Prisoners: Indeterminate Sentences
Lord Marks of Henley-on-Thames Excerpts(10 years, 1 month ago)
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Lord Marks of Henley-on-Thames (LD)
My Lords, in 2008 the previous Administration recognised the difficulties that the mandatory imposition of IPPs had caused when they made the changes to increase judicial discretion and remove short-tariff sentences for sentences passed after July 2008. Yet there remain in prison many who were sentenced to IPPs before that date and whose short-tariff sentences were completed long ago, as the noble and learned Lord, Lord Lloyd, has just pointed out. He gave us the numbers and they are truly shocking. I pay tribute to the noble and learned Lord for his sustained and impressive campaigning on this issue over a long time.
In 2010, through the then Prisons Minister, my honourable friend Crispin Blunt, the Government publicly recognised that the present position was indefensible because it was clear that many IPP prisoners were being held well beyond their tariff dates for no better reason than that the Prison Service was unable to provide the courses necessary for them to satisfy the Parole Board of their suitability for release. Then, in 2012 this Government, to their credit, recognised the injustice of IPP sentences when they abolished them in the LASPO Act. Also in 2012, as has been pointed out by the noble and learned Lord, Lord Phillips, the European Court of Human Rights recognised the injustice when it decided the case of James, Wells and Lee v the United Kingdom, broadly on the ground that, given the lack of the rehabilitation courses necessary to establish suitability for release, the continued detention of the applicants in that case amounted to the arbitrary deprivation of their liberty, contrary to Article 5.1.
Neither the changes introduced by the Criminal Justice and Immigration Act 2008 nor the abolition of IPP sentences by the LASPO Act had any retrospective effect. The result is that we are now left, as the noble Lord, Lord Wigley, pointed out in his extremely helpful and informative introduction to this debate, with an impossible and indefensible injustice.
The current position is that on the one hand there are in prison many who are serving indeterminate terms well after their tariff sentences have been fully served, often with short-tariff sentences imposed before the two-year restriction was introduced. Many of those prisoners see, and have, no hope of early release because the necessary resources to secure their release are still not being provided in sufficient quantity or at sufficient speed. The system is still overwhelmed by its inability to cope with the stresses placed upon it. On the other hand, many of those sentenced to similar tariff terms more recently—after abolition—who would have received an IPP sentence before abolition have now been, and are being, released after serving their determinate sentences in full, well before those who are still held on IPPs, having been sentenced earlier.
What should the Government do? As the noble and learned Lord, Lord Lloyd, pointed out, the LASPO Act, by Section 128, specifically gives the Secretary of State wide powers to deal with the injustice of existing IPPs. The first power is to provide by order that, following a referral, the Parole Board must direct release if certain conditions are met; the second is the converse—that he may provide that the Parole Board must direct release unless certain conditions are met. The careful use of either power would enable the Secretary of State to put an end to the injustice highlighted in this debate that now disgraces our criminal justice system, while ensuring that prisoners whose release would genuinely present a serious danger to the public are kept in prison until their release is judged safe. Yet, despite the power contained in and legislated for in Section 128, the Government have so far resisted retrospectively altering sentences on the basis that those were sentences passed by judges acting in accordance with the law as it was at the date of sentencing.
Your Lordships’ House is very familiar with the arguments against retrospective legislation but, as my noble friend Lord Dholakia pointed out, they are generally deployed to avoid doing injustice to persons who were unaffected by restrictions before the passage of legislation. I have never heard them deployed in favour of continuing an injustice to those currently affected by unfair and oppressive legislation.
There is a further answer to the argument that bringing forward release dates now would overturn decisions of judges made according to the law in force at the time of passing the sentences. Many of the IPPs imposed were imposed because the judge’s hands were tied, often by judges acting through gritted teeth in compliance with what they regarded as, and what was, a bad law. That is no ground for demanding respect for those sentences now.
Whether the best solution is to treat all existing prisoners on the basis on which they would have been treated had they been sentenced after 2012, or to give them the option to be so treated, as the noble and learned Lord, Lord Lloyd of Berwick, suggests, or whether it would be best simply to introduce a presumption in favour of release unless continuing incarceration can be clearly justified, under the second limb of Section 128, the present injustice cannot in conscience be permitted to continue. If my noble friend’s response to this debate goes no further than saying that the Government will simply try a little harder to speed up the rate of release of prisoners caught by IPPs, that will not, I suggest, be a response that goes anywhere near meeting the need for a genuine solution. Tinkering around the edges of the old system will not be a solution.
It is important to remember that there is a special feature of IPPs. They were sentences imposed not for crimes that had been committed but for fear of crimes that might be committed in the future. It is clear that your Lordships recognise, as we all must, that public protection is an important function of punishment. However, it is also important that those involved with the criminal justice system and the public at large have the confidence that our system of justice is indeed fair and just. Where that system perpetrates and then maintains an obvious injustice, long after it has become recognisable and has in fact been recognised as such, our system cannot and does not deserve to command that confidence. We who support this Government have been proud of the rehabilitation revolution that we have introduced. The continued detention on IPPs of prisoners long beyond their tariff dates is the antithesis of that rehabilitation revolution, and we should end it.
Sentencing Council: Guidelines
Lord Marks of Henley-on-Thames Excerpts(10 years, 5 months ago)
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Lord McNally
My Lords, the Sentencing Council is a product of the Coroners and Justice Act 2009. I believe that that is a very good piece of legislation, because it places an obligation on courts, when sentencing for offences, to follow the guidelines of the Sentencing Council unless,
“it would be contrary to the interests of justice to do so”.
What that does, I hope—this was the intention of the legislation—is to bring consistency into sentencing, which we hope, as I think our predecessors hoped, gives greater confidence in the criminal justice system.
Lord Marks of Henley-on-Thames (LD)
My Lords, the Sentencing Council guideline affirmed what is known as the totality principle. It generally works well in securing a uniform approach to sentencing for multiple offences that balances the need for reflecting overall criminality with the need for sentences that are just and proportionate. But does the Minister agree that, as the noble Baroness’s Question illustrates, much more needs to be done to explain this to a public who are very sceptical?
Lord McNally
Yes, I would agree. The totality principle requires that courts review the aggregate sentence against the totality of the offending behaviour and adjust it to ensure that it is a proportionate overall sentence. The noble Baroness who asked the Question made the point that the public, as they read these reports, are often dissatisfied with what they consider to be soft justice. I think that the more they understand the sentences, the more they will have confidence in them. Another reform by the previous Administration requires that judges more fully explain their judgments, and that is a welcome step in giving people greater confidence about why a particular sentence was given. I confess to a certain reluctance about televising the courts as I am worried that there could be the kind of slippery slope that we see in the American courts, but the changes that I have seen so far should give the public a better understanding of the system, and that can only be to the good.
Probation Services: Privatisation
Lord Marks of Henley-on-Thames Excerpts(10 years, 6 months ago)
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Lord McNally
I have great confidence in the human resources work that is being done to make sure that, where work is transferred across to the private and voluntary sector, existing probation officers get good opportunities for employment. My view is that many of the new entrants into this market will want to grab the experience of existing probation officers. I also hope that we can push forward with the idea of a chartered institute of probation, which again would give probation and probation officers the status that they previously lacked in our system.
Lord Marks of Henley-on-Thames (LD)
Can my noble friend say what steps the Government are taking to ensure that the new owners of the community rehabilitation companies, when they are sold by the Ministry of Justice in the second stage of this process, will represent the diverse range of providers that he described and which the Government seek, rather than just a handful of large commercial organisations?
Lord McNally
This also is work in progress and where we have learnt, including from some past mistakes. We have put aside money to allow would-be entrants, particularly in the voluntary sector, to prepare for bids. My impression is that we are tapping into a large unused resource. Let us never lose sight of what we are bringing forward. The part of the bargain that really excites me is that we are going to be able to give help, support and rehabilitation measures to those who are sentenced to less than 12 months, the very sector which includes some of the most prolific reoffenders. This is a rehabilitation revolution. Although transfer and change are always difficult, we have this on track. However, in answer to the original Question asked by the noble Lord, Lord Ramsbotham—and I know the care with which he takes an interest in this—we will be keeping these matters under constant review and, as always, I am willing to meet him on these matters.
Human Rights: Vinter and Others v United Kingdom
Lord Marks of Henley-on-Thames Excerpts(10 years, 6 months ago)
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Lord McNally
I am anxious about living in a time when both major parties advocate a more punitive approach to crime and punishment. I hope that the leaders of both parties will ponder a trend over the past 40 years in our society which looks more to punishment and less to rehabilitation. I should also mention the chutzpah of the Opposition because it was under their watch that this right was taken away in 2003. Whether that happened by mistake or by intention, I do not know, but it was under the previous Government that the provision covered by the ruling just made against us in Strasbourg was passed. We have had to pick up a lot of debris about human rights. The previous Government sat on the prisoner decision for five years and did nothing, so I will not take any kind of lectures from that side of the House.
Lord Marks of Henley-on-Thames (LD)
My Lords, does my noble friend agree that we must comply with the Vinter decision in July, given our treaty obligations and our respect for the rule of law? Will the Government now reintroduce a review procedure for whole life cases to give prisoners serving them some hope of eventual release, other than purely on compassionate grounds, if and when their imprisonment plainly no longer serves a public purpose?
Lord McNally
That is one possible outcome of the consideration now taking place. At the moment, we are reviewing the matter in the light of this judgment. I cannot take the House any further in that direction. Nevertheless, it is a very interesting and, if I may say so, a very liberal approach to the problem that we face.
Inheritance and Trustees’ Powers Bill [HL]
Lord Marks of Henley-on-Thames Excerpts(10 years, 6 months ago)
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Lord Marks of Henley-on-Thames (LD)
My Lords, I, too, welcome this Bill. As my noble friend has explained in his lucid and comprehensive introduction, it implements some of the proposals in the Law Commission’s 2011 report, Intestacy and Family Provision Claims on Death.
Particularly welcome is the improvement of the position of spouses and civil partners as compared with the position of remoter relatives. It is entirely right that where a deceased leaves a spouse or civil partner but no children, the spouse or civil partner should take the entire estate. It is also right that where there are surviving children as well as a surviving spouse or civil partner, then that survivor should take not just the statutory legacy absolutely but also his or her half of the residue absolutely. The complication and the capacity for encouraging disputes that was inherent in the existing arrangement, whereby the survivor’s half interest was held on a life interest only, should be done away with. I believe that these and other changes in the Bill chime with contemporary views of family life. They also accord more readily than do the present arrangements with the economic realities of dependency. These changes will help avoid the difficulty, the expense and the time involved in bringing claims for family provision under the 1975 Act as well.
In the case of family provision, my noble friend has stated that the Government intend to abandon the provisions presently in the Bill to reform the domicile threshold for bringing a family provision claim. Families and family wealth are increasingly international, and not only among the wealthy. I would suggest that there are cases where claims against the estate of non-domiciled deceased persons ought to be capable of being brought. It may be that habitual residence of a potential claimant is not an appropriate test for the reasons of Scots law and practice that my noble friend gave. But in this respect, as he reminded us, the provisions in the Bill differ from the Law Commission’s original proposals. The Law Commission report recommended that the existence of real property in England and Wales, or property to which domestic succession law applied, should be the alternative threshold condition apart from domicile of the deceased, whereas, as my noble friend has said, the Bill in its present form would have established habitual residence of the potential claimant as the alternative threshold condition.
I wonder whether the existence of real property here, or property to which domestic succession law applies, should, as the Law Commission proposed, even in the absence of domicile of the deceased or habitual residence of the claimant, justify a financial provision claim. I hope that the Government, rather than simply abandoning the position by amendment, will consider whether there is an alternative way of effectively widening the present threshold.
In connection with family provision claims, it is plainly right that we should add as an eligible person a child treated by a parent as a child of the family; that change is plainly welcome.
The Bill, however, implements only one part of the recommendations of the Law Commission’s 2011 report. As my noble friend also pointed out in his introduction, the other part comprised its recommendations for provision for cohabitants to take under the intestacy rules after five years’ cohabitation, or two years if the cohabitants had children living with them. Those proposals were incorporated in a separate draft Bill, the Inheritance (Cohabitants) Bill, which was annexed to the Law Commission’s report.
The Government have not sought to implement those provisions either in this Bill or in any other Bill. I differ from my noble friend and the Government in my assessment of the wisdom of this. It was left to my noble friend Lord Lester of Herne Hill to bring in a Private Member’s Bill in the terms of the Law Commission’s draft in the previous Session in an attempt to secure the implementation of these recommendations relating to cohabitation. That Bill fell for lack of time and government support after Second Reading in this House. Its provisions are now included in my Cohabitation Rights Bill, which was introduced in this House earlier this month.
The fate of those provisions is not my only concern in this area. The Law Commission in 2007 produced a lengthy and detailed report entitled, Cohabitation: The Financial Consequences of Relationship Breakdown. In that report, the commission recommended a limited scheme of financial relief to adjust economic disadvantages arising out of cohabiting relationships and to share the benefits derived from such relationships.
Again, my noble friend Lord Lester of Herne Hill introduced a Private Member’s Bill in 2008 which would have introduced reforms which were not the same as but similar to those proposed by the Law Commission. The Labour Government did not support that Private Member’s Bill, the noble and learned Baroness, Lady Scotland, then the Attorney-General, saying that the Government wished to await the outcome of research into how the Scottish legislation to similar effect, passed in 2006, was working.
In September 2011, four years after the Law Commission’s 2007 report, when I asked an Oral Question of the Government on this issue, they announced the same day by Written Ministerial Statement that there would be no action taken by the Government in this Parliament to implement the Law Commission’s proposals. Those proposals on financial relief on relationship breakdown are now the central part of my Cohabitation Rights Bill. However, in the nature of things and despite any optimism on my part, it may be some time before that passes into law.
Meanwhile, more and more cohabiting couples in England and Wales—nearly 6 million people now cohabit in the United Kingdom—go without the legal protections on breakdown or death that the Law Commission has firmly recommended that they should have. This is against the background of widespread public confusion about the position in law of people who choose to cohabit. In a British Social Attitudes survey in 2006, no less than 58% of respondents thought that cohabiting couples who split up were probably or definitely in the same position as married couples. The myth of the common law marriage is widespread, but it is just that, as your Lordships know: a myth without any foundation in law.
Reform of the law relating to cohabitation enjoys widespread judicial support. Scotland has had a cohabitation law similar to that proposed by the Law Commission since 2006. Ireland introduced similar legislation in 2010. This is what the noble and learned Baroness, Lady Hale, our one woman Supreme Court judge—and how regrettable it is that she is the only one—said last July, in a major case on the Scottish Act in the Supreme Court, Gow v Grant:
“The main lesson from this case, as also from the research so far, is that a remedy such as this is both practicable and fair. It does not impose upon unmarried couples the responsibilities of marriage but redresses the gains and losses flowing from their relationship”.
She concluded:
“‘The Act has undoubtedly achieved a lot for Scottish cohabitants and their children’. English and Welsh cohabitants and their children deserve no less”.
This is not good enough. The Law Commission’s proposals on separation were made in 2007 after a long and detailed consultation, and on intestacy in 2011. They were thorough and carefully considered. The Law Commission is the independent body set up by Parliament to recommend to the Government necessary law reforms, with a mission to keep the law fair, simple and modern. Yet in spite of repeated pleas from the professions and the judiciary at all levels to implement the commission’s proposals, no action has been taken.
I am not saying that any proposal of the Law Commission should automatically be implemented without parliamentary scrutiny—far from it. Of course it is for Parliament to determine what proposals it will implement and what it will decline to implement. However, the point of having the Law Commission is to achieve reform of the law, and that central function risks being thwarted by the failure of government at least to bring legislation before Parliament to implement the commission’s proposals. I suggest that the default position at any rate should be that the Government should bring forward legislation for consideration by Parliament when the Law Commission makes detailed proposals for law reform.
As a result of a decision taken by the conference of my party in Glasgow this autumn, the implementation of the Law Commission’s proposals on intestacy and on relationship breakdown is now Liberal Democrat policy. However, that in a sense highlights the problem. Proposals of the Law Commission for law reform should not have to be the stuff of party politics. I do not disagree with my noble friend Lord Henley that this fast-track procedure should not be available for every controversial proposal of the commission, but that does not mean that the proposal should not be brought before Parliament to be debated in the usual way. Governments of all parties should regard it as incumbent upon them to bring legislation before Parliament to implement Law Commission proposals.
Under the protocol set out in the Law Commission Act 2009, agreed between government and the commission, the Lord Chancellor is under a duty to report annually to Parliament on progress in implementing Law Commission reports. The Government must take that protocol seriously and indicate a high duty in this area. The progress on cohabitation reform suggests that such a duty has not been taken sufficiently seriously to date. The Bill is welcome but does not go far enough. One is left with an uncomfortable sense that we are implementing the easy and non-controversial proposals and ducking those that are more controversial. I adapt the words of the noble and learned Baroness, Lady Hale: the Law Commission’s proposals deserve better than that.
Lord McNally
My Lords, we have had a good debate, which I am sure bodes well for very interesting discussions in the Public Bill Committee. I again put on record my thanks to the noble and learned Lord, Lord Lloyd, for taking on the responsibility as chair of that Committee. As noble Lords will have gathered, I am also much reassured by the presence close by of Professor Cooke as I try to give answers to matters raised by noble Lords.
The first of my noble friend Lord Henley’s questions was about the situation where there is no surviving spouse or children. In such a case, the law remains the same. As to how the fixed sum was reached, that came out of a study in 2005, which made me think that it might be ripe for looking at again. On the question of whether this is a surprisingly large sum, one of the factors is housing, which makes it relatively easy for an estate to have quite large sums in it. Nevertheless, I am told that it affects at the moment only 2% of estates, partly because, as was mentioned, people who have a house and realise that its value is rising have the incentive to make a will.
The point that my noble friend raised about chattels is one that we may well explore in Committee. As I think my noble friend Lady Hamwee said, it is in respect not just of jewellery but of paintings and other things where there might be a wavy line between investments and chattels. That is certainly something to look at. For the same reason that I will refer to when I come to the interventions of my noble friend Lord Marks, I assure my noble friend Lord Henley that this procedure will be used only for non-controversial reforms. That is its strength and why Parliament has confidence in it. We should keep to that kind of discipline.
As the noble Lord, Lord Beecham, said, the noble Lord, Lord Wills, took us to interesting areas. However, the noble Lord was right to point out the danger of mischief and of the abuse of elderly and isolated individuals. Much of that is the responsibility of the Office of the Public Guardian, which also comes within my ministerial responsibilities. Allegations of theft or overcharging by any professional are serious and concerning but I do not believe that this Bill is the right place to tackle such misconduct. The Inheritance and Trustees’ Powers Bill does not directly deal with wills but instead focuses largely on situations where no will has been made. Dealing with the concerns raised by the noble Lord would not only expand the content of the Bill to deal with wills but would mean taking it into the territory of professional legal regulation, which would be a very significant step and is already dealt with under the auspices of the Solicitors Regulation Authority and the Law Society. However, the Committee will undoubtedly consider the points made by the noble Lord, Lord Wills, carefully unless the chairman rules that out. Not that I am not suggesting that will happen—we look forward to an interesting debate on any amendment tabled by the noble Lord, Lord Wills.
My noble friend Lord Marks gave us a glimpse of the detail into which Liberal Democrat conferences go in making policy. I cannot quite remember the debate myself, but I am sure there were many speeches from the floor that dealt with our policy on this. I have to say to my noble friend that he used a good deal of his speech to talk about things that we have not done and were not in the Bill. These are very relevant and may well need to be brought before Parliament, but he gave the game away at the end of his peroration when he described the issues that we have left out of the Bill: he will see when he reads Hansard that several times he used the word “controversial”. It is because they were controversial that they fell foul of the request of the noble Lord, Lord Henley, that we stay clear of that.
Lord Marks of Henley-on-Thames
My Lords, I draw my noble friend’s attention to a distinction that I hoped I had made between controversial proposals of the Law Commission, which I suggest ought to be brought before Parliament for legislation, and non-controversial proposals, such as are included in the Bill, which are suitable for this procedure. I hope I was making it clear that I do not suggest that this fast-track procedure is suitable for controversial legislation, but I do suggest that the Law Commission should not be frightened or intimidated away from introducing controversial proposals. Indeed, when considering its new, 12th—I think—programme of law reform, it has made it clear that it does not propose to steer clear of controversial proposals. I believe that that is thoroughly laudable.
Lord McNally
I could not agree more. I also say that I take very seriously my responsibility to bring the non-controversial parts of the work before the House.
Whether we should take the non-domicile question out of the Bill can be looked at in Committee. It seems to me that what we have done is no more than to recognise the realities we face in our relations with our Scottish colleagues, but I take on board the point made by my noble friend Lord Marks that in an increasingly international world some of this might have cross-border dimensions.
My noble friend Lady Hamwee made the point about housing now being a big part of any inheritance. She also raised the question of inheritance tax implications. We can look at that in Committee if necessary, but on her specific question about the commencement provision, there is no precise timing as yet, but the intention is that commencement will be all at one time.
I was extremely pleased by the contribution of the noble Lord, Lord Shaw, both for his welcome for the Bill and for the personal example that he gave, which was extremely helpful to the Committee. I shall treasure the compliment of the noble and learned Lord, Lord Lloyd; I shall tuck it away. We will have to leave it to the historians to decide whether it is Wills, Ashton, Etherton or one of the joint parentages we were talking about earlier in the debate. Nevertheless, the fact that the noble and learned Lord has been willing to take on the chairmanship has given an impetus and confidence to this procedure.
I was greatly sorry that the noble Lord, Lord Beecham, did not take this opportunity to give us a quote from Bleak House. Surely there is one somewhere here.
Judicial Appointments Commission Regulations 2013
Lord Marks of Henley-on-Thames Excerpts(10 years, 10 months ago)
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Lord Marks of Henley-on-Thames
My Lords, I wish to make a brief general point about judicial diversity in connection with these regulations. The Committee knows that my noble friend is a forceful advocate of judicial diversity. The Government’s commitment was apparent during the passage of what is now the Crime and Courts Act, and in particular in their promotion of the provisions which find expression in Schedule 13 to that Act. While not wishing to make any judgment about the recent appointment to the position of Lord Chief Justice it is, from the diversity point of view, a shame that the extremely highly thought-of female candidate was not selected. That would have been real and very public progress.
These regulations implement the new systems in ways that are both detailed and welcome, but the imperative is to ensure that we move towards a much more representative judiciary with more women, more ethnic minority judges and judges from a far broader range of social background. These regulations can be no more than a step on the way to achieving that. While they are detailed and welcome provisions, to achieve real change we need a deep and continuing change of culture. That was highlighted in the report of the Advisory Panel on Judicial Diversity, chaired by the noble Baroness, Lady Neuberger and mentioned by my noble friend. I look forward in the future to Government and the judiciary working together to achieve that change.
Lord Hope of Craighead
My Lords, I shall make a short point relating to the Supreme Court (Judicial Appointments) Regulations. Before I explain my point, I should declare an interest. I recently retired as deputy president of the Supreme Court. For the past four years I have been a member of the ad hoc commission and thus responsible, along with the president, for a number of appointments, which have included something like a third of the court now sitting as the Supreme Court across the square.
My point relates to diversity in a rather unusual way. As the Minister has explained, one of the aims of redesigning the composition of the selection commission described in Part 3 of these regulations is to meet the recommendation that the commission should no longer be seen to be appointing or selecting for appointment people in their own image. It may be that that was a fair criticism at the time when I was sitting as one of the two judicial members of the panel since the president and I were both men, but I have just retired and I have been succeeded by the noble and learned Baroness, Lady Hale of Richmond. In a way, this follows on from a point just made by the noble Lord that one may regret for diversity reasons the choice of Lord Chief Justice. I make no comment on that, but one great advance that has been made in the Supreme Court is that we now have the noble and learned Baroness, Lady Hale, who is a very vigorous proponent of diversity and is probably best suited of anyone to sit on such a commission.
It is a great misfortune of timing. If she had been in my position when the noble Baroness, Lady Neuberger, came with her members to visit us and to discuss the change, I am sure that the noble Baroness would have seen—it would have been perfectly obvious—that the noble and learned Baroness was there and that we had on our team every component for diversity one could possibly have wished for. As the noble Lord rightly explained, when the draft regulations were discussed with us, it was impossible to make the point that the noble and learned Baroness, Lady Hale, might be my successor because I had not yet resigned and the selection process for my successor had not yet taken place. Therefore, we were very cautious not to make any prediction about who would succeed me. The succession process produced this result only about four weeks ago.
It is a great misfortune of timing has led us to the position where the noble and learned Baroness will now be excluded from participation in the selection process. The regulations are very carefully drafted because the composition of the selection commission in Regulation 11 provides for a senior UK judge to be nominated to take the position which I previously occupied. It is quite clear, if you read Regulation 11(1)(e) with Regulation 14 and Regulation 2, that the senior UK judge can be any senior UK judge other than a judge of the Supreme Court. So it is quite clear it can only be the president who would be the Supreme Court member, and the noble and learned Baroness, Lady Hale, has no prospect of playing any part in the work of the commission.
The way that the appointments have gone in the Supreme Court in recent years means that there will be no fresh vacancy, I think I am right in saying, for two or three years. Now that I have gone, the way is clear for the court to settle down without any real change. However, in two or three, or possibly three or four years’ time, a significant number will retire and fall to be replaced, and the noble and learned Baroness will still be there. The composition of what one might call the next but one Supreme Court will be greatly influenced by the work of this commission. It is a great pity that the reform has taken this form. As I said earlier, I doubt very much whether it would have done before, but I must concede that the Minister is absolutely right to say that the regulations were shown to us. We did the best we could in our discussions to make this point without naming names.
The purpose of my intervention is to express regret at this turn of events and hope that perhaps one day it may be possible to recognise the enormous qualities of the noble and learned Baroness, Lady Hale, and the major contribution she would be able to make to increasing diversity in a way which concerns us all.
Lord McNally
I repeat that these regulations have gone through the most thorough mincer in gaining the approval of the Lord Chief Justice and the President of the Supreme Court. They have been examined by the Constitution Committee and very thoroughly by both Houses. I think that the noble and learned Lord, Lord Hardie, is making a new point. I can only take it back to colleagues but that was not how we saw the position in terms of having CILEx members. I think that a CILEx member is now a judge, although admittedly of a tribunal. CILEx members can apply for judicial office. Although I cannot withdraw the regulations, I will draw this to the attention of the Lord Chancellor and—
Lord Marks of Henley-on-Thames
My Lords, I wonder whether part of the answer to this is that membership of CILEx is one of the three possible qualifications. Members of CILEx are practising in all fields of the law. All this is saying is that a member of CILEx can be appointed to the commission. It has nothing to do with the possible appointment of a CILEx member to a judicial post.
Lord McNally
That is most certainly true. When I saw the noble and noble and learned Lords gathering, I should have known that this was not going to be an easy task. One of the great benefits of the House of Lords—those who know that I am an avid reformer should take note of this—is there are not many places where one could get such profound legal advice so cheaply. For that, I am extremely grateful to noble and noble and learned Lords. I would again ask that they pass these regulations, but with the firm promise that the points that have been raised will be drawn to the attention of the Lord Chancellor.
Legal Aid
Lord Marks of Henley-on-Thames Excerpts(10 years, 10 months ago)
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Lord Marks of Henley-on-Thames
My Lords, I add my congratulations to those of noble Lords who have already spoken to the noble Baroness, Lady Deech, on securing the debate and the way in which she opened it. I also declare an interest as a practising barrister. My noble friend Lord Phillips of Sudbury, who is unfortunately unable to be here, asked me to say that, as one who has fought for legal aid all his professional life, he wishes that he had been able to contribute to this debate.
In the debate on the gracious Speech, I suggested that there was a need for a fresh settlement between the Government and the professions over legal aid. I am bound to say that the past few weeks have more than ever convinced me of that. The Government and the professions appear at times to be in a hostile stand-off. It is bad for both the Government and the professions, but it is also bad for justice and bad for the public’s confidence in our system of justice.
The starting points are that we recognise the need to save money in this area and that the professions must recognise that the Government do not owe them a living. However, the Government must accept that the professions are not simply special pleading but have genuine and justified concerns about access to justice for the many who need, but who cannot afford to pay, lawyers. Of course, they include the most vulnerable in our society, but we should not forget that they also include millions of ordinary people who can meet their day-to-day expenses but cannot afford the sudden demands of expensive legal costs for them or their families.
A new settlement can be achieved only by dialogue, and it is therefore welcome that the Government have already been responsive to the consultation, particularly over the issue of choice of lawyer. For myself, I regard the right of a defendant to choose his lawyer as fundamental for three reasons. First, it is wrong for the state which prosecutes a case to choose the lawyer on the other side. Secondly, it is essential for a defendant to have confidence in his lawyer. That brings practical benefits in sensible and early guilty pleas where appropriate. Thirdly, choice in this area is a simple matter of liberty.
I confine myself in this short speech to making a handful of points about the Government’s proposals. Much of the controversy has of course centred on PCT. I suggest that there is much force in the argument that competition based on price rather than quality risks lowering standards. If we set only a minimum standard, we will get advocacy of a minimum standard—the so-called race to the bottom. Tendering should be based on quality as much as on price, and that should be made explicit in the application process. A precedent for that is to be found in the Health and Social Care Act, where, on persuasion, substituting competition on quality against a tariff for the original proposal for competition on price significantly improved the Government’s proposals.
The Government have invited the Bar Council to help to design a system of tendering based on quality. It is a matter of regret that the Bar Council has not accepted that invitation. Exactly that kind of dialogue is what I consider to be important. When the noble Baroness, Lady Deech, next sees the Bar Council she might consider taking that back to suggest a change of view in that area.
A further area of concern is the number of providers and their distribution. I believe that a reduction from 1,600 to only 400 providers is far too great. It will badly affect smaller firms and reduce the possibility of both choice and competition.
Attention has been drawn to the problems in multi-handed cases, where a number of defendants may need separate representation. However, I suggest that those problems could be addressed in part if we reconsidered how far the existing professional rules on conflicts of interest are working in accordance with the public interest. Should it not be possible for solicitors in the same firm to act for defendants in legally aided criminal cases where there are conflicts between the defendants’ accounts but no financial conflicts of interest for the firms concerned? Of course, there would have to be safeguards in such a system to ensure that confidentiality was maintained, but barristers in the same chambers have always appeared against each other and the distinction between self-employed barristers and partners in the firm is not, in my view, an overwhelming obstacle.
However, the present proposals risk creating advice and representation deserts where no appropriate legal advice or representation is available. This the Government have recognised, but the proposals also risk creating specialism deserts. The danger of advice deserts could be addressed by increasing the number of providers in more sparsely populated areas. The specialism issue is more difficult. I fear it may become impossible to find solicitors specialising in particular areas of crime—for example, fraud or sex offences—throughout large areas of the country. Correspondingly, specialist lawyers may find that work in their fields is not financially supportable, so specific measures are needed to allow specialists to practise.
I turn briefly to civil legal aid. The proposals on judicial review are claimed by the Government to assist in ensuring that applicants’ lawyers will be paid only for cases in which they get permission, which will filter out weak cases. However, in practice many of the strongest cases are settled at the pre-permission stage where the body, often a local authority, admits fault and settles. Why should we not fund cases such as those, especially since the Government are rightly committed to encouraging early and economical settlement of litigation? The proposal to deny an oral permission hearing in all cases deemed to be totally without merit, while it may be acceptable in cases where there is legal representation, is entirely unacceptable in cases where a judge is needed to tease out the applicant’s case on an oral hearing.
Finally, in the time available, I shall say a word or two about the residency test. I suppose it is possible to conceive of arguments about why the residency test may be at least a relevant consideration in some cases, but given the examples set out by the noble and learned Lord, Lord Irvine, it is very difficult to see that it can be imposed justly in a blanket way. If the Government are not prepared to reverse this proposal, I urge them at least to preserve a discretion. There are other areas for consideration, but I look forward to hearing the Government’s response.
Lord Ahmad of Wimbledon
My Lords, before the next speaker, I remind noble Lords that this is a time-limited debate, and the limit for speeches from the Back Benches is six minutes.
Offender Rehabilitation Bill [HL]
Lord Marks of Henley-on-Thames Excerpts(10 years, 10 months ago)
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Lord Marks of Henley-on-Thames
My Lords, in supporting this amendment, I would associate these Benches with everything that the noble and learned Lord, Lord Woolf, has said in welcoming it and in thanking the Government and congratulating them on the way in which they have considered and recognised the particular needs of women in the system. In Committee, we moved certain amendments which would have required the recognition of those needs at various points in the system and we are content that this all-embracing amendment meets them.
I would also associate myself with what the Minister said in tribute to the noble and learned Lord, Lord Woolf, who has campaigned so hard for recognition of the needs of women in this area. As a spokesman on these matters for one of the coalition parties, it gives me particular pleasure to note that we have made a great deal of progress on two of the significant issues for which he has campaigned—restorative justice and women offenders.
I particularly welcome the commitment in this amendment to transparency because, as has been pointed out during the passage of this Bill, we are entering a new era for the probation services. The ability to monitor what is being done after this legislation is passed is of considerable importance.
Lord Beecham
My Lords, I join the Minister and the noble Lord, Lord Marks, in congratulating the noble and learned Lord, Lord Woolf, and thanking him for bringing this matter to the fore in the debates on the Bill. I am happy to break the habits of a brief parliamentary lifetime and congratulate the Minister on his constructive response. I hope he finds this habit catching, in which case I promise to reciprocate.
Like other noble Lords, I have received a briefing from the Prison Reform Trust. While welcoming the amendment, there are a couple of matters on which they seek some assurance—and I would echo their request. First, that the Government should require the contractors to specify—within the contract specifications —what particular services would be provided for women, and that the tender criteria, in turn, as part of the contract, would give sufficient weighting to that element. I imagine that should not present any difficulties but it would be good if the Minister could confirm it. Equally, the commissioning bodies will be given guidance along those lines.
Perhaps I may raise a point related to women prisoners that is not specifically covered by this amendment but which has been referred to in the course of our debates—that is, resettlement prisons. It is a welcome concept and certainly should help to reduce reoffending by ensuring that women serve their prison sentences, or at least the latter part of the sentence, closer to where they are likely to return on release. I raised a question in earlier debates about the specific position of women in this respect because, as I understand it, there are only 13 women’s prisons in the country and they are not necessarily geographically distributed in such a way as to facilitate the Government’s intentions. I am not asking the Minister to confirm specifically today, but it would be good to know that that is being considered and that it is an objective which it is hoped the Government will seek to achieve. It would largely complete the work raised by the concerns now embodied in the amendment, which these Benches certainly fully support.
Legal Aid, Sentencing and Punishment of Offenders Act 2012: Part 1
Lord Marks of Henley-on-Thames Excerpts(10 years, 10 months ago)
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Lord McNally
My Lords, the Act has been in force for 99 days. It is difficult to get an accurate picture of what is happening in this sector because of a surge of applications before 1 April. However, as I said, the department is carrying out a variety of checks and researches on the impact and we will keep a careful study of what happens.
Lord Marks of Henley-on-Thames
My Lords, can my noble friend say at this stage how far organisations such as Citizens Advice appear to be coping with the changes? In particular, what, if anything, are the Government doing to assist Citizens Advice and others in the sector to introduce new methods of working to help them provide their services where legal aid is not available?
Lord McNally
My Lords, I think we have had these figures before, but since 2010 the Government have provided around £160 million to support the not-for-profit sector, £107 million for the transition fund administered by the Cabinet Office and £20 million via the advice services fund 2011. In 2010-11, the income of the national citizens advice organisation was £62.3 million, with one of its largest grants being £18.9 million from the Department for Business, Innovation and Skills. However, Citizens Advice is also getting contracts under the new Legal Aid Agency civil contracts; 35 such contracts were granted to citizens advice bureaux.
EU Treaties: Justice and Home Affairs Opt-Outs
Lord Marks of Henley-on-Thames Excerpts(10 years, 10 months ago)
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Lord McNally
I agree with both noble Lords that the European Union Committee’s report was, as one would expect, extremely thorough and thought-provoking: hence the fact that the Government are studying it very carefully. We have written to the noble Lord to beg for a little more time to produce a response. Perhaps I may therefore give him a response with which I am sure he is well familiar: the response will be coming shortly.
Lord Marks of Henley-on-Thames
My Lords, in the event that the Government were to exercise the opt-out, what improvements to the European arrest warrant system in particular would in their view be desirable in order to opt back in, at least to the arrangements for combating serious cross-border crime?
Lord McNally
My Lords, that is a good example of why we are giving careful thought to this array of measures. The European arrest warrant has played an important role in speeding up extradition arrangements between countries and represents the type of practical co-operation that we should all support. However, despite its success, the use of the warrant for trivial offences has damaged its reputation with many, and lengthy pre-trial detentions have also caused problems in some cases. It is those areas of proportionality and practicality in using the warrant that we are trying to address, both in discussions with our European partners and in looking at the process as it affects our own dealings with this warrant.