Legal Aid, Sentencing and Punishment of Offenders Bill
Lord Clarke of Nottingham Excerpts(12 years, 8 months ago)
Commons ChamberRead Full debate Read Hansard Text Read Debate Ministerial Extracts
The Lord Chancellor and Secretary of State for Justice (Mr Kenneth Clarke)
I beg to move, That this House disagrees with Lords amendment 2.
Mr Deputy Speaker (Mr Nigel Evans)
With this it will be convenient to discuss the following:
Lords amendments 189 to 191.
Lords amendment 192, Government motion to disagree, and Government amendments (a) to (c) in lieu.
Lords amendment 193.
Lords amendments 194 and 196, and Government motions to disagree.
Lords amendments 217 to 220 and 243.
Lords amendment 168 and Government motion to disagree.
Lords amendment 169 and 240, Government motions to disagree, Government amendments (a) and (b) in lieu, and amendment (i) to Government amendment (a).
Lords amendments 170 to 172, and Government motions to disagree.
Lords amendments 177 to 181, and 206 to 216.
Mr Clarke
Lords amendment 2 impinges on the financial privileges of the House. I ask the House to disagree to the amendment and I will ask the Reasons Committee to ascribe financial privilege as the reason for doing so—and so too with amendments 168, 170 and 171. In addressing the very wide selection that you have just announced, Mr Deputy Speaker, I shall begin by looking at the principles that the Government are adopting on the various amendments and the reform as a whole, and at what principles we are inviting the House to adopt.
The scope of legal aid goes to the heart of our attempts to reform and improve the justice system, because targeting funding where it really counts is fundamental, first to the savings the Government are having to try to make in this area as in any other. There is no doubt that the present level of legal aid provision is on any measure unaffordably expensive. I shall not dwell on this issue but it is bound to recur during our debates. Even after our reforms have been carried, if Parliament eventually approves the Bill and it becomes an Act as we intend, we will still have by far the most costly legal aid system in the world. It is almost twice as expensive as that in any other country per head of population. In no other democratic jurisdiction would it be possible to get up and argue seriously that the taxpayer should spend money on the scale that we do on legal representation and advice.
The changes to the scope of legal aid that we are proposing are also part of a broader shift. We are trying to reduce the amount of unnecessarily adversarial litigation. The very broad provision of legal aid has encouraged people to bring their problems before the courts, but sometimes their basic problem is not a legal one and the best way of resolving the dispute or tackling the problem would be not to take a litigious approach. Such an approach imposes costs and does not always resolve problems. Before I move on from the tricky matter of cost let me say that with legal aid the cost is not just to the public purse and our Department. One has to think of the costs imposed on all the other people who are parties to litigation, such as businesses—small and medium-sized enterprises—and the national health service, as this selection includes clinical negligence claims. Everything we agree to do in relation to clinical negligence comes out of the budget that is otherwise available for public services. The growth of the clinical negligence industry is having an impact on national health services at the present time. There is also a cost to individuals, because for an ordinary citizen of ordinary means to be in the appalling situation of being engaged in litigation when the other party has legal aid is not an experience that most people would enjoy. We should bear all that in mind as the background to what we are doing.
Glenda Jackson (Hampstead and Kilburn) (Lab)
Is the Secretary of State actually arguing that the best way of getting a level playing field is to deny everyone any kind of legal aid? That seems to be the thrust of his argument.
Mr Clarke
I am not arguing that. I am saying there should be hesitation before the very powerful and quite legitimate lobbies that have descended on the House since we proposed the changes just sweep everybody into believing that ever-wider provision of legal aid is necessary. There are downsides. In addition to the cost to the public purse, which we cannot ignore because no other democratically elected Government spends this amount of public money on funding litigation and legal advice, if we have a litigious society it imposes costs on all other branches of our life. That is an essential background that we cannot forget as we consider these amendments.
We have applied other tests, but the whole point of having legal aid—and the reason why we are keeping a legal aid system that will still be the most generous in the world even when we have cut it back a bit—is to deal with the needs of justice and those who are vulnerable in society. The other principle that applies is the need to focus taxpayer funding on the most serious and important cases that genuinely require specialist legal advice. Our principled stance is that legal aid should routinely be available in cases where people’s life and liberty are 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. It should not routinely be available where other funding is available, where litigants can present their own case, or where the taxpayer is at risk of paying for litigation that any person paying from their own pocket would not finance and participate in. That is the basis on which we look at all the amendments that have come from the other place.
I am grateful to the other place for the time and the detailed debate and scrutiny it has dedicated to the Bill, genuinely improving it in places. I went and listened to parts of the debates myself and I have great faith in the power of the other place to revise a Bill without altering it fundamentally. Wherever possible I have sought to incorporate my noble Friends’ amendments or intentions, and as a result of the scrutiny of both Houses the overall package has moved very significantly from our initial position when we introduced the Bill, and it is all the better for it. Before people press me to agree to more than we are proposing to agree to in this important group of amendments perhaps I should remind the House of the changes we have made since we started this whole process quite a long time ago. They include removing the power to means-test suspects receiving advice and assistance at the police station, adopting the Association of Chief Police Officers’ definition of domestic violence and extending the time limit and range of evidence accepted when it comes to accessing the domestic violence gateway. We agreed to that a long time ago. People got very excited about the ACPO amendment so we gave them that, and then a whole list of fresh demands were immediately made by the Law Society and other groups that have lobbied us. I shall address those issues in a few moments.
Other changes include retaining legal aid for cases involving human trafficking and domestic child abduction—another concession; ensuring that funding covers special educational needs for 16 to 24-year-olds; and putting it beyond doubt that we are retaining legal aid for parents to bring clinical negligence cases in the most serious and complex neurological injury negligence cases for small children, which we always intended to do. Beyond the legislation, we announced at the Budget a further £20 million to go to the not-for-profit sector in each of the next two financial years.
How do the further Lords amendments in the group measure up against the principles I have outlined? I regret that the broad thrust of some of them is still to be rather free with taxpayers’ money. In our opinion, they certainly go way beyond ensuring that the Bill is focusing funding on high priorities.
Tony Lloyd (Manchester Central) (Lab)
The Secretary of State made great play of the ACPO definition of domestic violence, but if the test is about protecting the vulnerable I must say that the definition is very legalistic. The experience of lots of women—the 230 women who leave home every week because of violence—is not always packaged in the way allowed for in the proposed legislation. Does he accept that many women will fall outside the definition and will not be able to get legal aid?
Mr Clarke
Let me begin with the domestic violence gateway. The ACPO definition is what the Labour Front-Bench team was originally concentrating on. We have to have a definition because we are talking about qualifying for the public funding of legal aid in certain cases. We have moved a lot on domestic violence and we are moving again in response to the Lords’ debate, as I shall explain in a moment. First, though, let me make it clear, because I do not think it has always been clear to people in either House, exactly what we are talking about. It was never in doubt that there would be legal aid for the protection of victims of domestic violence. Domestic violence is an issue that this Government, like any Government, including the previous one, take extremely seriously. As now, it was always intended that legal aid would remain available for victims of domestic violence who were trying, for example, to obtain protective injunctions to defend themselves in such cases. In domestic violence cases there is no means test so even the super-rich can obtain legal aid if they are seeking an injunction for reasons of domestic violence, although I hope that not too many of them will.
We are doing quite a lot of other things. The Home Office is for the first time providing more than £28 million of stable funding until 2015 for specialist local domestic and sexual violence support services, and £900,000 each year to support national domestic violence helplines and a stalking helpline. Our Department is now contributing towards the funding of independent advisers attached to specialist domestic violence courts. We are giving a total of £9 million for that purpose up to the end of 2012-13. We are allocating £3 million a year to 65 rape crisis centres and opening new ones. Domestic violence protection orders are being piloted in three police force areas. We have announced a one-year pilot which will take place from this summer to test out a domestic violence disclosure scheme, known as Clare’s law.
I mention those things so that we can have a debate which, with great respect to their lordships, is not on the same basis as the part of the Lords debate that I listened to—that people did not realise the seriousness of domestic violence as a social issue in our society. We all do. The Bill never challenged that. It is all part of a pattern of services being provided by this Government, through which we think we are strengthening the support for victims of domestic violence.
What we are discussing here is the special provision that we are also making to provide legal aid to people who have been recent victims of domestic violence, so that when they are dealing with their abuser in court on other issues—ownership of the former matrimonial home, maintenance, access to property—they have access to legal aid. In such cases, particularly the private family law cases and the children’s cases, we are trying to shift away from so much adversarial litigation. Having lawyers on both sides arguing about custody and access to children does not always lighten the tensions or resolve the dispute, as most Members of Parliament are only too well aware from their constituency surgeries, so we are moving towards mediation, which is cheaper. That is why some of the lobbyists do not like it, with the result that in cases where it does not work, they are arguing for legal aid to continue to be available.
We have conceded the case that after a recent episode of domestic violence, the victim on her own may not want to deal, even through mediation, with her abuser. How do we define domestic violence for that purpose? That is an important but secondary purpose, as the case will not be about domestic violence. In such a case, what definition of domestic violence should be used for the person to qualify for legal aid? That is what the argument about the definition in both Houses has been about all the way through.
Kate Green (Stretford and Urmston) (Lab)
The Lord Chancellor mentioned that it will still be possible to obtain legal aid to get an injunction when there is domestic violence. Will this not be a cost-accumulating measure, as women will first go to get an injunction in order to have evidence to be legally aided for the case of domestic violence?
Mr Clarke
Such women will not get an injunction if it turns out that there is no reasonable ground for giving it and they are not in imminent fear of domestic violence. We will give them legal aid because we think it is important that these issues are tested in cases where legal advice is available. If women do not get the injunction, they will not get the legal aid later.
Mr Llwyd
What is being missed here is that the evidential gateway is being closed down. I am not saying that the right hon. and learned Gentleman wants to deprive every person of assistance in a domestic violence situation. I would never allege that; I know him to be a better person than that. What I am saying is that 46% of those who would be eligible will no longer be eligible under these so-called reforms, according to recent reports from Rights of Women and Welsh Women’s Aid. People who would genuinely qualify will no longer qualify, and that is the issue that we are now discussing.
Mr Clarke
I refute the idea that people will be given an injunction at some hearing in order to enable them to get legal aid, but people might apply. If the evidentiary tests are made too lax, there will be a tendency to fabricate claims or to bring in claims that are old and irrelevant, because it is worth thousands of pounds to the lawyer advising that person if legal aid is granted on that basis.
Far from trying to narrow the scope, let me remind the right hon. Gentleman and others where we have got to and where we are going this evening, by the time we have finished. We have a clear, wide definition trying to catch the variety of circumstances that will evidence recent domestic violence so that the argument that the victim should not have to face her abuser without having legal representation can be countered. But we do not want to shift the vast majority of private family law cases away from mediation into publicly funded adversarial litigation.
Helen Jones (Warrington North) (Lab)
Does the Lord Chancellor not accept that the legalistic approach that he is adopting ignores the reality of domestic violence, which is that many women do not report it, sometimes for years on end, and do not go to court to get injunctions, or if they do, are often persuaded to withdraw the proceedings before they come to a conclusion? It is only when the whole situation explodes and they leave the home that the reality of that domestic violence is noted.
Mr Clarke
But women will get legal aid for seeking the injunction. The hon. Lady is falling into what has happened throughout these debates. The definition that we are talking about as the gateway to legal aid for all other private family law cases goes far beyond injunctions.
If I may move on, I will remind hon. Members how far we have gone since we started the Bill—far beyond where the Opposition were first urging us to go—and we will go further in response to the debate in the House of Lords. The first issue is reflected in Lords amendment 192—whether or not we should use the definition used by the Association of Chief Police Officers, which we resisted in this House. The Government’s intent is to have a broad and inclusive definition and one that commands widespread agreement. To cut all the pressure, we are happy to support the spirit of the amendment and we are therefore adopting the ACPO definition. I half suspect that if we had offered that when the Bill was in the House of Commons—it was my mistake that we did not—we would have closed the discussion down in the House because that is what everybody was then pressing for.
In their amendment their lordships in their wisdom add words which are not in the ACPO definition. That rather goes against the arguments that have been put forward for one, single, cross-Government definition of domestic violence. We have therefore tabled further Government amendments in lieu of Lords amendment 192 which would define domestic violence in the same way as the ACPO definition as
“any incident of threatening behaviour, violence or abuse (whether psychological, physical, sexual, financial or emotional) between individuals who are associated with each other.”
We think this should satisfy the concerns that have been expressed in both Houses on this point, so I shall ask the House to agree to this Government amendment in lieu of Lords amendment 192.
Amendments 194 and 196 concern the accepted forms of evidence of domestic violence. I have already said that when litigation is about domestic violence, the victims will always have legal aid. The issue is one of balance. Lords amendment 194, led by the learned Baroness Scotland and supported by a number of her colleagues in the other place, has prompted us to look again at other kinds of objective evidence to ensure that the test is as widely drawn as possible.
I have discussed that with colleagues in the House, and I am grateful to the colleagues with whom I had meetings, particularly to my hon. Friend the Member for Maidstone and The Weald (Mrs Grant), who is in her place, for advice on the subject because she knows far more about family law than I do, as I have never practised in this field, and in particular for making the point that we need to take care that the range of evidence does not force victims to take formal court action where it may not be suitable in individual circumstances. We do not want to force people to go to court who would not otherwise do so.
Therefore, in response to this House and the debate in the other House, we intend to accept as evidence—we will reflect this in regulations—the following matters: an undertaking given to a court by the other party in lieu of a protective order or injunction against that party for the protection of the applicant, where there is no equivalent undertaking given by the applicant; a police caution for a domestic violence offence by the other party against the applicant; appropriate evidence of admission to a domestic violence refuge; appropriate evidence from a social services department confirming provision of services to the victim in relation to alleged domestic violence; and appropriate evidence from GPs or other medical professionals.
We are prepared to accept those matters and ask the House to accept them this evening. They are in addition to those forms of evidence that the Government already accepted in our earlier debates. Those are: that a non-molestation order, occupation order, forced marriage protection order or other protective injunction against the other party for the protection of the applicant is either in place or has been made in the previous 12 months; that a criminal conviction for a domestic violence offence by the other party against the applicant is still in place; that there are ongoing criminal proceedings for a domestic violence offence by the other party against the applicant; that there is evidence from a multi-agency risk assessment conference of the applicant having been referred as being at risk of domestic violence from the other party and action has been recommended; and that there is a finding of fact by the courts of domestic violence by the other party against the applicant.
For the best part of 12 months we have reviewed this rather narrow point in one piece of litigation, and that is a fairly formidable list of things we are prepared to accept as evidence of domestic violence. If their lordships consult the people who have been sending them all the e-mails for the past few weeks, I am sure that they will be able to add to the list, as will Members of this House, but if we are not careful we will forget what the objective is: we want more of these cases not to be conducted by lawyers, financed by the taxpayer, who are engaged in adversarial litigation about where the children will live, what maintenance should be paid by one party or the other or what share of the matrimonial home should be owned by one party or the other. The Government have responded pretty generously because of our concern about domestic violence and, as I have already indicated, in key areas we have moved beyond where we were. This evening we have to insist that that is where it will end.
I should also point out that, on the time limits, where I do not think any history of domestic violence can be remembered and invoked, it is a question of ensuring that victims of recent or ongoing violence are protected, drawing a line so that Government regulations do not result in a permanent opening of access to legal aid. We will double the time limit we originally proposed from 12 months to two years, except in respect of a conviction for a domestic violence offence, where the only limit is that the conviction should not be a spent one.
Having moved on all those issues, the Government do not agree that the evidential requirements for those cases should be set out on the face of the Bill; the evidence I have described will instead be set out in regulations. The benefit is that that will allow greater flexibility to amend the scheme if required in the light of experience. If we set it all out in primary legislation, we would find that we had set things in stone for our successors.
Mr Llwyd
Can the Secretary of State assist us by telling us how the list he read out, which I must say is welcome, differs from Lords amendment 194, because they seem almost identical? Is he saying that, rather than putting them on the face of the Bill, they will be set out in cast-iron regulations?
Mr Clarke
I think that I am right in saying that what their lordships tried to do was put one form of definition used by the UK Border Agency on the face of the Bill. That is far too wide, and it is for a different purpose—[Interruption.] Well, that is an indication of the sorts of things it will take as evidence; it is not a qualification for anything. We need something that is the basis for making a clear decision on whether or not people are eligible for money, and we have opted for ACPO-plus. The other difference, as I have said, is that we do not think that we should spell it out and draft each of these forms—I of course bind myself by the words I read out earlier, which are what we are committed to. The advantage of regulating along the lines that the Government are committed to is that, if in the light of experience there is some mistake, it is much easier to make a change. It is always a mistake to fix everything in too much detail in primary legislation, because a future Minister or Government might have to try to find the parliamentary time to make the necessary changes to improve it.
Glenda Jackson
I, too, welcome the list that the Lord Chancellor read out with regard to domestic violence. Looking at my constituency, I am concerned about where those women will go to obtain that advice, because we are seeing reductions in the services currently provided by citizens advice bureaux and law centres, for example, as a result of the changes to legal aid. There is a gap between the one who suffers the harm and the obtaining of the advice.
Mr Clarke
People can approach their solicitors for advice on family law, as they do now. In an increasing proportion of cases, through the services offered to them, they will be put in touch with the mediation service, with or without the assistance of their lawyers—that is a matter for them—and the case will be mediated rather than both sides being represented in an adversarial manner. That works successfully where it has been introduced and we think it should be extended much further.
Lords amendment 168 seeks to bring the majority of welfare benefits matters into the scope of legal aid funding. Lords amendment 169, along with Lords amendment 240 and amendment (i), tabled by my right hon. Friend the Member for Carshalton and Wallington (Tom Brake) to our amendments in lieu, would have similar effects, so I will discuss them together shortly.
The first point to make about Lords amendment 168 is a financial one. Even bringing advice and assistance into scope for reviews and appeals concerning all welfare benefits, which is the intention behind the amendments, could cost as much as £25 million, and we cannot afford provision in an area of relatively low priority. As I said, we will ask the House to disagree with Lords amendment 168, and we will ask the Reasons Committee to ascribe financial privilege as the reason for doing so. In particular, this is because, in line with the principles I have set out, welfare benefits matters should not generally require specialist legal advice.
Before discussing the other issues, let us consider legal aid for advice on welfare benefits. Every Member sitting in the Chamber is used to giving advice on social security benefits, because we do it all the time, and there are other voluntary bodies that give advice, but we do not get legal aid. I suspect that in an ordinary case, where there is no issue of law and it is a matter of fact, because of the huge complexity of social security regulations, the advice given by MPs and some members of their staff can be superior to that which is available from a large number of general family solicitors, but those solicitors get legal aid. No one else gets legal aid. Legal aid should be for those cases where legal advice and expertise are required, and it should be financed by the taxpayer on legitimate grounds.
Stephen Timms (East Ham) (Lab)
In cases, of which there are many, where people seek advice from citizens advice bureaux to help them prepare a review or an initial appeal, is it not in everybody’s interests, including the Government’s, that they should be able to get some advice before going forward with their review request?
Mr Clarke
I value citizens advice bureaux as highly as the right hon. Gentleman, and ever since the Bill was introduced we have said that we will come forward with proposals to improve the support given by the Treasury. As I have said, at the time of the Budget there was an announcement, which was not much noticed at the time, of £20 million a year to be made available for voluntary advice.
For most citizens advice bureaux, legal aid is not the biggest source of their funding, and some do not get any legal aid funding at all. Their advice is very valuable general advice to people with a combination of debt, housing and every other problem; it is not specifically legal advice in most cases. Our Department is not the biggest Department that contributes to such bureaux; the Department for Business, Innovation and Skills has the biggest budget, for debt advice and other forms, and I think that it has ring-fenced its budget and still provides funding.
Most citizens advice bureaux have lost a lot of money because local government funding has been cut quite severely, and the Government are producing money from the Treasury to compensate in part for that, so we—not my Department; the Cabinet Office—are now distributing that £20 million to ensure that such valuable general advice is still available. What we cannot do is start inventing legal aid scope, or fail to narrow legal aid scope, as a roundabout way of maintaining funding for citizens advice bureaux, many of which do not receive legal aid funding now—giving them funding that is spent on general advice as much as on legal advice. Of course, the more we extend the scope to help the citizens advice bureaux, which are busy lobbying the House, the more we also help professional lawyers, who also qualify for all the legal aid scope that we are happily enlarging.
Yvonne Fovargue
The citizens advice bureaux that are so busy lobbying are actually lobbying on behalf of their clients. Some 77% of the funding being removed from the scope of legal aid is going not from solicitors’ firms, but from citizens advice bureaux and law centres—and from specialist legal advice. The Legal Services Commission will not provide the money, which I remind the Secretary of State is £160 for a legal aid case at the early stage of a welfare and benefits case, but it prevents the case from becoming much more expensive later.
Mr Clarke
The hon. Lady’s experience of citizens advice bureaux greatly exceeds my own, but I am pretty certain that fewer than half of such bureaux receive any legal aid funding at all. I have not sought to deny the financial problems of citizens advice bureaux, but we cannot solve them by being so generous in scope with legal aid when the issues involved in most welfare cases are not legal problems. What people require in these difficult times is general advice on a general combination of problems from which they suffer.
Tom Brake (Carshalton and Wallington) (LD)
On points of law, I welcome the concession in relation to upper tribunals and welfare benefits, but can the Justice Secretary confirm that the Government intend to ensure that all cases in which points of law are in contention, whether in the upper or lower tribunals, are funded through legal aid? If that is his intention, what will he put in place, either in the Bill or in some other way, to ensure that it happens?
Mr Clarke
My right hon. Friend anticipates the concession that I was going to explain; it is in the documents before us, and he has spotted it. Legal aid issues are usually, as everybody knows, about the factual basis of the claim or the proper application of this country’s extremely convoluted social security regulations, which I hope the current Government’s reforms, when we eventually get to a universal benefit, will greatly simplify, but most such issues are not legal. We have a tribunal system that was deliberately designed so that ordinary citizens might access it and argue their case, and when we invented all those tribunals, we went out of our way to say, “They are not courts and you don’t require lawyers, as these are places where people will argue,” but, as my right hon. Friend says, sometimes legal issues are raised in them.
The Government, in response to these debates, have tabled an amendment, which is a concession. It is Government amendment (a) in lieu of Lords amendments 169 and 240, and it would make legal aid and assistance available for welfare benefits appeals on a point of law in the upper tribunal, the Court of Appeal and the Supreme Court. It would also include funding for applications for permission made to the upper tribunal, and it would also make legal representation available for welfare benefits appeals to the Court of Appeal and to the Supreme Court.
Most surprisingly, that Government amendment in lieu was put forward in response to the argument. We did not wish to argue that in such cases, when the whole thing is a point of law, the applicant himself or herself should be expected to represent themselves without legal assistance, so we have tried to define those cases in which legal advice should certainly be available.
My right hon. Friend’s amendment, on the face of it, goes back to the whole of business of whether we should apply legal aid for legal advice in every welfare claim, but the question that concerns him most is, “What about the ones that involve legal issues?”, and I can conceive of cases in the lower tribunals in which what is raised really is a point of law. He wants me to find some equivalent to the upper tribunal, asking, “Is there some situation in which somebody, preferably the tribunal judge, certifies that there is a point of law involved where legal aid should be available?” We do not have such a situation at the moment, and we will have to try to devise one, as there is no system for it: just as we have accepted the argument about legal issues in the upper tribunal, we could of course do so if the same thing arises in the lower.
We will go away and work on the matter. We already have discussions under way with the Department for Work and Pensions, whose help we will also require, to see whether we could have some equivalent—whereby somebody other than the claimant or their lawyer certifies that a point of law is involved—and provide legal aid. I suspect that at this stage of the Bill’s passage through Parliament it is far too late to start introducing primary legislation in the House of Lords, but we have retained for ourselves powers to amend the scoping through regulation, so if we could solve the problem, we could bring something forward through statutory instruments. We are quite open to the argument for ensuring that we have legal representation when there is a legal issue that we cannot expect a lay person ordinarily to argue.
Mr Llwyd
I follow the right hon. and learned Gentleman’s logic on that, but surely if the point of law is a good one in the upper tribunal and all the way up to the Supreme Court, it is equally good in the first tier, but if the case is unrepresented in the first tier, it is not going to go anywhere else.
Mr Clarke
I should like to see whether we can devise, with the help of the DWP, my right hon. Friend the Member for Carshalton and Wallington and anybody else, a system whereby we identify in the lower tribunal such issues that involve a legal issue. We think that the number is comparatively small, because it is not the business of lower tribunals normally to find themselves arguing points of law, as they normally argue points of fact and of regulatory interpretation, but we will work on the matter, and if we can devise such a system, we undertake to respond as my right hon. Friend asks me to.
Simon Hughes
The Secretary of State is being very helpful, and my constituents are absolutely not bothered whether this is a primary or secondary legislation matter, as they just want to know that they will have the support that he talks about. May I, however, clarify two things? Will any such measure apply to a matter of law and to judicial review when there is a proper matter of law—and, in those cases, not just to social security but throughout the tribunals service? When the agency turns down somebody’s application and that person wins their appeal to the tribunal, there absolutely has to be a parity of arms at a further stage of appeal if the state appeals again. The applicant is there not because they want to be there, but because the state or the agency has sent them there.
Mr Clarke
On the right hon. Gentleman’s first point, I can assure him that we are continuing legal aid in all cases involving judicial review, so legal aid is available to someone who is trying to have a welfare decision judicially reviewed. That applies to every kind of judicial review, because we do not think that the Government or a public body should be resisting a claim about abuse of their powers from a litigant who cannot get legal advice. This is not an easy concession to make, because quite a lot of people who seek judicial review are not instantly popular with all sections of society, but we still give them legal aid.
On the other matter involving situations in which the state is busily arguing against a successful appellant that some kind of law is involved, I will add that to the list of things that we are studying with the DWP to try to identify whether, in cases where the state thinks that it is worth arguing about the interpretation of something, the litigant should be able to do so as well.
Mr Robert Buckland (South Swindon) (Con)
I am listening to my right hon. and learned Friend’s arguments with great care, but I am still puzzled about the unavoidable problem of the ability to work out what is a legal issue as opposed to a merely factual one. Fact management and legal issues often come hand in hand, and they are often best handled by a lawyer. I worry that we are making an artificial distinction, and that if, as he is suggesting, we are to rethink a number of issues raised by Members of the House, we should rethink this one too.
Mr Clarke
Of course there can be borderline cases, but, with great respect to my hon. Friend, in the vast majority of cases it is fairly obvious whether one is arguing a point of fact or a point of law. In an ordinary welfare case, the question will be whether someone is fit for work or not fit for work, or living or not living at a particular address. When a point of law arises whereby it is not a question of the complexity of the regulations but of the actual meaning of the regulations, somebody like a tribunal judge will know that instantly and think, “That is quite an interesting point of law that I’ve not had before; this will go to the upper tribunal and I will certify that it would be rather nice to have some guidance.” In the end, we have to leave it to tribunals themselves to decide on the facts. Some may be blurred, but by and large, in the vast majority of cases, they will be reasonably clear.
Andrew George
Further to the points made by my right hon. Friend the Member for Carshalton and Wallington (Tom Brake), does the scope of the Secretary of State’s amendment exclude lower-tier tribunals, or can it be interpreted in such a manner that lower-tier tribunal appeals that are brought forward on the basis of evidence relating to a matter of law and then taken to an upper-tier tribunal might be included without the need for further regulations?
Mr Clarke
I have obviously failed to make myself completely clear, so I will try again. As it stands, the Government’s amendment in lieu applies only to upper tribunals. The right hon. Member for Carshalton and Wallington and others argue that something similar should be available in lower tribunals and in other cases. I have undertaken to explore whether we can find an alternative method of identifying those limited numbers of cases and getting them certified when they involve a legal principle. As the matter has been raised at this stage of the debate, we have to fall back on saying that we would use our regulation-making powers through a statutory instrument, because we could not possibly draft primary legislation to cover it in the few days that we have left.
Tim Farron (Westmorland and Lonsdale) (LD)
Before the Secretary of State moves on, may I ask him to give us a time scale?
Mr Clarke
The amendment was tabled only at 6 o’clock yesterday evening, so we have moved quite quickly to get to where we are now. I suspect that the relevant officials at the DWP have not yet even been involved in discussing this. I cannot give a time scale, but we will move as rapidly as possible.
Glenda Jackson
The Lord Chancellor referred to a majority of cases. Citizens Advice says that the proportion of appeals that are upheld in work capability assessment cases, for example, rises from 40% to 90% when a legal adviser is involved. I am not saying that it will necessarily be about a point of law, to pick up the point made by the hon. Member for South Swindon (Mr Buckland), but there are occasions when a legal mind can clarify the situation. I do not think that the Lord Chancellor understands who the people are who go to appeal. He said that in domestic violence cases, they go to a solicitor. None of my constituents in that situation has a solicitor; they go to the CAB or to a law centre, many of which, in my constituency, are in grave danger of having their ability to provide those services reduced—
Mr Clarke
The cases that the hon. Lady mentions do not depend on a lawyer. When the right hon. Member for Manchester, Gorton (Sir Gerald Kaufman) was sitting behind her in the previous debate, he said that in his experience as an MP, when one discusses the matter with somebody, one gets clarity on what the real point is and how they should present it. A general adviser can help to sort somebody out in going along to argue their case by telling them what is relevant and what is not and giving them some guidance on what they should get evidence of in order to pursue their claim. That is not the same as legal aid. That is why we are producing the money for Citizens Advice and other voluntary bodies to give general advice. It is no good claiming that it is all about legal aid. Some lawyers are better at this than others. Just a friend who is a good advocate can be adequate in marshalling a case that is being argued on appeal about a question of fact as to whether, say, somebody is able to go back to work.
Helen Goodman
It would help the House if the Secretary of State could tell us what he means by a point of law. Does he mean that it is a disagreement about the proper interpretation of the rules, or does he accept that it might be about whether the rules have been properly interpreted, which is not a dispute about facts?
Mr Clarke
It would be reckless of me to try off the cuff to make a tight definition of a point of law. It is about a situation where a particular question arises out of the interpretation of a regulation and there is no clear and binding precedent for exactly what the law should be when it comes to applying it to the set of facts involved, and it is then up to the tribunal judge to decide. Following the concessions that I have introduced about upper tribunal and Court of Appeal cases, the judge will certify that a point of law is involved in a case because he thinks that it is one in which the guidance of the upper tribunal or the Court of Appeal is required on what exactly the law will say that it means. That is what is meant by a point of law. We have made considerable concessions. No one is arguing about the vulnerability of groups of people who are arguing about their welfare benefits. The Bill is about how much money the taxpayer pays to how many lawyers. We are trying to concentrate on spending that money on paying lawyers for cases in which a lawyer is required to sort out a welfare benefit dispute. That is the basis on which our amendments were produced.
Let me turn finally, and as briefly as I can, to clinical negligence and legal services for children. That has been debated throughout the passage of the Bill in this House and in another place. We have listened carefully to the concerns that have been raised about the impacts of these reforms on children. I can again assure the House that the provisions in the Bill will safeguard the vast majority of the spend on cases involving children, because we have covered all the most serious cases of clinical negligence—about 96%.
I remind people that the underlying problem in the tricky area of clinical negligence cases is that all the money that we spend on compensation, legal advice, expert witnesses and so on comes out of the budget of the national health service. That now takes up a proportion of the NHS budget of a kind that I would never have contemplated all those years ago when I was a Health Minister struggling with what I thought were difficult budgets. The more one allows to be taken out of the budget for lawyers and expert witnesses in claims for compensation, the more one cannot ignore the impact that that is having on what is available for patient spend. There is no doubt that this has been a bit of a growth industry in recent years, particularly since the changes to the no win, no fee arrangements about 10 years ago. There has been an increase of 50% or so in the number of claims in the past five or six years. The last annual report of the NHS Litigation Authority estimated that the unfunded liabilities for clinical negligence claims totalled £16.8 billion, which is a cool doubling of the figure since 2006.
The bills paid to the lawyers of criminal negligence claimants more than doubled from £83 million in 2006-07 to £195 million in 2010-11. The damages paid to claimants have gone up somewhat more slowly, but the lawyers’ bills have increased substantially. One reason for that is that the fees paid to and costs incurred by the lawyers and expert witnesses acting for the plaintiffs are about three or four times as much as the Litigation Authority, as the defendant, pays for its lawyers and expert witnesses. The costs and the claims are rising exponentially. Although this is an area that we should approach with care, the clinical negligence industry has been doing well over recent years, and that has been funded entirely by budgets that would otherwise be available for patient care.
Having given that somewhat stark background, I will turn to Lords amendment 171, which seeks to bring all such cases back into the scope of legal aid when a child is a party. In our opinion, that would be unnecessary and wasteful. As I have said, under our plans, the overwhelming majority of the existing support for children will continue. For the record, that includes child protection cases, civil cases concerning the abuse of a child, special educational needs cases, and legal aid for children who are made parties to private family proceedings.
In addition, we have made funding available in the final set of amendments under consideration in this group for cases of clinical negligence involving claims for babies who suffer brain injury at or around the point of birth. I state categorically that as a result of the Government’s Lords amendment 216, any baby who, through clinical negligence, suffers brain damage during childbirth, resulting in severe disability, will receive legal aid. The amendment provides legal aid for clinical negligence claims for babies who suffer brain injury during pregnancy, at birth or in the immediate post-natal period, leading to a lifetime of care needs. I also make it clear that if a baby were to be injured in an operation, say at six months, legal aid would be available through the exceptional funding scheme, where necessary, to ensure the protection of the individual’s right to legal aid under the European convention on human rights.
When we introduced the Bill, we believed that we had covered all those cases through the exceptional funding scheme. Doubts were expressed continually in this House and in another place about that, so we now have this set of amendments to put it beyond doubt in the Bill.
By contrast, we cannot support Lords amendment 172, as I have said. That amendment would provide public funding for the remaining minority of medical negligence claims with child claimants, despite the fact that many of them are relatively simple, do not involve lengthy and detailed investigations of the kind that we are trying to catch in Lords amendment 216, and are suitable for funding through a conditional fee agreement in exactly the same way as for adults. In line with the principles that underpin the Bill, the state should not fund cases that can be provided for by alternative means.
Bill Esterson (Sefton Central) (Lab)
The Justice Secretary has moved on from Lords amendment 171. I am concerned about children in care and care leavers, who are among the most vulnerable children in our society and whose life chances are badly affected by their situation. There is a grave risk that children in care and care leavers will be massively over-represented in the relatively small number of people who will be excluded under the Government’s proposals. If that happens, it will seriously affect the life chances of a group of children who are already very vulnerable and who often do not have adults to advocate for them.
Mr Clarke
Babies, yes, although exceptional funding rules will apply to other serious cases involving children. Under the European convention on human rights, one must plainly provide someone with access to funding to have a fair resolution of a dispute. We therefore think that we are covering most cases. The amendments that I am suggesting that the House should disagree with cover all kinds of routine cases. They state that simply because a person is under a particular age, they should get legal aid in cases for which an adult would not receive it.
Mr Clarke
Let me move on, because I am giving way far too much and taking a great deal of time.
Lords amendment 170 sounds like an innocuous measure, but it would open up legal aid to cover the costs of expert reports in all the cases that currently are funded by CFAs or no win, no fee arrangements. It would allow lawyers to apply for legal aid to cover the expert report in any case where a client, of any age, was financially eligible, and to still get their success fee in respect of their other legal costs. That would transfer all the risk in a no win, no fee case from the solicitors and insurers to the legal aid fund and the taxpayer. That would be unfair to the taxpayer and would result in a significant expansion of the legal aid scheme.
I have covered with as much care as I can these particularly sensitive areas—
John McDonnell
I would not have sought to intervene if I had not been here from the beginning of the debate. I have been here the whole time.
I want to get clarity on one point in relation to children. The Children’s Society and the Refugee Children’s Consortium estimate that there are about 2,500 under-18s who will not gain support in relation to immigration matters. My borough deals with more unaccompanied child immigrants than any other in the country. When this matter was raised before, the Secretary of State said that those are uncomplicated cases and that such children can receive advice elsewhere. That has been interpreted as meaning that social workers are able to give that advice. However, social workers are not registered in that way under existing legislation, so there is a conflict between the proposals and the existing legislation that needs to be resolved; otherwise local authorities will be in not only financial difficulties but legal difficulties.
Mr Clarke
No, not all of them, but the vast majority. Once such a case becomes an application for asylum, legal aid is available. I am surprised by the figures that have been given for the cases that do not eventually wind up getting legal aid in that way. The problems posed by such cases, when a child gets off an aeroplane unescorted, go far beyond the legal ones. The Home Office is discussing with local authorities how to improve the response to such children. However, I am not satisfied that that category of children can be given access to legal aid for other claims of a legal kind, which I cannot visualise straight away, that might arise. The vast majority of those cases quickly turn into asylum applications and will therefore get legal aid.
I hope that the House is persuaded that the Government have taken a consistent and principled approach to reforming the scope of legal aid. No one looks to touch this area of the justice system lightly, but change is unavoidable if we are to protect access to justice and ensure that the system is affordable. On domestic violence, children, clinical negligence and welfare benefits we have sought to ensure that scarce resources are targeted where they matter most and where alternative funding or representation are unavailable. It is not easy to get that balance right. In the light of the principles that I set out at the start of my speech, I think that we have got the balance about right with the amendments that we have accepted and those that we oppose.
I believe the Government have been particularly responsive on all the issues. We knew perfectly well that when cutting back on this country’s legal aid expenditure, we ran the risk of damaging our system of justice if we got it wrong. We have made the countless moves that I have listed since we first produced the Bill however many months ago, in response to debate in both Houses. I am grateful to the Commons and the Lords for what they have done, and I hope that I have eventually put forward clearly the Government’s thoughts on the Lords amendments and on our amendments in lieu. I commend our position to the House.
1980 Hague Convention on Child Abduction
Lord Clarke of Nottingham Excerpts(12 years, 8 months ago)
Written StatementsRead Full debate Read Hansard Text Read Debate Ministerial Extracts
The Lord Chancellor and Secretary of State for Justice (Mr Kenneth Clarke)
The Government have decided to opt in to the European Commission’s proposals for the acceptance by the member states, in the interests of the EU, of the accession of Albania, Andorra, Armenia, Gabon, Morocco, the Russian Federation, Seychelles and Singapore to the 1980 Hague convention on the civil aspects of international child abduction.
All EU member states are party to the successful 1980 Hague convention which is the primary civil law international instrument that provides a mechanism to seek the prompt return of wrongfully removed or retained children to their country of habitual residence. When a country wishes to accede to the convention it is necessary for an existing contracting state to accept that country’s accession before the convention can apply between them. It is the European Commission’s view that there is exclusive competence on the EU for all matters relating to the 1980 convention and that therefore member states must now be authorised by the EU to accept accessions by third countries and must do so collectively through Council decisions.
Although not anticipated in the proposals, the Government believe that the UK opt in under the protocol to title V of the treaty on the functioning of the European Union applies and it has therefore asserted its right to choose whether to opt in and has decided it is in the UK’s best interests to do so.
The Government have taken this decision notwithstanding the fact that it disputes the Commission’s claim to exclusive competence and it is still determining whether each of the countries seeking to accede to the convention will be able to operate the convention effectively.
The Government believe that the wider significance of these proposals for external competence mean that it is in the UK’s interests to participate fully in these negotiations, including having the ability to vote. These proposals must be agreed by unanimity within the Council.
Community Sentences and Probation Consultation
Lord Clarke of Nottingham Excerpts(12 years, 9 months ago)
Written StatementsRead Full debate Read Hansard Text Read Debate Ministerial Extracts
The Lord Chancellor and Secretary of State for Justice (Mr Kenneth Clarke)
I am today publishing proposals for consultation in two key areas of the justice reform agenda: sentences in the community and the shape of probation services that deliver them. These proposals are set out in full in the consultation papers “Punishment and Reform: Effective Community Sentences” and Punishment and Reform: Effective Probation Services” respectively.
There is an urgent need to reform our criminal justice system in order to improve public safety. Reoffending rates remain too high despite recent improvements. Almost half of all adult offenders reoffend within a year of leaving custody. Reoffending of offenders sentenced to less than 12 months in prison is estimated to cost the economy up to £10 billion annually. Most seriously of all, left unchecked, these rates of repeat crime mean thousands of people are unnecessarily becoming victims.
That is why the Government have embarked on wholesale reform, beginning with the publication of the Green Paper “Breaking the Cycle: effective punishment, rehabilitation and sentencing of offenders”, in December 2010. This set out our ambition to reduce reoffending, deliver better punishment and improve public protection. We have made good progress in delivering reforms in this area, but we need to go further. The next stage of reform is sentences in the community and the operation of the probation service which supervises them.
In these two publications I set out radical plans to make sentences in the community more credible and more effective in reducing crime and to reform probation so that it makes the fullest contribution by extending competition and opening up the management of lower risk offenders to the innovation and energy of the widest possible range of providers.
We propose wide-ranging reforms to the way sentences in the community operate. Our aim is to provide sentencers with a robust community sentencing framework that is effective at punishing and reforming offenders, and in which they and the public can have confidence. Our plans include intensive community punishment to be delivered through a tough package of requirements that would involve community payback, a significant restriction of liberty backed by electronic monitoring and effective financial penalties. We also propose that every community order includes a punitive element. We will build on these options by being creative with the technology available for monitoring offenders’ movements and by exploring the use of asset seizure as a stand alone punishment.
With regard to probation services, our consultation proposals are the result of the Government’s review of the future shape of probation services, aimed at ensuring that they punish and reform offenders, and protect the public more effectively. They also take forward our “Competition Strategy for Offender Services” published in July 2011, which set our intention to compete all offender services unless there are compelling reasons not to do so.
We need to reform probation services to cut crime—by making better use of the innovation, capacity and diversity of different providers. We intend to extend the principles of competition in probation services as envisaged by the Offender Management Act 2007.
The safety of the public is our number one priority. Under our proposals, public sector probation will retain control of the management of those criminals who pose the highest risk, including the most serious and violent offenders. The public sector will also retain responsibility for all advice to court, and for public interest decisions over all offenders including initially assessing levels of risk, resolving action where sentences are breached, and decisions on the recalls of offenders to prison.
Through carefully managed competition, including competing the management and supervision of lower risk offenders, we will bring greater effectiveness and quality to probation services by ensuring that they are delivered by those best placed to do so, whether they are in the public, voluntary, or private sectors.
Under our proposals, public sector probation trusts will have a stronger role as commissioners of competed services, responsible for buying competed services and holding those who deliver them to account for the outcomes they achieve. In particular, we will devolve more responsibility to probation trusts by giving them control of local budgets including, for example, for electronic monitoring of curfews, so they can deliver programmes targeted at local needs and reducing reoffending.
The aim of giving further discretion and responsibility to providers and front-line staff is that public safety can be protected and resources can be targeted effectively, including extending the principles of payment by results where possible. We will encourage the participation of the voluntary, private and public sectors, alongside new models for delivering public services like mutuals. We are also consulting on the potential over time for other public bodies, such as local authorities or Police and Crime Commissioners, to take responsibility for probation services.
This consultation and subsequent Government response will form the basis of stage 1 of the triennial review of probation trusts, as part of the coalition Government’s commitment to transparency and accountability. The triennial review will be aligned with guidance published by the Cabinet Office: “Guidance on Reviews of Non-Departmental Public Bodies”. The final report and findings will be laid in this House.
The Government’s goal is to reform sentences in the community and probation services so that they are able to both punish and reform offenders much more effectively. We will actively consult with stakeholders on these proposals.
Copies of “Punishment and Reform: Effective Community Sentences” and “Punishment and Reform: Effective Probation Services” will be placed in the Libraries of both Houses. The documents will also be available online, respectively, at:
https://consult.justice.gov.uk/digital-communications/effective-community-services
and
https://consult.justice.gov.uk/digital-communications/effective-probation-services
Justice Programme
Lord Clarke of Nottingham Excerpts(12 years, 9 months ago)
Written StatementsRead Full debate Read Hansard Text Read Debate Ministerial Extracts
The Lord Chancellor and Secretary of State for Justice (Mr Kenneth Clarke)
The Government on 16 March decided not to opt in to the European Commission’s proposed regulation establishing for the period 2014-20 the justice programme.
The stated objectives of the Commission’s proposal are to promote judicial co-operation in civil and criminal matters, to facilitate access to justice and to prevent and reduce drug supply and demand.
Funding schemes have been operated by the EU for many years, and are an established non-legislative mechanism to promote cross-border cooperation on specific issues. The Government support such instruments in principle, and particularly action which leads to more effective implementation and to effective evaluation of EU law, providing they add value and fill a gap which is not met either through other EU work or by the member states.
Although there are some aspects of the proposal that could be welcomed, the Government are not satisfied on the value for money of the programme as a whole.
The Government recognise that this decision will have an impact on organisations that have received funding under the predecessors of this scheme. They intend to participate in the negotiations so that a post-adoption opt-in could be considered if it transpired that the focus of the activities to be funded truly added value and was worthwhile.
If we do not opt in to a programme, the UK would make its contributions to the EU budget as a whole, including to the fund which is the subject of the opt-in decision, for the year in question in the normal way. Then, in the following year we would receive a refund based on the actual level of expenditure from that fund and our gross national income (GNI) share. There would also be an impact on the abatement, as we would not receive an abatement on funds where we had not opted in.
Oral Answers to Questions
Lord Clarke of Nottingham Excerpts(12 years, 9 months ago)
Commons ChamberRead Full debate Read Hansard Text Read Debate Ministerial Extracts
Fiona Bruce (Congleton) (Con)
16. What plans he has to promote work in prisons.
The Lord Chancellor and Secretary of State for Justice (Mr Kenneth Clarke)
We have ambitions to deliver a step change in the amount of work done in prisons. By making use of the lessons learned from the prisons that are already delivering full working weeks, we will work with the public and private sectors—including commercial customers and partners—and through the prison competition system to make our ambitions real.
Matthew Hancock
The Secretary of State will know of the great work being done in Her Majesty’s prison Highpoint, in my constituency, which is one of our biggest category C prisons. Enabling third sector, private and other providers to work with prisoners before they are released has improved their chances of finding accommodation and work on release. What further action is the Secretary of State taking to ensure that that is replicated throughout the country?
Mr Clarke
As I have said, we are building on the great work that is already being done, not least in my hon. Friend’s constituency. The purpose of prisons, it seems to me, is first to punish for crime, and secondly to reform as many criminals as possible. The second aim has been neglected in recent years, but the kind of work that my hon. Friend describes ought to be replicated as much as possible throughout the system, and that is the end towards which we are working.
Richard Graham
I welcome the Secretary of State’s comments. He knows about the existing business in Her Majesty’s prison Gloucester, where prisoners repair bicycles which a charity then sends to Africa. It is a not-for-profit business. How does my right hon. and learned Friend think we could ensure that if the business were profitable it would not undercut businesses outside the prison, bearing in mind that paying the minimum wage might set a precedent in regard to other rights for prisoners?
Mr Clarke
One of the things about which we try to be scrupulous is ensuring that work in prisons does not undercut the work done by businesses employing honest employees outside. We would not be able to persuade organisations such as the CBI and our private sector partners to work with us if they thought that we were undercutting British competitors. We will not pay the minimum wage, because the taxpayer would find that he or she was footing the bill for it all. However, the costs of running a business in prison are considerable because of the security that is imposed. We intend to ensure, by means of a code of practice, that fair and proper competition is maintained and that we do not undercut ordinary honest businesses.
Esther McVey
Given that, at present, 47% of offenders are receiving out-of-work benefits two years after their release from prison, I fully support what the Secretary of State is doing. What plans has he to ensure that there is a smooth transition from work preparation in prison to actual work outside prison?
Mr Clarke
Along with the Department for Work and Pensions, we have just embarked on a system whereby people who are released from prison go straight on to the Work programme. Their receipt of benefits is tied to a programme aimed at getting them back to work if that is at all possible, as it would be for anyone else. I entirely agree with my hon. Friend: all the evidence shows that having a job is one of the main factors that determine whether someone stops returning to crime, and it also stops the taxpayer having to pay benefits to such a high proportion of ex-prisoners.
Mr Evennett
If my constituents are to have faith in work in prisons, it is vital that inmates not only learn to work, but learn to become used to the routine of work. How much time per week does my right hon. and learned Friend expect to be assigned to prisoners for work?
Mr Clarke
Just the routine of working is very important. I believe that 13% of prisoners have never had a paid job in their lives, and about half have not been in a paid job in the last month before they arrive in prison. We aim to have a 40-hour week whenever possible, consistent with the other demands of the prison regime. Apart from skills and training, just getting people used to the daily routine of a working day is good preparation for an honest life in the outside world.
Fiona Bruce
Many people hope that inmates will take advantage of work in prison so that they can pay something back to society and victims. What levels of compulsion will the work schemes involve, and what will happen if some prisoners choose to refuse to work?
Mr Clarke
Although some very good work is being done in prisons at the moment, and although there always have been one or two prisons in which a fair amount is happening, we will not be able to provide work for all prisoners for quite a long time. Our aim is to get a much higher proportion into work, and for that reason employees in prison will be volunteers. That is welcomed by private sector partners who like to have a say in their work force, and who want a properly motivated work force consisting of people who are trying to get themselves into a better state to go straight when they leave.
Keith Vaz (Leicester East) (Lab)
The Lord Chancellor will know that 51% of those who enter the prison system have a drug dependency. What programmes to assist them will he have in place to enable them to undertake this work?
Mr Clarke
Actually, an even higher proportion than that have abused drugs in the month or two before they arrive in prison. We are currently opening the first drug rehabilitation wings in prisons, and we hope to have drug-free wings, too. We are upping the effort to deal with the drugs problem, which is a very large cause of the criminality of many of the people in our prisons. Obviously, it should be given a much higher priority than it has sometimes had in the past.
Mr David Hanson (Delyn) (Lab)
How many companies on the outside does the Secretary of State expect to be linked to prisons in the next 12 months, so that those companies, such as Timpson and some utilities companies, that already have workshops and bases in prisons can help people through the door and into jobs on the outside?
Mr Clarke
There is growing interest, and I join the right hon. Gentleman in paying tribute to those companies, such as Timpson and one or two utilities companies, which have been pioneering this initiative for quite a long time. Shortly before Christmas, a letter was sent to the newspapers that was signed by companies including National Grid, Cisco and Marks & Spencer, and the CBI helped organise a day for us with outside companies. We have not put a target on the number of companies we want to be involved, but many companies want to demonstrate their corporate social responsibility by taking part in this programme, and some will find that it is a very useful way of recruiting and training staff for their businesses.
Alison Seabeck (Plymouth, Moor View) (Lab)
The Secretary of State will know that many inmates have mental health problems, including schizophrenia, which can make work in prison and, importantly, the transition out difficult, especially if they do not have anyone to monitor whether they are taking their medicine at the appropriate time. What steps is the Department taking, alongside the Department of Health, to ensure that appropriate medicines, including longer-lasting medicines such as injections that last a month, are part of the process, thereby helping people to have a smooth transition phase?
Mr Clarke
The hon. Lady has listed almost all the measures to which we are giving the highest priority in trying to make prisons reforming institutions. We have addressed work and drugs. Alcohol has not yet arisen, but mental illness is also a very serious issue. We are well advanced, in co-operation with the Department of Health, in making plans for diversion services for those who ought to be diverted out of the criminal justice system and given secure treatment for mental illness elsewhere. Through the Department of Health, we are also greatly improving the treatment facilities for those who have to stay in prison. Mental health must be tackled, especially if it is the real root of the criminality of someone in prison—and, indeed, some such prisoners should not be in prison at all.
Steve McCabe (Birmingham, Selly Oak) (Lab)
Does the Secretary of State have any plans to adopt the Policy Exchange report recommendation that prisoners should be paid, but in turn should use their wages to pay for perks such as televisions, Freeview boxes and gym equipment, just as the rest of us in the outside world have to do?
Mr Clarke
Prisoners pay for some of those things already, although the innovation we are putting in place is to make provision from the earnings of prisoners for payment to victim services and to dependants outside. I agree that we are not just giving prisoners pocket money. We are giving them money from which they should, perfectly properly, make payment for those things for which they ought to be paying, including some reparation to their victims.
Mrs Jenny Chapman (Darlington) (Lab)
We have only to look at the Order Paper to see how keen the Secretary of State is to talk about work in prison. It is a shame that the Government are not more interested in the benefits of paid work for those who have not committed a crime.
There are merely two paragraphs on women offenders in his “Making prisons work” report, and there is no detail whatever on how his initiative will make a difference to them. Is it not true that this Government are showing no leadership on women in the justice system, and that there is a very real danger that all progress will be lost?
Mr Clarke
It is my Parliamentary Private Secretary’s enthusiasm for the policy of work in prisons that is exemplified, in part, by the Order Paper, together with the enthusiasm of all my hon. Friends who have asked questions on this extremely valuable policy, which is an innovation compared with the neglect of this subject by the previous Government.
We are giving a high priority to the needs of women in prison, and we will continue to address the matter. The previous Government were doing quite good work on women in prison, and we have not reversed anything; indeed, we are building on the Corston report. On work in prisons, we certainly intend that female prisoners should have the same opportunities of work and training as men, and we are thinking of what special arrangements we should make to ensure that such facilities are available and suitable for female prisoners.
Mr Speaker
We are immensely grateful to the Secretary of State. I call Priti Patel.
Heidi Alexander (Lewisham East) (Lab)
10. What discussions he has had with the Lord Chief Justice on the potential effect of his planned changes to legal aid on the number of litigants in person.
The Lord Chancellor and Secretary of State for Justice (Mr Kenneth Clarke)
Substantial numbers of cases already involve litigants in person, so the courts already deal with this situation. The Government recognise that the changes to legal aid are likely to increase the number of litigants in person. The evidence appears to show that some cases featuring litigants in person are resolved more quickly, whereas some cases take longer.
Mr Clarke
Well, we have just discovered that the Labour party’s policy is to make substantial cuts in criminal legal aid. If the Government had made that proposal, that would no doubt have led to amazing attacks on our disregard for the principle that a person is innocent until proven guilty and to comments about the high risk of injustice in criminal trials. On the savings we are making in the cases to which the hon. Gentleman refers, the fact is that courts already deal with litigants in person. Any judge or tribunal knows that they have to pay particular attention to make sure that people are not disadvantaged by not having legal representation, but as the Under-Secretary of State for Justice, my hon. Friend the Member for Huntingdon (Mr Djanogly), has just explained, we have tried to identify cases in which the informality of the tribunals means that applicants should not be at any particular disadvantage if they do not have a lawyer there in any event.
Heidi Alexander
What assessment has the Secretary of State made of the additional cost that will be incurred by the legal system overall as a result of the increased numbers of litigants in person?
Mr Clarke
We are not persuaded that that will give rise to any increase in costs. Everybody accepts that cuts need to be made to legal aid. It is just that the Labour party is against every single cut that we suggest in particular. This cut is perfectly straightforward and will not give rise to the difficulties that the hon. Lady points out—[Interruption.] I can only say to the Opposition spokesman that he is obviously so discommoded by realising that he nearly gave out a policy on the subject a moment ago that he is getting rather carried away. We have carefully selected cuts in legal aid concerning less serious cases where cuts can be made without any risk to justice whatever.
Mr Elfyn Llwyd (Dwyfor Meirionnydd) (PC)
The president of the family division gave evidence to the Justice Committee and said that he did not think that when a parent was disappointed not to have got legal aid for a contact or residence case, the parent should just say, “Well, never mind. Let’s forget about the child. I’m not going forward.” That person will go to court alone, taking twice as much time as a person represented. That will waste the judge’s and everybody else’s time, it will be hurtful for all concerned and it will damage the children as well.
Mr Clarke
In family justice we are placing much more emphasis on mediation, which should be much more comfortable for all the clients and will lead to a much easier and less traumatic resolution of many disputes. We are putting more money into mediation and more money into training for mediation. We should remember that the purpose of this public service is to resolve disputes with the minimum of cost and time and to take all the emotion out, so far as is possible, of these difficult family cases. Access to justice is access to the most civilised way of resolving disputes. Access to justice does not depend only on how many lawyers the taxpayer pays for to go into adversarial litigation on every such issue.
Mr Jim Cunningham (Coventry South) (Lab)
11. What recent representations he has received on the treatment of victims of domestic violence in the criminal justice system.
Dr Julian Huppert (Cambridge) (LD)
17. What recent progress he has made on his plans to reform libel laws; and if he will make a statement.
The Lord Chancellor and Secretary of State for Justice (Mr Kenneth Clarke)
The Government’s response to the report of the Joint Committee on the draft Defamation Bill was published on 29 February. It set out the Government’s position on all the key issues. A substantive defamation Bill will be introduced as soon as parliamentary time allows.
Dr Huppert
I thank the Secretary of State for that answer and hope that there will be time for the Bill in the Queen’s Speech. The Joint Committee recommended that qualified privilege should be extended to
“peer-reviewed articles in scientific or academic journals.”
Does he agree that it is in the public interest that scientists and other academics should be able to publish bona fide research results without fear and that, unless their publication is maliciously false, they should be protected from defamation actions?
Mr Clarke
One of the main reasons for publishing the draft Bill and looking at the law in that area was the fear that genuine academic and scientific debate was being stifled by the use of the defamation laws. We propose that peer-reviewed research should be protected and are now considering the draft of the final Bill in the light of the Joint Committee’s report. I will not anticipate the Queen’s Speech, but if we can include a defamation Bill, one of its principal objectives will be to deal with the very serious problem that the hon. Gentleman has identified.
Simon Hughes (Bermondsey and Old Southwark) (LD)
18. What his policy is on reform of the European Court of Human Rights; and if he will make a statement.
The Lord Chancellor and Secretary of State for Justice (Mr Kenneth Clarke)
When the Prime Minister addressed the Council of Europe in January, he set out our priorities for reform and how we intend to achieve them. We want reform to allow the Court better to fulfil the purpose for which it was intended: upholding human rights under the European convention on human rights and tackling serious violations of human rights across Europe.
Simon Hughes
I declare an interest, as I used to work for the Council of Europe and trained there. The coalition Government are absolutely right to prioritise reform of the Court’s procedures, because the backlog of cases and the skills of the Court need to be dealt with, but does the Secretary of State agree that we must continue to say that it is vital for this country, and all European countries, that we have a strong Court which can ensure that the rights of all European citizens are upheld, and upheld outside their own countries as well as within?
Mr Clarke
The convention applies, and the jurisdiction of the Court extends, to 47 member states, where we want to entrench the principles of liberal democracy, and it is in all our interests that we do so. The aim of our proposed reforms is to strengthen the Court and enable it to concentrate on the most serious cases requiring adjudication at international level. At the moment the Court is not functioning well because it has 150,000 cases in arrears, it take years to get a hearing and it has to deal with cases that are trivial, repetitive or have been properly dealt with at national level.
Dr Julian Lewis (New Forest East) (Con)
I seem to remember promising the electorate that we would bring in a Bill of Rights that would enable us to disregard some of the more barmy decisions of the European Court of Human Rights. Would the Secretary of State like to update us on our progress towards fulfilling that important commitment?
Mr Clarke
Different Conservative candidates put forward the campaign in different terms at the last election, and not for the first time, as you will know from your experience, Mr Speaker, and as I do from mine. As usual, I am sticking firmly to the policy of the Government of whom I am a serving member. The reasons we are reforming the Court were set out clearly in the terms of reference of the commission looking at the matter and in the Prime Minister’s speech to the Council of Europe, which I think coincide with my own views.
Mr Speaker
We are grateful to the Secretary of State, as always, for telling us what he really thinks.
Mr Kevan Jones (North Durham) (Lab)
22. What discussions he has had with the Lord Chief Justice on the potential effect of his planned changes to legal aid on the number of litigants in person.
The Lord Chancellor and Secretary of State for Justice (Mr Kenneth Clarke)
I thought that I had already answered this question, which was grouped with Question 10. I said that a substantial number of cases already—
Mr Speaker
Order. May I just very gently say to the Secretary of State that he might have intended to group it but that, I am afraid, he neglected to do so? I know that the House will, however, enjoy hearing once again his mellifluous tones.
Mr Clarke
The courts already deal with litigants in person, and they are very used to dealing with that situation. We accept that the legal aid changes currently before the House of Lords will increase the number of litigants in person, but the evidence on the issue is very mixed, indicating that some cases are dealt with more quickly and others take longer. In fact, many such cases do not require legal representation at all.
Mr Jones
The Justice Secretary is clear that the number of litigants representing themselves will increase. In drawing up his cuts in legal aid, did his Department make any assessment of increased costs, given that the Lord Chief Justice is concerned that courts could be swamped and that the cost to the taxpayer could be higher as a result of those cuts?
Mr Clarke
We see no evidence at all that this would give rise to increased costs. It is extremely difficult to anticipate precisely the effect of there being more litigants in person because the evidence is so mixed. We are concentrating, particularly in the family division, on dealing with more cases by way of mediation. Adversarial litigation is not always the best way of resolving problems; there are many better alternative ways of resolving disputes in suitable cases. We are putting more money into mediation and less into taxpayers paying for lawyers.
Mr Edward Leigh (Gainsborough) (Con)
While I would like to argue that my right hon. and learned Friend owes a duty of care to our joint profession, does not experience tell us that people are not necessarily happiest when in the hands of lawyers?
Mr Clarke
I am sure that they are very happy when being advised by my hon. Friend or by me, but I have encountered examples of dissatisfaction in other cases. Most people dread a dispute in which they are involved having to go to court through the full legal process. Most disputes are settled by negotiation, but if the parties cannot do that, mediation is a very good way of resolving them, particularly in emotional family disputes. The whole justice system should be seen as a public service. We are seeking to resolve disputes in the quickest possible way at the least possible cost to the parties involved. It is too often thought that access to justice means that the taxpayer has to keep paying for more and more lawyers to take part in longer and longer litigation. That is not always the best way of resolving many things.
Henry Smith (Crawley) (Con)
23. When he plans to bring forward legislative proposals to allow television recording and broadcasting of court proceedings.
Mr Tobias Ellwood (Bournemouth East) (Con)
T1. If he will make a statement on his departmental responsibilities.
The Lord Chancellor and Secretary of State for Justice (Mr Kenneth Clarke)
Today is the fifth anniversary of the Corston report, which called for radical change in the way that women are treated throughout the criminal justice system. I am sure that the hon. Member for Darlington (Mrs Chapman) will be pleased to hear me say that there have been real improvements in the five years since the report, including significant investment in women’s community centres to address the underlying causes of women’s offending, such as drug and alcohol addiction, mental health issues, and often long histories of abuse. We are fully committed to addressing women’s offending, for their own good and that of the public. The National Offender Management Service has committed to an additional £3.5 million each year to continue to fund 30 women’s community services. Women offenders will also be included in two payment-by-results pilot areas to link productive work to reducing reoffending.
Mr Ellwood
In these tough economic times, more people are borrowing money, getting into debt and, sadly, having to deal with the bailiffs, who are, on occasion, aggressive and intrusive. What is being done to ensure that creditors and debtors are aware of their rights and responsibilities?
Mr David Ruffley (Bury St Edmunds) (Con)
T5. The Secretary of State will be aware that the Prime Minister said on 25 January of the European Court of Human Rights that,“we are hoping to get consensus on strengthening subsidiarity—the principle that where possible, final decisions should be made nationally.”Does the Secretary of State agree with me that subsidiarity should start and end with votes for prisoners in this country?
Mr Kenneth Clarke
The statement that my hon. Friend just read out is the basis on which we are negotiating with the other members of the Council of Europe on reform of the Court in Strasbourg, which everybody agrees needs reform urgently. The principle of subsidiarity is very important. We are not negotiating on existing judgments on any subject. Obviously, we are trying to comply with the obligations of the European convention on human rights in a more effective manner, which I think the courts in this country usually do in their judgments.
Prisoner voting is an entirely separate matter, which the House has already considered. The latest stage is that the Attorney-General has been making representations on behalf of the British Government in an Italian case on which we are awaiting a judgment. The issue is therefore still under legal review.
Naomi Long (Belfast East) (Alliance)
T2. Will the Justice Secretary say when decisions on the Green Paper on justice and security are likely to be taken? Will he confirm that the devolved Administrations will be fully consulted on those decisions, particularly in respect of aspects that will affect devolved functions?
Mr Clarke
We will come forward with a Bill as soon as parliamentary time arises. We will, of course, respond to the consultation before that. We are liaising and consulting closely with the devolved Administrations, because there will be implications for them. We will make progress in the fairly near future.
David Rutley (Macclesfield) (Con)
T7. There are considerable concerns about the proposals for elements of court hearings to be heard in private. Will the Secretary of State reassure the House that one of the reasons for that solution is that it will safeguard national security by protecting information that comes from our foreign allies?
Mr Clarke
Yes, I can. The aim is to combine that purpose with getting a proper judicial decision on disputed cases, in which allegations or claims are made or in which matters have to be inquired into, that is better than the conclusions that we get currently. There is no system in the world in which spies give evidence in open court, naming their sources, describing their techniques and giving the full facts that the intelligence service has at its command to the public at large. At the moment, all that happens when such evidence is relevant is that it is not given and no satisfactory conclusion is ever reached. We have addressed that in the Green Paper that we have published.
Tom Brake (Carshalton and Wallington) (LD)
With a senior CIA official stating that there has been no drop in the intelligence exchange between the US and the UK, with the current inquest system providing greater certainty than the proposed alternative that families will find out why their loved ones died, and with closed material proceedings introducing, according to Lord Kerr, untested evidence into court, will the Secretary of State explain why we need the Green Paper on justice and security?
Mr Kenneth Clarke
When we share intelligence with other friendly countries, we do so on the basis that we will not disclose that intelligence to the outside world. The moment doubt is aroused about whether or not intelligence remains secure once it is given to the British intelligence community, there is a damaging effect on the willingness of other intelligence communities to share information with us. I have no control over the American intelligence service or any other, and we have to respond to reality in this extremely difficult world. As I have already said, in the case of inquests or civil courts and sensitive material that cannot be given in public, the alternative is that the evidence is not given at all, and everybody remains dissatisfied by the outcome.
Susan Elan Jones (Clwyd South) (Lab)
T9. I am sure I will not be the only Member of the House to have been dismayed by the Secretary of State’s last answer. Yet again the Government seem to think they know better than the Royal British Legion and service personnel on this matter. Service families want justice done in the open for loved ones killed in action. Why will he not listen to their rejection of the secret inquests he has proposed in the justice and security Green Paper, or will he answer again that the Government know best?
Mr Clarke
I am sorry that the British Legion seems to be getting carried away with another campaign, this time based on “secret justice” conspiracy theories that are being put around. I am not normally attacked by people for, or accused of having, an ill-regard for the principles of justice or for my reactionary views on closing things off from the public. The fact is that military families, like everybody else, understand that military intelligence officers, for example, cannot always give full evidence in open hearing about all their activities. However, the particular difficulties of inquests and other hearings are addressed in the Green Paper on which we are now consulting. We must strike the right balance in the very rare cases in which intelligence that puts national security and individual safety at risk is involved. One part of that balance is the undoubted needs of open justice, which should be done wherever it is remotely possible.
Mr Peter Bone (Wellingborough) (Con)
This splendid Secretary of State has always been open to novel ideas to solve important problems. Has he looked at my Bill that would allow us to withdraw temporarily from the European Court of Human Rights to deport terrorists? Does he think it might have some merit?
Mr Clarke
I am glad to know that my hon. Friend is, as ever, on the side of moderation—he suggests not necessarily leaving or remaining, but temporarily withdrawing, which is obviously in his opinion the middle path. I am awaiting the advice of the independent commission that we have appointed, which I have not interfered with at all, and which is seeking to get to some conclusions. I am also awaiting the results of negotiations with 47 other countries that are signatories to the European convention on human rights.
Dr William McCrea (South Antrim) (DUP)
Does the Justice Secretary agree that, no matter how much sympathy we have for the personal suffering of our fellow men and women, only Parliament can change the law of murder and permit someone to take their own life by their own hand or to be assisted in doing so by doctors or others?
Judicial Pension Schemes
Lord Clarke of Nottingham Excerpts(12 years, 9 months ago)
Written StatementsRead Full debate Read Hansard Text Read Debate Ministerial Extracts
The Lord Chancellor and Secretary of State for Justice (Mr Kenneth Clarke)
At the spending review 2010 the Government announced increases to member contribution rates in public service pension schemes saving £2.8 billion a year by 2014-15, to be phased in from April 2012.
The Judicial Pensions (Contributions) Regulations 2012, laid today, will introduce from April new net personal contributions of 1.28% of salary for the members of the judicial pension schemes who have not accrued full pensions benefits. The regulations also set out when no contributions are due and ensure that the payment of personal judicial pensions contributions will have no impact on the maximum additional voluntary contributions that an individual may make.
The Government remain committed to securing in full the spending review savings in 2013-14 and 2014-15 from further increases to member contributions to public service pension schemes.
The associated Judicial Pensions (European Court of Human Rights) (Amendment) Order 2012, also laid today, will enable contributions towards the costs of providing personal benefits to be taken other than from salary, from the UK judge of the European Court of Human Rights if that judge continues to be a member of a judicial pensions scheme in line with the process already in place for collecting contributions towards dependants’ benefits.
Emergency Workers (Obstruction) Act 2006 Post-Legislative Scrutiny
Lord Clarke of Nottingham Excerpts(12 years, 9 months ago)
Written StatementsRead Full debate Read Hansard Text Read Debate Ministerial Extracts
The Lord Chancellor and Secretary of State for Justice (Mr Kenneth Clarke)
I am today laying before the House the Government’s memorandum to the Justice Committee on post-legislative scrutiny of the Emergency Workers (Obstruction) Act 2006.
The Emergency Workers (Obstruction) Act 2006 introduced offences of obstructing or hindering an emergency worker responding to emergency circumstances, and obstructing or hindering a person assisting such a worker. Those emergency workers covered by the Act include fire and rescue workers, ambulance personnel and those transporting organs, coastguards and lifeboatmen.
These reforms have been implemented, in line with the stated objectives of the Act, as detailed in the memorandum.
Family Justice
Lord Clarke of Nottingham Excerpts(12 years, 10 months ago)
Written StatementsRead Full debate Read Hansard Text Read Debate Ministerial Extracts
The Lord Chancellor and Secretary of State for Justice (Mr Kenneth Clarke)
My right hon. Friend the Secretary of State for Education and I will today lay before Parliament the Government’s response to the family justice review. The family justice review offered an extensive set of recommendations on how to reform the family justice system. We offer our gratitude to all of the panel members, and in particular to the chair, David Norgrove, for their dedication, creativity and hard work. The range and boldness of its recommendations offer a significant opportunity to improve the resolution of disputes in the best interests of children and their families.
In the first place, I wish to address the issue of shared parenting. This is a sensitive issue with strong opinions on both sides of the debate. The review rejected any legislative provision in support of shared parenting. Instead, it offered a range of recommendations, focused on education and parenting agreements, to help promote shared parenting—we will be taking these forward.
However, many people continue to have concerns about the proper recognition of the role of both parents by the courts. The Government accept the need to clarify and restore public confidence by a legislative statement emphasising the importance of children having an ongoing relationship with both their parents after family separation, where that is safe, and in the child’s best interests. The Government are mindful of the lessons that must be leant from the Australian experience of legislating in this area, which were highlighted by the review and led them to urge caution. We will therefore consider very carefully how legislation can be framed to avoid the pitfalls of the Australian experience, in particular that a meaningful relationship is not about equal division of time, but the quality of parenting received by the child.
The debate over shared parenting, however, must not be allowed to delay the implementation of the many other changes recommended by the review. As the review made it clear, the family justice system is under great strain. It is a system, characterised by distrust and delay. We must begin to work immediately on tackling these problems.
In public law, where the state intervenes to take children into care, our overriding priority must be to reduce significantly the unacceptable level of delay that currently exists. The average care case now takes 55 weeks and many take much longer. This delay, in practice, means months of uncertainty for a child, trapped in a difficult situation and with little stability in their life. This cannot continue.
We have already announced our intention to legislate, as soon as parliamentary time allows, for a six-month time limit on care and supervision proceedings. This will send a powerful and unequivocal message that the current level of delay is unacceptable. It will also provide a focal point for the broader changes to the system.
This six-month limit will not be achieved without fundamental changes to the way the system works. We will be introducing a number of other changes to create a more efficient and co-ordinated system. These changes include refocusing the courts on the core issues within the local authority care plans, removing duplication between the courts and adoption panels scrutinising cases already before the courts and ensuring that expert reports are only commissioned where they are essential to the case.
In private law, we are determined to provide a procedural framework that will support separating couples to resolve their disputes more reasonably and more quickly, without the need to resort to litigation in court, where it is possible to do so. To do this we will legislate to make attendance at a mediation information and assessment meeting compulsory for a person wishing to make an application to court in certain private law family proceedings unless a limited number of exemptions apply.
We will also work to make specialist parenting programmes available to separating parents earlier, rather than waiting until they come to court At the same time, we have begun to work across Government to create online support that can provide the range of information that separating couples need and will consider how parenting agreements could be used to emphasise the need for parents to consider how the child can maintain a relationship with other close family members including grandparents.
The review was also clear of the need to create a more coherent system, characterised by trust and co-ordination between the different courts and agencies involved. As the first step towards this, we will create a Family Justice Board to provide greater leadership and co-ordination across delivery agencies nationally and locally and prepare the system for the changes to come.
This Family Justice Board will bring together key Departments, delivery bodies, local authority representatives and the judiciary into a single forum to oversee the delivery of family justice. Its priority will be on driving improvements in the system’s performance, with a focus on greater cross-agency coherence, tackling variations in local performance and making progress against the six-month time limit for care cases. Additionally, the board will be tasked with driving the cultural change which is essential to transforming the family justice system. This will include better quality and more integrated training and increased information sharing across agencies. We will also bring court social work closer to other courts services by transferring CAFCASS to the Ministry of Justice.
Taken together, these steps represent a significant agenda for change. We are convinced that through this agenda we can transform the family justice system, improving the lives of thousands of children and families.
The document is also available online at:
http://www.justice.gov.uk/publications/policy/moj/family-justice-review-response.htm.
Transparency and Consistency of Sentencing
Lord Clarke of Nottingham Excerpts(12 years, 11 months ago)
Commons ChamberRead Full debate Read Hansard Text Read Debate Ministerial Extracts
The Lord Chancellor and Secretary of State for Justice (Mr Kenneth Clarke)
I beg to move,
That this House has considered the work of the Sentencing Council and the transparency and consistency of sentencing.
I am glad to have the opportunity to debate this issue today. Public confidence in our criminal justice system rests on the principle that justice is dispensed independently by a judge in possession of the full facts of a case. It is normal to quote Magna Carta: we do not deprive people of their liberty
“without due process of law”
in this country. It is not the case in the United Kingdom, as it still is, unfortunately, in many parts of the world, that the Executive can order the detention and trial of people simply on the basis that they disagree strongly with the Government. Neither is it the case, as it is in some other judicial systems, that trials can be stretched out and rerun, until the “right” judgment is reached. Politicians do not sentence people in individual cases, judges do, and British Governments lose cases when they are parties in civil actions. I shall not go on, because we all know that those are the fundamentals of civil liberties and the rule of law in this country.
Independence is what we employ judges for, but alongside that fundamental truth lies an equally important principle—the discretion to do justice in individual case. Only judges see the full circumstances of each case, and they need the freedom to vary sentences in individual instances in accordance with the gravity of the offence. They have to bear in mind the circumstances of the individual offender and such mitigation as they may be able to offer. Sometimes the offence will be so aggravated that a higher than average sentence is required, as we saw, for example, after the riots in August. On other occasions, there will be significant personal mitigation, or relatively little harm caused to the victim, which means that a lower sentence than average will be justified. Just as we trust that our independent judges are the right people to make sensible decisions about the running of cases, so we generally trust them to apply the framework of criminal law across a range of different kinds of case of varying degrees of seriousness.
Keith Vaz
On the point about gravity, the right hon. and learned Gentleman will have noted the sentences that were given yesterday to a group of four al-Qaeda inspired fundamentalists, who as the result of a Goodyear hearing will, in effect, be out of prison within six years. Does he consider it important to revisit the whole notion of Goodyear hearings in view of the fact that people who were going to cause mayhem in London have got away with being in prison for only six years?
Mr Clarke
I am not yet familiar with the full facts of the case, so I certainly shall not comment. There is also a matter of principle. The custom is growing that Ministers conduct a running commentary on sentences in individual cases as they proceed. I do not think that that is wise. I believe in the separation of powers. The right hon. Gentleman is a senior and respected Member of the House, but my understanding is that those people will be sentenced next week. I will check. When the sentence is actually imposed, we have a system whereby the Attorney-General can put in an appeal on the ground of leniency and ask the Court of Appeal to reconsider it. I will inquire more closely during the course of the debate, as the right hon. Gentleman is obviously concerned.
Public confidence would not be well served if individual judges gave widely varying sentences in similar cases. We have one body of law as determined by Parliament, and the punishment should fit the crime. Parliament imposing the law is the guardian of public opinion. We are answerable to the general public and the maximum tariffs set by the House have to be taken as a guide by judges in all cases.
Different cases should attract different punishments. The question is how to ensure that our independent judiciary can make judgments that fit the facts of the case but are also consistent with each other: how to balance, on the one hand, the imperative of judicial freedom—such that they have the latitude to sentence according to circumstance—with, on the other hand, the need for a consistent approach across the system and in all our courts.
Philip Davies (Shipley) (Con)
My right hon. and learned Friend rightly focuses on public confidence. What assessment has he made of the current state of public confidence in sentencing? Does he have a view about the poll commissioned by Lord Ashcroft and carried out by Populus, which shows that more than 80% of the public, more than 80% of the police and more than 80% of victims think that sentencing is too lenient at the moment?
Mr Clarke
That has always been the case, certainly in my lifetime, and I suspect it always will be. I always wonder why that is the consistent public attitude. I shall not launch into criticism of the press, but I think it is because of the way these things are always presented to the public. The newsworthy cases are those where the newspaper decides to give a short version of the case and rouses the indignation of its readers by the apparent leniency of the sentence. Much though I respect opinion polls, particularly those obtained by Lord Ashcroft, the fact is that most citizens never go to a court of law. Most people, if we ask them, do not know what sort of sentences are imposed by the court. If all they read about are individual sensational cases, which a particular editor is trying to present as scandalous because of a lenient sentence, it tends to form public attitudes.
I shall not go further, but when we read a newspaper, we should not believe we are hearing all the facts of the case. The judge has probably heard hours of evidence from both sides, but what we read are two or three snappy lines summarising what is supposed to have happened in the opinion of the journalist.
Mr Edward Leigh (Gainsborough) (Con)
Let us look at the facts. Perhaps the public are worried about this fact: 48% of burglars do not receive an immediate custodial sentence.
Mr Clarke
In a moment, I shall probably make another passing reference to the fact that the Sentencing Council guidelines make it clear that custody is undoubtedly a normal sentence for burglary. In my experience, it always has been, and it still is. There has to be a clear mitigating circumstance for anybody to avoid a custodial circumstance.
Mr Robert Buckland (South Swindon) (Con)
My right hon. and learned Friend is correct in his assertions about lack of knowledge. It is not the fault of the public; it is the fault of the system that there is lack of knowledge in the public domain. That point is eloquently demonstrated and backed up by the findings of research conducted by Ipsos MORI for the Sentencing Council in May last year.
The Parliamentary Under-Secretary of State for Justice (Mr Crispin Blunt)
You be the judge.
Mr Clarke
I am reminded by my hon. Friend.
The facts of a case are given and the public are invited to give what they think is an appropriate sentence. Then they are told the sentence the judge gave. In fact, members of the public tend to give more lenient sentences than judges impose, because they have been led to believe—I shall not carry on, because it will only lead to reprisals in the morning. Some of our right-wing newspapers, which I started reading when I was a very small boy, have been telling the nation about soft judges letting off criminals for as long as I can remember, and in my opinion that will be the theme of some of our leading popular newspapers in 50 years’ time, if they survive that long. I shall move on.
This is where the Sentencing Council comes in—the independent body established in 2010 and ably led by its chairman, the right hon. Lord Justice Leveson, to whom I am grateful. Its role is precisely to promote a clear, fair and, above all, consistent approach to sentencing, backed up by supporting analysis and research. As hon. Members know, it does that by publishing guidelines—carefully crafted analyses that set out a clear decision-making process for courts and give guidance on aggravating and mitigating factors to help inform the sentence.
The guidelines include examples of the different levels of harm that a crime can cause, both to victims and the community. They set out varying levels of culpability that apply to offenders, such as whether the offence was committed on the spur of the moment or whether it was carefully planned in advance. They suggest common starting points and ranges for courts to use for different levels of offence. Importantly, they are guidelines, not tramlines or a rigid framework. They are flexible, and judges are always free to depart from them in exceptional circumstances. The most valuable quality for any judge in any court is judgment, which is what, in the end, they bring to bear.
Rehman Chishti (Gillingham and Rainham) (Con)
The point that guidelines should be guidelines was demonstrated after the riots, when in extraordinary circumstances judges used their discretion and gave firm sentences. Guidelines are for ordinary circumstances, but for those extraordinary events judges were spot-on in using their discretion.
Mr Clarke
As it happens, I entirely agree with my hon. Friend’s opinion. Judges rightly reflected the fact that the background was a sudden, alarming outburst of public disorder and that they needed quickly to give firm and severe sentences, in some cases above the average normally imposed for the offence. That was a correct response to public need.
In the two years it has been operating, the Sentencing Council has done much valuable work not only to promote consistency but in its more general role of seeking to improve public confidence in the criminal justice system. However, it has on occasion been criticised for both its general role in developing guidance for the courts and the contents of particular guidelines. The case that I want to make today, before listening to the views of the House, is that the current system is the right one and that these criticisms are largely misdirected. Contrary to what one sometimes reads in the newspapers, sentencing guidelines take a proportionate and sensible approach to the punishment of offenders, and one in which the public should have great confidence.
Mr Stewart Jackson (Peterborough) (Con)
My right hon. and learned Friend, in his normal charming way, has encompassed some of the problems in his overview of the concerns about the faith and trust of taxpayers and constituents in the criminal justice system. He says that he does not want to set a precedent whereby Parliament provides a running commentary on sentencing, and he criticises the media prism in which sentencing is discussed, but surely he concedes the obfuscation of court procedures. When will the average taxpayer get a say on sentencing in this country?
Mr Clarke
That is what this debate is for. MPs, and everyone else, are of course perfectly entitled to make whatever comments they wish about the criminal justice system, which, like every part of the public service, is accountable to Parliament, and ultimately it is Parliament that determines the framework of law by which the whole thing is conducted. It seems to have become rather fashionable nowadays for a running commentary to break out about a series of cases, and I think that we should be more sparing. I also think that anyone who comments on this or any other matter should ensure that they have the full facts before going out and giving a considered opinion, rather than just reacting to something they read over their morning coffee.
Nicola Blackwood (Oxford West and Abingdon) (Con)
Will the Lord Chancellor give way?
Nicola Blackwood
I thank the Lord Chancellor, who is being extremely generous, for giving way. His points about press sensationalism, the separation of powers and not wanting to have a running commentary from politicians are well made. However, I think that the lack of public confidence is not just due to a thirst for punishment beyond reason, because there is also the fact that reoffending rates are high. The point about sentencing is that we want it to be an effective deterrent against reoffending. At the moment, 49% of all prisoners reoffend within a year of release, and for adults released from short-term prison sentences the rate rises to 60%. We have to convince the public that our criminal justice system is effectively deterring prisoners from reoffending, which is not an issue of sensationalism.
Mr Clarke
I could not agree more. In fact, in so far as I have brought anything into policy since taking up my current post, it has to put much greater emphasis on reoffending, which is the biggest weakness of our system, but covering the full range of reforms would be outside the scope of the debate. The system punishes first of all, but it would serve the public better if it also led to the reform of more offenders, so that we could get reoffending rates down to a more respectable level. My colleagues and I are trying to address that in everything that we do in the Department of Justice.
It is relevant to the debate to consider what is most effective in deterring reoffending. Some people have held the belief for years, quite understandably, that in order to cut reoffending we must deter people by sending more and more to prison for longer and longer sentences. My personal opinion is that the evidence completely refutes that view. That approach does not work, particularly if it makes prisons overcrowded and unresponsive places where prisoners toughen up and meet some rough friends before being released to fend for themselves in the outside world. We are making more intelligent use of the prison estate so that, in addition to the punishment of confinement, there is a process of reform based on a working environment that tackles drugs, drink, mental illness and all the other things in order to lead people to behave when they are released.
Derek Twigg (Halton) (Lab)
I am very interested in what the Secretary of State is saying and agree with his view about the importance of deterrence as well as punishment, but there is a flaw in what he is saying about sending people to prison. When talking to police officers in my constituency a year or so ago, I was told that they took five or six prolific burglars off the streets and put them away for a year or two, which had a massive impact on burglary rates in the area, so it does work. Although they will be released eventually and might reoffend, the fact is that putting people in prison does have an impact in certain circumstances.
Mr Clarke
Burglary rates dropped in recent years because we had an economic boom, and I think that there is a serious danger that they will go up again—they are going up at the moment—if we do not get out of our present economic difficulties quickly. Better policing also counts. In my opinion, the police have become much better at targeting suspected offenders and arresting the people causing most of the crime. Of course prison is the right place for serious offenders, so the sentences that the hon. Gentleman describes sound quite light to me for persistent burglars, and everyone gets a rest while they are sent to prison. As I said when agreeing with my hon. Friend the Member for Oxford West and Abingdon (Nicola Blackwood), while such people are in prison, given that they will be released one day, we should make more intelligent use of prisons to try to ensure that we reform those people so that they are less likely to reoffend.
Philip Davies
The Secretary of State seems to be arguing that sending people to prison for longer would not help to reduce reoffending, but his Department’s own figures indicate that the longer they spend in prison, the less likely they are to reoffend. If he is not sure about that, I can tell him that the reoffending rate for people who spend less than 12 months in prison is 61%; for those who spend 12 months to two years in prison, it is 36%; for those who spend two to four years in prison, it is 28%; and for those who spend more than four years in prison, it is 17.6%. It is clear that the longer people spend in prison, the less likely they are to reoffend.
Mr Clarke
There is another debate to be had on that, which my hon. Friend will no doubt press for. If people are sent to prison for less than 12 months, we really do nothing whatsoever for them there. They are locked up, released at the end of their sentence and given no support when they leave, and there are staggering levels of reoffending. One thing that has always been done, by the previous Government and every Government, is that the more serious offenders are kept in prison for longer and more effort is made to try to keep an eye on them when they get out. That is a very brief summary of that debate. Once we start swapping statistics in this way, we could argue practically anything, particularly as most criminal statistics have been remarkably unreliable in recent years—I hope that they are now being improved. My hon. Friend’s view is not quite the same as mine, but I respect it.
Mr Stewart Jackson
My right hon. and learned Friend is being most gracious and generous in giving way. I wish to be helpful, if I can. I am puzzled by his view on the fact that putting people in prison does not work, because he will know about the possible great success of the social investment bond in HMP Peterborough, where 46% of the indicative income for keeping prisoners in prison will go back to St Giles Trust, Nacro and other third sector organisations. That approach will be rolled out across the whole country, if it is successful. Surely the point is that putting people in prison can work, if it demonstrably reduces recidivism in the long run.
Mr Clarke
I do not disagree. I have always held up the arrangement at Peterborough prison as a model of where we want to go. It is exactly what I wish to encourage. People are imprisoned, first, because they have to make their reparations to the public and be punished for what they have done but, as my hon. Friend has rightly said, there is now an extremely interesting situation in place where attempts to start reforming criminals start in the prison and are followed through outside by St Giles Trust, which is the partner of the private sector managers of the prison. We hope to replicate that pilot across the country, which is an example of where we ought to go. People get the punishment first and then proper efforts to stop them offending when they are released.
Sir Alan Beith (Berwick-upon-Tweed) (LD)
To pursue that point further, is it not the case that if we have a system that faces constant increases in numbers, overcrowding and prisoners being moved around in order to accommodate the problems that the system faces, we will not get sentence planning, the careful structuring of sentences or measures to prevent reoffending, which are needed.
Mr Clarke
I entirely agree with the right hon. Gentleman. Indeed, that problem has constantly recurred with the extraordinary explosion in the number of people in prison in recent years.
As I have said, I am not saying that everything is perfect in the wider criminal justice system. I freely acknowledge that reporting and public understanding of our system is far from ideal, which is one reason why the coalition Government have a far-reaching programme of criminal justice reform as well as measures to promote transparency and public understanding. However, we should not muddle the problems of an overly complex body of law, which is too rarely reported accurately, with the rules governing how our judiciary apply the law in particular cases.
For the avoidance of doubt, it is worth saying that although the Sentencing Council is a recent innovation, the approach that it embodies is not new. Sentencing has operated in England and Wales for more than 100 years under broadly the same well-established constitutional settlement, in which Parliament sets the overarching legislative framework within which courts sentence, including the maximum penalty and, for some offences of particular public concern, the minimum penalty available to the courts. The role of independent judges is to work within that framework.
Since 2010, the Sentencing Council and its predecessor, the Sentencing Guidelines Council which was created in 2005, have provided courts with a decision-making process to assess the harm that offences cause to victims and communities, suggesting common starting points and ranges, and highlighting aggravating factors. The Sentencing Council has not fundamentally changed the basic division of responsibilities or the balance of power between Parliament, Government and the judiciary. Before the previous Government created the Sentencing Council, the Court of Appeal carried out this function. Its criminal division gave guidance to courts when it thought that discrepancies were beginning to occur. The Court of Appeal has not lost that power entirely and still gives guidance when it feels it necessary. However, the council now provides the great majority of such support to the courts.
Stephen Phillips (Sleaford and North Hykeham) (Con)
Will the Secretary of State give way?
Mr Clarke
If my hon. and learned Friend will forgive me, I ought to get on or else I will be running a seminar for a large part of the afternoon, which would not satisfy all my hon. Friends.
The Sentencing Council adds stronger checks and balances to the tradition. It does so, first, through its 13-strong membership. The majority of its members are judges and magistrates, but it also includes the Director of Public Prosecutions, the former acting Metropolitan Police Commissioner and the former chief executive of Victim Support. The council has not yet produced guidelines for any category of offences that have not received the support of the Association of Chief Police Officers. These are not simply judge-made guidelines for the courts; a range of backgrounds are represented on the council.
Secondly, the guidelines are determined independently and transparently, but with extensive public consultation. The consultations for recent guidelines have happened over 12 weeks and have elicited thousands of responses. Thirdly, the guidelines enjoy a proper level of parliamentary scrutiny. The right hon. Member for Berwick-upon-Tweed (Sir Alan Beith) and his colleagues on the Select Committee on Justice consider every draft guideline in detail, taking extensive written and oral evidence from a wide range of experts, including the chairman of the council. The Select Committee’s work ensures that there is meaningful democratic engagement in sentencing guidelines, without compromising the crucial principle of judicial independence.
Over the past 18 months, the council has published guidelines on a number of areas, on occasion attracting lurid headlines about excessive leniency and so-called soft judges. Let me address that directly. Our judges are far from overly lenient. The average length of prison sentences has increased by 20% over the past 10 years. I do not have proper figures but, having practised myself 30 years ago, I think that the increase has been even greater. We now send many more people to prison and impose longer sentences than was ever the norm until the past four years. As my hon. Friend the Member for Gillingham and Rainham (Rehman Chishti) pointed out, judges can still respond to things such as the riots in an appropriate way.
The guidelines are concerned centrally with ensuring that sentences properly reflect the seriousness of an offence. They are statutorily required to have regard to the impact of sentencing on victims and public confidence in the criminal justice system. Naturally, people seize on isolated parts of the guidelines and quote them out of context. However, when set against the cases that courts see every day, they are well-thought-out, carefully considered, serious pieces of work. For example, the guideline on burglary concludes that domestic burglary should habitually attract a custodial sentence, that the sentimental value of any goods taken must be considered alongside their financial value, and that the presence of children when a burglary is taking place will significantly aggravate its seriousness.
Mr Leigh
My right hon. and learned Friend is gracious in giving way so often, and he has made clearly his point that burglars should get a custodial sentence. Let me refer to my previous intervention. If we are talking about domestic burglary—which is the worst thing—in 2009, 37% of those convicted of domestic burglary were given a non-custodial sentence. Does it worry him that the courts are not following what he is advising, which is that the people who cause such misery should end up in prison?
Mr Clarke
Individual judges must have considered the guidelines, which are quite new. I am surprised by that figure, however, because burglary has always habitually required a custodial sentence. There must have been some feature in those cases that made people think—either because of a particular problem with the offender when it might have been better to send them on a drug-rehabilitation course, or some other mitigating feature—that on this occasion they would not impose a custodial sentence.
Like all criminal offences, burglary is a wide-ranging offence. It covers everything from someone who has opportunistically opened a door, nicked something off a shelf and run, to two men wearing masks and going into a building, prepared to be violent towards anyone who tries to stop them. There is bound to be a range of sentences, but the guidelines of the Sentencing Council state that domestic burglary should habitually attract a custodial sentence. I have always agreed with that, as does my hon. Friend.
I want to consider the guideline on drug offences that produced some headlines last week. That guideline helps courts to distinguish between organised criminals who, as we know, cause misery to families and the whole community, and those who have become involved in the drug trade through intimidation or a dependency of their own. Contrary to the rather inaccurate headlines that occurred last week, which claimed that street dealers caught with 6 kg of cocaine could avoid jail—that startled me when I heard it repeated on the radio—the truth is that possession of that amount of a drug would be a very serious crime. The starting point for sentencing would be at least seven years in custody, even for an offender playing a lesser role in a criminal operation, rising to a starting point of 14 years in custody for those who have a leading role. The wholly inaccurate headlines stating that drug offences would receive lighter sentences were based solely on the reduction of the sentence for so-called drug mules, if they are addicts and are being exploited to carry drugs for the person who is manipulating them. That sentence has been eased a bit, to the extent that sentences for drug mules who bring in 1 kg of heroin or cocaine now have a starting point of only six years in custody, whereas previously that might have been 10 years.
Significantly higher sentences were recommended for those who play leading roles in a criminal operation, which is why the guidelines on drug sentencing did not receive the slightest criticism from anybody who knows the criminal justice system, including the police and prosecutors. Frequently, the commonly made criticisms of our judiciary and of the guidance produced by the Sentencing Council are unmerited.
I do not, however, wish to defend the status quo uncritically. Anyone who is remotely acquainted with our justice system knows that there are genuine challenges facing it, and that we cannot afford any complacency in addressing them. Sentencing guidelines, and the work of the Sentencing Council, would benefit from further public scrutiny and understanding. The need to ensure that the guidelines receive due public and parliamentary focus is precisely why the Government have allocated today for this debate. I look forward to listening to right hon. and hon. Members and hope that the debate will make a small contribution to establishing public attitudes, and perhaps also to successfully scotching some of the myths that surround the Sentencing Council’s work.
More broadly on confidence in the criminal justice system, it is no surprise to me that the public find it difficult to make sense of the body of criminal law, given that it has grown like Topsy in recent years. Under the Labour Government, constant changes and 20 criminal justice Acts over 13 years left us with a system that even experts have struggled to make sense of. Top-down schemes, meddling and prescription left the system in a complete mess. There were thousands of new offences. I was greeted publicly at the judges’ dinner with the complaint that
“hell is a fair description of the problem of statutory interpretation”.
The net result? A sentencing policy so chaotic and badly managed that towards the end of the last Government’s time in office, they had no room for all the extra people they were putting in prison. They had to let 80,000 criminals out early who promptly went on to commit more than 1,600 fresh crimes. I approved of the new unpaid work community payback scheme, but the way in which it was put into practice meant that offenders serving community sentences usually completed only one or two days of unpaid work each week. That is why there is an urgent need to sort out sentencing, and why we are reforming it. We will simplify it and make it easier to understand, and the House has already considered the Legal Aid, Sentencing and Punishment of Offenders Bill, which is currently in the other place and will introduce some of our far-reaching reforms.
Under that Bill, we propose to reform the statutory duty on courts and judges to explain the meaning and effect of their sentences and communicate them in plain English so that people can understand what will happen to the offender. We are simplifying the release framework so that all prisoners will be governed by one set of rules, making it easier for justice agencies to keep victims informed, and we are replacing the disgrace of so-called indeterminate sentences for public protection with a tough, determinate regime that can be easily understood by victims and the public. [Interruption.] I hear protests, but we all know that the guru on sentencing, Mr Thomas, described those sentences as an “unmitigated disaster”. In due course, we will also bring forward proposals to ensure that community punishments punish and reform more effectively.
Finally, I believe that our system suffers from a fundamental lack of information and openness. Public understanding of sentencing is critical to confidence in the system and to its effectiveness in ensuring that justice is done. We need to open up a system that to many people remains a rather mysterious world, to reassure people that the law is on the side of the law-abiding citizen. That is why I have announced measures that, in my opinion, collectively amount to a revolution in transparency in our courts.
One major item of progress is that we are developing legislation to remove the prohibition on cameras in courts and allow the broadcasting of sentencing remarks. That will be introduced in the Court of Appeal in the first place, but will be followed by extension to the Crown court at a later date. The filming of victims, witnesses, defendants and jurors will of course not be allowed under any circumstances. The change is intended to ensure that the public can see and hear sentences being handed down and hear the comments that judges make on cases. It is not so that our courts will become theatre. I hope that it will help to demystify the court process without undermining the seriousness and diligence that is so central to the quality of our justice system.
Alongside the televising of sentencing remarks, we are seeking to expand the use of restorative justice. Though the restorative approach is often seen as a means of reducing reoffending, for victims who want to take part it also helps to open up the court process. It allows victims to play an active role in helping the court determine how to deal with an offender, which is one reason why victim satisfaction levels with the approach are so high. Restorative processes can help to turn the justice system from one that does things to victims to one that does things with victims.
Last but not least, we are releasing more data than ever before on the performance of our courts. The radicalism of that policy has perhaps not yet been fully recognised, but it has the potential to deliver major progress in public understanding. For the first time, we are making available information on court performance, including delays and total times, and on sentencing decisions classified by offence. That will enable the public to see exactly what sentences are being handed down and where, particularly in their own locality, and it will help them to put that information in context.
What we are doing will represent a fundamental shift in how the justice system works. Justice must not only be done but be seen to be done if it is to command public confidence. The challenge is to deliver reforms to the wider system to simplify it and make its performance more visible to the public. As the measures that I have outlined suggest, I believe we are on the threshold of a step change in openness and transparency. The changes will complement and strengthen the sensible arrangements under which the Sentencing Council operates, which I readily acknowledge were introduced by the last Government, and its wider place underpinning the sound and long-standing division of responsibilities between the judiciary and the Executive in England and Wales. I look forward to the whole process being subject to parliamentary scrutiny, which we are taking a step further by having this debate.
Philip Davies
I think my hon. Friend is very good friends with Ministry of Justice Front Benchers and I suggest that he ask them some parliamentary questions, because those are the answers they have given. To be as helpful as possible, I will furnish him with the parliamentary answer that shows that people with 100 previous convictions behind them are still more likely not to be sent to prison than to be sent to prison. He might wish to take this up with his hon. Friends on the Front Bench.
I was shocked to receive a parliamentary answer showing the number of people who were given cautions for indictable offences, which are the most serious category of criminal offence and include murder, wounding with intent, abducting children and arson. That answer showed that 22 rapists, 24 people convicted of arson and 140 people convicted of unlawful intercourse with a girl under 16 have been given a caution. Bearing in mind the fact that cautions are given on admission of guilt, how on earth can we have a situation in which those people are not being sent to prison and are merely handed a caution? The Government are completely out of step with public opinion, particularly those highlighted in the Populus poll conducted by Lord Ashcroft, which showed that 80% of the public said that sentencing was too soft and that 70% called for life imprisonment to be made much harder.
There is this wrong idea that community sentences are far more effective at reducing reoffending and are also cheaper, but I want to point out that a Home Office survey found that the number of crimes committed per offender in the year before they were sent to prison averaged out at 140—or 257 for those on drugs. The typical cost calculated for those crimes was £2,000 each, which works out at £280,000 a year, in comparison with an estimated cost of £38,000 for a prison place, so perhaps we ought to think about what is most cost-effective.
In 2008, offenders who had completed a community sentence went on to commit a further 250,000 crimes in the 21 months following their sentence, 1,500 of which were serious offences including murder, rape and robbery. As I mentioned to the Secretary of State earlier this week, in 2008-09 some 6,600 people whom the probation service deemed to be high risk or very high risk were serving community sentences.
Then there is the myth that prison does not work. The reoffending rates for people serving short-term sentences is higher than any of us would like, but I have been to lots of prisons in the past 12 months, probably about a dozen—I even visited one in Denmark to see what they do there—and I argue that prison does work. It could probably work better but it does work. As I made clear in my earlier intervention, the longer people spend in prison, the less likely they are to reoffend. If prison itself was the problem, the longer people stayed there the more likely they would be to reoffend, but the opposite is true. I have given the figures: for people who spend less than 12 months in prison, the reoffending rate is 61%; for those spending 12 months to two years in prison it is 36%; for those spending two to four years in prison it is 28%; and for those spending four years or more in prison it is 17.6%.
Professor Ken Pease has used Home Office statistics to show that 13,892 offences resulting in conviction could have been prevented if offenders serving short sentences had been kept in prison for an extra month. That suggests an argument for sending people to prison for longer, rather than for not sending them to prison at all. My right hon. and learned Friend the Secretary of State complained, rightly, about the previous Government’s early-release programme that let people out of prison 16 days early, but the solution should not be not sending them to prison at all, which is what he seems to be advocating now.
When people are in prison we must try to rehabilitate them, but I do not understand why rehabilitation has to occur in the community. I have been arguing about this for quite a while with my Front-Bench colleagues. I should like a system modelled on the TBS programme that has been operating in Holland for many years. It treats prisoners with a personality disorder, of whom there are a large number in our prisons, and has achieved low reoffending rates. People are treated in prison, which is much easier because they do not have so many distractions—they cannot go off and do other things. In prison, they can be given proper targeted support, which is much harder when they are out of prison.
I very much support the Secretary of State’s promoting a stronger work ethic in prison. When I go round prisons, I am appalled by the lack of work ethic. Many prisoners are from families that have never worked; they are often the third generation who have never worked. Surely, one of the things we can do for them in prison is to get them into a proper disciplined routine so that they get up at a certain time in the morning and carry out tasks that get them into a work ethic. My right hon. and learned Friend is absolutely right to do that.
A study by Frances Simon in 1999 followed 178 prisoners until five months after their release. She found that 75% of those who had not sought regular work reoffended compared with only 28% of those who were actively looking for work and 15% of those in regular employment. That shows that even the discipline of going out and looking for a job can make a big difference to reoffending rates. Prison has to be the prime place where some of those people are given the discipline of a work ethic.
I think the Government are making a huge mistake about indeterminate sentences for public protection. Earlier today, my hon. Friend the Member for South Swindon (Mr Buckland) cast doubt on Ministry of Justice figures, but I trust my hon. Friends on the Front Bench. According to those figures, by the end of the 2010 calendar year, 206 people serving indeterminate sentences had been released from prison. Of those, only 11 had reoffended—a rate of about 5%, from my quick calculation. The criminal justice system as a whole would give its right arm for a reoffending rate of 5%.
If the Government are so obsessed with reoffending—the Secretary of State has said that he is—why on earth do they want to give up the part of the criminal justice system that probably has the lowest reoffending rate? It goes to show that the Secretary of State is not really preoccupied with the reoffending rate; he is preoccupied with reducing the number of people he sends to prison. That cannot be the right course of action and it is certainly not something that my constituents want.
Mr Kenneth Clarke
I am sorry to intervene just after my hon. Friend and I were warmly agreeing on the need to get a working environment in prisons. I can tell him that I had an excellent meeting this morning at the CBI, with leading figures from British business and the Prison Service, and we are making progress. On that we are totally agreed. With great respect, the figures my hon. Friend uses for IPPs are, unlike some of his other statistics, not very reliable. A tiny number of people have been released from IPPs, so to make a comparison between the very small sample he cites and the very large numbers he was using earlier is ever so slightly misleading. Most people imprisoned under IPPs have not been released and do not know when they will be released. There is an enormous backlog of cases for the Parole Board, which is wondering what to do with them.
Philip Davies
The figures my right hon. and learned Friend dismissed are the ones supplied by his Department. All I can do is give the figures as they are. They indicate that of the 206 people who have been released having served an IPP sentence, only 11 have reoffended. It is up to hon. Members to draw their own conclusion from those figures. The principle that we should not release people from prison until it is safe to do so strikes me and my constituents as a rather good one to have in the criminal justice system. His suggestion that we should release people from prison regardless of whether it is safe to do so seems rather bizarre.
Legal Aid, Sentencing and Punishment of Offenders Bill
Lord Clarke of Nottingham Excerpts(12 years, 11 months ago)
Written StatementsRead Full debate Read Hansard Text Read Debate Ministerial Extracts
The Lord Chancellor and Secretary of State for Justice (Mr Kenneth Clarke)
I have today arranged for copies of the Government’s response to the report of the Joint Committee on Human Rights to be placed in the Libraries of both Houses. The response was published on 30 January 2012.
The Committee issued its report on 19 December 2011. I am grateful to the Committee for its work in relation to the Bill.