Legal Aid, Sentencing and Punishment of Offenders Bill

Lord Goldsmith Excerpts

Wednesday 1st February 2012 Lords Chamber

Justices of the Supreme Court and the Supreme Court users group have expressed the view that Section 194 should apply to the Supreme Court as it does to other courts. I hope that the Minister will be able to tell the Committee tonight that this omission will now be rectified. I beg to move.

[Lord Goldsmith]

My Lords, I very much welcome this amendment and thank the noble Lord, Lord Pannick, for having taken the opportunity to move and to promote it. He has already explained my particular interest as the now chairman of the charity that receives money made under these orders, which I prefer to call pro bono cost orders rather than Section 194 orders, because that is what they are. They are cost orders in the same way as the court grants costs in any other case. It is just that they do not go to the lawyers; they go to this charity which then distributes them. I should also declare an interest as the non-executive president of the Bar Pro Bono Unit and patron of the National Pro Bono Centre, two organisations that might—one of them certainly has—receive some of the grant money.

As the noble Lord has explained, the reason for these orders is the so-called “indemnity principle” in our costs regime. The indemnity principle means, first, that the court can order one party to pay the other party’s costs but only if that party is liable for those costs. In pro bono cases, the body is not liable for costs. That has several consequences, one of which is that you do not have the normal result at the end of the case where often the successful party receives costs. That results in the oddity—this is where I first saw the anomaly—of the unsuccessful party, the undeserving party if your Lordships will, receiving the benefit of the pro bono services, perhaps of some advocate as distinguished and able as the noble Lord, Lord Pannick. That cannot be right.

Secondly, there is no incentive to settle cases, which there often is in English cases, when there is a possible liability to costs at the end of the day. We have seen in a number of cases how that affects whether cases are settled; insurance companies and corporations will pay to a deserving claimant because they know that at the end of the day they will have to bear some costs if they do not.

Thirdly, it has proved to be a very valuable source of additional money for voluntary organisations providing pro bono services. I am very grateful to the noble Lord, Lord Pannick, for paying tribute to the lawyers—solicitors, barristers and legal executives—who do this for free and without payment. When I established the Bar Pro Bono Unit, I asked whether members of the Bar would be prepared to commit to three days of free unpaid work a year, and straightaway I had an overwhelming response. People are prepared to do this, and that is a great credit to them.

I have one thing to say to the Minister, which I always say when talking about this subject: this is not a substitute for a properly funded legal aid service but an adjunct to it, and a very valuable one. However generous a system might be, and we hope very much that the noble Lord will produce a more generous system at the end of the Bill, there will still be a need for this unit. However, as the noble Lord, Lord Pannick, has explained, there is a gap in that the House of Lords is not covered—

[A noble Lord]

The Supreme Court.

[Lord Goldsmith]

I am sorry, the Supreme Court—how outdated I am. To fill that gap would be very valuable. My understanding, like that of the noble Lord, is that the Supreme Court would welcome this. That is not surprising because the president of the Supreme Court is the noble and learned Lord, Lord Phillips of Worth Matravers, who, when he was Master of the Rolls in the Court of Appeal, was instrumental in passing the earlier Bill, but no doubt the Minister can confirm that. If not, his unsleeping department will be able check it instantly. I strongly support the amendment and hope that the Government will be able to accept it.

[Lord Bach]

My Lords, very briefly, we support the amendment. The expression “no brainer” has been used on a number of occasions. It is not an attractive expression, but it is surely one that applies to this amendment.

[The Minister of State, Ministry of Justice (Lord McNally)]

My Lords, I am grateful to the noble Lord, Lord Bach, for his intervention, and to the two noble Lords who contributed to the debate. The role of the Ministry of Justice in pro bono work is undertaken in partnership with the Attorney-General to endorse, support and facilitate pro bono initiatives. The Attorney-General carries policy responsibility for pro bono work within the Government, presumably following the initiative of the noble and learned Lord, Lord Goldsmith. I certainly pay tribute to the work that he has done for the Access to Justice Foundation. I understand that the foundation runs an awareness-raising campaign, Unlock Funds for Justice, while on the other side the MoJ is providing funds for LawWorks over the next 18 months to fund two specific projects. LawWorks is the primary referral agency for legal help provided pro bono by solicitors. Although he is not in his place at the moment, I know that my noble friend Lord Phillips of Sudbury has played a big part in promoting the agency.

Let me say first that the Government recognise the valuable contribution made by the legal profession in providing advice through pro bono work. The pro bono contribution made by the legal profession is made alongside publicly funded legal assistance. It is an adjunct to, not a substitute for, such assistance. I think that these speaking notes must have been left over from one of the briefs of the noble and learned Lord, Lord Goldsmith.

[Lord Goldsmith]

I am happy that the noble Lord read them too.

[Lord McNally]

My Lords, Section 194 of the Legal Services Act 2007 allows courts to make an order for costs against a losing party in pro bono represented cases, with the moneys recovered going to a prescribed charity, the Access to Justice Foundation. The Ministry of Justice works with the Attorney-General who, as I have said, has policy responsibility for this work. The legislation reduces the disadvantage to parties represented pro bono by levelling the financial risks of litigation for both sides. It has also provided a new source of funding for the strategic support and promotion of pro bono work.

I am extremely grateful to the noble Lord, Lord Pannick, for highlighting this issue. The amendment, though, is one that the Lord Chancellor would like to consider further. Perhaps I may say that considering it further does not mean kicking it into the long grass or even making it a no-brainer, but it is one that needs proper consideration, and he has asked that, in that respect, he be given time to give it that consideration. I hope that the indications of support given in the Chamber tonight, the general direction of travel of this reply and my desire to make this a full house in terms of saying nice things about amendments that the noble Lord, Lord Pannick, has introduced today will give him confidence that what I have said is not a way of putting this matter into the long grass but of asking, as my briefing note does, that the Lord Chancellor be given time to give full consideration to this important matter. I see both the noble and learned Lord and the noble Lord coming for me.

[Lord Goldsmith]

One issue that we have looked at is whether it would be necessary to have any orders or consequential provisions made as a result of this change. I understand that, because of the existing Supreme Court rules, which can follow the rules in the other courts, it would not be a burden on officials. That might help the consideration to which the Minister has referred.

[Lord McNally]

The wonderful thing about this House is that you get free legal advice. I will certainly take that back to the Lord Chancellor with the weight of the advice of the noble and learned Lord, Lord Goldsmith, behind it. With that further steer, I would be grateful if the noble Lord, Lord Pannick, withdrew the amendment.

--- Later in debate ---

[Lord Dholakia]

My Lords, my Amendment 172C is grouped with Amendment 172A, among others. I agree very much with almost all of what noble Lords have said on these amendments. I particularly thank the noble Lord, Lord Ponsonby of Shulbrede, for rightly seeking to put the victim very much at the centre of the process; victims must be informed about what has happened.

The purpose of my amendment is not to miss out a very important element in the sentencing process. It would retain the duty on courts passing custodial sentences to give reasons explaining why they consider it necessary to pass a sentence of imprisonment. It would not take away any powers from the courts to prescribe a custodial sentence. The intention is to provide an explanation which informs people about the purpose of passing a custodial sentence.

My amendment goes further than Amendment 176ZB, tabled by my noble friends Lady Linklater and Lord Thomas of Gresford. Their amendment, which I also support, is limited to sentences of less than six months, whereas mine would go further and apply to sentences of six months or more. Let me explain why.

In general, I welcome Clause 61. It replaces the current complicated requirements on courts to explain the implications of and reasons for their sentences with a simple requirement that they should explain the sentence in ordinary language—a point made by many noble Lords. This is a welcome simplification of the court’s duties at the sentencing stage.

However, I have one concern about this change—namely that it abolishes the requirement for courts passing prison sentences to explain why they consider that the offence requires a custodial sentence. Depriving offenders of their liberty by passing a custodial sentence is a uniquely serious decision that is in a different category from imposing even the most intensive community sentence. A prison sentence often means that an offender loses his or her accommodation. Many offenders sentenced to custody lose their jobs. Others have their education disrupted. All too often, custodial sentences contribute to the break-up of families. Community sentences, even intensive community sentences with significant restrictions on the offender's liberty, do not produce those results. I submit that a court should have to explain its reasons for concluding that, despite those negative consequences, it nevertheless believes that only a custodial sentence can be justified.

Although I support my noble friends’ Amendment 176ZB, I consider that this duty to give reasons should also apply to sentences of six months or longer. There are often occasions on which courts decide that it is more productive to impose a community sentence with, say, a drug rehabilitation requirement or a sex offender treatment programme than to pass a one-year or even a two-year custodial sentence. A one-year or two-year sentence means that the offender actually spends six months or a year in custody before release. He or she then returns to the community, usually without having been through a treatment programme that could help to reduce reoffending. In these cases, too, courts should have to exercise the discipline of giving reasons for their conclusion that only a custodial sentence can be justified. The discipline of having to give reasons for passing a custodial sentence helps to concentrate sentencers’ minds on the gravity of their decision. This is designed to help ensure that custodial sentences are imposed only when there is no reasonable alternative.

I therefore hope that the Government will think again and decide to retain this important requirement. My amendment and that of the noble Lord, Lord Ponsonby, bring transparency to the sentencing process, and I am sure that the Minister will, on reflection, consider this to be a sound case.

[Lord Goldsmith]

My Lords, this group of amendments touches on a number of important issues. I have great sympathy with what my noble friend Lady Quin and the noble Lords, Lord Ramsbotham and Lord Wigley, said on those issues. I shall not touch on those matters as the noble Lords have greater experience. I was slightly alarmed to hear what the noble Lord, Lord Ramsbotham, said about the intention to take away prosecutors from conditional cautions. We will consider that issue later in the Bill and I look forward to hearing just what the proposal is and the justification for it.

I want to spend a moment or two on the amendment moved by the noble Lord, Lord Ponsonby of Shulbrede, which does a great service to the Committee by focusing attention on the need for the victim to know in appropriate ways what the outcome of the case has been. The victim, although not like a plaintiff in a civil action, is after all still the person to whom the offence happened, and it is right that the victim should therefore be told what happened, and told appropriately. I also very much agree with the noble Lord that generally that duty should be on the prosecution.

It is important that the public and victims see that prosecutors are there to some extent as an interface between them and the court and justice system, and that prosecutors focus on the needs of victims—as well, obviously, as on the professional requirements of their job to bring and prosecute cases fairly.

My question about the amendment, while fully supporting the spirit and intent behind it, is whether it is necessary for that to be dealt with by way of imposition of a duty and a new form of order. I say that because I would have hoped that, by now, prosecutors would know that they have that responsibility. I will be interested to hear in due course from the Minister and the noble Lord, Lord Ponsonby, who has promoted the amendment, whether it is believed that prosecutors are not doing that.

There are one or two reasons why a duty may give rise to difficulties. The prosecution may not always be a professional prosecutor. Sometimes the prosecutor may be a private prosecutor. It may be inappropriate for a number of reasons to impose the same duty on a private prosecutor—a neighbour in a neighbour dispute, for example—as on a professional prosecutor. There may also be victims who need particular care in explaining to them the outcome of the case, and that may need professional skills.

I am also concerned that, by imposing a particular duty of information on prosecutors, we do not take away the need for them to provide other information. Reference has already been made in this short debate to the need for prosecutors to keep victims informed of the progress of cases. In my day, we attempted to deal with that and provide flexibility by creating a victims’ charter, which was intended for prosecutors to sign up to under the guidance—or, indeed, direction—of the Attorney-General, which would cover progress of the case and, as the noble Lord, Lord Ponsonby, said, its outcome. That may be a better system to achieve what he wants.

As I said, I look forward to hearing what the Minister has to say. I entirely agree with the fundamental point that the victim should be informed of the outcome appropriately and that the prosecution should have a duty to do so.

[Lord Bach]

My Lords, this is the first debate of many, I suspect, on Part 3. Part 3 is entitled “Sentencing and Punishment of Offenders”, and Chapter 1 is entitled “Sentencing”. Luckily, there does not seem to be a part entitled “Punishment of Offenders”, but we know that that was a late introduction to the Title of the Bill many months ago.

I shall be very brief indeed. The Committee has been lucky enough to hear speeches from many noble Lords, all of whom have great experience of the criminal justice system in the best possible way—by being either magistrates or experts for many years in the work of the system. We are very lucky in the Committee and the House to have them to give us the benefit of their wisdom on it.

Part 3 is very important. The Opposition certainly do not intend to be difficult in any way about this part. If we think the reforms are wrong, we will say so; if we think they are right, we will happily agree with the Government. We know from our experience of government that this is not an easy area to deal with. Sometimes Governments have to be tough in the face of what seem overwhelming arguments from Parliament; and sometimes Governments can be too tough and not take note of sensible recommendations made.

From listening to what has been said on the various amendments tonight, some sensible suggestions have been made—none of them revolutionary or radical—to change the system. Clause 61 is liked; the noble Lord, Lord Dholakia, said that he approved of it, and I suspect that that is true of others around the Committee.

The only point that I will make concerns victims. I think that the Statement made by the right honourable gentleman the Lord Chancellor in another place on Monday regarding the Criminal Injuries Compensation Authority, as it is now known, and the change of policy on some of the tariffs may have been quite disappointing for some victims and victim groups. I am sure that does not mean that this Government are in any way less committed to looking after victims’ interests than were the Government of whom I was a member. I know that all those who talk about fair play for offenders—making sure that the system includes rehabilitation for them and a chance to do better—have exactly the same feeling about victims as the rest of us.

I do not want to go into any of these amendments tonight, and I am quite sure that the Committee is with me on that. However, I do want to hear the Minister’s response to the points that have been made. I hope that he is sympathetic to these amendments. I am sure that none of them will be pushed tonight but some important points have been made and we look forward to his reply.