Civil Legal Aid (Merits Criteria) Regulations 2012

Debate between Lord Reid of Cardowan and Lord McNally

Monday 3rd December 2012 Lords Chamber

[Lord Reid of Cardowan]

My Lords, for those of us who have experienced neither legal training nor legal practice but who have listened to the very articulate and understandable critique by many noble and learned friends, can the Minister answer this question for me? I very much welcome what he has said. Is it implicit in what he says that, whatever discretion is given, it will not only come into effect if the First-tier Tribunal decides that it has made an error in law? That was explicit in many of the critiques which have come out. Is that conditionality now removed?

[Lord McNally]

My Lords, I, too, am not a lawyer. I think that the noble Lord is asking what comes next, and that relates to the second order, not the first one, which the noble Lord, Lord Pannick, asked about. I will try to cover the point which he has raised when I get to that.

As I said, there was never any attempt on our part to change the rules as far as judicial review was concerned. However, when a former Lord Chancellor, a former Lord Chief Justice and a former Attorney General tell you that it needs clearing up, I think it is only wise to see whether it can be cleared up, and that is what we will do.

Moving on, I have explained in detail how we have listened to the concerns of this House—in particular, in extending legal aid in welfare areas. I have never hidden the fact that the LASPO Bill was a very difficult Bill involving some difficult choices. I can remember answering questions at this Dispatch Box two years ago, when we first launched the consultation. I said then that, if you have a system which is targeted to help the poorest and most disadvantaged in your society and you are forced to make cuts in that system, you are going to affect the poorest and most disadvantaged in your society. I have never hidden that fact.

The idea that LASPO was nothing other than a very difficult Bill is again before this House. Many of the arguments that have been deployed tonight were deployed during the passage of that Bill. However, I remind this House that the LASPO Bill is now an Act that went through both Houses of Parliament and carries with it financial implications that have to be considered when discussing any changes to it. There is no infinite pot of money available and we have to think very carefully about how taxpayer-funded money is spent. The Bill was therefore designed to ensure that public funding remains available for the most serious cases and for those who need it most. In making hard decisions and tough choices, we have listened to the concerns of some of the very same Peers who have spoken today, and we made changes during the passage of the LASPO Bill.

Not for the first time, the noble Lord, Lord Bach, claims that the Government have not listened. I take this opportunity to set the record straight. I remind the House of the Government’s original proposal following the consultation on Proposals for the Reform of Legal Aid in England and Wales. Our response to the consultation stated that,

“it remains the Government’s view that legal aid should be removed for welfare benefits cases, as proposed in the consultation. However, it will be retained for judicial review of welfare benefit decisions, and for claims about welfare benefits relating to a contravention of the Equality Act 2010 that are currently funded, as proposed in the consultation”.

That was our starting point. Since then, we have moved considerably from that position in response to arguments deployed in both Houses. During ping-pong on the LASPO Bill, having listened carefully to the arguments, we agreed to make available legal aid for advice and assistance for welfare benefit appeals on a point of law in the Upper Tribunal, including for applications made to the Upper Tribunal for permission to appeal. In addition, we agreed to make legal aid available for advice, assistance and representation for welfare benefit onward appeals in the Court of Appeal and Supreme Court. The order before us today makes a further concession which is not insignificant.

It may be helpful if I illustrate how this will work. An individual will make an appeal to the First-tier Tribunal against an administrative decision of a public authority. If the appeal is unsuccessful, the claimant can request a statement of reasons for the decision. The appellant can then apply to the First-tier Tribunal for permission to appeal to the Upper Tribunal. At this point, the First-tier Tribunal must consider whether to review its own decision if it considers that it has erred in law, and legal aid for advice and assistance will now be available in relation to that review. If the tribunal decides not to review, the next step is for the First-tier Tribunal to decide whether to grant or refuse permission to appeal to the Upper Tribunal. Where the tribunal refuses permission to appeal, the appellant can then apply directly to the Upper Tribunal for permission to appeal. Again, legal aid will be available for an application for this stage of the process. If permission is granted by the Upper Tribunal, then legal aid is again available for the substantive appeal before the Upper Tribunal.

Therefore, it is wrong and misleading to suggest that we are not making legal aid available in respect of points of law. As I mentioned in my opening remarks, we considered this matter in great detail following the debates during the passage of the Bill. We have explored every possible option to find a workable solution. Our considered assessment is that other methods of independent verification would have proved unworkable. We did consider the CAB proposals but we felt that they would create unreasonable cost and administrative burden. The cost is important. We have never tried to hide the fact that part of the exercise was for legal aid to make a contribution to the cuts in the spending review for the Ministry of Justice, a department which spends money only on prisons, probation, court services and legal aid. The proposals would have placed burdens on the successor to the Legal Services Commission, the tribunal judiciary and the Department for Work and Pensions.

In the Government’s impact assessment we identified that, in 2009-10, we funded 135,000 instances of welfare benefits legal advice. If the judiciary had to consider up to 135,000 interlocutory applications for legal aid, the impact on the tribunal service would be severe, and it could lead to serious delays in the resolution of other cases. Similarly, if the Department for Work and Pensions or the successor to the Legal Services Commission had to consider that large number of cases before they could be funded, it would result in a significant extra administrative and cost burden. We do not believe it right to impose these additional burdens in the current economic climate.

We have therefore decided on the approach set out in the order. This would impose no additional burdens on the tribunal judiciary because it must already consider whether to conduct a review on receipt of an application for permission to appeal against a finding of the First-tier Tribunal. The tribunal can conduct a review only if it is satisfied that there has been an error of law in the First-tier Tribunal’s decision.

Crime and Courts Bill [HL]

Debate between Lord Reid of Cardowan and Lord McNally

Tuesday 30th October 2012 Lords Chamber

[Lord McNally]

I shall certainly take that back. Perhaps I may be quite clear about the Government’s intention. The use of “exceptional” is not a three-lane highway out of a request to have a punitive element. In consultation we have said that we see “exceptional” covering about 5% of circumstances. The point I am making is that the punitive concept is widely drawn and is very much in the hands of the sentencer. However, I will take back the noble and learned Baroness’s point about what the lawyers would make of this. We are expanding the definition from the 2003 Act and will see whether more legal advice is needed on the meaning of “exceptional”. However, it cannot mean that the exceptional becomes the general.

[Lord Reid of Cardowan]

The Minister said something very interesting there and I just want to clarify it as far as we can at this point. He said that some people might regard learning to read and write as punishment, but presumably some others might regard cleaning up a park, building a house or helping old people as punishment—in other words, they would be doing something they would not freely choose to do unless they were compelled to do it as a punishment. Would that fit into this category without having to be an exception?

[Lord McNally]

Yes, and I think that some of the people who have been quoted as pleading exception could well be asked to work in some of those areas. The noble Lord, Lord Elystan-Morgan, shakes his head but, for me, the big danger is there being public contempt for a system where we need public respect. I am talking about somebody whose life is totally dysfunctional, who has never been used to getting up in the morning and who has no idea of time-keeping. We have heard about a number of programmes where half a dozen people are invited to participate but within a week the number is down to two because the others have not bothered to attend. We have to get credibility into the system to make it work. Because we are putting flexibility and trust in the judiciary, I hope that it will see what Parliament is looking for and help us to that end.

EU: European Justice and Home Affairs Powers

Debate between Lord Reid of Cardowan and Lord McNally

Monday 15th October 2012 Lords Chamber

[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.

[Lord Reid of Cardowan]

I thank the Minister for repeating the Statement, although I confess that I am not much better informed than I was before it. Will he clarify three things to take us a little bit further in detail, something with which the Statement was not replete? First, during this period when the Government are “minded” to do something—one of those useful words that civil servants taught me—will the present provisions continue to operate until such time as the Government become “minded” to stop things? Secondly, given that law and order is both now an international and transnational phenomenon and among the highest priorities of people in this country, can the Minister tell us whether any impact assessment has been done of the effect of abandoning these regulations on law and order in this country during the interim, between when he becomes minded to do something and the negotiations finish? In particular, has any consultation taken place with the police and the intelligence communities about it? Thirdly, if either has taken place, can he give us a little more detail on the anticipated effects, were such regulations to be abandoned, in particular or wholesale?

[Lord McNally]

I thank the noble Lord for those questions. I am sure we are going to get this continually. I make the point that the whole merit of this Statement is that it does not present either House with a fait accompli. On the contrary, it offers the House involvement in making these important decisions, which I think would be welcome to the House concerned. That is why this word “minded” is used, because the Government are awaiting advice and having discussions. I cannot imagine that decisions of this importance and magnitude would be taken without the input of those who have responsibility for policing and security matters. They will certainly be involved in giving evidence and advice. However, I am not sure that the process would be helped if Ministers or anybody else dribbled this advice out a little bit at a time. We will get a big picture and all the committees of both Houses will have the opportunity to take advice from a wide range of bodies. We will see that advice emerging when they have had the opportunity to give it.

Legal Aid, Sentencing and Punishment of Offenders Bill

Debate between Lord Reid of Cardowan and Lord McNally

Monday 21st November 2011 Lords Chamber

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

My Lords, this is a substantial and far-reaching Bill. Its breadth is a consequence of the scale of its ambition, which is nothing less than intelligent, radical reform of the justice system. It aims to reform our criminal justice system so that it protects and serves the needs of the law-abiding, especially victims. It recognises that, for many offenders, prison does work and clear, stiff punishments are the right response to serious crime. But it also seeks to meet the challenge of persistent offending by bringing on stream a rehabilitation revolution which, if successful, would be a win-win, saving future victims from the trauma of a crime and the taxpayer the cost of incarcerating the offender once again, at the same time introducing to society a productive citizen whose life is not wasted in the cycle of criminality.

The Bill’s second goal is the long-overdue renewal of our system of civil justice. A modern system should resolve conflict as early as possible in the most cost-effective way. Yet the reality is that many ordinary users find going to law a slow, expensive and daunting experience that fosters rather than minimises litigation, often at the taxpayer’s expense.

The Bill therefore seeks to remove certain areas from the scope of legal aid while encouraging a step-change in the use of mediation and other ways of resolving disputes. It also implements the recommendations of Lord Justice Jackson on reforming no-win no-fee funding arrangements, which have become dysfunctional and inflationary. We also propose to ban referral fees.

Underpinning these first two aims is our third intention; namely, to make a contribution to unavoidable and necessary reductions in public spending. We approach our task with a profound belief in the fundamental importance of access to justice but the system as it stands faces an unignorable problem of affordability. Therefore, Part 1 introduces major reforms to the scope of civil legal aid. Alongside this, the changes in Part 1 mean a fundamental shift in the way the legal aid and wider civil justice system works.

For those who say that those most in need must have legal help to support them when they have a serious legal problem, I agree. For those who say that people must have legal help for whatever they want, whenever they want, I cannot agree. Access to justice is not the same as state-funded access to legal representation at court. We must do more to encourage people to use alternative, less adversarial means of resolving their problems.

We have approached our reforms of legal aid from first principles and have taken into account the relative importance of the issues at stake, the litigant’s ability to present their own case, the availability of alternative sources of funding as well as alternative sources of help and advice. Our proposals seek to focus legal-aid funding on circumstances where a person’s life or liberty is at stake, where they are at risk of serious physical harm, or where they face immediate loss of their home. Importantly, we are also retaining civil legal aid in cases where children may be taken into care.

The net effect of all this is significant change. Yet, in all, we estimate that the taxpayer will still spend the best part of £1.7 billion on legal aid each year after these reforms have been carried through. Prioritising critical areas of spend necessarily means taking a more radical approach elsewhere. That is why, for example, we have decided to remove taxpayer funding for legal representation in private family law cases and, instead, increase spending on mediation. Similarly, in areas such as employment, routine immigration applications and welfare benefits issues, legal aid will no longer be available. As noble Lords well know, the original rationale of the tribunals system was precisely to enable people to make their case without the intervention of a lawyer.

Although narrowing the scope of legal aid, we intend to provide a safety net. The exceptional funding scheme established in the Bill will provide funding for an excluded case where failure to do so would amount to a breach of a person’s right to legal aid under the Human Rights Act or European Union law. We also intend to address worries about the future of the valuable work done by the not-for-profit sector. This is an important part of our alternative and we recognise the need for a strong sustainable body of advice providers.

The Government have already announced a £100 million transition fund for the not-for-profit sector. I can confirm that, as announced this morning, we are injecting an extra £20 million specifically for free advice services, as well as undertaking a cross-government review to ensure that people continue to have access to good quality free advice services in their communities.

Concerns have also been raised about the impact of Part 1 on children and women. Let us be clear from the outset: we have retained legal aid for child protection cases, civil cases concerning child abuse and those involving special educational needs. We have also made special provision to retain legal aid for child parties in family cases. The consequence is that the vast majority of support for children will be unaffected by our changes. In 2009-10, the Government provided £133 million in civil legal-aid funding to child parties in all categories of law. Under our proposals, 95 per cent of that will continue.

In relation to women’s access to legal aid, we are again prioritising those most at risk of harm, retaining legal aid for private law cases involving domestic violence, where we have broadened the range of evidence accepted. Applications for protective injunctions and associated advice will continue to be funded.

In addition, in private family cases, Part 2 extends the courts’ powers to require one party to pay towards the other’s costs. This will help significantly in cases in which there is an inequality of arms. In family law as a whole, the taxpayer will still be providing over £400 million, much of which will benefit women.

Of course, the dire economic situation that we inherited drives some of the tough choices that we have had to make. Indeed, noble Lords opposite were already trying to cut legal aid at a time when they were still telling us that they had cured boom and bust. We all agree that legal help for those facing serious legal difficulties is fundamental. On the other hand, substantial changes and reform are much needed. We believe that our proposals in Part 1 achieve this balance.

Part 2 implements reforms in civil litigation funding and costs, based on Lord Justice Jackson’s recommendations. No-win no-fee conditional fee agreements were first introduced in England and Wales by my noble and learned friend Lord Mackay of Clashfern. Most observers believe that they succeeded in their goal of improving access to justice for those who were neither poor enough to qualify for legal aid nor wealthy enough to afford the costs of privately funded litigation. However, later changes tilted the balance much too far in favour of claimants. The Master of the Rolls, the noble and learned Lord, Lord Neuberger, said to the Times only last week:

“When you see the level of costs in some cases … it is clear that the system is unsatisfactory, some would say worse than unsatisfactory, and something needs to be done about it”.

This Bill intends to do something about it by ending the recoverability from losing parties of success fees and insurance premiums that drive up legal costs. This will be balanced against a 10 per cent increase in general damages for claimants. By taking these steps, we will restore common sense to the system and stop the perverse situation in which fear of excessive costs often forces defendants to settle, even when they know that they are in the right. This marks a return to the kind of arrangement that prevailed when the system was first set up by my noble and learned friend Lord Mackay in the mid-1990s.

I am well aware that a number of noble Lords, many of whom are sympathetic to the broad thrust of the Jackson reforms, have concerns about how this will impact on certain areas of litigation. I will listen to what they have to say both during today’s debate and when we return to those matters in Committee.

I turn now to the third and final part of the Bill, which concerns our sentencing proposals. I want to start by making the point that these reforms are designed with the victims of crime very much in mind. As I have said already, for many, prison is necessary and it works. However, if it is truly to protect the public, it needs to do a much better job on tackling reoffending.

We have two key proposals to deliver this change. The first is to introduce reforms across the estate to make our prisons places of hard work, not idleness. Getting prisoners into the habit of work matters in its own right not only because unemployment is a major risk factor in reoffending, but because once you get offenders working, you can institute a much more effective system of reparation to victims and to communities. Accordingly, this Bill enables deductions to prisoners’ earnings to pay for victims’ services and puts a positive duty on the courts to consider handing down compensation orders, the proceeds of which can go direct to victims. These reforms will help to move prisoners from being a purely negative drain on the system to making a positive contribution and pay genuine reparation to the victims who their actions have affected so terribly.

Running parallel to the Bill, our second key proposal is paying by results those organisations which work to rehabilitate offenders. This is a truly radical reform with the potential to revolutionise the way a lot of rehabilitation services operate. Rehabilitation is the key theme that runs right through the Government’s sentencing proposals. One need only look at this summer’s riots, where around three-quarters of suspects had previous convictions, to see that existing punishments have so far failed to reform. I believe that we need punishment which is robust and proportionate but that is also accompanied by a determination to get offenders to face up to the causes of their crime. We are offering those who commit crimes a choice. For those who do wrong, you will be punished, but for those who choose to mend their ways, we are extending a helping hand. That helping hand includes freeing up courts to impose drug, alcohol or mental health treatment requirement programmes which are tailored to individual needs.

I can also announce today that the Government intend to introduce reforms to the Rehabilitation of Offenders Act 1974, the outdated operation of which inhibits rehabilitation. We intend to bring forward amendments to achieve the right balance between the need to protect the public while removing unnecessary barriers that prevent reformed offenders contributing to society. I pay tribute to my noble friend Lord Dholakia on his long campaign on this matter. We believe that punishment must be proportionate, flexible and productive, so let me turn to some of the key measures in the Bill which will ensure that.

The first of the measures is greater discretion. We are legislating to provide more flexibility for judges and magistrates to sentence appropriately. The Bill is a first step to unpicking the labyrinth of legislation governing sentencing and creating a single framework for the release and recall of offenders. We are also proposing a simpler, clearer duty on the court to explain the sentence it passes, enabling it to be understood better. The Bill also introduces greater flexibility and discretion by removing the so-called “escalator principle” of out-of-court disposals for under-18s, which forces young people arbitrarily into the criminal justice system, regardless of the nature of their offending. In this area of youth justice reform, we are also undertaking the important step of treating 17 year-olds as children for remand purposes, and giving “looked-after child” status to all young people aged under 18 who are securely remanded. This will enable, for the first time, care plans to be created for those young people who are remanded to youth detention accommodation.

In the wider system, we seek to take a tougher approach to waste and reduce unnecessary pressures. Our major reform here is our proposals on remand in Chapter 2 of Part 3. These focus the use of remand in custody on those who are likely to receive a custodial sentence if convicted, with an exception in domestic violence cases. While I recognise that this change will be unwelcome to some, continuing to remand into custody people who in reality have no prospect of being sent to prison if convicted is simply a wasteful use of expensive prison places. On the other hand, if you have committed a serious crime, you can expect a serious punishment, so Part 3 introduces a number of new criminal offences which ensure that the public have confidence in the system. These include: criminalising squatting in a residential building; minimum sentences for those aged 16 and over who use a knife or offensive weapon to threaten another person and cause an immediate risk of serious physical harm to that other person; and a maximum penalty of five years’ imprisonment for causing serious injury by dangerous driving.

[Lord Reid of Cardowan]

Before we leave sentencing I would like to ask the Minister a question about indeterminate sentences, which he has not mentioned. In doing so, I declare my interests, as registered. The Minister may know that some years ago when I was Home Secretary, I gently reminded the judiciary of the premise behind the sentencing guidelines that people should not be sent to prison for offences that did not merit it but should be given community services, whereas people who were a serious danger to society should be retained indefinitely for protection, not for punishment. Could he say something about that relationship, in particular indeterminate sentences, before he moves on?

[Lord McNally]

Patience, my Lords. I will be turning to IPPs.

On knife crime, in particular, I understand the arguments of those requests and the desirability of minimum sentences. We have not taken this decision lightly but only after careful consideration. The stark reality is that too many people are affected by this scourge and more often than not those targeted will be other children, whom we have a duty to protect. This offence will bite where this becomes most serious, where the knife is brandished and there is an immediate risk of serious physical harm to another person. I can say with some feeling that every parent of teenage children knows the worry that an innocent night out might end in an act of violence against their child, and I make no apology for acting to send the clearest possible message that this is unacceptable.

I now wish to turn to one of the Bill’s most important reforming measures, namely reform of the current system of indeterminate sentences for public protection. IPPs are poorly understood by the public. They lead to inconsistent sentences for similar crimes. They deny victims clarity about the length of time an offender will serve. The previous Government estimated that there would be around 900 such prisoners in jail. There are now 6,500 and more than half of those are beyond their tariff. As of the end of June 2011, only 320 had been released.

IPPs clearly need major reform. We will replace the IPP with the new extended determinate sentence. Instead of serious violent and sexual criminals being released automatically halfway through their sentence, those receiving the new extended determinate sentence will have to serve at least two-thirds before they can be considered for release, and the more serious offenders will not be released at that point unless the Parole Board considers it safe to do so. Under our plans we expect that more dangerous offenders who commit a second serious crime will receive a mandatory life sentence. We believe this is a balanced reform, one where victims will have a clearer understanding of how long offenders will spend in prison and will be kept informed of progress and release plans. It is an attempt to deal with the real problem without compromising the public safety or ignoring legitimate concerns about serious offenders.

I am well aware, given the range of expertise in this House, that the sentencing reforms that I have outlined will be subject to scrutiny and debate, both today and in Committee. So, too, will our proposals on legal aid, on the Jackson reforms and the rehabilitation revolution. This is as it should be for this is a revisory and an advisory House of great wisdom and expertise, and I will listen. But we remain clear about the need to make hard choices and fundamental reforms in our justice system. If we get this right, the prize is a justice system that contributes to a safer and fairer society by tackling reoffending and by putting the victim at the heart of everything we do. Moreover, it will be a system that protects access to justice where it counts while keeping costs under control and ensuring the system has less waste and less delay. Our aim has always been to propose a balanced package and I can tell the House that that remains exactly what this is. This is a radical and reforming Bill and I commend it to the House. I beg to move.

House of Lords Reform Bill

Debate between Lord Reid of Cardowan and Lord McNally

Tuesday 17th May 2011 Lords Chamber

[Lord Reid of Cardowan]

My Lords—

[Lord McNally]

We will hear from the noble Lord, Lord Reid, and then from the Cross Benches.

[Lord Reid of Cardowan]

First, I thank the noble Lord for his elucidation of the thoughts of the Deputy Prime Minister, which I am sure he has done to the best of his ability, but could he help us further? Since the Executive under our constitution—the Government —are so by virtue of their ability to command a majority in the House under the democratically elected system, and since it is obvious that the Deputy Prime Minister considers that the electoral system of proportional representation with which this House would be elected better represents the common will, why, under the reform programmes would the Executive—that is, the Government—be chosen on the basis of a majority under first past the post in the House of Commons rather than under a majority under proportional representation in this House? Was he briefed on the Deputy Prime Minister’s thoughts on this?

Parliamentary Voting System and Constituencies Bill

Debate between Lord Reid of Cardowan and Lord McNally

Wednesday 19th January 2011 Lords Chamber

[Lord McNally]

Each Member has to make their own decision. It is interesting, though, going back to another issue—

[Lord Reid of Cardowan]

My Lords—

[Lord McNally]

Deferential as I am to the noble Lord, Lord Reid, I have just been asked one question and I had not even got to the third word. It is about that, is it? Go on, then.

[Lord Reid of Cardowan]

I was about to give the Minister the answer. He will know that prisoners can be represented by the local Member of Parliament. I did it very often for Shotts prison. I would go and meet them occasionally. On one occasion, I offered three dates to the Shotts lifers association; none of them was convenient for it. There is a manner of representation for those in prison, whether or not they vote.

Equality: Act of Settlement

Debate between Lord Reid of Cardowan and Lord McNally

Monday 10th January 2011 Lords Chamber

[Lord McNally]

I will not start debating, discussing or challenging the noble Lord’s interpretation of Section 1 of the Act of Settlement 1701. I believe him.

[Lord Reid of Cardowan]

My Lords, perhaps I should declare an interest as someone who was born and baptised a Roman Catholic. However, noble Lords will be gratified to know that I have no ambitions at present to succeed to the Throne. Does the Minister not recognise that it is not only an offensive but an anachronistic symbol of division, discrimination and inequality in an age when we are trying to inculcate the opposite in every other aspect of society? If it were sufficient grounds for retaining a law that it had been around for 300 years, we would still be hanging people for stealing sheep and jailing children for stealing bread. Will the Minister make his advice known privately through the Privy Council and government channels that this set of values is incompatible with modern Britain? Before he asks whether I did the same when I was in government, the answer is yes.

[Lord McNally]

In response to the noble Lord’s introductory remarks, I say that that makes two of us. I also appreciate that some of these matters perhaps cause greater problems in Scotland than elsewhere. I have said, and I think that it is accepted, that there are discussions with the Commonwealth countries. We are conscious that there are anachronisms in the Act, but we still advise the House of the wisdom of proceeding with caution.

Rehabilitation and Sentencing

Debate between Lord Reid of Cardowan and Lord McNally

Tuesday 7th December 2010 Lords Chamber

[Lord McNally]

My Lords, I take on board what my noble friend said about IPP. It is true that there has been an increasing focus and an increasing public concern about the number of our veterans who seem to end up in our criminal justice system. I have not looked at the American example to which he referred, but that is exactly the kind of constructive suggestion that we hope this Green Paper will bring forward. My department is in contact with the Ministry of Defence and the Royal British Legion about these issues. I hope that we can take forward measures to help veterans who find themselves on the wrong side of the law or in prison. The Royal British Legion already has a system of visiting, advising and counselling for veterans who find themselves in this situation. We have got to give this priority and I assure my noble friend that we will.

[Lord Reid of Cardowan]

My Lords, I declare two interests; first, my interest as registered in security matters; and, secondly, as Home Secretary, having introduced a number of measures to try to bring diversity to probation services and the treatment of prisoners, where the opposite Benches voted against my proposals. So I welcome elements of what has been suggested today.

Perhaps I may also suggest to the Minister that the premise on which the new direction is based is flawed in two essential areas. The first is the assumption that the increase in prison numbers, which has doubled, and the reduction in crime, which has almost halved, is merely a chronological coincidence. It is not. It is a causal relationship between the two. Secondly, prison is not just about punishment, rehabilitation or reform. It is also about the protection of society.

Let me make a prediction, without judging how these consultations will end. If they end on the premise on which they started—perhaps thousands fewer police on the streets; 10,000 more felons not sent to prison; potential softer sentencing on community sentences, which will be optional; and the dropping of more serious sentences for knife crime—tragically, I believe that we will see a proportionate increase in crime over the next few years. I predict that will be the case rather than what I am sure the Government and everyone in the House are seeking, which is a continued reduction in crime, following on from the past 15 years.

[Lord McNally]

I acknowledge the experience of the noble Lord in these areas, but his little catalogue at the end was just the kind of fear and alarm about these issues that we have heard. We have to ask whether if what he said is so, perhaps we should double the prison numbers again. I think that I have mentioned previously in the House that I once went to a talk given by Ronald Reagan’s former prison adviser, which I think was at about the same time as the noble Lord was Home Secretary. He estimated that the proper size of Britain’s prison population should be about 170,000, because that would, as the noble Lord suggests, get all the offenders out of harm’s way. But it does not seem to remove public concern about crime. It does not seem to address this issue of re-offending. We are not going to deal lightly with knife crime, as the Statement makes clear, but neither are we going to put every juvenile who is found to be carrying a knife into prison. That would be absurd. There are other things in his litany that would go.

To listen to some, one would think that next Friday, Ken Clarke is going to throw open the gates of the prison and usher out the first 3,000 who want to leave. If anyone reads the Green Paper, they will see a measured response that does not ignore the fact that there will be other things that will come into play quite often. As the noble Lord and others with experience know, addressing this is often like trying to solve a Rubik’s Cube; when you get one bit of it right, you look round the other side to see that that has gone wrong. Within the paper there are some innovative, and, I hope, optimistic views of the way we can approach this situation which may make some of the noble Lord’s pessimistic predictions wrong. As always, we will have to wait and see.