National Life: Shared Values and Public Policy Priorities

Lord Ramsbotham Excerpts

Friday 2nd December 2016 Lords Chamber

[Lord Ramsbotham (CB)]

My Lords, I always look forward to the most reverend Primate’s annual debate because he invariably chooses an important subject that does not feature in the day-to-day business of this House, and today is no exception. I begin by expressing my thanks to him for giving me the opportunity to say some things that are close to my heart, and in doing so I salute him for all that he does for our national life and the way that he does it, endorsing the wisdom of my noble friend Lord Luce’s selection.

I hope that I will be forgiven for basing my contribution on my reflections on one aspect of our national life, namely the current crisis facing our prisons. Sadly I have had to conclude that, had certain values which I will outline underpinned the shaping of priorities concerning prison policy, the crisis might have been avoided.

The ethos of my regiment, The Rifle Brigade, was laid down by an ancestor of mine, Sir John Moore, who was killed at Corunna. The regiment was to be united by a mutual bond of trust and affection between all ranks, which the officers had to earn. The first standing regulations, published in 1801, began with the following:

“For a subject to meet with attention, it is necessary that the principle upon which it is founded should be thoroughly understood.

Experience has taught all those who have fully considered the nature and composition of armed bodies of men, that the most effectual and the most just mode of securing Discipline … is by establishing such an exact gradation of responsibility, from the Field Officer who commands the Corps to the Corporal who directs the squad, that not only every individual entrusted with command knows his precise station, and what is required of him, but performs his portion of duty cheerfully, when convinced that that portion is peculiarly his share, and is not oppressive to him, the rank immediately above him being equally subject to the authority of the next in superiority”.

Prisons are not armed bodies of men, but they are operational organisations, staffed by people who, being people, respond to the leadership of other people far better than they do to impersonal instructions issued on paper. Leadership, which has been most ably mentioned by my noble friend Lord Dannatt, has in too many instances become something of a dirty word in too many parts of the public sector, being replaced by the cult of managerialism, practised by bureaucracies.

When I was colonel commandant of the Royal Green Jackets, into which the Rifle Brigade was merged, the honorary colonel of our territorial regiment was a lovely man called Richard Wood. He had lost both legs in the war at the age of 21, and subsequently became a Conservative MP and Minister of Pensions. When I asked him whom he wanted to make the speech at his retirement dinner, he replied that he would like the person to whom he gave their first ministerial job, Margaret Thatcher. She spoke of the Ministry of Pensions as being a very happy place in which to work because Richard knew everyone and it was like being in a large family, which was not possible now because ministries had become so vast and impersonal. “Whose fault is that, Margaret?”, interjected Richard. But the point of the story is that the Prison Service, part of the vast and impersonal Ministry of Justice, is not managed by an “exact gradation of responsibility”—an essential if staff are to be led to protect the public by rehabilitating prisoners.

Among the statistics that should send shivers up the spines of those responsible for shaping public policy are those showing the current skills shortages and the appallingly low levels of literacy and numeracy among young people. The educational state of those received into young offender institutions is nothing less than an indictment of the educational system in this country. Those responsible for shaping public policy should reflect on this, because it suggests that they, and too many of their predecessors, have not understood the values that underpin national life.

On the day that I was appointed Chief Inspector of Prisons, someone told me that I should look out a speech made on 20 July 1910 by the then Home Secretary, Winston Churchill, in a debate on prison estimates. I did so, and it remained on my desk for the next five and a half years. Among the hallmarks of a decent and humane criminal justice system, he included,

“an unfaltering faith that there is a treasure, if you can only find it, in the heart of every man”.—[Official Report, Commons, 20/7/1910; col. 1354.]

The only raw material that every nation has in common is its people, and woe betide it if it does not do everything possible to identify, nurture and develop the talents of its people—all its people. If it does not, it has only itself to blame if it fails. I fear that this has been ignored by too many policymakers, such as those who decreed the demise of vocational education or who pretend that everyone has the same academic ability. If only educational policy included aptitude testing, so that the innate treasure in the heart of every child could be discovered early enough for it to be nurtured and developed, there would not be such a hideous number of those who cannot read or write and those who do not have any skills that can be gainfully employed. I shall never forget the beam on one young offender’s face when such a test identified a talent, which the staff said they could develop—and then did, by finding a potential employer, who sent in teachers to increase his skill level. He left prison for secure employment. Why is there not more of this?

I rest my case, but I beg those responsible for shaping public policy to remember that people are not things and that, by ignoring proven values, they risk undermining national life.

Legal Aid, Sentencing and Punishment of Offenders Bill

Lord Ramsbotham Excerpts

Wednesday 18th January 2012 Lords Chamber

Moved by

[Lord Ramsbotham]

60: Schedule 1, page 127, line 33, after “deliberate” insert “, unlawful”

[Lord Ramsbotham]

My Lords, the purpose of Amendments 60 and 61 is to ask the Government to rectify an omission that denies legal aid to those who have been unlawfully deprived of their liberty by the state and their ability to obtain redress through the courts.

The Government’s consultation resulted in legal aid being denied except for cases that concern a significant breach of human rights—abuses of positions of power or claims arising from allegations of sexual abuse or attack. Abuse of power by a public authority—which is itself a position of power—is defined in paragraph 19 of Schedule 1 as an act or omission that is deliberate or dishonest and results in reasonably foreseeable harm to a person or property. Unfortunately, however, the extent of the meaning of the words “deliberate” and “harm” in the Bill is not defined. Unless it is, I fear that based on past experience, immigration authorities and police will continue to disregard unlawful or false imprisonment on the grounds that “deliberate” means something more than merely unlawful, and “harm” means injury.

Let me give an example of what I mean. A British man spent 19 months in an immigration detention centre pleading with the Home Office that he was British, but lacking the documents to prove it. His deportation appeal, for which he was unable to obtain representation due to the cuts in immigration legal aid, was dismissed. However, a solicitor gave him the benefit of the doubt and wrote to the Home Office saying that the onus was on it, as the detainer, to prove that the man was not British. Within two days of the letter, he was released. At this point, under the new proposals, no further legal aid would have been available because on the face of it, no harm—other than the loss of personal liberty for a period—had been caused by an inadvertent and honest mistake. However, after many hours of legal aid-funded work, evidence emerged of prolonged deceit on the part of the Home Office, resulting in substantial damages having to be paid.

--- Later in debate ---

[Lord Wallace of Tankerness]

I recognise the important point that the noble Lord, Lord Judd, makes. I assure him that, in trying to allocate limited resources, we have sought to ensure that a proper balance is struck. As I indicated, it is of course a balance, and we will weigh in what has been said in this debate. However, I have sought to indicate that we are dealing here not just with claims for damages; we have deliberately included a whole range of remedies within scope in Schedule 1 because we recognise the importance of proper safeguards in the citizen’s relationship with the state. I hope that the noble Lord will recognise that a whole range of remedies will be eligible for legal aid.

The noble Lord, Lord Berkeley, has no doubt been waiting for a response to his Amendment 61ZA, which would include within the definition of “public authority” the Crown Estate and the Duchy of Cornwall. The position is that paragraph 19(7) uses a definition of “public authority” that is used in Section 6 of the Human Rights Act 1998. At Section 6(3) of that Act, the definition of a public authority includes,

“(a) a court or tribunal, and

(b) any person certain of whose functions are functions of a public nature,

but does not include either House of Parliament or a person exercising functions in connection with proceedings in Parliament”.

Section 6(5) of the Human Rights Act goes on to provide that,

“In relation to a particular act, a person is not a public authority by virtue only of subsection (3)(b) if the nature of the act is private”.

Therefore, the point is that this is not so much about the name of the body but about determining whether the function is of a public nature. It is the nature of the service or function that is determinative, rather than the legal status of a body that is performing the function. One noble Lord asked whether we could have a definition of that. Ultimately, it must be for the courts to determine whether a body is a public authority, given that definition for the purposes of the Human Rights Act.

The noble Lord, Lord Beecham, said that there may be another time and place to discuss the Crown Estate and the Duchy of Cornwall. I know that the Scottish Affairs Committee in the House of Commons is currently looking at the work of the Crown Estate. It is an issue that has attracted more attention, but as regards this amendment and this Bill the definition is used in the Human Rights Act and is a proper definition to import into this Bill.

I will briefly address a number of government amendments in this group. Amendments 79A and 79C address predecessor claims under the pre-Equality Act 2010 legislation to ensure that legal aid continues to be available to people who have live claims under predecessor equalities legislation, and not just in relation to a contravention of the Equality Act 2010.

At present, paragraph 38 of Part 1 of Schedule 1 limits legal aid cases to cases where the Equality Act 2010 has been contravened. The 2010 Act presents a new unified legal framework for addressing harassment, victimisation and discrimination based on any of eight protected characteristics. Where previous equality enactments have been repealed, we recognise that certain claims will continue to be capable of being brought under these enactments by virtue of the transitional arrangements introduced by the 2010 Act. For this reason, we seek to amend paragraph 38 to allow funding for predecessor claims that might still need the benefit of public funding. This amendment will also amend paragraph 38 to put beyond doubt our intention to retain funding for civil legal services relating to the breach of equality clauses and rules and non-discrimination rules.

Government Amendments 78C, 78D and 78E ensure that civil legal services are provided in circumstances where a sexual offence has actually been committed or is alleged to have been committed. They also ensure that civil legal services are provided in circumstances where a sexual offence has not actually been committed but there has been: an incitement to commit a sexual offence; an offence committed by a person under Part 2 of the Serious Crime Act 2007, in relation to which a sexual offence is the offence which the person intended or believed would be committed; conspiracy to commit a sexual offence; and an attempt to commit a sexual offence.

Additionally, the amendment to paragraph 34 of Part 1 of Schedule 1 will ensure that civil legal services are capable of being provided in relation to conduct that would be an offence mentioned in sub-paragraph (3)(a) or (b) of the existing definition of “sexual offence” but that is not considered an offence under the present definition because it took place before the relevant provision came into force. At present, paragraph 34 limits legal aid to cases where a sexual offence has been committed under the provision of the Sexual Offences Act 2003 and to cases where an offence has been committed under Section 1 of the Protection of Children Act 1978, which deals with indecent photographs of children. We recognise that it is possible that offences committed before the present legislation came into force might need the benefit of public funding, and for this reason we have amended paragraph 34 to allow for funding.

I am not sure why Amendment 90ZZA is in this group, but I hope the Committee will recognise that this is a serious attempt to ensure that where there have perhaps been gaps due to prior legislation, we seek to fill them. Amendment 90ZZA would bring into scope advocacy within the Court of Protection where a person’s mental or psychological safety is concerned. This echoes debates on Amendment 53. The current position is that advice is available for any mental capacity matter and that representation is available for the Court of Protection in limited circumstances where there is to be an oral hearing and the case will determine the vital interests of the individual.

Paragraph 4 of Part 3 provides for advocacy before the Court of Protection where there is to be an oral hearing and the case will determine the vital interests of the individual—for example, medical treatment, life, liberty, physical safety, the capacity to marry or enter into a civil partnership, and the capacity to enter into sexual relations or the right to family life. The amendments go beyond what is currently provided through legal representation by the civil legal aid scheme. We have had to focus our limited resources on the most serious cases and on the interests of the individual that are vital. We do not seek to go beyond what is already the present position. I hope that the noble Lord will reflect on that and, when the time comes, not move his amendment.

It is some time since the noble Lord, Lord Ramsbotham, moved his original amendment, but I hope he is assured that the serious issues involving state public authorities and the citizen are addressed by this. With regard to the liberty of the individual, there are a number of specific provisions, quite apart from the more general provision that loss of liberty is seen as a harm to the individual. I hope, on the basis of these reassurances, that the noble Lord will withdraw his amendment.

[Lord Ramsbotham]

My Lords, I am very grateful to the noble and learned Lord for summing up in a very complicated summing-up situation. I am also extremely grateful for the many powerful interventions that were made both immediately after the amendment was moved and during the Minister's summing up. I think that their content has increased understanding and has pointed out many more aspects of the problem than I was able to point out in moving the amendment. Some very serious points have been raised and I think it behoves us all to read very carefully in Hansard what has been said in the House this evening. I think and I hope that it will be possible, having done that, to have a discussion with the Minister and with the officials concerned with this issue before we bring it back on Report. Issues involving people who are in the hands of the state should not be allowed to be dropped until we are absolutely certain that the legislation is clear and protects the most vulnerable who are up against the state. Meanwhile, I beg leave to withdraw the amendment.

Amendment 60 withdrawn.