Social Action, Responsibility and Heroism Bill

Debate between Lord Lloyd of Berwick and Lord Faulks

Monday 15th December 2014 Lords Chamber

[Lord Faulks]

I am not sure that off the top of my head I can think of a particular legislative provision that provides reassurance, but part of the function of much legislation is to provide reassurance and protection to the vulnerable. There is nothing novel about producing a piece of legislation which, in a difficult area, provides some clarity and a modest degree of reassurance in an area of considerable uncertainty.

[Lord Lloyd of Berwick]

My Lords, I thank noble Lords who have supported this amendment. I want to say a word about the contribution of the noble and learned Lord, Lord Walker of Gestingthorpe. He said that, as the Bill changes the common law, it ought to have been referred in the first instance to the Law Commission. I entirely agree that from time to time it has not been at all easy to discover what the government case has been, but their final position is that it does not change the common law in any way; it merely confirms what was already the common law and what was included as Section 1 of the Compensation Act 2006. I hope that that answers the noble and learned Lord’s difficulty.

So far as the rest is concerned, I shall say nothing more about the arguments put forward by the noble Lord in answer to the debate. They have already been dealt with very fully. However, I want to say a word about the attitude of the Opposition to the amendment. As I understood it until 2.15 pm this afternoon, the Opposition would be supporting the amendment. That was my clear understanding.

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[Lord Faulks]

My Lords, I turn now to Clause 4 and the amendment we have tabled relating to it. We noted the concerns raised in Committee by the noble Lords, Lord Aberdare and Lord Pannick, and my noble friend Lord Attlee that the current definition of “heroism” could be taken to exclude the actions of trained first aid volunteers. That is because the current clause says that a person acts heroically if he intervenes to help somebody in danger without regard to his own safety or other interests. Organisations such as St John Ambulance and the British Red Cross would always train their volunteers to have regard to the potential risks to themselves and others before intervening.

I had a very constructive meeting with representatives from those organisations after Committee to discuss these matters further, which culminated in the amendment that we are bringing forward today. We agreed that the simplest thing to do would be to remove the final 11 words of the clause. This will put beyond doubt that the clause applies to anybody who intervenes in an emergency to help somebody in danger, regardless of whether they acted entirely spontaneously or weighed up the risks before intervening. What is more, St John Ambulance and the British Red Cross, as leading first aid organisations reaching hundreds of thousands of people a year, have said that if the amendment is agreed they will use the opportunity to encourage more people to come forward to act in emergencies. I am very grateful to them for their offer of assistance, which will help to reassure many new first aid volunteers that they can intervene in emergencies secure in the knowledge that the law will be on their side. I beg to move.

[Lord Lloyd of Berwick]

My Lords, I also have an amendment in this group. It may be convenient if I say what I have to say now. In many ways, Clause 4, which we are now dealing with, is the oddest of these three clauses. As drafted, it was strongly criticised by the Fire Brigades Union, St John Ambulance and the Red Cross, among others. To take the instance of the Fire Brigades Union, the clause goes directly contrary to advice that it has given for many years to people involved in a fire: to get out of the way of the fire as quickly as they can and to stay out. If they intervene to try to rescue somebody, then they are only likely to put in greater danger the firemen, who will have to come to their rescue as well.

This was pointed out as a difficulty—indeed, as a serious objection—in the other place, but no notice was taken of that criticism until at a very late stage in this House, when the noble Lord, Lord Faulks, gave notice of his amendment to leave out the last 11 words of the clause. Leaving out the last 11 words of this clause is undoubtedly a great improvement, but leaving out half a clause to save the rest of a clause is an unusual thing to do. It only demonstrates that the clause, like the rest of the Bill, was never properly thought out in the first place. In Committee I suggested that it looked like a clause drafted on the back of an envelope. I now think that that may be going too far in its favour. It must surely have occurred to someone at some stage that a clause that protects someone who takes no thought for his own safety, but does not protect someone who takes some thought for his own safety—that, as it was put elegantly, as always, by the noble Lord, Lord Pannick,

“protects the instinctive hero but not the thoughtful hero”—[Official Report, 18/11/14; col. 416.]

—is surely inherently ridiculous. Be that as it may, the objection to Clause 4 is essentially the same as that to Clause 2. The substance of Clause 4, as it will stand if the noble Lord’s amendment is accepted, is already covered by Section 1 of the Compensation Act 2006.

It is difficult to imagine a,

“person … acting heroically … to assist an individual in danger”,

who is not by that very act engaged in a “desirable activity” as envisaged by Section 1 of the Compensation Act. If so, this clause adds literally nothing to the existing law. If the noble Lord in his reply can think of a single example where the point I have made is not valid because something would be covered by this clause and not by Section 1 of the Compensation Act, I hope he will tell us. In the mean time, I submit that it adds nothing and should be rejected on that ground. In due course I will move my amendment too.

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[Lord Faulks]

My Lords, for the most part the Government’s amendment has been supported. The noble and learned Lord, Lord Lloyd, says that the fact that we had to remove nearly half the clause, because half of it was not worth while, indicates that the clause really was not worth while. That may not do entire justice to his argument, but we say that we responded to the burden of the argument. We listened to the debate and we consulted St John Ambulance. We certainly do not want to do anything that does not realise the main objective of the Bill, which is to encourage people to volunteer, to assist and to provide, if necessary, emergency assistance.

The Government will no doubt take very much to heart the criticism of the use of language made by the noble and learned Lord, Lord Walker. I explicitly do not promise to make any changes before Third Reading but I undertake to revisit the issue in case any further clarity can be attained by the use of “person” or “individual”.

However, I would say to anyone who is not a lawyer that Clause 4 is pretty clear. It states:

“The court must have regard to whether the alleged negligence or breach of statutory duty occurred when the person was acting heroically by intervening in an emergency to assist an individual in danger”.

I am really not sure that that is a terribly difficult concept to understand. I think that men and women would understand what was meant to be conveyed by that, and it is perfectly reasonable to ask the court to pay regard to it. The noble and learned Lord, Lord Brown, may well be right that judges would take that into account. Certainly most judges would.

However, the outcome of any negligence case, as those of us who have laboured in that particular vineyard will tell the House, is never clear, particularly when there is a very badly injured claimant. Judges sometimes do not sufficiently bear these matters in mind. The court must now “have regard”—that is all we ask—to whether there is heroism as described. We do not believe that heroism needs further definition or examples. We think that judges should be able to recognise it when they see it.

I submit that, while taking on board the criticism of some aspects of the drafting, this very much maligned Bill and this clause serve a sensible, common-sense purpose, and I ask the noble and learned Lord not to press his amendment.

[Lord Lloyd of Berwick]

Before the noble Lord sits down, I wonder whether he would just deal with the principal point made both by myself and by the noble Lord. In what respect does this clause add anything to Clause 2, as it will now stand part of the Bill, or to Section 1 of the Compensation Act 2006? Will he please give us one single example?

[Lord Faulks]

I will give the same answer that I gave in relation to the distinction between the Compensation Act and this Bill, which is that the Bill says that the court “must have regard”. That is a distinction. I said in Committee that there may well be an overlap between Clauses 2 and 4. I do not say that they are wholly distinct; they convey an accumulation of concepts which are readily understood, and a judge may find it possible to bear in mind both Clause 2 and Clause 4. That fact does not mean that Clause 4 cannot, in appropriate circumstances, serve a useful purpose.

Public Protection Sentences

Debate between Lord Lloyd of Berwick and Lord Faulks

Wednesday 3rd December 2014 Lords Chamber

[Lord Lloyd of Berwick]

To ask Her Majesty’s Government what is their response to the recent decision of the High Court in Fletcher and others v Governor of HMP Whatton and the Secretary of State for Justice that the Secretary of State is in breach of his public law duty in relation to the continued detention of prisoners detained under imprisonment for public protection sentences.

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

My Lords, the court did not find any breach of public law duty with respect to the continued detention of those serving imprisonment for public protection—IPP—sentences. The court did, however, find that the Secretary of State was in breach of his public law duty in relation to the provision of resources for the Healthy Sex Programme, a course designed for certain serious sex offenders. The Secretary of State has committed the additional funding necessary to remove the current backlog for places on the Healthy Sex Programme.

[Lord Lloyd of Berwick (CB)]

My Lords, the only defence to these proceedings was that the Lord Chancellor could not provide the courses that these prisoners needed to go on in order to come before the Parole Board because he did not have enough money. Does the Minister agree that if the Lord Chancellor were to exercise the power that he already possesses to change the release test for these prisoners, he could release forthwith up to 650 prisoners who were given tariff sentences of less than two years—some as little as three months—eight years ago, thereby saving £24 million a year that could then be spent on providing courses for the other prisoners who are waiting to go on them? Why has he not exercised that power?

[Lord Faulks]

My Lords, the noble and learned Lord has asked me this question before and I congratulate him on his tenacity. There are no current plans to review the release test. The release test is determined by the Parole Board. It decides when someone is safe to release. Attendance on courses can be evidence of their suitability for release. They can be released without attendance on the courses and attendance on the courses does not necessarily qualify them for release.

Social Action, Responsibility and Heroism Bill

Debate between Lord Lloyd of Berwick and Lord Faulks

Tuesday 4th November 2014 Lords Chamber

[Lord Faulks]

My Lords, this has been a very interesting, entertaining and helpful debate, in which a number of useful points have been raised. As I explained in my opening speech, our core aim in introducing the Bill is to provide reassurance to people who act in a socially beneficial way, behave in a generally responsible manner, or act selflessly to protect someone in danger that the courts will always take the context of their actions into account in the event that something goes wrong and they are sued.

The amendment tabled by the noble and learned Lord, Lord Lloyd of Berwick, seeks to prevent the Bill from receiving a Second Reading on the basis of two premises: first, that the subject matter of the Bill is already covered by Section 1 of the Compensation Act 2006; and, secondly, that the sole purpose of the Bill is not to make new law but to send a message to the courts, and that that is not a proper use of legislation. The Government do not accept that either premise is correct. As I explained, Clause 3 does change the law—albeit not in a major way—by requiring the courts to have regard to whether a person, in carrying out the activity in the course of which the alleged negligence or breach of statutory duty occurred, demonstrated a generally responsible approach towards protecting the safety or other interests of others.

In making that change, we want to ensure that the courts take a slightly broader view of the defendant’s conduct than at present by looking at whether a defendant’s approach to safety during an activity was generally a responsible one, taking into account all that he did or did not do. The court will be obliged to weigh that in the balance when considering the ultimate question of whether the defendant met the required standard of care. While that does not rewrite the law in detail, it is a substantive change. If it were to tip the balance in favour of the defendant in a particular case, then that is a result with which the Government would be happy.

Clauses 2, 3 and 4 also require the court to take particular factors into account. While, as I have said, Clause 2 relates to broadly similar territory to that in Section 1 of the Compensation Act, the approach that it takes is different. It requires the court to have regard to whether the alleged negligence or breach of statutory duty occurred when the person was acting for the benefit of society or any of its members. The fact that the fear of litigation remains so widespread almost a decade after Section 1 was introduced only goes to suggest that it has been ineffective and that firmer action, such as this, needs to be taken.

The noble and learned Lord, Lord Lloyd, said that I had paid scant regard to the Compensation Act in my opening remarks. Let me attempt to make good that omission. In her introduction to the Compensation Bill, the noble Baroness, Lady Ashton, said:

“The Bill will provide better safeguards for consumers of claims management services and will reassure those concerned about possible litigation that the law of negligence takes the social value of activities into account and that they will not be found liable if they adopt reasonable standards and procedures”.

After dealing with the regulation of claims management services, she went on to say:

“The Bill's provision on negligence reflects recent judgments of the higher courts. It makes clear that when considering a claim in negligence, in deciding what is required to meet the standard of care in particular circumstances, a court is able to consider the wider social value of … the context of which the injury or damage occurred. It provides that the court can have regard to whether requiring particular steps to be taken to meet the standard of care might prevent a desirable activity from being undertaken or might discourage people involved in providing the activity from doing so.

The Bill forms part of a wider programme of work which is being taken forward across government and, in partnership with stakeholders, to tackle perceptions that can lead to a disproportionate fear of litigation and risk averse behaviour, to find ways to discourage and resist bad claims and to improve the system for those with a valid claim for compensation”.—[Official Report, 3/11/05; cols. WS 29-30.]

At Second Reading, the noble Baroness said:

“This Bill is part of a much wider set of initiatives that is being taken forward across government. The Government are determined to tackle practices that stop normal activities taking place because people fear litigation, or have become risk-averse. We want to stop people from being encouraged to bring frivolous or speculative claims for compensation. The provisions in this Bill will help us do that. They will reassure people who are concerned about being sued that, if they adopt reasonable standards and procedures, they will not be found liable”.

Later, she said, referring to Clause 1, that:

“This provision reflects guidance given by the higher courts during a considerable period and renewed in recent cases. It will ensure that not only all courts but also litigants and potential litigants are fully aware of this, and will provide reassurance to the many people and organisations, such as those in the voluntary sector, who are concerned about possible litigation”.—[Official Report, 28/11/05; cols. 81-82.]

The noble Lord, Lord Beecham, seemed to imply that the notion of a compensation culture was entirely in the imagination of this Government, but it appears to have featured quite heavily in the imagination of the previous Government.

[Lord Lloyd of Berwick]

When I said that the noble Lord had paid scant regard to Section 1, I thought that I would be understood as saying that he did not attempt to say why Section 1 does not cover everything in this Bill. Indeed, what he has just read out makes it clear that it does cover everything in this Bill.

[Lord Faulks]

Indeed, but the noble and learned Lord is saying in his amendment that this Bill should not get a Second Reading because the matter is covered by Section 1 of the Compensation Act. I am identifying what lay behind the legislation when it was brought in, what it attempted to do and why, if the noble and learned Lord will bear with me, it failed to do so.

Criminal Justice and Courts Bill

Debate between Lord Lloyd of Berwick and Lord Faulks

Monday 20th October 2014 Lords Chamber

[Lord Lloyd of Berwick (CB)]

My Lords, I do not know whether the Minister’s amendment has been called. I rise just to say that I certainly support the Government’s view, subject to the amendment proposed by the noble Lord, Lord Beecham. Anything that we can do to relieve the burden on the Parole Board is worth doing. I confirm, incidentally, that the Minister was quite right to say that this would not have been possible until the recent decision of the Supreme Court at the end of July. To that extent, I certainly support the Government.

I hope that I may be permitted to add one comment. We shall shortly be coming to Amendment 39 in my name, which would do far more to relieve the burden on the Parole Board than this proposal could ever do. Furthermore, it could be done without any cost at all, it could be done at once and it has been calculated that it would save the Government some £25 million a year. I hope that those who are interested in relieving the burden on the Parole Board will stay behind and take part on that amendment when it is called.

[Lord Faulks]

My Lords, we have had something of a trailer from the noble and learned Lord, Lord Lloyd, and I do not propose to respond in detail at this stage. For the sake of clarity, I might say that these amendments are about determinate sentence prisoners as opposed to indeterminate sentence prisoners, into which category IPP prisoners fall.

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[Lord Faulks]

I accept that there have been certain delays in providing all the courses that might have been provided. Indeed, that has been the subject of quite widespread litigation, when individual prisoners have received compensation. Sometimes the compensation has been a higher figure if the court has thought that it would have made a difference and sometimes a lower figure if the court has thought that it would have made no difference. However, the test remains the same, regardless of cases, as I said a little earlier. The Parole Board has of course had a number of pressures, as I described earlier, not least caused by the Osborn, Booth and Reilly case. As I also indicated, increased resources have been provided financially, and there is a general awareness in the Parole Board—an arm’s-length body but under the Ministry of Justice—of the need to provide hearings as soon as practicable. However, I have responded by pointing out the fact that all these prisoners have had their cases reviewed by the Parole Board, and we believe that the system is working satisfactorily.

[Lord Lloyd of Berwick]

My Lords, I regret to say that I do not find the Minister’s reply satisfactory in any way, no more than it was on the previous occasion. I do not intend to deal with any of his arguments, save just to mention one. He criticised the amendment on the grounds that we would be bypassing the discretion of the Lord Chancellor, but that is the whole point of the amendment. The Lord Chancellor has declined to exercise that discretion, so it is up to us now to exercise it in place of him. That is the purpose of this amendment.

The amendment has been supported in the strongest possible terms—indeed, some of the strongest terms that I have ever heard in this House—by lawyers and non-lawyers alike. I particularly value the support of the non-lawyers. The official position of the Opposition is that they cannot support the amendment but they are not opposing it. I hope that a great number of those who are sitting on the Opposition Benches will support the amendment for the reasons that have been so clearly explained by others. Nevertheless, I must express my gratitude for the fact that the Official Opposition are not opposing it.

There is just one other thing that needs to be said. From the many letters that I and others have received, both from prisoners and from their families, I know that this debate is being followed by those who will be most affected by the result. They will carefully read what we have said. They are looking to us in this House to do something for them, and I hope that we will not let them down. I wish to test the opinion of the House.

Criminal Justice and Courts Bill

Debate between Lord Lloyd of Berwick and Lord Faulks

Monday 14th July 2014 Lords Chamber

[Lord Faulks]

I am not aware of the question of lie detectors and whether or not they are used. I will write to the noble Lord when I have some information about it.

Measures have been taken to ensure that programmes can be delivered more flexibly, supporting greater access and inclusion, including offenders with complex needs, as I was indicating. I was asked about the case of James, Wells and Lee. The noble Lord, Lord Wigley, pointed out that the decision was that the retention of those prisoners was contrary to Article 5.1 and was therefore an arbitrary detention. I dare say that he will know, from having studied the decision, that the European Court of Human Rights did not hold that the sentence itself was unlawful. It was the unavailability of courses that was considered to be a breach of Article 5.1. I am sure the noble Lord would accept that it is simplistic to suppose that attendance at a course would automatically result in someone being appropriate for release. Clearly, it is carefully managed to ensure that so far as is possible those courses are reached. Those who attend the courses will not necessarily be eligible for or suitable for release. Equally, some who do not will be. However, I accept it is a matter of considerable assistance.

As the noble and learned Lord, Lord Brown of Eaton-under-Heywood, said, the construction of a statutory duty is a matter of the purpose as construed on examination of the relevant statute. In response to a debate about this section, the Lord Chancellor’s predecessor, Kenneth Clarke, said that he would look at progress after the LASPO changes had taken effect. I mentioned earlier that the rate had increased. The position is—I am afraid this is more or less the same answer that I gave in the debate initiated by the noble Lord, Lord Wigley—that there are no current plans to review the release test for prisoners serving IPP sentences whose minimum term has expired, although we continue to use a range of measures to improve their progression and reduce the risk that they pose. The Government’s position is that it is right that IPP prisoners continue to serve their sentence until they are assessed as safe to be released into the community by the Parole Board. The Government were left with this rather crude device by the previous Government. They repealed it, but none the less they have to be extremely mindful of what lay behind the introduction of this provision; namely, the protection of the public. I accept that there is great concern that those who would have received a lower tariff sentence might seem on the face of it to be languishing in prison for far too long. However, there are factors which I have attempted to draw to the Committee’s attention which do not, in the view of the Lord Chancellor and the Government, warrant a change of approach to that discretion.

Of course, it is a matter of anxiety. While others are attending the opera, I am—as the noble Lord, Lord Wigley, would have it—having sleepless nights. However, the duty of the Government remains to protect the public, notwithstanding the persuasive arguments that have been put forward by noble Lords. I ask the noble and learned Lord, Lord Lloyd, to withdraw the amendment.

[Lord Lloyd of Berwick]

Will the Minister explain why releasing these people now would present any greater risk than that they would have presented if they had been given determinate sentences back in 2005?

[Lord Faulks]

They did not receive determinate sentences. With great respect to the noble and learned Lord, it is a hypothetical question because the sentence they received was not a determinate sentence; it was a sentence for the protection of the public. It is therefore the Government’s case that they have to proceed with caution using the processes which exist via the Parole Board to ensure that, before somebody in that position is released, the public are safe so far as reasonable precautions can be taken.

[Lord Lloyd of Berwick]

First, I must thank those who have supported this amendment so effectively, as it seems to me, and say a particular word of gratitude to the noble Lord, Lord Wigley. How good and refreshing it is to hear from a layman, especially one who is able to speak with a certain passion, which we lawyers try to keep in control. It was a very effective contribution.

Prisoners: Indeterminate Sentences

Debate between Lord Lloyd of Berwick and Lord Faulks

Thursday 27th March 2014 Lords Chamber

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

My Lords, I thank the noble Lord, Lord Wigley, for securing this debate. The issue of how to manage those prisoners who are still serving indeterminate sentences of imprisonment for public protection is important and one that has generated considerable interest, not least in this House.

Indeed, our IPP prisoners could hardly have more effective advocates than the noble and learned Lords who have spoken this evening. Nor has their interest and concern been recent; it has been sustained and tenacious. At a recent meeting convened by the Bingham Centre, where the noble and learned Lord, Lord Lloyd, spoke, those issues were thoroughly discussed. Although I was unable to attend myself because of parliamentary duties, he was good enough to send me a copy of his remarks there, so the Government do not pretend to be unaware of the full range of anxiety that has been expressed about the issue.

Much has been said about the history of IPP sentences. Briefly, to remind the House, the IPP sentence was first brought into effect in 2005, by the Criminal Justice Act 2003, to target those offenders likely to pose a risk of serious harm to the public. Imposition of the sentence was mandatory in certain circumstances. More IPP sentences were imposed than were originally anticipated—that is something of an understatement. The noble Lord, Lord Kennedy, said that there were problems with introduction. That, too, is something of an understatement. I understood him to be rather unrepentant about the sentence as a whole, but be that as it may. It was not until the reforms introduced by the Criminal Justice and Immigration Act 2008 that a minimum tariff of two years was imposed, barring exceptional circumstances. Further, the mandatory requirement for imposition of the sentence in certain circumstances was removed—a “may” for a “must”. On 3 December 2012, the sentence was abolished by the LASPO Act. However, abolition was not made retrospective, so those prisoners already serving IPP sentences continue to do so until the independent Parole Board finds their assessed risks to have been reduced enough to be manageable in the community.

Although this Government have abolished the IPP sentence, it would not be right or appropriate in our view retrospectively to alter sentences that had been lawfully imposed prior to their abolition. When the LASPO Bill was being debated, a number of amendments were proposed in this House that would have changed retrospectively the sentences imposed by courts. However, none of those resulted in a change to the legislation to the effect to which some arguments have been directed this evening. That is usual—it is generally the case that when changes are made to the sentencing framework, they do not impact on current prisoners, and changes will not be made to sentences that were lawfully passed at the time they were imposed. One reason for that is because a court will have had regard to the range of sentences then available when imposing a sentence, so it will not necessarily be clear what sentence would have been imposed under a different statutory regime. Indeed, it would be quite wrong to assume in any individual case what sentence a court would have imposed under such a different regime.

On IPPs, at the higher end there will be IPP sentences that have been imposed where a life sentence might otherwise be available. At the lower end, given that the courts had found risk, it is not clear whether an extended sentence or a standard determinate sentence would have been imposed. Versions of the extended sentence are available under more than one recent statutory framework, but other considerations then arise: would the various thresholds for these sentences have been reached under different statutory frameworks? What would the length of the extended licence have been?

I hope I have said enough to demonstrate the complexity of trying to translate sentences imposed under one regime to another. In this case, the courts were specifically enjoined by the law to give priority to the consideration of risk. It would make it a particularly sensitive exercise retrospectively to change these sentences, which is what the conversion process would involve.

The Government also do not believe that it would be responsible or sensible, given the high risk levels presented by many of the IPP prisoners who remain in prison post-tariff. We do well to remember that many offenders who received IPP sentences, including those who remain in custody today post-tariff expiry, did so for serious crimes—notwithstanding the observations of the noble and learned Lord, Lord Judge—including attempted murder, manslaughter, rape and sexual assault of children. Any move to release those prisoners without due consideration of the risk they pose to the public would be wrong.

I know that many noble Lords have particular concerns about those offenders with short tariffs of less than two years imposed before the 2008 Act abolished such short tariffs except where there was serious previous offending. However, internal management information suggests that the clear majority of IPP offenders currently remaining in custody with tariffs of less than two years are there because they are assessed as posing a high, or very high, risk of serious harm to the public. This means that a serious offence could take place at any time. It would not be safe or appropriate to release these offenders on licence without due consideration of the risk which they present at the current time.

No one would claim that there have not been significant problems with IPP sentences. That is why we abolished the sentence and replaced it with the extended determinate sentence. There were practical issues arising from the number of IPP sentences with short tariffs that were imposed. The sentence did not command public confidence and led to apparent inconsistencies of sentencing. It meant that victims, the public, and offenders and their families were unclear about when an offender might be released.

However, we also have a clear duty to the public not to release IPP prisoners who continue to pose an unacceptable risk. It was never the intention of the sentence that offenders past their tariff should all be released, but only those who can be effectively managed in the community. It is for the independent Parole Board to determine whether an IPP prisoner has reduced their risk sufficiently to achieve release. The board does not, of course, take these decisions lightly: it examines reports from prison and probation and from psychologists where appropriate—and of course the prison governor provides information in the dossier—and decides whether the risk to the public remains too high to release an offender. All IPP offenders who have completed their tariff have the right to attend the regular parole review oral hearings, where release is considered. The Government consider that this is the best system for balancing the rights of the offender with our duty to protect the public.

I want to mention the NOMS work to improve the position of IPP prisoners, because this is clearly an important consideration. No prisoner should be left without opportunities to demonstrate to the Parole Board that their risk has reduced. I would also like to speak about the important work that has been undertaken to improve the prospects of progression for those IPP offenders who choose to engage with the opportunities presented to them. Examples of this work include: the streamlining of assessment, targeting and management processes, to ensure that IPP prisoners’ risks and objectives are identified as early as possible; reducing waiting times for transferring IPP offenders to open prisons, from over eight months to an average of two months; the refining of our commissioning strategies to maximise resources and focus investment on those interventions proven to be effective; and publication of guidance for those managing the sentences of IPP prisoners to ensure that the focus of sentence planning is on reducing risk in a planned and sequenced manner, and not solely on completing specific offending behaviour programmes.

The indeterminate sentence prisoners co-ordination group was established in 2010 to oversee the strategic management of all offenders serving indeterminate sentences, including both those serving IPP and life sentences. The group is led at director level within NOMS, with membership from senior representatives across NOMS. The group’s work has a particular focus on improving, wherever possible, the progression of these offenders through custody and then, should the Parole Board so direct, into the community. It achieves this by developing and promoting the most effective means of managing those serving indeterminate sentences and ensuring that resources are directed appropriately. This includes informing the development and co-ordination of strategies relating to offender assessment, sentence planning and delivery, access to interventions, parole processes, prison capacity issues and offender management in the community following release. I could give a number of examples of work that the group has delivered, but time does not permit me to do so.

As to interventions, it is a common misconception that IPP offenders must complete offending behaviour programmes in order to achieve release. Equally, it is a misconception that the completion of courses is a sufficient condition to secure release. Neither of these is the case. The Parole Board is under a general obligation to consider the offender’s risk level, which can be demonstrated in a variety of ways. In so doing, the board will take an holistic view and consider all available evidence. The completion of a number of courses is just one of a range of factors that the Parole Board will take into account.

In 2011, the Ministry of Justice carried out a research study into Parole Board decision-making in IPP cases. A summary of that research was published in 2012 and can be found on the Government’s website. There are points arising from that research that it is important to make. It suggests that programmes are far from the only relevant factor in release decisions. Release is to some extent related to the completion of programmes, but this is not a simple relationship. The research shows that the parole process is targeted on the individual and that only programmes specified to the individual’s needs, successfully completed and showing some impact on the prisoner, are likely to be taken as evidence of sentence progression. A number of other factors were important. The Parole Board members interviewed for this study thought that indeterminately sentenced prisoners benefit greatly from spending time in an open prison, for example.

[Lord Lloyd of Berwick]

My Lords, I can see that the Minister’s time is nearly up. I wonder whether he could deal with one or two of the arguments which have actually been advanced in the House this afternoon, in particular regarding Section 128. What did Parliament have in mind when that power was conferred on the Secretary of State?

[Lord Faulks]

It is of course a matter of statutory instruction what it had in mind. The Secretary of State is aware of the obligation placed on him to consider the matter. The noble and learned Lord has recently been in correspondence with the Secretary of State and I have endeavoured to give the Secretary of State’s reasons for the position that he has so far adopted in that respect. The question is whether the Secretary of State should exercise that power in the way that the noble and learned Lord and other noble Lords think appropriate and, if not, what steps are being taken to ensure that IPP prisoners are having the opportunity to obtain release via hearings from the Parole Board. On that and other matters, I will write to noble Lords because I have not sufficient time to deal with all the questions raised.

Reference was made to the European Court of Human Rights and the case of James, Wells and Lee and others. That is a decision which is not without difficulty and which has been considered by the Supreme Court in a number of contexts. I should declare an interest as an advocate in one of those cases. The decision by the European Court of Human Rights was indeed that there was an arbitrary detention because of the lack of provision of courses, and therefore a violation of Article 5(1), but it did not decide that the sentence was per se unlawful. There are of course further cases going through the courts and sometimes the facts do not quite fit the allegations. However, the Government are well aware of the consequences of that.

The noble Lord, Lord Ramsbotham, as ever made some useful observations about offender management. We do not deny that offender management problems exist in custody and we accept the recommendations of the latest inspectorate report on the improvements that need to be made. Some improvements have been made but more needs to be done, including a full review of offender management in custody which will commence next year. As the noble Lord and other noble Lords will know, an inquiry has been set up into deaths in custody. That was announced recently in answer to a Question asked by the noble Lord, Lord Ramsbotham, himself. I hope that that matter will inform decision-making in that respect.

Finally, regarding the Parole Board, there is liaison with it as a result of the Osborn decision. Increased resources have been made available to the Parole Board and there is regular communication between it and the Ministry of Justice to ensure that its resources are appropriately deployed to increase the possibility of hearings taking place.

The sentence itself was clearly ill conceived and its impact was wholly underestimated. The Government recognised that by abolishing it in the Act. The Secretary of State has not considered it so far appropriate to exercise the power given to him by the LASPO Act, on which there have been a number of arguments. However, the Government are extremely aware of the importance of IPP-sentenced prisoners having the opportunity for their release to be considered and to have the opportunity of proving whether they are no longer a danger. That is a matter of which the Government are painfully aware.

All the observations made by noble Lords this evening in this valuable and helpful debate will be taken back to the Secretary of State and if there are any matters that I have not fully dealt with in the course of it, I will endeavour to deal with them in writing.

Inheritance and Trustees’ Powers Bill [HL]

Debate between Lord Lloyd of Berwick and Lord Faulks

Monday 3rd February 2014 Lords Chamber

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

My Lords, I have put down an amendment to the Inheritance and Trustees’ Powers Bill that will amend the way in which the level of the statutory legacy is set. As noble Lords will know, the statutory legacy, referred to in the Bill as the fixed net sum, is the sum awarded to a surviving spouse for his or her future maintenance before any other part of an intestate deceased’s estate is shared with any other beneficiary. It is therefore important that it takes account of the prevailing economic conditions.

The Bill as introduced required the Lord Chancellor to make an order specifying the level of the statutory legacy at least every five years. The proposed government amendment would sit alongside the existing requirement but would oblige the Lord Chancellor to make an order short of the five-year deadline if the level of the consumer prices index, known as the CPI, rises by more than 15%. The purpose of this would be to allow for the statutory legacy to be updated more frequently in times of high inflation so that it more accurately reflects the cost of living.

The CPI, which is published monthly by the Statistics Board, will be judged to have risen by the requisite amount if a particular month’s figure is more than 15% higher than the CPI for the month when the Bill comes into force in the first instance, and then the month when the most recent order specifying the level of the statutory legacy was made. It should be noted that although the default position would be that the order would raise the statutory legacy so that it is in line with the rise in CPI, the Lord Chancellor will still be able to amend the level of the legacy in some other way. However, if he chooses to do this, he must first submit a report to Parliament setting out his reasoning for doing so. If an order is made because the CPI has risen by the necessary amount, this will signal the start of another five-year period within which another order must be made.

This amendment has a very similar effect to the one that was put forward by the noble Viscount, Lord Hanworth, during a meeting of the Special Public Bill Committee. Since taking up my ministerial post, I have considered that amendment and recognise the merit in providing for more frequent updates to the statutory legacy should this be required. I am grateful to the noble Viscount for his original suggestion. In those circumstances, I ask noble Lords to look favourably on this amendment. I beg to move.

[Lord Lloyd of Berwick (CB)]

My Lords, in his very helpful letter of 30 January 2014, the Minister referred to the amendment moved by the noble Viscount, Lord Hanworth, at a meeting of the Special Public Bill Committee on 16 December. He indicated that the present amendment is to the same effect.

These things go out of one’s mind so quickly that I have had to refresh my mind as to what took place at the two meetings that we have had. At our previous meeting on 13 November, the noble Lord, Lord Beecham, asked why the fixed net sum should be reviewed only every five years and not annually. The noble Viscount, Lord Hanworth, strongly supported that suggestion. Professor Cooke said that she would look into why the Law Commission had come up with the figure of five years in the first place. In her letter of 28 November, she explained the Law Commission’s reasons: on the evidence that it had received, five years was a compromise figure.

By the time of our next meeting on 16 December, the noble Viscount had drafted his amendment, but it contained two, quite separate features. It contained, first, the requirement of an annual review such as we had discussed at our first meeting, but it also contained the new feature of a compulsory order if the consumer prices index should increase by more than 15%.

There was support for an annual increase from the noble Lord, Lord Beecham, but doubts were expressed by the noble Baroness, Lady Hamwee. I took the same view as the Law Commission; in other words, that an annual review was too frequent, certainly if it led to an annual revision of the fixed net sum. There was very little, if any, discussion of what is now before your Lordships; that is, the proposal for a compulsory review if the index rose by more than 15%—I think that a passing reference to it was made by the noble Lord, Lord Plant.

In due course, the noble Viscount sought leave to withdraw his amendment, but said that he would come back on Report. It is now proposed by the Government that we should accept the second half of the noble Viscount’s amendment but not the first—I think that I understand the Minister right in saying that. There is to be a compulsory review if the consumer prices index is increased by 15%, but there is to be no annual review.

My only concern is that this new amendment now before your Lordships, confined as it is to the compulsory feature, was not considered in any way by Professor Cooke—at least not to my knowledge. However, it seems a sensible amendment, and I cannot imagine the Law Commission, had it been asked for its views, having any objection. It makes sure that the Lord Chancellor will in only limited circumstances be, as it were, brought up to the mark, even though he will then—again, if I understand the noble Lord correctly—have discretion as to the amount. In my view, this represents an improvement to the Bill and I therefore support the amendment.

Anti-social Behaviour, Crime and Policing Bill

Debate between Lord Lloyd of Berwick and Lord Faulks

Monday 18th November 2013 Lords Chamber

[Lord Lloyd of Berwick (CB)]

My Lords, I had not intended to speak on this part of the Bill, so I am afraid that I have not done as much homework as I should. For many years, however, I have protested against using the civil law to do the work of the criminal law, because it leads to problems when you adopt that approach. For that reason I have always been uneasy about ASBOs. For example, it was years before it was decided—if it has now been decided—whether the standard of proof on ASBOs is the criminal standard or the civil standard but as near the criminal standard as makes no difference. So I shall not be sad to see the back of ASBOs.

Part 1 of the Bill deals with injunctions. Injunctions are a civil procedure. Therefore, on the face of it, one would expect to see the civil standard apply. When the question comes to whether the respondent is in breach of the injunction, the criminal standard applies under paragraph 1 of Schedule 2. That seems a sensible approach. With regret, therefore, I cannot support the noble Baroness’s Amendment 19C, but I am happy to support her other amendments.

[Lord Faulks]

My Lords, we are considering the powers to grant injunctions under Clause 1, but it is important to consider the other provisions in Part 1, particularly Clause 4, which specifies those who can apply for injunctions, including local authorities, housing providers, the local chief of police and various other agencies but excluding individuals.

The anxiety that has been generated by Clause 1 is understandable. This anxiety has been excellently analysed by the noble Baroness, Lady Mallalieu, but it needs to be closely examined to see whether it is justified. The Minister told the House at Second Reading that draft guidance had already been published for front-line professionals and referred to particular parts of that guidance. At page 24, it is specified that,

“in deciding what constitutes ‘nuisance or annoyance’, applicants must be mindful that this route should not be used to stop reasonable, trivial or benign behaviours that have not caused, and are not likely to cause, harm to victims or communities. For example, children simply playing in a park or outside, or young people lawfully gathering or socialising in a particular place may be ‘annoying’ to some, but are not in themselves anti-social. Agencies must make proportionate and reasonable judgements before applying for an injunction. Failure to do so will increase the likelihood that an application will not be successful”.

The jurisdiction to grant an injunction is given to the High Court or the county court, or the youth court in the case of a respondent aged under 18. The court has to be satisfied first that the respondent is engaged in anti-social behaviour and secondly that it is just and convenient to grant an injunction for the purpose of preventing him or her from engaging in anti-social behaviour in the future.

We should not underestimate the inherent safeguards that are present in that procedure. The expression “nuisance or annoyance” is well established in the context of landlord and tenant law and it has been statutorily incorporated into various housing Acts. The expression was introduced with little controversy by the Anti-Social Behaviour Act 2003. There is now a wealth of case law applying this test, which is applied by judges up and down the country. The words by themselves might be thought of as attracting remedies where actions complained of are relatively trivial, but in fact, for “nuisance and annoyance” to pass the threshold, it has to be to be something pretty substantial.

By the same token, judges are not easily persuaded that it is “just and convenient” to grant an injunction unless the court is satisfied that it is equitable to do so. The expression “just and convenient” is well established in law and will mean that the courts hesitate before granting injunctions, unless the behaviour complained of is such that the court considers it fair to do so. If a court were to be too draconian—as to which there has been little evidence in the past—then successful appeals would follow.

The provisions of Part 1 allow for a range of requirements to be included in injunctions, including if necessary a power of arrest. The terms of an injunction will of course depend on the particular facts of a case. Similarly, a power of arrest will be attached only if the seriousness of the allegations merits the exercise of such a power. A point made cogently by the Law Society in its briefing on this part of the Bill is that injunctions are used in the case of noise nuisance as an alternative to possession proceedings. They result in the person or their family staying in their homes, but with restrictions as to their conduct rather than their having to be evicted.

With respect, there seems to be a number of difficulties about the proposed amendments as explained by the noble Baroness, Lady Mallalieu. They would essentially create a criminal regime—there is a criminal offence later in the Bill—for low-level anti-social behaviour, in that before an injunction could be granted there would have to be proof beyond reasonable doubt. This would mean that hearsay evidence could not realistically be used. Witnesses are often afraid of the perpetrators of anti-social behaviour and give their complaints to a housing officer who can then present evidence. One should not underestimate the misery that can be experienced by residents of, let us say, a block of flats where one of the occupants is determined to make the rest of the occupants’ lives a misery. The amendment would probably necessitate seriously frightened residents having to give evidence and be cross-examined. It is much more likely that they would simply refuse to do so.

In our anxiety to ensure that civil liberties are preserved we should neither lose sight of the victims of anti-social behaviour nor underestimate quite what a scourge it can be. I understand entirely what lies behind this amendment and the concern expressed by a number of noble Lords that essential freedoms could be at risk if the powers under Part 1 were used too enthusiastically. However, I feel that the really substantial amendments here will emasculate the right to obtain an injunction under Part 1 and result in a failure to protect those who are the victims of anti-social behaviour. Nevertheless, by way of acknowledging the very real and sincere concerns that a number of people or groups have about Clause 1, I propose in my amendment, which I will outline shortly and is supported by the Joint Committee on Human Rights, that a degree of objectivity be imported into the definition of conduct capable of causing nuisance and annoyance. That amendment, which I will be submitting, would help, but I am afraid that I am against these amendments.