Crime Reduction Policies

Debate between Lord Beith and Elfyn Llwyd

Thursday 22nd January 2015 Westminster Hall

[Sir Alan Beith (Berwick-upon-Tweed) (LD)]

It is a pleasure to serve under your chairmanship, Mr Gray, even if it is somewhat earlier than anticipated—such was the degree of consensus about the green deal in the preceding debate.

What are the most effective ways to keep our constituents safe from crime, and how can we spent taxpayers’ money cost-effectively to achieve that objective? The Justice Committee sought to answer those questions and keep them under review, while challenging the traditional media and political debate about who can sound toughest on crime, which tends to cast no light on the matter.

The Committee’s major initiative in the previous Parliament was a substantial report entitled “Cutting crime: the case for justice reinvestment”, published in January 2010. In this Parliament, we sought to follow up that work. I am pleased to have the opportunity to discuss the Committee’s inquiry on crime reduction, which led to the production of two reports.

The first report was an interim one addressing the Transforming Rehabilitation reforms, which have been the subject of several debates here and in the main Chamber. Today, I want to focus predominantly on our broader inquiry, entitled “Crime reduction policies: a co-ordinated approach?” There is a question mark at the end because we wanted to assess the extent to which there is a truly co-ordinated approach to policies and programmes for reducing crime and reoffending.

In all those reports, including the report in the last Parliament, we have been greatly assisted by our staff, especially senior Committee specialist Gemma Buckland. Witnesses, including experts, the judiciary, social work professionals, victims and ex-offenders have also been invaluable. In all those categories, we have learned a great deal from those who have been willing to give evidence to us and to receive us in their institutions, prisons, courts and various other places.

We must assume that the objective of reducing crime is shared by politicians of all parties, as well as the general public. Overall, we are all pleased to find falling rates of crime across the criminal justice system. We are not convinced that that can, in practice, be attributed mainly to the success of any particular national crime reduction policy or local policy—indeed, it follows a pattern right across western Europe. All sorts of explanations have been put forward, ranging from better vehicle security to the removal of lead in petrol, and a whole variety of others in between. There is still considerable academic uncertainty and disagreement about some of the causes, but multiple factors are at play and there is a great deal more work to be done.

That welcome reduction does not alter the fact that in our courts, prisons and on community sentences, we see a lot of people who not only commit crimes, but go back to committing more crimes when they have completed their sentences. We want the fall in crime to continue and we want to deal with the persistently high rates of reoffending. We are still in need of a supportive framework that will get to the heart of the deep-seated challenges of reducing crime and levels of victimisation. We think the Government should seize the opportunity and address two key areas that are in need of reform or development: local partnership and preventive initiatives.

On local partnership, which I think has been one of the most significant developments in recent years in tackling crime, there have been significant changes in the landscape since 2010—since our previous report —including the introduction of police and crime commissioners and the transfer of public health responsibilities to local authorities, which reflects an ongoing broader and welcome shift of power from Whitehall to local communities. That has resulted in an assortment of local accountability structures, but our evidence highlighted the clear benefits of collective ownership, pooled funding and joint priorities, all of which have been facilitated by that approach. However, there remains a considerable way to go before health can be considered a fully integral part of the crime reduction picture.

The current situation, where all local agencies are accountable but there is no single statutory leader, risks confusion and abdication of responsibility. We were genuinely worried that the number of changes taking place and the climate of financial austerity would make local partnership working much more difficult, and that it would reduce. The picture we have so far shows that that has not happened, and that institutional change and severe financial pressures have been coped with remarkably well in many local partnerships.

We are watching the situation carefully, but thanks to the good will of all involved, we have not noticed people being taken away from the table, if I may put it that way, of joint and shared activity. We did not find evidence that funding cuts had resulted in any renunciation of the commitment to work together. Indeed, local government representatives regarded further joint working as more essential, given the ongoing financial restraint.

Of course, some major elements are not around the table and not part of the process—most obviously, courts and prisons. We believe that a prison system that effectively rehabilitates a smaller number of offenders, while other offenders are rehabilitated through robust community sentences, has the potential to bring about a bigger reduction in crime. The through-the-gate resettlement support envisaged under the Transforming Rehabilitation programme might go some way to achieving that, but it is not at all clear that there is capacity in the prison system sufficiently to facilitate it. Seeing courts as purely instrumental institutions misses an opportunity for encouraging greater innovation, and we believe that there is the potential to make broader systemic savings.

[Mr Elfyn Llwyd (Dwyfor Meirionnydd) (PC)]

Does the Chair of the Justice Committee agree with me that integral to all that is the need for proper, extensive drug rehabilitation out in the community? That seems to be a missing link, bearing in mind that 65% of all acquisitive crime—theft, in particular—is carried out by people with drug problems.

[Sir Alan Beith]

The right hon. Gentleman is absolutely right; I agree with him and will say a little more about the issue. It always strikes me very forcefully that if a judge or magistrate is presiding over a case and sentencing, and decides that an offender really needs a significant drug rehabilitation programme as part of a supervision programme, that judge or magistrate has to find out whether it is available. If custody is the answer, however, a van will come along, take the prisoner away and it will be somebody else’s problem to find somewhere to put them, but the sentence will be carried out. That is a mismatch within the system, and it also reflects the weakness of drug rehabilitation provision in the community at large. Had that been accessible, it might have prevented that person from getting involved in the drug-related crime in the first place.

When we were in the United States, both for the previous parliamentary inquiry and the present one, we saw instances of problem-solving courts playing a much more central part in the rehabilitation of offenders. They were adapting their procedures, particularly when dealing with drug offenders, to use the collective will, both of the professionals and of all those who were coming before the court, to motivate people to get over the drug problems that were causing their acquisitive crime. It was fascinating to watch a court in Texas, for example. Those who had successfully met the conditions of their sentence were coming up before the judge and the other ex-offenders were sitting in the court applauding the success of the person who had, as it were, qualified to stay outside prison, because of the way in which they had carried out the conditions of their sentence.

I referred earlier to preventive initiatives. We are concerned by the Government’s approach to preventive measures on such things as health and substance misuse. The abuse of alcohol and drugs, as the right hon. Member for Dwyfor Meirionnydd (Mr Llwyd) said, are significant in many crimes, but their manifestations often have other root causes. The Government’s approach, which is still focused largely on the activities of the Home Office and the Ministry of Justice, may over-emphasise the extent to which measures taken within the criminal justice system can tackle those problems, when a much broader spread of measures is needed involving a wider range of institutions.

It is very striking—we have come across evidence of this—to see the extent to which the criminal justice system is used as a gateway to mental health, drug or alcohol treatment. We come across ex-offenders who have committed further offences because they know that they can get either, in the most basic sense, a bed for the night in prison, or treatment, which they are having difficulty getting outside the criminal justice system. The solutions to some of those problems lie beyond the criminal justice system and the direct responsibilities of even the Minister who will answer this debate. His response might be that he straddles two Departments, which is helpful in this context, but maybe he needs to take two or three more Government Departments under his wing to achieve the co-ordination that we think is necessary.

Women Offenders and Older Prisoners

Debate between Lord Beith and Elfyn Llwyd

Thursday 16th January 2014 Westminster Hall

[Sir Alan Beith]

I chose my words carefully. I said not that women were put in prison for offences that were not serious—courts would normally regard either the offence or the fact that they are repeat offences as a serious matter, underlining their decision to give a custodial sentence—but that many of the women, if they were not in prison and were otherwise effectively supervised, would not constitute a danger to the public. That is not true of them all, which is why there will always be some women in prison, some for very long periods, but those numbers will be relatively small.

[Mr Elfyn Llwyd (Dwyfor Meirionnydd) (PC)]

In support of what the right hon. Gentleman says, in the 12 months to June 2012, 81% of women entering custody and starting a sentence had committed non-violent offences, compared with 71% of men.

[Sir Alan Beith]

The right hon. Gentleman makes a very good point and gives highly relevant figures.

In 2012, we decided to undertake an inquiry to review progress since the Corston report and to examine current strategy and practice. We held five oral evidence sessions. We visited prisons and women’s centres. We received more than 60 pieces of written evidence. We reported in July 2013, and the Government published their response in October. We visited HMP Styal, where the six deaths that prompted the Corston report had occurred, but in the inspection report on the prison published two years ago, Her Majesty’s chief inspector of prisons commented that it was

“disappointing to find, and to be told of by the governor, too many cases of women, some of whom were clearly mentally ill, serving very short prison sentences which served little purpose except to further disrupt sometimes already chaotic lives.”

During our visit, we saw a new unit that has been created in an effort better to meet the needs of these women, but questions were raised by our witnesses about why women with such complex needs continue to be sentenced to custody. However, those of us who visited Styal saw some genuinely good work going on there. Styal has featured so much in this history that I would not want the impression to be given that there is not some very good work indeed taking place there.

The fact that we were holding an inquiry at all seemed to stimulate the Government to take a number of positive steps to prioritise the requirements of female offenders. After we had announced the inquiry, the Government allocated ministerial responsibility for female offenders to the then Minister in the Department and former member of our Committee, the hon. Member for Maidstone and The Weald (Mrs Grant). They announced a review of the female custodial estate, published a statement of four high-level strategic priorities, and created an advisory board to oversee the work streams stemming from those priorities.

Our report was very wide ranging, and I cannot pick up all the threads, but let me start with the overall governance of these issues. We said in the report:

“It is regrettable that the Coalition Government appears not to have learnt from the experience of its predecessor that strong ministerial leadership across departmental boundaries is essential to continue to make progress, with the result that in its first two years there was a hiatus in efforts to make headway on implementing the important recommendations made by Baroness Corston”.

We in the Committee were particularly struck by Baroness Corston’s own evidence that under the previous Government it was not until a group of women Ministers worked together to take issues forward that that Government made significant progress in this area. We welcome the fact that the hon. Member for Maidstone and The Weald was appointed, but of course she has now moved to another ministerial position. I hope that this Minister will clarify, when he responds to the debate, just how overall leadership will be achieved in this area.

We say in our report:

“We welcome the production of a set of strategic priorities for women offenders but they need to be given substance”.

In the Government response, we were told that there would be further progress towards meeting the strategic objectives, and that there would be a report to Parliament on that in March this year, so we are getting quite close to that.

We say in our report:

“We do not consider that substantive changes to the…sentencing framework would be helpful…and recommend that emphasis is placed on ensuring a greater consistency of provision to the courts to enable them to sentence from a range of options specifically appropriate to women, including robust alternatives to custody.”

We say:

“We welcome the Sentencing Council’s inclusion of primary child caring responsibilities as a mitigating factor in sentencing guidelines”.

However, more than half the women sentenced to custody still receive short sentences. There appear to be several explanations for that: the absence of adequate and available community provision, the court perhaps not knowing whether there was adequate provision locally, or the court not being confident that the community provision was appropriate or acceptable to wider public opinion by being sufficiently robust. We were concerned that the agenda on that had not progressed sufficiently quickly.

We questioned women offenders and ex-offenders—they came before the Committee—who made it clear to us that they had preferred prison to community sentences. In at least one case, they had committed further offences because prison was easier than a community sentence that challenged them to change their life and also, of course, offered some support to enable them to do so.

Our report says:

“Women’s community projects are central to providing a distinct approach to the treatment of women offenders. They offer a challenging environment for women to serve their sentence as well as a broad range of practical and emotional support”.

Those projects, often delivered through women’s centres, offer a range of services and courses of the kind that Corston recommended: a punishment element; probation; community payback; addressing offending behaviour; anger management; domestic violence; drug awareness; supporting women who have offended, including in relation to housing and issues with children; parenting courses; social services; and a crèche.

A woman who attended Eden House in Bristol said to us in evidence:

“The sort of women coming here, if they went to prison they would only get a couple of weeks, or a six month sentence and serve half. That’s not enough time to make a difference. They just carry on as they did before. But with Eden House, you get structure, a variety of things to do, and the help and support of staff. These are all things you don’t get inside”.

We found evidence such as that very persuasive.

A lot of data have been collected by the National Offender Management Service in the past year about women who have been referred to women’s community services. Those data will be analysed, I think, this summer, and we look forward to seeing the results.

We say in our report:

“We are unconvinced about the extent to which the approach set out in the Government’s strategic priorities for women offenders is…integrated”

across Government and across Departments. We wanted the advisory board to

“map the confusing array of Government initiatives that”,

if brought together,

“have the potential to benefit vulnerable women and girls at risk of offending and specify how these should integrate with the strategy for women offenders.”

We drew attention to the fact that successful women’s centres were ensuring that some women on the periphery of the criminal justice system were being diverted away from crime, to the benefit of the community.

We note the inclusion in the Offender Rehabilitation Bill of the requirement for arrangements for supervision or rehabilitation to identify how they meet the needs of female offenders. The Government say in their response to us that they have produced guidance for new providers on gender-specific services, and that contractual arrangements are in place to ensure that those needs are met. We very much welcome that.

We made recommendations about the custodial estate. We are to conduct a more general inquiry into the prison estate, and we will look further at the provision for women offenders when we do that.

NOMS’ stocktake of women’s community provision was very positive in tone and concluded that

“services for female offenders for 2013-14 have been strengthened and that there will be greater access to gender specific services across the country.”

I am not sure that the picture painted by our witnesses was quite as positive as that. In any case, a stocktake looks at what is there, not at what is missing and still needed. A further analysis may be required to establish an evidence-based approach to the issue.

In general, the Government’s response to our report was thorough and constructive and set out clearly how our concerns could be addressed. The key question remains how real leadership will be provided—across Government, not just in the Ministry of Justice—to maintain momentum and put in place a range of services and interventions that can change the lives of women and girls who offend. Our constituents will benefit if, instead of paying the bills for the punishment of offences committed by women, we greatly reduce the number of those offences and offenders.

I want to talk about older prisoners, because this group is growing in the prison population and seems likely to continue to grow. It was no part of our report to argue that these are not people who should be in prison. It is very obvious, from what we know about the reasons for that growth, that for very many if not all of these people, there are very strong reasons to keep them in custody. I am referring to people with a record of violent offences.

However, older prisoners are and will continue to be a growing group. This population is added to, of course, by prosecutions in relation to historical sex offences. Older prisoners present a real challenge to the Prison Service. Some prisons are making substantial efforts to adapt their facilities to meet the needs of older prisoners, but of course for some prisons that is almost impossible because of the nature of their buildings. They may be multi-storey buildings. There may be a cell in which two beds cannot be put, but there are two prisoners, neither of whom can climb into an upper bunk. Physically, the facilities may not be suitable.

We thought that NOMS needed to ensure that all prisons have a policy that provides age-specific regimes. More prisons should establish day centres and regimes that provide for the needs of older prisoners, without necessarily segregating them entirely. We found problems with older prisoners’ access to health care services. We found, as in other areas of prison life, a large unmet need in relation to mental health and that there should be more consistent awareness training for prison officers about that.

We wanted prison and community health care IT systems to be better connected to minimise disruption. There was one really serious problem, which the Government have tried to address: the lack of provision for essential social care for older prisoners, and confusion about who should be providing it. We had a situation in which it was not clear whether a prisoner with acute social care needs was the responsibility of the authority from which they came, if that could be identified, or the authority in which the prison was located. The Government have dealt with that in clause 75 of the Care Bill, but we still need clarification on what happens to local authorities with a large prison population, because meeting that requirement will place considerable demands on their social work provision. Some places, such as the Isle of Wight, have gone some way to recognising that, but they will have total responsibility in this area under the new legislation.

We want good liaison with local authority social care teams. In the Isle of Wight, we saw that there had been good experiences as a result of placing social workers in prisons. That is not a luxury; serious problems can result from prisoners with serious personal care needs and limitations becoming excessively dependent on either prison officers—who have other responsibilities to carry out—or other prisoners. That is a dangerous situation in a prison.

We also looked at issues that arise when prisoners are terminally ill. We found that perhaps too little discretion had been given to experienced officers over when handcuffs might reasonably be removed from a terminally ill prisoner in a hospital bed, or when a governor, with the Minister’s approval, might grant release to a palliative care unit when no such facility existed in a prison.

We found problems with resettlement. Many long-term prisoners will be released at some point, and by the time they are released, they may have no contact with their home at all. The nature of their offence may have led to a complete break with their family. Where should they be placed if they are not to be at risk of committing further offences? We have asked the Government to do further work on a number of aspects of that problem. It was alarming to find that older prisoners were still being released to no fixed abode, which is neither acceptable nor in the interests of public safety and the community. The growth of the older prisoner population suggests to us that there ought to be a national strategy, but the Government did not accept that recommendation.

The Government response generally engages seriously with each of our recommendations, however. The Government agree that a formal analysis should be undertaken of prison accommodation to assess its suitability, and they have committed to doing that by the end of the year. They have committed to adapt prison regimes, and serious consideration is being given to improving health care. There is an acceptance of minimum social care needs and the care passport system. However, the response does not address the real concern about how local authorities will deal with large numbers of older prisoners for whom they acquire social work responsibility. The statement:

“It will be for each local authority to consider how best to meet need within a prison, and the role that social workers will play”

does not really tell us anything at all. In relation to the use of restraints, the response states:

“NOMS’ escorts policy is currently under review”.

The response on meeting accommodation needs on release does not promise a lot either. The outright rejection of the recommendation to introduce a national strategy on the grounds that it is “not possible to generalise” about the needs of older prisoners ignores the fact that there are common problem factors among most groups of older prisoners, as we saw when we visited several prisons. A strategy that worked its way through the prison system might be of considerable benefit, not only in managing prisoners more effectively but in making the prison system work more effectively. I commend our report to the House, and recommend that for both reports, hon. Members look carefully also at the Government response.

--- Later in debate ---

[Mr Llwyd]

Okay. Our report goes on to state that

“over half (52%) of women sentenced had committed petty offences”—

relatively petty—

“related to theft and the handling of stolen goods, compared with one-third (33%) of men. In addition, over a quarter (26%) of women sentenced to imprisonment had no previous convictions, more than double the figure for men (12%).”

The Select Committee agreed that the majority of women offenders posed very little risk to public safety and that imprisonment was usually an ineffective response. After all, women have a very different experience of custody from men. Unfortunately, in their response to our report, the Government said:

“there should be one justice system for all offenders who commit crimes.”

The Government would do well to recognise that one size does not fit all when it comes to tackling offending.

Since 2008, the gender-specific standards in custody have provided gender-specific programmes, recognising the fact that female offenders’ needs are usually very different from male offenders’ needs. For example, female offenders are more than twice as likely as their male counterparts to suffer from anxiety and depression and are more likely to report having used class A drugs in the four weeks prior to custody. Female offenders are also more likely to have suffered abuse in childhood or in their adult lives.

Our inquiry found that the Government’s gender equality duty had not been implemented robustly enough and was not persuading enough commissioners to provide gender-specific services for women offenders. In their response to the report, the Government conceded that there were problems with the public sector equality duty.

The Government also refer to female offenders in their document, “Transforming Rehabilitation.” I was glad that they amended the Offender Rehabilitation Bill on Tuesday, but, as a member of the Justice Committee and a barrister of some years’ experience, I still have serious concerns about the potential effect of the proposals on provisions for female offenders, or the lack of them in future. I believe it is more likely than not that the private companies that win the contracts for supervising the under-12-month cohort will have little interest in investing time and resources in rehabilitative programmes, but we will wait and see, as no one has a definitive answer on that yet.

[Sir Alan Beith]

The right hon. Gentleman is making an important point. Does he agree that in some of the women’s centres we saw really innovative work by the voluntary sector? If companies and consortia want to succeed in reducing reoffending, they must make good use of the kind of skill and level of care that we saw working to such effect in Liverpool, Birmingham and Belfast.

[Mr Llwyd]

The right hon. Gentleman is absolutely correct. Quite honestly, the work in some of the centres was so good that it was astonishing. I well remember the visit to Liverpool—I have had some contact with the manager since then, as it happens—as well as the experience of Belfast and other places. What is vital, of course, is that whatever the structure for the immediate future, such centres are brought into the core of the delivery of services. They make it possible not to send young women away, to keep them with their family units and to turn them around in the most remarkable way. The problem we have—I probably speak for all members of the Select Committee on this—is that there are so few of them to rely on. Alas, at this stage, some centres are suffering from financial pressure. However, there is no doubt at all that if the new landscape is to work, those centres must be major players in providing such vital services, whether on their own or in concert with others. I agree entirely with what the right hon. Gentleman said.

The Committee drew attention to the perverse incentives that will be given to private companies not to provide appropriate services for women under the new reforms, since such services are not always presented as measures to reduce reoffending but rather as more holistic and costly care. In their response, the Government did not exactly contradict that point. However, they did claim that there would be

“advantages for providers of offering sustained support to all offenders within a cohort…including those with more complex needs.”

Once again, we will have to wait and see how that plays out in practice. I have doubts, but I hope that I am wrong.

One of the principal things that the Committee wanted to point out was that the transforming rehabilitation agenda has clearly been designed with male offenders in mind. Women offenders are possibly an afterthought. We said:

“Funding arrangements for provision for women appear to be being shoehorned into the payment by results programme”.

We also warned of the danger of

“sentencers using short prison sentences as a gateway to support”,

which would completely undermine

“the post-Corston direction of travel”.

Crown Dependencies

Debate between Lord Beith and Elfyn Llwyd

Thursday 16th January 2014 Westminster Hall

[Mr Peter Bone (in the Chair)]

We will now take questions on the statement.

[Mr Elfyn Llwyd (Dwyfor Meirionnydd) (PC)]

Does the right hon. Gentleman agree that two points came across clearly in most of our meetings in the Channel Islands? First, the lines of communication must always be kept completely open between their legislatures and this place in order to streamline legislation. Secondly—I am sure that he is pleased—the Ministry of Justice is now exploring the greater use of letters of entrustment enabling the Crown dependencies to conclude some international agreements themselves.

[Sir Alan Beith]

I very much welcome the help that I had from the right hon. Gentleman in working on this report and the particular perspective that he brought to it. He is entirely right, and he makes a point that I did not have time to make in my statement. Letters of entrustment are one indication in the Government’s response that they are willing to enable the islands to reach international agreements that fit within the framework of their responsibilities. It is a necessary process, because the islands have trading links around the world. Given that so many of the United Kingdom’s trading links are now through the European Union, of which the islands are not members, it is often necessary for new treaties to be put together and agreed, and letters of entrustment are a way to achieve that.

Justice Committee Report: Youth Justice

Debate between Lord Beith and Elfyn Llwyd

Thursday 14th March 2013 Commons Chamber

[Sir Alan Beith]

What a telling statistic the hon. Gentleman has brought out—indeed, he brought it to the attention of the Committee, too. Although we are glad that a new system of assessment, ASSET-plus—assessing semantic skills through everyday themes—has been approved for use by the Government, we think it will take more than that to identify children who are vulnerable to that and a number of other health-related reasons. As for his point about treating looked-after children more as they would be treated in a family, if restorative justice skills are available and can be deployed and if training is provided, that can help to deal with difficult situations without putting looked-after children into the criminal justice system.

[Mr Elfyn Llwyd (Dwyfor Meirionnydd) (PC)]

I, too, commend the right hon. Gentleman for his chairmanship of the Committee. I am pleased with our recommendation that we should have legislation to ensure that the judiciary in criminal courts can refer under-18s to a single family court. That is important, bearing in mind his point about people entering the criminal justice system. Does he agree that we can learn a great deal in this context from the Scottish experience?

[Sir Alan Beith]

The right hon. Gentleman makes an important point. The Scottish system of children’s reporters and children’s panels has been proven over many years. We still have some lessons to learn from it in England and Wales.

Looking more widely at sentencing, we recommend a threshold to enshrine in legislation the principle that only the most serious and prolific young offenders should be placed in custody. We recommend that the custody budget should be devolved to a more local level, so that a local decision can be made about investing in effective alternatives to custody. We want to build confidence in community sentences by giving magistrates and judges more feedback on the outcomes of their sentencing decisions. We also want to take more action to reduce the number of people who breach the terms of their community sentences and address the problem that there is a large number of young black men in custody, far beyond their proportion in the population.

Freedom of Information

Debate between Lord Beith and Elfyn Llwyd

Thursday 24th January 2013 Westminster Hall

[Mr Philip Hollobone (in the Chair)]

Thank you, Sir Alan, for that point of order. The Clerk made us aware of the Division, but I will ensure that your comments are relayed to the appropriate authorities.

[Mr Llwyd]

As I mentioned, the Freedom of Information Act has developed—some might say radically—the extent to which the public are able to engage with the decisions made by public bodies. First, however, they must choose to engage.

Perhaps inevitably, the tendency of the media is to focus on the negative stories coming out of FOI requests; some say, which I believe could be true, that this may have led to a perverse incentive to hide information. The former Cabinet Secretary, Lord Gus O’Donnell, said in his evidence that he had experienced that at first hand:

“I decided to release, since I am not paid by anybody at the minute but I am a Member of the Lords, some hospitality information. I do not think anybody else does that. Surprise, surprise, you get a snidey press story in Private Eye as a result of this.”

The Select Committee, however, was very much of the opinion that the increased and, yes, sometimes unfair criticism of those in public life was a price well worth paying for greater openness.

To what extent has the Act facilitated decision making by public authorities and central Government? Regrettably, many witnesses thought that in trying to avoid the possible embarrassment of disclosure, fewer bodies were inclined to keep detailed records of meetings or to keep a log of policy information. Martin Rosenbaum, representing BBC News, argued that any change in culture brought about by the Freedom of Information Act had been inconsistent, and that the Act has done relatively little to advance transparency on account of the cumbersome nature of the FOI process. He said that

“the Act now enables us to obtain on a very crude level…facts and figures—how much was spent on this, statistics about the performance of public services and so on. The sorts of things that were harder to get previously now tend to be very easy to get, but what it has not produced, and the civil service is certainly very resistant to this, is internal discussion documents, policy discussion, minutes of meetings and so on.”

Witnesses spoke about the “chilling effect”, to which the right hon. Member for Berwick-upon-Tweed referred, that has led to civil servants being less candid in their advice to Ministers, fewer external organisations being willing to submit information to the Government and fewer meetings being held with formal minutes taken—greatly damaging the official record. As Lord O’Donnell pointed out, that “chilling effect” not only impacts on the engagement of our own generation with decision making, but will make it increasingly difficult for future historians, too, to get an accurate picture of how decisions were made, as so little evidence will remain.

Other witnesses pointed out that that unintended consequence of the Act has the potential to weaken Cabinet collective responsibility, since many key decisions will not be made in Cabinet, where formal minutes are taken, but in safe places, be it on mobile phones or behind closed doors. On the other hand, it is imperative to draw attention to the fact that the Act contains safeguards against that problem—namely, exemptions to the right of access to information in exceptional circumstances, as well as other ministerial vetoes for when information is deemed too sensitive to release.

[Sir Alan Beith]

It is worth noting that there is, or should be, a countervailing pressure in the mind of any civil servant who might be tempted not to record a reservation that he or she had about a decision or counter-argument. Frankly, if I were a civil servant and thought that the record would not reveal that I had warned the Minister that a policy was fraught with danger, my response would be that that must be minuted so that it could be seen that I had warned that that could happen.

[Mr Llwyd]

The right hon. Gentleman is absolutely right. Not only is that based on sound common sense, I am sure that it often happens in practice. There is a counter-argument, as he rightly says.

The Committee did not conclude that such a chilling effect had come about as a result of the Act. The constitution unit has published research on the subject and suggested that its impact was insignificant, thus agreeing with the right hon. Gentleman. Although the Committee decided against recommending any major change to the Act, we were mindful that Parliament is expected to pass legislation recognising the need for a safe place for high-level policy formation. It is difficult to determine when that space will be needed because, by its very nature, the evidence for when private discussions are used is patchy. Certainly, this right must not be exploited needlessly.

It has become increasingly common for minutes of private meetings and even text messages between Ministers and representatives of external organisations to be seized and published by inquiries into Government decision making. Both the Chilcot and Leveson inquiries were examples of that, and it would be highly regrettable if it led to fewer records being kept. Yet however private or embarrassing evidence may be, it is inexcusable for people to attempt to destroy or alter data to prevent their disclosure. That is why the Committee recommended extending the time limit on charging someone with this offence under section 77 of the Act. The Information Commissioner’s Office has seen evidence of such offences, but because of the inherent difficulties of charging someone within six months of the offence being committed, no one has yet been prosecuted. The Committee has further recommended that a higher fine should be available to the Crown court to reflect the gravity of the crime.

Of equal cause for concern, however, is the inadvertent destruction of records as a result of new methods of storing information. The right hon. Member for Blackburn (Mr Straw) acknowledged that when the FOI Act was drafted, the Government

“had no serious conception about the internet, which was in its infancy.”

Lord Hennessy of Nympsfield also commented on the associated changes to archive-keeping. He said:

“If you look at the archives that were created before there was even a 50-year rule, in 1958, they are very full. The 30-year rule is still very full indeed. I do fear that historians”

in future

“are going to have a much tougher time for two reasons. One is”

freedom of information,

“but there is also the digital revolution. It ceases to be a paper culture.”

One is put in mind of the BBC domesday project in the 1980s, when children conducted a survey of the UK to mark the 900th anniversary of the Domesday Book. The findings were stored on laserdiscs, which became obsolete within a few years. Although the material was saved after a laborious and costly process, the UK Data Archive faced heavy criticism for failing to preserve the material in an enduring format ab initio. The irony, of course, is that the original Domesday Book is still readable.

The Freedom of Information regime must be viewed in the wider context of information storage and retention. The internet is an exciting place in many respects. It is a vital educational tool, but it is also fast evolving. According to the National Archives, digital records deteriorate faster than paper records. The preservation of records is important for the accountability of officials, not just today, but for posterity. Indeed, many people—I am one —believe that one can educate oneself about the future from an understanding of the past. That is important.

On the whole, the evidence gleaned by the Committee was that the Act is operating fairly well. The costs associated with its administration are greatly outweighed, although not always, by the transparency and better accountability of those who make decisions that affect the public’s daily life. Freedom of information requests may lead indirectly to a reduction of costs because public authorities are now fully aware of the risk of exposure if they misuse funds. Although the Act has succeeded in its primary aim of increasing transparency and accountability, it is less clear whether it has facilitated decision making, and it has not gone far down the road of creating greater confidence in those of us who serve in public office.

In the light of the media’s tendency to sensationalise bad news, it was perhaps unrealistic ever to expect that the Act would contribute to greater public confidence in those in power. Individuals certainly have the tools to engage with decision making as a result of the Act, but those who choose to participate are usually those who have a professional stake in the outcome. The FOI regime offered enhanced democracy, but in the years since it was drafted, the parameters of public debate have shifted greatly, and internet search engines disclose information that the Government would rather keep hidden. The onus must be on Parliament and ourselves as individuals within it to face this brave new world and the challenges that technology inevitably presents.

Family Courts

Debate between Lord Beith and Elfyn Llwyd

Thursday 24th May 2012 Westminster Hall

[Sir Alan Beith (Berwick-upon-Tweed) (LD)]

It is a pleasure to serve under your chairmanship, Mrs Osborne.

Few though we are in number today—it is the last day of term and there is a debate under way in the main Chamber at the same time—we are here to consider the report that the Select Committee on Justice published in June 2011, and to hear an update from the Minister, who I am glad to see in his place. The Committee’s report, “Operation of the Family Courts”, followed the publication of the family justice review’s interim report that rejected the introduction of a shared parenting presumption; proposed a legislative statement reinforcing the importance of the child having a meaningful relationship with both parents; recommended a new statutory time limit of six months in care and supervision cases; and proposed a fundamental restructuring of the family court system through the creation of a family justice service.

The Justice Committee broadly welcomed the review’s approach, although we remained neutral on the creation of a family justice service, because at that stage the evidence of how it would be constructed was limited. The Norgrove review final report was published in November 2011, and the Government’s response to it was published in February 2012. All three—the Norgrove review, the Justice Committee and the Government—considered a number of main themes: the underpinning principles, including shared parenting if it is a relevant concept; the use and promotion of mediation; the Children and Family Court Advisory and Support Service; the family court system; the use of expert witnesses; and media access to family court hearings. I will deal with them in that order.

This is a timely debate, because on 9 May, the Government announced their intention to introduce a children and families Bill in early 2013. There will be an opportunity for the Committee to undertake pre-legislative scrutiny of draft clauses before the formal introduction of the Bill. If the state in the form of the judiciary— the court system—is going to intervene in family relationships, or if the state in the form of the protection authorities is going to do so, it must promote and protect children’s safety and well-being. The family justice system considers cases ranging from the separation of a couple where the unresolved issues may be financial, to public law cases that may involve physical, sexual or emotional child abuse. In the most serious cases, a child’s life may be at risk, as we know from some chilling cases in the past few years.

In March 2010, there were 46,709 children on the child protection register because they were thought to be at risk of abuse or neglect. Private law actions deal with the consequences of relationship breakdown. Public law actions are brought by local authorities for child protection purposes. Both types of case can involve highly contested views and a great deal of emotion that is difficult to channel in the courtroom and which often makes the judicial procedures seem remote from, or inappropriate to, the circumstances being dealt with. The Ministry’s judicial and court statistics tell us that in 2009 there were 163,000 court cases involving children, of which 137,000—I am rounding the figures—were private law cases and approximately 26,000 were public law cases. We received evidence about both kinds of case.

Throughout our inquiry, the Committee found it difficult to form a clear picture of trends and changes in the family justice system because of flaws in the compilation of data. We recommended the creation of a robust evidence base for the formation and scrutiny of policy. The Committee is concerned that major changes to the system are being undertaken when there have been such gaps in the evidence base. I know that Ministers and the permanent secretary—we congratulate him on his forthcoming appointment as head of the European Bank for Reconstruction and Development—have sought to improve the quality of financial and outcome data in the Ministry of Justice. This is a major issue in the Ministry of Justice and it is being addressed, but we felt that in this area, as in others, the evidence base was not there for some of the conclusions that were being drawn. We asked the Government to report back to us, which they did to some extent in their response to the Norgrove review. Indeed, they commissioned work from one of our special advisers, Professor Judith Masson. However, this issue needs to be watched carefully and we will do so.

On the underpinning principles, the Children Act 1989 introduced three principles: the child’s welfare shall be the court’s paramount consideration; parents share not rights, but responsibilities; and in any proceedings in which any question with respect to the upbringing of a child arises, the court shall have regard to the general principle that any delay in determining the question is likely to prejudice the welfare of the child. The evidence before the Committee showed that courts rarely deny contact between child and parent. The majority of applications resulting in no contact are applications that have been abandoned by the applicant parent. This is an emotive issue that has led to some intensive campaigning—some of which has been proper; some rather less commendable in its methods—on important issues.

[Mr Elfyn Llwyd (Dwyfor Meirionnydd) (PC)]

I congratulate the right hon. Gentleman on the contents of the report. As a member of the Justice Committee, I am aware of his wise counsel to all of us in the preparation of the report. Does he share my concern that the concept of shared parenting is gaining traction in government, particularly as we have seen international comparators—Australia is one such country—where it had been tried and failed abjectly? Its adoption would surely undermine the paramountcy principle to which the right hon. Gentleman referred.

--- Later in debate ---

[Sir Alan Beith]

The right hon. Gentleman, who is an extremely valued member of the Justice Committee, anticipates what I am going to say. He is right to say that we looked at evidence from Australia and were very concerned by what it showed. To us it seemed obvious that a court would realise, without having to be told, that it is in the interest of the child, as far as possible, to maintain a relationship with both parents. Once some kind of shared parenting provision is embodied, we are moving away from the principle that the court starts with—that the welfare of the child is of paramount consideration. Paramountcy does not sit easily with additional presumptions or additional qualifications, and the Australian experience underlined that. Our report states:

“The Panel itself admits that such a statement is not intended to change the law but believes it could ‘guide’ parents who are splitting up. In our view it is obvious to the court that a child deserves a loving, caring relationship with both his or her mother and father. A statement which might be taken to qualify the principle that the best interests of the child must prevail could give the impression of a change in the law and could cause confusion.”

We referred to the evidence from Australia that

“the ‘shared parenting’ approach had not only confused parties about how the “best interests of the child” test should operate, but can encourage a more litigious approach by parents in private law cases. This is in direct opposition to the greater emphasis on mediation and out-of-court agreement…which both the Government and the Family Justice Panel are pursuing.”

The shared parenting presumption would be a dangerous road to go down. It would be a legal requirement for the courts to consider making orders for children to spend equal or substantial and significant time with each parent, unless that is not in the child’s best interests or reasonably practicable. Doing that would further extend the present profoundly unsatisfactory situation in which a court tries to decide whether a child should be with one or other parent on the Friday night, or whether the child is free to make their own choice to go to scouts or guides, or to a youth group in a different town from the one they are being told to go to. That would become much worse if the shared parenting principle were applied.

The alternative gaining some traction in government, as the right hon. Member for Dwyfor Meirionnydd (Mr Llwyd) said—it varies depending on which bit of Government you inquire of: that is not a statement about parties; it is a statement about individuals—is a legislative statement enshrined in legislation, reinforcing the importance of the child having a meaningful relationship with both parents, alongside the need to protect the child from harm. However, that undermines the paramountcy of the interests of the child.

When we considered the Australian experience in more detail, we found that it was mirrored by some evidence from home, which showed that the England and Wales court system does not always ensure that judges have relevant evidence in front of them relating to safety fears and violence towards a child or partner, or even relating to proceedings in another court, such as non-molestation orders or criminal proceedings, and that judges may not give appropriate weight to such evidence. Research shows that high levels of domestic violence exist in private law cases that reach court, and it is in such cases that the legislative statement is likely to have an impact.

In Australia, the presumption caused confusion and was misunderstood as mandating or entitling parents to shared care—it did not do that, but it was misunderstood as doing so by quite a lot of people—and caused concern that the child’s interests were not considered to the extent that they should be and were not paramount. In some cases, the presumption seemed to lead to parents being less willing to negotiate and resolve arguments over child contact outside the court.

We concluded that the child’s well-being must be the paramount aim and objective of the family courts and the “best interests of the child” test should remain the sole test. The Norgrove review came to the same conclusions. Because different people interpret shared parenting differently, legislating for it gives the impression of parental rights to a particular amount of time with a child and takes away the focus from the child’s well-being—the child’s rights.

We disagreed with the proposal for the legislative statement in the Norgrove review’s interim report, but paragraph 61 of the Government response says that there

“should be a legislative statement of the importance of children having an ongoing relationship with both their parents…where that is safe, and in the child’s best interests.”

The Government state that they are

“mindful of the lessons which must be learnt from the Australian experience”

and their stated aim is that the

“presumption of shared parenting will…enhance the prospect of an agreement between parents”.

The Government stated that the legislative statement will not disturb the “best interests of the child” test. It is unclear to the Committee how this can be achieved. I remain concerned that the introduction of a statement will lead to confusion and would take greater prominence than the current best interests tests.

We share the Government’s concern about early intervention, which is another important issue, not only in relation to our specific work on family justice, but much more generally, because the circumstances in which children and young people become involved in offending behaviour can develop as a result of many public and private law cases, so there is massive public interest in trying to ensure that the right advice gets to the right people at the right time.

We mentioned the signposting of advice and contact opportunities and said:

“There is no point in referring parents to services which have no capacity to cope with additional demand. However, we know that resources are scarce and that it is unrealistic to make demands for widespread increased Government spending in the current climate.”

We noted the Government’s ideas about the big society bank, or Big Society Capital as it is now called, as

“a potential source of capital for charities”

and called on them

“to confirm that such bodies which provide early intervention for families which need assistance would…be eligible for such capital”.

That related to a previous Committee report on justice reinvestment, which made the case for more funding to be spent on early intervention, with eventual consequential reductions in expensive prison places. We cannot go on as a society pouring money into an ever-expanding prison system. We would be much more likely to reduce crime if we used some of those resources at the stages that we are talking about here, when family breakdown takes place. I think the Government agree with us in principle and I should like to hear that they are making progress.

Courts are unsuited to resolving the kinds of highly emotive disputes that can arise in family cases and there are circumstances in which the authority of the court to resolve the dispute is rarely recognised by both parties. Such cases are charged with emotion and mistrust. Mediation is a better route to follow in a large proportion of cases. There is clear evidence that mediation can be effective, with a high proportion of parties reaching agreement or narrowing the issues in dispute. There will always be a hard core of cases where mediation is not appropriate and provision must be maintained for these.

I welcome the Norgrove review recommendation that mediators should meet the current requirements set by the Legal Services Commission. However, in the mediation process it is vital that the Government should ensure that the voice of the child is heard. The child is not a commodity to be negotiated over, as in a property case, but the person to whom the proceedings are most important. We look to the Government to ensure that mediators understand that and exercise that responsibility.

There is a history to our consideration of CAFCASS. The severe but necessary criticisms of CAFCASS by our predecessor Committee, as long ago as 2003, led to the resignation or removal of the entire board. In our recent report, we called on the family justice review to address directly the future structure of CAFCASS. I welcome the recommendation that CAFCASS be made part of the proposed new family justice service. We said that that would be a first step, but only a first step; in itself, it will not be enough:

“It needs to be the first step in a series of reforms designed to transform Cafcass into a less process-driven, more child-focused, and integral part of the family justice system.”

We recognise that CAFCASS operates within a cash-limited system, but it has to be able to deliver a timely, consistent service to all children—regardless of changes in the volume of cases, over which it does not have control. We welcomed CAFCASS’s recent progress in reducing the number of unallocated cases. We shared the Public Accounts Committee’s concerns about CAFCASS’s ability to sustain its progress when there was no sign of a future fall in the number of care applications. We were concerned to ensure that CAFCASS became refocused on the best interests of the child. There needs to be a safe minimum level of service during this period of difficulty when there is an increased number of cases.

We were concerned about the amount of time that CAFCASS officers spend with children, which we felt was too low—unacceptably low—in the longer term. CAFCASS officers agree with us; they want to spend more time with children, and this should be facilitated. That is consistent with what the Government are trying to do about giving police officers and other professional public servants time to do the job.

The Government intend to transfer the sponsorship of CAFCASS from the Department for Education to the Ministry of Justice. That has been out of our terms of reference for a while; when our predecessor Committee reported on it, it was a Lord Chancellor’s Department function, then it went off to the Department for Children, Schools and Families. The Government now propose to return it, which is logical, because CAFCASS’s work is close to the courts and it ought to be an integral part of the family justice system, with a strong voice within that system to champion children in the courts. However, I am afraid that the history of CAFCASS is one of inadequacy. It must continue to improve and be seen to improve by participants.

I turn now to delays in case management in the family court system. Delay, to a child, has massive consequences. Two parties to a commercial dispute may be inconvenienced by delay, but a child whose case waits for months or years is losing crucial years of contact, bonding and personal development—all the things that we take for granted, but which are completely disrupted by delay.

Delay is endemic and rising. The average case took 53 weeks in 2010, although the Children Act target is 12 weeks. The Norgrove review suggests that the average case took 60 weeks. Witnesses suggested to the Committee various causes of delay, including fixed and limited resources—not just financial resources, but sitting days available to use courts for family court business, for example, as Mr Justice Ryder mentioned—the slow speed of CAFCASS reports, which the National Society for the Prevention of Cruelty to Children told us about, along with insufficient numbers of experts of sufficient quality. I shall return to the issue of experts.

Other causes of delay were variations in the quality of case management by the judiciary, to which Sir Nicholas Wall referred, and a lack of trust between social workers, the judiciary, CAFCASS and the parties, leading to repeated adjournments to seek further evidence, to which the Public Accounts Committee referred in its report. Barnardo’s, commenting on public law cases, told us that the impact of delay on children’s ability to form relationships was harmful and long-term:

“Two months of delay in making decisions in the best interest of a child equates to one per cent of childhood that cannot be restored”.

The potential outcome of cases can be prejudiced. The opportunity to have an outcome that is in the best interests of the child is often lost by delay. By the end of the process, options that might have been available are no longer available, and are thought by the courts to be no longer available, perhaps because of the time that has elapsed since the child has had contact with one of the partners. That is a profoundly unsatisfactory state of affairs. The Norgrove review recommended the introduction of a statutory six-month time limit for the completion of care cases, which I understand the Government support. I welcome the intention, but will it happen? Is it enforceable? I would like to hear the Government’s thinking.

A related topic is judicial continuity—the same judge. Having the same judge manage and hear a case not only allows for effective case management and efficient use of judicial time, but is an important signal to parties, above all to the children, that their case is being treated with the respect that they deserve; they can establish more clearly who the authority figure in the situation is. We welcome the president of the family division’s recognition of the issue and his willingness to reconsider how things are often dealt with at the moment.

On litigants in person, the Ministry of Justice told us that the number of unrepresented litigants in the family courts was “significant” but it did not know how many—to go back to the issue of data, which I mentioned earlier. During the course of our inquiry, the Government consulted on and legislated on legal aid for family law cases, ending it except for those involving domestic violence—in certain limited categories—or if mediation was to be facilitated. The Ministry estimated that at least 210,000 cases would no longer be eligible for legal aid, such as cases in which the presence of legal aid on one side created an inequality between the parties, and they may include cases that do not involve children.

The Government believe that the removal of legal aid will force more litigants into alternative dispute resolution, which some people will no doubt use—I certainly hope so—but it is inevitable that the number of litigants in person will increase. It is self-evident that many parents are unlikely to give up applications for contact, residence or maintenance simply because they have no access to public funding.

[Mr Llwyd]

The point touched on by the right hon. Gentleman was reinforced by Sir Nicholas Wall, the president of the family division, who said that parents were not likely to pack up simply because they do not have legal aid. I did a full residence and contact case two years ago in which, at the last minute, the applicant sacked his solicitors and appeared in person. The hearing was down for three days but lasted seven. That, I am afraid, is a typical story and any reform of the family courts not predicated on that very fact will be utterly unworkable.

Finally, I apologise to the right hon. Gentleman, to you, Mrs Osborne, and to both Front Benchers that I shall not be present at the conclusion of the debate, because I must leave shortly. I am pleased to have made a brief contribution.

[Sir Alan Beith]

The right hon. Gentleman has already told me about the event he has this evening, which I understand that he must attend, so I fully accept his apology. He brings considerable court experience to our proceedings, as is evident from his interventions. He is right that in some cases the litigant in person is difficult and does not fit easily with courts. The very fact that that was someone who had legal advice and then sacked the legal advisers illustrates the kind of problems with litigants in person often seen by the courts.

I fully recognise the difficulty, but we must ask to what extent the ordinary taxpayer, going about his or her life in an economical and sensible way, should fund the legal proceedings of those who choose to do battle in the courts over separation, divorce and financial settlement. The state must get involved if the interests of the children require it—that is part of what I am saying—but neither I nor, I think, the Committee as a whole believe that we can write a blank cheque for a system of legal representation that is not in practice the best way to resolve a large number of the cases. Legal aid is necessary in some difficult cases, but I look on the situation as a non-lawyer and I see a lot of money being spent to hire two people to argue for a long time over the affairs of a child who seems distant and removed from the proceedings.

The right hon. Gentleman is right that non-lawyers accessing the family courts can find the process confusing, frustrating and baffling, and we welcome the Government review of the available support system. The courts will need to become more attuned to dealing with parties representing themselves and to develop clearer procedures and guidance. A heavy responsibility rests on the court system—not only the family courts—to facilitate that.

I turn to the use of expert witnesses. A fairly commonly held view is that many cases have too many expert reports. We noted the Minister’s comments that greater use could be made of non-expert witnesses, such as foster carers—although they have a distinct role and can provide valuable information—but in some cases there is a genuine need for expertise.

The Norgrove review recommended that expert evidence should be used only when that information was not available and could not properly be made available from the parties already involved. The review also recommended making judges responsible for instructing expert witnesses, rather than legal advisers, in order to control the scope of questions and, further, that agreed quality standards for experts in the family courts should be developed, with criteria including adherence to set time scales, membership of appropriate professional bodies and completion of specified court-focused training, peer review and continuing professional development. I understand that the Government agree with those recommendations, and so do I; perhaps the Minister can confirm how the Government will proceed.

On the access of the media to family court hearings, the witnesses who appeared before our Committee were unanimous in opposing implementation of the scheme legislated for in part 2 of the Children, Schools and Families Act 2010. There are clearly dangers to justice and to the perception of justice when courts operate in secret. The aim of ensuring that secrecy does not cause injustice or the perception of injustice to children is important, but the Act was not well thought through and went through Parliament in some haste, so there was a failure to take account of the views of children. I speak as someone who wanted more openness in the family courts.

Research shows that a clear majority of children are opposed to any details of their case being reported. Children fear being identified and bullied, and consider the details of their families and the ordeals that they have undergone to be private. Children must not be inhibited from giving vital information to family justice professionals for fear of being reported by the media. I therefore support the decision not to proceed with that piece of legislation, but that does not preclude anonymous judgments and must not be allowed to conceal from wider scrutiny the principles on which decisions are taken in the family courts or to cover up systemic failures on the part of public authorities. I welcome the Government’s acknowledgment that the current legislation is flawed, but the Ministry of Justice must try again.

Those are some of the issues brought out in our report, which are important as we proceed with the reform of the family courts, consistent with the Secretary of State’s broad objectives to make the courts serve their customers properly. Our recommendations need to be dealt with in order to have a family court system that serves the most important customer best.

The most important customer of the family court system is the child, who is either the subject of public law proceedings and may be taken away from their family—perhaps for a good reason, perhaps for a less compelling reason—or is in a family that is breaking up. The child’s complex interests and development may be profoundly affected and set back by wrong decisions and by slow and delaying processes in which they are not heard. Those are difficult challenges, but we must get them right—not only because we owe that to children, but because the future health of our society depends on getting them right.

Cutting Crime (Justice Reinvestment)

Debate between Lord Beith and Elfyn Llwyd

Thursday 21st October 2010 Westminster Hall

[Sir Alan Beith]

I am giving the right hon. Gentleman a prompt, but I am sure that he does not need it.

Short-sentenced prisoners frequently end up in custody after repeated community sentences. There is a need to examine why community sentences are breached and why some offenders continue to offend. We concluded that that was partly because the sentences are under-resourced. There are waiting lists for offender behaviour programmes and assessments for mental health and treatment. Probation officers typically have extremely large case loads, and often we are talking about people with completely disorganised lives who just do not get up in the morning. What they need is not a very short prison sentence but someone to bang on the door and get them out doing the community programme that they are supposed to be carrying out. They need someone to exercise some authority.

In the course of the inquiry on probation, we have spoken to ex-offenders, and what they said was very illuminating. They made it clear that they needed probation officers to challenge them, not simply to offer friendship and a cup of coffee, however desirable it is to establish a relationship. They needed probation officers to challenge them because, as they openly admitted, their behaviour needed challenging. Their unwillingness to do some of the things that they needed to do to turn their lives around needed someone with authority to challenge it.

[Mr Elfyn Llwyd (Dwyfor Meirionnydd) (PC)]

The right hon. Gentleman will recall that a fortnight or three weeks ago, we visited the Lambeth project—the so-called Sapphire project. In that project, if a person did not turn up for the unpaid work part of the probation order, he was visited by a police officer to get him out of bed. That is not a bad idea, in the circumstances.

[Sir Alan Beith]

The hon. Gentleman is absolutely right to focus on what we saw in practice. The Committee has tried to make it its business to get out and look at what happens in practice and what works. I commend the reports of our public evidence sessions and our future report on probation, which I hope will be as valuable in its own way as I think the report is that we are considering today.

Of course, we know what happens in the United States. When the federal Government want to do things, they offer money to states to do them. They do not have the power to make them, so they offer them money. They can use the grants system under the Criminal Justice Reinvestment Act 2009 to support or persuade state and local governments to analyse criminal justice trends to find out what is driving the growth in their local jail and prison populations; to develop tailored policy options to reduce corrections expenditure and increase the effectiveness of current programmes to make communities safer; and to measure the impact of those changes and develop accountability measures.

We found evidence of the potential for geographically targeted local initiatives to reduce expenditure if such partnerships and the agencies that make them up, including probation trusts, are free to use resources more flexibly. That is in line with the Government’s emphasis on localism and the withdrawal of ring-fencing from local government. The first reaction of some people involved in the services is horror that a ring-fenced grant might now be used by the local authority for some purpose other than that for which it was originally introduced, but unless we give agencies, including local government, some freedom to move money around between different projects, innovative policies will not be developed. In this area, if agencies can work together and move money around a bit to where it is most effectively used, we can make progress.

We talked about needing to get in early. The Government made announcements yesterday in relation to school funding and pre-school education for disadvantaged children. That is a crucial area. Not just the criminal justice system but many other parts of our system are crucial in determining whether some youngsters get involved in crime. Giving youngsters a better start is a key way of reducing the likelihood of their being drawn into criminality. The concept of justice reinvestment includes the concept of early intervention. The child who has to be excluded from school has stepped on to the escalator that can lead to repeat offending and regular imprisonment in the future, so such initiatives are very relevant to justice reinvestment.

However, there is a risk that the financial climate will threaten existing initiatives that are proving promising. There is the Diamond initiative. I am trying to remember whether Sapphire and Diamond are the same scheme or two different ones, but obviously jewels are thought a good way of illustrating the fact that these are very valuable initiatives.

[Mr Llwyd]

I am advised that it is actually the Diamond initiative.

[Sir Alan Beith]

So we are talking about the same one. The Diamond initiative is delivered jointly by the Metropolitan police, local authorities and the London Probation Trust. Built on the principle of justice reinvestment, it has reoffending rates of 28% within six months of release from custody. That compares favourably with the 43% figure for those who have not received that intensive support and monitoring.

However, under the previous Government, there was a decline in crime reduction funding through local area agreements to local community safety partnerships. Those intensive options require partnership commitment and resources, which may be less readily available following yesterday’s comprehensive spending review. I am anxious to hear what the Minister can say by way of reassurance on that. Until the Green Paper is published, it is unclear how the new Government will enable those partnerships to fulfil their statutory responsibility to reduce reoffending under the Policing and Crime Act 2009.

We proposed that if the Government could identify moneys that could be used to create a national justice reinvestment fund, there would be an incentive for local partnerships to think creatively about ways of reducing crime and the use of imprisonment, pooling resources at local level and spending money in geographically targeted areas using the results of justice mapping. That technique, which was pioneered in the US and has been tried out quite a lot in Gateshead, for example, measures local needs and the existing flow of resources to particular communities.

The Government’s aspiration to introduce payment by results draws on the experience of Kansas in implementing justice reinvestment approaches. It is not clear whether the Government will go about it in the same way, but some of the options that the Committee has been suggesting could be accommodated in the sort of programme that the Government are talking about. The national investment fund could be part of the big society bank, for example.

If the Government are to place greater emphasis on evidence-based, targeted approaches, determined at local level, means need to be found to provide practical support to local areas in analysing trends, devising new policies and programmes and measuring their impact. A cross-disciplinary centre of excellence, like the Social Care Institute for Excellence, could provide robust economic modelling of what is effective in reducing crime and inform the development of a national justice reinvestment plan. I hope that the Government consider that cross-departmental approach.

All of this has implications for sentences. There remains a great deal of geographical disparity in the consistency of sentencing, to which the Lord Chancellor drew attention in his King’s college speech. Youth courts in some parts of the country are up to 10 times more likely to impose custodial sentences for certain crimes than their counterparts elsewhere. That cannot be explained by social and demographic factors alone.

It is often said by the judiciary that the sentencing of individual offenders should not be driven by the availability or otherwise of resources. In practice, of course, it is, but that is usually because of the scarcity of suitable alternatives to custody in a given area. Prison is always there; alternatives are not always there. It is nevertheless necessary to find a way in which recognition of scarce resources is built into the sentencing process.

We are concerned that sentencing policy, and the Sentencing Council, does not address the need for sentencers to have regard to the available resources and the relative costs of their sentencing decisions. There are few other public servants who are not required to be accountable to the taxpayer in relation to the value delivered for the money that they spend. In order to have such regard, however, sentencers need data on the cost-effectiveness of their decisions and on the outcome of sentences. We have been surprised at how little information comes back to the judiciary about the overall impact of the sentences that they pass.

I spoke earlier about the media and about the public debate on sentencing. The public rightly see prison as a necessary means of dealing with extremely dangerous people who would be a threat to public safety were they not in custody but, in many cases, public safety is not the major issue. A custodial sentence and its length seem to have become the only means that the public and the media feel they have of asserting the seriousness of the offence. That is why we see so many headlines in the press saying, “Yobs only got six months,” or “Con man got less than a motoring offender.” The relative significance of crimes is measured by the sentence length. When the community or victims want to assert that they will not tolerate a crime, they look for a way of expressing that abhorrence, and a longer custodial sentence seems to serve that purpose, even if it is of little or no use in ensuring that the offender does not commit further crimes.

For offenders who do not need to be in custody, we need strong community sentences to be recognised as a punishment—not as a soft option. For some offenders they already are, but there is a media obsession with custody that is not justified by custody’s record in reducing reoffending. We are in a new situation, and there is a real chance to change things in a way that could reduce reoffending and make people safer from crime, at less cost.

In conclusion, we need to know three key things from the Minister. First, are Ministers ready to continue what the Lord Chancellor has started, by openly taking on the “prison works” argument and demonstrating that for many offenders custody is too costly and too ineffective to contribute as much to public safety as well-planned alternatives can? Secondly, how will a shift from the use of custody in appropriate cases be achieved, given that changes in sentencing principles will not work unless alternatives are widely available and the judges and the public are confident in them? Finally, and most important, how will Ministers prevent cuts in the Ministry of Justice budget from putting a roadblock in the way of the reforms that the Committee has advocated and to which the Government are now committed? What will be the impact of yesterday’s announcements on the ability of Ministers to deliver the policy shift that they have signalled? I hope that the Committee, in its work, has provided an underpinning of substance and intellectual coherence for what I see as a radical policy shift of real potential value to the safety of the people of this country. I am very interested to know whether the Government will be able to continue that initiative.