Offender Rehabilitation Bill [HL]
Lord Woolf Excerpts(10 years, 11 months ago)
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Lord Woolf
“(2A) In sections 177(1) and 190(1) (requirements that may be imposed as part of a community order or suspended sentence order) after paragraph (j) insert—
“(ja) a restorative justice requirement (as defined by section 212A),”.”
Lord Woolf
My Lords, this amendment is grouped with Amendments 27, 27A, 28 and 29. The group is separated by Amendment 26, which is to be moved by the noble Lord, Lord Marks, and others after we have dealt with these amendments. As I have said before, I welcome this Bill’s emphasis on the rehabilitation of offenders. Those who have been involved in the criminal justice system as long as I have are in no doubt that reoffending is one of the most serious problems that it faces. We have been, until now, extremely unsuccessful in tackling it. Here and there, we have made some progress, often because of initiatives not of the big battalions but of the small ones, which concentrate on conduct directed towards the offender which changes his habits. We know, from experience, that employment, the home and the family are all important elements in determining whether reoffending will take place.
Lord Beecham
My Lords, I commend again the noble and learned Lord for the tenacity with which he has pursued this important area of penal policy. I am entirely in agreement with the thrust of his amendments and I am sure that they will commend themselves to other Members of your Lordships’ House. However, I have one difficulty with his amendment.
Lord Woolf
I hope I will be forgiven if I intervene to say that, with great perception, the noble Lord, Lord Beecham, seeks in Amendment 27A to alter the proposal in Amendment 27. I should make it clear that I support Amendment 27A in preference to my original proposal.
Lord Beecham
I am obliged for the noble and learned Lord’s intervention but perhaps I should decode what is happening for the benefit of those who do not understand—it took me some time—the effect of the amendment as originally drafted.
As originally drawn, the amendment would have removed from Clause 13(7) reference to,
“activities whose purpose is reparative”,
and substituted “restorative justice activities”.
The two things are not the same. Reparative justice will involve doing work, for example, of the kind that I came across when involved in a justice reinvestment project in the north-east. In fact, there were two significant projects: one led to the effective reconstruction of Albert Park in Middlesbrough and the other at Saltwell Park in Gateshead, both Victorian parks which had become very run down. Offenders were brought in to work on these and benefited from being taught skills, which it is to be hoped will be useful later. They made a visible contribution to the communities which they had damaged by their offences. It was a very good scheme.
Taking that out would exclude work of that kind. As the noble and learned Lord said, Amendment 27A reinstates that in addition to restorative justice so that the complete range of options would remain available. I hope that the Minister will accept the noble and learned Lord’s amendment, as amended by my restoration of the paragraph in the original Bill. It would be extremely disappointing, given that the Government are supportive of the principle of restorative justice, if statutory recognition was not incorporated in the Bill at this time and the opportunity not taken in its passage to lend weight to the growing support up and down the country for the concept in our system.
Lord Woolf
My Lords, I apologise for my failure to refer to Amendment 27A when I spoke to the amendment that was being moved. I should not have made that mistake.
I am very conscious that my successor as the Lord Chief Justice, the noble and learned Lord, Lord Phillips of Worth Matravers, is in his place. If my memory is correct, one of the first things that he did on taking office was to get himself clad as though he was an offender and go off with other offenders to do reparative duties. On that occasion he had very favourable mentions in the media, which were fully deserved, although I understand that he did not find the reparative tasks particularly demanding. The noble and learned Lord has strange tastes when it comes to spending what leisure time he has; he continually indulges in activities that I would have thought were really not for Lords Chief Justice or, may I say, budding presidents of the Supreme Court.
That brings me to the only point that I wish to mention specifically in respect of what the Minister has so ably said about the proposed amendments: wherever possible, you always need clarity and certainty. The fact that I would not have the imagination to do some of the things that the noble and learned Lord does perhaps indicates why, even when you have experienced judges, it is a good thing to have clarity and certainty. Therefore, I ask the Minister to reconsider the amendments carefully and, if he sees fit at a later stage, to come back and tell the House that he welcomes them. That would give a very good signal to the world outside about the seriousness of this Government in tackling reoffending. In the circumstances, I am happy to beg leave to withdraw the amendment.
Lord Woolf
“Provision for female offenders
(1) Section 3 of the Offender Management Act 2007 is amended as follows.
(2) After subsection (2) insert—
“(2A) Arrangements under subsection (2) shall require providers of probation services to make provision for the delivery of services for female offenders which take account of the particular needs of women.”
(3) After subsection (5) insert—
“(5A) Arrangements under subsection (5) shall make provision for the delivery of services for female offenders which take account of the particular needs of women.””
Lord Woolf
I have the advantage of moving this amendment with the support of the noble Baroness, Lady Howe, and the noble Lord, Lord Beecham. It deals with provision for female offenders, which is another area in which the criminal justice system has slowly—painfully so in this case—moved forward to recognising that female offenders have particular needs. The recognition of those needs, which are very great and cannot be disputed, is of the greatest importance if we are to achieve the purposes of the Bill with regard to avoiding reoffending.
There will always be a greater risk of females committing offences if their particular needs have not been taken into account. Of late, great strides have been made—I pay credit to the Government for this—in trying to give positive attention to this problem. There is now a Minister who has particular responsibilities here. Those in the criminal justice system who know her have great confidence in her, and I apprehend that what the amendment seeks to do is something the spirit of which both the department and the Government as a whole would support.
It is something that was considered very ably by the noble Baroness, Lady Corston, in her well known report dealing with female offenders, which has not been given sufficient attention until now. I hope that one result of the new approach indicated by the Offender Rehabilitation Bill will be to enable the Government to acknowledge the importance of that report and give effect to its provisions, as suggested in these clauses. They require that the Offender Management Act 2007 should be amended to require providers of probation services to make provision for the delivery of services for female offenders that take account of particular needs of women with regard to Section 3(2) and (5) of the 2007 Act.
It would be a huge encouragement to those who have been involved in trying to improve the facilities and arrangements for female offenders if this amendment were to be accepted. I hope the Minister will give it careful consideration in due course. The noble Lord, Lord Beecham, and, in particular, the noble Baroness, Lady Howe, drew attention to the importance of this at Second Reading. I mentioned the matter as well. I hope that enough has been said on this subject in recent times to enable the Minister to respond positively to these proposals. I beg to move.
Baroness Howe of Idlicote
My Lords, it is a great pleasure to support the noble and learned Lord Woolf’s amendment, which is an important one. The best thing about this whole Bill is the emphasis on keeping people out of prison if you possibly can, dealing with their problems and the rehabilitation required to get them back into society, where they can play a useful role. It is very much at the heart of what we are trying to achieve.
However, I have to say that we are all puzzled about why women and their special needs are not part of the original Bill. They have been rather brushed to one side. The document, Transforming Rehabilitation: A Strategy for Reform, notes that quite a high proportion of the consultees themselves specifically wanted the special needs of women to be delivered on. The more one thinks about it, the more surprising it is that women have been put to one side, at least for the moment, despite the fact that the strategy makes the point also made by the Prison Reform Trust, with all its expertise, that,
“the review of the women’s custodial estate … will also strengthen services for women released from prison”.
However, it does not go on to explain how that will be done.
I want to emphasise several points before I sit down. Although I accept entirely the point made by the noble Lord, Lord Marks, that carers come from both sexes, the vast majority of those caring for the children in a family and the heads of single-parent households are women. We know that many women prisoners themselves come from chaotic backgrounds and are likely to be have been abused in their own childhoods. As regards drug trafficking, quite a number of them—certainly the ones I have met in women’s prisons—have been used as mules for the purpose of transporting drugs at the request of their partners. All this shows that the one thing that must not happen, if it is humanly possible—of course there are exceptions where prison must play its part—is to send women to prison. It should be the last resort because it is the children who suffer. Often in such circumstances, the children have to be taken into care because the family home is broken up or the landlord can no longer accept the household.
I hope that we will be given an explanation of why specific attention has not been paid to women’s needs in this Bill. I know that we have been told that we will be given something later, but not taking these issues into account as the various plans unfold is something that I and others find puzzling and rather worrying. I shall give an example. A women’s prison is to be closed down because it is to be used to provide for the special needs of young offenders. That is fair enough, because those young offenders may well have special needs, but yet again one more place will no longer be available for women. No doubt it means that if they have to be sent to prison, they will be located even further away from their families.
I hope that all this will be taken into account and that we will be given an explanation of why women have been left to one side. I think that we need this more than anything else. I do not believe for a moment that the Government are thinking of women as second-class citizens, and yet that is very much the impression given by the fact that at this point, when we are looking at an important and valuable Bill, their needs are not being taken into account.
Lord Woolf
I thank the Minister for that reply. I know the sincerity of what he says, but patience has limits. The House has indicated on previous occasions that it feels that something should appear in statute to make these responsibilities absolutely clear to not only Ministers but everybody concerned with female offenders. Although it is pleasing to hear that some things are happening, I fear that the reassurance that we get from Ministers will not continue to satisfy this House. On Report, I hope there can be something positive proposed to deal with a situation that has been left unacknowledged in legislation for far too long ere now. In the circumstances, I will not press the amendment and beg leave to withdraw it, but this is certainly not the end of the matter.
Offender Rehabilitation Bill [HL]
Lord Woolf Excerpts(10 years, 11 months ago)
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Lord Lloyd of Berwick
Before my noble friend sits down, surely “rehabilitation” is the correct word because it relates, not to the period before he went to prison, but to the period while he has been in prison.
Lord Woolf
My Lords, this is an important amendment, apart from the fact that we have to consider whether the Title of the Bill needs amending. I strongly support the very wise words of the noble Lords, Lord Bradley and Lord Ramsbotham, in support of the amendment. One of the most important tasks of a court is giving explanations to offenders to make sure that those who are subject to the orders of the state understand the requirements that are placed on them. If that is the responsibility of a court and of judges, it must surely also be the responsibility of a supervisor under this Bill. I like to think that we have all had a stage in life when, until it could proved that we had done something wrong, we were innocent of having done so. If that is right, “rehabilitation” is a pretty good word to cover what is being sought to be done. I rejoiced when I saw the Title of the Bill and knew that focus was, at last, being placed on an extremely important task of the criminal justice system: to protect the public by preventing people offending again. I emphasise the word “again”.
I hope that in due course the Minister will, following the powerful arguments advanced by others, look on this proposal with considerable sympathy. I should, like the noble Lord, Lord Bradley, disclose an interest: I am also involved with the Prison Reform Trust—not as a valuable member, as is true of the noble Lord, but as its chairman. I make that disclosure in relation to subsequent amendments that shall be advanced today.
Baroness Linklater of Butterstone
Perhaps I may add to the debate that the clutch of noble and noble and learned Lords started. Rehabilitation may indeed be one objective, but it may also be of interest that Rule 1 of the Prison Rules states that the people who are in such care should lead “good and useful” lives.
Lord Woolf
“(7A) The Secretary of State when specifying requirements under this section in respect of female offenders must have regard to the particular needs of women.”
Lord Woolf
My Lords, there are not many matters concerned with sentencing and dealing with offenders on which there is common agreement. However, it is clear that there is consensus among all those concerned about the particular needs of female offenders. I am very conscious that the Secretary of State and Ministers are aware of this issue, and I am confident that they will say that there is no need to make any mention of it in this legislation because they accept it and are seeking to give effect to it. However, I am bound to say that one of the difficulties with relying on the good sense, judgment and experience of particular Ministers is that you can never be sure that they are going to continue to fulfil the office which they hold at present, no matter how advantageous that would be. Of course, legislation, once passed, is going to last for a substantial period of time. I am firmly of the view that we must hope that the Bill does not bite the dust but, as a result of the scrutiny by this House, becomes worthy of its objects and proves to be a Bill which those involved in the criminal justice system in the future look at as a turning point.
It may appear arrogant for someone such as myself to suggest that a Secretary of State should need to have the reminder in the amendment, which requires the Secretary of State, when specifying requirements under this section in respect of female offenders, to have regard to the particular needs of women. However, while it may be arrogant of me, it is not arrogant of this House to take the view that that is a sensible and desirable safeguard, because history has indicated that, sadly, all too often, the criminal justice system, particularly when concerned with sentencing female offenders has not recognised their needs as they should. I know the Minister in his present role has been visiting assiduously criminal justice institutions up and down the land and has accumulated a great deal of knowledge. Unfortunately, Ministers eventually have to go and new Ministers come in their place, and they may not have the same knowledge that I know the Ministers in this Committee have of the special and particular needs of women.
I hope that this carefully drafted amendment—I emphasise that I was not responsible for the precise drafting—will in no way curtail the Secretary of State’s powers, but merely indicate what he must have regard to. That surely is a safeguard that could be properly included in the Bill. I hope that the Minister, because he understands the special problems of women in the criminal justice system, will take away this proposal and feel that it is one to which he can give effect in due course.
As other noble Lords who are engaged in this Committee are well aware, Amendment 7 is linked to very similar requirements contained in Amendments 25, 27, 28 and 29, for which I am also responsible. It is not always possible to find a way of happily bringing together all the points, but what I have said now applies to the other persons who are referred to in those specific amendments, who should also have regard to the special needs of female offenders. I beg to move.
Baroness Hamwee
Before the noble and learned Lord withdraws the amendment, as I assume he will, I wish to refer to that last point. Perhaps the Minister could ask his officials to let me know how Section 217—the one that I quoted about compatibility with religion and so on—can be brought to apply in the circumstances under this Bill if Section 196 is not amended. It is a matter of how it all knits together.
I wish to make one point. As the noble and learned Lord implied, rehabilitation can be the objective, but there are people who do not take into consideration the appropriate matters to move towards rehabilitation in a way that most people would think they should. It could be that some people in the criminal justice system think that one can achieve rehabilitation without putting the individual into his, or in this case her own, circumstances and context.
Perhaps we can pursue this after today but, bearing that in mind, as the supervision requirements are spelled out in detail in Schedule 1, are we in danger of them being construed so as to exclude the types of matters which I think all noble Lords who have spoken have referred to? Might they override those considerations because they are there in the statute? Anyone looking at it would say, “The only requirements that the Secretary of State may specify as being an executive action are the ones that are listed in paragraphs (a) to (j), so the other considerations do not have the same status or weight and I can disregard them, or at any rate have less regard to them”. Perhaps I can leave that thought with the Minister.
Lord Woolf
My Lords, I hope that the Minister, for whose response I am grateful, will reconsider what he has said today. With great respect, I do not think that he has met the points that we are making. In the future, we hope that the special position of women will be considered properly. For a very long period, the criminal justice system has failed in that respect. I am very grateful to the noble Lord, Lord Judd, for timing his entry into the Chamber so admirably. He picked up the great importance of the issue.
The problem is that the present Administration may not take this seriously if there are no clear signposts in the Bill. The Bill is meant to deal with particular problems that exist. The Minister recognised that in his remarks in relation to female offenders. Therefore, we have to break away from a clearly established pattern. It is very important that this constructive legislation shows clearly that it intends to tackle this issue. I hope that the Minister will think about what has been said during the course of the debate. I am extremely grateful for what other noble Lords have said and I am glad of their support. Their words deserve very careful consideration, which I hope they will receive. On Report, I hope that the Minister will have some good news for those who see this as a situation that needs to be addressed in a positive way. In those circumstances, I am happy to withdraw the amendment, and I thank those who took part in the debate.
Lord Woolf
My Lords, as regards the practicalities of this issue, as mentioned by the noble Lord, Lord Marks, and the noble Baroness, Lady Howe, it is important to provide greater flexibility to deal with breaches. Many of the offenders whom the Bill is intended to help to go straight have deep problems which are often associated with drugs. It would be a huge achievement if these offenders were able to keep out of trouble for part of the 12-month period. Sending them into custody would be most unfortunate and would fail to give them the further opportunity they may need. Support can be much more helpful in these circumstances than something that is more in the nature of a sanction. Sanctions are important in appropriate cases, but other approaches are sometimes more constructive.
Legal Aid
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Lord McNally
My Lords, it is about 10 years since the Carter report had a look at this matter. It is more than three years since the previous Labour Government made cuts to criminal legal aid. The Labour Party, in its 2010 manifesto, was the only party to say that it would look for further cuts in legal aid. In that time there have been changes—alternative business structures and other changes—to the legal profession, yet we are still told that this has come as a surprise. Instead of asking for more time and putting forward arguments that are mainly scare stories, it would be good if the legal profession responded to this consultation with a productive dialogue that could put legal aid on a sustainable and lasting footing.
Lord Woolf
Will the Minister assist the House by indicating the steps he is proposing to take, or has taken, in order to monitor the impact of the changes that are being made?
Lord McNally
Of course we continuously monitor this. Some of these proposals are consultations; they are not in place at the moment. We are suggesting that the legal profession keeps in close contact with us, and also that barristers and solicitors start thinking about how best to organise themselves to function in circumstances in which money may be a little tighter than it once was. These are circumstances that many other professions and many other areas of our society have to face.
Offender Rehabilitation Bill [HL]
Lord Woolf Excerpts(10 years, 11 months ago)
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Lord Woolf
My Lords, we have heard some hugely impressive speeches generated by the action that the Government are proposing in the Bill. Those speeches raise the hope that we may, at last, be able to do something about reoffending, which has unfortunately been low on the agenda of successive Governments, certainly during the periods when I have been involved in criminal justice.
I should disclose that I am now the chairman of the Prison Reform Trust. The matters raised in the Bill are of considerable importance to the trust, which has, as I am sure the Minister is aware, done some very valuable work in preparing for this debate.
Like every other speaker in this debate, I welcome the Bill with enthusiasm. However, I urge the Minister and his department to pay heed to the words of caution that have also been expressed. Those of my seniority—in age, at any rate—know that other attempts that have been made in the past have bitten the dust because what started as very optimistic progress turned to something very different when it was found that these proposals would not succeed without resources. They did not succeed because they did not have the financial backing necessary for change on the scale that is now proposed by this Bill. They also did not succeed because the groundwork that is necessary to introduce reforms on this scale had not been undertaken. I am afraid it is obvious that, because they are understandably in a hurry, the preparations that the Government have made for the introduction of this scale of change are very modest indeed. I urge the Ministry of Justice to proceed with caution, even though its objectives are excellent and the possible rewards are considerable.
It has been pointed out that the numbers involved in the exercise—of those sentenced to short periods of imprisonment—are very large indeed. We are talking about more than 50,000 people, who will be coming before courts up and down the land. The Bill will create problems, as has already been indicated, as there will be a temptation in some courts to undermine the objective of the Bill by seeing the proposals for dealing with reoffending as justifying short sentences. I am one of the many who have previously urged courts not to impose short sentences because they are destructive of the process, as they are extraordinarily difficult for the Prison Service to manage. The consequence of short sentences is the reoffending rate of which we are aware. What can be achieved by a short sentence in prison can always be better achieved, in my experience, by a community sentence. Of course, there comes a stage when courts have to use short sentences. Magistrates up and down the country will tell you that they need short sentences when there is no alternative. However, short sentences should be limited to those cases where there really is no alternative and where the length of the sentence is as short as possible.
I wonder, and ask the department to consider carefully, whether the blanket approach, of taking a category of short sentences and applying the process proposed in the Bill to everyone caught within that blanket, is the right process. Is there to be no judicial involvement in determining whether the case is one that really needs the expense of the rehabilitation process involved? There are offenders, who have to go to prison, for whom the one sentence of imprisonment is likely to lead to the end of any further problem so far as they are concerned. We tend, in the Bill, to focus on the cases that fail; but however bad the statistics are, we have to realise that there is the other percentage—if it is 58% or 42% who do not come back before the courts. Who will judge whether this case is one that needs to be the subject of the action that is taken?
The most recent attempt to do something similar to these government proposals was custody-plus in the Criminal Justice Act 2003. This became law with the same admirable objectives proposed here, but when the department at that time was faced with the question of whether to bring it into law, it turned away. We must not make that mistake again.
So many other points have been drawn to the attention of the House and the department that indicating them again would not help. However, I remind the House of the experiment—briefly referred to—of the Liverpool community court. It showed that there are other features which are important for rehabilitation —in particular, the fact that those who need special rehabilitative assistance should be provided with it promptly. This is an administrative problem. Unfortunately, the successful community court experiment in Liverpool has not been repeated to the extent that it should have been up and down the country. The reason is again a lack of resources. I am afraid that resources will be at the heart of this reform and I hope that the Minister’s department will think carefully about the introduction of these reforms, to ensure that the resources will be available.
Finally, it is welcome to see the noble Lord, Lord Ponsonby, come here to assist the Opposition on this. The practical experience of a magistrate who has dealt with these matters over many years is something to which everybody should pay attention.
Defamation Bill
Lord Woolf Excerpts(11 years, 4 months ago)
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Lord Scott of Foscote
My Lords, I rise simply to say that for the reasons given by my noble and learned friend Lord Lloyd of Berwick, to which I cannot usefully add, I entirely support his amendment.
Lord Woolf
My Lords, I rise to say the same thing because, of course, I was the other person who had his decision overruled by the House of Lords. I agreed with the noble and learned Lord, Lord Lloyd, in the Court of Appeal and I agree with him again today. I must apologise to the Committee for my late arrival, which I can only blame on the queue at the gift shop.
Crime and Courts Bill [HL]
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Lord Lester of Herne Hill
My Lords, I strongly supported, as did my party, the separation of the traditional branch from the legislative branch. At the time, I disagreed with the noble and learned Lord, Lord Lloyd of Berwick, as my party does today, about the need for it. We thought—and think—that perceptions mattered very much, and it was a great embarrassment when we travelled around the world to discover that the rest of the world could not understand how judges could take part in or vote in our debates and that the Lord Chancellor could sit in politically sensitive cases. Therefore, we strongly supported the reform process, as I do and as my noble friend Lord Goodhart does.
I disagree with my noble friend Lord Goodhart for the reason given many years ago by the noble and learned Lord, Lord Browne-Wilkinson, when he gave a notable lecture about the independence of the judiciary and warned about the way in which questions of resources and management from the Treasury could encroach on judicial independence. It was a very enlightened and courageous lecture. I agree with the noble and learned Lord, Lord Phillips, and the noble Lord, Lord Pannick, about the function of the chief executive, especially when the Lord Chancellor is not an old-fashioned, legally qualified Lord Chancellor, who, from his experience, would instinctively understand the need for judicial independence. In my view, it is all the more important that the chief executive should be accountable to the president of the Supreme Court of the United Kingdom and not to a non-legally qualified Minister. For that reason, and because we do not have a written constitution that spells out the separation of powers but only an Act of Parliament, I believe it is particularly important that the law should be clear on this in our legislation. Therefore, I support the amendment.
Lord Woolf
My Lords, I add my voice to those who support this amendment. I do so with diffidence, because it may appear to the House that perhaps everything that could be said on the subject has already been said; but I hope that I will be forgiven for two reasons. The first is that, as was stated a few moments ago by the noble and learned Lord, Lord Goldsmith, it was my responsibility, as Lord Chief Justice at the relevant time, to be the spokesman for the judiciary. I had very many conversations with the person who became Lord Chancellor after the noble and learned Lord, Lord Irvine, when we strove to find the right answer to various activities which took place within the court system and which would take place in the relationship between the courts and government after the changes that the Constitutional Reform Act was going to bring about. I am afraid that I must have nodded on this point because I did not realise its significance at the time; I certainly do so now.
Secondly, in relation to the intervention of the noble Lord, Lord Goodhart, I suspect that he is influenced—as I would have been influenced, perhaps, not to attach the importance that I should have done to this point—by the fact that there was a great tradition within the Lord Chancellor’s Department, as in the judiciary, that the civil servants who supported the court system could do so without undermining the independence of the judiciary. Throughout my judicial career, I worked very closely with senior civil servants and civil servants at all levels, and there was never a problem. The Permanent Secretary at the department fully understood what the independence of the judiciary required. The unfortunate fact is that in those days there was a tradition in the Ministry of Justice of civil servants and, indeed, Ministers spending substantial time in the Ministry of Justice—or, as it was then called, the Lord Chancellor’s Department—and if they did not know at the outset the complexities of that very special relationship within a very short time of being there, they came to understand it because the whole ethos of the Lord Chancellor’s Department was that they must focus at all times on protecting the independence of the judiciary. I believe that, so far as the courts are concerned, that continues to be the position.
Lord Woolf
“Part 6A Provision for female offenders28A (1) Contracts made by the Secretary of State with probation trusts shall require each probation trust to make appropriate provision for the delivery of services to female offenders.
(2) Provision under sub-paragraph (1) shall include provision for women wherever appropriate to carry out unpaid work and participate in programmes designed to change offending behaviour with the particular needs of women in mind.”
Lord Woolf
My Lords, I begin by disclosing an interest in respect of this amendment as chairman of the Prison Reform Trust. I also acknowledge at the outset that this amendment, which is supported by the noble Lord, Lord Ramsbotham, builds on an amendment tabled by the noble Baroness, Lady Linklater, and mirrors an amendment tabled by the noble Baroness, Lady Hamwee. I am grateful to them for the work they have done.
The noble Lord, Lord Rosser, supported the amendments which were proposed on Report. I hope that that will be his position today. I also hope that the good will which has just been displayed on both sides of the House will continue and apply to these amendments as they are very much like the amendments that the Minister and I have discussed on a number of occasions with regard to restorative justice. These amendments come out of the very distinguished report of the noble Baroness, Lady Corston, which is well known to this House, A Review of Women with Particular Vulnerabilities in the Criminal Justice System. That report was made as long ago as 2007 and at the time was received by all Members of this House with approval. I hope that I may take up a moment of the House’s time to read paragraph 3 of the report’s executive summary, which seems to me to sum up the report. The noble Baroness said that,
“it is timely to bring about a radical change in the way we treat women throughout the whole of the criminal justice system and this must include not just those who offend but also those at risk of offending”.
She said that this will require,
“a radical new approach, treating women both holistically and individually—a woman-centred approach”.
She continued:
“I have concluded that there needs to be a fundamental rethinking about the way in which services for this group of vulnerable women, particularly for mental health and substance misuse in the community are provided and assessed. There needs to be an extension of the network of women’s community centres to support women who offend or are at risk of offending and to direct young women out of pathways that lead into crime”.
I urge the House to accept that the amendments are very much in the spirit of that report. When similar amendments were proposed on Report, the Minister was very sympathetic towards them, as one would expect. However, he advanced the argument that that was not the time to accept them because the Government’s strategy regarding women in the criminal justice system had not yet been rolled out. He pointed out that the fact that a Minister had been appointed to be the champion of women in this area was a huge advantage and that we should be reassured by that and accept that the Government had the right intentions although they were not in a position to move on the matter at that stage. Certainly, I readily accept that the appointment of the Minister to whom I have referred, Helen Grant, is a great advance in this field. Her appointment should be warmly welcomed. I anticipate that over time great things will come from that.
However, we have drafted the amendments which the House is now considering in a way which we respectfully suggest could not in any way interfere with the rolling out of the Government’s strategy, once that strategy is revealed. If I am wrong in what I have just said and the Minister can indicate to me why, some five years after the publication of the Corston report, the amendment should not be the first recognition in legislation of what the report recommended, I will certainly consider my position further. However, I am bound to indicate to the Minister that, although I accept entirely that his intentions are the very best, I cannot see how the amendment could cause any embarrassment to the rolling out of the strategy to which I referred. I beg to move.
Baroness Corston
My Lords, I congratulate the noble and learned Lord, Lord Woolf, on tabling this amendment, for which I signify my support. However, I have to convey to the House an element of great frustration in that by the time the strategy which we have been promised is published three years will have been wasted. I have now wasted quite a lot of my patience listening to Ministers say they are following the Corston report. It is not true.
I entirely endorse what the noble and learned Lord, Lord Woolf, said about women at risk of offending. Giving money to a probation trust does not provide any services to women at risk. This is something that over time I have pointed out to Ministers and which I conveyed this morning to the Justice Committee of another place. Given the time of day and the pressure of business, I wish briefly to signify my agreement to the amendment tabled by the noble and learned Lord, Lord Woolf, and to urge the Government not to waste any more time.
Lord McNally
My Lords, we are soon to be passing the three-hour limit for these debates at Third Reading. A reoccurring theme in all the debates on the Bill has been the straying into what I would describe as Second Reading speeches and an attempt to rerun cases that have been made. I respectfully say to the House that if this is going to be the norm, we may well have to talk to the Opposition about how we handle Third Readings. I am not talking about whose amendment it is, I am talking about the usual channels. If we continually have complete reruns of debates, it does make business management extremely difficult. Sometimes I think that noble Lords overemphasise winning votes in this House; making things happen. I actually think that what has the greater influence is the well argued debate rather than the vote, but perhaps that is because I am getting used to being beaten at this Dispatch Box.
We had an informed and extensive debate about female and young adult offenders on recommital and Report. I would also say that sometimes the speeches of the noble Lord, Lord Ramsbotham, make it sound as though nothing has happened in the past 17 years. Successive Governments have grappled with this, and certainly during my term of office I have fought very hard to put the specific problems of female prisoners to the forefront. I fully accept the points that were made by the noble Baroness, Lady Kennedy. I am disappointed that the noble Baroness, Lady Corston, thinks that nothing has been done with her report. We expect to publish in January, and I make no apologies for the delay; I would rather get something right than meet an artificial deadline. I hope that when we publish in the new year noble Lords will see the work that Helen Grant has been carrying out with the support of the Lord Chancellor. As I have said before, do not belittle the fact that a Conservative Lord Chancellor has openly said that he sees the necessity of giving priority to women prisoners, as he said today at Questions in the House of Commons. Hopefully in the new year we will put that strategy into place, and I am sure that we will have a good opportunity to debate that.
Equally with young adults, it is not a matter of carving out from one Government to another on this. I read the report that was published today about young people in care with a sense of collective shame at how these things are being dealt with. However, as those who have previously had those responsibilities know, it is often a matter of convincing colleagues in government, and finding resources when there is competition from other departments that have equally strong arguments. I do not think there is any doubt that we believe that the rehabilitation of both groups is important. We strongly agree with the arguments that have been employed, and that is why we are already investing significant effort and resource to ensure that female and young adult offenders receive the right support.
In the previous debate, I gave examples of the many projects, including those in Lancashire, Durham and Derbyshire, that trusts are running for female offenders. For young adults, likewise, many probation trusts are already coming up with innovative approaches to supporting this group. For example, in London the trust is working on an imaginative project by which some staff will work in both the youth offending team and the trust. This is to ensure that the transition between the youth and adult estate works effectively. In the east of England, probation staff have been developing closer links with leaving care services to ensure that the particular needs of these young adults are being met.
I hope, therefore, that noble Lords will recognise the Government’s strong commitment to providing the right support for women and young adult offenders. There is agreement across this House that we need to do so. What we are debating is the mechanism for delivering that support, not whether we should deliver it. It is important to be clear here that the projects I mention have not been centrally imposed. They have been delivered from the ground up, by committed and passionate staff in probation trusts, to respond to the needs of women and young adults in the area.
Local innovation is critical if we are to have effective services for these groups. I believe the system we already have strikes a good balance between local innovation and central support. I do not believe that a statutory duty is necessary to deliver this.
The relationship between NOMS and probation trusts already gives a framework that ensures these groups are prioritised. For example, trusts are already required by the NOMS Commissioning Intentions document to make appropriate provision for women in the community. Trusts are currently discussing their proposals for services for female offenders in 2013-14 with commissioning experts at NOMS, and will be challenged where these do not appear to be sufficiently robust.
Similarly, I have already mentioned on Report that the operating manual on unpaid work requires that women should be allocated to work placements which take account of their needs. This sets out a presumption that female offenders will not be required to work alongside male offenders.
On young adults, our current system balances local delivery with central support. As with female offenders, trusts are required by NOMS to commission or deliver an appropriate range of services to address the causes of young adults’ offending. To support this, NOMS has provided trusts with information on the specific needs of young adults that will help them and other providers take an evidence-based, effective approach to tackling re-offending. This system allows for local decision-making on how best to meet the needs of these groups.
In short, I wholeheartedly agree with the arguments that noble Lords have made about improving outcomes for female and young adult offenders. I hope that I have reassured noble Lords that NOMS and probation trusts are already taking a tailored approach to supporting them. However, our focus should be on supporting local areas to make further improvements. The system that we have already allows for this. Creating new statutory duties for trusts is not the right way to bring about the improvements that we want for these two groups.
In light of these assurances, I hope that the noble and learned Lord, Lord Woolf, and the noble Lord, Lord Ramsbotham, will agree not to press their amendments. Perhaps I may give just one little bit of encouragement to the noble and learned Lord, Lord Woolf. Yes, we did have lots of talks about restorative justice, and restorative justice is in this Bill, but getting it into the Bill took lots of talks between and within departments, letters to various Cabinet committees et cetera. Some of these things take time, but there should be no doubt that young offenders and women offenders are on the Government’s radar. Ministers at the MoJ, and particularly my colleague, Helen Grant, are working very hard to make progress in these areas. With those assurances, I hope that noble Lords will agree not to press their amendments.
Lord Woolf
My Lords, I thank those who have spoken in favour of the amendment and all those who have taken part in this debate, and I thank the Minister for his response. I hope that he will accept from me that I have no reservations in accepting that he sincerely believes what he has just said to the House.
However, there is a difference between the approach of the Minister and that which I was urging upon the House. I say that the situation with regard to women in the criminal justice system is one where there is a crying need for there to appear in the statute something which speaks of Parliament’s concern.
I have great sympathy for my noble friend Lady Corston in her feeling of frustration at a lack of action in respect of her report, which was welcomed so warmly. It seems to me that, in view of the issue between us and because the Minister has not sought to identify any possible prejudice that could come—
Lord McNally
I can only make one last appeal to the noble and learned Lord. Does he really think that it will advance one inch the cause that he espouses if we have a Division at this point, where people who have not been in the debate will come in and be told, “Oh, you’re voting in favour of women or voting against women.”?
Lord McNally
It is no use saying “shame”. There is no division between us, and to suggest that there is does not further the cause.
Lord Woolf
Well, of course, I listen very attentively to what the Minister says, but perhaps he will forgive me if I bring the agony to an end by indicating that, as I see it, there is nothing in the proposed provision which can harm the Government’s good intentions. I think that there is a difference of view here: between those who feel that the statute should contain a statement of recognition of the special position of women in the criminal justice system and those who do not. In those circumstances, I seek the opinion of the House in respect of my amendment.
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Lord Beecham
My Lords, I hope the Minister can give a positive reply to the noble Baroness. She has made a powerful case in connection with a particularly vulnerable group for whom existing services are perhaps not adequate. I do not know whether the Minister will be inclined to accept the amendment at this stage or whether he will at least be prepared to take it back for consideration before—or rather at—Third Reading. I think that that would satisfy the noble Baroness and most Members of Your Lordships’ House and I hope he feels able to take that course.
Lord Woolf
I also urge the Minister to do what has just been urged by the noble Lord, Lord Beecham. It is the judge’s most important duty to ensure the fairness of the trial. However, the problem identified by the noble Baroness, Lady Linklater, is one that the judge simply cannot tackle himself. There needs to be hands-on assistance of the sort she indicates. Therefore, for the same reason, I ask the Minister to give careful consideration to this.
Lord McNally
My Lords, as the noble and learned Lord, Lord Woolf, has just told us, it is the duty of the courts to ensure that defendants receive a fair trial. It therefore may be necessary to make particular efforts in the case of defendants whose understanding is limited. To some extent it will fall to the defendant’s legal adviser, or to the judge, to help meet the needs of these vulnerable defendants. From time to time courts have asserted the right to grant such defendants the assistance of an intermediary.
Statutory provision has in fact already been made in Section 104 of the Coroners and Justice Act 2009 for certain vulnerable defendants to be eligible for assistance from an intermediary when giving evidence. A defendant would benefit from this provision where their ability to participate effectively in the proceedings as a witness is compromised by a significant impairment of intelligence and social functioning; or where they are suffering from a mental disorder within the meaning of the Mental Health Act 1983.
The Government made a decision to defer implementation of Section 104 until full consideration could be given to the practical arrangements and resource implications. Although there are no immediate plans to implement these provisions, we are continuing to monitor the situation and the resource implications of doing so. However, as I said earlier, judges have on occasion granted the use of an intermediary to assist vulnerable defendants to ensure a fair trial. In fact, guidance on the process for appointing intermediaries for defendants was issued nationally to all courts last year.
Furthermore, Part 3.30 of the Consolidated Criminal Practice Direction also provides guidance on a range of other types of support that a court may wish to offer, including that at the beginning of the proceedings the court should ensure that what is to take place has been explained to a vulnerable defendant in terms they can understand. Secondly, a trial should be conducted according to a timetable which takes full account of a vulnerable defendant’s ability to concentrate. Frequent and regular breaks will often be appropriate.
I have listened to what my noble friend said and to the interventions of the noble and learned Lord, Lord Woolf, and of the noble Lord, Lord Beecham. I do not want to raise expectations as I am not sure whether I can get clearance to take this forward at Third Reading. However, I assure my noble friend that, as I have said, we are continuing to monitor the situation and are looking at the practical arrangements and resource implications of bringing in Section 104. I certainly agree to take this measure away. If I cannot bring it back at Third Reading, I will write to the noble and learned Lord, the noble Lord and my noble friend to explain why I cannot do so and what we are doing to keep this matter under review. I hope that, with those assurances, my noble friend will agree to withdraw her amendment.
Lord Beecham
My Lords, I am treating this as a Second Reading debate, which we could and should have had some time ago, to allow the Government the opportunity to make their case—which, it seems to me, the Minister has failed to do today—either here or in the other place, but we will not be voting on these proposals today.
Lord Woolf
My Lords, I should disclose that I presided over the case of Tony Martin on appeal. I oppose this amendment because I regard it as a very bad example of where statutory interference with the common law is wholly unnecessary. Unfortunately, like the noble Lord, Lord Beecham, my home has been burgled so I am not totally objective on these matters and know the concern that they can cause.
The position here is that nearly every word the Minister used in moving this amendment is the sort of remark that judges up and down the country would make to a jury when dealing with those very few cases in which a householder is prosecuted. I could hear myself making precisely those remarks in those days of longer and longer ago: such as saying that the person whose house was broken into, or who was attacked by a burglar, cannot be expected to draw a fine line between what is permissible and what is not. He has to be judged in the circumstances in which the alleged offence was committed. The great advantage of that situation was that the jury of men and women with their own experiences could set the standard and decide what was reasonable or what was not. Certainly, based on my experience, they always exercised that task in a way that was sympathetic to the defendant whose home was interfered with.
The problem and disadvantage caused by introducing an amendment of this sort is that you will always try to put into language the appropriate circumstances where you think a particular result is desired. However, there will be circumstances that are very similar to those circumstances, but where the language used does not apply. You cannot anticipate all the circumstances. One inevitable difficulty with this sort of amendment is that there will be amendment after amendment to the law, making it more and more complex and difficult to apply. Yet, as the quotation from the present Lord Chief Justice makes clear, a statement of the sort he indicates will achieve justice in the particular case.
I can understand why it is thought to be a good thing to do everything possible to defend victims of a particularly nasty crime from unintended consequences. However it is not desirable when the law itself is satisfactory and changing the long-standing law that upholds the spirit of the common law is sought by reducing it to the kind of language we have here.
Baroness Kennedy of The Shaws
My Lords, I, too, oppose this amendment and echo everything said by the noble and learned Lord, Lord Woolf. The whole nature of self-defence in the common law is very clear. Day in, day out, juries up and down the country judge using that set of criteria; which is that when you are fearful for your own safety or that of your family, when you feel a threat and act in response to the fear of a threat, no one expects you to measure the nature of your response to a nicety. No one for a minute expects you to be measured in the cold light of day and not take account of the heat of the moment that faces you when defending yourself. That is a measure in the courts on self-defence anyway, but it becomes even more heightened when dealing with the terror that we all know—and probably most of us have experienced—when we find that we have been burgled.
So this is about reaching for changes in the law for rather unsatisfactory purposes. A Dutch auction is now going on between the political parties about who can be tougher on law and order and this is about seeking to appeal to a fear in the public that is already met by law. That really is the poorest kind of legislative endeavour and is not worthy of the Benches on the other side.
Lord Rosser
My Lords, we have an amendment in this group. It is interesting that the Government’s response to the consultation on effective community sentences states:
“We will legislate to place a duty on courts to include in the community order a requirement that fulfils the purpose of punishment for the offender. The court will be able to exercise this duty by imposing a fine instead if it considers that to be appropriate. While we will not specify what requirements courts should impose, on the basis that what is punitive for one offender may not be punitive for another, our expectation is that these would generally be restrictions of liberty that represent to the public a recognisable sanction (such as curfews, exclusion, or community payback). The duty will provide for an exemption in exceptional circumstances where it would be unjust to impose a punitive element”.
The Government’s response refers to restrictions of liberty such as curfews, exclusion or community payback. The use of the words “such as” implies that a court could impose other requirements that would be regarded as restrictions of liberty. Can the Minister confirm if that is the case? What might the other restrictions of liberty be that would be regarded as punitive? Will he also confirm that if a court imposed as a punitive element something other than a curfew, exclusion, community payback or a fine, that would not be regarded as acting outside the terms of this Bill?
The Government’s response to the consultation on effective community sentencing also refers to a punitive element being a restriction of liberty that represents, to the public, a recognisable sanction. Who is to determine what represents to the public a recognisable sanction? Will it be for the court to decide? If it decides that a punitive element is something other than a curfew, exclusion, community payback or fine, will the court, whether the original court or an appeal court, be regarded as having acted outside the terms of the Bill?
Even the Government’s own response to the consultation states that nearly all respondents indicated that offenders with mental health issues should be excluded from a mandatory punitive element and that many suggested that offenders with learning difficulties, those unable to carry out a punitive requirement because of poor health or addiction, those with personality disorders and young adults with low maturity should also be excluded. Does the Minister also hold that view, and would the number of such offenders exceed the 5% that it has been widely suggested would be the percentage the courts might feel able to regard as covered by the definition of “exceptional circumstances” laid down in the Bill and thus exempt from the Government’s definition of a punitive element?
One rather assumes that the Government’s approach is conditioned by the kind of recent statement made by the Secretary of State for Justice, that he shares public concern that offenders given community sentences often feel they are getting away with it; that they have been slapped on the wrist rather than properly punished. However, if that is the case, who is it giving that impression to the public other than politicians who make statements like that rather than spelling out just what a community sentence is? Two-thirds already include a punitive element, on the Government’s apparent definition.
Published research on short custodial sentences found that many prisoners preferred short sentences over community sentences because they found the latter more challenging. Does the Minister agree or disagree with those findings by the Howard League? Why does he take the view that a rehabilitation element in a community order cannot be at least as challenging to an offender, if not more challenging, than the Government’s version of what constitutes a punitive element?
For someone who has an addiction, learning difficulties or low maturity, or has led or been allowed to lead a thoroughly dysfunctional and disorganised life, having to face up to the realities of their lifestyle or situation through a challenging programme that they have to attend at specific laid-down times as instructed and co-operate with, or else risk being taken back to court and sentenced in another way, is at least as difficult as doing community payback or paying a fine related to their means. Yet that apparently is not the view of the Minister. Perhaps he could explain why that is not his view. I hope that he will be able to get a bit further than telling us it is because that is not the view of the tabloid press.
If the current position were changed and virtually all community sentences included a punitive element along the lines that the Government appear to be trying to enforce, does the Minister accept that that could be at the expense of rehabilitation elements in a community order? If a punitive element had to be included in an order that currently incorporates what the Government regard as only a non-punitive element, will the Government be providing additional resources to the probation services to cover the cost of this additional requirement, or will probation service budgets be left as they are so that, in order to remain within budget, those services may have to drop the rehabilitation element from the order to enable the cost of the additional punitive element to be paid for within the laid-down budget? What reassurances can the Minister give that this will not happen? The loss of the rehabilitation element in the order where deemed necessary will not contribute anything towards reducing reoffending.
The fact that the Minister does not appear to regard community order requirements involving challenging programmes for rehabilitation as at least on a par, in terms of restrictions on liberty and difficulty for offenders, with unpaid work in the community, a curfew or a fine—which are about the only things the Minister regards as in any way imposing a restriction on liberty—is a step backwards and simply seems to confirm, not challenge, the view that community orders are “soft”. Where unpaid work, a curfew or a fine is appropriate, that is what the offender should be given, but not where it would be inappropriate. The reality is that the Minister has decided that in some 95% of cases involving a community order as a sentence, unpaid work, a curfew or a fine is appropriate. It is usual to hear the facts of a case before coming to a conclusion on what is the appropriate sentence, but that is not what the Government are doing as they seek to specify what must be included in a community order in 95% of cases.
The Government appear to have lost confidence in the courts at a time when crime is falling, without explaining why, other than their own unwillingness to challenge the perception they believe the public hold that current community orders are soft. The reality is that the most important thing the public want to see delivered by a sentence is a reduction in reoffending, and an end to reoffending by the offender. I hope that even at this late stage the Minister will be prepared to change his stance, or at least review it, and support my amendment, which includes a range of existing programmes and orders as being within the Government’s punishment requirement in the Bill.
Lord Woolf
My Lords, I have difficulty with these provisions, for very much the same reasons as my noble friend Lord Ramsbotham and the noble Lord, Lord Rosser.
I have put forward amendments myself because I feel that if we are not going to have the clean solution proposed by the noble Lord, Lord Ramsbotham, of just getting rid of these provisions—which would certainly achieve everything I want—we have to try more delicate and specific surgery to produce something that the courts can apply practically. To an extent, the amendment in the name of the noble Lord, Lord Rosser, helps in that regard, so as an alternative I would be prepared to accept that.
To clarify my reasoning, proposed new subsection (2A) of Section 177 of the Criminal Justice Act 2003 reads:
“Where the court makes a community order, the court must … include in the order at least one requirement imposed for the purpose of punishment”.
Whether the requirement is imposed for the purpose of punishment or for some other purpose is presumably to be decided by the judge. Under our law, once a person has been convicted, it is the judge’s task to decide what punishment is appropriate. If he comes to the view that it does involve punishment, I would like the Minister to confirm—if I am correct—that the view of the judge will be respected and it is not suggested by the Government that that is a matter with which a higher court would interfere. On the other hand, if that is not so and the decision as to whether the requirement has been imposed for the purposes of punishment is to be made objectively, I would like the Minister to assist me as to what criteria it is to be judged by. If I were that judge, my ordinary reading would be that as these community sentences are imposed as part of the sentencing process, they are all part of the punishment that the court considers appropriate.
My general contention is that we have to have clarity as to what is to happen. Assuming what I have said is not right, who determines the punishment? Does the defendant who is banned from attending a football match determine it or does the court? I am happy to see that the Minister may well be agreeing with me—at least on that matter—but if it is the court, that must be clearly set out.
Crime and Courts Bill [HL]
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Lord Woolf
My Lords, I am most grateful for the manner in which the noble and learned Lord, Lord Lloyd, has addressed the House. I strongly endorse every word that he has said. I support the amendment, to which I have added my name. I want to reaffirm what he said about the desire of the senior judiciary and successive Lord Chancellors to achieve greater diversity. As I see it, any objection to anything that would improve diversity has to be approached with caution. However, I say, without hesitation, that I do not believe that what is proposed at the moment with regard to part-time judges in the Court of Appeal and in the Supreme Court will achieve what we want. All it will do is give false expectations that cannot possibly be fulfilled.
The difficulty of accommodating part-time judges is very real but it can be done, and has been done, in the lower courts. However, the Court of Appeal and the Supreme Court are conducted in an entirely different way from what happens in the lower courts. What is more, their diet is different. Before I addressed the House today, I took care to speak to Sir Anthony May because for seven years, part of which time I was the Lord Chief Justice, he was the judge who had the heavy responsibility of determining how the courts would be staffed. His conclusion was that to try to adopt the proposal of part-time judges in appellate courts would create a nightmare—that is his word. Already it has been accepted that the High Court should be able to make progress, if possible, in that respect. I have reservations about whether that could be achieved in the High Court and Sir Anthony shared my reservations in that regard.
If that were to be implemented in respect of the Court of Appeal and the Supreme Court, would the position with regard to diversity be improved or would this be nothing more than a gesture, and one wholly without substance? If so, I do not believe that anyone who really wants to see diversity would welcome this provision. I know of no supreme court where part-time judges take part; likewise, I do not know of any court of appeal where part-time judges are appointed. In essence, their work is not appropriate for what could truly be called part-time judges.
However, while I entirely agree about the possibilities of flexibility, we are already extremely flexible in our approach to the use of our judges. It is only because of flexibility that, for example, we can enable judges to conduct inquiries more and more frequently, as has happened of late. If we were not flexible, that would not be possible. Likewise, in the current conditions of international co-operation between judiciaries of different countries, it is necessary for judges to meet in different countries and for there to be a constant programme of change and discussion between judiciaries of different jurisdictions. Diversity is a matter that they are concerned about but they, as far as I know, have no proposals of this nature.
I observe that later amendments propose to place a duty on certain senior judges to promote diversity. If it is thought that that duty is necessary, I am all in favour of it. I personally have doubts as to whether that duty will add to what they are already trying to do but I see no problem with it appearing in the statute. But I certainly urge the Minister to consider whether this suggestion is realistic.
Part-time working could even have an adverse effect on diversity. When I have discussed diversity with former colleagues, I have noticed that senior judges, who are finding the work very hard for the reasons indicated by the noble and learned Lord, Lord Lloyd, feel that it might be rather nice to have a couple of months off from time to time. In fact, it would be much better for judges who are finding the work overburdensome to retire rather than work part time. If they retire, they allow other judges to come forward and be promoted to courts such as the Court of Appeal and the Supreme Court. If they remain, that is not the case.
Once a judge retires, as long as he is under the age of 75, when you become statutorily senile, it is possible to be used from time to time—as much as the former judge wishes—when there is a need for an additional judge to help the administration of justice. Many judges sit in that way in the Court of Appeal and in the Supreme Court. That is just one more example of the flexibility that can be achieved without the need for legislation. I urge the Minister to take advantage of this opportunity to look again and, at least, decide not to keep in the statute a provision of this sort relating to part-time employment of judges in senior courts.
Lord Carswell
My Lords, Plato said:
“Wise men talk when they have something to say; fools because they have to say something”.
I hope that what I have to say will fall into the former category, but having heard what the very experienced and authoritative noble and learned Lords, Lord Lloyd of Berwick and Lord Woolf, said, I will make my point short, simple and direct in support of the amendment.
I had quite a long time—a good number of years—in appellate courts, and for seven years as Lord Chief Justice of Northern Ireland I was closely concerned with appointments. I am wholly and unequivocally in favour of promoting women to the posts that they should occupy. It follows that I am equally in favour of any flexible means of working that will effectively promote that objective. The intention behind the clause is admirable, but I am afraid that it simply will not work. The reason is simple. It was suggested by one or two noble Lords in Committee that most of the cases in the Supreme Court are of two days or fewer so there is really not a problem. I regret that it is not as simple as that.
The figures given to me by the Supreme Court are that in the first three years of its existence—which have just elapsed now—there were 168 cases heard. Of those, some 33 occupied more than two days. That is almost 20%. In itself that is not an insignificant proportion, but the really important thing is that virtually all of those longer cases were the most significant, important, demanding and difficult cases that the justices had to try. They are the ones which everybody should be available to take part in when required. If a judge is part-time and would not be available to take part in the longer and harder cases because of the length of time they occupy, it is damaging to collegiality—the team spirit of the court, if you like.
From experience, I can assure your Lordships that that is an important factor. If a judge cannot play, let us say, in the Premier League matches, there would be a feeling that he or she—and we are really talking of “she”—cannot pull their weight and that they are in some way second-string judges, though they may be very able people. They will feel that they are not really there at the party; the other judges may feel that too if they are carrying the burden. That is undermining to the spirit and effectiveness of the court and of the part-time judges.
I entirely agree that it is important to recognise and tackle this problem and to find ways of improving the promotion of women to the highest positions, which they should be occupying. I will not weary your Lordships with the ways that have been suggested. My noble and learned friend Lady Butler-Sloss spoke in Committee about this. There are ways, if they are properly, fairly and conscientiously followed by the appointing authorities. While the intention behind the present provision is excellent, the way adopted by the Bill of putting it forward with part-time judges is a mistake. It will not work and I support the amendment.
Lord Woolf
Perhaps my noble friend, who regularly appears in the Supreme Court and is familiar with many of its judges, can help us as to how many of them have family commitments.
Lord Pannick
I am sure it is true that all Supreme Court justices—particularly the 11 men, if it is those to whom the noble and learned Lord is referring—have family care commitments. However, the same point can be made about all senior men in all other professions. We all have family care commitments. The difficulty, as the noble and learned Lord knows, is that the family care commitments that address the needs of children and, perhaps more relevantly at the senior levels of the judiciary, aged parents, tend in our society to fall on women rather than men. That is a social fact.
I say to those who support the amendment that I entirely understand the points they make about practical difficulties but it is important not to exaggerate the problems. Judges regularly take time off from judging to do other things. The noble and learned Lord, Lord Woolf, mentioned that judges are regularly appointed to head inquiries. Supreme Court justices sometimes take four to six weeks off to sit on the Court of Final Appeal in Hong Kong. One could give many other examples. The idea that the system cannot—
Civil Legal Aid (Merits Criteria) Regulations 2012
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Lord Woolf
My Lords, I been trying to limber up, and I hope that I am now able to follow what has been said by my noble friend Lord Pannick and my noble and learned friend Lord Mackay of Clashfern. I agree with every word that they said with regard to the amendment to the Civil Legal Aid (Merits Criteria) Regulations, which are the subject of the regret Motion.
In order to understand the context, it is necessary to know that judicial review is, of course, subject to principles which have been judge-made. Judicial review, in the form that it is now, is a judicial invention of which we are extremely proud. We are proud of it because the object of the exercise is to ensure, in particular in relation to public law proceedings, that the appropriate procedure is adopted, having regard to the issues raised.
At one time, it was thought—again, by decision of the House of Lords in the well known case of O’Reilly v Mackman, that it was always necessary to use judicial review in public law proceedings. It was then found in practice that that led to satellite litigation over whether the right procedure had been used or the wrong procedure. The courts sought to produce watertight compartments. Fortunately, that was only a temporary stage in the development of judicial review. The next step was to adopt a much more sensible and realistic approach, which involved proceedings being dealt with in the most sensible and reasonable way. Although the phrase that judicial review should be used only where there was no alternative remedy was retained as a simple method to identify one of the principles, the law had developed beyond that. It was made clear by authority after authority that that was subject to the requirement that it should always be reasonable to adopt the procedure which was proposed: judicial review.
Regulation 53(b) contains the statement that is in accord with the general principle of exhausting alternative procedures, but does not refer to the fact that that is not a rigid limitation, but reflects the nature of the procedure, which requires the court to adopt a reasonable course in considering the matter. As has been pointed out by both my noble and learned friend, Lord Mackay, and my noble friend Lord Pannick, that approach of the courts is almost impossible to adopt as a matter of interpretation because of the language of Regulation 39(d). An additional reason to those which have been given for accepting my noble friend Lord Pannick’s Motion and amending Regulation 53(b) is that if that is not done, the procedures in the courts and the procedure for granting legal aid will be out of sync; they will be in conflict. That cannot be a sensible position. Litigants will be forced not to do the reasonable thing, which is what the Civil Procedure Rules require, because they will not have legal aid if they do that, but to adopt an unreasonable course and bring proceedings by judicial review and then get legal aid. That cannot be a sensible course.
I hope the Minister, having heard the argument before the House, will accept the invitation which has been made to consider the matter again. I would be very happy to adopt the amendment suggested by the noble and learned Lord, Lord Mackay, but would, perhaps, suggest that if it is thought preferable to amend Regulation 53(b), what was intended, I believe—or what, at any rate, it should state—could be achieved by inserting into paragraph (b), “the individual exhausted all administrative appeals and other alternative procedures which it would be reasonable for him to adopt to challenge the act, omission or other matter before bringing a public law claim”.
I should have said that my noble and learned friend Lady Butler-Sloss intended to speak and asked me to indicate that she supports the arguments advanced by the noble Lord, Lord Pannick, and those which I have just advanced.
Lord Goldsmith
I want briefly to support both amendments. So far as the amendment moved by the noble Lord, Lord Pannick, is concerned, it is not necessary to say very much after a former Lord Chancellor and a former Lord Chief Justice have both criticised the order as it stands because of the way it operates in different ways. I can summarise my view in relation to it very briefly. This order already recognises that there may be “reasonable” and “not reasonable” alternative procedures. It does that in Regulation 39. However, if one then reads Regulation 53(b), it is very clear that the word “all” must be read as meaning “all”. Therefore, if one expands the meaning, what is being said as it stands is that there will not be legal aid unless the individual has exhausted all reasonable and unreasonable alternative procedures. As soon as one poses the question that way, it becomes absolutely plain that it must be wrong to impose that obligation. I do not think it is necessary to say anything more than that to summarise why the noble Lord, Lord Pannick, and the noble and learned Lords, Lord Mackay of Clashfern and Lord Woolf, are absolutely right.
Let me turn to my reasons for supporting my noble friend Lord Bach in his amendment. I recall very well the clear and powerful way in which the noble Baroness, Lady Doocey, moved the amendments which led to this particular issue. They were strong and supported by a majority of this House. I have read the debate—though I did not listen, as my noble friend Lord Bach did, to the debate itself—which took place in the other place. It seems clear to me that what was being said was that a way would be found to enable legal aid to be provided in the first tier where there were points of law. The concern expressed by the Government was that they did not want that to be a point of law just because it was so stated by the claimant or the claimant’s lawyer. That is clear in column 266. However, the Government have not ended up with that at all. They have ended up with something which appears—if my understanding of the way the procedure works is right, and it follows that of my noble friend Lord Bach—to mean that legal aid does not come into the picture until after the event. That may be appropriate in certain other circumstances, but not here.
What one needs in these circumstances is the ability to identify a point of law which will be relevant and necessary for a particular applicant—particularly a claimant of the sort to which the noble Baroness, Lady Doocey, referred—to be able to put that point of law before the tribunal. I fully endorse her point that most claimants do not recognise a point of law when they see it. I suppose that as a practising and paid lawyer, I am quite pleased, on the whole, that that is the case, although I do not actually practise in this area. The point is this, however, and I ask the Minister to answer this question: why could the way the Government limit this not be by the chairman of the tribunal identifying the point and certifying it at the outset rather than waiting until after the event?
There is one point which connects these two amendments, and it is what drives me to want to persuade the House to support them. In LASPO, we were faced with changes which, for many of us, were very difficult to accept. The Government put them forward on the basis of economic necessity. However, there was a strong belief that there were cases where justice required that there should still be some opportunity for legal advice to be taken and used. In these particular cases—public law and cases involving claimants with disabilities, for example—the Government are failing to give effect even to that limited, modest exception that they were prepared to allow. I very much hope that the Government will think again in the light of this debate.
Crime and Courts Bill [HL]
Lord Woolf Excerpts(11 years, 6 months ago)
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The Chairman of Committees (Lord Sewel)
I have to inform the Committee that if Amendment 1 is agreed to, I cannot call Amendments 2 to 10 inclusive.
Lord Woolf
I wondered whether anyone other than on the opposition Bench wanted to say something on this—I certainly do. I start by disclosing that I am the chairman of the Prison Reform Trust and the amendments in my name were put down with its support.
The noble Lord, Lord Ramsbotham, is absolutely right with his amendment. Whenever I get to my feet, I am conscious that as a young advocate, I appeared before a very well known judge, Mr Justice Stable, to advance an argument that my client should not be convicted of murder but manslaughter, and he said to me, “Mr Woolf, if you heed my advice, you would not water the brandy”. I fear that by getting to my feet, I may be inadvertently watering the brandy of the noble Lord, Lord Ramsbotham, because, as has been pointed out, if we get rid of the clause as a whole, we do not need to bother with the detail.
As to the detail, if it remains, I urge the House to get rid of the word “exceptional”. It has been used in legislation in the past. Wherever it has appeared, it has caused difficulties, not least because the question is: what is exceptional and what is not exceptional? That gives the advocate a difficult task; probably more importantly, it also gives a difficult task to the judge. You get into situations where judges are tempted to give an exceptionally wide meaning to the word “exceptional”. I remember a case where I did just that, because it created such an obvious nonsense that it resulted in injustice. A great judge, Lord Bingham, took a much narrower view of the meaning of that word than I did. The fact that two successive Lord Chief Justices should interpret that word in different ways illustrates my point.
With regard to the first of my tabled amendments, I urge the House to deal with the word “exceptional” if it allows this part of the schedule to survive. If it is removed, I suggest that proposed new subsection (2B) of Section 177 will have a sensible meaning. It would read:
“Subsection (2A) does not apply where there are … circumstances which … relate to the offence or to the offender … would make it unjust in all the circumstances for the court to comply with subsection (2A)(a) in the particular case, and … would make it unjust in all the circumstances for the court to impose a fine for the offence concerned”.
I do not think that the criticisms that I have made of “exceptional” apply to “unjust”. When judges are sentencing, they are trying daily to achieve a just sentence and if a sentence is unjust they will not impose it. The trouble with Section 177 is that if it is amended as set out in the schedule, it will become a vehicle for causing injustice. If you are sentencing you have lists of sentences for various offences, which you can impose. You might go down the list and decide that a community sentence is the appropriate one. Once a judge has decided that is appropriate, to say that he then has to perform an exercise to see whether that sentence is punitive—and put something else in if he comes to the conclusion that it is not—is really nonsense. It will cause him to do exactly what he has concluded is unjust. He has come to the conclusion that although the community sentence is necessary, it is not necessary to have an additional punitive penalty. From the practical point of view, that really is not a satisfactory outcome.
The other amendment with which I am involved in this group is Amendment 8. Or is that one not being spoken to yet? I apologise to the House; I will come to that later.
Baroness Hamwee
My Lords, I was thinking about not brandy but confectionery and I do not find this fudge, if one thinks about it, as being sweet and tasty. In every other way, however, I absolutely follow what the noble Lord, Lord Ramsbotham, has said, although my remarks will cover rather narrower ground than his.
I really wonder, as others have, whether this provision is necessary. If it is only gesture politics—I say that rather bluntly—it might not be so bad, although I would still deplore it because I deplore gesture politics, but it must mean something. As the noble Lord said, every day the courts do the things that we are being told this provision is directing them to do. I do not believe it does anything but restrict sentencing choices. It imposes a requirement that may be detrimental for offenders whom one is seeking to rehabilitate. I do not need to amplify that; we have a lot to get through and these points will be made better by others throughout today.
I wonder whether Amendment 2 achieves anything. I support the sentiment behind it but changing “must” to “may” does not add anything if we accept that punishment is already one of the purposes of sentencing —which it is, under Section 142 of the Criminal Justice Act 2003. As I say, however, I am with that sentiment.
The letter dated 7 November that we received from the Minister said that the term “exceptional circumstances” is very tightly drawn. I had to go back and reread that, because I think “exceptional circumstances” is very widely drawn when one thinks about the context in which we are debating this. As noble Lords have so often said, and as others outside this House have reminded us, such a very high proportion of offenders suffer from mental illness, substance misuse and dependency that one could not say that there was anything exceptional about their circumstances. The noble Lord, Lord Ramsbotham, referred to debt in the context of imposing a fine. That made me think that being in very straitened financial circumstances, combined with other factors, is often a prompt or a nudge towards theft and various offences.
When we last debated this schedule, I suggested that “particular circumstances” would be a better term than “exceptional circumstances”. Discussing that with colleagues later, we wondered about “special circumstances”, and my noble friend Lady Linklater has tabled Amendment 6 to propose that term. Essentially, we are trying to suggest a number of other possible terms—not alternatives because I do not think “exceptional” is right—if the Government are insistent, as I expect they will be, on retaining this part of the schedule. The noble and learned Lord, Lord Woolf, has taken a scalpel to it and pointed us to the inconsistency between the terms “just” and “exceptional circumstances”. I am very happy to line up behind him if that is the way that the House thinks we should go if we do not get rid of this altogether.
Lord Woolf
My Lords, I think now is the appropriate time for me to deal with Amendment 8, which returns to the same problem indicated earlier. I hope I am right in assuming that the Government do not intend the provisions of Section 177 as amended to undermine the effectiveness of community sentencing. My amendment makes that clear by qualifying the requirement contained in the proposed new Subsection (2A) to exclude that provision where it is likely to reduce the effectiveness of the order in preventing reoffending by the offender. This at least gives the sentencing judge a way of not doing something that he knows will be destructive of the beneficial effect of community sentence.
Baroness Hamwee
My Lords, the noble and learned Lord’s amendment goes to the heart of the issue. It would be ironical if what he is seeking to avoid were in fact to come about since all this should be about preventing reoffending. My Amendment 11 provides that none of this should affect the provisions of Section 142 of the Criminal Justice Act 2003, which sets out the purposes of sentencing. I realise that it would have been better drafting if I had just referred to Section 142(1), but never mind; one can come back to that at a later stage.
I am seeking to ensure that we do not impose a hierarchy of purposes and that we leave punishment where it is as one of five principles. I am sure that the Minister understands that this is the quite simple purpose of this amendment. I hope that he can reassure the Committee that nothing here seeks to alter in any way those well established five equal partners in principle.
Lord McNally
I thank noble Lords for their contributions. Let us be clear: of course the five principles are intact but, as the noble Lord, Lord Elystan-Morgan, queried earlier, why bring legislation if we do not intend to change things? We do intend to change things. The whole thrust of what we are trying to do is to use community sentencing effectively, couple it with a real drive on rehabilitation, and also—and we think we have public support in this—use the element of punishment to drive home both the rehabilitation message and the punishment message.
Part of that has come out in our debates. There are noble Lords who believe that “exceptional” covers around a third of offenders. That is exactly the problem we are trying to address because the idea that somehow a third of offenders cannot be punished is what undermines public confidence. That is why we are making the point that exceptional circumstances apply to a very narrow group and that it is possible to put a punishment element into a much wider range of sentences while giving the court the flexibility to take account of the circumstances of the person before it. However, as I said in the earlier debate, we are going to resist those who want to amend the Bill so that there is a three-lane highway of exceptions from what we are trying to do.
Amendments 3, 3A and 8 focus on ensuring that the courts,
“have regard to the need to promote rehabilitation”,
and that punishment is not imposed at the expense of rehabilitation. Amendment 9 looks at the detail of what requirements might constitute punishment for an offender, and finally, Amendment 11 looks at the impact of the changes on the purposes of sentencing as set out in Section 142 of the Criminal Justice Act 2003. On the issues raised by the first three amendments in this group, I am happy to reassure the Committee that it is not the Government’s intention that any of these provisions should jeopardise the prospect of rehabilitation for offenders. In fact, as the noble Lord, Lord Rosser, said, I have already made the point a number of times that I am proud that the amendments we will be debating place rehabilitation so firmly on the agenda—and I keep on reinforcing what has been commended by the Prime Minister as part of this thrust of criminal justice reform.
Lord Woolf
Will the Minister forgive me if I ask him to indicate whether he thinks there cannot be a situation where a judge might conclude that the effectiveness of what is proposed by the Government might reduce the effectiveness of the order to prevent reoffending? If that is the judge’s conclusion with regard to the proposed new provision, does the noble Lord think that the judge should have an escape hatch?