Legal Aid, Sentencing and Punishment of Offenders Bill

Debate between Lord Ramsbotham and Lord Bach

Tuesday 7th February 2012 Lords Chamber

[Lord Ramsbotham]

I shall be very brief. Sub-paragraph (1)(c) of Paragraph 9 of Schedule 8 to the Criminal Justice Act 2003, to which these two amendments refer, allows a court to sentence an offender to custody for breach of a community order even though the original sentence was non-imprisonable. Figures published in 2009 show that 3,996 people were received into prison for a breach of such a community sentence—

[Lord Bach]

This is an important point that the noble Lord is making, but I wonder whether he is right in saying that sub-paragraph (1)(c) refers to being in breach of a community order. It refers to a person who,

“has wilfully and persistently failed to comply”.

It is the difference between those two that is quite important here. I apologise for interrupting the noble Lord so early in what he has to say.

--- Later in debate ---

[Lord Ramsbotham]

I am very grateful to the noble Lord, Lord Bach. I am speaking about the breach, and I will come to my conclusion if I may. I am not talking about inconsiderable numbers. There is nothing meaningful that can be done in prison to prevent a person from breaching a community order, so what such people are doing merely exacerbates the main problem facing our prisons at considerable expense and to no good effect.

I am very conscious of the problems facing the magistrates. Those problems were very ably set out by the noble Lord, Lord Ponsonby. I refer particularly to the effects of this on the Prison Service ever since the 2003 Act and the increased numbers of people in prison merely for breaching a community order. I personally welcome the flexibility that Clause 63 allows, in that a court dealing with breaches now has new options of taking no action or fining. However, the clause does not provide enough protection for the Prison Service, which is why I am tabling the two amendments, deleting the sub-paragraph and inviting the Minister to consider that the powers to resentence someone to custody for breach should be awarded only if the original sentence was an imprisonable one. I beg to move.

[Lord Bach]

My Lords, in many of his amendments I agree with the noble Lord, Lord Ramsbotham, and I hope to do so later this evening, but on my understanding of his argument here I find it difficult to accept the amendment on behalf of the Opposition.

I shall make a general point. This is not a government amendment—but when there are government amendments dealing with a different Act, as in the case of this Bill, where we are amending the Criminal Justice Act 2003, Keeling schedules, which set out what the amended 2003 Act would look like if we passed this legislation, are incredibly helpful. Indeed, when we were in government, the opposition on all sides used to ask us where the Keeling schedules were—and they were often there. In this Bill, later on tonight or whenever we reach the 17th group, there are very helpful Keeling schedules in important government amendments. But they do not exist elsewhere, as far as I can see, although the Minister has been helpful in writing to noble Lords about government amendments. There is a value in having Keeling schedules in that the House can understand what is being amended.

The Criminal Justice Act 2003 states:

“If it is proved to the satisfaction of a magistrates' court before which an offender appears or is brought under paragraph 7 that he has failed without reasonable excuse to comply with any of the requirements of the community order, the court must deal with him in respect of the failure in any one of the following ways”.

The Bill changes that “must” to “may”. The following ways include,

“amending the terms of the community order so as to impose more onerous requirements”,

and,

“where the community order was made by a magistrates' court, by dealing with him, for the offence in respect of which the order was made, in any way in which the court could deal with him if he had just been convicted by it of the offence”.

I know that the noble Lord has no objection to those provisions, as amended by this Bill. It is sub-paragraph (1)(c) that his complaint is with. That sub-paragraph is not just about a breach. It refers to,

“where—

(i) the community order was made by a magistrates’ court,

(ii) the offence in respect of which the order was made was not an offence punishable by imprisonment”—

that is the noble Lord’s point. It goes on to refer to,

“(iii) the offender is aged 18 or over, and

(iv) the offender”—

and these are the crucial words—

“has wilfully and persistently failed to comply with the requirements of the order … by dealing with him, in respect of that offence, by imposing a sentence of imprisonment for a term not exceeding”,

six months.

Provided that the Bill reads “may” rather than “must”, I can see nothing wrong with that. The danger is that someone who is given a community service order for an offence for which there is no imprisonment can get away for ever in breaching community service orders to the extent that he wilfully and persistently fails to comply, and the court will never have the power to deprive that person of their liberty. I agree with the Minister’s point from earlier that if community orders are to succeed—we want them to succeed because they are vital—they must be, in the words of the noble Baroness, Lady Linklater, “robust” community orders. There must be something there, eventually, if someone wilfully and persistently fails to comply with them. It is not just a breach in sub-paragraph (1)(c), but a wilful and persistent failure to comply, which is a step beyond a breach. Clearly, it is more than one breach; one breach would not be enough. Two might be—three might well be. In those circumstances, my case—I may be wrong about this—is that if we agree to these amendments, the result would be that someone who was given a community order for an offence that was not in itself subject to imprisonment could never be sent to prison, however wilfully and persistently he failed to comply with it. On this issue, which I concede is not a major one, I do not agree with the noble Lord, Lord Ramsbotham.

Parliamentary Voting System and Constituencies Bill

Debate between Lord Ramsbotham and Lord Bach

Monday 13th December 2010 Lords Chamber

[Lord Bach]

My Lords, for many years the law in this country has decreed that if you lose your liberty, you lose your right to vote. However, as we have heard, the European Court of Human Rights has ruled that this blanket ban on prisoners voting must be ended. My noble friend Lord Anderson is right: a large number of people in the United Kingdom do not agree with that ruling, which makes the issue a difficult one for politicians of all shapes and sizes. Nevertheless, when Labour were in government—I am delighted to see the noble Lord, Lord Henley, in his place as he and I used to agree on this subject just a few months ago—we accepted that we had a legal obligation to comply with the European court ruling, and that compliance would ultimately mean giving some prisoners the vote. Mindful of the need to take account of public opinion—that is a real issue here—in responding to the European court judgment, we undertook a consultation process aimed at identifying an acceptable solution to a difficult problem.

I praise the Liberal Democrats who were always keen, when in opposition, that the Labour Government should act more speedily on this issue than was the case. However, I recall that throughout our discussion on this issue—we debated it for some time in the previous Parliament—the Conservative Party urged us to stay as we were and not to get on with it. Indeed, the right honourable and learned gentleman who is now the Attorney-General said, when in opposition, that it would be “ludicrous” if prisoners got the vote. When I used to sit where the noble Lord, Lord McNally, does today, I was always relieved to have the support of the noble Lord, Lord Henley, when he was on the opposition Front Bench, and that of the noble Lord, Lord Tebbit, among others, against the proposal that prisoners should have the vote. Therefore, let us not have any criticism of us, as I am afraid the Lord Chancellor has been prone to do in the past week or so, saying that we should have legislated on this some time ago. I do not believe that the Conservative Party manifesto stated that prisoners should vote in the previous general election, but I am, of course, conscious that the other half or third, or whatever it is, of the coalition will respond today, and no doubt he will speak, as always, on behalf of the Government.

However, more seriously, it must be acknowledged on all sides of the House that there is a strong sense among the public—I think this is what the noble Lord, Lord Grocott, was getting at—that a decision may be being forced on the country against the will of the people. Indeed, reading what the Prime Minister has said about this issue, one feels that he thinks that, too. Clearly, this issue has some potential to undermine yet again public faith and participation in the political process. For that reason the Government have to respond to the European Court ruling in a way that is mindful of the views of the public and reassures them that their representatives are not simply rubber-stamping decisions made elsewhere. I hope that all noble Lords agree that it must be done in a way that is sensitive to British values and respects the position of this sovereign Parliament.

To be fair, the European Court itself recognises that fact, which is why it agreed to give the Government a degree of flexibility in how they respond to the ruling that a blanket ban on prisoners’ voting is unlawful. I believe that the concept is called a “margin of appreciation”, which has also been known to apply in other fields, but is particularly important here. In short, therefore, we would argue that the Government are not compelled by the margin of appreciation to give all prisoners the vote, but are required to enfranchise some. It is clearly up to the Government to decide who they believe should have the right to vote and to put that decision to Parliament.

It is rumoured on the grapevine that there will be an announcement before Christmas; I think that that grapevine is called the Lord Chancellor. In reply to the debate last week on the sentencing Green Paper, I think he made an announcement that there would be a parliamentary Statement around this subject before the Christmas Recess, and we look forward to hearing what it has to say.

The amendment of my noble friend proposes to give the vote to all prisoners sentenced for up to four years in jail. That seems to be going too far. While it may be possible to persuade people to accept a change, whereby prisoners convicted of comparatively low-level crimes are allowed to vote, we do not believe that the law-abiding public would easily accept a solution that ends up with people guilty of really serious offences—including violence, sexual assault or crimes against children—having a say in who represents them while they are in custody. That could be the consequence of the amendment, which would set the threshold to as high as four years.

We find deeply unattractive the idea that that a judge should have a say as to whether an individual whom he is sentencing should have the vote. The first reason why it is unattractive is because, frankly, I do not think that there is any judge in existence who would want that power. Secondly, the idea’s unattractiveness is demonstrated, for example, by the prospect of a prisoner not being allowed to vote because a judge has used his discretion in a particular way, and whether that prisoner should have a right of appeal about that aspect of the sentence.

[Lord Ramsbotham]

My Lords, does the noble Lord remember that when we debated this issue on the Floor of the House when he was a Minister, he mentioned that the decision would actually come from the Sentencing Guidelines Council, which would guide the judges in this matter, and would remove the unlikelihood of inconsistencies between judges on different types of sentence?

[Lord Bach]

I am grateful to the noble Lord. I am not likely to forget our frequent discussions about this subject. However, can the noble Lord help me? Would he, under his proposal, give the defendant, who the judge has told, “No, you cannot vote”, a right of appeal in the normal way against a decision such as that?

[Lord Ramsbotham]

My Lords, yes, I believe so.

[Lord Bach]

I have to say that the possibility of that kind of appeal clogging up an already busy system is not one that we would support, particularly at this stage.

We cannot support the amendment, although we are grateful to my noble friend for raising this subject—as, I am sure, the Committee is—because the issue has exercised this House a great deal over the past few years. We very much look forward to the Government coming up with their proposals in the next few weeks.