Magistrates: Sentencing Powers
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Baroness Seccombe
To ask Her Majesty’s Government, further to the answer by Lord Faulks on 7 July (HL Deb, cols 2120–2), whether consideration of increasing magistrates’ sentencing powers has concluded; and if so, what conclusions have been reached.
The Advocate-General for Scotland (Lord Keen of Elie) (Con)
My Lords, we are committed to keeping the magistracy at the centre of our justice system as we transform our courts and tribunals. We are still considering the case for increasing magistrates’ courts’ sentencing powers as one way to achieve this.
Baroness Seccombe (Con)
My Lords, it is four months since I asked my Question about the sentencing powers of magistrates. At that time, I was encouraged by the Answer from my noble friend Lord Faulks. Does my noble and learned friend feel that the time is coming when we should think more about this? I was very heartened by the Justice Select Committee’s recommendation that such an increase should occur. The Magistrates’ Association would welcome this move. It would like more cases to be resolved locally and more speedily, at the same time saving millions of pounds, which at this time would be very helpful. As a magistrate of long standing, I know that all cases are dealt with sentencing anyone to prison for a short time. Magistrates today are highly trained. Does my noble and learned friend feel that the time has come to accept the Select Committee’s recommendation?
Lord Keen of Elie
I am obliged to my noble friend. We recognise that magistrates deal with more than 90% of criminal cases in the justice system. The proposed increase in sentencing powers was introduced by the Labour Government in 2003. They contemplated it for about seven years. We have not quite caught up with them yet, but we have had the recent report from the Justice Select Committee and we will consider its recommendations carefully. One of those recommendations noted that the Sentencing Council’s new allocation guidelines, which came in in March 2016, should be given an opportunity to bed in before the matter is finally reviewed, and we will do that.
Lord Beecham (Lab)
The former Minister Shailesh Vara, before being sentenced to life on the Back Benches, told the Justice Select Committee that the Government were considering piloting increased sentencing powers in some areas. Can the Minister confirm the Government are not going to adopt this proposal, given the inevitable sense of injustice which would follow from the imposition by different courts of substantially different sentences for similar offences? Would he also comment on the wisdom of the Magistrates’ Association receiving funding from Sodexo, MTCnovo and Working Links, which are all engaged in the Prison Service or running community rehabilitation companies, to generate income for the association’s education and research network, as was revealed in Private Eye last December?
Lord Keen of Elie
I am not in a position to comment on “revelations” in Private Eye and do not intend to do so. So far as the modelling of any increase in sentencing powers is concerned, that is presently under review, and we will come to a decision on it in due course.
Lord Thomas of Gresford (LD)
The noble and learned Lord talked in his first Answer this afternoon about the importance of rehabilitation. Short sentences are, without doubt, hopeless for that purpose. Should not the emphasis be on developing better and more intensive non-custodial sentences and on training magistrates, including the Magistrates’ Association, in the value of such sentences?
Lord Keen of Elie
Clearly, magistrates have the training and skill to consider a wide variety of sentencing powers and to impose a wide variety of sentences. We have no hesitation in acknowledging that. Whether they should or should not be custodial sentences, at the end of the day, must be a matter of judgment in each individual case.
Lord Faulks (Con)
My Lords, last week saw a disgraceful attack on the judiciary.
Lord Faulks
Will my noble and learned friend take this opportunity to show the Government’s support for the entire cohort of the judiciary, whether it be the Supreme Court, the Divisional Court or the magistracy? Can he also confirm that, were magistrates to be given additional powers, it is overwhelmingly likely that those sentencing powers would be subject to a right of appeal, as of right, to the Crown Court?
Lord Keen of Elie
My Lords, we have a judiciary of the highest calibre. We have a free press, which is not always of the highest calibre. Sensationalist and ill-informed attacks can undermine public confidence in the judiciary, but our public can have every confidence in our judiciary, a confidence which I believe must be shared by the Executive.
Baroness McIntosh of Hudnall (Lab)
My Lords, would the Minister return to the second question asked by his noble friend Lord Faulks, which I believe he did not answer?
Lord Keen of Elie
I apologise for having overlooked the second part of the question, having been distracted by the first part. I acknowledge that the second part of the question is in point. The question of an automatic right of appeal if sentencing powers are increased clearly has to be an important consideration.
Baroness Farrington of Ribbleton (Lab)
My Lords, would the Minister care to agree with me that the answer to the problem of the ratio of prison staff to prisons is related not only to the number of prisons but to the number of prisoners? Therefore, there ought to be a return to at least the original number of prison staff. It is ridiculous to expect prison staff to cope with large numbers of people in a smaller number of prisons without government help.
Lord Keen of Elie
Although I would always be anxious to concur with the noble Baroness where I can, I would point out that prison numbers have been determined more recently by reference to benchmarking, which has been the subject of review to reflect the nature and condition of the prison estate.
Lord Laming (CB)
My Lords, the question of non-custodial sentences is very timely. Does the Minister agree that to achieve that objective, there would have to be considerable investment in the probation service? I hope that when these matters are being considered, the probation service will be central to the Government’s thinking.
Lord Keen of Elie
I am obliged to the noble Lord. The Government are conscious that prison alone is not the answer to anything, that rehabilitation is critical and that the probation service remains central to that progress being made.
Prisons: Self-inflicted Deaths
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The Advocate-General for Scotland (Lord Keen of Elie) (Con)
My Lords, safety in prisons is a vital part of our reform plans. The Justice Secretary will shortly provide details of the prison reform programme in the other place. This will build on her previous commitment to invest £14 million to provide more than 400 extra staff in 10 prisons and the £10 million of new funding that is giving governors the ability to improve safety in their establishments.
Lord Harris of Haringey (Lab)
My Lords, I am sure we are all delighted to hear of the extra staff who will go into prisons but does the Minister not accept that you would have to have four times the number quoted in today’s newspapers and on the radio simply to achieve the same prisoner to staff ratio that existed in 2010? No doubt he will be aware of the inquest, which concluded yesterday, into the death of Levi Cronin at Her Majesty’s Prison Highpoint. He was a 26 year-old who was sentenced for bike theft and then killed himself. The inquest jury found a,
“series of interconnected system inadequacies and failures”,
including insufficient recording of information, insufficient communication, inadequate staffing levels, and inadequate support and supervision. Exactly how does the Minister think it will be possible to deliver the sort of personalised care and support that are necessary in the absence of better staffing levels, which the announcement today does not seem likely to deliver?
Lord Keen of Elie
My Lords, it is not appropriate to draw an immediate comparison with staffing levels in 2010. Since 2010 a number of prison establishments have been closed down, leading to a reduction in the number of staff. In addition, we have introduced a benchmark standard—which the noble Lord, Lord Harris, referred to in his own report—to address the question of staff. It is a matter not just of staff numbers but of recruitment and retention. There are wider issues that have to be addressed in that context.
Of course, prisoner care is paramount in our consideration. Indeed, in 2015 the National Offender Management Service reviewed the assessment, care in custody and teamwork case management system. It made 20 recommendations, which will be fully implemented by March 2017. In addition, we intend to give every prisoner a dedicated officer who can engage with them on a one-to-one basis.
Lord Alton of Liverpool (CB)
My Lords, can the Minister tell the House how many self-inflicted deaths there have been in Her Majesty’s prisons over the past 12 months? Has he had a chance to look at the Howard League’s recent report on this and can he tell the House the estimated cost—beyond the human cost—of every self-inflicted death that occurs in prison?
Lord Keen of Elie
In the 12 months to September 2016 there were 107 self-inflicted deaths. The cost is of human life; it is not measured in pounds, shillings and pence. Every one of those deaths is the subject of investigation, not only by the ombudsman but by an inquest.
Lord Marks of Henley-on-Thames (LD)
My Lords, some 70% of prisoners who commit suicide have serious mental health conditions. Many should have been in secure hospitals. The ombudsman’s recent report on prisoner mental health highlighted the shortage of secure hospital places, lengthy waiting times and the incidence of avoidable suicides while prisoners awaited transfer. Will the Government increase the number of secure hospital places and improve the arrangements for the speedy transfer of prisoners who need them?
Lord Keen of Elie
My Lords, a key aspect of our prison reform programme will be to address offender mental health and improve outcomes for prisoners. That is why we are investing £1.3 billion to modernise the prison estate.
Lord Beecham (Lab)
My Lords, last week the Justice Secretary proudly proclaimed her intention to appoint another 400 prison officers; today, she says that an additional 2,100 will be recruited. But the service has lost 7,000 officers since 2010, which is 28% of a workforce for whom the sickness rate is 25% higher than the labour market average. When will the Government recognise that prisoner numbers—the highest in Europe except for Hungary, Slovakia and the Czech Republic—are the real problem and adopt a cross-government strategy to reduce the prison population, not least by tackling the mental health problems which afflict 70% of those given custodial sentences?
Lord Keen of Elie
The noble Lord is right to highlight the fact that mental health is a very material issue so far as prison populations are concerned. As I indicated earlier, it is one that we are addressing but it is not just increased staffing levels that will deliver improvements. How prison officers are deployed and the training and support they receive are equally important elements for any workforce strategy.
Baroness Meacher (CB)
My Lords, I welcome the Government’s decision to reduce some of the cuts that have already been made to the prison budget. The Minister will be aware, as has been alluded to, that the vast majority of very vulnerable prisoners are those with mental health problems. In fact virtually none of those people, who mainly suffer from anxiety and depression, gets effective treatment. Last month the medicines regulator, the MHRA, declared that products with CBD in them—one of the key elements of cannabis—are effective medicines. The word “medicines” is crucial. Will the Minister ask his officials to look at the evidence of the efficacy of CBD on anxiety and other mental health disorders? Will he then meet me to discuss a possible way forward?
Lord Keen of Elie
I am not in a position to comment on the efficacy of CBDs in this context but one has to address the much wider issue of mental health, and the drug abuse which is connected to it in prisons. I will ask my officials to consider the matter raised by the noble Baroness and once I have that advice, I would be happy to write to her.
Press Matters
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The Advocate-General for Scotland (Lord Keen of Elie) (Con)
My Lords, with the leave of the House I will now repeat a Statement made by my right honourable friend the Secretary of State for Culture, Media and Sport in the other place:
“Mr Speaker, with your permission, I wish to make a statement on matters relating to the Leveson inquiry.
A free press is an essential component of a fully functioning democracy, which is why it was a manifesto commitment of this Government to defend a free press. The press should tell the truth without fear or favour and hold the powerful to account. However, that freedom has in the past, we now know, been abused. We know that some parts of the press have ignored their own code of practice and the law. I have met victims of illegal and improper press intrusion, some of whom have suffered immense distress.
In July 2011, the coalition Government announced an inquiry into the role of the press and the police in phone hacking and other illegal practices in the British press. Lord Justice Leveson was appointed chair of the inquiry. Part 1 of the inquiry examined the culture, practices and ethics of the press. It considered such matters as whether the press needed a different form of regulation and how the press interacted with the public, the police and politicians. Sir Brian Leveson heard evidence from more than 300 people, including some of those who had been affected by the most egregious press behaviour.
On 29 November 2012, the Leveson inquiry published its report on part 1. It contained 92 recommendations, the majority of which have been acted upon and are being delivered. Part 2 of the inquiry, which has not yet begun, would further examine wrongdoing in the press and the police.
Following a cross-party agreement, a royal charter established the Press Recognition Panel, which began operating in November 2014. As stated on its website, the panel’s purpose is to ensure that any press self-regulator is,
“independent, properly funded and able to protect the public, while recognising the important role carried out by the press”.
Since September 2015, the panel has been taking applications from regulators which are seeking recognition.
Alongside the royal charter, Section 40 of the Crime and Courts Act 2013 was designed to incentivise newspapers to join a recognised self-regulator. Section 40 has passed into law but remains uncommenced. This is one of two incentives. The other, relating to exemplary damages, came into effect on 3 November 2015. A self-regulator applying for recognition must meet the specific criteria set out in the royal charter, including providing a system of low-cost arbitration that replaces the need for court action.
Section 40 contains two presumptions: that if a publisher which is a member of a recognised self-regulator loses a relevant media case in court, it does not have to pay the winning side’s costs; and that if a publisher which is not a member of a recognised self-regulator wins such a case in court, it would have to pay the losing side’s costs as well as its own. Each element was intended to encourage the press to join a recognised self-regulator, through a legitimate rebalancing of the normal rules on costs.
It has hitherto been the view of the Government that as we wait for a number of elements of the new self-regulatory regime to settle in—such as the exemplary damages provisions of the Crime and Courts Act, the press developing an effective form of voluntary self-regulation and self-regulators applying for recognition—the time has not yet been right to commence Section 40.
However, the panel has recently recognised its first self-regulator, the Independent Monitor for the Press, known as Impress, which currently has around 50 members. Meanwhile, the Independent Press Standards Organisation, known as IPSO, regulates more than 2,500 publications, but has been clear that it will not seek recognition from the panel.
We think the time is right to consider Section 40 further. It has also become apparent that the final criminal case relating to the Leveson inquiry is entering its final stages. We therefore think this is also an appropriate time to start to consider next steps on part 2 of the inquiry. Many of the issues that part 2 would have covered have been addressed in the last five years. Three police investigations—Operations Elveden, Tuleta, and Weeting—have investigated a wide range of offences. A clear message has been sent to all police officers and public officials that receiving payments for confidential information will not be tolerated and will be dealt with robustly. The Metropolitan Police Service has introduced new policies on whistleblowing, gifts and hospitality and media relations.
There was also a degree of subject matter overlap between parts 1 and 2 of the Leveson inquiry. For example, the inquiry reviewed the Met Police’s initial investigation into phone hacking and the role of politicians and public servants regarding any failure to investigate wrongdoing in News International. Part 1 made numerous recommendations, all of which are being addressed by the police, Her Majesty’s Inspectorate of Constabulary, the Independent Police Complaints Commission and the College of Policing, where they relate to them.
Given the extent of these criminal investigations, the implementation of the recommendations from part 1 of the Leveson inquiry and the cost to the taxpayer of the investigations and part 1—£43.7 million and £5.4 million respectively—the Government are considering whether undertaking part 2 is still in the public interest. We are keen to take stock and seek the views of the public and interested parties—not least those who have been the victims of press abuse. We will also formally consult Sir Brian Leveson on the question of part 2 at the appropriate time, in his role as inquiry chair.
I can announce that today we are launching a public consultation, inviting comments on both Section 40 and part 2 of the Leveson inquiry from organisations affected by it and from the public. It will run for 10 weeks from today, 1 November, until 10 January 2017. This is laid out in a consultation document entitled Consultation on the Leveson Inquiry and its Implementation, published on GOV.UK, which I am also depositing in the Libraries of both Houses. I have met Sir Brian Leveson and spoke to him again this morning. I will write to him formally as well. I am extremely grateful for all the work that he and his team have done to get us this far.
The Government are determined that a balance be struck between press freedom and the freedom of the individual. Those who are treated improperly must have redress. Likewise, politicians must not seek to muffle the press or prevent it doing legitimate work, such as holding us to account, and the police must take seriously their role in protecting not only their own reputation but the people they are meant to serve.
This is the balance we wish to strike, and this consultation is the most appropriate and fairest way of doing so. I commend this Statement to the House”.
Lord Paddick (LD)
My Lords, I too thank the noble and learned Lord for repeating the Statement. I must declare an interest, in addition to being a victim of phone hacking by the press. In 2002, I was the subject of a kiss-and-tell story on the front page and eight inside pages of a Sunday tabloid newspaper. Many of the allegations were untrue and the rest were a massive intrusion into my private life by a former partner whom I had lived with for four years. He was paid £100,000 for the story. In the absence of an effective and independent press complaints system, my only course of action was to sue the newspaper and although I was able to secure a conditional fee agreement, many ordinary people are not. Lawyers acting for the newspaper tried every trick in the book to get me to concede, in which case I would have been liable for both my own and the newspaper’s costs and I would have been made bankrupt. If the paper had not admitted libel and agreed a settlement a week before the case was due to go to trial, and had I lost the action, I would have lost my home.
If newspapers do not sign up to an independent, royal charter-compliant, press complaints system that the public can have real confidence in, the press must be prepared to cover the costs if their refusal to sign up results in complainants having to take action through the courts. This was a cross-party agreement, reached at considerable effort and cost, resulting in a royal charter that the Government are preparing to consign to the dustbin. Not only that, they are preparing to ditch detailed scrutiny not only of the matters detailed by the noble Lord, Lord Stevenson of Balmacara, but of the relationship between the police and the press—issues that were to be covered in Leveson 2—despite such recent cases as that involving South Yorkshire Police, the BBC and Sir Cliff Richard.
If the Statement is designed to head off amendments to the Investigatory Powers Bill currently being considered, does the Minister not agree that it adds fuel to the fire, rather than dampening things down?
Lord Keen of Elie
My Lords, I begin with the observations of the noble Lord, Lord Stevenson of Balmacara. A consultation will not obfuscate, it will bring clarity—and that is its aim. Let us remember that the events with which we are dealing have been the subject of a further five years of development in policing and the press.
The Press Recognition Panel’s report is a useful reflection of how the recognition system is operating, and the Government will, of course, be looking at its conclusions in more detail in the course of the consultation process. Let us be clear: no decision has been made on this matter, which is why it has been set out for the purposes of consultation.
With regard to the observations concerning the police, let us remember that these matters were addressed in Part 1 of the inquiry. Sir Brian Leveson thoroughly reviewed the initial investigation of the Metropolitan Police Service into phone hacking—Operation Caryatid —and the role of politicians and public servants in any failure to investigate wrongdoing at News International. He was satisfied that the officers who worked on that operation approached their task with complete integrity, and that the decision made in September 2006 not to expand the investigation was justified.
I will not comment on the individual cases cited by the noble Lord, Lord Stevenson. It would not be appropriate to do so. I understand the observations of the noble Lord, Lord Paddick, about his own experience of litigation, the uncertainties of litigation and where costs should lie. That is a vexed issue. It affects both parties to a litigation, whether they win or lose. That is why, again, it is appropriate that this should be the subject of further consultation at this stage. Nothing has been consigned to any dustbin, either the dustbin of history or the dustbin of any prior interparty agreement. Again, I stress that is why we are proceeding with this consultation process. We will report thereafter as soon as we reasonably can.
Lord Keen of Elie
With great respect, a consultation process is not a means of kicking anything into the long grass. This consultation process will proceed for a period of 12 weeks during the winter, at which time the grass does not grow.
Lord Davies of Stamford (Lab)
I put it to the noble and learned Lord that a decision not to proceed with Leveson 2 would be universally regarded as an abdication by the Government and as a surrender to the pressure of the press barons, with all the rather sinister connotations of conflict of interest which everybody will derive from that. We had all hoped that there might have been some improvement in the culture of the press since the appalling allegations that came out in Leveson 1 and in the Brooks and Coulson trials. I am not sure that there has been much improvement. For example, during the referendum campaign earlier this year, there were some egregious cases. I gather the Daily Mail has now accepted that the entirely bogus figures it produced, purporting to show that immigrants had a much higher crime rate than the rest of the population of this country—an irresponsible and nasty invention—were, indeed, exactly that: entire invention. However, to the extent that there has been any improvement in culture, will that not be very damagingly reversed if it is seen that the Government are now running away from the field?
Lord Keen of Elie
No decision has been made with respect to Leveson 2. That is the purpose of the consultation. Because of the consultation, there is no question of the Government running away from anything. With regard to an earlier observation, I referred to a consultation period of 12 weeks but, in fact, it is only 10 weeks. I correct myself to the House.
Lord Lexden (Con)
Are the Government firmly committed to taking full account of the concerns and interests of our immensely important regional and local press, which will bear the brunt of Section 40? In this connection, will it not be particularly important to listen to the views of local editors in Northern Ireland, where the royal charter does not even apply, illustrating the legal confusion which has now arisen?
Lord Keen of Elie
The Government have already heard from representatives of the local press, who have expressed their concerns with regard to the implementation of Section 40 and the adverse impact it could have on them. It is because of these considerations, among others, that the Government have thought it appropriate to have this short, but effective, consultation.
Baroness Hussein-Ece (LD)
My Lords, I know the noble and learned Lord said he did not want to go into individual cases but I would like to raise the issue of IPSO’s credibility following the case of Fatima Manji, the Channel 4 presenter and journalist, who was attacked by Kelvin MacKenzie, the former editor of the Sun, who said that she should not present the news in the wake of the terrible tragedies in Nice because she happens to cover her head with a hijab. He said it was inappropriate that she should present the news in that way. She and Channel 4 complained to IPSO and her case was not upheld. The very next day Trevor Kavanagh, a board member of IPSO—and let us remember the “I” stands for independent—used his political column to attack Fatima Manji for daring to make a complaint. I was one of the many parliamentarians who signed a letter on this case and sent it to IPSO. We have not heard back. How can we have confidence that this body bears up its name and is independent and upholds standards when we have board members of IPSO prepared to attack complainants in their columns?
Lord Keen of Elie
The noble Baroness is right to anticipate that I am not going to comment on an individual case. The conduct of IPSO may be the subject of criticism but it has not applied for, or been granted, registration under the present scheme.
Lord Faulks (Con)
My Lords, the Statement quite rightly acknowledges the balance that has to be struck between freedom of the press and the very important matters that come under the heading of “freedom of the individual”. Does the Minister agree that it is important that newspapers that are sued—whether regional or national—should be able to defend themselves with reasonable ability? If they are not only going to face the penalties in Section 40, but also exceptionally be liable to have conditional fees brought against them, this may result in an uneven playing field. Will the Minister confirm that the future of the conditional fee regime as regards libel actions will be considered when the consultation takes place?
Lord Keen of Elie
The Government have set no limits on the consultation process so far as costs are concerned. Clearly, the question of conditional fees will arise in the context of whether Section 40 should be brought into force. The noble Lord is quite right that it is important, while bearing in mind the victims of press abuse, to ensure a fair, acceptable and level playing field in issues between the press and powerful individuals. The press should not be coerced by the issue of cost into not reporting in a fair, open and effective manner.
Lord Beecham (Lab)
My Lords, while it might not be unreasonable for the noble and learned Lord not to give a view on the matter raised by the noble Baroness at this stage, will he confirm that the Government will at least take it into consideration before they reach any conclusion as a result of the consultation?
Lord Keen of Elie
I have no doubt that that will be taken into account, as will the general conduct of IPSO, when it comes to determining and reporting on the terms of the consultation itself.
Lord Wallace of Tankerness (LD)
My Lords, the noble and learned Lord acknowledged that the work that had gone into the cross-party agreement and the subsequent royal charter was intended to set up a body and a mechanism as far removed from political interference as possible to ensure press freedom. By refusing to commence Section 40 and now by having a consultation on the matter, have the Government not brought it right back into the field of political play, undoing all the work done to try to remove political interference from this very important area for those of us who want to see freedom of the press?
Lord Keen of Elie
I cannot accept the observations made by the noble and learned Lord. The Government have delivered the cross-party agreement by establishing the Press Recognition Panel by royal charter and legislating for the incentives in the Crime and Courts Act 2013. It is now right to consult further on the specific areas of Part 2 of the Leveson inquiry and Section 40 given the time that has elapsed since the Leveson inquiry was set up and the changes that have taken place. I do not believe that we are simply bringing this back into the political arena; we are addressing the reality of change that has occurred over the past five years.
Lord Cormack (Con)
I thank the Government—which I do not always do—for giving this extra time to look at the points raised, specifically by my noble friends Lord Lexden and Lord Faulks. There is not a single Member in your Lordships’ House who is not conscious of the enormous contribution of the local press and how important it is that its freedom and future should not be jeopardised further at a time when it is struggling for survival.
Lord Inglewood (Con)
My Lords, I declare an interest as an ex-chairman and a current non-executive director of a local newspaper. I recognise that there is still considerable disquiet right across the political spectrum about the matters being discussed. I therefore welcome a second look at all these matters. I also declare an interest as a farmer. My noble and learned friend said that during the period of consultation the long grass cannot grow, but the consultation period ends in the spring, when the long grass starts to grow again. I am concerned that it will be allowed to grow and grow. Can he confirm that the matter will be taken forward expeditiously thereafter?
Lord Keen of Elie
With respect to the observations of my noble friend, I point out that by the time this consultation ends it will not be spring in Scotland.
Investigatory Powers Bill
Lord Keen of Elie ExcerptsMonday 31st October 2016
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Lord Rosser (Lab)
My Lords, when the amendments moved on Report by the noble Baroness, Lady Hollins, were discussed, the Government said that they did not believe that they would achieve the outcome she was seeking since the relevant clause dealt with the interception of private telecommunications systems, such as a company’s internal email or telephone system. The fact that the noble Baroness has been permitted the amendment before us at Third Reading suggests that it is accepted that it seeks to address the point made by the Government on Report; namely, that the amendments that were carried on Report do not achieve the outcome the noble Baroness is seeking.
I understand the Government oppose this amendment. Perhaps they will argue that this amendment also does not achieve the objective the noble Baroness is seeking. As the noble Lord, Lord Low of Dalston, reminded us, on Report the Government said that they fully understand that many noble Lords, particularly those who have been victims of press abuse, are frustrated about what they see as a lack of progress towards implementing the recommendations of the Leveson inquiry report, albeit that the Government went on to say that they did not accept that that frustration was justified.
I am not able to comment personally on whether this latest amendment, which was tabled at a very late stage, achieves its purpose or not. But I do know that the Government do not seem to have been particularly helpful so far in seeking to assist with what wording would achieve the purpose sought by the noble Baroness, Lady Hollins, and the other noble Lords who are signatories to the amendment concerned, bearing in mind these were amendments which, on Report, had the support of the House.
On Report, the Government accepted the commencement provision amendments, while making it clear that that did not mean that they had accepted, or would be accepting, the earlier amendment related to Leveson which had been passed by the House. Despite that earlier stance, the Government do not appear to have been willing to adopt the same approach to getting the wording right, in their view, for the amendment carried in this House on Report.
We will support this amendment if it is put to a vote. Therefore, if it is carried, the Government will have another opportunity, albeit in the Commons, to put forward wording which achieves the objective sought by the noble Baroness, Lady Hollins, and indeed up to now by this House in relation to this amendment and amendments already carried on Leveson-related issues, before the Commons makes a decision on whether to accept or reject the amendments passed by this House or to put forward an alternative amendment of its own.
The Advocate-General for Scotland (Lord Keen of Elie) (Con)
My Lords, we discussed this issue in some detail on Report. As we previously made clear, the cause of action, or tort, provided for in Clause 8 is intended to replicate the safeguard in the Regulation of Investigatory Powers Act 2000. This focuses on circumstances where an individual’s communications are intercepted on a private telecommunications system by a person who has the right to control the operation or use of that system. This was a necessary safeguard to protect individuals, in very limited circumstances, where their employer may unfairly be intercepting communications on a company’s internal computer system, which is not within the scope of the offence of unlawful interception.
A number of noble Lords have spoken about the objective of the amendment. With great respect, the fundamental difficulty is that it really has nothing to do with the purpose or purposes of Clause 8. It is not, as the noble Lord, Lord Paddick, suggested, simply a case of deleting “private” and substituting “public” , or of seeking to amend the proposed amendment at this stage or to improve it—it simply has no place in the clause. Clause 8 was not intended to regulate the press or to deal with awarding costs in circumstances where such a case is brought against a publisher. It simply has no application in this context. I quite understand the concerns about Section 40 that have been expressed, and the question of commencements is understood and is under consideration. But to amend Clause 8 in this way is to ignore the very purpose of this part of the Bill.
The Bill already provides for a criminal offence where an individual has unlawfully intercepted communications. An individual convicted of such a crime is liable, on conviction on indictment, to imprisonment for a term of up to two years, a fine or indeed both. So anyone carrying out phone hacking would face, under this Bill, a criminal conviction. That is a significant penalty and, in our view, the appropriate penalty for such an offence.
As we made clear in the previous debate, there are already avenues for individuals to pursue civil claims against those who carry out unlawful interception such as phone hacking. For example, cases have been brought on the grounds of misuse of private information. Although I agree with the noble Baroness that the outcome of Leveson and press regulation are very important issues, I maintain that this Bill, and in particular Clause 8, is not the appropriate place to deal with them. I therefore invite the noble Baroness to withdraw her amendment.
Baroness Hollins
My Lords, thank you for contributing to our understanding of this problem a little further. At no point has the House been told that the amendments are not in scope. In fact, it was suggested to me over the weekend by members of Her Majesty’s Government that I should seek instead to place such amendments within another Bill, such as the Digital Economy Bill. I sought advice from the Public Bill Office but, after considering the matter at length, it advised me that that was not possible and they would not be within the scope of the Digital Economy Bill.
If the House supports the amendment today, as I hope it will, I will be more than happy to work with the Government to find a wording which does no more than provide for as much of the Section 40 costs incentives as could be provided in the scope of the Bill without going any further. I would not be asking the House, in ping-pong, to do anything that destabilises anything else in the Bill. The best solution, of course, would be for the Government to commence Section 40, as they promised and as they should. Then, we could drop all the amendments. It is the Government’s choice and always has been.
On previous occasions when I have had drafting difficulties—and this is a complicated Bill—Ministers have been most helpful in achieving the intentions of your Lordships’ House. I wrote to the noble Earl, Lord Howe, asking whether there were any technical difficulties with the amendment, and the answer was no.
I am not content with the answer given by the noble and learned Lord, and I wish to seek the opinion of the House.
Lord Keen of Elie
Lord Keen of Elie
My Lords, I will now address a series of government amendments which are minor and technical in nature. They aim to correct minor drafting oversights and inconsistencies within the Bill, as well as to clarify provisions and make minor consequential changes. Clause 41 contains special rules that apply for certain mutual assistance warrants, and Amendments 2, 3 and 4 correct inconsistencies in language in this clause. Amendment 5 is consequential on amendments made on Report in this House, which clarified that a communication can be between machines as well as people. Amendment 10 corrects an inconsistency in language with regard to the renewal of equipment interference warrants. Amendments 21, 22 and 23 are all minor amendments to those clauses of the Bill that relate to bulk acquisition warrants. Amendment 33 is another technical amendment, which provides that Clause 272(4) comes into force on the day on which the Bill is passed. Finally, Amendments 34, 35 and 36 are all minor and technical amendments that are designed to improve and clarify the written language of the Bill. These minor and technical amendments will help to clarify the extent of the provisions of the Bill. I beg to move.
Lord Murphy of Torfaen (Lab)
My Lords, I disagree with the noble Baroness, Lady Jones. She played an important role in the course of this Bill in reminding your Lordships of the need to deal with the liberty of the citizen. But the greatest threat to the liberty of the citizen is the threat to life. This Bill, which is now in its final stage, is extremely important in ensuring that in future our citizens are protected against terrorism and the threats that face this country and beyond.
Of course, there were and are still issues that need to be taken very seriously with regard to the liberty of the subject. But in all the years that I have been in Parliament, I have not seen as much scrutiny of a Bill as this one. Not only did the Joint Committee, which I had the honour to chair, go through all the details of the Bill over a number of months, the other committees in Parliament also dealt with it, not least the Intelligence and Security Committee.
I commend the Government—not something that I usually do, but I will on this occasion—on accepting a great number of amendments to the Bill, which have improved it in the sense of ensuring that our liberties are safeguarded but that the basic thrust of the Bill remains the same. This has been a tremendous exercise in parliamentary scrutiny. As my noble friend Lord Rooker said, it is Parliament’s Bill as much as it is the Government’s.
Lord Keen of Elie
I am obliged to the noble Lord, Lord Rooker, for making his point at this stage. This is an important Bill. It will update the framework for the use of investigatory powers to obtain communications for the foreseeable future. But it not only provides powers, it provides safeguards that are clear and understandable: the double lock for the most intrusive powers; the creation of a new Investigatory Powers Commissioner; important safeguards on oversight in respect of legal professional privilege and in respect of journalistic material; a government response to David Anderson’s review in respect of bulk materials; and extensive consultation with the bodies affected by investigatory powers.
What we have today is the product in this House of cross-party collaboration. The parties opposite have taken an incredibly constructive and reasonable approach during the Bill’s passage and we are sending a significant number of changes back to the House of Commons. But those changes are evidence of the constructive engagement from all sides in this House. I particularly note the contributions of the noble Lords, Lord Rosser, Lord Rooker and Lord West, the noble Baroness, Lady Hayter, and from the Liberal Democrat Benches the noble Lords, Lord Paddick, Lord Carlile and Lord Lester, and the noble Baroness, Lady Hamwee. Indeed, the noble Lord, Lord Strasburger, also contributed to our debates on this matter. Of course, members of the ISC and Members on the Cross Benches have taken a great interest in the passage of this Bill. I cite the noble Lords, Lord Butler and Lord Pannick, and the noble and learned Lords, Lord Judge and Lord Brown of Eaton-under-Heywood, and I am sure that I have missed many others. But this expression is intended for all Members of the House who have taken this matter forward and produced a Bill that we can send back to the other place with confidence, subject possibly to one amendment.
Lord Keen of Elie
Lord Keen of Elie
Lord Keen of Elie
My Lords, in moving this amendment I shall speak also to the other amendments in the group. This House has already discussed the important issue of legal privilege and whether the protections in the Bill for material that attracts privilege are adequate. At Report stage, the Government made a number of amendments significantly increasing the protections afforded to such material which were welcomed by this House.
In response to an amendment proposed by the noble Lords, Lord Lester and Lord Pannick, and the noble Baroness, Lady Hamwee, we also committed to consider whether there was more we could provide in the Bill to set out what the Investigatory Powers Commissioner must do when privileged material has been obtained and an agency wishes to retain it, and the considerations that he or she has to take into account when deciding whether material can be retained. The amendments tabled today speak to that issue, and in broad terms they do two things.
First, they provide that the Investigatory Powers Commissioner must order the destruction of privileged material or impose conditions on its use or retention unless the public interest in retaining the item outweighs the public interest in the confidentiality of items that are privileged, and retaining the item is necessary in the interests of national security or to prevent death or significant injury. Secondly, they provide for the commissioner to be able to impose conditions as to the “use or retention” of privileged items rather than its “disclosure”, as was previously the case. This makes it abundantly clear that decisions about what can be done with privileged material—whether it can be retained and who can be told about it—rest entirely with the commissioner, a serving or a former High Court judge who is, of course, well placed to make decisions which have at their heart public interest in the confidentiality of items subject to legal privilege.
The amendments relate to the interception provisions, both targeted and bulk, to the equipment interference provisions, both targeted and bulk, and to the provisions that relate to bulk personal datasets. The Bill therefore makes it clear that in every circumstance where legally privileged material is obtained and an agency wishes to retain it, whether the material is obtained intentionally or inadvertently, the commissioner must order its destruction or impose conditions on its use and retention unless its retention is necessary in the interests of national security or to prevent death or significant injury, and the public interest in retaining the item outweighs the public interest in the confidentiality of items subject to privilege.
Amendments 11 and 24 are more minor and technical in nature. They ensure that Clauses 132 and 195, which relate to the retention of items obtained by targeted and bulk equipment interference, are consistent with the equivalent provisions in those parts of the Bill that deal with interception. I trust that noble Lords will agree that the Government have listened at every stage to the concerns of this House about the vitally important protections that must apply to material which attracts legal privilege, and I hope that they will further agree that the revised protections in the Bill reflect the sensitivity of legally privileged material while ensuring that sensitive but potentially vital intelligence remains available to the agencies in very limited circumstances. These final additions to the Bill make it clear that the criteria which apply to a warrant that authorises access to legally privileged material similarly apply to its retention.
I am obliged not only to the noble Lords, Lord Lester and Lord Pannick, and the noble Baroness, Lady Hamwee, in respect of these amendments, but also to my noble and learned friend Lord Mackay of Clashfern, who is not in his place today but who has contributed much to the discussions regarding these provisions. I beg to move.
Lord Keen of Elie
Lord Keen of Elie
Lord Keen of Elie
Lord Keen of Elie
Lord Keen of Elie
Lord Keen of Elie
Lord Keen of Elie
Lord Keen of Elie
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Lord Keen of Elie
“( ) In sub-paragraph (3) “intercepted material” means—(a) any content of an intercepted communication (within the meaning of section 57), or(b) any secondary data obtained from a communication.”
Lord Keen of Elie
“(3) In paragraph (a) of the definition of “communication” omit “(except in the definition of “postal service” in section 2(1))”.”
Lord Rosser
Let me take this opportunity to say that, while very differing views have been expressed in this House about the Bill, I believe it is accepted that it has benefited significantly from the attention it has been given through pre-legislative scrutiny and investigation, including by a Joint Committee, and during its passage through both Houses. We have now concluded our consideration of the Bill, and I want to take this opportunity to thank Ministers and the Bill team for the thought they have given to the issues that have been raised, including those left outstanding following the Bill’s passage through the Commons. Finally, I want to thank our own team, particularly Nicola Jayawickreme, for all the help and support they have given me and my noble friend Lady Hayter of Kentish Town.
Offender Rehabilitation: Entrepreneurship Training
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The Advocate-General for Scotland (Lord Keen of Elie) (Con)
My Lords, I thank the noble Lord, Lord German, for securing this debate. The Government are committed to ensuring that prisons are places of reform and we recognise that training in entrepreneurship can help to provide offenders with the skills that they need to become productive, contributing members of society. Although entrepreneurship may help some—I will return to this point, which has already been made by the noble Lord, Lord Beecham—it is questionable whether it will assist the majority, who very often require rather more basic skills in order to achieve any form of employability.
Let me first answer the question that the noble Lord, Lord German, asked. In terms of the Prison Rules, rule 32 provides:
“Educational classes shall be arranged at every prison”.
That is our policy. It is also our policy that prison governors should be empowered to decide what that education offer should be and should then be held to account for what is achieved. We do not regard that as fragmentation but as a means of innovation.
Before discussing the question of entrepreneurship in more detail, however, I mention briefly the reforms already under way in our prison system. With respect to the opening remarks of the noble Lord, Lord German, the present Justice Secretary has made clear her plans to drive through one of the most far-reaching prison reforms in a generation. Those offenders in prison have committed a crime for which prison is the rightful punishment but, at the end of their sentence, almost all prisoners will need to reintegrate back into the community. Currently, almost half of prisoners reoffend within the first 12 months of release. In 2010, it was estimated that this cycle of reoffending was costing the economy up to £13.5 billion a year. I believe that all noble Lords and the noble Baroness acknowledged the scale of the problem that exists. The Government are committed to ending this cycle and ensuring that prisoners use their time in prison to reform.
First, we need to make prisons safe—safe for learning and safe for reform. The rising levels of violence against prisoners and indeed staff, as well as an increase in self-harm and self-inflicted deaths, are not acceptable and require immediate attention. We are investing £14 million to provide more than 400 staff in prisons to help address increasing levels of violence and provide much-needed, individual support for prisoners. The Government are also investing £1.3 billion to modernise and reform the prison estate, which will have appropriate facilities for learning, training and the reform of prisoners.
We realise that many prisoners have led challenging lives and may have missed out on the opportunity to learn. For example, nearly one-third struggle with learning difficulties or disabilities. Indeed, the noble Baroness gave a number of figures with regard to those who suffer from various disabilities or difficulties, be they mental health, learning difficulties or otherwise. The prevalence of drug problems is also well known. More than half of the prison population is unable to read or write to a basic standard. Even more have similarly poor mathematics skills. We need to utilise the time spent in prison ensuring that prisoners engage in purposeful activity, so that they can contribute to society upon their release.
While there are some excellent examples of education in prison, we would of course like to see more consistency. Dame Sally Coates’s review of education in prison, published earlier this year and mentioned already, set a clear agenda for education reform. Prisoners are often not being given the appropriate skills and knowledge needed to find jobs, while prison governors are hampered by an overly bureaucratic system. We are determined to improve prison education to help prisoners turn their lives around. The Government intend to change the way that we run prisons, so there is an unremitting emphasis on safety and reform. We want prisons to be places of hard work and high ambition, with incentives for prisoners to learn. We want prison staff to prioritise employment opportunities. To do this, we will put the tools to drive this change into the hands of those on the front line. Prison governors must be empowered to innovate and find better ways of reforming offenders in a system geared towards innovation and local partnerships.
Following the recommendations in Dame Sally Coates’s report, we have already given prison governors greater autonomy over the education curriculum. As of 1 October, governors have been able to offer courses that do not necessarily lead to an accreditation, should they deem it in their prisoners’ best interests. This will give governors greater immediate flexibility to respond to the differing, and indeed often complex, needs of prisoners. For example, a governor could choose to commission a focused preparation for a self-employment programme for those nearing release who have shown a keen interest in pursuing this option, or an enterprise-themed programme aimed at initial engagement of “hard-to-reach” offenders who are furthest from the labour market.
Sixteen million hours of work were delivered in prisons during 2015-16. There are also significant numbers of prisoners in other learning, vocational training or in-prison work opportunities that contribute to the effective running of a prison. Supporting offenders into meaningful employment is a vital aspect of this Government’s approach. I am conscious that many members of your Lordships’ House have detailed knowledge of prison education and employment opportunities—this has been exhibited this evening—but it was, I have to say, a surprise to me in taking up this portfolio to find that a significant number of our prisons have railway tracks within their grounds, albeit stopping short of the gates. These are used to train prisoners in track maintenance, delivering a trade-standard NVQ level 2 qualification and the necessary rail safety and other skills, so that they secure paid employment on key infrastructure projects, such as Crossrail, once they are released.
We want to see more work in prisons leading to jobs on the outside. For example, a scaffolding workshop has just opened at Her Majesty’s Prison Brixton in an excellent collaboration involving Land Securities and Bounce Back. The first four graduates of the programme have gone into full-time work and there is a waiting list of employers anxious to employ the next 20 prisoners. The noble Lord, Lord Marks, alluded to Clinks and the running of four fine dining restaurants. He perhaps omitted to mention that the restaurant at Her Majesty’s Prison Cardiff has been voted 10th best fine dining restaurant in the United Kingdom and a graduate of the Clink restaurant at Brixton has gone on to be a sous chef at one of London’s leading hotels.
More private sector companies are employing ex-offenders. However, we are keen to increase the number of employers who can provide valuable vocational work for offenders in prison and who are able to offer them employment on release. The noble Lord, Lord Marks, mentioned some who have done splendid work. We want more businesses to work with us to give prisoners a second chance. Those who already do tell us that offenders are often some of their most loyal and committed employees. The National Offender Management Service works closely with the Employers’ Forum for Reducing Re-offending to ensure that there is a pool of employers willing to employ offenders. A significant number of schemes are in place locally but of course we want to see more. Giving governors autonomy over decisions made in prisons will allow them to target training and work in prisons to match more closely the needs of a local labour market.
We know that the majority of prisoners want to work and that, in the context of keeping themselves occupied, pay, for example, is not an issue. We also know that getting prisoners into employment is a key factor in reducing reoffending—a point already made by noble Lords—but many face barriers when trying to enter employment as employers may be reluctant to hire. The noble Lord, Lord Marks, alluded to Ban the Box; the Government encourage all employers to look at their recruitment practices to ensure that ex-offenders are considered on their merits and not on their criminal records, through options such as banning the box. Indeed, the former Prime Minister announced government support for Business in the Community’s Ban the Box campaign. The Civil Service will be banning the box from the initial recruitment stage except for those jobs that have a specific security requirement. The Ministry of Justice, at headquarters, already bans the box. So some progress has been made in that regard
Turning to the theme of this debate, enterprise skills and entrepreneurship, I should make it clear that when I refer to the training in entrepreneurship that is currently offered in prison, I am referring to two separate things. First, there are the courses that we offer on preparing prisoners to start a business venture and to aid their understanding of business enterprise. One can be entrepreneurial without being self-employed and these courses are not necessarily delivered with the hope that the prisoner will become self-employed as a result. Rather, these courses can provide prisoners with translatable skills for any kind of employment. For example, a prisoner enrolled on such a course may learn that they need to go back and improve their maths skills before starting their own business. This might lead them to getting basic qualifications they would not otherwise have sought. Or perhaps a prisoner will realise that they must first go out and get some work experience to prepare them for having a business of their own. These aims are equally as beneficial as encouraging a prisoner to enter self-employment directly on release.
Secondly, there is the specific support we offer to help offenders into self-employment. These courses are popular with prisoners and we recognise the value for prisoners that becoming self-employed has, as it can help overcome some of the barriers that have been mentioned with regard to securing employment. On these courses you may find a prisoner who has already taken part in a business enterprise course, or a prisoner who has been studying on a vocational course, such as plumbing or barbering, which have been mentioned, who will then seek to use the skills they have learned to set up their own business.
In 2015, an enterprise pilot was run by the then Department for Business, Innovation and Skills, with the aim of helping to reduce reoffending and helping individuals progress to self-employment, or other employment if more suited, on release. While it is too early to assess the impact of this pilot on reoffending, we learned valuable lessons that will help governors in deciding what type of enterprise provision to commission for their prisons. For example, for enterprise provision to be effective, it is important that prisoner learners are engaged and keen to participate, that there is improved communication between those delivering training in custody, those providing support to prisoners on release and those supporting prisoners’ engagement in custody—as the noble Lord, Lord German, observed in his opening remarks, this does not stop at the gateway of the prison, but has to go further if it is to succeed—and that therefore further research is considered and planned.
When considering self-employment options, we must remember that start-ups have a high rate of failure and, certainly, we do not want to set prisoners up to fail. For many prisoners already in debt, accessing the necessary start-up loan is impossible. It is no use equipping prisoners to start up their own business if, on release, they find they are prohibited from accessing the resources needed to achieve their goal. Work must first be done, therefore, to address prisoners’ existing debt issues, setting up a payment plan if necessary, before any plans for self-employment can take place. This is a staged process. A one-size-fits-all approach will not work. Rather, a holistic approach is required in order to encourage self-employment, with a concerted focus on partnership working. We also need to ensure that if prisoners seek the route of self-employment, they receive the Through The Gate support to which the noble Lord, Lord German, referred.
The noble Baroness, Lady Bakewell, raised a number of questions. She too mentioned the barrier of the requirement to disclose convictions. I hope I have explained that the Government wish to encourage schemes such as Ban the Box that might reduce, or displace, any such barrier. She also mentioned the low levels of literacy skills encountered among those in our prisons. That is where some of the fundamental problems lie. We need to increase that level of educational attainment, which is fundamental to making progress in this area.
The noble Lord, Lord Marks, suggested that conditions in prisons frustrate the provision of education and training. They do not frustrate it, because education and training are going on, but of course they make it more difficult. That is one reason why we are committed to spending £1.3 billion on a new prison estate that will be far better equipped to provide the sort of education and training that can reduce recidivism among the prison population.
The noble Lord, Lord Beecham, alluded to the need also to look at this across government. We accept that this is not just a case of prison reform in isolation. We have to look at the health issues, particularly the mental health issues, which afflict such a large proportion of the prison population, and the drug issues that also afflict such a large proportion of the prison population. We also have to look at prison overcrowding. However, I say again that that is now being addressed by the determination to produce a new and effective prison estate for the future.
In conclusion, we intend to modernise and reform the way that we run our prisons. We intend to help deliver a safer and more secure environment, because only with a safer and more secure environment will there be the opportunity for education and training to take root. We understand the ambition of some prisoners to become self-employed but recognise the point made by the noble Lord, Lord Beecham, that that may be an effective route for some but not for all. We have to have regard to the totality of the prison population. But rather than imposing a top-down, centralised policy, the Government are giving governors the autonomy they need to best meet the needs of their prisoners to ensure that they obtain fulfilling, purposeful employment, or even the opportunity of self-employment, on release. I am grateful to noble Lords who have spoken in this debate. I hope that I have been able to address their questions and concerns to some extent.
Legal Aid, Sentencing and Punishment of Offenders Act 2012
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Lord Beecham
To ask Her Majesty’s Government whether they have commenced a review of the Legal Aid, Sentencing and Punishment of Offenders Act 2012; and, if so, when they anticipate that the review will be published.
The Advocate-General for Scotland (Lord Keen of Elie) (Con)
My Lords, the coalition Government promised to review Parts 1 and 2 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 within three to five years of its implementation. We remain committed to undertaking that review. The precise timing is under consideration and we will announce our intentions in due course.
Lord Beecham (Lab)
My Lords, it is four and a half years since Royal Assent, so it is a little disappointing that the Government have not yet decided when to carry out their promise. I had prepared a response, rather anticipating the Answer that the noble and learned Lord gave. However, today I was telephoned by a young woman in great distress because she is in the middle of a custody case involving her child by someone who is legally represented. There is no case here for legal aid to be granted under the present regime because there is no violence or any suggestion of child abuse. I tried to put her in touch with people who might help. This exemplifies some of the real problems that have arisen as a result of the narrowing of the field in which legal aid applies. Will the noble and learned Lord confirm that the Government will be open to reviewing such areas where legal aid has been withdrawn and will not be adamant about refusing to extend it to cases such as this?
Lord Keen of Elie
I remind the noble Lord of a Written Answer by my noble friend Lord Faulks some time ago in which he pointed out that the review of LASPO would take place between April 2016 and April 2018, and towards the end of that period. With regard to the case which the noble Lord highlighted, of course I cannot comment on an individual case. However, I would observe that, prior to LASPO coming into force, almost two-thirds of family cases already had at least one unrepresented litigant. Therefore, there has not been a sudden introduction of unrepresented litigants in the context of family courts and family cases since LASPO came into force. However, clearly, when it comes to a review of LASPO, particularly Part 1, we will take into consideration the sort of case that the noble Lord raised.
Baroness Lister of Burtersett (Lab)
My Lords, the UN Committee on the Rights of the Child and the Equality and Human Rights Commission recommended that the review of the impact of LASPO on children should be expedited. Can the noble and learned Lord say what the Government’s response is to these important recommendations?
Lord Keen of Elie
A number of parties have raised the question of review of the impact of LASPO. The government position remains, as I outlined earlier, that we will carry out the appropriate review by April 2018.
Lord Marks of Henley-on-Thames (LD)
My Lords, the provisions for legal aid for domestic violence victims and exceptional case funding were intended to ensure protection for such victims and a safety net for deserving cases outside the scope of legal aid. Does the noble and learned Lord share my regret that difficulties in access to legal aid in these areas have led to disappointingly low take-up, and does he agree that this highlights the urgency of the need for the promised review?
Lord Keen of Elie
The Government acted quickly to change the evidence arrangements in respect of domestic violence cases following a decision in February of this year, and the take-up on these cases has increased by about 30% since that time. With regard to exceptional case funding, again the number of applications and grants has increased markedly in the past year and indeed, according to the data available for the last quarter of 2015-16, the number of grants in respect of exceptional case funding has increased by 32%.
Baroness Butler-Sloss (CB)
My Lords, is the Minister aware that, whereas in the past most of the litigants in person in the cases I tried over many years were men, who chose not to have legal aid, now they are both parties? Therefore, neither party has legal aid and the judge has no knowledge of what is the issue between them that can be properly litigated for the best interests of the child. This is a serious matter, which also leads to enormous delays and overuse of Cafcass.
Lord Keen of Elie
With particular reference to proceedings concerning children, I point out that legal aid remains available where most needed. Indeed, legal aid was provided for in over 54,000 proceedings last year under the special Children Act.
Lord Woolf (CB)
Does the Minister accept that what is happening in regard to legal aid is damaging the reputation of our justice system and that judges up and down the country are finding it difficult to administer justice? One interpretation of the way the vote on Brexit took place is that it indicated that the public are very concerned about British justice; will that factor be taken into account in determining when the review that has been promised takes place?
Lord Keen of Elie
We retain full confidence in the British judicial system, which is a world leader without any question of doubt. As regards the provision of legal aid, of course it is important, but it remains available where it is most needed, having regard to the financial demands that fall upon the country in more areas than just legal aid.
Civil Legal Aid (Merits Criteria) (Amendment) Regulations 2016
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The Advocate-General for Scotland (Lord Keen of Elie) (Con)
My Lords, the statutory instrument before the House today amends the Civil Legal Aid (Merits Criteria) Regulations 2013, to which I will refer hereafter as the merits criteria regulations, and broadens the availability of legal aid. The changes to this instrument enable the provision of legal aid funding in some cases where the prospects of success are marginal or borderline —that is to say, where prospects of success are less than 50% but at least 45% or where they cannot, by reason of disputed law, be quantified. These cases must generally also be of significant wider public interest or of overwhelming importance to the individual.
As noble Lords may be aware, the merits criteria regulations specify the criteria that are utilised to identify if an applicant for civil legal aid qualifies for funding under the Legal Aid, Sentencing and Punishment of Offenders Act 2012, or LASPO. The criteria are applied by the director of legal aid casework at the Legal Aid Agency when determining applications for legal aid. More generally, the merits criteria aim to determine if it is justified to provide public funding in an individual case. One measure that applies for applications for full representation is an assessment of a case’s prospects of success, known as the prospects of success test. It is this particular measure which the SI before us amends.
I shall briefly explain how we arrived at the amendments presented before noble Lords today. In 2015 a judicial review was brought against the merits criteria regulations and, specifically, the prospects of success test. The High Court ruled that certain aspects were unlawful, in particular the requirement for a case to have a 50% or higher prospect of success to receive legal aid for full representation. Noble Lords may recall that the Ministry of Justice introduced interim regulations to comply with this judgment while the case was appealed. These temporary regulations enabled funding for cases which had below 50% prospects of success when a refusal would breach, or risk breaching, the applicant’s rights under EU law or under the convention. I stress that this was a temporary measure in light of the judgment. Legal aid is a fundamental part of our justice system; while resources are not limitless, at all times we must strive to ensure that public confidence and value for money are maintained in the system.
The Court of Appeal overturned the High Court’s decision in May, and determined that the merits criteria regulations, as they were prior to amendment, were lawful. As a result of this judgment, the interim regulations introduced in light of the High Court judgment were no longer of effect and the Legal Aid Agency announced that it would no longer fund cases with less than 50% prospects of success.
There is no legal obligation to broaden the availability of legal aid, as the Court of Appeal ruled that the general requirement for 50% prospects of success is a proportionate approach to the allocation of legal aid, which cannot be condemned as arbitrary. The Ministry of Justice agrees with this judgment; as the aim of the merits criteria is to ensure that public funding is targeted at those cases which most justify it, it is reasonable to expect that publicly funded cases should, in general have at least 50% prospects of success. However, it should be noted that, when an assessment of the prospects of success test is applied, there have always been certain exceptions to the 50% threshold. These are cases which are of overwhelming importance to the individual or in the wider public interest, but would otherwise fail to qualify for legal aid because their prospects of success are slightly below 50% or not possible to quantify. The Government have decided, for these reasons, to make legal aid funding available for cases where prospects of success are marginal, meaning less than 50% but at least 45%, or borderline. This instrument removes the interim provisions introduced following the High Court judgment. Yet rather than simply reverting to the previous arrangements, it introduces these additional exceptions to the general 50% requirement.
To qualify for legal aid under these exceptions for cases with borderline or marginal prospects of success, the case must also be of overwhelming importance to the individual, or of significant wider public interest. In other cases when a non-standard prospects of success test is applied, such as domestic violence cases, the amendments made in this instrument mean that legal aid is available in borderline and marginal cases without meeting the additional criteria, or that funding would also be available for marginal or borderline cases when the substance of the case relates to a breach of convention rights. While the public purse is not limitless, the Government consider this funding to be justified for cases with borderline and marginal prospects of success.
However, the merits criteria applied are not uniform and depend on a number of factors. The type of legal service as well as the category of case for which funding is sought can determine which merits criteria must be applied. To give examples, prospects of success do not have to be shown for applications for funding for legal advice and assistance, Court of Protection cases and public law children cases. These changes were introduced through the urgency procedure provided for under LASPO. This was done to remove otiose provisions in the interim regulations, introducing the new exceptions for borderline and marginal cases and to provide clarity to the Legal Aid Agency and legal aid providers. Should these changes have been deferred until after the parliamentary Summer Recess, their introduction would have been significantly delayed.
In summary, this instrument introduces small but important changes to the merits criteria regulations, enabling the provision of legal aid for borderline and marginal cases. I am pleased that this instrument has been examined, without comment, by the Joint Committee on Statutory Instruments and Secondary Legislation Scrutiny Committee. Legal aid is a fundamental part of our justice system; while resources are not limitless, at all times we must strive to ensure that public confidence and value for money are maintained in the system. We judge these changes to be sensible and proportionate, and I therefore commend this statutory instrument to the House. I beg to move.
Lord Beith (LD)
My Lords, I hesitated to rise before the noble Lord, Lord Beecham, because I was sure he would have found there was something wrong with this instrument that I had not managed to discover. I am quite touched to find that he agrees with it as much as I do. It is a small but welcome improvement in the legal aid situation which has caused many people a great deal of anxiety. Although I fully recognise that legal aid resources are not—and cannot be— unlimited, their application was not always to the public good. There were many situations in which one party had the benefit of legal aid and the other party could not really afford the costs of privately financing the case. So the position is more complex than it sometimes appears.
The effect of this instrument, as I understand it from the Government’s memorandum, is that about 70 cases a year will attract legal aid which would not otherwise have done so, and about £250,000 has been found from somewhere to ensure that this can be financed. That is welcome news, and it opens up the possibility that there will occasionally be a case which is of real public value—because ultimately it will affect cases brought by other people—or is of fundamental importance to an individual, which would not have got legal aid and would not have been proceeded with, but which will now be satisfactorily dealt with by the courts system. That has to be an improvement, so I welcome the instrument. I also, of course, welcome the review—to which the noble Lord, Lord Beecham, referred, and which the House of Commons Justice Committee, which I then chaired, was particularly keen to see—of a piece of legislation that had such far-reaching effects on access to justice.
Lord Keen of Elie
I am obliged to noble Lords, particularly the noble Lord, Lord Beecham, for their observations. I shall respond to those. Of course a review of LASPO will have to take place before April 2018, and we will endeavour to keep the House informed as to when that review will take place. There is certainly no present intention to limit the scope of the review, but that will be addressed at the time when the review is determined. Again, we will keep the House advised on that point.
With regard to the point made by the noble Lord, Lord Beith, it is correct that additional funding has been found, for what is, I accept, a small, but nevertheless an important, change to the merits criteria regulations, which will at least embrace some further parties who would otherwise fall outwith the ambit of the legal aid regulations. I commend these regulations to the House.
Prisons
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Lord Ramsbotham
To ask Her Majesty’s Government what is their response to the call by the Prison Governors Association for an independent public inquiry into the state of prisons in England and Wales.
The Advocate-General for Scotland (Lord Keen of Elie) (Con)
My Lords, safe and secure prisons are a fundamental part of our reform ambitions. The scale of the challenge we face is clear from the recent incident at Pentonville. However, we are determined to modernise the prison estate and empower governors so that we can tackle issues such as drugs and violence. That is key to making prisons safe. We will set out plans for prison safety and reform in a White Paper in the coming weeks.
Lord Ramsbotham (CB)
My Lords, I thank the Minister for that reply. Tuesday’s horrendous murder in Pentonville drew yet more attention to the fact that our prisons are in crisis. I regard the call for a public inquiry into their state by the very reputable Prison Governors Association as a vote of no confidence in the years of purely in-house tinkering with the system by successive Ministers and officials. The then Home Secretary, Kenneth Baker—now the noble Lord, Lord Baker of Dorking—called in my now noble and learned friend Lord Woolf and the then managing director of British Aerospace to conduct inquiries after the prison riots in 1990. I ask the Minister to advise the Secretary of State for Justice to listen carefully to those most affected by the current crisis and to acknowledge that an inquiry may well find that the in-house approach has been a prime contributor to, if not a main cause of, the current crisis.
Lord Keen of Elie
It is not thought that a public inquiry is the way forward when we are about to publish a White Paper on prison safety and reform, in which we will address these issues. Of course, the Prison Governors Association has expressed concerns. Like the Secretary of State, it wants safe prisons as the foundation for prison reform. It has welcomed the fact that initial funding has recently been made available, with the announcement of a £14 million pilot scheme for new public sector prisons operating in 10 selected sites.
Lord Beecham (Lab)
My Lords, since 2010, the number of assaults on prison officers has risen from 3,000 a year to 5,500, with serious assaults doubling. Assaults with weapons on officers and fellow prisoners increased by 30% to 22,195 in six years. The level of self-harming has increased in the last two years by 50% to 34,586. Suicides last year totalled 105. Meanwhile, the number of prison officers has fallen from 18,500 to just over 15,000 in the last four years. When will the Government recognise that we have a crisis in our prisons and that it is necessary to reduce the overall prison population—including those on remand, many of whom do not end up with custodial sentences—substantially increase the number of trained staff, provide appropriate medical and other support, and move from housing people in large institutions, which are difficult to manage, to smaller custodial facilities?
Lord Keen of Elie
It is recognised that there has been an increase in violence in prisons in the past 10 years or more. It should also be noted that in the period from 2005 to 2015, the number of offenders in prison for violent conduct increased by 29%. So far as resources are concerned, we have already announced, as of 30 June this year, the allocation of an additional £10 million of new funding for prison safety. That funding is to include Pentonville prison. In addition, by March 2017 we expect to find 400 extra staff deployed in consequence of the funds being made available, as I mentioned before.
Lord Marks of Henley-on-Thames (LD)
My Lords, Pentonville prison, where Jamal Mahmoud was stabbed to death, was designed to hold 900 prisoners but is now packed with 1,200. A public inquiry would bring long-term benefit, but will the new Justice Secretary now address the present crisis of too many people being sent to prison, overcrowding, understaffing, inadequate activity and squalid conditions, all of which are leading to endemic violence and any number of other disasters that are waiting to happen? Will she please act now?
Lord Keen of Elie
The Secretary of State has already announced a £1.3 billion programme for improving and increasing the prison estate.
Lord Elton (Con)
As a former Minister for Prisons, I recognise the difficulty that the Government are in when something like this is proposed just as a new and expensive programme is launched. However, will my noble and learned friend bear in mind that an inquiry would offer two specific advantages? One would be that he and the Secretary of State might learn a good deal that they did not know, which would be valuable to them in managing their jobs. The second is that the result is likely to give them extra ammunition for dealing with the difficulty of getting money out of the Treasury.
Lord Keen of Elie
As I indicated earlier, there are imminent proposals for a prison safety and reform White Paper in which these matters will be addressed. In addition, it will be recalled that we had the recommendations of the Harris review; 62 have been accepted and a further 12 are under consideration.
Lord Patel of Bradford (Lab)
My Lords, the Government have, I believe, acknowledged that one of the major contributing factors to the increase of violence in prisons is the use of psychoactive substances, especially Spice, and have taken steps to ensure that possession and supply is restricted in prisons. Does the Minister agree that it is important to have a co-ordinated response to tackling demand and all drug misuse—not only psychoactive substances but heroin, crack and cannabis, and the increasing misuse of prescribed drugs? If not, we will have a scattergun, reactive approach to tackling this issue. It is important to include drug misuse in the White Paper.
Lord Keen of Elie
It is acknowledged that drugs, in particular psychoactive substances, are a major problem and a source of violence in the prison community. Indeed, a report by the Ministry of Justice in 2013 noted that more than 80% of the prison population admitted using illegal drugs prior to their incarceration. The availability of drugs in prison remains a major problem and one that we are addressing. For example, new penalties in respect of the use of drones are being introduced and further reforms have been taken to try to reduce the ability of people to bring drugs into prison. However, we have to remember that individual prisons are communities with a massive movement of people in and out, whether they be new prisoners or visitors, and control of illegal substances is a major problem.
Imprisonment for Public Protection Sentences
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Lord Brown of Eaton-under-Heywood
To ask Her Majesty’s Government how many people still serving sentences of imprisonment for public protection have been detained for longer than the maximum term of imprisonment otherwise statutorily prescribed for their offence, and what plans they have for the release of those people.
The Advocate-General for Scotland (Lord Keen of Elie) (Con)
The required detailed data are not routinely collected. However, an exercise to estimate the number of current prisoners sentenced to an IPP who have served beyond the maximum term available for their offence indicates that there are around 200 such prisoners. The independent Parole Board directs the release of a prisoner serving an IPP sentence who has completed his tariff only when it is no longer necessary on the grounds of public protection for the prisoner to be detained.
Lord Brown of Eaton-under-Heywood (CB)
I am grateful to the Minister for that somewhat sobering Answer. Given that statistic, given that the whole IPP scheme was abolished four years ago in 2012 as being inherently unjust, given that there are 600 to 700 prisoners serving years beyond their tariff terms—sometimes eight to 10 times as long—given that more than half of IPP prisoners self-harm, and given the recent excoriation of the system by an ex-Lord Chancellor, Kenneth Clarke, in a radio programme as being a “stain” on the system and its condemnation by the three last Lord Chief Justices, does the Minister agree that it is high time that steps were taken to bring this continuing scandal to an end?
Lord Keen of Elie
Steps are being taken to reduce the population of IPP prisoners. Indeed, in the last year the largest number did in fact qualify for release. The parole service carries out independent examinations for this purpose, and where IPP prisoners fail to respond at these parole hearings the National Offender Management Service has now brought in psychologists and policy experts to undertake a central case review of those IPP prisoners, in the hope that they can complete their tariffs and then progress to open conditions.
Lord Trefgarne (Con)
My Lords, is my noble and learned friend aware that concern about this matter is not confined to noble and learned Lords? A number of us feel as strongly as the retired judges and others do on this matter. I hope he can do better next time.
Lord Keen of Elie
I am obliged to my noble friend. The significant majority of IPP prisoners will actually never reach the point of serving more than the statutory maximum penalty because the very large majority have already been sentenced to life imprisonment.
Baroness Corston (Lab)
The Minister referred to a number of prisoners who qualified for release. How many of them have been released?
Lord McNally (LD)
My Lords, as the Minister who saw the abolition of IPPs through this House, can I assure the Minister that it was the wish of Parliament at that time to see an end to IPPs? His replies today show the same immobility which so frustrated me as a Minister. There will be IPP prisoners well into the next decade unless Ministers and the Parole Board take advice from those informed with a welter of information. With his reputation, I ask the Minister to take a close look at some of the facts he has given to the House today, because he will find that they mask the fact that many thousands of prisoners will remain under these schemes long after Parliament intended them to end. The reason why so many distinguished lawyers now call for this to end is that it is not only an injustice to the individual but is now doing real, serious damage to our criminal justice system.
Lord Keen of Elie
The facts are the facts. There is mobility and we are moving in the right direction. There is an increasing reduction in the number of IPP prisoners who are held. Let us remember that the test is whether these prisoners will represent a high or very high risk of serious harm to others when they leave prison. There is a necessary balancing act between the interests of society as a whole and the very great problem which these dangerous prisoners present. We are conscious of that and have provided further resources to the Parole Board. In light of the Osborn decision in the Supreme Court, we have taken forward the requirement for oral hearings, and we are doing everything in our power to ensure that this prison population is reduced. Let me add one further point. In 2012, when the IPP sentence was abolished, there were put in its place some seriously increased sentences for dangerous offenders, including the extended determinate sentence. If those sentences had been applied to this present cohort, it is not easy to say that they would be released in the foreseeable future.
The Lord Bishop of Rochester
My Lords, I am grateful to the noble and learned Lord for the Question and to the Minister for his responses so far. May I ground it in the particular case of a prisoner I met in HMP Onley a few months ago? A young man who had engaged fully with prison training programmes preparing him for release was on the way to a qualification through a well-known cycle and auto repair business, which runs a workshop in that prison, yet there was no assurance as to when or indeed whether he would be released. It is important that such prisoners have the incentive to engage with programmes like that young man had—I commended him for that. Is the Minister able to offer hope to such a prisoner?
Lord Keen of Elie
I am obliged to the right reverend Prelate. There is hope for such prisoners. Indeed, the very prisoners who engage in that sort of programme and work their way towards a successful hearing before the Parole Board often have only one such hearing before they are able to move to open conditions.
Lord Blunkett (Lab)
My Lords, as the Home Secretary who introduced the Criminal Justice Act 2003, I am painfully aware of the flaws in the original implementation of IPP, although it has to be said that judges provided the sentences, not Ministers. This issue needs dealing with, but it is not confined to IPP prisoners. David McCauliffe, who has been in prison for 26 years, was sentenced to an eight-year term. He remains in jail because the Parole Board feels that releasing him is inappropriate and would be dangerous. However, the emotional and therapeutic requirements and the necessary courses to put things right are crucial here, not just whether we got it wrong 13 years ago.
Lord Keen of Elie (Con)
We entirely endorse the idea that now we have this cohort of prisoners within the prison population, it is necessary to develop programmes that take them closer to the opportunity of open conditions and ultimate release. But we have to bear in mind that these sentences were imposed on those who have been convicted of serious violent or sexual offences, and the safety of society has to be paramount in our minds.
County Court Judgments
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Baroness Altmann
To ask Her Majesty’s Government how many county court judgments were issued against people who did not put in a defence, and what plans they have to take steps to reduce that number.
The Advocate-General for Scotland (Lord Keen of Elie) (Con)
In the financial years 2014-15 and 2015-16, just over 1.48 million county court judgments were issued as default judgments because the defendant had failed to file a defence or to acknowledge the claim. The Ministry of Justice is investigating the number of default judgments made because the defendant did not receive the claim and whether any steps should be taken to reduce that number.
Baroness Altmann (Con)
My Lords, I thank my noble and learned friend for his Answer and certainly hope for urgent action. Thousands of people every day have their credit records damaged by county court judgments without a chance to defend themselves and without even knowing anything about it, often by firms operating in NHS hospital car parks or utility companies. Will the Government consider asking courts to require proof that all reasonable efforts have been made to use correct addresses and ensure that any legal action is against the right person before issuing a judgment? Will the Minister also consider imposing penalties on those businesses which repeatedly fail to do so?
Lord Keen of Elie
The rules regarding money claims in the county courts seeks to strike a balance between the rights of creditors quickly to claim and receive money that is owed to them and the right of defendants to be informed of a claim against them. Since the last Labour Government amended the rules in respect of these matters in 2008, the rules have required claimants to take reasonable steps to ascertain the defendant’s current address. Claimants must sign a statement of truth confirming that the details in their claim are true, and this includes the address of the defendant. Anyone deliberately providing false information to the court faces prosecution.
Lord Marks of Henley-on-Thames (LD)
My Lords, the noble Baroness’s Question raises an issue about so-called enhanced court fees. Claim fees are 5% of the sum claimed up to a fee of £10,000, even on uncontested debts, whatever the prospects of recovery, so it is the creditor who takes the risk of insolvency. Does the Minister accept that these very high claim fees deter creditors from claiming genuine debts and encourage debtors to avoid payment?
Lord Keen of Elie
In light of the fact that there have been 1.48 million county court default judgments in the past two years, it does not appear that claimants are being deterred by court fees, which have to be managed in order that the court estate can somehow remain solvent. At the end of the day, court fees are a recoverable element.
Lord Elystan-Morgan (CB)
My Lords, I invite the Minister to consider another, equally important aspect of this matter: where no defence has been filed in a situation where a judge would otherwise have had ample scope either to dismiss the claim altogether or to rewrite the matter in a more equitable way, many people who are under severe financial strain are unable to have their side of things put in court. How can that circle be squared, if at all?
Lord Keen of Elie
It can be squared by defendants entering an appearance into the court process and putting forward, in any appropriate manner, the defence that they have to the claim. In these circumstances, it would appear that the system works equitably. I point out again the need to balance the interests of claimants, many of which are small and medium-sized enterprises that suffer serious problems of cash flow due to debtors, and the interests of defendants.
Lord Beecham (Lab)
My Lords, is the alarming picture reflected in the noble Baroness’s Question not another symptom of what is increasingly a failing civil justice system? Will the Government look at their support for Citizens Advice and other advice agencies as well as—building on the Minister’s last remarks—perhaps publicising the need for people to respond to any such claims and to seek advice where it is available?
Lord Keen of Elie
It has to be made clear that resort to the court is the last step in the process of debt recovery, and that those responsible for debts are given notice of their indebtedness and are required to pay. It is only when they fail or refuse to respond to these entreaties that any application is made to the court. In these circumstances, defendants are given ample opportunity and notice to defend their interests.