National Offender Management Service: Indeterminate Sentences

Lord Lloyd of Berwick Excerpts

Monday 2nd July 2012 Lords Chamber

[Lord McNally]

That is why, in answering the noble Lord, Lord Ramsbotham, I referred to the fact that the Parole Board can now take into account other aspects of prisoner activity that might contribute to the assessment of whether prisoners can be safely released. We are also making sure that there is much more co-ordination of the policy so that there is an understanding in the various prisons of what is available and so that much greater use is made of compulsory intervention plans. However, it is a difficult problem. As the noble Lord, Lord Ramsbotham, said, there is a build-up of more than 6,500 prisoners on IPP sentences, and it will take time to unwind the system. We are unwinding it, and more prisoners are being released after proper assessment. However, we cannot simply release prisoners who have received such a sentence because of the severity of their crime or the assessment that they are a long-term danger to the public.

[Lord Lloyd of Berwick]

My Lords, the noble Lord has clearly taken on board that this is a very serious question for those who are beyond their tariff. Can he give any indication of when the Parole Board is likely to see them? Can he suggest whether there is not some way that those who have committed less serious crimes could be released by some form of executive action?

[Lord McNally]

The LASPO Act provides for the possibility of executive action on this matter and for a change in the balance of judgment to be made by the Parole Board. For the moment the Government are waiting to see the impact on overall numbers of the new systems that we have put in place. About twice as many IPP prisoners are being released now than were released two years ago, but we are also facing the problem that judges are still imposing IPPs. I believe that we will have the first net reduction this year, with more people being released than are coming in under the new system. We hope to be able to announce later this year when the new sentencing system included in the LASPO Act will be introduced.

Crime and Courts Bill [HL]

Lord Lloyd of Berwick Excerpts

Monday 25th June 2012 Lords Chamber

Moved by

[Lord Lloyd of Berwick]

115: Clause 18, page 16, leave out lines 24 to 27

[Lord Lloyd of Berwick]

Amendments 115 and 116 are both concerned with the constitution of the Supreme Court. Amendment 120 is concerned with diversity, and applies not only to the Supreme Court but to the Court of Appeal and the High Court. These amendments were all grouped together, but it might be convenient for the Committee to hear the argument first on Amendments 115 and 116, and to hear the Minister’s reply on that before I develop the argument on Amendment 120. They are closely connected, and so that might be convenient, as it would enable me to rest my voice and the Minister a chance to get in—I was going to say, before it is too late.

At Second Reading I expressed some surprise, even incredulity, that we should be seeking to introduce part-time judges into the Supreme Court. So far as I know, there are no part-time judges in the Supreme Court of the United States, or in the International Court at The Hague, or indeed at any other supreme court anywhere else in the world. The Explanatory Notes give no reasons for this sudden change in the constitution of the Supreme Court so soon after its creation. However, the reason appears to be that the Government want to encourage more women and ethnic minority judges to apply for membership of the Supreme Court. Thus, if the Government’s view is accepted, one could have 11 full-time white judges—including, by convention, always two from Scotland and one from Ireland—plus one part-time woman judge and another part-time black judge, making 13 judges in all, but only 12 full-time equivalents. That seems to be the idea.

What, then, is the difficulty? Everybody agrees on two things. First, that in choosing judges at any level, one must always choose the best available candidate. This principle is now enshrined in Section 63(2) of the 2005 Act, which says that selection must be solely on merit. I said that everybody agrees about that, but that is not quite true, because the noble and learned Lord, Lord Falconer, does not agree. He believes that merit is only a threshold, and is supported in that view by Professor Cheryl Thomas. However, their view was, I think I can say, decisively rejected by the Constitution Committee, so I will say no more about it.

The second thing on which we are all agreed is that we need greater diversity among the judges, and particularly at the top. The difficulty is how to achieve that second objective without infringing the first. This problem has been around for a long time—almost for as long as I can remember. If there had been a quick solution, successive Lord Chancellors would, I am quite sure, have found it by now. However, sadly, there is no quick or easy solution.

The Government think that they may now have found a way forward. They argue that we should be able to appoint part-time judges in the Supreme Court in order to enable women with family commitments to apply for that appointment. I say at once that that is a very strong argument—indeed a decisive one—at the circuit judge level and below, where applications are likely to come from much younger women. However, I cannot see what relevance it could have to the Supreme Court, where the only family commitments that any applicant is likely to have will be those of a grandparent. I cannot for the life of me see how the argument could apply in the place of male judges from ethnic minorities.

The truth is that if we enact Clause 18 and Schedule 12, it will not make the slightest difference to the number of women or black judges applying to become Supreme Court judges. In practice, therefore, if this part of the Bill is enacted, it will do nothing at all to increase diversity at that level, which is the whole object. I suggest that since that is the only reason given for taking this novel course, we should think no more about it.

It may be said at this stage that this is a depressing outlook, which was a point made by the noble Lord, Lord Lea of Crondall, during my speech at Second Reading, and I was very glad that he made that intervention. However, I have to tell him and the Committee that it is not all gloom. If one takes the figures given on page 25 of the Constitution Committee report, in 1998 only 10% of all judges were women. By 2005 the figure was 17%, and now it is 22%—more than double. Of the 2,500 appointments made by the Judicial Appointments Commission since 2005, 35% have been women. One finds the same picture in the 2010 report from the advisory panel.

In 1998, there were no women sitting as Law Lords, only one woman in the Court of Appeal, and only nine in the High Court. By the end of 2011, there was one woman sitting in the Supreme Court; there were five women in the Court of Appeal, in contrast to one; and 18 in the High Court, in contrast to nine. There are at least 78, and probably many more, on the circuit Bench.

[Lord Lea of Crondall]

Given that the noble and learned Lord kindly mentioned my intervention, he will agree that it specifically related to another aspect of inequality of access, whereby 75% of judges—and the percentage is higher, the higher up you go—as compared with 7% of the population, were educated at public schools. Although his point about women is a good one, the noble and learned Lord, Lord Lloyd, said that my point on public schools was a bad one on the grounds that there is no way in which you can manipulate appointment on merit to deal with something that happened 50 years ago, such as where you went to school. I simply ask the noble and learned Lord, if I concede that you cannot do anything in terms of social engineering at this level, whether he will agree that the judiciary should take on board that it is highly damaging if nothing is seen to be done at the junior barrister level regarding access to chambers. Mummy and daddy can afford to take you through that period, but working-class people cannot have that access. Will the noble and learned Lord take that point in any way at all, because he did not do so at Second Reading?

[Lord Lloyd of Berwick]

I am grateful to the noble Lord for intervening again. I had interpreted his question at Second Reading as referring to diversity as a whole, and not limited to the number of judges who had been to public school. The Government’s case is based on the need to appoint more women judges, rather than more men, from people who have not been to public school. I am afraid that I do not have the comparative figures from 1998 and today on those who have been to public school, but I could perhaps find them and let the noble Lord know in due course.

The lesson that I draw from the figures that I have given is surely clear enough. If you want more diversity at the top, in the sense that Government and all of us want diversity, you must start at the bottom and work up, as we have already done and as the figures show. Women with family commitments are already being appointed in large numbers as part-time judges to the circuit Bench and below. In due course, the best of those women—and I can tell the Committee that from my experience the best are very good indeed—will, like the best men, reach the top via the High Court and the Court of Appeal. Yes, we all accept that it is a slow process, but there is no short cut to the top—a short cut implied in the proposal to allow women to sit part time in the Supreme Court—nor should there be such a short cut without infringing the overriding principle that the appointments must be solely on merit.

I have one last point. Introducing part-time judges into the Supreme Court would, on any view, be a major change. The court has been in existence only since 2010. It is surely too soon to effect such an important change without much more thought and further consultation. This is a point that I suspect will be developed by the noble Lord, Lord Goodhart. The answers given to question 13 in the recent consultative exercise would have been all but useless in relation to the Supreme Court, even if the basis on which that question was asked had been comprehensible, which it was not—to me at any rate. In contrast, the composition of the Supreme Court was given much thought by the Select Committee in 2004. The noble and learned Lord, Lord Falconer, was a member of that committee as Lord Chancellor and he played a full part. He will remember that there was much discussion about whether the Supreme Court should consist of 15 judges, as some thought, or nine, as others thought, so that it could sit en banc. However, it was never once suggested by the noble and learned Lord or anyone else that we ought to have part-time judges in the Supreme Court. Yet the diversity problem at that time was even greater than it is today.

[Baroness Jay of Paddington]

My Lords, I simply wish to ask the noble and learned Lord whether or not the strictures that he has applied to appointments to the Supreme Court would apply also to the High Court and the Court of Appeal, because—I speak in my capacity as chairman of the Constitution Committee, which the noble and learned Lord kindly cited—we recommended that the Senior Courts Act 1981 should be amended to allow flexible working to be included at a senior level, but not at the Supreme Court.

[Lord Lloyd of Berwick]

Indeed. I have to answer the noble Baroness by saying that I am certainly not at the moment persuaded that part-time judges should be appointed to the Court of Appeal. I simply do not see how it would work. I take the same view about High Court judges. The way to the High Court Bench for the sort of women whom the noble Baroness has in mind is via the circuit Bench. There is a clear way through for them. Indeed, one noble Baroness who is here today has taken exactly that course.

[Lord Falconer of Thoroton]

Perhaps I may follow up on that. I am not clear why the noble and learned Lord thinks that it is okay for there to be part-time circuit judges but not part-time High Court judges. I say that because I appointed High Court and circuit judges who had young children. I am completely unclear as to why the noble and learned Lord draws a distinction.

[Lord Lloyd of Berwick]

The noble and learned Lord, as Lord Chancellor, never appointed a part-time judge to the High Court. He quite rightly appointed plenty of part-time judges to the circuit Bench, and that was correct because they are obviously likely to be younger. We have to encourage young women with family commitments to come forward at that stage. The noble Lord will be the first to accept that not many such women apply to become members of the Supreme Court.

[Lord Falconer of Thoroton]

The noble and learned Lord will confirm that I was not legally entitled to appoint them to the High Court. That is the point of the amendment.

[Lord Lloyd of Berwick]

I confirm that the noble and learned Lord was not entitled to appoint to the High Court, but there was no need for him to do so because he could, and did, appoint to the circuit Bench, from which High Court judges would emerge. He knows that very well.

--- Later in debate ---

[Lord Falconer of Thoroton]

I will not intervene on his intervention, but the noble Lord is wrong.

[Lord Lloyd of Berwick]

I beg to move.

[Lord Carswell]

My Lords, I support the amendment—

[The Deputy Chairman of Committees (Baroness McIntosh of Hudnall)]

My Lords, I believe that the amendment in the name of the noble and learned Lord, Lord Lloyd, has been moved, and the name of the noble Lord is not, I think, on that amendment. However, the name of the noble and learned Lord, Lord Carswell, is on it.

[Lord Lloyd of Berwick]

My amendment has been moved by me and supported by two other noble Lords who would like to speak to it.

[Lord Falconer of Thoroton]

I think that the noble and learned Lord, Lord Lloyd is correct that because the name of the noble and learned Lord, Lord Carswell is on the amendment of the noble and learned Lord, Lord Lloyd, the noble and learned Lord, Lord Carswell, should come next.

--- Later in debate ---

[Lord Lloyd of Berwick]

Could I ask the noble Baroness a question? Much of what she said dealt with flexibility. I think that everybody in the House is in favour of maximum flexibility, both at the High Court level and above where it is possible. The real question is whether flexibility demands part-time judges. The view of some of us is that it does not.

[Baroness Kennedy of The Shaws]

If I may respond to the noble and learned Lord, it seems to me that it has to be one of the possibilities in the whole panoply open to those making appointments. I do not imagine that it would happen very often but it might be that someone exceptional could be appointed who would say, “I will sit during these parts of the year and will be available to you then”. I do not believe that that would bring about resentment from other colleagues once they saw the quality of the work done by people of real ability.

--- Later in debate ---

[Lord McNally]

Hansard will note that, with the full understanding of the Committee.

[Lord Lloyd of Berwick]

My Lords, I will be brief because I do not intend to divide the Committee. I am grateful to the Minister for his reply.

The noble Baroness, Lady Jay, was quite right to refer to the Lord Chief Justice’s evidence to her Constitution Committee. However, the point he was surely making was that there is already a great deal of flexibility in the High Court. That point was also made by the noble Baroness, Lady Falkner, during my speech. Indeed, it was made very recently by the noble and learned Lord, Lord Woolf. For example, if a judge is unable to go on circuit for family reasons or any other reason, he or she will of course stay in London and other arrangements will be made. That is already happening in the High Court. I say “he or she” because flexibility applies to both sexes; it applies to men as it applies to women. The thought seems to have been that somehow flexibility will help only women. That is not the case; it helps men also.

The noble Baroness, Lady Kennedy of The Shaws, also made a strong point on the importance of flexibility—as did the noble Baroness, Lady Neuberger. The truth is that we are all in favour of greater flexibility, just as we are all in favour of greater diversity. However, greater flexibility does not require the appointment of part-time judges. That is what this debate is not about. It is about whether part-time judges should be appointed not in order to give greater flexibility but to solve the never-ending problem of diversity—how to get more women into the higher courts. When the Minister said in his reply that flexibility and diversity for men and women were all one thing, he missed the whole point of this part of the Bill, which is intended to increase the number of women in the higher courts. All that I can say is that it will do no such thing.

[Baroness Falkner of Margravine]

I greatly appreciate the noble and learned Lord giving way. I again ask him to clarify whether he accepts that diversity encompasses more than just gender. It encompasses several strands, including disability, sexual orientation, ethnic minorities and so on. The Bill nowhere states that it is intended only to increase the number of women. It speaks in terms of diversity.

[Lord Lloyd of Berwick]

I could not agree more; of course we are not talking about women but about, above all in this context, black and ethnic minority judges, as I made clear when moving the amendment. As the noble Baroness made clear, we are also talking about other forms of minority, including people with disabilities, for example. However, the whole thrust of this part of the Bill is intended, as one can see from the history, to get more women, as well as ethnic minority judges, into the High Court.

I will not say any more about those who have supported the amendment, except to emphasise the extremely effective point that the noble and learned Lord, Lord Carswell, made regarding the collegiality of the Supreme Court. I certainly had a sense of that when I was in the Supreme Court, and I also felt it throughout my time in the Court of Appeal, although one obviously does not have that sense as a High Court judge. We were all members of one court. I do not think anyone can tell what the effect of the appointment of part-time judges will be on that essential concept of collegiality in both those courts.

I should mention the point made by the noble and learned Lord, Lord Woolf. He was unable to imagine a woman who would be willing to accept part-time appointment to the House of Lords but not full-time appointment. The question comes back to this: if that is the case, the purpose of this part of the Bill is not to cure the problem of diversity. Instead, the purpose is to send out what the noble and learned Lord called a signal; a gesture. I am opposed to gesture legislation, which is what this amounts to. It will not make any difference in practice. Having said that, I beg leave to withdraw the amendment.

[Earl Attlee]

If the noble and learned Lord wants to speak to another amendment in this group, I would advise him not to withdraw his amendment. Otherwise the Lord Speaker will inevitably have to go on to further amendments in accordance with the Marshalled List.

[Lord Lloyd of Berwick]

I am very grateful to the noble Earl. I will defer begging leave to withdraw the amendment until I have moved the other amendment.

[Earl Attlee]

My Lords, the noble and learned Lord can speak to his other amendment if he wants. He cannot move it, but he can speak to it now.

[Lord Lloyd of Berwick]

My Lords, the second amendment in my name and the names of the noble and learned Lords, Lord Carswell and Lord Woolf, is concerned only with diversity. It affects the judiciary at all levels. The amendment would leave out line 27 of Clause 18 and Part 2 of Schedule 12.

The Government accept that judicial appointments must be solely on merit. However, the Government argue that there might be cases where two candidates were of exactly equal merit, like two candidates getting the same marks in an examination, in which case the woman or the black man should be preferred. At least, that is the idea. “Solely on merit” is thus to be given a special meaning.

How is it going to work? Let us suppose there is a vacancy in the Supreme Court. The candidates will almost certainly come from the Court of Appeal. Let us suppose that there are two candidates from the Court of Appeal. Their abilities will be well known to the selection commission. The Bill provides that the selection commission shall consist of an odd number of members, not less than five. Is it conceivable, I ask, that all five members would find the two potential candidates of exactly equal merit? The answer is no. I suppose it is just possible that two members of the selection commission might favour one candidate, and two might favour the other, and the fifth member of the commission might be unable to make up his mind one way or the other, but this seems so unlikely in practice that it should not be the subject of legislation.

I am not alone in taking the view that I do. The noble Baroness, Lady Neuberger—who is still in her place, I hope—the noble Lord, Lord Phillips, and the Lord Chief Justice, all doubted whether candidates for the Supreme Court would ever be exactly equal. So did Christopher Stevens, the chairman of the Judicial Appointments Commission.

The idea that the Equality Act might be used where there are two candidates of exactly equal merit comes from a recommendation of the advisory panel in its 2010 report. As the noble Baroness, Lady Neuberger, will recall, it was recommendation 21. In a progress report of May 2011, the Judicial Appointments Commission said that it had always been able to distinguish between the relevant merits of different candidates, and that it did not anticipate that the Equality Act would ever be relevant in practice. Therefore I suggest that the idea should have been dropped then and there; it was nothing but an idea.

The members of the Judicial Appointments Commission operate in the real world. Part 2 of Schedule 12, which is based on the idea that one can have exactly equal candidates for these posts, is a good example of the sort of make-believe world in which Governments so often seem to exist.

That leaves only one argument. It is said that even though Part 2 of Schedule 12 would be useless in practice, it would send out a strong signal that diversity is of importance. This was the view of the Constitution Committee, stated in paragraph 101. It was also touched on by the noble and learned Lord, Lord Mackay, at Second Reading.

I do not believe that legislation should be used for the purpose of sending out signals. Moreover, in this context the signal is surely rather demeaning. We would be saying to highly intelligent women lawyers, “You may not have been the best but be of good cheer, you were first equal”. If I were the first black judge to be appointed to the Supreme Court, I would want to know whether or not I had been the best candidate, as I would under the existing law. Under the new law, I would not know. If I was only equal first, surely I would want to know who the other candidate was—and no doubt the other candidate would want to know who I was. Moreover, if I were a black judge, what would happen if the other candidate were a woman? How would the equality principle apply in those circumstances? I have formed the view that the Equality Act is of no assistance in this context. Of course it is of great importance in many other fields, but in appointments to the Supreme Court and the Court of Appeal it is of no assistance at all: indeed, it could do nothing but harm in the manner that I suggested. I beg to move.

[Earl Attlee]

My Lords, the noble and learned Lord made a slight mistake. He did not beg to move; we can just carry on debating the amendments in this group.

--- Later in debate ---

[Lord Falconer of Thoroton]

My Lords, I am in favour of the amendments proposed in paragraph 9 in part 2 of Schedule 12 and am therefore opposed to the amendment that the noble and learned Lord, Lord Lloyd of Berwick, advances.

I speak from my experience of being engaged in judicial appointments as Lord Chancellor, which is not the same as that of the noble and learned Lord, that there is always somebody who is the best candidate. My experience of judicial appointments is that you are very often comparing people who came with completely different experiences and particular specialities, who are both aiming to fill the same position. You could have a solicitor who was very experienced in dealing with general litigation, widely admired for his wisdom and sense, and a criminal barrister widely admired for her advocacy skills. The idea that one was better than the other and that one should approach judicial appointments on the basis that one was trying to grade the candidates for an Oxford First as 1, 2, 3 and 4 was not remotely my experience.

I am always suspicious of people who advance arguments along the lines of, “I live in the real world”. The real world involves making comparisons between people where it is essentially not possible, in any meaningful way, to grade them as 1, 2, 3 or 4. You will find that there are people applying for jobs who are of equal merit. That is the position, whether you are dealing with an appointment for one position or with a wider appointment, for example encouraging people to fill 15 posts as circuit judges—

[Lord Lloyd of Berwick]

Would the noble and learned Lord explain why his experience as Lord Chancellor is so very different from the experience of the Judicial Appointments Commission, which has said quite clearly that it has never found people to be of equal merit and does not anticipate that this clause will help in the future?

[Lord Falconer of Thoroton]

I do not know who the noble and learned Lord is referring to. If he is referring to Mr Christopher Stephens, I have had no conversations with him. All I can do is set out my own experience in relation to this.

--- Later in debate ---

So I do not accept that there is support there for this view. It is, as I say, much too narrow a view of what we are trying to do and I hope, just as I am often asked to listen to what the House has said on this matter and think again, that the noble and learned Lord, Lord Lloyd, will listen to the voices around the Committee and think again, because I think that he is on the wrong track on this. I am sure that after careful consideration, when we get back to Report, he will be an enthusiastic supporter of the Government.

[Lord Lloyd of Berwick]

Of course, having listened to the noble Lord, I am bound to think again and I shall. At this point all I will do is agree with the noble Baroness, Lady Falkner, that this question does not arise at the lower levels at all. At the lower levels there will usually be a large number of vacancies and a large number of applications, so there will be no question at all of putting candidates into any sort of order. However, it clearly does arise where one has one or two candidates from the Court of Appeal applying for the Supreme Court, or one or two candidates from the High Court applying for the Court of Appeal. At that level I say that there has never been any difficulty in choosing between them, so once again, this is a provision which will not help in practice.

To those who say the opposite, I shall read how the recommendation of this advisory panel was dealt with—it all comes from that recommendation. When that recommendation was considered, again, in 2011, the answer was as follows:

“The JAC will always select on merit and has to date been able to distinguish between the relevant merits of different candidates based on a careful assessment of an applicant’s entire profile and background”.

Certainly, background is taken into account as the noble Baroness, Lady Prashar, would stress.

[Lord Falconer of Thoroton]

My understanding is that the Judicial Appointments Commission does not appoint to the Court of Appeal and the Supreme Court. I understand that the noble and learned Lord, Lord Lloyd, is saying that there is no problem with this provision in relation to the appointments that it does make—so he appears to be disagreeing with Mr Stephens—and in relation to the area where he is disagreeing, that is not a matter for the Judicial Appointments Commission. So I am not quite clear what point he is making.

[Lord Lloyd of Berwick]

The point is whether it arises in practice that it is impossible for whoever is making the appointment to choose between two equal candidates. The noble and learned Lord, Lord Falconer, says he often had that difficulty. If that is a real difficulty, it is very surprising that the Judicial Appointments Commission, which has made innumerable appointments, has never found that difficulty in practice, and it says that it does not anticipate, therefore, that the provisions of the Equality Act will ever be relevant in practice, either at its level or at any other level.

[Baroness Prashar]

Let me explain this by giving an analogy. When you make senior appointments, let us say to the High Court, you make a selection. It is like knowing that you want fruit: do you want apples, pears or whatever? That is the point at which you make a judgment. What the noble and learned Lord read from basically explains that you judge the candidate against those criteria. You will take all those considerations into account before making that selection. The distinction is that you will never get two equal candidates. As the noble and learned Lord, Lord Falconer, said, let us say that the noble Baronesses, Lady Jay and Lady Neuberger, applied. It would be a question of equal merit but against the background of what was needed you would go for one particular noble Baroness because she would match the merit criteria. I think that the confusion is that they are not absolutely equal but they are of equal merit.

[Lord Lloyd of Berwick]

I regret to say that the difficulty of that is that when one talks about equal merit one is in danger of infringing the very first requirement that all appointments must be made solely on merit and the view that has been expressed over and over again that that is not a threshold. That view was rejected by the Constitution Commission, which said that it is wrong to regard merit as a threshold, which the noble Baroness appears to have done—and perhaps the noble Baroness, Lady Neuberger, too. It is not a threshold. You have to get the best person.

[Baroness Neuberger]

Can I make clear what the advisory panel said on this matter? We were quite clear that the principle of selection on individual merit remains. The point that we were trying to make is that that depends on how you define merit. Your definition of merit may not be identical with mine or with that of the noble Baroness, Lady Prashar. We have a way of dealing with merit. The Judicial Appointments Commission has merit criteria against which we measure. Those criteria have recently been changed in relation to some of the things that may help in these diversity questions. We said that where people were of equal merit and you could not distinguish to say that one was better than another, you could then use the tipping point. Some people have liked that and some have not. Since we now have the availability of that in legislation, all six of us—without being able to put a sheet of paper between us—agreed that that was the right way to go.

[Lord Lloyd of Berwick]

I am still replying to the debate and the debate is still going on but it is quite apparent that I will not persuade the noble Baronesses. In those circumstances, I beg leave to withdraw the amendment.

[Lord Falconer of Thoroton]

Do not withdraw it. There is more in the group.

[Lord Lloyd of Berwick]

From you? I am sorry.

[Lord Falconer of Thoroton]

I am very grateful to my noble and learned friend for not withdrawing his amendment because it allows me to deal with the final set: Amendments 123A, 124A and 126A. I congratulate the Minister on the complicated group that he put together. None of us objected to it so we all are to blame for this particular procedural mess.

I think that this is the last thing we will deal with tonight. These amendments very respectfully question the wisdom of the Bill in replacing the Lord Chancellor with the Lord Chief Justice in relation to the appointment of a number of specified appointments. As noble Lords will recall, in relation to a number of specified judicial appointments, including circuit judges and recorders, the Judicial Appointments Commission makes recommendations to the Lord Chancellor and the Lord Chancellor can ask the Judicial Appointments Commission either to think again or to reject a particular appointment. If the Judicial Appointments Commission then comes back with another appointment, the Lord Chancellor is broadly obliged to accept it. We put together this type of arrangement because those of us involved in the Constitutional Reform Act 2005—I have in mind in particular the noble Lord, Lord Goodhart, and the noble and learned Lords, Lord Lloyd of Berwick and Lord Woolf—all believed that it was extremely important that the Executive remained involved in the appointment of important and significant judicial appointments.

What is in effect being legislated for now is that the Lord Chancellor—the Executive—should remain involved—put aside the question of the Court of Appeal, the Supreme Court, the Lord Chief Justice and heads of division—only in the High Court. I suggest to the Minister that that is a big mistake. The reason that the Lord Chancellor was given the residual power is that he is able, as an external force to the Judicial Appointments Commission and to judges, to say, “Think again”. The areas where the Lord Chancellor could say “think again” in a way that the Lord Chief Justice—the chief judge—might not be as willing to do might be, for example, in relation to diversity issues or to criteria adopted by the Judicial Appointments Commission.

I suspect that the main thinking behind this is that the Lord Chancellor is fed up with looking at lots of names of people to be appointed circuit judges. If that is the reason, it is a discreditable, bad reason for making the Lord Chief Justice, who does not have the resources that the Lord Chancellor has, look at them, and it removes the Lord Chancellor—the Executive—from the important position of appointing judges.

I ask the Minister to think again. This is an important issue. It reduces the stake of the Executive in the appointment of circuit judges, who are the major criminal judges in this country, and recorders, the major stepping stone from being a part-time judge to being a full-time judge. Those are the two most important appointments. To suggest that the Lord Chief Justice makes them adds nothing to the process. The pressures on the office now are huge. In my respectful submission, it is a big mistake to do that.

I have dealt with paragraph 27 about judges. Paragraphs 28 and 40, with which my other two amendments deal, are about replacing the Lord Chief Justice with the Senior President of Tribunals, who is basically a Court of Appeal judge. The Government are replacing the Lord Chancellor with a senior Court of Appeal judge in the context of senior appointments to the Tribunals Service. The Tribunals Service now covers a huge range of administrative matters and its judges are just as important in relation to involving the state as those other judicial appointments. I hope that the Minister thinks about removing the Executive from these roles and placing the burden on people who cannot carry it for administrative reasons. If one is serious about the Executive having an influence on criteria and diversity, this is the way it would be achieved. I invite the Minister to think about that.

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[Lord Falconer of Thoroton]

I cannot resist the temptation to ask how many people who were on the Midland Circuit in 1970 are now being appointed judges. Their age, if they were on the circuit then, would now be 68.

[Lord Lloyd of Berwick]

I beg leave to withdraw Amendment 115.

Amendment 115 withdrawn.

Legal Aid, Sentencing and Punishment of Offenders Bill

Lord Lloyd of Berwick Excerpts

Monday 23rd April 2012 Lords Chamber

[Lord Woolf]

No one can anticipate what might happen with regard to the conduct of a particular Lord Chancellor in the future. However, in regard to the fears that have been expressed, there would be no possibility of those being treated as appropriate cases for an application for judicial review on the facts that could be reasonably expected to occur.

On the purpose of the legislation, I would adopt what was said by the shadow Minister in the other place: that the amendment states a purpose because the provision is a statement of legislative purpose. As to having a statement of legislative purpose, in legislation of this nature it is done frequently, not for the purpose of providing an enforceable duty but so that it is known what the legislation as a whole is intended to do.

[Lord Lloyd of Berwick]

My Lords, the noble Lord who moved the amendment as well as the noble Lord, Lord Howarth, and the noble and learned Lord, Lord Woolf, have referred to the purpose of the amendment as the avoidance of doubt. I hope that in his reply the noble Lord will explain to the House exactly what is the doubt which the amendment is designed to remove and which, presumably, the Bill will otherwise create. If he can answer that question to my satisfaction then I might vote with him. Until that question is answered, I would be inclined to vote with the Government.

Legal Aid, Sentencing and Punishment of Offenders Bill

Lord Lloyd of Berwick Excerpts

Tuesday 20th March 2012 Lords Chamber

Moved by

[Lord Lloyd of Berwick]

153: Before Clause 116, insert the following new Clause—
“Duty to release certain prisoners serving a whole life sentence
In Chapter 2 of Part 1 of the Crime (Sentences) Act 1997 after section 28 insert—“28A Duty to release certain prisoners serving a whole life sentence
(1) In the case of a life prisoner who has been made subject to a whole life order, and has served 30 years of his sentence, it shall be the duty of the Secretary of State, after consulting the Lord Chief Justice and the trial judge if available, to refer the case to the Parole Board.
(2) If the Parole Board is satisfied—
(a) that it is no longer necessary for the protection of the public that the prisoner should be confined, and(b) that in all the circumstances the release of the prisoner on licence would be in the interests of justice,the Parole Board may direct his release under this section.(3) Where the Parole Board has directed a prisoner’s release under this section, it shall be the duty of the Secretary of State to release him on licence.””

[Lord Lloyd of Berwick]

My Lords, I start by seeking to degroup Amendment 153 from the other two amendments in the group.

Amendment 153 concerns the 41 prisoners who are currently serving whole life sentences in England and Wales. Before the Criminal Justice Act 2003, these prisoners would have had their sentences reviewed by the Home Secretary after 25 years. If they had made exceptional progress and there was no other reason for keeping them in prison, the Home Secretary would consider them for release on licence. There was never any question of automatic release. Each case was considered on its own merits. Some were released on licence; some were not.

What I have just described was the settled practice of successive Home Secretaries for many years. It was a humane practice since it gave whole life prisoners the same hope of a review as other life prisoners. When the 2003 Act was going through Parliament this settled practice was somehow overlooked. There is no evidence that it was overlooked on purpose. It was not a deliberate omission. The purpose of this amendment is to restore the position to what it was before 2003, except that the review would be carried out not by the Home Secretary but by the Parole Board. The reason for that is that the Home Secretary no longer has any function in relation to sentencing except the power to release a prisoner on compassionate grounds, a power which has never been exercised.

--- Later in debate ---

[Lord Lloyd of Berwick]

My Lords, I do not find that response in any way satisfactory. What single reason has the noble Lord for supposing that the public would not accept this amendment, just as they accepted the position before 2003? There was no problem then, so why should there be a problem now, unless it is a problem that has been specifically created by two political parties, each of which is trying to be tougher on crime than the other? That is the political judgment that the noble Lord has made and it has nothing to do with the justice of this amendment or restoring to these people the expectation that they had before 2003. I have no hope of persuading the noble Lord or his party, but I intend to test the opinion of the House, because this is something that should have been accepted by both political parties.

--- Later in debate ---

Moved by

[Lord Lloyd of Berwick]

154: Clause 117, leave out Clause 117

[Lord Lloyd of Berwick]

As the House will remember, Clause 117 provides that if a person has been convicted of a listed offence for which he has been sentenced to 10 years or more and then commits a further offence for which he might expect at least a 10-year sentence in prison, then he “must” be sentenced to life imprisonment unless it would be unjust to do so.

I described this clause in Committee as being pointless and indeed it is, but I now suggest that it is worse than pointless. In Committee, the Minister described the clause as introducing a new mandatory life sentence, and he placed particular emphasis on “mandatory” to show, no doubt, that the Government in this respect are being tough on crime. But a mandatory sentence is one that the court is obliged to pass, like the mandatory sentence of life imprisonment for murder. This clause is quite different from that.

Despite the use of “must”, the clause recognises that the judge will in fact pass the sentence which, in the particular circumstances, he believes to be the just sentence. That is exactly what judges always do when sentencing. Why then do the Government persist in calling it a mandatory sentence? It cannot surely be in order to create some sort of presumption that a life sentence should be passed. How would the judge begin to know what weight to give to such a presumption? Calling it a mandatory life sentence and the use of “must” in the light of the judge’s ability to pass the sentence he believes to be just is simply a contradiction in terms. To create contradictions in terms in all legislation is a mistake, particularly in legislation of a criminal kind which has to be interpreted by the courts. What the clause could have said was that the court “may” pass a life sentence in these circumstances. That would at least serve some purpose because it would cover those rare cases where the second offence does not carry with it a life sentence as its maximum. As it is, the clause is not only pointless for the reasons I have gone into but it is also ambiguous.

I have one other point. Do we want to create more life sentences? I look round to see if the noble Baroness, Lady Stern, is here and I do not thinks she is, so I will make the points which I know she would have made. She quoted what are on any view some very surprising figures that we have in England and Wales 7,663 persons serving life sentences. The figures, which have been provided by the Council of Europe, show that, whereas we have 12 lifers for 100,000 members of the population, for France the proportion is 0.85 per cent, for Germany it is 2.4 per cent, for the Netherlands it is 0.14 per cent, and for Sweden it is just over 1 per cent. The conclusion from these figures is inevitable. We have far too many prisoners serving life sentences when a long determinate sentence would do just as well. As for deterrence, it is very fanciful to suppose that a prisoner having served 10 years already would be deterred by the prospect of a life sentence rather than a long deterrent sentence and decide thereafter to go straight.

As for Amendment 157, we have a new Clause 134 which creates an offence of threatening with a knife. It too carries a mandatory sentence and, as such, suffers from all the defects which I have already mentioned in the earlier debate. It is even more pointless for the reason that we already have an offence of carrying a knife in a public place under the Criminal Justice Act 1988. It carries a maximum sentence of four years. In 2003 the Court of Appeal issued guidelines in which it said that if the knife was used to threaten, then the sentence should be towards the upper end of the scale. What, then, can be the purpose of now creating a new offence of threatening with a knife, carrying the same maximum sentence of four years? Clause 134 is exactly covered by the existing legislation. Its only purpose I can see is, as I have said before, to give the impression that the Government are doing something about knife crime. If they think that, then they deceive themselves. The only way to do anything about knife crime, as I mentioned in Committee, is to do what has been done in Glasgow and that is to get in among the gangs who use these knives. There, knife crime has been reduced by an astonishing 82 per cent. That is the way to reduce knife crime, not cluttering up the statute book with unnecessary provisions such as this. I beg to move.

[Lord McNally]

My Lords, a concern expressed by some noble Lords in Committee seemed to be that the new mandatory life sentence would be pointless—a word that the noble and learned Lord used several times—because courts will not have to apply it if it would be unjust to do so. It is right to say that the court will retain a discretion not to impose the new mandatory life sentence when the particular circumstances of the offence or the offender would make it unjust to do so. But that is very far indeed from meaning that the sentence is pointless. Save for murder, all mandatory sentence requirements on the statute book contain an exception of this kind. It is done so that mandatory sentence requirements will be compatible with human rights, and to prevent arbitrary sentencing, which cannot take any account of specific and individual circumstances. It is clearly not a permission or excuse for the court to do away with the mandatory sentence requirement. We expect that in the majority of cases the exception will not be engaged at all.

Last summer we made a commitment to introduce a tougher determinate sentencing regime to replace IPPs. A key element of that regime is mandatory life sentences for the most serious repeat offenders. The mandatory sentence requirement in Clause 117 will ensure that the worst repeat sexual and violent offenders receive a life sentence.

Amendment 157 would remove Clause 134, a new knife offence, from the Bill. The noble and learned Lord, Lord Lloyd, argued in Committee that the two new offences in Clause 134 are adequately covered by existing legislation and that, therefore, there is no reason for creating them. It is true that unlawful possession of a knife or offensive weapon is already a serious criminal offence which carries a maximum custodial sentence of four years. The intention of Clause 134 is to strengthen this existing legislative framework by targeting behaviour that amounts to more than simple possession but does not go so far as resulting in injury to the victim. The new offence will complement the existing offences of possession, which deal with those who carry offensive weapons or bladed or pointed articles in public places or schools without lawful authority, or reasonable excuse or good reason. It will do so by targeting behaviour that goes beyond possession, specifically targeting instances where an individual brandishes a knife or weapon, threatening another and placing them at immediate risk of serious physical harm. We want to send a strong message that this type of behaviour will not be tolerated. The minimum sentence attached to the new offence drives home the point that this kind of behaviour is extremely serious, even if it does not carry through into causing actual physical harm. Indeed, threatening people and placing them in fear of serious physical harm is serious enough that people should expect to face custody if they act in this way.

I know that the noble and learned Lord is particularly concerned about the minimum sentence for 16 and 17 year-olds contained in the new offences. I understand his concern, but in the other place my right honourable friend the Lord Chancellor made it clear at Third Reading that the Government had listened carefully to the arguments made in support of extending a minimum custodial sentence to all those under 18. The Government had then decided, on balance, that it would be appropriate to extend the minimum sentence to the narrower group of 16 and 17 year-olds who commit these offences. The Government have not made the decision to create these offences lightly, but consider it appropriate to have minimum sentences set out in legislation when a particular offence demands a firm and unequivocal response.

The Government cannot accept this amendment. To do so would undermine the strong message sent by this clause. We need this to complement the much wider range of initiatives we have in place to address problems posed by people who unlawfully carry or use knives in our communities. We believe that, in respect of 16 and 17 year-olds, Clause 134 strikes the right balance. I urge the noble and learned Lord to withdraw his amendment, and that this clause and Clause 134 should remain in the Bill.

[Lord Lloyd of Berwick]

My Lords, the noble Lord has not explained how a life sentence in the first amendment could in reality act as any greater deterrent than a second long determinate sentence. Nor has he dealt or attempted to deal with the astonishing figures that I mentioned, which show that we seem to have a thirst for creating life sentences that is entirely unique to the United Kingdom. It is not seen anywhere else in Europe. Nor, coming to the second amendment, has he explained why it is necessary to have another offence covering exactly the same ground as the existing offence. Of course it may be limited to handling a knife, but it is not confined to handling and clearly covers threatening, which is now given a new offence with exactly the same maximum sentence. However, I see that the Government cannot be persuaded, and therefore I must beg leave to withdraw the amendment.

Amendment 154 withdrawn.

Legal Aid, Sentencing and Punishment of Offenders Bill

Lord Lloyd of Berwick Excerpts

Wednesday 14th March 2012 Lords Chamber

Moved by

[Lord Lloyd of Berwick]

137: Clause 45, page 31, line 38, leave out from “policy” to end of line 33 on page 32

[Lord Lloyd of Berwick]

My Lords, this amendment is concerned with one aspect of clinical negligence cases: the cost of expert reports. It would not have been necessary if the House had accepted my noble friend Lady Grey-Thompson’s amendment last week, but unfortunately it failed by a narrow margin.

Everybody, I think, agrees that the cost of expert reports at least should be recovered in one way or another. The trouble is that the Government set about it in the wrong way. In Committee on 16 January, I put forward some figures to show why. I did not expect that the noble and learned Lord, Lord Wallace of Tankerness, would deal with the figures there and then. However, I have to say that I did expect that I would get something rather better than what I got some weeks later, which said simply that the Government did not recognise or accept my assumptions. Nothing then happened for a further period of time, until 1 March, when the Government put forward their own alternative calculations.

On the following day, 2 March, the Government were given a detailed answer which showed that their calculations were simply wrong. On 7 March, the third day of Report stage, I again explained why, but on that occasion the noble and learned Lord, Lord Wallace of Tankerness, did not deal with the figures, any more than he had done on 16 January. Instead, he said that he would place the Government’s calculation in the Library of the House. However, he had not done so by the time I had left the House last night, nor when I arrived this morning. I did not in fact see the Government’s calculations until early this afternoon.

However, that delay, which I would humbly suggest was unforgivable, at least meant that the Government have now put forward—at my request, I may say—and placed in the Library, not only the Government’s own calculation but the response to it, which was prepared by Mr Andrew Parker, a partner in the firm of Beachcroft, to whom I am especially indebted. That response shows that by accepting this amendment the Government would make a saving to the taxpayer of something between £10 million and £19 million.

I suspect that the House will be glad to hear that I will not go into the figures again, since the Government have simply left it too late for further consideration of the figures. The House has accepted the amendment that I tabled last week, on the basis of the figures which I then put forward, there having been no other figures with which to compare them. However, that is not an end of the matter, because the savings that I have indicated will depend on the Government accepting this amendment, the second part of the coupled amendments now before the House, as well as the one that they accepted last week. If the Government are serious about saving money, as they have said so often in Committee and so far on Report, then that is what they ought to do.

The repeal of Section 29 of the Access to Justice Act, which would get rid of recoverable insurance premiums, is one of the two or three main planks on which Part 2 of the Bill rests. What, therefore, is the point of repealing Section 29 and then, in the same breath, making an exception in the case of expert reports, when expert reports are now covered by legal aid as a result of last week’s amendment? It simply does not make sense. The only explanation given so far is that the Government want to help those who are above the legal aid limit. But how does that square with the Government’s attitude to those many deserving cases, of which we have heard from all sides, who are being denied legal aid even though they are within the legal aid limit? It is in the highest degree ironic that one of the grounds given by the Government for spending the extra £10 million is the need to secure access to justice for those who are above the limit. How much better that money would have been spent elsewhere in the course of this Bill.

The truth is that the Government simply made the wrong decision. They listened to representations, as a result of which they decided to fund expert reports by way of ATE insurance rather than by way of legal aid. They chose the most expensive course but they now have the chance to mend their ways. It is not too late for them to put the matter right by accepting this amendment. I beg to move.

--- Later in debate ---

[Lord McNally]

My Lords, if there has been any discourtesy to the noble and learned Lord, Lord Lloyd, I absolutely apologise and take responsibility for it. I should like to put that on the record. The noble and learned Lord has described our proposal in the past as expensive and inefficient, and has made much of the difference between his and the Government’s figures. As he knows, we have now put our calculations in the Library of the House and I can assure your Lordships that we have given careful consideration to the calculations that the noble and learned Lord has provided. In addition, I have met with the noble and learned Lord, as have my officials, and we have swapped calculations. We have explained that we believe that he is omitting some vital costs from his calculations.

The method we have used is open and transparent. Taking costs to legal aid and to public sector defendants, we believe that the costs to the public purse of the proposals from the noble and learned Lord, Lord Lloyd, to fund expert reports by legal aid is about £17.5 million a year, whereas the cost to the public purse of our proposal for recoverable insurance premiums is between £18.5 million and £19.5 million. The result is likely to be an additional cost of about £1 million to £2 million.

I understand that the noble and learned Lord does not accept our calculations, but we do not accept his. This is a matter on which we have to take a judgment. These additional costs, as he has said, will enable more people to gain access to justice than under his proposals, which are limited to those who are financially eligible for legal aid. For this reason, and for reasons that are set out in more detail in the paper in the Library, we believe that the powers in Clause 45 are the best way to support victims of clinical negligence in a relatively inexpensive and fair way. I realise that this is a clash of figures and a clash of judgments, but I am making my judgment and we are willing to defend it in this House. At this hour, I would urge the noble and learned Lord to withdraw his amendment.

[Lord Lloyd of Berwick]

My Lords, I am afraid that I do not find the answer satisfactory. I will withdraw the amendment, of course, but in the hope that the Government will think again and perhaps, between now and Third Reading, take further and better advice. On that basis, I beg leave to withdraw the amendment.

Amendment 137 withdrawn.

Legal Aid, Sentencing and Punishment of Offenders Bill

Lord Lloyd of Berwick Excerpts

Wednesday 7th March 2012 Lords Chamber

Moved by

[Lord Lloyd of Berwick]

13: Schedule 1, page 125, line 5, at end insert—
“Clinical negligence(1) Civil legal services provided in relation to the obtaining of one or more expert reports in clinical negligence proceedings.
(2) In this paragraph—
“clinical negligence proceedings” means proceedings which include a claim for damages in respect of clinical negligence;
“clinical negligence” means breach of a duty of care or trespass to the person committed in the course of the provision of clinical or medical services (including dental or nursing services);
“expert report” means a report by a person qualified to give expert advice on all or most of the matters that are the subject of the report;
“proceedings” includes any sort of proceedings for resolving disputes (and not just proceedings in court), whether commenced or contemplated.”

--- Later in debate ---

[Lord Lloyd of Berwick]

My Lords, we come to the first of a group of amendments dealing with clinical negligence. The noble Lord, Lord Phillips of Sudbury, has asked that his Amendment 101A be degrouped, and I ask the same in respect of my Amendment 137. Amendment 15, in the name of my noble friend Lady Grey-Thompson, should cover clinical negligence as a whole. My amendment covers only the cost of expert reports, which, as one noble Lord said in Committee, is the very least that should be covered by legal aid. If my amendment succeeds, it will not in any way pre-empt Amendment 15. If that amendment then succeeds, as I hope it will, then my amendment will lapse at Third Reading.

The difference between this amendment and many that have been debated in Committee—and, indeed, so far on Report—is that it will actually save money. The question is this: what is the best way of funding expert reports in clinical negligence cases? Unlike the previous amendment, that question is not likely to give rise to any great emotion. The method proposed by the Government in Clause 45 would cost between £16.8 million and £25 million. The cost of doing exactly the same under legal aid would be between £6.3 million and £6.9 million. If those figures are correct, as I believe them to be, that in itself should be enough to commend the amendment to the Minister.

I will come back to justify those figures a little later, but first I need to say a little about the background. As I am sure noble Lords know, clinical negligence claims are funded in two ways: legal aid or conditional fee agreements supplemented, in a majority of cases, by “after the event” insurance, the purpose of such insurance being to protect the plaintiff against an adverse order for costs. Under the current law, the premium charged by ATE insurers is recoverable from the defendants, usually the National Health Service, even if the plaintiff loses. That system was introduced by Section 29 of the Access to Justice Act 1999.

The Government then listened to concerns. It is perhaps best that I should describe those concerns in the words of Mr Jonathan Djanogly in the other place. Referring to expert reports, he said:

“Such reports, which can be expensive, are often necessary in establishing whether there is a case for commencing proceedings, which raises particular issues if recoverability of ATE insurance is abolished. In responding to these concerns, clause 43”—

as it then was—

“provides, by way of exception, for the recoverability of premiums in respect of ATE insurance taken out to cover the cost of expert reports in clinical negligence cases”.—[Official Report, Commons, 2/11/11; col. 1027.]

If we will not cover clinical negligence as a whole, as my noble friend Lady Grey-Thompson would wish, we all agree that at the very least we should cover in one way or another the cost of expert reports. To that extent, Mr Djanogly was absolutely right. The trouble is that he has chosen the wrong way to set about it.

Lord Justice Jackson, in his lecture in Cambridge in September 2011, described the Government’s proposals in Clause 45 as,

“the most expensive and inefficient mechanism which it could be possible to devise in order to achieve”,

the Government’s objective. It is easy to see why he used such language. One has only to look at new subsections (2) to (4) in Clause 45. They require yet more regulations to be made by the Lord Chancellor, at the very time when we are trying to reduce the burden of regulations in civil litigation. The regulations are bound to be complex. If the maximum of the relevant part of the premium, as it is called, is too high, the regulations will not achieve their objective. On the other hand, if it is set too low the insurers are sure to find one way or another around it. It is surely much better, and certainly much simpler, to cover the cost of expert reports by the well worn path of legal aid.

I find it difficult to see why the Government have chosen not only the most complicated way of achieving their objective but the most expensive, which brings me back to the figures. In Committee, I put forward a simple calculation on instructions, as lawyers say. I took £5,000 as the average cost of reports in clinical negligence cases. If you assume that the plaintiff has a 50:50 chance of success, the insurer must charge at least £5,000 if he is to break even. To that he must add something to cover his overheads and profit. The figure that is usually taken for that purpose is 25 per cent, so the premium will not be less than £6,250. If you then assume that ATE insurance was used in half the cases settled by the National Health Service in 2010-11, you simply multiply £6,250 by 2,700 and get a figure of £16.9 million paid out by the NHS. It is as simple as that. Compare that to the £6.3 million to £6.9 million spent on achieving the same result by legal aid.

--- Later in debate ---

[Lord Wallace of Tankerness]

It is very evident. We want to encourage joint expert reports, but clearly there will be cases when that is not possible because there is a division of opinion. In our debates on Monday evening, the noble and learned Baroness, Lady Butler-Sloss, indicated some of the very conflicting expert reports in cases she had heard about shaken baby syndrome. That is not clinical negligence, but it is clearly an example of conflicting reports. Nevertheless, where it is possible to go towards joint expert reports, it should be encouraged.

My noble friend Lord Thomas of Gresford also quite properly drew attention to the fact that while we have quite rightly focused on some of the very serious cases and consequences of clinical negligence, in many cases of clinical negligence the damages could be under £20,000. Your Lordships may be aware that the Government have recently announced the extension of the low-value claims process for personal injury claims. We are working closely with the National Health Service Litigation Authority and claimant lawyer representatives to set up a pilot for dealing with low-value clinical negligence cases. These discussions are ongoing. They will be a valuable way of trying to identify ways in which some of the lower value cases can be dealt with.

My noble friend drew the attention of your Lordships’ House to the scheme in Wales under the NHS Redress Act 2006. Clearly that is something we would look at, although I note that it is tied in with a complaints and concerns regime and does not necessarily replace the existing judicial system. Claimants are still free to pursue a claim. I have always thought that it is one of the strengths of devolution that different ways are found in different parts of our United Kingdom to address issues such as this. It is only right that we look at the experience in different parts of the United Kingdom, and if there is something to learn we should be willing to learn it.

I am obliged to refer to government Amendments 26 to 30 and 58 to 67. They are technical in nature. My noble friend Lord McNally has written to all Peers describing their detail, so I do not propose to detain the House further.

We have listened to very strong representations in earlier debates about clinical negligence in the context of perinatal and neonatal cases. We have sought to address it through conditional fee agreements, which are increasingly part of the way in which clinical negligence cases are dealt with, and through the exceptional funding. We are ensuring that there is provision in other cases. As I have indicated, I regret that we have not been able to have a meeting of minds with the noble and learned Lord, Lord Lloyd of Berwick. I will place the Ministry of Justice’s calculations in the Library of your Lordships’ House. When those who wish to look at them have done the calculations and wish to come back to us, we will seek to give them a response. In these circumstances, I ask the noble and learned Lord to consider withdrawing his amendment.

[Lord Lloyd of Berwick]

My Lords, I address only my own amendment. It is very limited in scope and is designed to save money. I am very grateful for the support of the noble Lords, Lord Wigley, Lord Newton and Lord Faulks, the noble Baronesses, Lady Mallalieu and Lady Finlay, and other noble Lords. It seems to me that they have demonstrated conclusively that the financial argument in favour of this amendment is irresistible. It is simply not good enough for the Minister to say by way of answer that we must agree to differ on the figures. The figures supporting the case that I have put forward were put before the Government on 2 March. Indeed, they have had similar figures since we were in Committee, but they have not answered these and it is now 7 March.

If the Government are as serious as they keep on saying they are about saving money, they ought to accept this amendment. Even on their own figures, they would save £6.2 million. I wish to test the opinion of the House.

Legal Aid, Sentencing and Punishment of Offenders Bill

Lord Lloyd of Berwick Excerpts

Wednesday 15th February 2012 Lords Chamber

[Baroness Linklater of Butterstone]

My Lords, I shall speak to Amendments 186 and 187 which relate to Clause 128, which seeks to extend mandatory prison sentences to children under 18 who carry or threaten with a knife, except in exceptional circumstances.

There are two main underlying questions here which must be addressed. The first is whether mandatory prison sentences for children are the proper tool for sentencers in terms of proportionality or appropriateness. The second is what are the likely outcomes of such a proposal. For example: will these sanctions actually deter children who carry knives from carrying them; will imprisonment today prevent further knife carrying tomorrow; will our streets be significantly safer in the future; or will they help to address the issues which lead children to carry knives in the first place?

Mandatory sentencing for certain types of offence for children is, to quote the Justice Secretary,

“a bit of a leap for the British judicial system”,

a remark that has more than a touch of irony in it. The essence of appropriate, proportionate, constructive sentencing, particularly where children are concerned, is the ability of the sentencer to look at all the circumstances which lead a child to offend in a particular way, and in this specific context mandatory sentences would seem to run contrary to good sentencing practice. Furthermore, when sentencers are considering their decision in such cases, deterrence is not one of the statutory purposes of sentencing for juvenile offenders under the Criminal Justice Act 2003.

However, it should give comfort to an anxious public that sentencers in fact already have powers to imprison children convicted of carrying a knife in a public place for a maximum of two years. The point at issue here is that the crucial change this clause would make is to remove the discretionary element for the sentencer. This, I believe, is simply unjust where children are concerned, and is something no sentencer wants. Indeed, the chairman of the youth courts is on record as saying that he is not in favour of this proposed change.

We know from the most recent MoJ statistics that 85 children were given an immediate custodial sentence for offences involving possession of a knife or offensive weapon in the third quarter of last year. Custody consistently accounts for roughly 9 per cent of all disposals. In other words, the courts already have the necessary powers to deal with the problem and are using them, and they must be able to take into account all the circumstances of a child’s offence, and his or her needs, as well.

Children are not small adults and must not be treated as such. This is where the skill, knowledge and understanding of sentencers are extremely important. In fact, the number of children committing possession-related offences is going down, which suggests that the current sentencing framework is working appropriately, combined with knife-prevention programmes and the like. Therefore, it is clear that the proposed mandatory sentences for this type of crime where children are concerned are both unnecessary and inappropriate. In fact, despite public anxieties about the growth of possession of knives, the statistics issued by the MoJ also show that last year between July and September there were 904 offences involving possession of a knife, which was down 48 per cent on the same period three years ago. This suggests that, once again, the current sentencing framework is getting it right.

The riots of last year were and are a cause for real concern. We still do not really have a proper understanding of what lies behind those extraordinary events, which are mercifully atypical of public behaviour in this country. Those pockets of inner-urban areas where there is an undue amount of trouble, which buck this overall trend of falling knife crime, are now the subject of debate. I am always impressed by the skills of the police and other agencies in dealing with the issue, and we must work with them to deal still more effectively with it. But the figures overall simply do not justify a knee-jerk response of the introduction of mandatory imprisonment for children as a response to exceptional events like the riots, by simply changing the law as is proposed. Any change of any kind should only be the result of careful, thoughtful inquiry and discussion.

Equally important for society is to consider what in fact the outcomes of such sentencing are likely to be where children are concerned. Professor Ashworth put it quite bluntly in 2010, when he wrote that the evidence of any deterrence value of mandatory sentences of imprisonment for 16 and 17 year-olds is “non-existent”. The Halliday report back in 2001 equally found that there is no evidence to suggest that, for children, there was a link between sentence severity and deterrence effects. Rather, it is the risk of being caught that is most likely to affect behaviour. Indeed, Frances Done, the distinguished chair of the Youth Justice Board, said that the risk of being caught is,

“about twice as important as the punishment”.

A range of other studies has also come to the same conclusion.

The fact is that young children are often not capable of looking ahead and assessing the likely long-term effect of carrying a knife, or what that might mean to them and their families. Understanding consequences requires a degree of maturity that such children often simply do not have. Nor do they have independence of mind when they may be surrounded by others who are older who carry knives. Furthermore, there is a consensus among those who work in the field that what are referred to as fear and fashion have a great impact. I declare an interest as a trustee of the Esmée Fairbairn Foundation, which has funded work in this field that has been highly relevant and effective.

Three-quarters of the number of children who carry knives do so to protect themselves rather than to use them aggressively on another person. They do so because they are scared. It is a really sad thought that children should feel that way in this country. The corollary is that it becomes as fashionable to carry a knife as it is to have the latest mobile phone or iPod.

Complex social problems underlie knife carrying, and we must continue to do more to address them. That involves a lot more education and awareness-raising about the consequences. Mandatory four-month prison sentences involving two months in custody and two in the community on licence will do little to deal with those problems. That will achieve a purely punitive response. Although punishment is one element in the armoury of the sentencer, it must be balanced with the other purposes in sentencing for children, as every judge or magistrate knows.

I reiterate that short mandatory sentences for carrying or threatening with a knife is punishment as political gesture, which has little chance of achieving anything positive. Difficult as I know it is for him, but in the interests of justice, I urge my noble friend to look again at Clause 128. I beg to move.

[Lord Lloyd of Berwick]

My Lords, I support the amendment moved so well by the noble Baroness, Lady Linklater, but I would like to go further than she has. If the Committee accepts her amendments, as I very much hope that we will, we might as well go a little further and get rid of Clause 128 altogether, because it serves no useful purpose.

I start with subsection (1). Carrying an offensive weapon in public has been an offence under the Prevention of Crime Act since 1953—a long time ago. It carries a maximum sentence of four years. Incidentally, those were the days when the whole of one year's legislation could be included in a single volume of ordinary size, which one could read in bed, if one was so disposed. Compare that to what we have today: eight enormous volumes which one can hardly lift at all. That is by the way.

In 2003, the Court of Appeal issued some guidance in which it said that if the offensive weapon is used to threaten someone, the sentence should be at the upper end of the scale, approaching four years. I ask a simple question. What can be the purpose of creating a new offence of threatening with an offensive weapon when it is already adequately covered by the Prevention of Crime Act 1953 with exactly the same maximum sentence? Surely a sound principle of legislation in the criminal field, as in other fields of life, known as Occam's razor, is that offences should not be multiplied without good reason. I can think of no good reason for enacting Clause 128(1). If the noble Lord can think of some good reason, I hope that he will let us know what it is.

Exactly the same applies to subsection (2). Carrying a knife in a public place or on school premises has been an offence since the Criminal Justice Act 1988. It also carries a maximum sentence of four years. Again I ask: what can be the purpose of creating a new offence of threatening with a knife when it is already covered by the 1988 Act with exactly the same maximum sentence?

It would surely be fanciful to suppose that by the addition of the words “threatening” or “threatens” in the description of the offence anybody is going to be deterred in real life. In real life, those who carry knives do not pay much attention to what we say here in Parliament. The courts already have ample powers under the existing law to deal with those who threaten with knives. Let us leave it to the judges, because nothing more is needed.

--- Later in debate ---

Debate on whether Clause 128 should stand part of the Bill.

[Lord Lloyd of Berwick]

My Lords, I will not press the point now, but I shall certainly return to it.

Clause 128 agreed.

Legal Aid, Sentencing and Punishment of Offenders Bill

Lord Lloyd of Berwick Excerpts

Thursday 9th February 2012 Lords Chamber

Moved by

[Lord Lloyd of Berwick]

178B: Before Clause 113, insert the following new Clause—
“Effect of life sentence
In Chapter 7 of Part 12 of the Criminal Justice Act 2003 (effect of life sentence) omit section 269(5) to (7).”

[Lord Lloyd of Berwick]

My Lords, this amendment also concerns an innovation introduced by the Criminal Justice Act 2003. Prior to that Act it was the practice of the judges trying murder cases to write to the Home Secretary recommending the minimum period to be served in prison as punishment. The Lord Chief Justice always added his own comments, either increasing or decreasing the tariff, as it came to be called. The Home Office usually accepted the judicial recommendation but sometimes the tariff was increased by a year or two. I never in my experience remember it being reduced. Then came the case of Anderson in the House of Lords, in which it was held that Ministers could play no part at all in the fixing of the tariff; sentencing was for the judges and not for the Executive. Section 269 and Schedule 21 of the 2003 Act was the ministerial riposte to that decision. The purpose of Amendment 178B is to repeal Schedule 21.

Schedule 21 lays down an elaborate framework within which trial judges must work when fixing the tariff for a particular case. It has four different starting points: 15 years, 25 years, 30 years and whole life. It has seven different aggravating factors and seven different mitigating factors, all of which must be taken into account. The schedule was drafted within the Home Office without, as far as I know, any input from the judges. So far as I can remember, it was introduced at a late stage in the House of Lords without any debate in the House of Commons, but I may be wrong about that. In any event, the question arises: what was the reason for introducing Schedule 21? Why did the Government not leave the tariff to the judges? After all, it is the trial judge who fixes the tariff in all other life sentence cases, including manslaughter—why not murder?

--- Later in debate ---

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

I thank the noble Lord, Lord Beecham, for those comments. I approach any discussions on Schedule 21 with great trepidation because very early in my ministerial career, I was lured by the eloquence of the noble and learned Lord, Lord Lloyd, into agreeing with him about some of the flaws in Schedule 21, only to be hauled over the coals when I got back to the department and told that this was not departmental policy and I was not to listen to such siren voices.

I think the noble and learned Lord, Lord Lloyd, knows that both the Lord Chancellor and I—importantly, and less so—come instinctively to the view that judging is best left to the judges. This debate has taken place within this context. I am very grateful to my noble friend Lord Carlile for his intervention because he pointed out that what we are debating is where the responsibility of Parliament is in setting a framework, while leaving, properly, to the judges the flexibility to handle that framework.

I am also grateful for the intervention of the noble Lord, Lord Blair, for two reasons. First, he made the unique point—certainly in this Bill—that he was going to shorten his speech because somebody else had made the speech earlier. All I say to the rest of the House is: “Go thou and do likewise”. Secondly, he made the important point that I think will come back again and again in our debates—I wrote it down—that murder is “the crime by which the public judge the criminal justice system” above all others. Therefore, as the noble Lord, Lord Blair, said, it is right that Parliament has a duty to set a framework in these matters.

I take the point of the noble Lord, Lord Thomas, that it may seem an artificial framework, but in putting forward the 2003 Act Parliament allowed judges the necessary discretion to arrive at any minimum term from any starting point, which allows exceptional cases for minimum terms to depart from the norm. It is not as inflexible as is suggested. The 2003 Act puts in place arrangements for all minimum terms to be imposed judicially—something which I think has general approval. However, Parliament took the view at the time that it was right to have statutory guidance on sentencing for murder. The guidance provides for consistency of approach but still gives the court the necessary discretion to deal with each case appropriately.

I note what the noble and learned Lord, Lord Lloyd, said about the Sentencing Council and I pay tribute to its work, but the Government still believe, as Parliament believed in 2003, that it is right that Parliament should remain responsible for sentencing guidance for murder. It is for Parliament to reflect what circumstances should be considered as particularly or exceptionally grave for this, the most serious of crimes. With that explanation, I urge the noble and learned Lord to withdraw his amendment.

[Lord Lloyd of Berwick]

My Lords, I am grateful to the noble Lord and I am particularly grateful to the noble Lord, Lord Thomas. If it is right for Parliament to give such guidance, how did judges get on before 2003? The answer is that they managed perfectly well. The only effect of the rigid 2003 framework has been to increase the average sentence—I repeat the figure—from just over 13 years to 17.5 years. I do not suppose that anyone did an impact assessment before the 2003 Act was passed, but in my submission it cannot be right that we should suddenly increase the average by so large an amount without considering whether the framework is responsible for it and considering again whether that increase is actually justified.

The noble Lord, Lord Carlile, who made the main objection to this suggestion, has said that the tariff provides valuable help to counsel in advising what the likely sentence will be, but how did counsel manage before the 2003 Act? The answer is that they managed perfectly well and could manage perfectly well even today without Schedule 21. I can see that I have not persuaded enough of your Lordships, and in the mean time, I beg leave to withdraw the amendment.

Amendment 178B withdrawn.

--- Later in debate ---

[Lord Goodhart]

My Lords, I was not involved in criminal law during my practice as a barrister, but I became very interested in IPPs in 2009 because we were then dealing with what became the Coroners and Justice Act. I became particularly concerned at this because Dame Anne Owers, who was then the Chief Inspector of Prisons, together with the Chief Inspector of Probation had written an absolutely devastating report on the defects of IPP. The defects disclosed in the inspector’s report are several. There is a lack of accurate pre-sentence reports on prisoners, which has led to a number of unjustified IPP sentences being imposed on people who should not have had them applied at all. There is a lack of resources for the Parole Board to enable it to determine the fate of prisoners after the prisoners have passed their tariff date. This means that the prisoners may languish for months or even years in prisons where they can not get the training that they require before they can apply for release, so prisoners under IPP are serving what is potentially a life sentence.

There have been some improvements of IPP as a result of amendments made in 2008 to the Criminal Justice Act 2003, but those improvements were not enough. By 2009, it was clear in my view that IPP was a disaster. It could work only with a lot more money put into it; if it did not have that money, it was grossly unfair to at least some of the prisoners. The Parole Board does not have the money that it needs and, as matters now stand, it will not for the foreseeable future.

I am going to repeat something that I said in a debate in 2009 because it covers my views now. I said:

“The IPP is wrong in principle and wrong in practice. English courts have a long-standing system of sentencing. Under that system, only the most serious offences can be punished by life imprisonment. It is unnecessary and wrong to impose a de facto life sentence on convictions for an offence which does not carry the life sentence. The IPP is even more wrong in practice. It is wrong because many pre-sentence assessments are inadequate and lead to the imposition of IPPs on those who should not be subject to it. It is wrong because many IPP prisoners, especially in local prisons, have no access to training, without which they cannot get a hearing before a Parole Board panel”.—[Official Report, 28/10/09; col. 1249.]

Little has been done to correct the situation that was so clearly stated by Dame Anne Owers and her colleague. Now we have Clause 117 of the LASPO Bill and some further amendments from the Government. These are not good enough. What would be good enough is Amendments 179ZA and 179ZB in the names of my noble friend Lord Thomas of Gresford and the noble Lord, Lord Ramsbotham, which are nearly identical; I hope that they will be merged in time for Report. What the amendments would do has already been explained to your Lordships: they would limit extended sentences only to cases where it had been shown that there was a strong and immediate probability, based on clear and competing evidence, that the prisoner would commit a serious violent or sexual offence.

Indeterminate sentences are deeply unsatisfactory. Amendments 179ZA and 179ZB come more than close enough to this test and I strongly support them. I also strongly support other amendments including Amendment 180, to which I am one of the signatories.

[Lord Lloyd of Berwick]

My Lords, the real scandal is that IPP sentences have gone on for so long. The previous Government had the chance to do something about them in 2008, as the noble Lord, Lord Goodhart, has indicated, when it was already obvious that IPP sentencing was going badly wrong. I remember tabling an amendment at that time to raise the bar and therefore reduce the number of those eligible for IPP sentences. The noble Lord, Lord Bach, was sympathetic but met me only half-way. The Conservatives, I am sorry to say, opposed the amendment. As a result, we have the situation in which we now find ourselves. I entirely share the indignation so well expressed by the noble Lord, Lord Ramsbotham. I add only that in my view something must be done, and done soon.

[Lord Beecham]

My Lords, it is quite clear that more people are serving longer sentences under the system introduced by the previous Government than was anticipated. It is also clear that insufficient resources were devoted to meeting the requirement that people should undergo training and courses, on programmes to be provided within the custodial setting, as a condition of release. As the Prison Reform Trust has pointed out, the situation is even worse for prisoners who are mentally ill or suffer from a learning disability. There is certainly a very real problem with how prisoners are to be assisted in demonstrating their fitness to be released. That undermines what would potentially have been a valuable way of protecting the public. It undoubtedly caused the system to fall into disrepute. The fifth report of the Justice Select Committee of the House of Commons made a number of perfectly valid criticisms of those matters.

Not the least irony of the situation is that referred to by the noble Lord, Lord Wigley. He pointed out that the cost of keeping substantial numbers of people in prison is excessive in relation to the cost that would arise from investing in the necessary programmes to assist people to make their case and earn their release. I am bound to say that that position is likely to recur in conjunction with the Government’s proposals for extended sentences.

I do not dissent from the critique of indeterminate sentences, although I remain far from convinced that extended sentences necessarily resolve the problem. In that context, will the Minister indicate in replying what additional resources are planned for rehabilitation and the like under the new system? How will people who remain under the old system be dealt with? As has rightly been pointed out, a substantial number are still in that position.

I do not know whether the Minister is aware of the Answer given by the Minister in the House of Commons to a Question from Andy Slaughter MP about the number of people who were likely to be retained in prison as a result of the extended sentence programme. That was a very illuminating document. It showed that around 550 people a year would be sentenced and treated in that way, so that over 10 years 5,500 people could be in the same position as those who were sentenced under the previous regime. That is a formidable figure and, as the noble Lord, Lord Wigley, implied in respect of the existing system, a very costly one. I am not aware of any impact assessment or analysis of the cost of that new proposal. I do not know whether the Minister can direct me to any such analysis. In any event, the figures suggest a very significant cost.

Having said that, I have difficulties with various amendments that are being proposed. In particular, as has already been mentioned by the noble Lord, Lord Ramsbotham, it is asking too much, even if the system were to receive an injection of money, for courses and the like to be laid on in such numbers and in so short a time as to meet the targets that some of the amendments suggest. Therefore, the amendment of the noble Lord, Lord Wigley, to require that within 30 days of the Act coming into force prisoners must have,

“access to relevant rehabilitation programmes”,

or be released simply does not seem realistic.

--- Later in debate ---

Essentially, the Opposition cannot therefore support most of the amendments in the group, although we would certainly endorse the view—as the noble Lord, Lord Ramsbotham, suggested—that there ought to be a report to Parliament on the plans for release and how they are to be funded.

[Lord Lloyd of Berwick]

I am grateful to the noble Lord who is pointing out all sorts of difficulties. I am bound to say that I would be happier if he could at least feel the same sort of indignation that some of us feel at what has already gone wrong, and support the need to do something about it now. That is for the Government to do.

[Lord Beecham]

I share that view. I had hoped that I had made it clear that I think the previous Government did not invest anything like sufficient resources to fulfil their intentions. The intentions were reasonable but the means to fulfil them were not provided. That has to be acknowledged. However, I am afraid that the present Government are, to an extent, following the same course, if they do not look to avoid repeating the experience of under-resourcing a system that on their own figures is likely to lead to substantial numbers of people being held for a very long period—longer than is necessary for their good or society’s good—although there will always be some people who will have to be held for a long period.

--- Later in debate ---

Debate on whether Clause 114 should stand part of the Bill.

[Lord Lloyd of Berwick]

My Lords, I say at once that Clause 114 seems to be wholly pointless. The only explanation for it that I can imagine is that it was a quid pro quo for the abolition of the indefinite sentence for public protection in Clause 113, in case somebody should say that the Government were getting soft on crime. Since the official position of the Opposition is not to oppose Clause 113—I am very glad about that—I suggest that the Government might now look again at dropping Clause 114.

In brief, the clause states that if a person commits an offence for which he serves 10 years in prison, and then commits another offence for which he might expect 10 years in prison, the judge must give him a life sentence unless this would be unjust. It has been called a mandatory life sentence, but of course it is nothing of the sort. The clause explains that the judge has discretion to do what is just, so there is no “must” about it. So what on earth is the point of Clause 114?

Considering the sort of facts that might give rise to a life sentence under Clause 114, the judge would almost certainly have a life sentence in mind anyway. If he does impose a life sentence, Clause 114 serves no purpose. If he does not, because it would be unjust to do so, Clause 114 adds nothing. Have the Government made any estimate of the number of people who will get a life sentence under Clause 114 who would not be given a life sentence anyway under the existing law? There is no point in replicating existing law with ever more offences.

Is Clause 114 perhaps meant to be a deterrent? Let us consider that for a moment and imagine a man coming to the end of his 10-year sentence in prison. How will he hear about Clause 114? Will he be warned by his solicitor, or will he hear about it from a fellow prisoner who is something of a barrack-room lawyer? The idea that this would ever act as a deterrent is ludicrous.

In debating a previous amendment, I warned of the dangers of Parliament becoming too closely involved in the sentencing process. At one extreme, it results in the sort of sentencing complexity of which we have plenty of evidence in the Bill. At the other, one finds clauses such as Clause 114 which, as far as I can see, serve no purpose at all and simply clutter up the statute book.

[Baroness Mallalieu]

My Lords, I support the noble and learned Lord. “Pointless” is a very good description of Clause 114. It is pure political posturing. That is the trouble in the area of criminal law; there has been too much of this going on in recent years, and to little effect. Why on earth can we not leave the detailed business of sentencing in cases such as this, with the guidelines that already exist, to the people who hear the evidence and see the cases: namely, the judges?

We have seen far too much interference with the criminal law. As a practitioner, I go along to courts and am asked by people in the robing room, “How on earth did you let this happen? Didn’t you speak up and point out that it’s a waste of time or has consequences that are totally adverse to the interests of justice?”. Well, I am speaking up, but without a great deal of hope that my words will fall other than on stony ground. Surely we can avoid, at the very least, complicating the statute book with clauses such as this which do not do anything.

--- Later in debate ---

[Lord McNally]

When is the noble Lord going to go down the corridor and talk to Sadiq Khan and the other spokesmen from the Labour Party and engage in a serious debate about penal reform?

[Lord Lloyd of Berwick]

My Lords, I am grateful for the support of those who have spoken, particularly the noble Baroness, Lady Mallalieu, with her reference to political posturing, which to me seems to be what this clause really is; on this occasion for the support of the noble Lord, Lord Carlile, for which I am always grateful, and for that of the Official Opposition. But once again it was my noble friend Lady Stern who put her finger on it with those extraordinary statistics that she gave us of the comparison between those serving life sentences in England and Wales and all other countries. We seem to have a thirst for life sentences, and that bears out the only statistic that I gave earlier. I shall say it again: we have more people serving life sentences and indeterminate sentences than the whole of the rest of Europe put together.

Clause 114 agreed.

Legal Aid, Sentencing and Punishment of Offenders Bill

Lord Lloyd of Berwick Excerpts

Thursday 9th February 2012 Lords Chamber

Moved by

[Lord Lloyd of Berwick]

178A: Before Clause 113, insert the following new Clause—
“Duty to release certain prisoners serving a whole life sentence
In Chapter 2 of Part 1 of the Crime (Sentences) Act 1997 after section 28 insert— “28A Duty to release certain prisoners serving a whole life sentence
(1) In the case of a life prisoner who has been made subject to a whole life order, and has served 30 years of his sentence, it shall be the duty of the Secretary of State, with the consent of the Lord Chief Justice and the trial judge if available, to refer the case to the Parole Board.
(2) If the Parole Board is satisfied—
(a) that it is no longer necessary for the protection of the public that the prisoner should be confined, and(b) that in all the circumstances the release of the prisoner on licence would be in the interests of justice,the Parole Board may direct his release under this section.(3) Where the Parole Board has directed a prisoner’s release under this section, it shall be the duty of the Secretary of State to release him on licence.””

[Lord Lloyd of Berwick]

My Lords, this is one of three amendments in my name in this chapter of the Bill. They are grouped separately but they all have one thing in common: like Clause 113, they are an attempt to undo some of the harm that was done by the Criminal Justice Act 2003. The introduction of indeterminate sentences for the protection of the public—now to be abolished—has had disastrous consequences, as we all know, to which we will later come in further amendments.

The IPP sentence is but one example of the harm that has been done by the 2003 Act. Amendment 178A deals with another example. It concerns the 41 prisoners currently serving whole life sentences, who have no hope of being released except on compassionate grounds. If you ask me how many such prisoners have ever been released on compassionate grounds, the answer is none.

The position was very different before the 2003 Act came into force. In those days, the tariff was fixed by the Home Secretary. In the most serious cases he would impose a whole life sentence, as judges do now, but there was this vital difference: it was then the settled practice of successive Home Secretaries to review such sentences after 25 years. If the prisoner had made exceptional progress and there was no other purpose in keeping him in prison, he would be considered for release.

The question is why that humane practice was not re-enacted when the 2003 Act came into force. It cannot, one imagines, have been deliberate unless the settled practice of Home Secretaries had proved to be unsatisfactory in some way, and there is no evidence of that, so it must have been overlooked. We now have a chance to put it right. We can give these 41 prisoners serving whole life sentences the same chance of a review as they had before the 2003 Act came into force. Of course it does not mean that they will be released because it would depend on the circumstances of each individual case, but it does at least mean that they will have a hope of review. That is the very limited purpose of this amendment.

--- Later in debate ---

[Lord Beecham]

My Lords, there is certainly a unanimity of view in the debate thus far that the present system is not satisfactory. It should perhaps be pointed out that there have been very few instances of compassionate release, including three cases arising out of the Good Friday agreement and the case of the East End criminal, Reggie Kray, but that is a little beside the point.

My problem, such as it is, with the noble and learned Lord’s amendment, is more in the rubric than in the intention. It is clear that there will always be some cases in which release will not and should not occur. I suspect that there will be few, but there will be some. The public need to be persuaded that the people who are not reformed and who might well continue to constitute a danger will not be released. There will always be a small number of those.

The amendment refers to the,

“Duty to release certain prisoners serving a whole life sentence”.

I can see whence that comes—that is the end of the process, as it were, which would be acceptable—but as it stands, the wording seems to imply an implicit or explicit duty to release prisoners serving a whole life sentence instead of posing the duty to consider the release. With respect to the noble and learned Lord, that would have been a better way to phrase the amendment and would give the public more assurance than what appears on the face of it—and I appreciate that it is only on the face of it—to be an absolute duty to release certain prisoners serving a whole life sentence.

[Lord Lloyd of Berwick]

That ignores the function of the Parole Board, which has the discretion, not the Minister.

[Lord Beecham]

That is precisely my point. The amendment rightly envisages a duty to refer to the Parole Board, but on the face of it it looks as though there is a duty of release ab initio. That is not the noble and learned Lord’s intention—and I say this with great respect, because of course he is a very eminent and learned judge—but it might have assisted his case if it had been put in that way. That point in a sense echoes the point made by my noble friend Lord Borrie.

It is sensible to restore a situation in which a release after 30 years can be contemplated and, after due process, properly agreed. If the Parole Board adjudges that it is safe to release someone, that should be the Secretary of State’s duty at that point. In fact, relatively few people are serving these sentences—I think there are 40 prisoners, and that 20 have been sentenced in that way in the last 10 or 12 years as a result of their trial and the conditional decision at the time—so I think there is a way forward on this, with a slight modification of the way in which the amendment is phrased, and I hope that the Government will look sympathetically on it while clearly bearing in mind that there will be some prisoners for whom, in the end, there will be no hope of release. One hopes that there will not be many in that category, but there will be some, and that ought to be recognised from the outset.

[Lord McNally]

My Lords, the noble Lord, Lord Beecham, referred to the unanimity of view in the House during this debate. I sometimes think that perhaps a joint meeting of both Houses would be interesting when we discuss these issues. Nevertheless, this House has a long and proud history of providing a platform for penal reform, and it has certainly lived up to that reputation today.

I make one or two preliminary comments. The noble Baroness, Lady Stern, referred to the campaign to abolish the death penalty. Like many in this House I am old enough to remember that campaign, and I remember that part of it, which swung many MPs, was the proposal that life would mean life. It has always been a problem area, particularly for those who have committed the most horrific crimes.

The story that the noble Lord, Lord Ramsbotham, told was very encouraging in that it told of someone’s capability do good, even after the most horrific crimes. However, that capacity to do some good would not convince me to release a dangerous person into the community—and it is that test that has to be passed. I would hope that even those who spent the rest of their lives in jail would find within their confinement a capability to do good.

I think that we will return to this theme on a number of occasions in the next hour or two, as various amendments come up. The noble Baroness, Lady Stern, asked what sort of penal system and what sort of values we should have, and the noble Baroness, Lady Mallalieu, called for courage. Courage is certainly needed, but so is a practical use of the art of the possible. Penal reform is always a balance between humane treatment of those who are in prison, concern for the victims of crime and the retention of public confidence in our system of justice. Unless we can convince the public of the elements of punishment and public protection within the system, we will not get their buy-in to rehabilitation, which as I have often said from these Benches is very much part of what I and the Lord Chancellor see as built into the system. However, unless we can carry colleagues and the public with us and retain public confidence, we will not get the kind of reform that we want. I freely acknowledge that carrying through some of these reforms is an exercise in the art of the possible in what will win the confidence of the other place and the public.

As the noble and learned Lord said in introducing his amendment, things were different some time ago. One good thing to my mind about recent reforms was that all tariffs are now judicially determined. I am one of those—and I share it in other cases as well—who thinks that we should rely on judicial judgment in these matters. The imposition of minimum terms and whole life orders is now a matter that is exclusively for the judicially. I was very interested in his views on the judgment of the European Court of Human Rights. I tend to agree with the noble Baroness, Lady Stern, that when the Court gets it right it does not get much coverage. I am sure that if it reverses its decision, it will be page 1 again. Nevertheless I was a little worried that both the noble Lord, Lord Pannick, and the noble and learned Lord seem to think that a majority verdict was somehow of less value. A verdict is a verdict, and a win is a win. I am sure that he has been on the winning side a few times in those circumstances—I knew I was tempting fate.

[Lord Lloyd of Berwick]

Yes, the Minister was tempting fate, but I am very grateful to him. We said that it was by the very slenderest of majorities because three judges decided one way, three judges decided the other way and the seventh judge decided with the majority on a reason that, at any rate, I simply cannot understand. It seemed to have nothing to do with the case. Anyway, we will know when it goes to the Grand Chamber.

--- Later in debate ---

[Lord McNally]

From William Wilberforce to Sydney Silverman campaigns have been fought, and fought successfully. I am sure that this debate will be repeated in debates on other amendments, but I can only make the point so many times that politics is the art of the possible. We believe that the package of reforms here carry forward some of the interests of some of the Members of this House. However, they must also recognise that wider public opinion—and wider political opinion—does not share all their ambitions at this moment. We are all involved in debate and political education, and I welcome this debate as a contribution to that, but I have to deal with political reality as well.

[Lord Lloyd of Berwick]

My Lords, I am grateful to the Minister for his reply. The views of the House today could not really be more unanimous. It is clear that every single person who has spoken is in favour of this idea. I would like to mention them all but I shall mention particularly the right reverend Prelate the Bishop of Chichester, as he happens to be—

[Lord McNally]

I hate to intervene, especially in the middle of a tribute being paid to a Bishop, but I wonder whether the noble and learned Lord would ponder my suggestion that a joint meeting of both Houses would produce such unanimity. The Members at the other end actually have to face the public in a way that this House does not.

[Lord Lloyd of Berwick]

Indeed. In a sense, that is the only point that the Minister has made, to which the answer surely is that it is occasionally possible for the House of Lords to lead the way, to influence the other place and even to influence the public. If that were possible, this would be an opportunity to do it. I would like to mention particularly the observations of the noble Baroness, Lady Stern, with all her experience and knowledge of this subject, and the right reverend Prelate because he is my diocesan bishop and I feel therefore that I owe him that duty. I beg leave to withdraw the amendment.

Amendment 178A withdrawn.

Legal Aid, Sentencing and Punishment of Offenders Bill

Lord Lloyd of Berwick Excerpts

Monday 16th January 2012 Lords Chamber

Moved by

[Lord Lloyd of Berwick]

28: Schedule 1, page 115, line 5, at end insert—
“Clinical negligence(1) Civil legal services provided in relation to the obtaining of one or more expert reports in clinical negligence proceedings.
(2) In this paragraph—
“clinical negligence proceedings” means proceedings which include a claim for damages in respect of clinical negligence;“clinical negligence” means breach of a duty of care or trespass to the person committed in the course of the provision of clinical or medical services (including dental or nursing services);“expert report” means a report by a person qualified to give expert advice on all or most of the matters that are the subject of the report;“proceedings” includes any sort of proceedings for resolving disputes (and not just proceedings in court), whether commenced or contemplated.”

[Lord Lloyd of Berwick]

My Lords, we now to come to the first of 60 or so amendments dealing in detail with Schedule 1. It is safe to assume that all of those amendments would be likely, in one way or another, to add to the cost of legal aid. The amendment now before your Lordships is different. It is true that Amendment 28 would add £6 million to the legal aid bill, but, coupled with Amendment 139, to which I shall also be speaking, it will save the taxpayer at least three times that amount, and probably a great deal more.

It is because of that special feature that I wrote to the noble Lord, Lord McNally, on 16 November and asked to see the Lord Chancellor and the Minister in charge of the Bill in the House of Commons. I received a very courteous reply from the noble Lord, Lord McNally, on 1 December, for which I am grateful. It refers to the point which I had raised in some little detail, but, if he will forgive me for saying so, it does not actually answer the point. It is a point, I hasten to add, which is not my point, but is a point which has been made by Lord Justice Jackson. I would not normally refer to the views of a member of the judiciary in moving an amendment, but as he is the author of the report on costs in litigation which forms the whole basis of Part 2 of this Bill, it seemed right to make an exception in this case.

So what, after all that, is the point? As I suspect your Lordships know all too well, clinical negligence cases are currently funded in two ways: either by legal aid or by conditional fee agreements—CFAs—supplemented in almost every case by “after the event” insurance. The purpose of taking out the “after the event” insurance is, of course, to cover the claimant against an adverse order for costs. The premium is paid by the claimant, as one would expect, but since 2000, when the 1999 Act came into force, the cost of the premium has been recoverable from the defendant—usually, although by no means always, the National Health Service—whether the claimant wins or not. That is the whole point.

It was hoped that in that way the cost of legal aid would be reduced. But of course it has not worked out, as these things seldom do, exactly as intended. The reason is the huge increase in the cost of taking out such insurance. It is now a major element in the cost of bringing clinical negligence proceedings. It is also a cost which, as I have said, currently falls on the National Health Service, one way or the other, and is therefore ultimately borne by the taxpayer.

Therefore, the Government’s original intention, as one can well understand, was that the cost of ATE premiums should cease to be recoverable from the National Health Service. That was clear enough; whether one agrees with it perhaps does not matter. However, the Government then listened to representations and decided to make an exception in the case of expert reports. They had a principle but then made an exception. The point was made very clearly by the Minister in the other place, Mr Jonathan Djanogly, when he said:

“One particular aspect of clinical negligence cases is the significant up-front costs involved in obtaining expert reports. Following consultation, the Government are seeking a tightly drawn power in the Bill to allow the recoverability of after-the-event insurance premiums in clinical negligence cases”.—[Official Report, Commons, 31/10/11; col. 710.]

Perhaps even more clearly, on 2 November he said:

“Such reports, which can be expensive, are often necessary in establishing whether there is a case for commencing proceedings, which raises particular issues if recoverability of ATE insurance is abolished. In responding to these concerns, clause 43”—

Clause 45, as it now is—

“provides, by way of exception, for the recoverability of premiums in respect of ATE insurance taken out to cover the cost of expert reports in clinical negligence cases”.—[Official Report, Commons, 2/11/11; col. 1027.]

I imagine that we would all agree that, if clinical negligence claims are not to be covered in toto by legal aid, there should at least be legal aid to cover the cost of expert reports, including legal advice, without which a claim for clinical negligence simply cannot get off the ground. I suspect we would all agree with that. The trouble is that the Government have set about achieving that result in the wrong way. You have only to look at Clause 45, which is the subject of the other amendment to which I am speaking, to see why. In a lecture given in Cambridge on 5 September last year, Lord Justice Jackson did not mince his words. He described Clause 45 as,

“the most expensive and inefficient mechanism which it is possible to devise in order to achieve”—

the Government’s “policy objective”. Those words are repeated in the recent report of Professor Cookson of King’s College in paragraph 8.3.4.

In the article in the Guardian to which the noble Lord, Lord Howarth, referred, the Lord Chancellor said that it was his ambition to simplify and deregulate civil litigation. We would all say amen to that; nobody could seriously quarrel with it. However, if we look at Clause 45—starting with “unless” at line 29—we find the exception to which the Minister in the other place referred in the passages which I have read out. How is that exception to be achieved? The Lord Chancellor must make regulations concerning all manner of things, including the contents of the policies and the maximum premiums to be charged in any policy. The subject matter to be covered by these regulations takes eight sub-paragraphs and 20 pages of text. One can only imagine what the regulations themselves would look like if the subject matter is as lengthy as that. If the Lord Chancellor wants to simplify and deregulate civil litigation, surely Clause 45 is not the way ahead. It would be far simpler and better to allow legal aid to remain for the very limited purpose of obtaining reports in clinical negligence cases.

--- Later in debate ---

[Lord Wallace of Tankerness]

I thought that I was going to be diverted down the tracks of coroners’ inquests. However, I take the point which my noble friend makes. We believe that the relevant provision already covers the matter. He draws a comparison between measures within the same clause. We will have an opportunity to return to that matter when we come to Clause 9. It is only right that I should consider the point, which I am sure was made with helpful intent.

The question of relative costs has been raised and one or two noble Lords have pointed to the reservations made by the NHSLA. It is fair to point out that as regards the King’s College research which has been referred to, the Department of Health has confirmed that in the context of the reforms as a whole, which include all the Jackson reforms, the costs to the NHS are expected to reduce substantially and not to increase. It is important to look at the matter in the context of the overall impact of our reforms: namely, that the costs will decrease.

The noble and learned Lord, Lord Lloyd, has sought to contrast what he believes will be the cost of his amendment with the costs he believes will be incurred under Clause 45(2). He will be able to reply shortly. He quoted my honourable friend the Minister, Mr Djanogly. I think that the noble and learned Lord recognised that Clause 45(2) is a clear attempt to address the concerns which are shared not just by him and me but by the Committee as a whole. His view is that it would be more expensive to go down this route than to adopt his amendment. One of the differences between our proposal in Clause 45 and the use of legal aid for clinical negligence is that it would be restricted to those who are otherwise eligible for legal aid where the ATE power of recoverability will provide access to justice to everyone.

I think that the noble and learned Lord acknowledged my next point when he gave his figures. We do not readily recognise his figures. We feel that the costs of the ATE market as adjusted would not give rise to the costs which he indicated. I noted all his figures very carefully, but I probably was not quite keeping up with them. He said that he did not expect me to comment on the detail of his figures today but asked me to provide an answer. That is the least one can do, given the amount of work that the noble and learned Lord has clearly put into this. As I say, we do not readily recognise the case that he put forward. However, we must undoubtedly reflect on the issue. It would not necessarily make sense to embark on something which led to considerably greater cost when the overall object of the reforms is to reduce cost. I hope that with the assurance I gave at the beginning that we will reflect seriously on all the important issues that have been raised, the noble and learned Lord will withdraw the amendment.

[Lord Lloyd of Berwick]

My Lords, as was to be expected, the debate has gone far wider than the limited purpose of my amendment because this is the first opportunity that we have had to consider clinical negligence as a whole, and there are other amendments in this group.

So far as my amendment is concerned, everyone has accepted that expert reports are the key to the problem. The question then is: what is the best way to fund expert reports? I am especially grateful in that connection for the support of the noble Lord, Lord Faulks, given all his experience in this field. My impression was that his view is the same as mine and, indeed, that of Sir Rupert Jackson, whereby Clause 45 is not the way ahead. That is the purpose of my amendment. I am also especially grateful to the noble Baroness, Lady Mallalieu, for saying that the amendment is only the minimum required. On that I entirely agree. If clinical negligence generally is to be covered, my amendment will fall away, but it is the essential safeguard if there is not to be wider coverage by legal aid of clinical negligence cases.

Of course I will not press the amendment because I cannot do so until I know the Government’s answer to the figures that I have put forward. However, if those figures turn out to be correct, as I believe they will be, then Clause 45 is not the way ahead and it is far better from the point of view of saving money for the taxpayer to adopt the limited degree of legal aid required for expert reports. I look forward to the answer to the figures I put forward and, in the mean time, beg leave to withdraw the amendment.

Amendment 28 withdrawn.