Probation Service: Chief Inspector’s Reviews into Serious Further Offences
Lord Bellamy Excerpts(1 year, 8 months ago)
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Lord Marks of Henley-on-Thames (LD)
My Lords, these two appalling cases have shocked and horrified us all. Our deepest sympathies go out to the families of the innocent victims. These reviews record a catalogue of mistakes, miscalculations and failures to act. In view of the Lord Speaker’s ruling, I shall not go into the detail of McSweeney’s case.
In Bendall’s case, against a background of domestic abuse dating back to 2016 and a clear risk of sexual abuse of girls dating back to March 2020, he was assessed in a pre-sentence report in June 2021 as a medium risk of serious harm to the public and, incredibly, as a low risk of harm to partners and children. The so-called fast delivery pre-sentence report was described in the review of his case as “inappropriate”—an understatement, I suggest. As a result, for an offence of arson Bendall was given a suspended sentence order with an electronically monitored curfew requirement that he reside with Terri Harris and her children. The probation service had made no contact with Ms Harris before Bendall’s sentencing and no assessment of the risk to her and her children. In September 2021, he murdered Ms Harris, who was pregnant, her two children and an 11 year-old friend of theirs, raping one of the children.
We can date the parlous state of the probation service to its disastrous privatisation in 2014 and the inevitably challenging attempt to reverse the damage in 2021. However, it is still plagued by a lack of resources and dismally low morale. Of course, we welcome the extra £5.5 million per year for more staff to access domestic abuse and child safeguarding information, but why is it so late? How will the Government ensure that this new investment addresses poor information sharing and the lack of consideration for the welfare of children?
The extra £155 million per year for more probation staff will help, particularly if it really does yield a net extra 4,000 probation officers over three years. However, Andy Slaughter MP pointed out in the House of Commons that more than 50% of probation officer posts in London are vacant. Does the Minister agree that filling the vacancies with suitable candidates is a huge challenge? Retention of experienced officers is also vital; as is high-quality training and building confidence that officers are fully informed and that their decisions are not impossibly pressured. In the other place, Sir Robert Neill, the chair of the Justice Committee, pointed out that these issues had all been highlighted by his committee in April 2021. Will the Minister explain how the Government now plan to tackle all these extremely difficult issues?
The Parliamentary Under-Secretary of State, Ministry of Justice (Lord Bellamy) (Con)
My Lords, I am sure the whole House will join me in expressing once again our deep condolences and sorrow to the victims in these two cases. I will not, if your Lordships permit, go into details which have already been set out in the House of Commons and have been mentioned today. However, I repeat unreservedly on behalf of the Government the profound apology for serious failings in probation supervision in these two cases already made by my right honourable friend Damian Hinds MP, Minister for Prisons and Probation, in the House of Commons on Tuesday 24 January. The chief probation officer has also made that apology to the families concerned.
As the noble Lords, Lord Ponsonby and Lord Marks, have already said, the primary duty of the Government now is to do all we can to address these failings and ensure, as far as possible, that this kind of thing can never happen again. As the Chief Inspector of Probation found in his highly critical reports, the central problem in both these cases was that the level of risk was not assessed properly. Both criminals concerned were assessed as medium risk when they should have been assessed as high risk in light of their long and often dangerous criminal histories. However, the questions we have to address, which have rightly been raised, are: what are the Government doing about it and how we can move forward from here?
First, at a very high level, the probation service has been reunified with a view to raising standards. The noble Lord, Lord Ponsonby, mentioned the history of this matter and mention has also been made of the privatisation of the service. The Government believed it right to bring that arrangement to an end, and are currently engaged in restoring, reinforcing and improving the service.
The Government recognise that the probation service needs more staff, and an additional £155 million has been invested in that endeavour. This has led to an increase of 2,500 trainee probation officers over the last two years, and a further 1,500 officers are to be recruited by the end of March 2023. I am advised that that is on track.
More specifically, in relation to the circumstances of these specific cases, the Chief Inspector of Probation has produced two detailed reports which in turn have engendered two action plans by HMPPS published on 17 and 24 January respectively.
In the case of Bendall, the report made 17 recommendations, all of which have been accepted, and most have already been actioned. I will briefly run through the steps that have been taken so that we can understand what is in progress.
First, domestic abuse inquiries must be routinely carried out in all cases where an electronically monitored curfew is being considered, with a detailed assessment of any risk of harm.
Lord Ponsonby of Shulbrede (Lab)
Will the Minister give way on that point? He said that there would be domestic abuse inquiries, and the noble Lord, Lord Marks, mentioned the £5.5 million for them, which was in the Statement. What exactly are the inquiries? Are they checking what I would call “call-outs” and social service records? I am talking not about convictions but about call-outs by the police to domestic situations, which are recorded, and the wider social service records, which are sometimes used in courts in different contexts. Is that the information that he is referring to?
Lord Bellamy (Con)
My understanding is that this covers relevant inquiries by the police and children’s services and any history of restraining orders or other similar court action in the past relating to domestic abuse, but I will write to the noble Lord to confirm how far it reaches. I do not know whether that answers the noble Lord’s question.
Lord Ponsonby of Shulbrede (Lab)
Not quite. The practice in family courts, domestic abuse courts and criminal courts is to get more information than the Minister has just alluded to—namely, call-outs. That is when the police are called to a situation. There may be no action taken, but the record of the call-out is kept and passed to family courts in some circumstances, and sometimes to criminal courts as well. I am just checking that that is the information that will be available to the probation service.
Lord Bellamy (Con)
I cannot confirm it at this moment. My understanding is that such information should be available if it is recorded in the police record, and not just if there was a consequence—so if a call-out had occurred, even if there was no further action. I ask the noble Lord to allow me to confirm that to be absolutely sure that I have understood the question and given the correct answer.
Lord Marks of Henley-on-Thames (LD)
I am terribly sorry to interrupt again but, to follow that up, because it is a very important point, the Statement talks about this money being spent
“to recruit more probation staff who are specifically responsible for accessing domestic abuse information held by the police,”—
with which the Minister has dealt—
“and children’s safeguarding information held by councils”.
When he goes back, it is important that he finds out whether information held by councils on domestic abuse would also be researched, because that can also be very valuable to the probation service.
Lord Bellamy (Con)
My understanding is that that is the case but, again, I will confirm it to make absolutely sure that we have the right information for your Lordships. As the noble Lord rightly emphasised, one of the further recommendations is that a child safeguarding inquiry be carried out in all cases where the person concerned either lives with or is likely to have contact with any relevant child, and there are new training and procedures to achieve that.
There are further specific measures to ensure the safety of children, involving a separate section in the OASys—the offender assessment system; a new child safeguarding policy framework; revision of training in producing pre-sentence reports to improve the quality; more support and mentoring for trainee probation officers, with new learning tools and opportunities; and a better framework to guide senior probation officers when allocating cases to more junior probation officers.
Those recommendations are complemented by the report relating to the case of McSweeney, which has 10 further recommendations. It proposes first a thorough review of the processes for assessing the risk of harm, because what went wrong in these two specific cases was that the risk was underassessed. As I understand it, that was partly because not all the information that was on the system was properly assessed or accessed by the relevant staff. It was also, particularly in one of the cases, partly because relevant information was not properly shared between the various elements, particularly the Prison and Probation Service in the community. The noble Lord, Lord Ponsonby, rightly made the point about how important it is that we have a consolidated system in which all information is available to everyone, so that nothing falls through the cracks or is missed.
That is essentially part of the recommendations, particularly in the McSweeney case, for improved processes to ensure that all information on past behaviour and current risks while in prison is shared in a timely and effective manner, particularly between the prison offender manager—the probation officer looking after the prisoner in prison—and the community offender manager who will be responsible for managing the person concerned in the community. That includes better procedures and allocation of cases before a prisoner is released, so that there is proper communication between the relevant prison offender manager and the relevant community offender manager so that there is continuity and overall management when a prisoner is released. It also includes the tightening up of all recall decisions being signed off by a senior probation officer within 24 hours, which was one of the problems in one of the cases, and close monitoring of the licence conditions. So a range of steps are being taken.
I will briefly turn to the questions that your Lordships quite understandably posed. In his reports, the inspector does not make a link between the effect of the previous privatisation arrangements and these particular cases. I do not think I am revealing any secrets if I say that the Government came to the view that the earlier arrangements were not working properly and the situation had to be reformed, which is why the probation service was reunited.
On the local links question, I have every reason to suppose—but, again, I will clarify this with the service and write appropriately to your Lordships—that, although the emphasis has perhaps moved to more central management, as is probably inevitable in the present modern circumstances, one should not underestimate the importance of local links, particularly with the voluntary sector. I will ascertain and obtain further information on how that particular important aspect is being addressed, in answer to the question of how far the links to local government agencies are being reinstated or used—this is an important question, and your Lordships need to know the answer, so I will endeavour to give more detail on it.
I have addressed the importance of the information on an individual offender being held in one place and combined, which will improve information sharing. In the brief time available, I have done my best to explain how the information sharing will be improved. It is true that filling the relevant vacancies is a large challenge, and it is particularly so in London, where some areas have had particular difficulties—I am sure that noble Lords are broadly familiar with the situation. Some senior management has had to be replaced, and various remedial action plans are in force to address this; it is all taken extremely seriously. I hope and trust that we will see significant improvements as the increasing staff gradually gain experience and come through the system. There has been a remarkable increase in the number of recruits in the last two or three years.
All in all, the Government’s position is that a great number of positive actions are being taken. I have apologised deeply and sincerely for these particular incidents involving these victims, to whom our hearts of course go out. I do not think I am in a position to give a wider apology than that but I will put one matter in perspective. I am sure it is your Lordships’ experience that, within probation services and prison services, we have many dedicated professionals who go the extra mile to ensure our safety and look after their charges. When things go wrong, they are as devastated as the rest of us. I would not want it to be thought that the front-line staff, whom I personally salute, are under undue criticism in these cases. I hope I have explained the steps being taken to improve the system at all levels and to avert future tragedies of this kind.
Lord Hacking (Lab)
My Lords, I hesitate to stand up, although things are getting better now, as the formidable yellow flashing time constraint of 20 minutes was before us, but it seems that it has been recognised that the time allocated to this business is 40 minutes. Before I ask the Minister a question, I associate myself with the words of my noble friend Lord Ponsonby and those of the noble Lord, Lord Marks, and the questions that they put. I would also like to recall what it was like working with the probation service long ago, when I was a young barrister. In those days, it was in the Quarter Sessions and the Assize Court, not in the Crown Court. We all had a great respect for the probation service then. It was under fewer constraints than it has recently been, and it was then part of the government service. When I was practising at the Bar those years ago, the responsibility of the probation service did not extend to the post-prison time. It is quite clear that responsibility has now been placed—and I notice the Minister nodding—on the probation service. That, of course, requires that information be passed from the prison service to the probation officers so they can take on that new responsibility. Does the Minister think that this a good system?
Lord Bellamy (Con)
I too have a fond memory of that probation service, as it was then. As I appeared only once at the Quarter Sessions before they were replaced by the Crown Court, I bow respectfully to the seniority of the noble Lord, who has clear recollection of both Quarter Sessions and, of course, the magistrates’ courts. It is completely right that, in those days, the probation service dealt very largely with people who were put on probation. Those were, generally speaking, the lower-level offences, where you still had some chance of not imposing a custodial sentence and some hope of avoiding it. At a point—I would be hard pressed on the hoof to say exactly when, but it is quite a long time ago—the probation service was given the further duty of managing prisoners who had been released in the community. Systems have been developed —in some cases, very sophisticated systems—for managing that risk. The view of both Governments has been that we now have to manage the progressively more dangerous, difficult and chaotic released prisoners, who are very often drug users or have alcohol problems—they need support and that is provided through the probation service. In specific answer to the noble Lord’s question—is this a good idea?—the Government’s view is that, yes, it is a good idea. We cannot do without it, in effect, but it does need particular skills and training, especially with the higher-risk offenders, for whom there is a special system called MAPPA. Matters have moved on since our joint recollection of the past, and, in today’s conditions, there is no alternative.
Civil Legal Aid (Housing and Asylum Accommodation) Order 2023
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Lord Bellamy
That the Grand Committee do consider the Civil Legal Aid (Housing and Asylum Accommodation) Order 2023.
The Parliamentary Under-Secretary of State, Ministry of Justice (Lord Bellamy) (Con)
My Lords, this statutory instrument will expand the scope of civil legal aid to allow early legal advice before court on housing, welfare benefits and debt issues for those at risk of losing their home. It will also ensure that failed asylum seekers who face a genuine obstacle to leaving the UK remain eligible for legal aid to support them in obtaining accommodation support from the Home Office. These provisions are made under the overarching legislation known as LASPO, which covers the grant of legal aid.
Going into slightly more detail on the changes to housing legal aid, the purpose of the instrument is to provide a better wraparound and earlier legal support for those facing the loss of their home. The current arrangements provide for legal aid only for help at court, whereas the new scheme allows for much earlier advice to be sought as soon as the tenant receives notice that the landlord seeks possession. At the same time, the scope of the advice now available will cover wider matters, including advice on debt, housing, and welfare benefits and related matters. In general, this is a wider and, we trust, more effective use of legal aid in this sector.
The order results from the post-implementation review of LASPO, where the absence of legal aid in this specific area was identified as a gap in the system that led to an increase in court proceedings, greater reliance on welfare and extra pressure on local authorities. The order seeks to help individuals to resolve problems before they lead to housing loss.
The advice will not be means tested, meaning that individuals will not need to pass any financial eligibility tests to receive it. The present in-court duty service, whereby defendants can be represented in possession cases at court, will continue. Under the remuneration regulations, we will ensure that fees for legal aid providers for those services are increased at the same time.
The other amendment the instrument makes is essentially purely technical: to ensure that legal aid for failed asylum seekers continues to be available so a failed asylum seeker can obtain accommodation support where they are destitute and there is an obstacle preventing them leaving the United Kingdom. The amendment is necessary because of a technical change tied to Sections 4 and 95 of the Immigration and Asylum Act 1999 to take account of a new Section 95A, to be introduced when the provisions of the Immigration Act 2016 come into force. That is a purely technical arrangement, the main thrust of the arrangements being the improvement of legal aid in housing. That is a short explanation of the statutory instrument.
Lord Bach (Lab)
My Lords, I thank the Minister for introducing the order. No one could have done it with more clarity than he has. I hope he will forgive me: while I of course welcome the small but important improvements the order represents, they are in reality just a tiny step and a little progress in dealing with the depressingly large picture of the decimation of an important part of our legal system, namely social welfare law.
That decimation occurred when the coalition Government put together, against all-party opposition and many defeats in your Lordships’ House, the Act of Parliament known as LASPO. That Act, which, ironically, came into force almost exactly 10 years ago today, has arguably done more harm than any other piece of legislation over the last number of years. No wonder the Liberal Democrats, who supported it as part of the coalition, have rightly distanced themselves from it. I detect that the governing party is perhaps just beginning to show, in instruments such as this, that it realises how much harm that Act has done in some areas.
Lord Bellamy (Con)
My Lords, I thank noble Lords for their comments. I pay particular tribute to the noble Lord, Lord Bach, for his earlier role in this area as a Minister. I will certainly reread The Right to Justice and ensure that members of my staff do, too.
If I may say briefly, regarding LASPO, it is probably not useful at this stage to go into the historical circumstances that led to that legislation. At the time, there were very large expenditures and there were thought to be some abuses in the legal aid area. It has remained a controversial statute, and the ministry’s post-implementation review, correctly carried out as post-legislative scrutiny, has revealed certain problems which we are determined to address.
On the wider issue, I hope that the Government will shortly be in a position to announce the result of the means-test review, which I hope will increase the scope of legal aid for many people. We have already announced a full review of the whole of civil legal aid, and I very much hope that that will be progressed during 2023.
If I may make a personal comment, it seems to me that an important issue is the role of early legal advice and how far intervening early saves the overall cost of the proceedings, quite apart from reducing the stress and strain of those concerned, and generally results in earlier resolution. That point was recently made so powerfully by the House of Lords Children and Families Act 2014 Committee, of which the noble Lord, Lord Bach, and others present are not entirely unaware, if I may put it like that.
It is important to say that the points that have been raised today will be borne in mind in the civil legal aid review that we are undergoing.
As to the problem of the sustainability of the providers and the problem of deserts, we are establishing, specifically in the housing area, a panel of experts to support providers. There may be some areas where the skills are less up to date than they could be. I am sure that the issues of deserts will feature in the civil legal aid review. It is to some extent mitigated by the arrival of remote technology in the meantime, because it no longer matters where your adviser actually is, although of course it is preferable to have someone who is geographically close.
I hope that these and other very important issues will be addressed in the future. I think the order results in a further £10 million towards the legal aid fund. It may be a small step, but I can only agree with the noble Lord, Lord Bach, that it is a significant step. I commend this Motion to the Committee.
Legal Aid, Sentencing and Punishment of Offenders Act 2012 (Legal Aid: Family and Domestic Abuse) (Miscellaneous Amendments) Order 2023
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Lord Bellamy
That the Grand Committee do consider the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (Legal Aid: Family and Domestic Abuse) (Miscellaneous Amendments) Order 2023.
The Parliamentary Under-Secretary of State, Ministry of Justice (Lord Bellamy) (Con)
My Lords, this statutory instrument will, again, expand the civil legal aid scheme, this time making civil legal aid available in two new areas of family law and in certain domestic abuse proceedings. The instrument also makes a change of a technical nature to the means and merits test in certain family cases, and as regards the evidence requirements for victims of domestic abuse as a result of new areas being brought into scope of the civil legal aid scheme.
Lord Ponsonby of Shulbrede (Lab)
My Lords, I too welcome this SI. I declare that I sit as a family magistrate in London and I am currently chairman of the Greater London Family Panel, which means that I represent about 300 family magistrates within Greater London.
A very concentrated amount of expertise has been displayed in this short debate. I have to say my noble friend Lord Bach was really quite shameless in his flattery of the noble and learned Lord, Lord Bellamy, no doubt trying to get him to go further along the lines of these SIs, because we are, of course, all pushing in the same direction.
My noble friend Lady Drake spoke about the importance of kinship care. She gave the example of public law and private law special guardianship orders and explained how they are playing an ever-greater part in the type of disposals we deal with in family courts. It is very interesting for me, with my magistrate’s hat on, to see how different local authorities access SGOs and how they vary across the country as well as across London. It is good that, in that aspect of the SI, there is some more money available for legal aid support for people going for special guardianship orders.
The noble Baroness, Lady Tyler, who of course has real expertise in this matter, not least because she was a previous chairman of Cafcass, spoke about the importance of early intervention. I know the noble and learned Lord, Lord Bellamy, is also very keen on early intervention. It needs to be funded and co-ordinated. I know that both Sir James Munby and the current president, Sir Andrew McFarlane, are very keen to try to divert as many cases—particularly private law cases—away from family court as is practical.
It has to be said that about 80% of the private law cases we see in family court have domestic abuse allegations. If you make that allegation, it is not suitable for mediation and, depending on how serious the allegation is, it can make for a much more protracted court procedure. It is a difficult thing to do, but trying to move the cases is the right direction, if I can put it like that.
The noble and learned Lord, Lord Bellamy, also spoke about expanding legal aid for domestic abuse protection orders—of course, we are now in the criminal sphere—and how these types of orders may in some ways replace other types of interventionist orders, in both the family and the criminal courts: non-molestation orders in the family court, and restraining orders in the criminal court. When he gave his examples, he talked about tagging and various interventions for people who are potentially going to be put on domestic abuse prevention orders, but I am not clear whether there is any legal aid for advice for people who are potentially subject to those orders.
I say this because of one case that I dealt with remotely. It was an application for a domestic abuse protection notice, and there was no defence lawyer. The prosecuting lawyer, who was actually a part-time judge, advised that we as a court should put in place a domestic abuse prevention order, with no findings made by the court. As I chaired that session, I felt duty-bound to say to the defendant that, if that were put in place and he were to break it, there would be a criminal conviction. He pointed out to me that, by profession, he was a primary school teacher and the very fact of this order being put in place, with no findings of guilt, was enough for him to have to tell his head teacher. Who knows what would have happened to his career in that light. So that young man needed proper advice, and, in the end, I, as a magistrate, gave him it, not the other lawyer in that case. I am not sure that that was appropriate, and I could see how that scenario could easily have gone wrong if the young man had not received appropriate advice.
Nevertheless, as I said, we welcome this SI, which pushes in the right direction. I look forward to similar SIs in the future.
Lord Bellamy (Con)
My Lords, I warmly thank noble Lords for their various interventions and points. I will take back the last point from the noble Lord, Lord Ponsonby, on domestic protection orders and have a look at it. We understand that legal aid is available for advice on domestic abuse protection orders. Whether the gentleman in question would have qualified for legal aid may be another matter, if he was a teacher. There may be an issue here, and I will explore this a little further to make sure that we are covered on that kind of point.
On the wider issue, I hear with interest and sympathy the remarks of the noble Baroness, Lady Drake, on legal aid for special guardianship orders in public law proceedings, particularly early advice for kinship carers. That will be a feature, among many others, of the review of civil legal aid generally that we are about to embark on. I am afraid that flattery, which is completely undeserved in this context, is one of the things that does not move the Government, particularly the Treasury, in any direction, so, as your Lordships pointed out, we are taking small steps and coming at various issues perhaps somewhat obliquely and in sequence, with a view to tackling problems as best we can as they arise. We will continue to try to address gaps of the kind that the noble Baroness identified. The Government are very happy to have gaps pointed out to them so that consideration can be given to those matters. Clearly, special guardianship is very important; whatever you may think of the pros and cons of the apparent decline in adoption, there is no doubt that special guardianship has assumed a greater importance. We need to reflect that in our underlying structures.
Family law generally is perhaps slightly outside our discussion today, but this Room is so brimming with expertise on the subject, particularly the experience of the noble Lords who sat on the Select Committee we discussed, and of the noble Lord, Lord Ponsonby, who is one of the most experienced magistrates in this area one could hope to meet.
We need to address a whole range of interconnected issues: signposting, so that people know early on where they can get help; early advice; how you manage dispute resolution and the best means of it, bearing in mind the committee of this House’s comment that mediation may not always be the best solution, as there may be other possibilities. We need to think of the difficulties facing local authorities and those facing Cafcass. There is a huge mosaic of matters that we need to think about. I am not in a position today to make any promises on behalf of the Government, but I can assure noble Lords that these matters are on the radar and that we will take them forward as best we can and as soon as we can.
National Security Bill
Lord Bellamy ExcerptsWednesday 18th January 2023
(1 year, 8 months ago)
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The Parliamentary Secretary of State, Ministry of Justice (Lord Bellamy) (Con)
I thank noble Lords very warmly for their contributions, which were pertinent and challenging as ever. I shall make three introductory points. First, there is perhaps—and I put this as lowly as I can—a tension between those who say that this approach is wrong in principle and, on the other hand, those who say it is already covered by the general law. If it is covered by the general law, it cannot be wrong in principle. There seems to the Government to be an opposition in those two propositions.
Secondly, it is said that these provisions are intended to introduce a high level of impunity for the security services, generally reduce their accountability and effectively put them beyond the law. That is not the case, because in this legislation the decision is for the court—it is for the court to decide what to do. It does not give immunity to officials, the security services or the Government. It is a matter for the court. Essentially, this legislation is spelling out what the position is in relation to persons who have been involved in terrorist wrongdoing. It is saying in explicit terms that, where that situation arises, the court should consider—and I emphasise the word “consider”—whether damages should be reduced to reflect that wrongdoing. It is perfectly true that, at common law, such an argument could already be made, at least in theory; depending on which Latin tag you chose to use or whether you refer to the contributory negligence Act or other general principles, the argument can be made. But the point of these provisions is to spell that out in very clear terms so that the general public and potential claimants know what the position is, and one is not left to argue what can sometimes be obscure and difficult questions of common law in particular cases.
Thirdly, the overriding purpose—we can discuss the exact wording—is to convey a message. The message is that the United Kingdom is not a soft touch for those involved in terrorist wrongdoing when they come to claim civil damages. That is a message particularly directed to those beyond the seas who may be tempted to bring, and have in the past brought, proceedings in the UK courts when these kinds of situations have arisen. It is to make the civil position clear. By the same token, we have provisions relating to freezing and forfeiture which protect any damages that are awarded from subsequently being used for terrorist purposes. That is the overriding framework, as it were.
On behalf of the Government, I entirely reject the suggestion that these provisions are intended to introduce a high level of impunity for the security services or to avoid accountability, because it is ultimately for the court to decide. This is limited to national security proceedings, and the conduct of any public bodies will still be fully subject to scrutiny by the court.
With that general description, I shall try to deal with the various points which have been raised. I come first to Amendment 105A, put forward by the noble Lord, Lord Marks, which seeks to introduce an exclusion in cases where the evidence or submissions to the court about national security are merely incidental to the civil claim in question. While completely understanding the objective behind the amendment, the Government believe that it is not necessary, for three reasons.
First, national security proceedings are very clearly defined in Clause 82(2), and it is very hard to construe that definition as including a case where national security was for some reason de minimis to the proceedings concerned. Secondly, it is, in the Government’s view, hard to imagine in practical terms a situation in which a person involved in terrorist wrongdoing brings a case against the Crown, and the Crown has presented evidence or made submissions about national security, but national security is merely incidental to the issues in the case. It seems to the Government that it is most unlikely that such a situation would arise. Thirdly—this is a fundamental point that I have already made—
Lord Marks of Henley-on-Thames (LD)
The Minister simply has not answered the point that this provision in the Bill refers to “at any stage” of the proceedings, and any stage of the proceedings could be a disclosure stage, an interlocutory stage or an interim stage, where documents are sought to be withheld for reasons of national security that do not go to any major issue in the proceedings and are merely incidental. The Minister has simply not answered that. If he would like to do so, I would be grateful.
Lord Bellamy (Con)
I will further reflect on the question, but it seems to the Government that that specific example is unlikely to bite, as it were, on the duty of the court in the particular circumstances that we are considering, because ultimately it is up to the court to consider whether a reduction of damages is appropriate. If it were the case that, technically speaking, you could argue that national security proceedings on the face of the statute were in some way involved because there had been an earlier discovery application but it had no material impact on the remainder of the case, one could reasonably assume, and the Government do assume, that the court would not proceed to reduce damages on the basis of something that had nothing to do with the real issues.
We will always reflect and consider further, because it is very important to get the drafting right, but at the moment the Government are unconvinced that this amendment is necessary and believe that the protections, and in particular the role of the court, are sufficient to deal with the concern that the noble Lord, Lord Marks, has raised. That, I think, is the answer to Amendment 105A.
Lord Anderson of Ipswich (CB)
The Minister rightly emphasises the very high degree of discretion that is given to judges under Clause 83. The core of it is Clause 83(5), which allows a judge to take a view on whether it is “appropriate” for the amount of damages to be reduced. I wonder what the Minister thinks of the point that to give judges such a wide discretion is perhaps to give them a poisoned chalice. Judges did not, so far as I know, ask for this power. Does the Minister agree that they could be strongly criticised were they to fail to exercise the power to reduce damages, even in cases where it would be consistent with normal legal principles, including the principle of fairness, not to reduce them?
Lord Bellamy (Con)
The question asked by the noble Lord, Lord Anderson, highlights the tension I referred to a moment ago. It is very difficult to say on the one hand, as is being said, that the courts have this power already and that they are perfectly capable of exercising it, whether under the 1945 Act or ex turpi causa, et cetera, and on the other hand to say that it puts them in a difficult position and that they will be criticised if they do not exercise it. I think I can say this: the overall intention of this legislation is not to alter or downgrade a principle of law that is already inherent in the common law and in our various jurisdictions; the purpose is to spell out that principle in this legislation so that no one has any doubt that it applies in terrorist cases. That is the main purpose of this clause. We are, to an extent, simply reflecting where we are, but clarifying where we are.
Lord Pannick (CB)
Can I press the Minister a bit further on this pivotal point? I respectfully suggest to him that he is asserting two conflicting principles. If I understand him correctly, he is saying, first, that the purpose of these provisions is to convey a message but, secondly, that we do not need to worry about it because it is all a matter of judicial discretion. But the judges will have to decide these cases. How are they to decide? How are they to apply their discretion? What message are they expected to convey? While I am on my feet, I remind the Minister that it was, I think, Samuel Goldwyn who said that if he wanted to convey a message, he used Western Union. That is perhaps a relevant principle for Ministers to bear in mind in relation to legislation.
Lord Faulks (Non-Afl)
Before the Minister answers, and so that he does not have to go over old ground, I will intervene. In the Government’s case, the judges will have a new power that is needed because the existing defences of ex turpi and volenti are not adequate. I think that is the case the Government are making, but I respectfully submit that a judge needs a bit of help as to how he or she is to approach this case. When judges are given discretionary powers—for example, under the Limitation Act—they are given a long list of things to take into account or something that makes their job easier. I am putting myself in the position of a hypothetical judge looking at this clause, knowing that it apparently adds something to the existing common law and asking myself how I would approach this. I wonder whether there might be reflection and a judge will be given more guidance as to how he or she should approach this very difficult and delicate task.
Lord Bellamy (Con)
My Lords, perhaps I can take this point under advisement, because it is not yet spelled out in the statute and I am reluctant—on the hoof, as it were—to put words into the mouths of judges who would go about it in due course. One can imagine that one would draw inspiration from certain aspects of the existing law, but that is to go further than the statute already provides, so perhaps the Government can consider this point further.
I return to the broad thrust of the Bill and come to the stand part notices. I have tried to explain the importance of the message. Western Union is perhaps a slightly outdated way of conveying a message these days, but there are times when primary legislation is important to clarify the legal position, and this is one of those cases.
Before I pick up the specific points that have been made, in relation to the freezing and the forfeiture, the essential point is that these provisions bite at the moment the freezing order was made. You do not have to go to Horseferry Road Magistrates’ Court or Highbury Corner to get an order. It bites straightaway and is done by the same court that was dealing with the damages in the first place. It is more efficient to deal with the same court. Although there are other powers, as noble Lords rightly point out, in the Government’s view this is the right mechanism.
To come to the point made by the noble Lord, Lord Coaker, about why we do not just take the whole lot straight off, these exceptions for care costs and so forth, this is intended to be a measured structure. You start by simply freezing for the first two years, then you have another go at it after a second two years, then, finally, if after four years there is still “a real risk”—I will come to real risk in a moment—that is the moment when the forfeiture power kicks in. It is to give people time to persuade the court that there is no risk, as it were. That is thought to be a measured and proportionate approach to this problem.
The Bill provides that the freezing and forfeiture apply only in part to the damages if the court so orders, so that if, for example, medical expenses or care costs have to be met out of the damages, the court can provide for that. It does not have to take away the whole lot all at once. It can have regard to the needs of the claimant in that context.
That is the essential structure. It is to remove the risk of the money simply being spirited away at the press of a button, down a hole to an offshore haven before the courts can move to make sure that the money remains safe. Again, that is a power of the court, not of the Government or the security services. Therefore, in our view it does not lead to an undermining of the principle of access to justice or any other relevant right. To take another important point raised by your Lordships, it certainly does not take away the human rights damages. There are no circumstances in which it affects human rights damages in any event; that is a sort of entrenched position under the Human Rights Act. But that does not prevent a court taking into account circumstances in relation to other claims where the court considers that a reduction would be justified. Even in relation to human rights cases—I am sure plenty of people here will immediately put me right if I am wrong—the European Court of Human Rights reduces damages in certain circumstances when it does not think that the claimant is fully deserving of a particularly large award because of the conduct of the claimant in question.
That is the general outline and why we say that the whole structure is balanced but proportionate. It extends to involvement in terrorist-related offences. It is not limited to terrorist convictions because of the quite obvious difficulty, particularly in terms of parties that are abroad, in managing to apprehend them, bring them to this country, prosecute them and secure a conviction. Cases have been brought by persons abroad known by the security services to have been involved in terrorist activities but not subject to a conviction in this country. That is why we have to make this a little wider than people who have been convicted of terrorist offences.
For the reasons I gave in relation to the message, the provisions are not limited to circumstances in which one should confiscate the damages because of the risk of them being used in terrorist activities. One should reduce the damages because of the conduct of the claimant, which is a normal, civil law situation. I do not mean civil law in the sense of continental civil law, but it is the normal situation in the common law.
Lord Carlile of Berriew (CB)
I must admit that I was more favourably disposed towards some of these provisions, but the Minister has convinced me that I was wrong. He has told us that these provisions are unnecessary. They are in effect a very long text message, which apparently the public are going to consider over their breakfast tables, reminding judges of what the existing law is. Is he comfortable with using this House and this legislation for that purpose?
Lord Bellamy (Con)
My Lords, I feel that this is the first time that I have ever convinced the noble Lord, Lord Carlile, that he is wrong. The answer to the question is yes, the Government are entirely comfortable with the need to make explicit what to a large extent is implicit but rather undefined and diffuse in our legal system. This measure gives us a clear code in terrorism cases to provide a framework for the judge to consider what he should do about damages. I accept that the question of guidance for the judges is an open point, but let us reflect on that. The purpose is to provide a clear framework in terrorism cases.
Lord Faulks (Non-Afl)
With respect to him, the Minister is quite right: the application of ex turpi is very uncertain. There is a great deal of authority, and it is difficult to predict in particular cases whether they are going to rely on it. However, if there is going to be a statutory scheme then I return to my point: it needs to be a lot clearer so judges know how they are supposed to apply it.
Lord Hope of Craighead (CB)
I wonder if I may add a thought. One of the words that strike me in Clause 83(5) is “must”. If I were a judge at first instance, I would have to explain my decision, so I would have to say that I had applied my mind to the various factors. Having looked at the factors, I am still left in the dark as to what principle I should apply. I can look at them and understand them, but why should they affect the award? I do not think a list of factors is needed if the Government can explain the principle that should be applied. Is it that a kind of quasi-immunity should be given because of these various factors—some sort of overriding principle in favour of the Government’s security measures and so on that should be applied? I cannot devise that myself, but a list of A, B, C and D is not going to be helpful. We already have the factors there; it is the trigger, what the principle is that leads to the decision that the damages must be reduced, that is important. Otherwise, a first-instance court might say, “I’ve considered the factors and I can’t see any reason why the damages should be reduced”, and an appeals court will say, “Well, that’s perfectly right”, and we are left without any significant advance in this legislation. I hope I have made my position clear. I do not like lists of factors very much, but I like to have guidance as to principle.
Lord Bellamy (Con)
I can say that the principle is certainly not for the judge to be asking himself, “Should I be protecting the Government or the security services from actions for damages?” I am not drafting the Bill, and I will further consider the matter, but I would imagine that it is something like how far the claimant brought the situation on himself. That would be an ex turpi causa or contributory negligence type of consideration. However, I do not want to pre-empt the discussion any further, standing on my feet thinking aloud, because I hear what is being said: we want further precision as to how the courts are to go about this.
Lord Purvis of Tweed (LD)
I think the Committee is now in a bit of a bind. The Minister stated a few moments ago that the Bill is now a clear code and explicit, but he is unwilling to tell the Committee even some basic elements of what guidance for a judge might exist. We do not know now how to proceed on the basis of this before Report, especially in the case of the specific question that I asked.
The Minister has also stated, exactly from the Government’s perspective, what the guidance for judges is. He talked at the opening of his remarks about demonstrating that
“the UK is not a soft touch for those involved in terrorist wrongdoing”.
It is very clear from what the Minister said at the Dispatch Box what the intent is. If the judge is not to take into consideration what the Minister stated, we are in a bit of difficulty.
My specific question here, and I hope the Minister can be specific in an answer now, relates to the concern that was raised that the national security factor in Clause 83(3) is broad, and that a foreign power can state that the claimant was involved in terrorist activities in a foreign country. If that is used by a party under the national security factor, my reading of that is that the judge must now take that into consideration. Surely that cannot be right.
Lord Bellamy (Con)
My Lords, on that last point, I would need some notice of that question. It is not a point that I have so far had to consider.
It is the case that the court would have to be satisfied on the civil standard that that the claimant had been involved in terrorist wrongdoing. In accordance with normal statutory principles of construction, there would have to be some nexus between the United Kingdom and the terrorist wrongdoing. It is hard to imagine a case in the UK courts where there was terrorist wrongdoing without any nexus to the UK. That is as far as I can go.
I will see if I can get a bit further, if your Lordships will permit me. As far as the general position is concerned, when I said the Government wanted to say that the UK was not a soft touch, I meant that the provision makes it clear that in civil proceedings against the security services of the United Kingdom one has to be aware that the judge will consider whether the damages should be reduced. That is all I meant by that. I did not mean to say, and I do not think I can reasonably have been construed as saying, that the intention was to protect the security services from unwarranted claims for damages. The underlying principle is, I think, that if a terrorist person has brought it on himself then that should be considered, but let me reflect further on the relevant questions that noble Lords have asked.
Lord Hope of Craighead (CB)
Would the Minister consider the wording in Clause 83(4)(a) that says there
“need not be a causal connection”?
You can find that there is a connection, but it need not be a causal connection. I can understand that if there were a causal connection then one might get around to thinking that the damages should be reduced but, if there is not a causal connection, why should you consider a reduction in damages at all? That is one of the reasons why I am looking for a principle that gets over the point that a causal connection is not necessary. What else is there?
Lord Bellamy (Con)
The causal connection point is to do with whether there are national security factors in the first place. As to general question of what the court is to do, and whether we should have further guidance or precision in statute, that is perhaps a matter that we will need to come back to on Report to see whether we can get any further clarity.
Lord Pannick (CB)
May I test the Minister’s patience by asking him to reflect on one other matter? He said, rightly, that in assessing damages in human rights cases the court is entitled to have regard to the conduct of the claimant, yet this clause does not feel it necessary to provide any message or guidance to judges in human rights cases. I ask him to reflect on why the Government nevertheless think it necessary to send a message to provide guidance in non-human-rights cases.
Lord Bellamy (Con)
I certainly undertake to reflect on what further guidance can be given on how the courts should go about this exercise.
I have taken up too much of your Lordships’ time and am conscious that I have not perhaps dealt with everything I should have. As I think I have said, the overall intention is not in any way to undermine mechanisms for holding the Government to account, or to allow Ministers and officials to evade scrutiny. I fully agree with the noble Lord, Lord Coaker, that we absolutely have to tread carefully. I hope that this package is a balanced one, and I invite noble Lords not to press their amendments.
Lord Marks of Henley-on-Thames (LD)
My Lords, we have had a worthwhile and detailed debate in which the Government have been pretty hard pressed on the detail of these clauses. I am bound to say that nothing I have heard suggests to me that these clauses are in fact defensible. They introduce a very important and, we say, objectionable new power. It is not merely a power but, because of their mandatory nature, a duty to consider reduction in damages—the power being to reduce damages where there is no connection required between the conduct of the claimant and the reduction in damages. That is entirely novel.
If I may go on from there to consider a point made by the Minister fairly early in his speech, he said that those of us who criticise these provisions must face the fact that there is a tension between that criticism and the reliance we place on existing law. The reason why his position falls and why there is a tension is precisely that, under the existing law—as in the point made a moment or two ago by the noble Lord, Lord Pannick—it is the claimant’s conduct that leads to the reduction in damages. The point made by the noble and learned Lord, Lord Hope, was that there is express exclusion of the requirement for the claimant’s conduct to be responsible in these provisions before a reduction in damages is ordered. The security factors may be entirely irrelevant conduct, as far as the award of damages is concerned, but nevertheless lead to the requirement to consider reducing damages.
I suspect that the noble Lord, Lord Bellamy, because of his being so conversant with the common law, got into some difficulty when answering my question on disclosure. He said it is unlikely that consideration of evidence that came to light in a disclosure application would have any bearing on the claimant’s conduct and therefore would lead a court to reduce damages. That is to fall into the trap of ignoring the effect of these provisions where no causal connection is required.
In answer to the other central point made by the Minister, that this is not about giving impunity or immunity to the Government because it is for the courts to decide, that leads the Government directly into the difficulty that these provisions are mandatory. As has been said a number of times, if a judge is faced with a mandatory provision that requires him to consider a number of factors and decide whether to reduce damages, he cannot blithely go on to say, “Well, I looked at the factors and I’m simply going to ignore the legislation”. He then either gets into the point the noble and learned Lord, Lord Hope, made—that he is giving no effect to the legislation at all and it is a cypher, because a Court of Appeal might agree with that—or he is simply falling into error because he is not applying the legislation. It is a very difficult conundrum to face.
The central point made where the Government have got into such difficulty is that originally raised by the noble Lord, Lord Faulks. He said that there is no guidance whatever in Clause 83(5) as to how and on what principle the judge is to approach the question of whether damages should be reduced. Ultimately, the Minister was forced into the position of saying, “I’m not quite sure—I’ll take it under advisement and we may come to some conclusion about it”. Frankly, and with the greatest respect to the Minister, that is simply not good enough. This Committee needs to know what principles are to be applied to the exercise of an entirely new and, we say, entirely objectionable power.
The reality is that this point cannot be escaped from, as was said by the noble Lords, Lord Anderson, Lord Pannick and Lord Faulks, and the noble and learned Lord, Lord Hope. My noble friend Lord Purvis has again said that in an intervention. The problem is that this legislation is to be aimed at using damages to fund terrorism. That would be properly achieved, as the noble Lord, Lord Coaker, pointed out, by using the powers to freeze damages in a responsible way when there is an actual intention to use the damages to fund terrorism. It is exactly the point that the independent reviewer, Jonathan Hall KC, made: that it was dealt with by the existing legislation under the 2001 Act.
I cannot for the life of me therefore see why lowering the threshold achieves anything meaningful that is just, because it is unjust and the threshold under the existing legislation is the proper one to apply for something as serious as depriving somebody of damages or even freezing their damages. This legislation is weakening and altering other legislation in an unnecessary way, by introducing new powers that are objectionable, and therefore it ought to go.
The Minister has said that he is going to take this away and think about it. At this stage, therefore, I could not sensibly press my amendment and we would not ask for votes at this stage on clauses standing part. However, I really suggest that the Government are now under an obligation to consider whether any of these provisions are necessary at all or whether they wish to abandon them. In saying that, I beg leave to withdraw my amendment.
Lord Ponsonby of Shulbrede (Lab)
My Lords, I will speak briefly to Amendment 115 in this group, where we call for an assessment of the impact of Clauses 87, 88 and 89 to be published before they come into force.
It has been a powerful but relatively short debate. I shall not repeat the points that have been made, mostly by the noble Baroness, Lady Ludford, with her four grounds for opposing the clauses standing part. I wanted to reinforce the point made by the noble Lord, Lord Anderson, when he said that the gravity of the offence may be low. I can talk directly to that because, as a sitting magistrate, I have dealt with terrorist incidents that involved graffiti. The defendant in the case pleaded guilty to graffiti but, because of the nature of the graffiti, was charged under the Terrorism Act. We went ahead and fined that offender, but it was an offence under the Terrorism Act.
We have been relooking at Clause 87. Would that sort of example of a terrorist conviction be caught under the provisions, and would that individual who pleaded guilty to a terrorism offence of graffiti lose his right to civil legal aid in the decades to come?
Lord Bellamy (Con)
My Lords, perhaps I can briefly explain, first, the Government’s view of the principle behind the provision, then come later to the detail of how it operates. In the Government’s view, looking at it as a matter of principle, through their actions individuals who commit acts of terrorism seek to threaten and undermine the very democratic institutions that are at the heart of our democracy in this country. It is right that persons who have committed acts of terrorism against democracy should be subject to a different approach when it comes to granting civil legal aid. The different approach is, in this case, that these provisions do not entirely deprive a “terrorist” of civil legal aid, because exceptional case funding remains available. That is granted in around 75% of the cases in which it is applied for, so we have a safety net there. The practical effect of what is proposed is that those with the relevant terrorist convictions follow a different route from others. In other words, the automaticity of legal aid is somewhat different if you have committed a terrorist offence.
Apart from the question of principle—and that is the principle that the Government are advancing—the questions that have arisen in this debate essentially focus on two issues, or sub-issues. First, have we drawn the definition of terrorist offence too widely, catching very minor incidents, such as the graffiti incident put forward by the noble Lord, Lord Ponsonby, or the relatively minor terrorist offences to which the noble Lord, Lord Anderson, drew attention? Secondly, are there particular circumstances, of which domestic abuse is one, where there should be some exception to be made, and where it is going too far to have this blanket restriction, and there are obvious cases where there could be a fully justified grant of legal aid on the normal procedure, rather than forcing someone to go for exceptional case funding? On both those points, I shall undertake to reflect and to look at the underlying impact of these provisions—but the general principle is as I have outlined.
Lord Purvis of Tweed (LD)
The Minister makes his case as to the general principle but, if that is so strong from the Government’s position, why does it relate only to England and Wales?
Lord Bellamy (Con)
The noble Lord, from a Scottish perspective, asks a relevant question. I shall have to take that under advisement and see, but I suspect that it is because there is a different legal regime in Scotland.
Lord Purvis of Tweed (LD)
I look forward to the Minister’s letter. This Bill applies to everywhere—but, of course, there is separate legal aid legislation in Scotland, which I scrutinised when I was on the Justice Committee in the Scottish Parliament. If the case is so strong for the whole United Kingdom, I am not sure why this is. If he is writing to me, could he add something on the concern about whether this provision is consistent with the commitments in the Good Friday agreement? Does this provision also apply to Northern Ireland, with regard to the permanent removal for all those who previously were beyond the restrictions before the convictions were made, as in the Bill?
Lord Bellamy (Con)
As far as I know, it is not the intention to apply this measure to Northern Ireland, but I shall write to the noble Lord to confirm the Government’s position.
Lord Hacking (Lab)
Many years ago, I used to sit on a legal aid committee. What worries me is the responsibilities that will be placed on all legal aid committees that will have this provision in front of them. One wonders, therefore, whether there should be special representation for the person applying for legal aid, and how that is going to be run. But this is a practical problem, and I ask the Minister to reflect on the practical side of the issue.
Lord Bellamy (Con)
My Lords, I shall certainly reflect on the practical side. This would be a decision for the director of casework at the Legal Aid Agency. The noble Baroness, Lady Ludford, rightly raised the question of the practical “bureaucracy” associated with the proposal, and we are working with the Legal Aid Agency to see how it can be most conveniently implemented, with minimum disruption.
Baroness Ludford (LD)
My Lords, I shall be brief, because I know that noble Lords are waiting for the Statement. I thank the Minister for his reply. His first point was that the Government wanted to address the unique situation where, they contend, the people envisaged —those who have committed terrorist offences—have threatened to undermine our democracy. Other noble Lords who have contributed to the debate and who I very much thank, including the noble Lords, Lord Pannick and Lord Anderson, talked about other extremely serious offences such as murder, rape and, I think, manslaughter. Why just terrorism? Personally, I think that the offence of rape undermines the principle of our modern society, which should exist, about equality between men and women, the dignity of women and our rejection of abuse of women. Apart from very serious terrorist offences, I might judge a rapist on a more serious basis than someone who gets a fine for graffiti, for example, presumably in support of some proscribed organisation. Therefore, I do not think that the argument is very sound, if I may say so.
Prisons: Chaplaincy Service
Lord Bellamy Excerpts(1 year, 8 months ago)
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The Parliamentary Under-Secretary of State, Ministry of Justice (Lord Bellamy) (Con)
My Lords, since 1996 the chaplaincy council has helped deliver prison chaplaincy based on multiple faiths and beliefs. However, it no longer reflects the breadth of faith and belief of those in prison or on probation. We therefore propose to replace the chaplaincy council with a chaplaincy faith and belief forum representing all faiths. We will consult widely on that proposal and related reforms, including the smaller faiths in particular.
Lord Singh of Wimbledon (CB)
I thank the noble and learned Lord for his Answer, but until three years ago the chaplaincy council was working well. Why replace something when it is not broken? A prison chaplaincy council representing the six major faiths has not met for some three years, with Hindus, Sikhs and Buddhists being excluded from policy discussions and discriminated against in grant support, visiting and educational hours and career opportunities. Widening the prison chaplaincy council will worsen that situation. Why are our concerns and complaints consistently ignored by those charged with the promotion of inclusion and diversity, who feel that all they need to do to fulfil their remit is write pronouns after their names?
Lord Bellamy (Con)
First, I pay a personal tribute to the noble Lord, Lord Singh, for all that he has done over many years for prison chaplaincy and for his tireless efforts on behalf of the Sikh community. I mean that most sincerely. However, respectfully, I do not entirely agree with the thrust of his question. In the Government’s view, the chaplaincy council needs to be brought up to date to make sure that all faiths are properly represented and, in particular, to make sure that the faith and belief advisers, who assist the Prison Service, particularly in the appointment of chaplains, and who are very often on the council, are remunerated and appointed transparently and consistently so that there is no question of any difference of treatment in that regard. It is perfectly true that there has been some disagreement with the noble Lord, Lord Singh, in the past—that I accept—but I hope that the reforms that we are in the process of consulting on will remove any scope there may be for disagreement on the way forward.
Baroness Hayter of Kentish Town (Lab)
I pay tribute to those who have done so much in this area. The Minister has again used the words “all faiths”. I wonder if he will include humanists in the consultation, because there are many who would welcome chaplaincy from a humanist understanding as well.
Lord Cormack (Con)
My Lords, bearing in mind that the whole purpose of prison is rehabilitation and that chaplains have a very important role to play in that context, can my noble and learned friend tell me how many prison chaplains of each faith there are at the moment, and whether he is satisfied that this number is sufficient to accomplish the very important task before them?
Lord Bellamy (Con)
My Lords, to the best of my knowledge, there are approximately 1,200 prison chaplains overall and approximately 20 chaplains of the Sikh faith. I do not have other figures in front of me. Sikhs make up less than 1% of the prison population, which is extremely admirable, and the number of Sikh chaplains in particular is well out of proportion to the number of Sikhs who are unfortunately in prison.
Lord Sahota (Lab)
My Lords, when deciding on the policy of the Prison and Probation Service with regards to its pastoral service, the views of all faiths should be taken into account. I was surprised to learn from my friend, the noble Lord, Lord Singh of Wimbledon, that this is sometimes not the case. I sincerely hope that the Government take these views into account and look into this matter urgently.
Lord Pearson of Rannoch (Non-Afl)
My Lords, is the Minister aware that some 60% of our managing prison chaplains are now Muslims, while only some 17% of our prisoners share that faith? What do the Government think this imbalance may be doing for the promotion of Islamism in our prisons, and what do they feel they should do about it?
Lord Bellamy (Con)
My Lords, I have no reason to suppose that the Muslim chaplains in the chaplaincy service, where they are appointed, are doing anything other than providing multifaith belief and support to the whole of that prison population.
The Lord Bishop of Chelmsford
My Lords, on Christmas Day, I was pleased to be able to visit my local prison and young offenders’ institute in Chelmsford, where I was taking a service. I had several conversations with both prisoners and members of staff who expressed concern about ensuring continued support for those who are leaving prison and re-entering the community. As the work of multifaith community chaplaincy and indeed the Welcome Directory continues to be developed to support those leaving prison, can the Minister say what discussions there have been, if any, regarding possible funding support from HMG?
Lord Bellamy (Con)
As the right reverend Prelate pointed out, the Government already support and fund the Welcome Directory. That resource enables prisoners to seek help to resettle safely in the community. Each probation region may commission and fund local services, including community chaplaincy services. The Government will keep these funding arrangements under review, in view of the importance of the rehabilitation of prisoners in the community.
Lord Ponsonby of Shulbrede (Lab)
Over a decade’s worth of Conservative government has led to a failing prison system, with failing rehabilitation. To change this, we need an evidence-led, trauma-informed approach to rehabilitation. Prisons now contend with a revolving door of staff, with constant recruitment failing to fill the vacancies across the estate. This is a crisis made by the Government, because of cuts and a lack of investment in the justice system. What will the Minister do to retain experienced staff and recruit new staff?
Lord Bellamy (Con)
My Lords, the Government can point with some pride to a fall in reoffending rates in recent years and an extensive programme of recruitment for not only prison staff but the probation service. In terms of the discussion today, which is about chaplaincy, we look forward to greater involvement of chaplains in sentencing planning, resettlement planning and the steps taken when prisoners are released to ensure that their release is successful and that they do not reoffend.
Baroness Burt of Solihull (LD)
My Lords, I apologise for my earlier overenthusiasm. Prison chaplaincy provides a very valuable pastoral and counselling service for all prisoners and staff in the Prison Service. Chaplains are forbidden from proselytising and have a general responsibility to help all who seek help and advice. However, given that according to the 2021 census 37% of the population have no faith at all, has the time not now come for non-religious pastoral carers to be included in the new chaplaincy, faith and belief forum?
Lord Bellamy (Con)
My Lords, it is the Government’s intention to see that that happens.
Lord Farmer (Con)
My Lords, my noble friend the Minister has touched on prisons and probation, but where does the role of chaplaincy sit within the “One HMPPS” programme for achieving greater alignment between prison and probation and a whole-sentence approach? There has in the past been limited joint working between probation staff and prison chaplains, even at key points in the sentence, such as when planning for release. Also, prison chaplaincy sits within HMPPS and community chaplaincy is carried out by the voluntary sector, independent of government.
Lord Bellamy (Con)
My Lords, the Government seek greater alignment between prison and probation. The chief probation officer will be a member of the new council of faith and belief. A new pilot will see prison chaplains attending approved premises to which released prisoners go and there will be further collaborative work with the Community Chaplaincy Association.
Probate: Waiting Times
Lord Bellamy Excerpts(1 year, 9 months ago)
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Baroness Meyer
To ask His Majesty’s Government whether the Probate Department’s recommended wait time for the granting of probate of 10 days is being achieved; and if not, (1) what is the current average waiting time, and (2) what steps they are taking to reduce the delay.
The Parliamentary Under-Secretary of State, Ministry of Justice (Lord Bellamy) (Con)
My Lords, there is no recommended wait time to produce a grant of probate. However, despite the unprecedented challenges of the pandemic, average wait times for probate following receipt of the documents required have been maintained at between five and seven weeks. Average waiting times are currently almost one week faster than the yearly average for 2020 and 2021. HMCTS is increasing resources to meet higher demand and to further bring down overall timelines.
Baroness Meyer (Con)
I thank my noble friend the Minister for his Answer. Is he aware that, in 2018, His Majesty’s Government promised radical improvements to reduce the number of days that people have to wait to 10 working days? Four years later, in my own experience with a very simple will that considered only a bank account, it took me three months to get a grant of probate. A friend of mine has been waiting for three years and still has not received a reply. Is the Minister aware that the probate department seems to be infected with a virus that causes it to lose information and not be capable of responding to emails, manning its chat room or answering the telephone? Does he agree that, at a time of deep sadness, confusion and disorientation, these claimants should be treated with respect and compassion? As such, will he ensure that probate staff are trained and claimants are kept in touch with regarding the status of their application?
Lord Bellamy (Con)
My Lords, first, I apologise to my noble friend and all those affected by unacceptable delays in the probate registry. Secondly, active steps are being taken to fix the problem. Some 76% of all applications are now made digitally. The problem arises in so-called stopped cases where an element, such as a document, is missing or a query arises. That is where communications have been less than perfect. The registry has now recruited more than 100 staff to make sure that phone calls and emails are answered properly and that the web chat facility, which deals with around 200 calls a day, works well. My colleague in the other place, Minister Freer, is monitoring this closely. I am told that telephone answering times have now come down to less than 10 minutes. We are determined to ensure that that progress continues. I fully accept that, in a time of bereavement, the service in the probate registry must be beyond reproach.
Baroness Chakrabarti (Lab)
My Lords, will the Minister join me in congratulating his noble friend, the noble Baroness, Lady Meyer? This is not the first time in a distinguished career in public service that she has converted personal grief into public campaigning and courage on behalf of other people. I am very grateful for her intervention. The justice system is creaking under the weight of years of austerity. Digitalisation may be part of the answer but it is not the whole answer when there are human beings involved. Perhaps the Minister might meet his noble friend to get some direct experience and advice for his department moving forward.
Lord Bellamy (Con)
I fully associate myself with the noble Baroness’s remarks. It is completely right that these issues should be raised, and I congratulate my noble friend Lady Meyer on raising them. I have already met her to discuss this problem. In fairness to the probate registry, I simply point out that we are still enmeshed in the aftermath of Covid. Excess deaths are currently running 13% above the five-year average. The first half of 2022 saw 16,000 extra applications above the same period in 2020. So there is a challenge here. I assure your Lordships that, as far as I am concerned, this issue is being monitored closely and everything is being done to correct it.
Lord Marks of Henley-on-Thames (LD)
My Lords, the noble Baroness, Lady Meyer, has the sympathy of the whole House. The 10 days mentioned in her Question are a pipe dream, frankly. The Minister’s figures are hopelessly optimistic. My understanding is that eight weeks is generally the absolute minimum, and only if the form is flawless. The Government’s website says that you will usually have to wait 16 weeks from application to grant—that is from now to nearly Easter. Any queries add another month. If there is inheritance tax to pay, that adds another month. It often takes hours, not 10 minutes, for someone to answer the phone, and it often takes weeks for them to respond to emails. This is a wholesale failure of service at a desperately sad time in people’s lives—a time of loss, grief, stress and worry. Are not the Government and the Minister ashamed of this performance?
Lord Bellamy (Con)
My Lords, I think that I have already conceded that there have been difficulties and some degree of failure in the registry. I understand that the 10-day limit is not intended to apply to the grant of probate, where often complex documents have to be examined and a formal grant of probate issued. My understanding is that the average for digital grants in a straightforward case is currently two to four weeks, although I accept that it is a bit higher with paper applications. The 16 weeks mentioned on the website is a classic and usual example of the Government avoiding overpromising and underdelivering—I would much rather overdeliver and underpromise—but I anticipate that that period will come down. Every effort is being made to correct the issue.
Lord Cormack (Con)
My Lords, how far is this bad example of the law’s delay due to more and more people still working from home? If that is a factor, why on earth are the Government introducing a Bill that will allow every newly appointed person to whatever job to opt to work at home for certain parts of it?
Lord Bellamy (Con)
My Lords, as far as I am aware, the problems in the probate registry are not related to persons working at home, but I will make further inquiries for my noble friend Lord Cormack. As I say, processing times are coming down. If noble Lords and others involved would care to report to me or my colleague in the other place, Minister Freer, their personal experiences, we are on the case and we will address this issue.
Lord Brooke of Alverthorpe (Lab)
I am grateful to the Minister for that offer, because my niece has been told that she will wait two years for probate. In the meantime, she is having to care for a bungalow that was left—she has to pay for the heating and the insurance on the property, but she has very little money to do that. There was a problem with the probate service in 2018, which was pre-Covid. The problem arose because of the cuts by Osborne on the public service generally. We are going to the dogs right across the board with so many of our public services and we need to reverse that now. One way in which we could help people with probate problems is to give them some advance towards the costs that they have to meet. Will the Minister consider that?
Lord Bellamy (Con)
My Lords, I invite the noble Lord to write to me or the relevant Minister in the other place with that particular problem so that we can address the issue. That is not the sort of thing that we wish to see happening. We will of course consider all available opportunities to improve the service offer.
Baroness Ludford (LD)
My Lords, the Question asked by the noble Baroness, Lady Meyer, is important and I identify with her views and those of my noble friend Lord Marks. The emotional time of bereavement is made worse by a host of bureaucracy, much of it duplicative and unnecessary, and sheer inefficiency. In the spring of 2020, the probate service lost my late husband’s will, which had been deposited with it for safekeeping, and for three weeks I did not know whether it would reappear. I found the probate service Dickensian. It does not seem to have got much better. Will the Minister and his colleagues in the Ministry of Justice, which has many agencies that, frankly, underperform, make this a priority?
Lord Bellamy (Con)
My Lords, I very much apologise to the noble Baroness for that incident. I hope that I have made it clear that this is a priority. We have to sort this out.
Lord Ponsonby of Shulbrede (Lab)
My Lords, according to the Law Society website, the biggest source of delay in probate applications is waiting for inheritance tax documentation. Can the Minister say what is being done to tie up HMCTS with HMRC to make sure that the proper information goes automatically to the probate service so that it can resolve this issue?
Lord Bellamy (Con)
My Lords, I thank the noble Lord, Lord Ponsonby, for that question. I am not in a position to answer it, but I will write to him with an answer on the relationship between HMRC and HMCTS.
Prison Capacity
Lord Bellamy Excerpts(1 year, 10 months ago)
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Lord Marks of Henley-on-Thames (LD)
My Lords, this Statement betrays a panic reaction to a crisis of the Government’s own making. Can the Minister say whether the Government finally accept that their policy of increasing time served in prison and their acceptance of prison sentence inflation have increased the number of prisoners? Do they accept that their policies have failed to cut our appallingly stubborn reoffending rates?
Understaffing and overcrowding have given our prisons revolving doors, reducing the chances of education, retraining and rehabilitation within prisons; yet in this complacent Statement, the Government accept no blame. “More rape prosecutions”, they say. Can the Minister say how many more convicted rapists are in prison now than were in 2019?
Then the Government blamed the criminal Bar strike. For years they have paid scandalously low fees to criminal barristers, who finally felt forced to take action. I remind the House of my registered interest as a practising barrister, although I have conducted no criminal cases for decades. If they had settled six months earlier, on the terms that were ultimately offered, how many police cells would now be unnecessary?
How do the Government plan to create more prison spaces, as they say they do, apart from the building program, without yet more overcrowding or even more shunting of prisoners around the prison estate to wherever space may be found, disrupting training, release preparation, visiting arrangements and family relationships, all of which are essential to rehabilitation?
I say yes to body cams, as mentioned in the Statement, and yes to preventing smuggling, but may we please have an end to short-term, panic responses to increased prisoner numbers, for which the Government’s failures alone are responsible, and have a corresponding increase in concentration on rehabilitation?
The Parliamentary Under-Secretary of State, Ministry of Justice (Lord Bellamy) (Con)
My Lords, I thank noble Lords for the points just made. Before I reply to them, I should say that Operation Safeguard is a temporary measure to meet a recent surge in demand for prison places and to keep the public safe. This is due in part to an exceptional number of prisoners held on remand as a result of the barristers’ strike, and the surge in offenders receiving custodial sentences. The prison population rose by over 1,500 in October and November, a highly unusual increase, which has caused pressure on the adult male estate but not the female or youth justice estates.
Operation Safeguard is a long-standing scheme, also used by the Labour Government, which allows about 400 police cells to be made available for prisoners to be held temporarily before they are moved to prison. It enables better management of the reception process, and in the main, it is anticipated that prisoners are held in police cells for only one night before being moved into a reception prison. This operation enables the police to mobilise their operations and work more closely with HMPPS.
Turning to the various points made, the Government do not accept the link made in relation to the probation service by the noble Lord, Lord Ponsonby. We are doing our very best to increase resources for the probation service, to recruit more probation officers and to improve the service to the best of our ability. This extra pressure has been rather unexpected. The Government do not accept that no other options exist; otherwise, we would not have triggered Operation Safeguard, the Government’s primary duty being to keep the public safe. The operation will come to an end as soon as possible, but I cannot give a date.
We are pursuing the prison maintenance programme as far as we can. We have gone around in a circle to some extent: the maintenance work, which was increased recently, has left us with fewer cells. Within the operational possibilities, improving maintenance in prisons is a priority.
As far as mental health is concerned, respectfully, I entirely agree that vulnerable offenders, whether suffering with their mental health or otherwise, should not be part of Operation Safeguard. My information is that those prisoners are not being held in police cells and that prisoners are properly assessed before they move to prison cells.
On the other points raised, the question of sentencing is a matter for the courts. It is right to point out that reoffending is falling, albeit slowly. But it is falling, and we seem to be on a good track in that regard. The Government are fully committed to the rehabilitation of prisoners. On earlier occasions in this House, we have discussed the steps taken, including education in prisons; employment advisers in prisons; accommodation for prisoners being released; and equipping prisoners with an ID pack consisting of a bank account, national insurance number and so forth. That rehabilitation programme is contributing to the steady, albeit slow, fall in reoffending. I hope I have dealt with the main points raised.
Lord Carlile of Berriew (CB)
My Lords, can the Minister point to any empirical evidence or analysis that demonstrates that the doubling of the prison population in the last 40 years has made this country more law-abiding and less violent? Is he able to commit the Government to a new prison policy that is based on merit and not headlines?
Lord Bellamy (Con)
My Lords, I am not in a position to comment on the last 40 years, but, respectfully, I would not make any link between the Government’s policy on prisons and the other matters to which the noble Lord referred. On the second part of his question, as I said just now, sentencing policy is a matter for the courts and not the Government.
Lord Clarke of Nottingham (Con)
My Lords, I think I am correct in saying that we have the second highest incarceration rate in the western world by far, after the United States of America. I have been around for the last 40 years and, in recent years, successive Governments—Labour and Conservative—have tended to introduce an annual criminal justice Bill increasing the maximum sentences for offences that have featured most in the popular press of the previous 12 months. As there is no evidence whatever that the length of sentence has any effect on the incidence of crime, and as the Minister also acknowledges the value of rehabilitation—it is the most valuable service prisons can give the public, because it saves them from future offences that might be committed, unless people go straight when they leave—does he agree that reversing the trend on sentencing and concentrating more on rehabilitation work, which he rightly praises, would be a valuable change in criminal justice policy if the new Government were to adopt it in the next two years?
Lord Bellamy (Con)
I thank my noble friend Lord Clarke for that question. The Government place the highest premium on rehabilitation and reducing the reoffending rate. The Government’s position is that this is not the moment to consider a change in sentencing policy.
Lord Brooke of Alverthorpe (Lab)
My Lords, will the Minister look at, and be so kind as to bone up on, the draft mental health Bill? A section of it deals with the prison population and the inadequate treatment currently given to those with mental health problems. There are some beneficial changes coming, but we need much more. They address only the really vulnerable, and there are many people in prison with serious mental health problems that are not being addressed. The way forward is to give them greater support and assistance. In that context, we perhaps ought to take a more liberal view and not solely employ psychiatrists but bring in therapists to assist with rehabilitation.
Lord Bellamy (Con)
I thank the noble Lord and will certainly bone up on the mental health Bill, as he suggests. It is true that the proportion of prisoners suffering from mental health problems is too high. We, as a Government and as a nation, should try to do something about that, and I hope the mental health Bill will represent progress in that regard.
The Lord Bishop of Carlisle
My Lords, my friend the right reverend Prelate the Bishop of Gloucester much regrets that she is not able to be present today. I know she shares my concern over this Statement since we, like others who have spoken, believe that the emergency use of police cells for prisoners is deeply worrying. We greatly welcome the increase in the number of police officers but feel that it is connected to the larger number of people going to prison, and that that should not be the case. Initially I wanted to ask about rehabilitation, but that question has already been addressed. I accept that the question of sentences is for the courts, but can the Minister help us by saying what the Government are doing to promote community and non-custodial sentences, rather than people simply going to prison?
Lord Bellamy (Con)
My Lords, as I have just said, that is an area for the courts. Judges, of course, have fairly extensive training in sentencing and I think I can fairly say that no judge would send anyone to prison if a community or other sentence was a realistic option.
Baroness Fox of Buckley (Non-Afl)
My Lords, I concede that many members of the public want tougher sentences for serious crimes, but can the Minister comment on a key point made at the North Wales Women’s Centre’s 21st anniversary in Rhyl that I was at the other day? They made the point that far too many prisoners are locked up for short, two-week sentences for non-violent crimes, rather than the Government investing in alternatives to custody. Secondly, if capacity is at such a crisis point, will the Government use the opportunity to finally deal with IPP sentences? They were so awful they were abolished in 2012, but still thousands on IPP are languishing in prisons indefinitely. It is time to end them and free up the space.
Lord Bellamy (Con)
My Lords, in relation to the comment from Rhyl in north Wales, I entirely take the point that is being made. Unfortunately, the courts sometimes feel that a short sentence is the only available, or the best, option in those circumstances—and that, as I have already said, is a matter for the courts. As far as IPP prisoners are concerned, the Government will respond to the recent report from the Justice Committee of the other place, I hope next week.
Lord Cormack (Con)
My Lords, my noble friend said that female prisoners were not involved in today’s announcement, and I completely understand that. However, is it not time to move to a stage where men who are physically male are not allowed to share or be incarcerated in women’s prisons? Surely, we can have enough respect for women to end this deeply unfortunate practice.
Lord Bellamy (Con)
My Lords, action is being taken on transgender issues in the prison estate. I do not have the details with me, but I will write to my noble friend with the up-to-date position.
Lord Hastings of Scarisbrick (CB)
My Lords, the Minister has already said that if the Government had an alternative, they would put it in place. The issue of IPP sentences has been mentioned: 1,988 men are held under IPP charge. They should be set free. The former Prime Minister from the Minister’s own party decided that that was no longer an appropriate sentence, and why the Government persist with it is a bemusement. The number of those held on remand has tripled in the last 15 years and many of those remand prisoners who are young black men do not need to be held in prisons. They are being treated in a discriminating and racially inappropriate manner, simply because of suspicion. The Government ought to end the excessive use of prison for remand.
Lord Bellamy (Con)
The matter of prisoners being held on remand, particularly black prisoners, is again a matter for the courts, before the question of remand or bail comes. The Government respectfully would not accept that it is a matter of racial discrimination. If it were, it would be regrettable—I can certainly say that. I would point out to your Lordships that, in terms of young offenders, and in particular young black offenders, there is very significant success in diversion from the court process, away from youth courts and so forth, so that the number of young offenders coming before the courts has fallen very significantly in recent years.
Lord Mackenzie of Framwellgate (Non-Afl)
My Lords, in my experience, overcrowding in prisons leads to reduced security, which concerns me. The Minister will be aware of the recent case of David Norris, the murderer of Stephen Lawrence, who was found with a mobile phone in his cell at Dartmoor for the second time. Will the Minister tell the House what action the MoJ has taken to stop this egregious breach of security?
Lord Bellamy (Con)
My Lords, I cannot comment on the specific case, although I know that action has been taken. Again, I can follow up with details of what action has been. The Ministry and HMPPS do all in their power to reduce overcrowding wherever possible. I accept the noble Lord’s observation that this needs constant attention.
Lord Farmer (Con)
My Lords, it is interesting that the whole increase is in the adult male estate. It is also interesting that there is a tremendous emphasis on not having women in prison, one of the reasons being that they are primary carers and that relationships are important to them. We have something like 4,000 women in prison and 80,000 men in prison. We do not have the same emphasis for the men. The Statement talks of rehabilitation and my noble friend has also mentioned employment, education and training. There was no mention of relationships, yet the Government’s own data says that prisoners who have family relationships are 39% less likely to reoffend than those who do not. I suggest that the Minister and all other Ministers mention family relationships as part of the reducing reoffending programme, because 39% is not a statistic that we should ignore.
Lord Bellamy (Con)
I accept my noble friend’s points about family relationships and their importance. They should be borne in mind in the rehabilitation programme and in post-release care.
Lord Dholakia (LD)
Community service orders are far more effective than short-term sentences. As a large number of cases go through magistrates’ courts, are we making effective use of such sentences? If not, why not?
Lord Bellamy (Con)
As I think I said earlier, I am sure that a court would always prefer to impose a community sentence if it can.
Baroness Jones of Moulsecoomb (GP)
I would like to correct the Minister. He said in an earlier answer that part of the problem was the barristers’ strike. That is absolutely not true. Part of the problem is that the Government are not funding them properly; that is why we have such a problem. On a wider issue, the Government have started sending climate change protesters to prison for quite long periods of time. I suggest that it would be more appropriate to send the climate criminals to prison and let the protesters out.
Lord Bellamy (Con)
On a point of detail, the Government do not send anyone to prison. These are court decisions.
Lord Watts (Lab)
I apologise for my earlier intervention. The Prison Officers’ Association tells us that there is some space in our prisons: even after the need to do more repair and maintenance, there is still capacity there. But the association says it cannot use that capacity because of recruitment and retention problems. What are the Minister and the Government going to do to staff up our prisons so that they can use the space that they have?
Lord Bellamy (Con)
We are working hard on a recruitment programme for prison officers. I do not have the exact figures in front of me, but I think we have recruited an additional 5,000 or so in recent times. I will give the noble Lord the exact figure as soon as I can obtain it.
Baroness Wheatcroft (CB)
My Lords, many prisoners arrive illiterate or barely literate, yet earlier this year His Majesty’s Chief Inspector of Prisons said that
“it is astonishing that prisoners can serve their sentence without being taught to read or to improve their reading skills”.
So they leave prison illiterate, cannot find work and reoffend. Will the Minister undertake the cost-saving measure of ensuring that every prisoner is taught to read?
Lord Bellamy (Con)
My Lords, in relation to specific costs, no, but in relation to the general question of whether we should improve and develop educational facilities in prison, particularly so that prisoners can read, yes, the Government entirely agree with that aspiration.
Baroness Berridge (Con)
My Lords, I serve on the Joint Committee on the Draft Mental Health Bill, which has been mentioned before. In a secure mental health hospital, there will be prisoners who are civilian patients as well as people who have been transferred from the prison estate. Hopefully, of course, they are treated and then are well enough to go back into the prison estate. However, do we have an issue here of people still being within secure mental health hospitals, where beds are scarce, because they cannot be moved back into the prison estate?
Lord Bellamy (Con)
We do have an issue, as my noble friend puts it, around managing mental health in the community and among prisoners. I hope the Mental Health Bill will help to address that. This is an ongoing problem of which the Government are well aware and to which we are working towards solutions.
Baroness Manzoor (Con)
My Lords, I would hope not only that those in prison are able to read but that we are doing everything we can in the education system to ensure that no child leaves school without being able to read and write. What are the Government doing to ensure that children and young people are made aware of the dangers of prison and illegal acts much sooner in the system, so that we are not catching people after they have offended?
Lord Bellamy (Con)
My Lords, that is a question directed to the education system and slightly outside my present brief. But I would hope that everything is being done to educate children in following the right way of life.
Rape: Prosecutions and Support
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Baroness Donaghy
To ask His Majesty’s Government what steps they intend to take (1) to increase the number of rape prosecutions, and (2) to provide more support for women and men affected by rape.
The Parliamentary Under-Secretary of State, Ministry of Justice (Lord Bellamy) (Con)
My Lords, the 2021 End-to-End Rape Review Action Plan committed us to double the number of adult rape cases reaching court by the end of this Parliament, back to 2016 levels. We have since seen an increase in both prosecutions and convictions. Actions taken include establishing the criminal justice dashboard; funding Operation Soteria, making police investigation suspect-focused; providing the rape and sexual abuse support fund; launching a 24/7 rape and sexual abuse support line; and completing the rollout of pre-recorded cross-examination, so that victims no longer must face the courtroom but can be cross-examined beforehand.
Baroness Donaghy (Lab)
I thank the Minister, but under this Government, conviction rates for rape have reached historic lows, with only 1.3% of recorded rapes resulting in a charge. MoJ data from June of this year showed that 28% of 53,000 outstanding Crown Court cases were for alleged sexual offences, with up to five years before anything reaches the court. Some 65% of cases analysed in London last year ended in victim withdrawal, revealing a lack of high-quality victim care in the justice system. What other plans do the Government have to improve this shocking situation?
Lord Bellamy (Con)
My Lords, first and with respect, we are making progress on this matter. Your Lordships will perhaps recall that, after 2016 and the Allan case, where a prosecution collapsed for lack of disclosure, prosecutions for rape fell until 2019. Then we had the pandemic. That is why the Government are now committed to returning to 2016 levels.
I will give one example of progress. In 2016, a total of 766 rape cases per quarter were referred by the police to the CPS. In Q2 2022, we had 901 such referrals, up on 2019 by 97% and even up on 2016 by 18%. Many other examples can be seen on the criminal justice system delivery data dashboard at justice.gov.uk, to which I respectfully refer your Lordships. You can see the progress we are making on every offence, across every region of the country. That is a considerable achievement and I commend it to your Lordships. In response to the noble Baroness, I do not doubt that difficulties remain, but we are making progress.
Lord Morris of Aberavon (Lab)
My Lords, an accusation of rape is a very serious matter for both the victim and the accused. I have repeatedly asked for a breakdown of figures for rape cases where the defence is consent and where there is a failure to convict—a situation of which I have long experience. Will the Minister go back to the Attorney-General, who supervises the CPS, to ask why these figures cannot be provided? This may be the heart of the problem.
Lord Bellamy (Con)
I will certainly do my best to accommodate the noble and learned Lord.
Baroness Burt of Solihull (LD)
My Lords, many victims of rape are reluctant to follow through on prosecutions because they need medical and other care, and they want to be believed. A report from over 20 years ago by a policeman whom we may know, one Brian Paddick, and the academic Betsy Stanko, led to the establishment of sexual assault referral centres across England. But this year, an NHS survey found that 72% of victims are unaware that this support is available. If more victims knew about and used these centres, would more successful prosecutions not follow?
Lord Bellamy (Con)
My Lords, the Government are making every effort to increase support for victims of rape and sexual assault. We now have a 24/7 helpline, as I said, have increased recruitment of ISVAs—independent sexual violence advisers—and the rape support fund is £21 million this year. So I hope we will be able to address the point the noble Baroness raised, of which I take good note.
Baroness Verma (Con)
My Lords, can the Minister assure me that the number of women who are not able to communicate, as English is not their first language, is also collected in the data that my noble friend mentioned? How are we monitoring whether women from communities that cannot communicate fully in English are fully supported by the systems?
Lord Bellamy (Con)
I take good note of my noble friend’s question and will do my best to assure her that those pressing needs are dealt with.
Baroness Gohir (CB)
My Lords, some police officers spend more time considering the credibility of the victim than the rape allegation made. They unreasonably snoop through women’s mobile phone messages and emails, downloading their entire history. Perhaps they think they can get away with it. Will the Government implement the recommendation made by Vera Baird, the former Victims’ Commissioner, to provide legal aid solicitors to rape victims, who can challenge unreasonable demands made by the police?
Lord Bellamy (Con)
A legal aid solicitor ought to be able to challenge unreasonable demands by the police under the existing regime. However, I refer this House to Operation Soteria, which is directed to the very point that the noble Baroness makes about the focus on the victim rather than the suspect. It started as a pilot with Avon and Somerset Police, is gradually being rolled out nationally to 19 police forces, and should turn the approach around so that it focuses on the suspect, not the victim.
Baroness Thornton (Lab)
My Lords, many noble Lords have mentioned victims. When might we find the long- promised victims Bill coming forward? What is the Minister’s view on the Labour Party’s policy to make violence against women and girls a serious crime in legislation?
Lord Bellamy (Con)
The Government hope to bring forward the victims Bill as soon as possible but have no present plans to change the legislation on violence against women or, indeed, anybody else.
Baroness Chakrabarti (Lab)
My Lords, many women are facing a crisis of trust and confidence in the criminal justice system at the moment. I appreciate that the Minister is relatively new to this arena. However, there are people who believe that rape has effectively been decriminalised in our jurisdiction. That is a very serious matter. Would he consider meeting me, perhaps the noble Baroness, Lady Newlove—who is not in her place—other interested Members of your Lordships’ House and victims’ groups, including the Centre for Women’s Justice, to hear their experience before taking this work further forward?
Lord Bellamy (Con)
I would certainly be prepared to meet the noble Baroness and others and, on that occasion, take everyone through the steps that we are taking to combat this problem.
Lord Pannick (CB)
My Lords, in January this year, the Ministry of Justice said in answer to a Parliamentary Question from the shadow Attorney-General, Emily Thornberry, that the typical delay between an offence of alleged rape occurring and the completion of the resulting criminal trial was 1,000 days. That is a shocking statistic. What is the Ministry of Justice doing about this?
Lord Bellamy (Con)
There are several steps. There is the reference from the police to the CPS, the CPS charging decision, the CPS bringing a case, the delay in the court and so forth. Delays in the court are still a problem and have unfortunately been made worse by the barristers’ strike. Other delays have been reduced. All I can say to the noble Lord is that we are working as hard as we can to address this problem.
Baroness Armstrong of Hill Top (Lab)
My Lords, I am concerned that the Minister’s ambition seems to be to get back to the figures from 2016. Those who work with children, young women and women who have been abused, sexually and in other ways, know that the numbers misrepresented the problem that was out there even in 2016. A recent report from Agenda looks particularly at young women. It is searing about the experiences across the board, particularly in ethnic minorities. Unless support is there earlier, those young women and other women will not get near justice. The Government really need to take that into account.
Lord Bellamy (Con)
The Government are working as hard as they can. This is a top priority, and I take good note of the noble Baroness’s remarks.
Humanist Marriages
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Baroness Blackstone (Lab)
My Lords, I beg leave to ask the Question standing in the name of my noble friend Lady Bakewell on the Order Paper.
The Parliamentary Under-Secretary of State, Ministry of Justice (Lord Bellamy) (Con)
My Lords, the Law Commission recently published its report on reforming wedding law in England and Wales. We must consider the 57 recommendations in full. It is important that we balance the needs and interests of all groups, religious and non-religious, and very carefully consider the implications of changing the law. I hope to be able to publish our initial response in the first part of next year.
Baroness Blackstone (Lab)
My Lords, I thank the Minister for his reply but I must say that I am a little disappointed by it. The Law Commission, to which he referred, took no position on this question. It did not make a recommendation one way or the other. That is because this is a political decision. What is preventing the Government from going ahead and laying an order under the 2013 Act, getting it done now, and stopping once and for all the discrimination against humanists in this area?
Lord Bellamy (Con)
My Lords, in a nutshell, the Government’s position is that to lay an order under the 2013 Act solely in favour of humanists would discriminate against other groups—Muslims, Sikhs, Hindus and so forth—in permitting them to have a particular form of marriage not available to other groups. The Government’s position is that we must go forward together and solve the whole problem. I will elaborate in a moment on what the problem is.
Lord Cormack (Con)
My Lords, we need to get a move on here. As one who believes very fervently in Christian marriage but even more in the institution of marriage, I ask: how can it be sensible to allow a wedding to take place in a registry office but not to allow humanists, who have their own ethics, to have a proper marriage ceremony? We need to get a move on. We had an almost identical Answer last time. Let us have a better one next time.
Lord Bellamy (Con)
The Law Commission, in a very detailed and well-argued report, took the view that we should proceed as a country to solve the whole problem across all faiths at the same time and not favour a particular group. That is the Government’s position, and we will publish our position shortly.
Baroness Meacher (CB)
My Lords, it will be 10 years next year since I tabled an amendment to the 2013 Marriage (Same Sex Couples) Bill about humanist marriages. In response to it, the Government tabled their own amendment enabling Ministers to make this tiny change—we are talking about two words—adding “and humanists” to Quakers and Jews. It seems highly unlikely that any legislation will pass following the Law Commission’s report before the next election. Therefore, will the Minister meet me to discuss how, 10 years on, this tiny adjustment can be made to the law through a ministerial order to end this discrimination once and for all?
Lord Bellamy (Con)
My Lords, I am happy to meet the noble Baroness, but I doubt whether I shall be able to give her the assurance that she asks for. This is a quite difficult problem. We have to solve it across the board without discrimination either in favour of or against any faith group or non-faith group. We have to deal with the civil preliminaries for marriage, who is to be authorised, what is the regime for authorisation and, in particular, the problems raised by the All-Party Parliamentary Humanist Group itself in relation to the Law Commission’s report.
Baroness Thornton (Lab)
My Lords, why is it that Scotland and Wales have managed to have humanist weddings in their law? If I sound frustrated it is because I was part of the move in which, with enormous cross-party support, this House agreed an amendment to the equal marriage Bill which would allow humanist weddings. That has not been implemented by successive Conservative Governments. There must be a reason why that is the case, because it is not complicated or discriminatory. It is actually very straightforward. If and when my son wants to get married and wants a humanist wedding, he has to go to Scotland or Wales. That seems very unfair indeed.
Lord Bellamy (Con)
My Lords, the Law Commission recommended reform. That has already taken place in other jurisdictions. We are working on exactly how the reform should take place in this country as fast as we can.
The Lord Bishop of St Albans
My Lords, those of us on this Bench in principle have no problem at all with humanist weddings. Does the Minister agree that the best way forward is the one that has been alluded to already, which is that it could be achieved most easily by following the historical precedent established with Jewish and Quaker weddings rather than adopting the overtly complex recommendations of the Law Commission’s report?
Lord Bellamy (Con)
The Government have to consider in detail the Law Commission report, its undoubted strengths and the various points that have been made about it, not least by humanists. We will publish our position as soon as we can in the new year.
Lord Desai (Non-Afl)
My Lords, is the problem that the humanists are not religious? Every other religion has been treated kindly and LGBTQ marriages can take place. Just the humanists in England are discriminated against. Is the Church of England so upset about humanists that it will not let humanists get married?
Lord Bellamy (Con)
My Lords, as far as I know, this problem is not a matter for the Church of England. The Government’s view is that as a country we should proceed across the board to solve and update our law of marriage all at the same time.
Baroness Burt of Solihull (LD)
My Lords, in Scotland, where humanist marriage is legal, as has been mentioned, there are more humanist marriages than Christian ones and marriage is more popular than ever. David Cameron supported gay marriage because he believed that marriage is a good thing and that everyone should be able to marry. Do this Government believe that marriage is a good thing? If so, why will they not allow humanists to legally marry?
Lord Bellamy (Con)
This Government strongly support the institution of marriage. I am probably boring your Lordships by repeating myself: the Government think the whole problem should be solved across the board at the same time, not just with one group—the humanists.
Lord Griffiths of Burry Port (Lab)
My Lords, I declare an interest as a Methodist minister nearing 50 years since I was ordained and someone who enjoys the fellowship of humanist celebrants in funeral services in crematoria across the city. I declare to the Minister my total bewilderment at the nature of this discussion. It would enrich us all if people, according to conscience and practice, could marry in the way asked for in this Question. Can he understand the predicament of those of us of religious persuasion—the right reverend Prelate the Bishop of St Albans and the noble Lord, Lord Cormack, have also spoken from faith positions—in that it would be an addition to the richness and value of the ceremonies we produce? Can the Government explain why they cannot understand this?
Lord Bellamy (Con)
With respect, I very much hope that the Government understand what the problem is. As the Government see it, we should have a regime for marriage in this country in which the civil preliminaries are common to all marriages, the persons who conduct marriages are authorised under one regime, we define what belief systems we will accept as people capable of authorising marriages, and we exclude extremists, cults and so forth. These are not straightforward questions. It is a very simple and, if I may say so, not complete answer to say that it is easy to do it for the humanists. We want to make sure that, for example, a marriage of a Muslim at home—which might not be a lawful marriage at the moment—is now taken forward and that we create a situation in which that becomes a lawful marriage and we have proper officiants, rules and regulations that regulate it all. That is the Government’s position.
Baroness Brinton (LD)
My Lords, I supported the amendment from the noble Baroness, Lady Meacher, to the same-sex marriage Bill of 2013. The Minister probably feels rather beaten up by Members from all sides of your Lordships’ House, but we remember what Ministers said then. The provision that was arranged was deliberately simple to enable this to happen. I am sure the House would welcome other faiths being drawn into it, but this is long overdue. Please can he go away and look back at the history of the passage of that Act?
Lord Bellamy (Con)
I will of course go back and look at the history. I am equipped with elderly but serviceable shin-pads and am quite used to having my shins thoroughly kicked when necessary, but in this case the Government feel that the country as a whole must go forward together and not favour a particular group.
Lammy Review
Lord Bellamy Excerpts(1 year, 10 months ago)
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The Lord Bishop of Gloucester
To ask His Majesty’s Government what progress they have made towards implementing the Lammy Review, published on 8 September 2017.
The Parliamentary Under-Secretary of State, Ministry of Justice (Lord Bellamy) (Con)
My Lords, the Lammy Review, which the Government warmly welcomed, made 35 recommendations and the Government undertook actions in respect of 33 of them; only two others relating to the judiciary were left on one side. We have now completed 29 out of the 33, and outstanding actions continue in respect of the remaining four. Since the Lammy Review in 2017, our work has evolved considerably and the Government’s Inclusive Britain strategy, published in March this year, is central to this work.
The Lord Bishop of Gloucester
I thank the Minister for that Answer. Despite it being pledged in the Conservative manifesto, we have heard no more about the royal commission on the criminal justice system. Might the Minister be able to say, first, when we will hear more and, secondly, whether racial disparities will be prioritised by that commission?
Lord Bellamy (Con)
My Lords, I am not in a position to help the right reverend Prelate on the question of the royal commission on the criminal justice system. However, I can say that we are making considerable progress in matters relating to racial discrimination, which is the subject of this Question.
Lord Marks of Henley-on-Thames (LD)
My Lords, a key recommendation of the Lammy Review was to set a clear national target to achieve a representative judiciary by 2025. The review identified low recommendation rates for black and ethnic minority candidates as a challenge to judicial diversity, suggesting a skewed appointments system. We are now five years through the eight-year target period. The 2022 statistics, published in July, show slow progress for Asian candidates, but none at all for black and other ethnic minority candidates since 2014. Recommendation rates for black and ethnic minority candidates across the board remained far lower than for white candidates. What do the Government plan to do to address this striking lack of progress in a vital area?
Lord Bellamy (Con)
My Lords, much effort is being devoted to this problem through the Judicial Diversity Forum. The judicial diversity and inclusion strategy for 2020 to 2025 aims to increase the pool of candidates and attract the best talent. Actions for 2022 include continued MoJ funding for the pre-application judicial educational—PAJE—programme to support lawyers from underrepresented groups to prepare themselves for the judicial application process. There is also a Judicial Appointments Commission—JAC—outreach programme to encourage and prepare applicants for more senior appointments, and a “becoming a judge” scheme especially for ethnic minority solicitors interested in the judiciary. A joint judicial and MoJ programme is in train to improve diversity among magistrates, with an applicant-tracking system to identify ethnic minority candidates. Other professional bodies are also pursuing complementary strategies. In that connection, I pay particular tribute to the Law Society, whose past president, Stephanie Boyce, and present president, Lubna Shuja, are both from ethnic minorities.
Baroness Gohir (CB)
My Lords, the Prison Reform Trust also conducted research on black and Asian women and found that, although they faced similar experiences to white women in the criminal justice system, they are more likely to receive custodial sentences and more severe sentences for comparable crimes. The research also found that their offending is rooted in domestic abuse. What action are the Government taking to address the specific biases experienced by ethnic minority women; for example, are judges provided with bias and domestic abuse training, is it sufficient, and do they receive refresher courses?
Lord Bellamy (Con)
My Lords, certainly, judges are provided with domestic abuse training. The Equal Treatment Bench Book places particular emphasis on avoiding bias in sentencing and related outcomes. The judiciary, whose task it is to ensure absolute absence of bias, is well appraised of this problem and working on it.
Baroness Berridge (Con)
My Lords, I am currently serving on the Joint Committee scrutinising the draft Mental Health Bill. The Lammy Review made it clear that black and minority ethnic prisoners are more likely to have undiagnosed mental health issues, learning disabilities or autism. Will my noble friend the Minister confirm that the scheme of court liaison mental health practitioners being in all courts when people appear in front of them for the first time is going to be rolled out? Will priority be given to youth courts, as it is quite common for young offenders under 21 to have a patchy record in school, which is obviously one of the main places they would be diagnosed as having a learning disability or being autistic?
Lord Bellamy (Con)
I can give my noble friend the assurance that she seeks. Through the community sentence treatment requirements programme we are working with health agencies to improve access to mental health services for those who need them. In particular, liaison and diversion services are funded by the NHS and should now be present in all police custody suites and magistrates’ courts to provide early intervention for vulnerable people, acting as a point of referral and providing a prompt response to concerns raised by police, probation or youth offending teams. I hope that has addressed the question asked.
Lord Ponsonby of Shulbrede (Lab)
My Lords, in answer to the right reverend Prelate, the Minister said that there had been progress regarding disproportionality. He went on to give the noble Lord, Lord Marks, an example of trying to get a better balance of judges and magistrates. I might characterise those as inputs, but what about the outputs? What about disproportionality in stop and search, in charging, and in ethnic minorities in prison places? What progress has been made on that front?
Lord Bellamy (Con)
My Lords, stop and search is a matter primarily for the Home Office and the police, but I know that there is special training for police services in relation to this, including better use of body-worn cameras and other action taken to ensure that stop and search is less of a problem than it has been hitherto. In relation to charging, the Lammy report found no discrimination by the CPS in charging decisions, but there is ongoing academic work to establish exactly what the position is as far as the CPS is concerned.
As far as other matters are concerned, this is very much a matter of trust in the system between the ethnic minority and those who are dealing with that person. One of the things in train in the police station is a trial of an opt-in system when legal advice is available. As noble Lords know, free legal advice is available to everyone in the police station. The take-up by ethnic minorities is not very great, because it has to be asked for, but if it is given automatically and the person has to opt out of it, that could make quite a difference in building trust. That is an important initiative currently in train that I hope will bear fruit in due course.
Baroness Chakrabarti (Lab)
My Lords, returning to the sensitive but vital subject of judicial diversity, it has long been understood that, in order to do its job, our highest court must have at least one senior justice from Northern Ireland and one from Scotland. Yet, to my understanding, not once have we ever had a black or brown senior justice as a Law Lord or, latterly, in our Supreme Court, notwithstanding the Privy Council, Commonwealth and Empire heritage. Is that really acceptable? Is it not time to experiment with time-limited affirmative action?
Lord Bellamy (Con)
That is a matter for the Judicial Appointments Commission. I cannot challenge the facts that the noble Baroness presents. This is certainly an area on which continued work is necessary.
Baroness Prashar (CB)
My Lords, one of the Lammy report’s recommendations was the development of performance indicators for the Prison Service. Have these been developed? If so, can they be made public so that we can see whether progress has been made against those indicators?
Lord Bellamy (Con)
Performance indicators in the Prison Service are one of the recommendations that it has not been possible to take forward yet. It is quite difficult to do as it is difficult to devise these indicators. What I can say about the Prison Service is that we are making a strenuous effort to recruit more ethnic minority staff, who, in due course, will work their way up through the system and become more senior. On the latest figures, we are up to about 16%, which is a significant improvement on where we were.