Human Rights: Vinter and Others v United Kingdom

Lord Lloyd of Berwick Excerpts

Tuesday 29th October 2013 Lords Chamber

Asked by

[Lord Lloyd of Berwick]

To ask Her Majesty’s Government what steps they will take to implement the decision of the European Court of Human Rights in Vinter and Others v United Kingdom.

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

My Lords, the Government are considering the implications of the judgment and will set out their conclusions as soon as possible.

[Lord Lloyd of Berwick (CB)]

My Lords, the noble Lord will know that there are now 51 prisoners serving whole-life sentences. He will also know that on 9 July the Grand Chamber decided by 16 votes to one that whole-life prisoners are entitled to have their sentences reviewed after 25 years, a right which they always had under English law and practice until they lost it, by an oversight it seems, as recently as 2003. It is now 16 weeks since the decision of the Grand Chamber. Why has it taken so long for the Government to reach their own decision in this matter? How can that delay be regarded as fair on the prisoners themselves, who are waiting to know the answer?

[Lord McNally]

Let us be clear: the judgment gave an opinion about our law as it stands; there was no case that the outcome of such a decision should make the three prisoners concerned, or indeed any other prisoners, automatically allowable for parole or release. It was a judgment on our law and I think that we have every right to give due consideration to what we should do when we receive such a judgment. I do not think that there has been a delay. As I said in my reply, we will come forward with our response in due course.

Inheritance and Trustees’ Powers Bill [HL]

Lord Lloyd of Berwick Excerpts

Tuesday 22nd October 2013 Grand Committee

[Lord Lloyd of Berwick (CB)]

My Lords, I am glad to have the opportunity to speak during the gap. I do not intend to deal with any of the provisions of the Bill, which have already been very well covered in the debate but want to say something about the procedure that we are following.

I remember the time not so very long ago when the Law Commission would study an area of the law that was badly in need of reform. Very often it would be doing so at the request of the Government. It would then take all the trouble and all the care to produce a report such as the one we have here—I refer not just to the cover but to the contents, some of which I have read—but nothing would happen. The Government may have accepted all the recommendations of a report and thanked the commission warmly for all its hard work, but still nothing would happen. The reason always given was that there simply was not time for a Second Reading in the Chamber.

Therefore, the matters covered by these reports, urgent though they might be, would accumulate from year to year. It became almost a scandal and must have been extremely frustrating for the Law Commission. Then came the noble Baroness, Lady Ashton, like a sort of deus ex machina. As Leader of the House, she was determined to do something to speed up the process, which is exactly what she did. I remember well the discussions that we had at that time, and I can say that without her we would not be here today in the middle of this Second Reading debate. I hope that the noble Lord, Lord Wills, who spoke on this, can confirm that view.

[Lord Wills]

I am sure that this is not courteous but I should like not only to place on record the work done by my noble friend Lady Ashton but to put the history straight. When I came into position in 2007, this was not a work in progress. The person who deserves most credit is no Minister but the then chair of the Law Commission, Sir Terence Etherton—now, I think, at the Court of Appeal. He was indefatigable in badgering me as the responsible Minister and all the officials to make sure that something happened. I am sure that the Ministry of Justice will remember this. As we are paying tribute, I say with all respect to my noble friend Lady Ashton that if there is one person who really deserves the credit it is Sir Terence Etherton. I hope that the noble and learned Lord will agree with me on his central role in this important reform.

[Lord Lloyd of Berwick]

I entirely agree with the noble Lord—I can remember Lord Etherton badgering me in exactly the same way—but it was the noble Baroness, Lady Ashton, who in the end got it through. It seems to me that we owe a huge debt of gratitude. By “we”, I mean the law and not just us around this Committee.

Perhaps I may couple just one other name: that of the noble Lord, Lord McNally, the Minister in charge of this Bill. I hope that he will not be too surprised by my saying that. As I think I have been involved in all the Law Commission Bills—I was surprised to hear that there were six; can it be as many as that?—I know from my experience that having a Minister who is himself keen on law reform makes all the difference.

Finally, I want to mention Professor Elizabeth Cooke, who has been in charge of work on this Bill from its very inception. In the old days, Acts of Parliament were sometimes named after the person who had drafted them; Lord Tenterden’s Act comes to mind. I would like to think that at some time in the future this Act might become known as Baroness Cooke’s—I say Baroness; she is not a Baroness yet—or Professor Cooke’s Act. This is an admirable report; it is very well set out, very clear and ideally suited for this procedure. I hope that it will find favour with the Committee.

Children and Families Bill

Lord Lloyd of Berwick Excerpts

Monday 21st October 2013 Grand Committee

Moved by

[Lord Lloyd of Berwick]

64: After Clause 14, insert the following new Clause—
“Care proceedings: standard of proof
(1) The Children Act 1989 is amended as follows.
(2) In section 31 (care and supervision), after subsection (2) insert—
“(2A) Subsection (2) above shall be interpreted so as to permit a court to infer that a child is likely to suffer significant harm from the sole fact that the child is, or will be, living with a person who is a possible perpetrator of significant harm to another child.
(2B) For the purposes of subsection (2A), a person (the person concerned) is to be treated as a “possible perpetrator” if—
(a) a child has suffered significant harm;(b) the court is unable to identify the actual perpetrator of the said harm but identifies a list of possible perpetrators by finding (in relation to each such person) that there is a real possibility that he caused significant harm to the child; and(c) the person concerned is one of the persons on the said list.””

[Lord Lloyd of Berwick]

My Lords, this amendment is concerned with the standard of proof in care proceedings. I am conscious that the purpose of the amendment may not be crystal clear, so I have prepared a note setting out the background to the amendment, and it contains the wording of the section that we will be discussing. Many Members may already have a copy of that note but, if not, it is on the table.

The relevant section is Section 31 of the Children Act 1989, which provides the threshold that must be crossed before a child can be taken into care. However, it is only a threshold. If the threshold is crossed, it does not mean that the child is necessarily taken into care. That is decided at the later, welfare stage when all the matters set out in Section 1 of the 1989 Act must be taken into account. This is all well known to the Committee. Conversely, if the threshold is not crossed, the court has no power to intervene.

Section 31 provides that a child may be taken into care only if,

“the child concerned is suffering, or is likely to suffer, significant harm; and … the harm, or likelihood of harm, is attributable to … the care given to the child”,

falling short of what it would be reasonable to expect. Those words are simple enough and they pose two questions which, I suggest, should be capable of being answered without too much help from us lawyers. Sadly, that has not proved to be the case.

--- Later in debate ---

[Lord Lloyd of Berwick]

My Lords, I said that the two questions posed by Section 31 should be capable of being answered without too much help from lawyers, but that has not proved to be the case. In the 27 years since 1986, the section has been considered on no fewer than eight occasions in our highest court, and on two occasions already this year. On one of those occasions it was said:

“This is unfortunate, especially in an area of the law which has to be applied on a daily basis by courts at all levels, and in which clarity is therefore of particular importance”.

I think noble Lords would say amen to that. Happily, there is one word in the section on the meaning of which everyone is agreed, and that is the word “likely” in subsection (1). It does not mean more likely than not. It means only that there is a real possibility of harm to a child or, as one judge put it, a possibility that cannot sensibly be ignored.

Perhaps I may paraphrase Section 32(1) again. It states that a child may be taken into care only if, first, it is suffering significant harm or, secondly, there is the real possibility that it will suffer significant harm. I shall not repeat all the wording. In other words, there are two separate conditions which may trigger the threshold, one relating to the present and the other relating to the future. When the case is put on the basis of present harm—for example, that the child is being physically or sexually abused by its father—it will be necessary to prove that fact on a balance of probability. Anything less than that would be unfair on the father and, indeed, on both parents. This is so also where the case is that the child has suffered serious injury and it is uncertain whether the injury was inflicted by the mother. It will be necessary to prove on a balance of probability that the child has indeed been injured and that the injury was inflicted by either the father or the mother, or both, but it will not be necessary at the threshold stage to decide which parent it was. That will be decided, if it can be decided at all, at the welfare stage on all the evidence which will then be available. The same principle of the threshold test also applies in relation to any unharmed child of the family.

So far, all is plain sailing. The difficulty arises when the parents separate. Let us suppose that the father goes off to live with another woman who already has a child of her own of the same age as the injured child. Is the threshold satisfied in relation to that child? Common sense would suggest that it is. There is a 50% chance on the proved facts that it was the father who injured the first child, who we will call child A. There must be at least a serious possibility that he will also injure child B—a possibility which, I repeat, cannot sensibly be ignored. If so, the threshold would be satisfied in relation to child B as well as to child A. However, the Supreme Court has held in a very recent case, Re J (Children), that that is not so. The Court has held that a serious possibility that it was the father who inflicted the injury is not enough. In order to satisfy the threshold in relation to child B, it will be for the local authority to prove on a balance of probability that it was the father and not the mother who injured child A. Since on the assumed facts that could not be done, child B would remain at risk.

I suggest that this cannot have been what Parliament intended when enacting Section 32(1), otherwise why did Parliament include the word “likely” as the alternative ground on which the threshold may be satisfied? The matter can be tested in this way by assuming that the mother is also now living with another man and has had a child which we shall call child C. Does child C also have to remain at risk because it cannot be proved on a balance of probability that it was the mother rather than the father who inflicted the harm on child A? The noble and learned Lord, Lord Nicholls, who gave the leading judgments in the three initial cases on Section 31 in the House of Lords, described such a result as,

“grotesque because it would mean the court would proceed on the footing that neither parent represents a risk even though one or other of them was”,

responsible for the harm in question.

How then, one may ask, has the Supreme Court in Re J arrived at a different conclusion that, as the noble and learned Lord has said, on the face of it is “grotesque”. How can two of the judges in the Supreme Court have held that the injury to child A in such a case is logically irrelevant in deciding whether child B and child C are at risk and must therefore be disregarded altogether?

The answer to how the Supreme Court can have reached that conclusion is to be found in the judgment of Lord Justice McFarlane in the same case but in the court below. Lord Justice McFarlane is one of our most experienced Family Division judges, and is the author of one of the leading textbooks in this field. It was he who gave the leading judgment in the Court of Appeal in Re J. He went through all the House of Lords and Supreme Court decisions going back to 1996, and he showed that a clear distinction is drawn in the cases between those where the question is whether any harm has been proved at all and those cases where harm has been proved but the perpetrator of the harm is uncertain. That is the very distinction drawn by the noble and learned Lord, Lord Nicholls, in the House of Lords case that I have already quoted.

Somehow though, that distinction was overlooked in later cases. Lord Justice McFarlane makes no secret of the fact that he favours the approach of the noble and learned Lord, Lord Nicholls, and would therefore have allowed the appeal in Re J if he could. However, subsequent decisions in the Supreme Court meant of course that his hands were tied. So the Court of Appeal took the unusual course of dismissing the appeal but itself giving leave to appeal to the Supreme Court, thereby, one might think, inviting the Supreme Court to have another look at this problem. Unfortunately, as I see it, the Supreme Court simply came up with the same answer again.

Lord Justice McFarlane’s judgment is long and detailed but his conclusion is clear, concise and very relevant in this context. It is contained in a single page of the Law Reports, which I have had copied, and the Committee may find it helpful to read his conclusion when considering this amendment. Copies are available on the table by the door.

I come to the decision of the Supreme Court itself in Re J. Is it open to us to take a different view? If so, is it wise for us to do so? To both those questions I would answer yes, for three reasons. First, three of the judges in the Supreme Court were themselves attracted by the argument that the approach in these cases has become much too complicated and that this is having unfortunate consequences. Secondly, the decision in the Supreme Court has been subjected to a hail of criticism in lengthy articles by Professor Mary Hayes and Stephen Gilmore, appearing in Family Law. There is not the slightest reason to doubt that, as they point out, the decision is causing real concern, if not consternation, among social workers and local authorities who have to apply Section 32 in practice. Thirdly, the decision in the Supreme Court hardly does justice to Lord Justice McFarlane’s decision in the Court of Appeal; indeed, it is scarcely even mentioned.

There is another reason for accepting this amendment. I am not seeking to amend the wording of Section 32(1) itself; the wording is fine and has stood the test of time. It is only the interpretation of that section that needs correcting, and that is what the amendment seeks to do. Its intended purpose is to clarify, and above all to simplify, the approach in cases of the kind that I have described where the harm has been proved on the balance of probabilities but the court cannot make a finding on the evidence whether it was the father or the mother who inflicted that harm. A judge of great experience in the Family Division said that that is the sort of case that occurs very often—“commonplace”, I think he said—in practice. In such cases, if the amendment were accepted, both parents would be placed in what is called a pool of possible perpetrators, thus enabling the case to proceed to the next stage, the welfare stage, where a decision could be made.

I refer to a “pool” because that is the term used by those who read these cases, or a “list”, as it is called in the amendment. Why does one have to have a pool or a list? The reason is quite simple: in one case, which has actually occurred in practice, there was a third possible perpetrator. In addition to the parents of the child in question, there was a childminder who also had a child of her own of about the same age. In such a case, it obviously makes sense that the childminder should be included in the pool of possible perpetrators, thus enabling that child to be protected should it become necessary. I hope that this has done something to clarify the purpose of the amendment and I beg to move.

[Lord Brown of Eaton-under-Heywood (Non-Afl)]

My Lords, I support the amendment as strongly as I may. The critical consideration to keep in mind here, as the noble and learned Lord, Lord Lloyd, has explained, is that what we are concerned about today is a threshold provision. The amendment would mean simply that in a small but very important additional category of cases, the court would have the jurisdiction and the power to investigate the case in depth and to consider whether in all the circumstances it should then make a care order or supervision order for the child’s protection. The small category of additional cases—again, the noble and learned Lord has explained this—is where it is established that some other child has already suffered significant harm, perhaps has even been killed, but the local authority concerned about some other child can demonstrate only the possibility, rather than the actual probability, that the perpetrator of that harm was someone who is now caring for the child in question—the child, that is, whose safety is presently under consideration.

As it happens, I was not in any of the string of cases in which the question of the true interpretation of Section 31(2) of the Children Act 1989 has arisen in recent years. Whether in the original House of Lords case I should have agreed with the majority view or with the dissenting minority view of the noble and learned Lord, Lord Browne-Wilkinson, and indeed of my noble and learned friend Lord Lloyd, does not matter. It is unnecessary to decide now which was the better interpretation of the language that Parliament originally enacted in 1989.

What is clear, as again the noble and learned Lord, Lord Lloyd, has explained, is that several judges who have had to grapple with this point, even if they felt bound by the original majority’s decision, have expressed serious misgivings about the consequences of that interpretation. In the case last year, Re J, to which again my noble and learned friend has referred, both the noble and learned Lord, Lord Judge, then the Lord Chief Justice and now a Member of this House, and the noble and learned Lord, Lord Neuberger, then Master of the Rolls and now President of the Supreme Court, agreed with Lord Justice McFarlane. His judgment expressed his trouble with the interpretation given to this section and described it,

“as a cause of concern amongst child protection agencies”.

What is certain is that the clause as originally enacted was not clear enough as to what Parliament then intended. The amendment of the noble and learned Lord, Lord Lloyd, or some comparable draft, would make it plain. It would solve the real and recurrent difficulty that this vitally important part of the law has got itself into, and it would produce a result that for my part I believe we should be striving for, which is to open the gateway to the court.

I repeat, this is only a threshold provision which would apply whenever a child is found to be at risk of being harmed, as must surely be the case when one of the caring parents is shown to have been a possible perpetrator of serious harm in the past. To anybody who is concerned that the court, following this amendment, would too readily take children away from a parent who only might have harmed some other child, I would say this is absolutely not the case. To quote subsection (2)(2A) of the proposed amendment,

“to infer that a child is likely to suffer significant harm”,

is to infer no more than that there is a risk of that child being harmed as surely there is if there is a real possibility that its carer has significantly harmed some other child. Crucially, it would then remain for the court, looking at all the facts of the case, to decide whether, under Section 1 of the 1989 Act, the child’s welfare is indeed best served by making a care or supervision order. I support the amendment.

--- Later in debate ---

That was the only fact that the Supreme Court was allowed to take into account. The case was deliberately put together so that this point of law could be dealt with by the Supreme Court. I think that it was in the judgment of the noble and learned Baroness, Lady Hale—noble Lords can read that for themselves if they wish—that the case was unique in the sense of being packaged in this way. In nearly every other case, it would be possible to adduce further evidence from which the court might be able to assume that it was one or the other, either the mother or the father, who had been the perpetrator. However, the unfairness of this idea is that if the mother had nothing whatever to do with harming the child, she should be marked as someone who creates a serious risk and that any child for whom she had responsibility thereafter is to be at serious risk and liable to be taken away from whatever union she has joined. When we look at it that way, as I assume we should, it is quite unfair to make that kind of inference from this sole fact. There may be many other facts in ordinary cases, and there usually are. At the stage at which this case was put, though, there was just the one fact, and that was the legal decision that seven judges reached.

[Lord Lloyd of Berwick]

Neither the noble and learned Lord nor I were Family Division judges, but another Family Division judge said that the type of case where it is not possible to tell on the evidence whether it is the mother or the father, but it is clearly one or the other, occurs very frequently. That is the kind of case that the amendment deals with.

[Lord Mackay of Clashfern]

The noble and learned Baroness, Lady Hale, made it perfectly plain that the case that was set up for the Supreme Court was a very special case that she certainly would not expect. She has vast experience of these matters, as has Lord Wilson. The noble and learned Lord, Lord Lloyd, said that I was not a Family Division judge. I certainly was not, but in the Court of Session in Scotland I had family cases. That was a very long time ago but some of the experience still stays at me.

--- Later in debate ---

This matter will be discussed again on Report, but the debate has certainly shown concerns. However, the concerns do not go only one way. As a layman, I certainly would be left with great reluctance to try to second-guess our Supreme Court at this stage. I hope that the noble and learned Lord will consider withdrawing his amendment.

[Lord Lloyd of Berwick]

My Lords, the Minister has indicated that this matter will come back on Report, so I do not intend at this stage to deal with the arguments that have been advanced by those who are not in favour of the amendment. I am very grateful to those who have supported it, particularly the noble Baroness, Lady Howarth, who put the point as clearly as possible that if there is a doubt or a serious possibility then the balance should come down in favour of protecting the child. That is all that I am concerned to do.

Over and again, the noble and learned Lord, Lord Mackay, referred to the case where one or other of the parents might have inflicted harm, and asked how on the basis of that it could be said that the threshold was passed. That is not the case that we are discussing. We are discussing a case where the harm is certainly inflicted by either the mother or the father. To say in those circumstances that it might only have been the mother is not enough; it is clearly a serious possibility, at the very least, that it was the mother on the one hand or the father on the other, and that serious possibility is enough to trigger the threshold on the clear wording of Section 32(1), which refers to “likely”, which in turn has been held to mean a serious possibility. That is all I will say at this stage, but I will certainly come back.

One other thing: the noble and learned Baroness, Lady Butler-Sloss, referred—I do not know with what propriety—to two people who had advised her that they were on her side. I could have quoted two others, equally eminent, who were on mine. At this stage I do not think that we should count heads; that is not the way to do it. On that basis, I beg leave to withdraw the amendment.

Amendment 64 withdrawn.

Whole-life Sentences

Lord Lloyd of Berwick Excerpts

Wednesday 17th July 2013 Lords Chamber

Asked by

[Lord Lloyd of Berwick]

To ask Her Majesty’s Government what is their response to the decision of the European Court of Human Rights in the case of Bamber and others v United Kingdom.

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

My Lords, the Government are disappointed with the court’s ruling. We are making a full analysis of the judgment and will provide our considered response in due course.

[Lord Lloyd of Berwick]

My Lords, the noble Lord will be aware that the Grand Chamber of the European Court of Human Rights recently decided by 16 votes to one that the 49 prisoners currently serving whole-life sentences in the United Kingdom are entitled to a review after 25 years. A review does not mean that they will necessarily be released. Can he confirm that whole-life prisoners had always been entitled under our law to a review after 25 years until they lost that right in 2003, it seems almost as a result of an oversight? Will he therefore ensure that the right to a review after 25 years is restored to all our whole-life prisoners as soon as possible in accordance with the court’s decision?

EU: Police and Criminal Justice Measures

Lord Lloyd of Berwick Excerpts

Tuesday 9th July 2013 Lords Chamber

[Lord Lloyd of Berwick]

My Lords, I will be very brief. I rejoice that the Government have decided that, after all, we need the European arrest warrant, together with Eurojust and Europol and the cross-border police co-operation. These are on any view the most important of the 35 measures which are due for retention—if, of course, we are able to opt back in.

Given the uncertainty surrounding the opt-in process, and given the fact that we are already subject to the jurisdiction of the Court of Justice of the European Union in respect of all the many police and justice measures that we have opted into since 2009, are we not taking an unjustifiable risk in opting out of what is good, including the 35 measures which are agreed to be in the national interest, in order to get rid of the other 95 pre-Lisbon measures, which are of no real importance to us, nor even of great relevance to us, one way or the other? It seems to be an unjustifiable risk we are taking for no apparent reason.

[Lord McNally]

I concede a lot of logic in what the noble and learned Lord has said. The fact is, however, that we had the Protocol 36 exercise to carry through; we have discussed it inside Government and with Parliament on a regular basis; and we have listened to the views of the committee of the noble Lord, Lord Hannay, and others. We have suggested a way forward. Is it a way forward with risk? Yes it is. All such enterprises have an element of risk. However, we can move forward with a degree of confidence once we get past some of the nitpicking about who did what, where and when, and get down to the central issue of whether we can successfully negotiate with our European colleagues on matters of our national interest and, I respectfully suggest, of Europe’s interest. What has encouraged us is that the soft soundings that we have taken have led us to believe that we can carry out meaningful, fruitful discussions and negotiations that recognise the risks that the noble and learned Lord mentioned, but, because we will do this with good will and an intention to succeed, and with colleagues who have similar good will and want us to succeed, will minimise those risks.

Offender Rehabilitation Bill [HL]

Lord Lloyd of Berwick Excerpts

Tuesday 9th July 2013 Lords Chamber

[Lord Ramsbotham]

My Lords, I support this amendment, to which I have added my name. We have spoken about this issue many times before. Several advantages come with this amendment in the context of the Armed Forces covenant, for which the Government are very much to be commended, not least because it requires an annual report to both Houses of Parliament by the Secretary of State.

What has been most encouraging since the announcement of the covenant is the number of local covenants that have been commissioned around the country. There is a huge support network for a particular focus on the multifarious needs of the Armed Forces. Mention has already been made by the noble Lord, Lord Beecham, of the large voluntary sector which supports the military and their families. Those organisations are very capable of carrying out many of the functions that are needed. In addition to that, a growing support network is being developed for those suffering from mental health problems—the Minister has mentioned post-traumatic stress disorder and other kinds of fatigue—not least a number of official recovery centres based around the country which are linked into the military command structure. This is a diversion scheme, very much on the lines of the scheme developed by the noble Lord, Lord Bradley, which the Government have supported. It is poised to go, supporting an element of the community to which the Government have said that they wish to pay particular attention.

I was present at the very encouraging meeting with the Minister, Damian Green, and was glad that he took all these points on board. Therefore, I hope that the Minister will be able to respond positively to the amendment and give the House an indication of the sort of timing that we might expect in terms of a government response.

[Lord Lloyd of Berwick]

Before the noble Lord sits down, perhaps I may ask him one question for my elucidation. I am interested in the use of the word “treatment” in connection with the word “courts”. Is it the intention that these courts should be available only to those who are shown to be suffering from either post-traumatic stress disorder or, let us say, Gulf War syndrome, or are they to be open to all, whether or not they need “treatment” in that sense?

[Lord Ramsbotham]

I think that I should defer to the noble Lord, Lord Beecham, who is responsible for the wording of the amendment.

[Lord Lloyd of Berwick]

I am very sorry. I had hoped to ask the question of the noble Lord, Lord Beecham, before he sat down, but it was by then too late. Somebody, I hope, will give me the answer.

[Lord West of Spithead]

My Lords, I support the amendment, to which I have added my name. The amendment is the least that we can do for the men and women who have put their lives on the line for our nation’s security.

Legal Aid

Lord Lloyd of Berwick Excerpts

Wednesday 26th June 2013 Lords Chamber

[Lord McNally]

The Government’s position is that we put forward a model for competition, as proposed in our transformed legal aid consultation. That said that the client would generally have no choice in the provider allocated to them but that, in exceptional circumstances, a client might be permitted to change their provider. We put that matter out for consultation. As I indicated in my Answer, we are now considering the responses to the consultation and will come forward with further proposals.

[Lord Lloyd of Berwick]

My Lords, does the noble Lord remember a letter that appeared in the Telegraph about a month ago signed by some 70 or more QCs? It said that the denial of choice in representation would lead to what they called a rapid and probably irreversible deterioration in the standards of representation. Does he accept that analysis? If so, is he happy with those consequences?

[Lord McNally]

No, my Lords. When one gets into one of these processes, those kinds of letters are sent to various distinguished newspapers and of course we take note of them. We are doing two things. We have never hidden the fact that part of what we are doing is because of financial constraints. The legal aid budget has to take its share of the burden of our spending cuts but we are trying to do that in a way that retains the fundamental access to justice. We have consulted very thoroughly. We have had some 16,000 responses, which we are working through. We will try to come back with constructive proposals, so long as the legal profession recognises that we have to make the savings that are necessary for the taxpayer.

Offender Rehabilitation Bill [HL]

Lord Lloyd of Berwick Excerpts

Wednesday 5th June 2013 Lords Chamber

[Lord Elystan-Morgan]

My noble friend Lord Northbourne’s comments on the word “rehabilitation” have stimulated my thoughts on this matter. He is absolutely right: rehabilitation can only mean a return to a condition which once existed. I am not enough of a linguist to say exactly how the word is constructed, but that is clearly what it means. I wonder, however, whether the word “reform” might be appropriate in the circumstances. I well remember one of the very first days that I attended this House, in 1981. A speech by the Lord Chief Justice, Lord Lane, a most distinguished gentleman, was given very great publicity and attention by the House. Its theme was that in the whole of his experience, both as counsel and as judge, he did not think that prison had reformed a single person. I remember asking myself how that could be, side by side with Rule 1 of the Prison Rules of the time, which said that the chief purpose of imprisonment was the reform of the offender. Both could not possibly be right. Putting aside that irrelevance for the moment, it may very well be that the word “reform” would be a more appropriate description of the situation than “rehabilitation”.

The noble Lord, Lord Bradley, raised the question of the condition of supervision that a person should be of good behaviour. It may well be that Parliament should define that situation more closely and specifically. There are two aspects here. The first is the boundary that it is Parliament’s duty to place and the second is the communication of the exact location of that boundary to the defendant in appropriate circumstances. It is part and parcel of the duty of the sentencer in any aspect of sentencing to make it clear to a defendant exactly what the court means. Over and above that, it is also their duty of the interview solicitor and counsel before leaving the matter, to make quite certain that the defendant knows exactly what is meant and what is expected of him or her.

[Lord Lloyd of Berwick]

Before my noble friend sits down, surely “rehabilitation” is the correct word because it relates, not to the period before he went to prison, but to the period while he has been in prison.

[Lord Woolf]

My Lords, this is an important amendment, apart from the fact that we have to consider whether the Title of the Bill needs amending. I strongly support the very wise words of the noble Lords, Lord Bradley and Lord Ramsbotham, in support of the amendment. One of the most important tasks of a court is giving explanations to offenders to make sure that those who are subject to the orders of the state understand the requirements that are placed on them. If that is the responsibility of a court and of judges, it must surely also be the responsibility of a supervisor under this Bill. I like to think that we have all had a stage in life when, until it could proved that we had done something wrong, we were innocent of having done so. If that is right, “rehabilitation” is a pretty good word to cover what is being sought to be done. I rejoiced when I saw the Title of the Bill and knew that focus was, at last, being placed on an extremely important task of the criminal justice system: to protect the public by preventing people offending again. I emphasise the word “again”.

I hope that in due course the Minister will, following the powerful arguments advanced by others, look on this proposal with considerable sympathy. I should, like the noble Lord, Lord Bradley, disclose an interest: I am also involved with the Prison Reform Trust—not as a valuable member, as is true of the noble Lord, but as its chairman. I make that disclosure in relation to subsequent amendments that shall be advanced today.

Prisoners: Indeterminate Sentences

Lord Lloyd of Berwick Excerpts

Tuesday 23rd April 2013 Lords Chamber

Asked by

[Lord Lloyd of Berwick]

To ask Her Majesty’s Government what further steps they will take to release prisoners serving indeterminate sentences for the protection of the public in the light of the recent decision of the European Court of Human Rights in James, Wells and Lee v UK.

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

My Lords, the European Court’s judgment did not find sentences of imprisonment for public protection to be unlawful. Therefore, it remains for the Parole Board to determine whether to direct the release of an IPP prisoner once he has completed his tariff. The National Offender Management Service continues to improve opportunities for IPP prisoners to progress towards release.

[Lord Lloyd of Berwick]

The noble Lord will know that currently more than 3,500 IPP prisoners have passed their tariff date and are waiting to come before the Parole Board. Does he accept that, at the current rate of release on licence, which is running at about 400 a year, it will be nearly nine years before the backlog is cleared? If so, is there not an overwhelming case for the Lord Chancellor to exercise the powers he was given under Section 128 of the 2012 Act to vary the release test to make it easier for these prisoners to satisfy the Parole Board?

[Lord McNally]

My Lords, the noble and learned Lord’s figure on the release of IPP prisoners is roughly correct; I do not think it is until Thursday that we release the full figures, but his estimate is not far out. That compares with 300 releases in 2011, 97 in 2010 and 53 in 2009. I hope he will acknowledge that the abolition of IPPs in LASPO and the greater flexibility that we are now employing in trying to manage the IPP sentences are going in the right direction. I acknowledge that it is a slow process. I will take back to my right honourable friend the Lord Chancellor the noble and learned Lord’s point about the power that was given in the LASPO Act, but even if that power were exercised the Parole Board would have to take public safety into account in making its decisions.

Freedom of Information Act 2000

Lord Lloyd of Berwick Excerpts

Wednesday 27th February 2013 Lords Chamber

[Lord McNally]

On the contrary, my Lords. If you are asking questions of power, there is some reassurance in the fact that the system giving you the right to ask those questions allows for anonymity. It certainly is not an abuse of power; it is rather, as the debates have shown over the years, that anonymity gives protection and encouragement to those who want information.

[Lord Lloyd of Berwick]

When the Government receive, as they do from time to time, independent legal advice, is there any reason why that advice should not be made available under the Freedom of Information Act? Should there be an absolute rule against independent legal advice being made available?

[Lord McNally]

Whenever the noble and learned Lord rises to his feet, a certain tingle goes down my spine—doubly so when he is asking about a matter legal. I am not sighted on that entirely and I would feel far safer if I were to take advice and write to him.