Police, Crime, Sentencing and Courts Bill

Lord Carlile of Berriew Excerpts

Lords Hansard - part one & Committee stage
Monday 1st November 2021 Lords Chamber

[Lord Thomas of Cwmgiedd (CB)]

If I might attempt to answer the noble Viscount’s question, paramount importance is given to the interests of the child because evidence has shown that, where there is abuse of children and where mothers are imprisoned, you pass on criminality to a new generation. That is the distinguishing factor. I therefore very much hope that we can look at these amendments for the principle. I am possibly not as keen as others on the detail, for the reasons I have given, but we need to show that one of the fundamental principles of sentencing is to take into account, through the interests of the carer, the interests of the child.

[Lord Carlile of Berriew (CB)]

My Lords, I agree entirely with my noble and learned friend who has just spoken that there is a principle here that needs to be considered rather than the granularity of these amendments. Indeed, I would say to the noble Viscount that, although we should try to achieve the protection of all people who are vulnerable, you cannot do everything at once. It is the whole of the life of the child in front of them that is affected if a parent is in prison.

The right reverend Prelate moved these amendments eloquently. I will say, very respectfully, that I think she omitted one or two key elements. These may lead one to the conclusion that we do not need quite complicated amendments but can achieve her aims, which I share, by a simpler method that is more evolutionary in its process. I might perhaps raise a couple of specifics. First, the information that the right reverend Prelate referred to is sometimes simply not before the court. That is because legal aid does not now provide solicitors with the earning potential—and it is not a high earning potential—to go out and investigate the reality of a child’s position. This means that the necessary information may not get in front of the court at all.

I had a conversation some time ago with somebody who was working as a manager of excluded primary school children in one of the London boroughs. She told me that she often rang the solicitors for 11 year-olds right at the top of the primary sector, or sometimes when they had just moved from the primary sector, to ask if they were aware of certain aspects of the child’s life—and they had no idea. They do not have the resources to make those inquiries. Furthermore, when cases come before the court, it is nowadays very rare in the Crown Court for a solicitor to be there instructing counsel in such cases, and, in the nature of the profession and the fees payable, counsel may have received the brief only the night before, and it may be a very junior counsel. These are the practical issues that judges encounter all the time.

I want also to say something about judges; I have a family interest in this, which I will not go into in great detail, despite the urgings of my noble and learned friend Lord Garnier. It is this: judges should be given credit for understanding the problems that the right reverend Prelate raised; she perhaps did not quite get there. Judges, many of whom are mothers themselves, hear these cases and understand perfectly well. They do not need a statute to tell them that it is not in the interests of a child for that child’s mother to be sent to prison .They do everything they can—on the basis of the information they are given, which may give rise to the real problem—to ensure that, if at all possible, a woman who has primary caring responsibility for a child is not sent to prison.

[Lord Falconer of Thoroton (Lab)]

I apologise for interrupting. The right reverend Prelate’s Amendment 215 says:

“A court must make inquiries to establish whether the offender is a primary carer for a child”,


and, if those inquiries suggest that the defendant is a primary carer, then, according to the amendment, the court has to direct a pre-sentence report on the circumstances of the child. Does the noble Lord object to that burden on the courts?

[Lord Carlile of Berriew (CB)]

I do not object to that burden on the courts, but I am surprised that it has to be placed upon the court. My view is that that sort of report should be part of the process when a young mother, for example, appears before the court. Mechanisms already exist that can ensure that such information is given. I am saying that we can achieve the same purpose more simply—for example, by the use of the Sentencing Council, if it is asked to concentrate on these issues.

I simply add this. The last statistics I have seen for women in prison, for 2020, show that 3.4% of prisoners are women. This is the lowest percentage it has ever been, and it is continuing to fall because the courts absolutely understand what those who tabled these worthy amendments are saying.

When the Minister replies, I hope he may be able to provide reassurance that the ends of these amendments will be achieved but in a more flexible way that can evolve over time, rather than by slightly clunky statutory provisions that, in my view, should not be necessary. Do we really need an Act of Parliament to ensure that courts give proper account to the paramount interests of children, which my noble and learned friend referred to a few moments ago?

Assisted Dying Bill [HL]

Lord Carlile of Berriew Excerpts

2nd reading
Friday 22nd October 2021 Lords Chamber

[Lord Carlile of Berriew (CB)]

My Lords, I admire greatly many who have conscientiously proposed and supported this Bill and similar legislation over many years, but they must remember that this is their fourth attempt to introduce such legislation in recent years. On every occasion, there have been serious granular concerns about the safeguards provided in the draft legislation for the many particularly vulnerable people who could face the choice being offered. Therefore, it is my view that we are entitled to expect the proponents now to have dealt with all those matters. I am going to address just one legal matter that they have failed to address.

Clause 1 requires the consent of the Family Division of the High Court before suicide can be assisted. If you read it carefully, you see that tests requiring detailed and potentially complex evidential analysis are set out, which inherently raise the possibility of objections by family members, doctors and others. The Bill is silent as to whether one Family Division judge should hear these cases, or a group. One of the consequences of approval, as set out in Clause 4(4)(c), involves active euthanasia by a health professional who would

“assist that person to ingest … the medicine”.

The Bill therefore asks a Family Division judge to approve something that no judge has ever been asked to do since the abolition of the death penalty—namely, intentionally bring to an end the life of another person of full mental capacity and competence.

Have the judges been asked? There are but 20 Family Division judges; they have a heavy workload, much of it concerned with daunting questions of the welfare of children. They are busy men and women, of good conscience. I have heard no evidence at any stage of their opinions being sought, let alone analysed, whether through official channels or otherwise. Why have they not been asked, in a proper way? Why have we not been provided with any evidence of the supposed viability of the proposal?

Let us suppose that 25% of those judges objected to the jurisdiction on grounds of conscience, which would have to be respected, and that there were 1,000 cases a year—a very conservative estimate, given that legislation of this kind tends to create its own culture change, as experience elsewhere has shown. Each case would be bound to take two or three days before the court. In a sentence, the Family Division would be swamped by those cases; it would not be able to do anything else—and this is something that has been wholly and dangerously overlooked, even without asking those judges.

In my view, parliamentary Bills founded on such fragile safeguarding and analysis, especially after years of trying to produce acceptable safeguards, should really not be troubling your Lordships’ House.

Hillsborough: Collapse of Trials

Lord Carlile of Berriew Excerpts

Monday 14th June 2021 Lords Chamber

[Lord Wolfson of Tredegar (Con)]

My Lords, we will of course keep this point of law under consideration but not for the reasons the noble Lord gives, if I may say so respectfully. The Prime Minister has already confirmed that the Covid inquiry—if I can call it that—will be established on a statutory basis with full formal powers. That means that Section 35 of the Inquiries Act 2005 will apply. That makes it an offence to commit acts that tend

“to have the effect of … distorting … altering … or preventing … evidence”

from being given to a statutory inquiry.

[Lord Carlile of Berriew (CB) [V]]

Will the Minister confirm that the DPP himself advised on charges brought in the trial and on the surprising decision not to appeal the trial judge’s terminating ruling? Will the DPP follow the practice of publishing his advice in important cases? Will the Minister explain why alternative charges of misconduct in public office were not brought against all three defendants, as they could have been?

[Lord Wolfson of Tredegar (Con)]

My Lords, the CPS sought advice from senior Treasury counsel pre-charge. Decisions on appropriate charges were made after consideration of that advice. Those decisions were taken in 2017, predating the current director’s term of office. As far as misconduct in public office is concerned, that charge was not available for Mr Metcalf, the solicitor for South Yorkshire Police’s insurers. The allegations against the two officers were related closely to his conduct. Therefore, it was considered that the same charge against each was appropriate. The CPS did not appeal the decision because, having carefully considered it, it concluded there was not a proper basis to appeal to the Court of Appeal. As for the point about the director publishing advice, he does not sit under the Ministry of Justice, as the noble Lord will be aware, but I will pass that point on to the director, whom I note is appearing before the Justice Select Committee tomorrow.

Queen’s Speech

Lord Carlile of Berriew Excerpts

Tuesday 18th May 2021 Lords Chamber

[Lord Carlile of Berriew (CB)]

My Lords, I join in the congratulations to the noble Baroness, Lady Fullbrook, on her excellent maiden speech. With her wide experience, she will clearly be an asset to your Lordships’ House.

For a time I was privileged to be the president of the Howard League for Penal Reform. That and other experience, including my 50 or so years as a criminal lawyer, have left me completely unpersuaded that increasing sentences and the population of prisons in general, and filling an ever more challenged prison estate, achieves any public good whatever.

When I was in another place in the 1980s, many of us were horrified that the prison population had passed 35,000. That horror attracted people in all parties at the time. It has now more than doubled, without any obvious sign of the country facing less crime, whether serious or not. Is the United Kingdom a better place because there are now more than 80,000 people in prison? I confidently say no, and there is no intellectual basis for saying that it is.

I urge Her Majesty’s Government to focus not on building more prison cells but on creating more and constructive opportunities for offenders to achieve a lawful life without serving time. I commend strongly the work already done by the right reverend Prelate the Bishop of Gloucester, who spoke very eloquently in that regard.

I will add something that I and the noble Lord, Lord Ponsonby, agree on—that young offenders should be able to graduate out of their criminal records. We heard a wonderful speech earlier from the noble Lord, Lord Bird, who has been able to reach your Lordships’ House, which I suppose is some height of achievement, despite having had a record as a youngster. But most youngsters do not reach your Lordships’ House. They cannot even get a job because when they apply for a job—for example, in the public sector—their old prison record is available to those who wish to employ them. Should that really happen to a 30 year-old found guilty of possessing cannabis when he or she was 15 or 16? I think not and I am astonished that the Government have ignored this device over a long period.

I turn next to treason, which has not yet been mentioned in this debate, but does arise from the gracious Speech. The Government wish to restore the law of treason in some amended form. It has not been used since the conviction in 1946 of William Joyce—Lord Haw-Haw, as he was known, although he was not a Member of your Lordships’ House. The motive for reintroducing treason is completely oblique and disreputable and the Government must recognise this. It is to avoid—to circumvent—the necessity of proving a specific crime or criminal intent by foreign terrorist fighters, such as the likes of Shamima Begum.

I regard as extremely serious and reprehensible the decisions and actions of British people who become foreign terrorist fighters. The noble Baroness, Lady Stowell, mentioned a somewhat eccentric jury decision. It will be nothing compared with a jury faced with the option of convicting someone for treason who has been a foreign terrorist fighter. Indeed, I have heard it said—I may even have said it myself to juries over the years—that the most democratic thing most jurors ever do is serving on a jury. They are not going to let it happen in cases like that.

As a coda I will add this: both the noble Lord the Minister who opened this debate and the noble Baroness the Minister who will close it are very good listeners. I think we should listen to them. During the past year we have had the luxury of voting in huge numbers against everything, but we have seen the mandate the Government have. I urge your Lordships that we should now be responsible and go for the art of the possible, not the luck of the improbable.

Counter-Terrorism and Sentencing Bill

Lord Carlile of Berriew Excerpts

3rd reading
Thursday 11th March 2021 Lords Chamber

[Lord Carlile of Berriew (CB) [V]]

My Lords, I echo the verbal applause given so eloquently by the noble and learned Lord, Lord Falconer of Thoroton, for the contribution and consultation given by Ministers. I have one regret about the Bill, which is that the potential role of the Parole Board is not recognised properly in it. However, with some confidence I express the hope that, outside the time pressures to complete the Bill in this Session of Parliament, Her Majesty’s Government will talk to the Parole Board at the most senior levels to ensure that best use is made of the board’s skills and of its long and successful rollout of relevant training on terrorism matters to its members. The Government should not forget that the Parole Board holds a high degree of accountability in public confidence.

I support the proportionate use of polygraphs, and I am heartened to hear that the Liberal Democrats have become converted to that use. I support it as one, but only one, of a larger set of psychological and neurological tools in assessing the risks presented by terrorist prisoners if they are released. I support the extension of TPIMs to the standard formerly available through control orders. When I was Independent Reviewer of Terrorism Legislation, I repeatedly opposed the dilution of those orders in 2010-11 by the coalition Government, and I only regret the passage of 10 years to reach today’s position. I recognise with acclaim the work of my noble friend Lord Anderson of Ipswich on raising the length and standard of proof of TPIMs to a sound and realistic level. What I believe is the now achieved compromise, the limit of five years, is acceptable, but as long as prosecution always remains the preferred option.

I could but will not say much more, other than recognising that your Lordships’ House has left a better Bill than we started with. Of course, in the years to come, we shall scrutinise the operability of the Act and not hesitate to suggest further changes.

Counter-Terrorism and Sentencing Bill

Lord Carlile of Berriew Excerpts

Committee stage & Committee: 1st sitting (Hansard) & Committee: 1st sitting (Hansard): House of Lords
Tuesday 26th January 2021 Lords Chamber

I understand that Mr Hall’s review announced yesterday will clearly be important in updating our understanding of the challenges and that a government strategy would clearly be informed by that and, to some extent, the timing of it. However, it is not credible nor right that the Government should seek to extend sentences for terrorists without a parallel determination to improve rehabilitation and deradicalisation programmes. I very much hope that the House will support this. I beg to move.

[Lord Carlile of Berriew (CB) [V]]

My Lords, I give my strong support to both amendments in the group: that moved by the noble Lord, Lord Hunt of King’s Heath, and the one that will be spoken to later by my noble friend Lord Ponsonby of Shulbrede.

I want to start by thanking the joint strike force on the Government Front Bench—the noble Lord, Lord Wolfson, and the noble and learned Lord, Lord Stewart—who have brought a refreshingly clear and responsive attitude towards debates on quite complicated legal issues. I can say of both of them that their engagement with Members has been exemplary; the noble Lord, Lord Wolfson, has specialised in short, 20-minute conversations that cover everything in a relatively short time. I just hope that the noble Lords will not get over the open consultation they are giving to other Members of your Lordships’ House. It is very welcome.

I too want to reflect on what was said by the Independent Reviewer of Terrorism Legislation, Jonathan Hall QC, yesterday. Obviously, he is very concerned about the efficacy, if such efficacy exists, of deradicalisation programmes in prisons. I am given to understand that the successor to my short-lived appointment as Independent Reviewer of Prevent will soon be appointed. I wonder whether this afternoon, as a piece of instant gratification to us all, the noble and learned Lord, Lord Stewart, in replying to this debate may be able to tell us who that is going to be and announce the appointment. I am given to understand that it may literally be imminent.

During my time in that role, just as I came to the end of it as a result of an unwelcome judicial review, I was about to start the sort of examination that has been announced by Jonathan Hall. There is a background to it. A whistleblower came to see me from the prison where Usman Khan, the Fishmongers’ Hall terrorist, was held. On my advice, that person immediately spoke to officials at the Home Office and the Home Office was made aware of the problems. It is clear that deradicalisation programmes in prisons are not working at all well. Maybe some are working but nobody knows which ones are working and on whom.

I draw your Lordships’ particular attention to proposed new subsection (2) in Amendment 35 from my noble friend Lord Ponsonby, which sets out six criteria that need to be examined to see how these programmes are working. When I was the Independent Reviewer of Prevent, I had a review carried out of all the academic literature on Prevent, including these programmes. It exposed that no real measurement is being made of such programmes—no surprise given that the Fish- mongers’ Hall terrorist was thought to have been totally reformed. Before the programmes are put in place, they need to be carefully analysed and verified by proper, academic and, where possible, neurological research in which polygraphs are not an answer in themselves but a legitimate neurological tool as part of the armoury of an assessor.

I hope that the Government will recognise that these two amendments raise some serious issues that require the closest of examination.

[The Deputy Chairman of Committees (Baroness Henig) (Lab)]

The noble Lord, Lord Ramsbotham, has experienced computer problems, so we must move on to the noble Baroness, Lady Hamwee.

--- Later in debate ---

[Lord Faulks (Non-Afl) [V]]

My Lords, the Bill has been broadly welcomed, in light of the Fishmongers’ Hall and Streatham attacks, by noble Lords across the House. One could add to that sad litany of attacks the murder of three men in Forbury Gardens, Reading. Noble Lords accepted the need for legislation such as this with something of a heavy heart. There have been anxieties expressed in Committee today and at Second Reading about some aspects of the Bill. I particularly noted the comments at Second Reading of the noble Baroness, Lady Prashar, and the noble Lord, Lord Ramsbotham, who described himself as “horrified” by the reduced role of the Parole Board.

I share, I am sure, with all noble Lords very considerable respect for what the Parole Board does. Decisions about serious offenders are particularly challenging. The boards, which have enormous experience, are given a great deal of material to make their decision, which they do with scrupulous care. I do not see that the purpose of the Bill in any way excludes or marginalises the board. The purpose, surely, is to ensure that serious terrorist offenders spend longer in prison and longer on licence, and it is that fact that removes the Parole Board from the picture, not any lack of respect for what it does.

I listened carefully to what the noble Lord, Lord Anderson, said about the statistics on reoffending by terrorist offenders who are released, and I am sure that he is absolutely right to make that point. I would add just one gentle caveat, in the sense that a terrorist who commits another offence, maybe of the most extraordinary gravity, is not comparable to, say, a burglar who breaks into a house repeatedly, serious though that can be.

The offenders who will no longer be susceptible to review by the Parole Board will have their licence condition, when they are released, set by prison governors on behalf of the Secretary of State. As I understand their position, prison governors will be informed by the probation service, the multi-agency public protection panels, and presumably by information gathered about the prisoners in the prison or prisons where they have served their sentence, which will be something of an incentive for them to behave well. Prison governors have much experience of this process.

The Bill is certainly concerned with the protection of the public. Keeping the most serious offenders in prison for longer and removing their opportunity for early release is what causes the reduced role of the Parole Board. The removal of its involvement for what I understand is likely to be a very small cohort of 50 or so—perhaps the Minister can help—seems to be justified in the public interest.

[Lord Carlile of Berriew (CB) [V]]

My Lords, I agree with the noble Lord, Lord Faulks, that we are dealing with the determination of licence conditions in the context of terrorist prisoners having been sentenced to longer sentences. However, I agree with the noble Baroness, Lady Prashar, who has very considerable and relevant experience, and with my noble friend Lord Anderson of Ipswich that the Parole Board has an important potential role to play in these cases.

It is said that the determination of licence conditions can adequately be dealt with by prison governors. That may be true in some cases, but prison governors do not have the range of expertise, the judicial discipline and the clear legal accountability of the Parole Board. It is therefore my view that this task should be undertaken by the Parole Board, which has all the relevant qualifications to do it. If the Parole Board was placed in that position it would command the confidence of the public. Indeed, those who believe that too much control is being taken of prisoners by government would be able to see that there was a thoroughly independent, accountable, quasi-judicial organisation dealing with these cases empirically and on their merits.

[Lord Marks of Henley-on-Thames (LD) [V]]

My Lords, this amendment incorporates significant changes to Clause 27. In particular, as pointed out by the noble Baroness, Lady Prashar, with all her experience of the Parole Board, and by other speakers, the suggested replacement for Clause 27 would preserve the Parole Board’s role. I regard the amendment as entirely helpful on the basis that, with some exceptions, the Parole Board has had an extremely good record of balancing the safety of the public with the need to rehabilitate offenders in society.

I will largely cover what I have to say on the principles involved in this amendment in my part in the next group. However, it seems to me that the noble Baroness, Lady Prashar, made the very important point that Clause 27, as drafted, involves automatic release on licence without any assessment of the safety of that release by the Parole Board. I accept that prison governors would be involved, but that, in my view, is no substitute.

In summary, it is my view that this amendment would be an entirely acceptable way to address the problems with Clause 27 as drafted, the most important of which are its removal of the involvement of the Parole Board from the release process altogether and the concomitant results that offenders under Clause 27 would be automatically released, less likely to be rehabilitated and also more difficult to manage while in prison.

--- Later in debate ---

[Baroness Jones of Moulsecoomb (GP)]

My Lords, I welcome the noble Lord, Lord Wolfson of Tredegar, to our House. It is brave of him to start his parliamentary career in your Lordships’ House by going up against so many noble and learned Lords. It is going to be absolutely fascinating watching that.

I congratulate the noble Lord, Lord Ponsonby of Shulbrede, for bringing this amendment. I wish I had signed it, because it is very good. It is about whether we want to rehabilitate prisoners and bring them back into society or just want them to rot away and hope they disappear.

I am sure noble Lords will know that the new independent reviewer of Prevent has been announced. It is William Shawcross, whom I do not know at all. As somebody who is a critic of Prevent—I have seen the good and the bad in it—I would say that the optics are not good. Having a white man from Eton and Oxford is possibly not the message that this Government should be sending out when you have critics of a programme that could have been fantastic.

I saw one case of a Prevent programme—in Birmingham, I think—where a young man had been recovered, or rehabilitated, from a radical programme. He had been a right-wing activist, but he responded to being found a job and a house. I am not saying it is always this easy, but rehabilitation was based on taking him out of poverty and deprivation. That is something that we do not see enough of.

However, to return to the amendment, it would require the Government to review the situation and report to Parliament, and I support it very strongly.

[Lord Carlile of Berriew (CB) [V]]

My Lords, the town of Tredegar is noted for its town clock, which was erected, or at least its plinth was, as a result of funds collected at a bazaar. I believe that information to be correct—and from my position in my home I think I can see the noble Lord, Lord Wolfson, nodding in agreement with those facts. The Tredegar clock is always regarded as a symbol of the stability of the town—a town that has been through thick and thin, having been a place where coal was mined and steel manufactured.

The Parole Board has become one of the pillars of our prison system, and the board is seen as being as reliable as that town clock as it has developed over the years. I therefore join the noble Lord, Lord Ponsonby of Shulbrede, in being really rather determined to persuade Ministers that they should take another look at the role of the Parole Board in the sentencing and licence provisions provided for by this important Bill, which I support in principle, as someone who believes that the sentences for terrorism should be long but subject to a proper, just and reasonable form of review that gives reasons if it finds against a prisoner.

I am happy to support the amendment tabled by the noble Lord, not for its content but for the principle that it raises, and I invite the Minister to reflect accordingly.

[Lord Paddick (LD) [V]]

My Lords, I apologise for any inconvenience caused by my noble friend Lady Hamwee and me not speaking in the last group, where our names were included in the speakers’ list in error.

The amendment in the name of the noble Lord, Lord Ponsonby of Shulbrede, addresses the serious question of the impact on prisoners who have no prospect of being released early or of being released at all, something that the noble Baroness, Lady Prashar, spoke about in an earlier group, as did my noble friend Lord Marks of Henley-on-Thames.

Some indication of the potential impact comes from a report in the Times, dated 20 January 2021, on inmates at the only remaining isolation unit for extremist prisoners in Her Majesty’s Prison Frankland. These isolation units were designed to keep the most dangerous ideological prisoners away from the general prison population so that they could not radicalise vulnerable inmates, as other noble Lords have mentioned in today’s debate. One of those units was mothballed before it was opened, another is empty, and the one at Frankland houses five prisoners out of a capacity of eight. There are currently about 200 terrorist prisoners in the UK.

According to the Times, a report by the independent monitoring board at the prison says that inmates in the unit have become more entrenched in their views, that they are refusing to co-operate or to engage in activities and programmes—except for the gym—and that they are distinguished from other prisoners by a lack of progression. They display antagonism and hostility to staff, with one of the prisoners responsible for a serious assault on a prison officer in the centre.

Locking people up with no incentive to behave or co-operate is likely to be counterproductive, and the Times report supports that assertion. We support the amendment.

Article 50

Lord Carlile of Berriew Excerpts

Monday 11th July 2016 Lords Chamber

[Lord Faulks]

The noble Lord is perfectly correct, as a matter of law. Of course, there will be a question of what is expedient, in terms of the timetable, and whether pressure would be put on the Government. But he is absolutely right on the legal position.

[Lord Carlile of Berriew (LD)]

I thank the noble Lord for being the third Minister now to say very clearly that Parliament will have a role to play in the Article 50 process. Can he confirm that the role that Parliament plays will be a matter for discussion between the usual channels and that we will be able to have a debate on the real merits of what is proposed so that a proper democratic judgment can be made by Parliament on these matters?

[Lord Faulks]

I cannot, of course, anticipate precisely what the new Prime Minister will decide; if and when she decides on a particular course, I am sure that the way in which parliamentary involvement takes place will include the usual channels.

Prison Reform

Lord Carlile of Berriew Excerpts

Thursday 21st January 2016 Lords Chamber

[Lord Carlile of Berriew (LD)]

My Lords, I start by endorsing the powerful speech that the noble Baroness just made on the subject of women in prison. We should pay very close attention to her every word. I also want to congratulate the noble Lord, Lord Fowler, on obtaining the debate and on opening it so powerfully. I applaud every word of his speech and the five measures he has proposed, which I shall address briefly a little later. I used to read the articles that he wrote for the Times all those years ago, and it is wonderful to see his consistency and continuing interest in this important issue.

We come to this issue at a time when we have a Lord Chancellor, with whom I have spoken about this subject, who I believe is completely credible in his determination to reform the penal system. He has applied his considerable critical faculty to whether the penal system is successful or not, and I think the answer he has reached is a resounding “No”, or at least “Not very”. I look forward to him taking his officials with him, and I hope that he will be in post long enough and not be reshuffled before we can see real reform to the penal system.

I am not sure what I can add to this debate, but I suppose I have spent longer in the cells than almost anybody else in this House—barring two or three people. I have on occasion had to sit in the cells, in cases that I do not count among the forensic triumphs which I talk about all too easily at dinner parties, and explain to my clients why they have been sent to prison for short sentences. As an illustration, I have always found it very difficult to explain to a man or woman who has been sent to prison for causing death by driving without due care and attention what the utility of the prison system is in their case, particularly as they tend to be middle-aged or older people who have never been in trouble with the law before. We ought to learn from some of the, in my view, ludicrous guidelines that are set upon us. I have sat as a recorder in the Crown Court on numerous occasions and have felt I had to send somebody to prison because the sentencing guidelines were just too prescriptive and did not allow for the subjectivity that the case needed.

Perhaps the headline of this debate for me, so far, is this: if a probation officer was given a case load for one year of one person and acted as a sort of personal trainer for that person for one year, we would save money for the state. The noble Lord, Lord Fowler, compared it to Eton fees, but it may be even more powerful to say that, if we committed probation officers to looking after people who are not sentenced to custody, training them in their everyday lives, letting them understand how to manage their money, giving them real quality time, we would achieve a much better system than sending such people to prison.

I turn to the imperatives of the noble Lord, Lord Fowler, which, as I have said, I share. First, of course, punishment by imprisonment should be more than the deprivation of liberty; it should also be an opportunity. As does Michael Gove, I take the view that prison education needs enormous improvement. I absolutely applaud the decision to allow books to go to prison. What an absurd decision it was to say that prisoners should not receive books. Recently, I represented a man who was convicted of manslaughter—a rather intelligent man. He said as he was going to prison, after the case was over, “I’m going to do an MBA”. I asked him why, and he referred to what the current Lord Chancellor had said about the advantages of being educated in prison and about released early if you do that—and that is very good.

Secondly, it is not just overcrowding that is the problem; the sites of prisons are unsuitable. In places with young men, there is only one playing field and one gym, at which they have to queue to have their opportunity, as well as insufficient educational provision.

The noble Lord, Lord Fowler, referred, thirdly, to the dumping ground. We had an eloquent contribution from the noble Lord, Lord Bradley, about mental health. If somebody goes to a hospital and they are going to be in a hospital for a long time, they are given a designated nurse to look after their case and to ensure that it follows the right track. Why, when someone is sent to prison for a long time, are they not given a designated officer to try to ensure, as if they were a sort of tutor, that every opportunity is made available?

I agree that we should use community sentences more, particularly problem-solving courses.

Finally, I totally agree with the noble Lord, Lord Fowler, that we should give more opportunity to governors. I was once taken by a governor to a falconry course in a young offender institution. One of the young offenders told me that he was leaving the following week, that he had a job on an estate in Scotland and how he was looking forward to it. I came back to this place and thought, “I’m not going to tell anyone about the falconry course because the Daily Mail will get hold of it and call for it to be abolished”. But how useful that was.

My coda is to say: let us now start to apply imagination to sentencing policy so that those who come out of prison come out better and those who might go to prison do not do so, wherever possible.

Prisons: Young People

Lord Carlile of Berriew Excerpts

Thursday 29th October 2015 Lords Chamber

[Lord Carlile of Berriew (LD)]

My Lords, there is a great deal of evidence in this debate of the need for action and change in the way in which young prisoners are treated. I congratulate the noble Lord, Lord Harris of Haringey, on his report and on instigating this debate, as well as on producing unanimity on all the main issues under discussion—so far, at least. I look forward to hearing from my noble friend Lord McNally, who is now chairman of the Youth Justice Board. The YJB has done a great deal of positive work, particularly in the area of reducing the numbers of young people held in custody and in improving the way in which they are treated. Shortly we shall also hear from the noble Lord, Lord Bradley, who some time ago now produced a seminal report on the issues arising from mental illness occurring when people are in custody.

In June 2014, sponsored by the Michael Sieff Foundation and the National Children’s Bureau, I had the privilege of chairing an all-party parliamentarians’ unofficial inquiry, which took evidence into the youth justice system and which contained Members of all political parties in both Houses, including, significantly, the current Solicitor-General, Robert Buckland QC, who had very clear views that are consistent with everything that has been said in this debate. We produced a report recommending numerous changes in the youth justice system, some of which I shall refer to in a moment.

The point of mentioning all those reports is to show how much learning there is, and how much advocacy there has been, for change in the youth justice system. I urge upon the Minister that the Government need no more evidence of what is needed by way of change. Indeed, in listening to this debate, if all the Minister did was to listen once again to the eight-minute speech of the noble and learned Lord, Lord Phillips of Worth Matravers, he would see a summary of the changes in policy that are required.

Of course, one of the main issues is overcrowding, not in the youth justice system but in the adult system. The noble and learned Lord, Lord Phillips, mentioned some numbers, as did the noble Lord, Lord Fellowes, a few moments ago. As they gave those figures I recalled that when I first became a Member of another place in 1983, many MPs at that time were expressing outrage that the prison numbers had reached 35,000. I do not notice that our country is a much more lawful place now, with 84,000 people in custody, than it was in 1983, when there were 35,000. Perhaps there is something to be learned from that simple statistical comparison.

Very specifically on the youth justice system, I will start with a kind of metaphor. If a child is ill and needs a routine elective operation, inevitably it is sent to a paediatrician before a decision is made as to what treatment should be given. The paediatrician is not someone who simply has the label “Paediatrician” attached to him or her, but has to have learning, education, experience and qualifications, all specific and expert to the paediatric advice which they give. One of the conclusions that was reached by the parliamentarians’ inquiry to which I referred a few moments ago was that that sort of experience does not exist in the youth justice system. Yes, of course there are some very expert people, but it is pure chance whether a real expert is involved in a case. Somebody can be called a youth justice although they have no education, knowledge or training in youth justice—at least worth the name.

A solicitor or a barrister can prosecute or defend in a youth court without having any understanding of, or training in, the specific requirements of dealing with young people. Over my 45 years at the Bar, nothing has changed in that respect. My first ever contested case as a barrister was in the Camberwell Green juvenile court, as it was called, when I defended a young person charged with an offence of criminal damage. I had no idea what I was doing. Happily for the young person concerned, the result of the case was favourable, but I had absolutely no idea, and have none now, how that result was achieved, because I had no material training.

Today, young solicitors and barristers prosecute and defend in youth courts and they still have no such specific understanding or training. One of the recommendations of our inquiry was that no justice—whether a full-time district judge or a part-time justice—should sit in cases without such training. I greatly value the work of youth justices and am delighted to see a very distinguished one, the noble Lord, Lord Ponsonby, in his place, but there is currently no requirement that they should have any real expertise in what they do. Indeed, there is no requirement that someone who is regarded as a youth justice should always sit on a case involving a young person.

Furthermore, we recommended that what I think in the trade is usually called “ticketing” should be applied to lawyers, whether they be solicitors or barristers, who appear in the youth court because it is a specialised area. Understanding what has happened in a young person’s life is much more difficult than most other things that advocates do. The Bar Standards Board, to its credit, has set up a review of this matter with an in-depth investigation into the ticketing issue. The Law Society has been much less compliant and shows real resistance to any form of expertise ticketing in this area because, of course, it would limit the number of solicitors who are able to appear in such cases. I hope that it will soon change its mind.

If we had experts dealing with these cases, surely we would be able to ensure that better, more constructive non-custodial disposals were achieved. We advise that youth scrutiny panels should be established by the Youth Justice Board and local authorities to focus on diversion measures so that these trials can be avoided if possible. However, when they come to court, we advise that there should be comprehensive case assessments and family group conferences, where the real problems that affect the young person’s life can be assessed. As has been said repeatedly, the young people who find themselves in court have almost always had chaotic lives. As the noble Lord, Lord Judd, emphasised, for many of these young people custody is the most comfortable place they have ever been, and we do not want that to be perpetuated.

My final point is about the rehabilitation of offenders. Young people who have been in trouble as teenagers are sometimes unable to obtain jobs because their records follow them. I urge upon the Minister that the Government should examine that carefully and try to ensure that, when young people who have been in trouble become adults, after a reasonable time they are no longer saddled with a criminal record.

Arbitration and Mediation Services (Equality) Bill [HL]

Lord Carlile of Berriew Excerpts

Friday 23rd October 2015 Lords Chamber

[Lord Sheikh (Con)]

My Lords, I say at the outset that I have met and spoken to many people across the Muslim community in recent weeks concerning the Private Member’s Bill. It should be noted that the Bill does not name any religion. However, there is widespread concern that it seeks to demonise Muslims in particular by giving an incorrect impression of our values.

First and foremost, it must be appreciated that in any dispute—civil or otherwise—one party may feel aggrieved if a decision does not go in their favour. We must talk to all the parties concerned.

There is an incorrect presumption that sharia councils arrive at decisions that are legally binding. Normally, in fact, they provide mediation services and do not consider themselves above the law. Any agreement arrived at following mediation is binding only if both parties mutually agree to it being endorsed by a court of law. If both parties prefer the matter to be considered by arbitration, this should be allowed. In such cases, the normal rules of arbitration apply and the arbitration is binding on both parties unless there has been an error in law.

There is a misconception that Muslims in this country would like sharia law to be applied generally. However, the reality is that nobody talks about sharia law as the law of the land; Muslims are clear that English law should, and does, ultimately prevail.

Some Muslims have an Islamic marriage, known as a nikah, without also having a civil wedding. Ideally, I would like to see imams performing a nikah only after a civil wedding has taken place. We should perhaps look at the possibility of amending the Marriage Act 1949 to address this issue. Having said that, if an imam receives a request to perform a nikah without a prior civil wedding, it is imperative that he emphasises to both husband and wife the drawbacks of a nikah-only marriage.

Many couples choose to cohabit without getting married and we do not pass any judgment on them—nor should we. More than 3 million couples in this country are cohabiting at the moment. When a nikah takes place, a contract is signed between the man and the woman containing the terms and financial obligations of the marriage. Under Islamic law, a man can divorce his wife by stating this. If a woman feels that her marriage has broken down and that they should divorce, she can ask the man to divorce her. If the man refuses to divorce her, she can approach the sharia council and petition for a divorce to be issued. It is therefore essential that there are sharia councils that she can approach for this to take place. I believe that all Muslims should be encouraged to use the already- drafted Muslim marriage contract, which perhaps needs simplifying.

I should emphasise that sharia councils do not obstruct or attempt to influence proceedings where issues such as domestic violence are concerned. In fact, women are advised to contact the police.

At one point the Bill refers to intestacy. It must be noted that, in the event of the death of a person who has not left a will, the estate will be administered according to the principle of the laws of intestacy in the country. Sharia law is not therefore relevant. If a person wishes to make a will distributing his wealth according to sharia law, he must be entitled to do so.

[Lord Carlile of Berriew (LD)]

I apologise for interrupting the noble Lord. As a matter of fact in sharia law, if a man wishes to obtain a divorce, does he have to ask his wife first, before he approaches the sharia council?

[Lord Sheikh]

No. Under sharia law he does not have to do that. If sharia councils make unfair decisions, these must be dealt with on a case-by-case basis. I feel that there must be a mechanism to deal with such cases and that we should put in place an appeals procedure.

--- Later in debate ---

[Lord Carlile of Berriew]

My Lords, in supporting the Bill I join in with the well-deserved tributes made to the noble Baroness. The one jarring note during the debate has been the suggestion that the Bill is an attempt to demonise Islam. If it was, of course, it would be a disgraceful Bill—but it is not. The Bill is an attempt to demonise discrimination, particularly against women, and falls within a virtuous circle in which we should all wish to stand.

The isolation of women from the law is not a new phenomenon. However, the inevitable consequence of such isolation is discrimination against women. Some of that discrimination is casual and negligent, but bad enough for that. However, some of the discrimination is misogynistic, manipulative and, most of all, obsolete. We should take action to drive that kind of discrimination out of our law. The Minister would be right should he say that this proposal was superfluous. Nevertheless, I do not agree because it would emphasise the need for such discrimination to be driven out of our law. The awareness and availability of the law will be heightened by the passing of this Bill.

I said earlier that isolation of women from the law is nothing new. Indeed, as I was thinking about this Bill, I was driven to remember another Friday afternoon, albeit in 1975, when a woman from the beautiful Welsh town of Bala was brought to my chambers in Chester. She was a middle-aged woman with children. She told me when she arrived that she had never been to England before.

[Lord Sheikh]

Does the noble Lord feel that it is for the community to take remedial action? This is how I feel and I would like his views on it.

[Lord Carlile of Berriew]

I hope the community will take immediate action but, in my view, the law needs to take action as well, and that is why we are here today.

The woman who came from Bala told me that she had never been out of Wales before—she had never been to England—and that she was suffering from violent and other abuse by her husband which was affecting her children and her home life. As I said, it was a busy Friday afternoon, and because the law was available we were able to go and see the busy judge—albeit, being a Friday, he was busy in his garden at the time. He took us into his dining room and there, because we were using the law which is available to every citizen, she was able to obtain an injunction, which had the violent husband out of the house in Bala by tea-time; she was able to secure the lives of her children; and in due course she was able to obtain all her other rights.

She had been brought by her Welsh solicitor—who, interestingly, was called Elfyn Llwyd, who later played a distinguished part in the life of this nation. She came to see me in my chambers only because one of her friends had said, “The chapel is not going to achieve anything for you. You must take advantage of what the law offers”. Of course, because legal aid was available—at least at that time—her rights were obtained through the offices of the state. As the noble Baroness, Lady Cox, has said, some women today experience exactly the same kind of discrimination that the Welshwoman from my experience suffered in 1975. We have to take steps to rectify that anomaly.

I am not against religious courts. I said earlier that I used to be in chambers full time in Chester. In Chester Cathedral there is a wonderful consistory court. It is one of the most beautiful little parts of a cathedral building that you can visit. Religious courts have their place but they are for religious matters. Mediation and arbitration have their place—increasingly so—and should be used whenever possible, but there must not be a pretence that there is a form of mediation that is better than the law that applies to every citizen.

We must not do anything or allow any measure or tribunal to diminish legal rights and dilute protection, particularly for those who have not always been able to obtain their rights in an equal way, whether those rights be physical, financial or moral. It is for those reasons that I support this excellent Bill.