considered under the review. Certainly, training would be an extremely important factor. The training has been extended to cover a specific module for prison officers to consider equality provisions, which takes into account particularly the protected characteristics of transgender prisoners. The scope of the review will embrace all things that are relevant to make sure that the Prison Service treats such prisoners appropriately. The original Prison Service instruction is an impressive document but, of course, there is room for continual improvement, and we will endeavour to arrive at an appropriate destination.

Restorative Justice

Lord Beecham Excerpts

Wednesday 18th November 2015 Lords Chamber

[Lord Faulks]

I will of course pass on that concern to the Prisons Minister. I assure the noble Lord that the standards for restorative justice are set out in the victims’ code, and the necessary trained facilitation and all the necessary support should be present.

[Lord Beecham (Lab)]

My Lords, it is some eight years, I think, since the publication of the last report validating the success of the restorative justice programme. Since that time, I believe that the Howard League for Penal Reform has made an annual award to schemes covering respectively adults and young offenders. Is it possible for the Government now to look at ways of supporting that kind of approach in order to promote the scheme and perhaps invest in it, given that the likelihood is that the development of restorative justice will cause savings to be made in the custodial system and indeed in the judicial system?

[Lord Faulks]

The Government are well aware of the advantages of restorative justice and in fact they have contributed to it very considerably, with £30 million having been made available to RJ services for victims over the last three years. Of course, the noble Lord is right to draw attention to the Howard League’s contribution. There have been contributions from all sorts of providers in different fields.

Ministerial Code

Lord Beecham Excerpts

Tuesday 3rd November 2015 Lords Chamber

[Lord Faulks]

There is no question of sneaking it through. It has been available since 15 October 2015 and this is the second time in a week that I have answered questions at the Dispatch Box on the Ministerial Code. It has also been the subject of much debate, as the noble Baroness points out, in the newspapers and elsewhere. Those authors she cites are entitled to their view, but it is not a view that I agree with.

[Lord Beecham (Lab)]

My Lords, if the change makes no difference why make the change?

[Lord Faulks]

I indicated that from time to time the Prime Minister may clarify duties, just as the Civil Service Code does. That is his prerogative. The duty on the part of Ministers is to obey the law.

Prisons: Young People

Lord Beecham Excerpts

Thursday 29th October 2015 Lords Chamber

[Lord Beecham (Lab)]

My Lords, 400 years ago John Donne proclaimed:

“No man is an island … any man’s death diminishes me”.

How much more are we and our justice system diminished by the deaths in custody of the four children and 83 young adults for whom the bell tolled between April 2007 and December 2013?

We are indebted to my noble friend Lord Harris and his team for their careful investigation into the circumstances which led to these untimely deaths; the way they have identified the failings of the policies and institutions within which they occurred; and the recommendations they propose to improve upon an unacceptable toll of young lives. It would be churlish not to pay tribute to Ministers for establishing the review and for reaching across the political divide and appointing my noble friend to chair it.

I regret I must qualify that tribute somewhat in the light of the Government’s reaction to the recent Supreme Court judgment which outlawed the segregation of prisoners—that is, placing them in solitary confinement for more than 72 hours—including young offenders. The Government have laid an order to amend the prison rules to extend this to 42 days and have embarked upon a consultation process as part of a review of the policy, which will conclude in the new year. That will be a matter of concern for Members of your Lordships’ House.

The background to the problems identified by the report lies in the way our criminal justice system involves a low level of the age of criminal responsibility and a high level of incarceration, with the prison population virtually doubling in the past 20 years, as the noble and learned Lord, Lord Phillips of Worth Matravers, pointed out. We have, or are close to having, the highest prison population relative to population of any advanced country, with commensurately high costs, both direct and indirect. It is clear that conditions in too many of our prisons and young offender institutions are unsatisfactory, with overcrowding and staff shortages, and that in turn these systemic failings are reflected in unacceptably high and costly levels of reoffending.

I must again pay tribute to the Government for recognising that rehabilitation is the key to improvement in this area, with the additional bonus of reducing costs, although arguably the policies of the previous Lord Chancellor conflicted with the aspirations he voiced. There are welcome signs that Mr Gove may take a more rounded view.

An important strand running through the report and the submissions of bodies such as the Howard League and the Prison Reform Trust is the need to recognise that sentencing policy and custodial practice should reflect the reality that 18 to 21 year-olds are not all of a piece in terms of their developmental maturity, a point made by several Members of your Lordships’ House in this debate. To adopt an old-fashioned phrase, sentencing needs to be tailor-made, not merely handed down from the judicial shelf, and the same approach is required in respect of what is provided by way of healthcare, education and all that is needed to promote rehabilitation. Particular attention is needed in respect of issues such as literacy and numeracy, and facilitating and encouraging family contact, physically and remotely by telephone or Skype, where this is appropriate. That was one of the main issues which persuaded many of us—and perhaps, in the event, Mr Gove—that the secure college concept for young offenders aged between 12 and 17 was ill advised.

It is clear that the system is struggling, with poor outcomes whether young adults are housed in separate establishments or mixed with adult offenders. The inspectorate found that local mixed prisons are finding it difficult to cope, although paradoxically it also found that young adults felt less safe in prisons without adults. Nevertheless, the Prison Reform Trust supports separate provision. There is clearly a debate to be had on this difficult issue and perhaps the Minister could indicate how the matter might be carried forward and eventually resolved.

The report alludes to staffing numbers and the current pressure on staff, which no doubt contributed to the tragic loss of young lives which triggered its commissioning. But there are also questions about the level of skills and the training required to secure the capacity to detect and deal with emerging symptoms that can lead to self-harm and worse. The training of prison staff, the report states, lasts eight weeks in England—the shortest period in Europe. In Norway, it is two years. Is there the potential to devise specific qualifications for employees in this sensitive area, especially for the newly proposed post of care and rehabilitation officers? I join other noble Lords in commending that recommendation of the report. Would it not also be right to pay special consideration to the health needs of staff who are working in what are clearly highly stressful conditions?

There is also a need to review what is happening to these young people before they begin their journey through the justice and custodial system. The report points out that the unhappy 87 young people whose cases it examined had exhibited problems from an early age and, as my noble friend Lord Harris reminded us, asks reasonably, “Why did so many of them end up in custody?”. Programmes such as the Government’s troubled families programme may help in this context but there is surely a need for a more holistic approach involving health, children’s and education services working collaboratively at local level to identify, and seek to tackle, early signs of behavioural and mental health problems. However, I fear that another large cut in resources for those already overstretched services will follow the comprehensive spending review and the local government finance settlement in December. The Ministry of Justice has an interest in these matters; I hope the Minister can assure us that he is discussing the issue with the Department for Communities and Local Government and the Treasury. The deeper the cuts in these services, the greater the eventual cost to the Ministry of Justice’s budget and to society as a whole.

The report makes some interesting suggestions about how overall management and evaluation of the service could be conducted. I am uncertain about the proposal to vest the responsibility in the Justice Committee but, in any event, I would argue for peer review—by which I do not mean another report from my noble friend—within the service, including experts and scrutiny by local authorities, for example by the combined authorities involved in the devolution process now under way. In the north-east, we undertook such an exercise in respect of the mental health of offenders some time ago. The present system of independent local oversight does not appear to be effective.

The report contains a host of recommendations, many of which have been raised in this debate. Time and the patience of the House do not permit me to refer to more of them, nor can the Minister be expected to cover today every issue that the report raises or each proposal it makes. We look forward to the Government’s detailed response to the report and hope, as my noble friend Lord Harris intimated, that it will not be long delayed—and that we can find a way to discuss it in detail, ideally in conjunction with the Justice Select Committee. I hope that in their response, the Government will look at what seems to be the best practice in other jurisdictions. In that context I invite the Minister, as I invited his predecessor, the noble Lord, Lord McNally, to look at the experience of Finland. In the mean time I reiterate my thanks, and I believe the thanks of the whole House, to my noble friend Lord Harris and thank all Members who have contributed to this important debate.

British Bill of Rights

Lord Beecham Excerpts

Wednesday 28th October 2015 Lords Chamber

[Lord Faulks]

A number of objections have already been raised, before we have even published our proposals, and I hope that all Members of this House will approach this British Bill of Rights—something that was floated not only by the Liberals but twice by the Labour Government—with an open mind. Among the various objections to a proposed Bill, the idea that the fact that we have any doubts about the primacy of the Strasbourg court might affect Putin’s foreign policy is one I find absolutely ridiculous.

[Lord Beecham (Lab)]

Will the Minister tell us whether the Attorney-General was consulted about the change to the Ministerial Code? What is his view of the remarks by the former Treasury Solicitor and head of the government legal service that:

“It is disingenuous of the Cabinet Office to dismiss the changes to the ministerial code as mere tidying up”,

and that Ministers,

“will regard the change as bolstering, in a most satisfying way, their contempt for the rule of international law”?

[Lord Faulks]

I have already made clear to the House what Ministers regard as their duties, and I do not resile for a moment from that. As the noble Lord will well know, details of internal discussions and advice are not disclosed to the House—and I do not propose to depart from that well-established convention.

Maximum Number of Judges Order 2015

Lord Beecham Excerpts

Tuesday 27th October 2015 Grand Committee

[The Minister of State, Ministry of Justice (Lord Faulks) (Con)]

My Lords, the effect of the draft order is simply to increase the number of Court of Appeal judges by one. That number is set by statute under Section 2 of the Senior Courts Act 1981, which currently provides for a maximum of 38 Court of Appeal judges.

In March 2015 Lord Justice Pitchford, an existing Court of Appeal judge, was appointed by the Home Secretary to lead the inquiry into undercover policing and the operation of the Metropolitan Police’s Special Demonstration Squad. The inquiry, which began on 17 July 2015, was established under the Inquiries Act 2005 and is anticipated to conclude at around the end of 2018. Having been appointed as such, Lord Justice Pitchford remains a Court of Appeal judge and is counted in the current complement of 38. However, he is unable to fulfil any duties in the Court of Appeal while he leads the inquiry.

In order to ensure that the total number of Court of Appeal judges available for deployment remains at current levels, it is necessary to increase their number by one. There is no other method for revising the number of Court of Appeal Judges other than by an order such as this. I therefore commend this draft order to your Lordships and beg to move.

[Lord Beecham (Lab)]

Could the Minister indicate whether it is intended to retain the maximum number at 39? Is it a permanent provision? It would be perfectly sensible if it were, but it is not quite clear to me whether that is the case. Secondly, while he cannot commit himself or those appointing a member of the Court of Appeal, I would hope that whoever makes the decision does not follow the line laid down by Lord Sumption recently about appointing women to the Supreme Court. We could do with more women in the upper and indeed the lower branches of the judiciary, and I hope that this will be an opportunity for those making the appointment to take with as good a grace as possible.

[Lord Faulks]

On the noble Lord’s first question, the position is that Lord Justice Pitchford turns 70 in March 2017 and must at that point retire as a Court of Appeal judge. It is anticipated that on his retirement, or at the end of the inquiry, if that is sooner, a similar order to this one will be made, returning the number of judges to the Court of Appeal back to 38.

I turn to the second point made by the noble Lord. He referred to the issue of diversity, which is of course important to the public’s confidence in justice. It is harder to boost diversity in the Court of Appeal in the short term, as the majority of eligible candidates come from the ranks of High Court or deputy High Court judges of at least seven years’ qualifying experience, but the Lord Chief Justice and Lady Justice Hallett are leading work to increase the diversity of applicants at key feeder grades for the higher judiciary—namely, recorders and deputy High Court judges. I am sure that he will welcome the appointment on 22 October, last Thursday, of two female High Court judges, one of whom will be the first Asian woman to sit at this level. When sworn in, they will take the number of women High Court judges to 23 out of 108, which is 21%. The Government are absolutely committed to increasing diversity, and whatever Lord Sumption may or may not have said about the reality, the Government are acutely conscious of the need to do that and are taking steps to ensure that we can realise that ambition.

This is a reasonable amendment, which maintains the complement of Court of Appeal judges when one of their members is engaged, as is Lord Justice Pitchford, in important work elsewhere. I hope that noble Lords will agree the proposed amendment and I beg to move.

Prosecution of Offences Act 1985 (Criminal Courts Charge) Regulations 2015

Lord Beecham Excerpts

Wednesday 14th October 2015 Lords Chamber

Moved by

[Lord Beecham]

That this House regrets that the Prosecution of Offences Act 1985 (Criminal Courts Charge) Regulations 2015 undermine the principle of judicial discretion, and add an artificial inducement to plead guilty; and further regrets that the Regulations were laid at a time that severely limited Parliamentary oversight, as well as making claims for savings that cannot be substantiated (SI 2015/796).

Relevant document: 1st Report from the Secondary Legislation Scrutiny Committee

[Lord Beecham (Lab)]

My Lords, I refer to my interests as an unpaid consultant with the firm with which I was formerly a senior partner.

A few months ago a 32 year-old woman, Louise Sewell, stole a pack of four Mars bars worth 75 pence from a shop in Kidderminster. She was undergoing a benefits sanction and had not eaten for two days. She pleaded guilty and was ordered to pay a criminal courts charge of £150. A man in Newbury who lives in a tent and stole a £2.99 bottle of wine from a supermarket was subjected to the same charge, but was not required to pay the criminal courts charge in the light of his limited means. I am grateful to the Law Society and the Howard League respectively for supplying details of these and other cases—of which there are many—to my old firm and to a magistrate friend who has served for a long time on the Bench and has much experience chairing the Bench in his area.

A client of my old firm who was addicted to legal highs and is on probation received a summons for littering and was convicted in his absence. The court wished to impose a small penalty or conditional discharge. Either of those would have required the imposition of the £150 court charge. The court decided to order an absolute discharge and thereby avoid the financial penalty. Faced with a similar situation, my magistrate friend presided over a case of minor criminal damage where the fine would have been around £75, costs £85, and victim compensation £20, to which would have been added a criminal charge order of £150. The defendant’s income consists of £115 in benefits per fortnight. The court decided to give him a discharge, which meant not only that the courts charge was not payable but that no victim compensation could be ordered.

These cases and many like them proceed from the criminal courts charge regulations, which are the subject of this Motion, which among the many dubious legacies bequeathed to Michael Gove by his predecessor as Lord Chancellor, Chris Grayling, ranks as one of the most misconceived. Those convicted of criminal offences face, rightly, the prospect of fines, contributions to prosecution costs, and payment of compensation to victims. Some contribution to court costs might well be reasonable, but this order, tabled just before the dissolution of Parliament, never having been the subject of consultation, imposes a rigid structure of charges with no judicial discretion as to their amount or any regard as to the defendant’s means. They apply to all cases since 13 April.

A defendant pleading guilty in the magistrates’ court will be charged £150, which will in many cases exceed the fine, prosecution costs and even some compensation orders combined. If defendants are convicted after a not guilty plea, the charge will be £520 or £1,000 in what is called an either-way case—one that could be heard in either the magistrates’ court or the Crown Court. Guilty pleas in the Crown Court will attract a charge of £900, while £1,200 will be levied where there is a conviction following a not guilty plea.

The uniform imposition of these fixed charges is contrary to the courts’ current approach, which is one of totality—taking into consideration the nature of the offence and the effect, including the financial effect of fines and costs already levied. Judicial discretion under these regulations is being displaced by what one might call Ryanair justice, with significant add-ons, often disproportionate to the basic financial penalty.

Magistrates and others, including the senior judiciary, are concerned not only about the potential impact on those convicted but also about the likelihood that some defendants will plead guilty rather than risk doubling or quadrupling the financial penalty they face. There is of course already something of an inducement to plead guilty in the one-third discount for a guilty plea. But my old firm has experienced a number of cases where charges that could properly have been contested have ended up as guilty pleas, especially—but by no means exclusively—in relation to road traffic matters. Given the number of court closures and the cost of travel and time off work which will increase as a consequence, and is itself a matter of concern, the inducement to plead guilty to less serious offences becomes even greater. The Howard League cites a case in Mansfield, where a defendant changed his plea at the Crown Court upon being advised that if convicted he would face the higher charge described under the order.

There are other potential difficulties. Where there are a number of charges, to some of which the defendant pleads guilty but not to others, the current practice is to deal with those to which the guilty plea is tendered and set the remainder down for trial. That could mean, in the event of conviction, two criminal court charges; the risk arises that for example the imposition of a probation order, possibly subject to medical treatment, would be delayed. As I have exemplified, some courts have resorted in cases where defendants have limited means to order an absolute discharge which avoids the imposition of the criminal law charge but also nullifies the possibility of a victim compensation order. Such is the concern that at least 50 magistrates are known to have retired from the Bench in protest. Nor can it be assumed that the Ministry of Justice’s estimate of the yield from this process—between £65 and £85 million a year—would be easily achieved. After all, earlier this year it was reported that there is £549 million in uncollected fines and that 61% of this amount will be written off. Can the Minister tell us how much of the £700 million contract for court enforcements for which his colleague Mr Vara announced in July that Synnex Concentrix are preferred bidders, related to the collection of this charge?

The financial implications for both defendants and the Government may be somewhat qualified by the curious wording of a four-page guide to the new charge published by HM Courts and Tribunal Service which concludes with the following section under the rubric “What else do I need to know?”. It states:

“If after two years you have made best efforts to keep up with the payment terms of any other financial impositions and the criminal courts charge and you have not been convicted of any other criminal offences during that period you may apply to the magistrates’ court for consideration to write off the criminal courts charge”.

I am tempted to nominate this remarkable statement, about which nothing is said in the impact assessment, for the Nobel prize for legislative opacity. Perhaps the Minister could enlighten us as to its potential consequences. The House of Lords Secondary Legislation Scrutiny Committee criticised the timing of the implementation of the order, before Parliament had any chance of considering it—because of the pending dissolution—and, tellingly, added that,

“the lack of an updated estimate of the sum likely to be raised”

made it,

“impossible to take a clear view of how the regulations will serve their intended purpose”.

We are, moreover, very much in the early days. Most cases where the charge has been levied will have been where guilty pleas have been tendered. We are now at the point where trials will be proceeding and the larger charges will be imposed in both magistrates’ and crown courts.

It is not surprising that 93% of magistrates surveyed by the Magistrates’ Association thought the charge was set at an unreasonable level, and that 83% thought it should be means-tested.

“The fact that no account is taken of ability to pay and the lack of discretion mean that the charge as currently constituted is not in accordance with the principles of justice.”

Those are not my words, but those of the Magistrates’ Association in its response to the Justice Select Committee. The Lord Chief Justice was reported last week to have voiced his criticism of this ill-thought-out measure, among others, and a Crown Court judge in Leicester observed that the charge did not have any merit.

It is to be hoped that Mr Gove, who has abandoned one ill-conceived project of Mr Grayling’s—the secure college for young offenders—will review and urgently revise these deeply flawed regulations taking into account the concerns of the judiciary at all levels and consulting properly on a revised scheme. The key elements must reflect the concept of totality, have proper regard to the means of the defendant and the nature of the offence and restore judicial discretion. I beg to move.

--- Later in debate ---

The House has been greatly assisted by everything that has been said. I hope that the noble Lord, Lord Beecham, will accept from me the seriousness with which the Government take those concerns. This regret Motion has effectively underlined those concerns. I hope that, in that spirit, the noble Lord will feel able—notwithstanding the presence of a number of noble Lords on that side of the House—not to press this regret Motion.

[Lord Beecham]

My Lords, the Minister can live in hope. I have a certain sense of déjà vu when listening to the elegant defence the Minister makes of the indefensible. I remember the skill with which he sought to defend the previous Lord Chancellor’s secure college proposal, which was interred not too long ago by the new Secretary of State, and I rather think he is in the same position tonight—I rather hope that he is.

The Secretary of State the Lord Chancellor is reported today in the press to have made a very significant change in the Government’s policy relating to justice by persuading the Government to withdraw from their proposal to offer the service of the splendidly named Just Solutions International to the Government of Saudi Arabia in the light of the dreadful position of a British citizen that, unfortunately, we are all familiar with. The Lord Chancellor may need some support in seeking to change the system and these regulations—which he inherited—in order to promote, let us say, just solutions nationally as opposed to internationally. The opinion of this House may strengthen his hand with regard to discussions with colleagues who in the other context seem to have been somewhat recalcitrant. In those circumstances, therefore, I wish to test the opinion of the House.

Civil Legal Aid (Merits Criteria) (Amendment) Regulations 2015

Lord Beecham Excerpts

Monday 7th September 2015 Grand Committee

The Government are committed to protecting victims and potential victims of FGM and modern slavery. This statutory instrument makes relatively minor but important changes to the civil legal aid scheme following the implementation of FGM protection orders and enhanced protection for victims of modern slavery. I therefore commend this statutory instrument to the Committee and I beg to move.

[Lord Beecham (Lab)]

My Lords, this is one of the rare occasions on which I can congratulate the Government and the Minister on doing something positive in the arena of legal aid. Later this evening we will revert to the more normal discussions that take place between us across the Chamber in another respect. However, this is an important matter, and I very much welcome the Government’s initiative in ensuring that the change in the law can be adequately enforced.

In that connection, with regard to something that we have just discussed at some length concerning other serious matters relating to safety within the home, there is the publicity that is being given about the issue generally, but more particularly about the availability of legal aid for those suffering from abuse in terms of either of the two categories embodied in the order. It may well be the case that the Government are already directing publicity not only at the potential victims but at organisations and others who might be able to assist in disseminating the information that legal aid is available. It may be too early at this stage for the Minister to give an indication of the number of cases that are thought likely to be brought under each category, or it may be that the information is simply not available this afternoon. However, if and when it becomes available, that information would be helpful—and, of course, it would lend some force to any publicity that the Government will no doubt give about the remedies that will be available.

Having said that, the Opposition certainly support the Government’s steps here. We look forward to assistance being given to people who are being ruthlessly exploited and who hitherto have had insufficient protection from the law.

[Lord Faulks]

My Lords, I am grateful to the noble Lord, Lord Beecham, for his support for these regulations, and I look forward to renewing our customary postures later in the day.

As he rightly says, these are early days, and it is difficult to give any figures. I made the very same inquiry of my officials and understandably they were somewhat tentative. I do not suppose that the numbers are going to be very large. What I can say, of course, is that there has been a great deal of publicity generally about both areas that we are concerned with. Therefore, I think that the general public and all those who are likely to encounter these issues will be aware of the situation and will be keen to find out the extent to which there may be legal aid, and I am sure practitioners working in this area will make themselves aware of it.

A guide to the court process was published in July this year, and I understand that it includes the relevant information. I am now being handed a copy, which lays out, in paragraphs 31 to 34, the information which will assist. This is under the female genital mutilation protection orders; it explains their scope and who can apply, and it contains information about the availability of legal aid. Anybody familiarising themselves with these orders—a practitioner or anybody affected by or concerned about them—would find out that legal aid was available. I am not sure whether there is similar information in relation to modern slavery but, if there is, I will undertake to convey it to the noble Lord.

That being, I think, the scope of the inquiry made by the noble Lord, I think we can now proceed to ask noble Lords to approve this amendment. I believe that it is a reasonable one and that it will provide appropriate frameworks for the provision of legal aid for victims of both FGM and modern slavery.