Children and Families Bill

Debate between Lord Lloyd of Berwick and Lord McNally

Tuesday 17th December 2013 Lords Chamber

[Lord McNally]

My Lords, I will certainly try to rise to the challenge. It would be a lot easier to rise to if the Titans who have clashed today had come to anything like a conclusive agreement about how it should be met. I have never been one to think that Parliament should never challenge the views of our courts, or vice versa. I have said before that I think a little friction between the two is sometimes quite useful. On the other hand, we have a separation of powers where we entrust our learned judges with making wise decisions.

I am therefore a little tremulous about suggesting that we accept an amendment that, if the noble and learned Lord, Lord Walker, is to be believed, and I am sure he is, flies in the face of six separate judgments by either the House of Lords in the old days or the Supreme Court. We have to think very hard before we pass an amendment that would challenge those judgments. If the case that has cast the matter into doubt was an artificial case aimed at clarifying the law—I have to say that the words you usually use are, “With the utmost respect”—it did not work.

I cannot make commitments to the noble Baroness, Lady Hughes, that we can solve this between now and Third Reading. Of course I shall take back the debate that we have had and the considerable arguments that have been made. It would be impertinent of me to try to encapsulate those; those who have been in the debate have heard cogent arguments on both sides.

All of us, whether we have had these responsibilities or are just ordinary citizens, know that when these things go wrong and a child is murdered, the media pack descends on, usually, a social worker and the consequences are extremely grave. On the other hand, as we also know, voices are raised saying that we are too casual in our willingness to take children into care. Accusations have been made at the other end of the corridor that local authorities can be cavalier. I fully take the point made by the noble and learned Baroness, Lady Butler-Sloss, and the noble and learned Lord, Lord Hope, that if you are going to take a child from its family you must have proof as well as suspicion.

These are very weighty matters. I put it to—I was going to say “my noble friend” but he is more like the constant thorn in my side—the noble and learned Lord, Lord Lloyd, that today would not be the day to test the opinion of the House. If he were to do so, I would ask the House, in all sense of responsibility, to vote against him.

The Government believe that Section 31 is robust enough. The point was made that it is not a threshold for social workers to make child protection interventions. That has been made very clear. The rarity of the case was dismissed. The noble and learned Baroness, Lady Hale, rightly said that so artificial a case on such a single issue is the rarity. That is where some of the confusion has arisen.

We have had some very strong arguments. In the light of the very full debate held in Committee, we have discussed this further with the chief social worker, the Association of Directors of Children’s Services and the College of Social Work, and they have all confirmed that they do not support this amendment.

If the noble and learned Lord, Lord Lloyd, does not press the amendment, I do not want to inflict another debate like this on the House at Third Reading. I do not think it would do a service to the House or be the way to make a very important law. This will have to stand for a very long time. If there are initiatives or suggestions that can get some unanimity across the Chamber—and, perhaps even more helpfully, on the Cross Benches—there may still be some time for movement, but as it stands now, and in the light of the advice that the noble and learned Lord, Lord Walker, gave us in a considered and thoughtful speech that Section 31 has stood the test of time and has been examined six times during that period, it would be impetuous of this House to back the amendment moved by the noble and learned Lord, Lord Lloyd, this evening. If he wishes to press it, I will urge the House, with the proper sense of responsibility, to reject it.

[Lord Lloyd of Berwick]

My Lords, I am very grateful for the Minister’s careful response to this amendment. I am also very grateful to all those who have spoken in support of it. Of course, I am also very aware of those who have spoken against it. Even if I had thought that we would win tonight, I would not want to divide the House. It would be highly irresponsible to make a snap decision on such an important and difficult area as child protection.

The one thing that the debate has established beyond any doubt is that there is a problem here that needs to be solved urgently. As I have said from the very start of this amendment, this should be a non-party matter. It is purely a matter of law reform. That is why I was so very glad to hear the noble Baroness, Lady Hughes, suggest in her excellent speech that there is an opportunity between now and Third Reading to hold some sort of discussions on an all-party basis to see whether there is some way in which we can find a way forward which would satisfy all the lawyers here as well as the public at large. If we can find such a way forward, that would be by far the best solution. If we cannot, I respectfully suggest to the Minister that this is a case for a reference to the Law Commission for an urgent hearing about what is best to be done in this situation.

[Lord McNally]

As I said before, I am worried. We have very strict rules about bringing matters back at Third Reading, and I do not want to lure the noble and learned Lord into thinking that by withdrawing he can be guaranteed a Third Reading debate. On the other hand, the point he has just made may be a way forward on this. I do not know. I swear I have never said this before across the Dispatch Box, but I am not a lawyer. If the lawyers can help us in this, we will consult, but I do not want to inflict on the House a Third Reading debate of this complexity, which would not be very popular with the House.

[Lord Lloyd of Berwick]

I fully understand and accept the position which the Minister has taken. It would be admirable if we could organise some sort of cross-party discussion, perhaps with outside assistance. Lawyers need assistance from social workers to find out the best way of finding a solution. If we can find one before Third Reading, so much the better; if not, then clearly it ought to go to the Law Commission for a quick hearing. I beg leave to withdraw the amendment.

Human Rights: Vinter and Others v United Kingdom

Debate between Lord Lloyd of Berwick and Lord McNally

Tuesday 29th October 2013 Lords Chamber

[Lord Lloyd of Berwick]

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

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

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

[Lord Lloyd of Berwick (CB)]

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

[Lord McNally]

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

Whole-life Sentences

Debate between Lord Lloyd of Berwick and Lord McNally

Wednesday 17th July 2013 Lords Chamber

[Lord Lloyd of Berwick]

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

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

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

[Lord Lloyd of Berwick]

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

EU: Police and Criminal Justice Measures

Debate between Lord Lloyd of Berwick and Lord McNally

Tuesday 9th July 2013 Lords Chamber

[Lord Lloyd of Berwick]

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

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

[Lord McNally]

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

Legal Aid

Debate between Lord Lloyd of Berwick and Lord McNally

Wednesday 26th June 2013 Lords Chamber

[Lord McNally]

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

[Lord Lloyd of Berwick]

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

[Lord McNally]

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

Prisoners: Indeterminate Sentences

Debate between Lord Lloyd of Berwick and Lord McNally

Tuesday 23rd April 2013 Lords Chamber

[Lord Lloyd of Berwick]

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

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

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

[Lord Lloyd of Berwick]

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

[Lord McNally]

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

Freedom of Information Act 2000

Debate between Lord Lloyd of Berwick and Lord McNally

Wednesday 27th February 2013 Lords Chamber

[Lord McNally]

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

[Lord Lloyd of Berwick]

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

[Lord McNally]

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

Crime and Courts Bill [HL]

Debate between Lord Lloyd of Berwick and Lord McNally

Tuesday 4th December 2012 Lords Chamber

[Lord McNally]

My Lords, as far as I understand, the process of appointment would be exactly as it is now. If, in the process of discussing a candidate for the Supreme Court, it became obvious that there was a candidate who would require flexibility in order to take up the appointment, that would be taken into account. But there is no question of the president of the Supreme Court, or anybody else, being ordered to take a part-time member because of this provision. It is there to give what it is hoped will be encouragement to those who have responsibilities outside their judicial responsibilities, so that they do not find that a bar to progress, but there is no special process of selection envisaged in this.

[Lord Lloyd of Berwick]

My Lords, I found the Minister’s reply very unsatisfactory because it seemed to me—I hope I am not saying what I should not—that much of his brief was written before he realised what point I was going to make.

[Lord McNally]

Half my remarks were made on notes that were there. The noble and learned Lord has now pressed for two full debates on whether “flexible” and “part-time” are interchangeable or whether one over-rides the other. I and the noble Lord, Lord Beecham, in an act of unity, having tried to explain—there is nothing in the brief on it—I continue to puzzle about why the noble and learned Lord cannot see the interchangeability of the two. I have also got his note, the billet-doux he left me last night, which further pressed the case, but a large number of people, whose opinions I express, do not find the confusion that he does about the two terms.

[Lord Lloyd of Berwick]

All I can say by way of reply is that nobody except the Minister and the noble Lord, Lord Beecham, regards flexible and part-time work as being interchangeable. They clearly are not. One is one thing and one is another. If the Bill were to take effect, one would have to calculate at some point how many part-time members, as it were, occupy the time of the Supreme Court, and how many full-time members. The thing is simply impractical on the basis of salaried part-time members who would be paid less than full-time members. Those are simply the financial impracticabilities, but there are also all the other impracticabilities that have been pointed out by other Members who have spoken. It would simply be, as has been said more than once, a nightmare to work out in practice. It would raise expectations which I suspect that we all know would never be fulfilled.

It would be so easy for the Minister, consequent on all the things that were said in Committee as well as by other speakers today, to substitute “flexibility” for “part-time” working. Then we would all agree. The suggestion made that these are two ways of looking at the same thing, in my respectful submission, simply makes no sense. But obviously I am not going to persuade the Minister, and I suspect that the Opposition will take the view that they have indicated that they will take. I regret it very much. However, for the reasons that I have tried to give, I seek the opinion of the House.

Child Abuse: Waterhouse Inquiry

Debate between Lord Lloyd of Berwick and Lord McNally

Wednesday 14th November 2012 Lords Chamber

[Lord Lloyd of Berwick]

To ask Her Majesty’s Government, further to the Statement repeated by Lord Taylor of Holbeach on 6 November (HL Deb, col. 893), whether they will reconsider their appointment of a “senior independent figure” to investigate whether “the Waterhouse Inquiry was properly constituted and did its job”.

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

No, my Lords. Mrs Justice Macur’s review will proceed with the terms of reference laid before this House last Thursday.

[Lord Lloyd of Berwick]

My Lords, does the noble Lord agree that in view of Mr Steve Messham’s withdrawal of any allegation against Lord McNally—

[Lord Lloyd of Berwick]

I had better start that question again. Does the noble Lord, Lord McNally, agree that in view of Mr Steve Messham’s withdrawal of any allegation against Lord McAlpine, there is no longer any need for another High Court judge to go over the work of Sir Ronald Waterhouse 15 years ago? On the contrary, we should all be grateful for his impeccable conduct of that inquiry and the thoroughness of his report. Will the Minister tell the House what, if any, inquiries the Prime Minister made about Mr Messham’s credibility before announcing another inquiry into the same matters on 5 November?

[Lord McNally]

My Lords, I sincerely hope that that well known twitterer on the Front Bench opposite has not put my name on to this. I can understand where the noble and learned Lord is coming from. When we ask a senior judge to carry out an inquiry and they do so with the thoroughness with which the Waterhouse inquiry was carried out, there is a certain duty to respect the integrity of that work. I hope that the noble and learned Lord will also accept that the situation that we faced was not just that of a single individual coming forward but of a large amount of accusations being bandied around and a great deal of public concern. The Macur review terms of reference have been more widely drawn. Mrs Justice Macur will look at whether any specific allegations of child abuse within the terms of reference of the Waterhouse inquiry were not investigated. Quite frankly, the strength of public feeling justifies us going through with the Macur review.

Justice: Indeterminate Sentences

Debate between Lord Lloyd of Berwick and Lord McNally

Tuesday 13th November 2012 Lords Chamber

[Lord Lloyd of Berwick]

To ask Her Majesty’s Government what action they plan to take following the decision by the European Court of Human Rights on 18 September in the case of James v UK that the detention of prisoners serving an Indeterminate Sentence for Public Protection beyond their tariff without access to parole is a breach of their rights under Article 5(1) of the European Convention on Human Rights.

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

My Lords, the Government are still considering whether to appeal against this decision. The Government have three months from the date of the judgment to submit an application to the Grand Chamber which will effectively be appealing the decision.

[Lord Lloyd of Berwick]

My Lords, the noble Lord will know the figures because he was kind enough to give them to me last night. There are currently 6,000 people serving IPP sentences, 3,500 of whom have already passed their tariff date and are currently waiting to appear before the Parole Board. Of those 3,500, 2,000 have been waiting for more than two years and 350 have been waiting for more than four years. The court has held in no uncertain terms that their detention in these circumstances is arbitrary and therefore unlawful. Does the noble Lord recognise the scale of this continuing disaster? Does he accept that the Government must do something now to get these wretched people out of prison?

[Lord McNally]

My Lords, the Government have done something. IPPs were abolished by the LASPO Act, but unwinding the system has to be done very carefully. We are not talking about people who are innocent, but people who have been sentenced for long periods for serious crimes. The IPP system was introduced by the previous Government with, I think, a genuine intent to deal with this problem. We are bringing in a more flexible approach and we have both the Parole Board and NOMS working closely on it. However, it is not simply a matter of throwing open the gates of the prison because in some cases we are dealing with very dangerous people, so we must have public protection in mind when deciding how to deal with them.

EU: European Justice and Home Affairs Powers

Debate between Lord Lloyd of Berwick and Lord McNally

Monday 15th October 2012 Lords Chamber

[Lord Lloyd of Berwick]

My Lords, I start by welcoming the fact that the Government are consulting so soon on whether or not to opt out. That seems an entirely good thing. I also welcome the fact that they are consulting the various committees listed in the Statement.

I suggest that those committees, and indeed the Government, could do no better than to start by reading—and, if I may say so, inwardly digesting—a working paper very recently produced by a group of very distinguished academics under the leadership of Professor John Spencer of Cambridge University, entitled Opting Out of EU Criminal Law: What is Actually Involved?. It was the result of much work over the summer and was published only last month. The report starts by disposing of various myths that have surrounded this subject since first it raised its head: in particular, the myth that one can pick and choose what one is going to opt out of. Happily, the Government accept that we simply cannot do that.

However, the Government believe that we can opt out of the whole and then try to negotiate our way back in where it suits us—the so-called Danish solution. But what if we do not succeed? It is quite wrong to suppose that all 130 pre-Lisbon police and criminal justice measures are bad. On the contrary, they are not. We will in any event be bound by all post-Lisbon police and criminal justice measures—that is another myth that is widely believed. So it will be partly one and partly the other. If we opt out, we may in the end get the worst of all possible worlds in deference to the pressure that I think we all understand.

The noble Baroness, Lady Smith, has already referred to the “current thinking” of the Government on this matter being to opt out. I implore the Government to keep their current thinking on this matter under review.

[Lord McNally]

My Lords, the whole point of the exercise is that the Government can keep their thinking under review and can take on board the kind of evidence and study that the noble and learned Lord referred to. He puts his finger on it entirely. We were faced with the position, as the Lisbon treaty stands, that we could not pick and choose what we opt out of; we can simply opt out and then negotiate on the basis of opting back in. Is that a high-risk strategy? We will take the evidence of the debate that unfolds in both Houses, from the committees of both Houses and from academic, judicial and other advice that we receive. However, I do not think that the Government can be accused of taking an irrational way forward. It seems a very measured way forward that gives us time—the noble and learned Lord welcomed how soon this decision had been made. It is because we are taking this early decision that we are going to be able to make the kind of measured decision in the national interest that I think both Houses will welcome in the end.

National Offender Management Service: Indeterminate Sentences

Debate between Lord Lloyd of Berwick and Lord McNally

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]

Debate between Lord Lloyd of Berwick and Lord McNally

Monday 25th June 2012 Lords Chamber

[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.

Legal Aid, Sentencing and Punishment of Offenders Bill

Debate between Lord Lloyd of Berwick and Lord McNally

Tuesday 20th March 2012 Lords Chamber

[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.

Legal Aid, Sentencing and Punishment of Offenders Bill

Debate between Lord Lloyd of Berwick and Lord McNally

Wednesday 14th March 2012 Lords Chamber

[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.

Legal Aid, Sentencing and Punishment of Offenders Bill

Debate between Lord Lloyd of Berwick and Lord McNally

Thursday 9th February 2012 Lords Chamber

[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.

--- 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.

Legal Aid, Sentencing and Punishment of Offenders Bill

Debate between Lord Lloyd of Berwick and Lord McNally

Thursday 9th February 2012 Lords Chamber

[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.

Justice: Reform of Punishment, Rehabilitation, Sentencing and Legal Aid

Debate between Lord Lloyd of Berwick and Lord McNally

Tuesday 21st June 2011 Lords Chamber

[Lord McNally]

My Lords, today we have committed to a review of indeterminate sentencing, which we hope will be concluded by the autumn. We will then bring forward proposals on what happens next. On the question of what we are doing with the people who are already on IPPs, each individual prisoner will continue to be assessed on a case-by-case basis by the Parole Board. The review will look at all the ways in which these assessments operate, to ensure that the real work is done to reform offenders when they are in prison. When my noble friend sees the full proposals, I think that he will also see that we are taking a lot more care to try to address the rehabilitation of these long-term offenders while they are in prison.

I take my noble friend’s point about judges’ discretion. The longer I have been in this job, the more convinced I have been that we should rely on the discretion of a well informed judge, rather than on Parliament second-guessing the judiciary at long distance by too-restrictive legislation. We will see how this unfolds, because one idea that is certainly being brought forward is the use of mandatory life sentences for serious repeat offenders. I have to point out that this Bill will go through both Houses and I am quite sure that I will hear more of the argument that my noble friend deployed when the Bill comes before this House later in the year.

On clinical negligence, legal aid is currently available to those who have suffered negligent medical treatment and qualify financially to seek damages against any type of public or private medical practitioner. While these claims are for money compensation, we consider that they often raise serious issues, especially where the damages are required to meet future needs, and some litigants will be vulnerable because of disabilities resulting from the negligent treatment. However, although the issues raised are likely to be very important, we consider that there is a viable source of alternative funding to legal aid in conditional fee arrangements, which are more readily available in such cases than they are for other claims. We therefore consider that legal aid is not justified in these cases and that our limited funding would be better targeted on other priority areas.

I take the point that my noble friend makes about solicitors. One of the good things about them is that they are increasingly branching out into offering mediation services—something that we very much support.

[Lord Lloyd of Berwick]

My Lords, I, too, welcome the review of indeterminate sentences, which were introduced by the previous Administration in 2003 for the protection of the public. Given that the opposition to IPPs is so strong on all sides, including—if I understood the noble Lord correctly—among the judges, I, like the noble Lord, Lord Bach, wonder why a review is necessary. Why can we not simply repeal the relevant section in the 2003 Act and leave it at that?

Secondly, as the noble Lord knows, I do not like mandatory sentences for the use of knives to threaten or endanger. Is there any evidence at all that the sentences currently being imposed by the judges in those cases are too low? If not, why do we need a mandatory sentence?

Thirdly and lastly, the most noticeable absence from the Statement is anything about Schedule 21, which imposes on judges a rigid framework in murder cases. There was a great deal of opposition to that, too, and yet there is nothing about it at all in the Statement. Once again, why do we not leave it to the judges who handle these cases to impose the appropriate sentence, advised as they are by the Sentencing Council, which was created for that very purpose?

[Lord McNally]

My Lords, even as I was saying the words about the decision on mandatory sentencing, I had the noble and learned Lord very much in mind. I know his views on the matter. We will have to see how the matter goes through. I know that there are conflicting opinions on it. As I have said, my inclination is for a lot more judge power to be employed, rather than finding the prison population surging not because of a surge in crime but because changes have snared people who might not otherwise have been sent to prison.

On Schedule 21, we want a simpler and more transparent sentencing framework that is also more coherent. We consulted on a proposal to reform Schedule 21—as a possible simplification of the sentencing framework, rather than a measure to change sentencing practice—which sets out the starting point for determining the minimum terms to be served by an offender receiving a mandatory life sentence for murder. There was some support for revisiting the drafting of those provisions, but others took the view that the courts have already interpreted them in a consistent and flexible way. We have therefore concluded that reform is unnecessary at present.

Crime: Rape

Debate between Lord Lloyd of Berwick and Lord McNally

Tuesday 24th May 2011 Lords Chamber

[Lord McNally]

I know that the noble Lord has raised these matters on a number of occasions. The Government’s sentencing and legal aid Bill will shortly come before the House—or, rather, before Parliament, as it will go to the Commons first—and it will give us a chance to consider again the issues that he has raised consistently. However, his assertion that there are large numbers of false claims for rape is not, as far as I am concerned, borne out by research.

[Lord Lloyd of Berwick]

My Lords, leaving aside what the Lord Chancellor may have said, does the noble Lord agree that sentencing in rape cases, as indeed in all cases, is a matter for the judges? Subject to the maximum sentence for any given crime, which in the case of rape is, as the noble Lord has pointed out, life imprisonment, it is for the judges to decide where the particular case fits, subject of course to the guidance of the Sentencing Council.

[Lord McNally]

My Lords, perhaps this is an opportune time to say from the Dispatch Box that this is certainly a case where Parliament should trust the judges, and so should society at large. Only the judge hears the full case, the full information and the full background and is able to make a proper judgment as to the required punishment. Nobody should be in doubt that the judiciary, the Government and society at large treat rape very seriously and the perpetrators will be punished appropriately.

Courts: Super-injunctions

Debate between Lord Lloyd of Berwick and Lord McNally

Thursday 19th May 2011 Lords Chamber

[Lord McNally]

That is an extremely interesting question, one I hope that the Master of the Rolls has been considering and one to which he will give the answer tomorrow—I think.

[Lord Lloyd of Berwick]

Would the noble Lord accept that, of course, the judges take the public interest into account at the moment when deciding whether to grant a super-injunction? Would he also accept, as has been said so often, that the public interest in this connection is not to be equated with what may be of interest to the public?

Justice: Civil Litigation Reform

Debate between Lord Lloyd of Berwick and Lord McNally

Tuesday 29th March 2011 Lords Chamber

[Lord Lloyd of Berwick]

My Lords, I welcome the review of civil justice. One problem with the civil justice system is that we have, over the past 10 years or so, succeeded in creating what amounts to a parallel system of criminal justice enforced by the civil courts, thus adding to the burden that already exists for the civil courts to discharge. I have in mind in particular the serious crime prevention order and the violent offender orders. Those are just examples of what we are doing; there are many others. Would it not be better for what are essentially matters of criminal justice to be dealt with in the criminal courts and not in the civil courts, thus relieving the pressure on the civil courts? Could the Minister see his way to somehow looking again at the serious crime prevention orders and the violent offender orders and repatriate them, if that could be done, to the criminal courts rather than the civil courts?

[Lord McNally]

My Lords, I will certainly not bluff the House that I am able, with no legal training, to assess the noble and learned Lord’s suggestion. These are still proposals, and his intervention will be reported back to the Lord Chancellor. If his suggestions have merit—and coming from that source, I have no doubt that they do—I am sure they will be given full consideration before we bring forward our final proposals.

Crime: Media Reporting

Debate between Lord Lloyd of Berwick and Lord McNally

Tuesday 8th February 2011 Lords Chamber

[Lord Lloyd of Berwick]

My Lords—

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

My Lords, I think that we shall take a question from the Cross Benches and then from the noble and learned Lord.

[Lord Lloyd of Berwick]

My Lords, in high-profile cases, as I am sure the Minister knows, the police are often under great pressure from the press and others to make an arrest. Does she agree that it is all the more important in such cases that the police should be scrupulous in applying the test of reasonable suspicion, which is an objective as well as a subjective test?

Crime: Murder

Debate between Lord Lloyd of Berwick and Lord McNally

Monday 24th January 2011 Lords Chamber

[Lord Lloyd of Berwick]

To ask Her Majesty’s Government whether they plan to reconsider their decision, announced in the Ministry of Justice Green Paper Breaking the Cycle: Effective Punishment, Rehabilitation and the Sentencing of Offenders, not to abolish the mandatory life sentence for murder.

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

My Lords, the Government have no plans to abolish the mandatory life sentence for murder.

[Lord Lloyd of Berwick]

I thank the noble Lord for that Answer. Is he aware of recent research that shows that the public are not in favour of a life sentence in every case of murder, as is so often thought, especially not in cases where the conviction has been of a mercy killing? Seventy-nine per cent of those consulted in face-to-face interviews last May said that they thought that nine years or less would be sufficient in such cases, which corresponds almost exactly with a recent decision in the Court of Appeal that reduced the minimum term from nine years to five years. Against that background, why do the Government continue to think that a life sentence is necessary in every case of murder? Why not leave it to the judge to decide on the facts of the particular case? Why not at least consult the public on this in the consultation exercise that is currently taking place?

[Lord McNally]

My Lords, the noble and learned Lord is referring to the Nuffield Foundation report Public Opinion and Sentencing for Murder. I know that because he was generous enough to send me the report, which, in my reading, shows that there is a good deal of public confusion about the law of murder. Perhaps there is a need for greater education and explanation. The blunt fact is that the Government considered these and other proposals in the recent, or not so recent, Law Commission report on the matter. However, they came to the conclusion that the time was not right to take forward such a substantial reform of our criminal law.

Legislation

Debate between Lord Lloyd of Berwick and Lord McNally

Monday 17th January 2011 Lords Chamber

[Lord McNally]

Because sometimes, my Lords, the procedures of the House do not allow for non-tired Lords, but I cannot believe that a piece of legislation the total number of hours for which it has been scrutinised by this House will, at some time tonight, exceed the total time for which it was scrutinised in the other place has been subject to any abuse whatever on this side of the Chamber.

[Lord Lloyd of Berwick]

My Lords, are there any plans, as there once were, to consolidate the mass of recent legislation on terrorism? That would be a great aid towards simplification.

[Lord McNally]

I cannot give an instant response but, as so often with the noble and learned Lord’s interventions, it is a good suggestion, not least because I understand that some of the pieces of terrorism legislation passed over the past decade were never actually put into practice.

Justice: Magistrates’ and County Courts

Debate between Lord Lloyd of Berwick and Lord McNally

Monday 15th November 2010 Lords Chamber

[Lord McNally]

My Lords, the attraction of multi-purpose buildings has a superficial appeal. The problem is that many of them that might offer that up have no facilities for custody or for victims and witnesses and poor security for professional staff and judges. Therefore, although we will look at the case for that use, the best way is to have modern, purpose-built courts that can dispense justice efficiently. On the first part of my noble friend’s question, yes, we are well aware of the long-standing role of magistrates. Next year will be the 750th anniversary of magistrates in this country.

[Lord Lloyd of Berwick]

My Lords, I declare an interest as a former president of the Sussex Magistrates’ Association, and I am sorry to say that the magistrates’ court at Lewes is currently under threat of closure. Does the Minister agree that the more work we can channel into the magistrates’ courts, the better? If so, why do we not now consider raising their jurisdiction limit from six months’ imprisonment to 12 months’ imprisonment?

[Lord McNally]

My Lords, I take note of that advice. One of the objectives in the Government’s review of sentencing, which will be published shortly, is to ensure that a proper volume of work goes through the magistrates’ courts.

Law Reform: Murder

Debate between Lord Lloyd of Berwick and Lord McNally

Monday 12th July 2010 Lords Chamber

[Lord Lloyd of Berwick]

To ask Her Majesty’s Government whether they will bring forward proposals for reforming the law of murder.

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

My Lords, we are mindful of the recommendations of the Law Commission’s report, Murder, Manslaughter and Infanticide. This is one of the issues at which the Government will be looking in their review of sentencing policy in general.

[Lord Lloyd of Berwick]

My Lords, I thank the noble Lord for that Answer. Does he accept, as I think he does, that reform of the law of murder is now long overdue? If so, I have two questions for him. First, is he aware of any other country, whether in Europe or the Commonwealth, that has a mandatory sentence of life imprisonment in all cases of murder, including, for example, cases of mercy killing? Secondly, does he agree that it is the mandatory sentence which distorts this branch of the law and stands in the way of much needed reform?

[Lord McNally]

My Lords, I would not presume to give my own judgment on that, but I suspect that the noble and learned Lord is right that there are few precedents for that very broad sweep of our law. He is also right to say that the Law Commission's report puts forward a variety of alternatives which would give a degree of flexibility to the judiciary when dealing with this matter. I know that the Lord Chancellor is sympathetic to the line taken by the Law Commission. It is a matter of consulting and then finding time to bring forward proposals on the second part of the commission's report. As the noble and learned Lord knows, the previous Administration brought forward partial proposals, and we are now looking at the matter with a sense of urgency.