Serious Crime Bill [HL]

Debate between Lord Elystan-Morgan and Baroness Howe of Idlicote

Tuesday 15th July 2014 Lords Chamber

[Baroness Howe of Idlicote (CB)]

My Lords, I very much support my noble and learned friend Lady Butler-Sloss, because her amendment absolutely stresses this emotional side that we are talking about and which has been in the background for far too long.

However, I am on my feet only because I think that the point made by my noble friend Lady Howarth is absolutely right. All these measures, and particularly the amendment of the noble Lord, Lord Ponsonby, need to be brought in to the Bill, which should be amended. For that reason, I very much hope that the Minister will do just that.

[Lord Elystan-Morgan (CB)]

My Lords, at Second Reading a month ago, I committed the cardinal sin of making some very specific and detailed comments of a nature belonging more to a Committee stage than otherwise. I am not going to make up for it by making a Second Reading speech today, but I very much welcome the amendment in the name of the noble and learned Baroness, Lady Butler-Sloss.

I have little doubt that the draftsmen of Clause 1 of the 1933 Act intended that “cruelty” should relate to both physical and non-physical cruelty. However, in 1981 in the case of Sheppard, this House caused some confusion in relation to that matter by placing what might be described as a somewhat heavy gloss upon the words of statute. The combined effect of the amendment and Clause 62 is that the situation will be made abundantly clear. I very greatly welcome that.

I also take the point that in so far as defining cruelty in terms of serious harm, a very great bringing together of two concepts has been achieved; that is, the definition of “significant harm” in Section 31 of the Children Act 1989, which of course is the section that sets up the machinery for the obtaining of a care order, is now almost exactly the same—or so near as to make no difference whatever—as the definition of the criminal offence that this clause brings about.

I take wholeheartedly the point made by the noble and learned Baroness, Lady Butler-Sloss, that the last thing one wants to do is to bring these civil situations into a criminal court. Sometimes that is inevitable. I also take the point that it is right that social workers and those involved in the protection of children in the civil field should, as it were, have the same hymn sheet as those who deal with those situations in the criminal field. They are two different fields, which should be mutually exclusive if humanly possible, but nevertheless it is right that the same standard should apply to both.

Crime and Courts Bill [HL]

Debate between Lord Elystan-Morgan and Baroness Howe of Idlicote

Tuesday 13th November 2012 Lords Chamber

[Baroness Howe of Idlicote]

My Lords, I support the approach of my noble friend Lord Ramsbotham to the whole of this schedule. We have been over this ground before. As the noble and learned Baroness, Lady Butler-Sloss, has pointed out, punishment is in the sentence. The important scenario is how that sentence is to be worked out for the rehabilitation of the offender, with the effort being to see that that offender does not return to the court. As we all know, all too often that is not the case.

My other concern is that we have had no result—again, this was mentioned by my noble friend Lord Ramsbotham —from the Government on the probation consultation. For us to be asked to make judgments at this stage without having in front of us all the facts about who will do a lot of this very necessary, specialised work, is not acceptable. Frankly, I do not want any of the alternatives that have been suggested but, if others are prepared to keep this whole section in and I had to choose, I would go for that suggested by the noble and learned Lord, Lord Woolf. Then it would be left to the judges to make the decision, which is the way in which we have in the past treated, and should continue to treat, the judicial system.

[Lord Elystan-Morgan]

My Lords, alongside those who have already spoken, I humbly subscribe my support for this amendment. If ever there was an argument on the part of government that has been shot through and shattered, this is it. If ever there was a piece of legislation where there was an overwhelming and unanswerable case against it, this, in my respectful submission, is it. I appreciate the argument put forward on 30 October by the noble Lord, Lord McNally, when he mildly, with considerable charm, chastised me. He said that it is wrong to argue that a Government should take a view which is different from the policy that has been established by judges over a long period of time. I think I do him fairness in summarising it in that way. He must be right. Parliament is sovereign and supreme. Judges do their best within the limits set down by law, but they can—and should, on occasion—be overruled by Parliament. That is what Parliament is about.

However, I believe that there should be a qualification to that rule: Parliament should never do that, and certainly should never circumscribe the discretion of judges, properly and justly used, unless a case had been made for that, and that case would rest on facts. In my submission, this case does not rest on facts at all. It rests much more on some form of political prejudice. The noble Lord, Lord Ramsbotham, on 30 October, quoted a speech made by the Prime Minister on 22 October dealing with this particular matter. These were the words used by the Prime Minister on that occasion:

“‘At every single level of sentence this Government is getting tougher ... we are toughening up community sentences too. If you are on a community sentence you will be supervised-you will be properly punished-you will be forced to complete that sentence’.”.—[Official Report, 30/10/12; col. 523.]

It seems to me—and I made the point in a general way on the previous occasion—that essentially the Prime Minister was talking about including some element of hurt in a sentence. That is not the same thing as punishment.

The noble and learned Baroness, Lady Butler-Sloss, has already made the point that the fact that a person, with the sanction of the law, is enjoined to do something that he may not wish to do, is of itself a punishment. He is subjected to the sovereignty of the court in that respect. I would argue further that the very fact that a person is convicted of a criminal offence, and that stain will be on his escutcheon for ever, even with all the ameliorations of the 1974 Act, is of itself a punishment. However, what is asked for here is something that society regards as hurting the offender. The rationale behind it seems to be that society in some way, through the courts, has failed to recognise that essential element of hurt. In other words, it is saying, “You are namby-pamby. You are soft. You are far too liberal in your attitude in this matter. You are not tough enough”. There is no evidence whatever to support that contention.

As far as the probation service is concerned, the noble Lord, Lord Ramsbotham, has shown quite clearly that it is tough, it is not soft and it is succeeding. The vast majority of cases are dealt with satisfactorily up to level 3; indeed, some of them up to level 4. No professional body could be expected to do better than that. Where is the evidence of the failure to exercise the element of harshness and pain—for that is what the Prime Minister was talking about?

It is entirely proper for a Government, where they are justified in doing so, to circumscribe the discretion that lies with any judge. I think that both Governments have been doing it a little too liberally over the past 20 years. Be that as it may, where they genuinely believe that there is such a case, they are entitled and indeed, one might say, obliged to do so. The case has not been made. If the Government cannot come forward with any hard evidence at all, they will, in effect, be relying on what the noble and learned Baroness, Lady Butler-Sloss, described really as a cosmetic and rather vulgar attitude, where they will be seeking a populist commendation for something that is utterly unworthy.