Sentencing Reform/Legal Aid

Lord Clarke of Nottingham Excerpts

Tuesday 21st June 2011 Written Statements

[The Lord Chancellor and Secretary of State for Justice (Mr Kenneth Clarke)]

Today I will lay before Parliament the Government’s responses to two important consultations on the future of the justice system—“Breaking the cycle: effective punishment, rehabilitation and sentencing of offenders”, which was launched on 7 December 2010 and “Proposals for the Reform of Legal Aid in England and Wales”, which was launched on 15 November 2010. I am also introducing the Legal Aid, Sentencing and Punishment of Offenders Bill to give effect to those measures requiring primary legislation. I will be making an oral statement this afternoon.

Protecting the public from crime, ensuring those who break the law face the consequences, and providing swift, cost-effective and fair access to justice are fundamental responsibilities of the state towards its citizens. Yet the last 13 years of Government have left a justice system in urgent need of reform.

In the area of criminal justice, a tidal wave of criminal justice legislation has left the system in crisis: neither punishing offenders properly for the crimes they have committed, nor giving adequate protection to the law-abiding public.

In civil justice, we have a system burdened by spiralling costs, slow court procedures, unnecessary litigation, and too limited an awareness of alternatives to court—all of which add to a fear of a compensation culture. In particular, our current system of legal aid too often encourages people to bring their problems before the courts, even when they are not the right place to provide good solutions and sometimes for litigation that people paying out of their own pocket would not have pursued.

The package of reforms I am bringing forward today aims to reform radically our justice system to focus it on fundamental priorities.

Punishment, rehabilitation and sentencing of offenders

Within a year of leaving jail, half of prisoners (49%) are reconvicted of further crimes, creating new victims and harm to society. While they are behind bars prisoners face hours of enforced idleness, free from the discipline of hard work. Underpinning these problems are widespread drug and alcohol abuse, and poor mental health. The previous Government’s responses have left a dysfunctional cycle of persistent crime, inadequate punishment and failed rehabilitation. Over 20 Criminal Justice Bills in 13 years created an unworkable sentencing framework and a statute book littered with over-prescriptive law that undermined the expertise of professionals.

The consultation set out wide-ranging plans to deliver tougher punishment, to introduce a rehabilitation revolution to prevent offenders committing further crime, and to ensure that the sentencing framework is sensible and workable. The Government have listened carefully to the points raised in more than 1,200 submissions and are seeking to take forward measures under five themes, including:

Punishment

Creating a working week in prison of up to 40 hours instead of enforced idleness.

Introducing tougher, properly enforced community punishments. This includes: allowing courts to impose longer curfews; enabling courts to ban overseas travel; and properly enforced financial penalties, including seizing assets from those who do not pay.

Introducing a mandatory custodial sentence for knife possession in aggravated circumstances.

Payback

Creating more ways in which offenders make reparation. We will begin by implementing the Prisoners’ Earnings Act 1996 and legislating to extend our powers to deduct and use money earned by prisoners to support victims; and

Overhauling unpaid work obligations so that offenders work longer hours, carrying out purposeful, unpaid activity that benefits their local community.

Progression

Getting more offenders off drugs and alcohol for good, by piloting an initial five drug recovery wings and by cracking down on the use of illicit drugs in prison. The MoJ will also work closely with the Department of Health to tackle inappropriate use of prison to house low-risk individuals with mental illness.

Extending the use of payment by results to cut reoffending, with services delivered by the voluntary, independent and public sectors. Already, at HMP Doncaster the provider, Serco, will pay back 10% of the contract price unless they reduce reoffending by 5% points from current levels. In July six new pilots will begin in areas including Greater Manchester and London.

Transparency

Opening up justice so that the public has a clearer view of how the system is working for them.

Creating a more proportionate justice system, focusing resources where they will be most effective, including creating a clear national framework for the use of out of court disposals, reforming the use of remand, and reducing the number of foreign national offenders. We will also conduct an urgent review of the indeterminate sentence of imprisonment for public protection with a view to replacing the current IPP regime with a much tougher determinate sentencing framework.

Clarifying the law on self-defence.

Alongside these measures, there should be no misunderstanding about things the Government have never proposed and are not doing. Contrary to some reports, the Government have never proposed targets to reduce the number of prison places, abolish short sentences or the mandatory life sentence.

What all the proposals we are taking forward amount to is a clear break by the Government from the mistakes of the past. By implementing this bold but realistic package of reforms, we are seeking to deliver a system which effectively punishes the guilty while substantially improving the national scandal of our reoffending rates. They should also reduce costs and improve delivery. This is a new, more intelligent course for the criminal justice system and one that we anticipate will make a tangible difference to addressing crime and helping victims in England and Wales.

Reform of legal aid

We are also committed to overhauling our system of civil justice, including through an independent review of family justice, wider access to alternatives to court, measures to streamline civil justice, a criminal justice system efficiency programme and improvements to the “no win, no fee” conditional fee regime. The overall aim is a fundamental shift in the justice system towards greater effectiveness and efficiency—and a move away from the sorry situation in which the average citizen dreads recourse to the law.

Legal aid reform is a crucial element of this wide-ranging agenda. The current system of support too often encourages people to bring their problems before courts. In addition, legal aid has expanded into areas far beyond its original scope. It is now among the most expensive systems in the world, second only to Northern Ireland, costing over £2 billion a year, or £39 per head of population compared with £8 per head in New Zealand, a country with a broadly similar legal system, and as low as £5 per head in some EU countries. In the current fiscal climate, this is simply unsustainable.

The proposals in the consultation set out to address these problems by: ensuring access to public funding in those cases that most require it; encouraging early resolution of disputes instead of unnecessary conflict; and improving affordability and value for money for the taxpayer.

Our plans attracted more than 5,000 submissions. Following careful consideration, today’s response makes some significant changes in matters of detail, but seeks to take forward the substance of most of the reforms published in November, including:

Retaining routine availability of legal aid for cases where people’s life or liberty is at stake, where they are at risk of serious physical harm, or immediate loss of their home, or where their children may be taken into care. Following consultation, we are strengthening specific provisions to ensure availability in private family cases for victims of domestic violence, for children at risk of abuse or abduction and for special educational needs cases.

Pressing ahead with introducing a more targeted civil and family scheme. Prioritising critical areas means making clear choices about availability elsewhere. Legal aid will no longer routinely be available for most private family law cases, clinical negligence, employment, immigration, some debt and housing issues, some education cases, and welfare benefits.

People will instead use alternative, less adversarial means of resolving their problems (notably, in divorce cases, where the taxpayer will still fund mediation). Fundamental rights to access to justice will be protected through retention of certain areas of law within scope and a new exceptional funding scheme for excluded cases.

In sum, the Government intend to implement the substance of the legal aid reform package, refined in specific places. This constitutes an extensive set of very bold reforms, the overall effect of which should be to achieve significant savings while protecting fundamental rights of access to justice.