Legal Aid, Sentencing and Punishment of Offenders Bill

Baroness Butler-Sloss Excerpts

Tuesday 27th March 2012 Lords Chamber

[Lord Bach]

I thank the Minister for the concession that the Government have made today. The clause as it stands before we pass the Government’s amendments should never have been in that form when the Bill was published and was always crying out for amendment. Indeed, members of my party in the Commons did their best to ensure that that happened. I am grateful to the noble Lord, Lord Thomas, and other noble Lords for persuading the Government that the clause needed changing. I shall not, of course, press my amendment; I will not move it.

I know the Minister and all other noble Lords will agree that the House seems somewhat empty today because our noble friend Lord Newton of Braintree is not with us in our deliberations. He took an active part in all the debates on the Bill for many months and, even though we could all see that he was not in good health, insisted on coming here, speaking his mind and voting in the way his conscience told him to vote. He took a real interest in the Bill and—I know all noble Lords will agree—it was a delight and privilege to work with him. It does not seem right or just that he is not here listening and speaking his mind. Having said that, I thank the noble Lord for the concession.

[Baroness Butler-Sloss]

My Lords, as a Cross-Bencher, I add to what the noble Lord, Lord Bach, has just said about the death of a man who was a great friend to many of us. Lord Newton was an adornment to this House, who stood, as the noble Lord, Lord Bach, has already said, for his conscience rather than for what his party, or any party, might wish. It is easy for me as a Cross-Bencher to examine my conscience, and I am well aware it is not so easy for members of political parties. He will be enormously missed. His name is on a number of today’s amendments, and I hope that noble Lords will forgive me for saying something about this before I move to Amendment 1.

I congratulate the Government. I do not do it terribly often but am going to do it three times today. This amendment, as the noble Lords, Lord Thomas of Gresford and Lord Bach, have said, is overdue. It is splendid that the Government have recognised the importance of having the ability to increase legal aid. I also very much support the fact that they are putting in “vary or omit”. All of us who have had anything to do with legislation know that from time to time it becomes redundant and has to be got rid of or needs a tweak here and there, and therefore needs a variation. I support this amendment as it is.

However, if the Minister will forgive me, I will make one or two points about what has happened as a result of this Bill so far as family cases are concerned. The noble Lord, Lord Thomas of Gresford, has already mentioned this but I will add to it. I strongly urge the Government to review the impact of the legal aid changes no later than a year from now, to see what happens to the family courts in the light of the removal of nearly all private law cases from legal aid. I am not sure the Government really quite accept what a number of us have been saying, to the Ministers in this House and the other place, about the impact on the courts. There will be longer lists. I know the Ministry of Justice is already aware that the lists in the courts are too long, and they will be increased substantially.

There will be longer hearings. As the noble Lord, Lord Thomas of Gresford, said—entirely accurately—without lawyers to keep a case under control, two litigants in person will spend an absolute age. The sort of case that takes a day, or possibly a day and a half to two, will take not less than a week. I have a vivid recollection of one litigant in person who took a week to give evidence and cross-examine. Every time I asked him to hurry up, it added another hour or two to the case. I am afraid I sat scribbling nonsense, because nothing he said was of any value to the conduct of the case.

It is going to be very difficult for district judges and magistrates to manage people totally caught up in the emotions of a failed relationship and fighting over money, a house or particularly children. They will have to do it but it will clog up the courts to an even more significant degree.

It will have an impact in children’s cases. One example in child protection issues is the fact that drink or drug abuse is sometimes detected only during the hearing of a private law case. It is crucial that the person who is drinking or taking drugs to excess is tested to see what should be done as to whether that parent is fit to have care of the child, or even to see the child. The Minister will be aware that in the Norgrove report that point was made about the very thin line between the private law cases and those that tip over into child protection issues. On Report, we discussed whether the mediator would identify cases where there might be abuse. There is a hard core of 5 per cent of cases that cannot be settled between the parties—and, of course, that 5 per cent of cases will carry on regardless and may not ever come to the attention of the mediator.

I ask the Minister, in congratulating him on proposing the amendment, to have a real look at the impact on the family courts within no later than a year to see what is actually happening.

[Lord McNally]

My Lords, of course I associate myself with the expressions of sympathy on the untimely death of Lord Newton.

On the matter raised by the noble and learned Baroness, we are committed to undertaking a post-implementation review of the specific policies set out in the Bill. As she acknowledged, we have just replaced a ratchet by a regulator, which should also help in seeing whether some of her predictions come true, and how we react to that.

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I should add for the sake of completeness that our amendments also add recovery orders under Section 34 of the Family Law Act 1986 to a list of remedies for which civil legal aid is available in international child abduction cases as well. We can see the potential relevance of such an order where a child has been removed from the parent with residence but not yet from the United Kingdom, so the final international removal might still be prevented. Another small technical amendment relates to what are described as Section 27 applications. Legal aid will be made available for the narrow associated issue of registering an order made in one part of the United Kingdom in another part of the United Kingdom if it has a different legal jurisdiction. I beg to move.

[Baroness Butler-Sloss]

My Lords, I should like to congratulate the Government and also to express my very deep gratitude to the Ministers in this House and in the other House for achieving a very sensible solution. I am also particularly grateful to the government lawyers who have done an enormous amount of work both for me and for those behind me, and who took the trouble to deal directly with the former chairman of the Family Law Bar Association and the chairman of the ILPA in relation to a later amendment. I really am very grateful.

However, I have a wish list—I might refer to it when the first government amendment that was accepted today enables a little more money to be provided—for two groups of left-behind parents. They are generally fathers, but sometimes they are mothers. The first situation concerns preventing a threatened abduction in a family where both parents are still living together because neither parent has yet applied for a court order. The left-behind parent may be warned by another member of the family that the mother, generally, will take off with the child and that the father will never see the child again. That would require a prohibited steps order. I understand the thinking of the Government on why they will not deal with the matter now. However, I would like them to put it on the waiting list because it needs to be done at some stage.

The second is where the mother—it is generally the mother, but sometimes the father—removes a child in a situation where there is not yet a residence or other order. That internal parental abduction case is not covered, either. I would like to put both those matters on the wish list and I hope that one of these days the Government will be sympathetic to them. However, the work that has been done, and the recognition by the Government that this should be dealt with, is splendid news, and we are all extremely grateful.

[Lord Beecham]

My Lords, it is only a few weeks since the noble Lord, Lord McNally, described Lord Newton as a national treasure except when he voted against the Government. I intervened somewhat mischievously to say that that was what made him a national treasure. In fact, of course, he was a national treasure for a long time before that. I have good memories of working with him when he was a very approachable Minister and I was the leader of my local authority. I also had the pleasure of serving under him as a member of the Local Services Honours Committee, which he chaired with great care, always exhibiting great thoughtfulness and fairness. He was a man of great conviction and great courage, as he demonstrated fully in your Lordships' House for so many months. We will all miss him, as other noble Lords rightly said.

I turn to the amendments in this group and join the noble and learned Baroness, Lady Butler-Sloss, in acknowledging that the Government have made significant improvements to the Bill and in congratulating the noble and learned Lord on doing that. I also congratulate the noble and learned Baroness on initiating these very welcome changes. I endorse what she said about further developments. Now, of course, the Government have the capacity to bring them about without primary legislation. The Opposition look forward to that in due course and certainly support the amendments in this group.

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[Lord Wallace of Tankerness]

My Lords, Amendments 15 and 17 bring into the scope of legal aid cases in which the victims of human trafficking seek damages in either the civil courts or an employment tribunal. They would also provide legal aid to this group for immigration advice. The Government have always anticipated that legal aid would be available under the exceptional funding scheme for these damages claims, where such cases met the test for exceptional funding under what is now Clause 10 but which we came to know as Clause 9 during the earlier passage of the Bill. However, we listened to the concerns raised by noble Lords about whether in practice this would always be appropriate. I am pleased to say that we have responded positively to the concerns, and not least to the case made at Second Reading, in Committee and on Report by the noble and learned Baroness, Lady Butler-Sloss.

The House should be aware that paragraph 40 of Part 1 of Schedule 1 already provides for legal aid to be granted to victims of sexual offences to bring damages claims in relation to the offences. People who have been trafficked for the purposes of sexual exploitation and who wish to claim damages through the civil courts will already be able to get legal aid.

As I indicated on Report, we also considered whether legal aid should be available for the immigration aspects of trafficking. We listened to and accepted the arguments on this, given the particular vulnerabilities of this group of people. We plan to set out in regulations further provision on when it is appropriate for a victim of human trafficking to qualify for civil legal aid for immigration matters. Our intention is not to restrict numbers, and we will ensure that all victims for whom it is appropriate to provide advice will receive it. However, we cannot have a completely open-ended commitment for all immigration matters; otherwise, it is conceivable that victims of trafficking who, for example, apply for a student visa 15 years down the line will continue to qualify for legal aid for no good reason. The regulations will limit eligibility to a period relevant to the experience of being trafficked. We are discussing the most appropriate period of time, but we intend that it will be no less than an individual’s discretionary leave to remain, which can be up to three years.

I am pleased that we have been able to have a constructive engagement and hope that these amendments address the concerns that have been raised. This amendment includes legal aid for immigration advice for victims of trafficking. I beg to move.

[Baroness Butler-Sloss]

As the co-chairman of the All-Party Group on the Trafficking of Women and Children, I again congratulate the Government and express my gratitude not only to Ministers in this House and in another place but to the government lawyers and officials. The people who were so helpful on the previous set of amendments have been equally helpful on this, and I and those behind me are enormously obliged to them for the care with which they have gone through this and their ability to recognise, listen to, take on board and accept the points that have been made which are now reflected in this excellent amendment.

I wonder whether I might again produce a wish list for consideration at some later stage. There are four points that I would like to make. First, there are those who have been trafficked who do not know that they have been trafficked and will need advice about whether they have been trafficked. Secondly, there are implications for referral to the national referral mechanism. That point was discussed with the government lawyers. I understand why Ministers do not want to help those who do not refer themselves, but there will be a group or groups of people who will fall through the net. Thirdly, there are those who do not know whether they may have an entitlement to leave to remain other than by an asylum claim, such as discretionary leave to remain. That group will also not be covered. The fourth group is rather different. It is those who would wish to challenge a decision by the Home Office that they do not come within the NRM. Those are perhaps matters for another day. At the moment, those behind me and I are enormously grateful for what we have already got.

[Baroness Hamwee]

My Lords, I, too, welcome these amendments and add my thanks to the officials who have dealt with them. My file of print-outs of e-mails last week is quite large. I thank the Minister as well. I know that his experience in Scotland means that he was already alert to the issues surrounding trafficking. I think the whole House owes the noble and learned Baroness enormous thanks for keeping us at it and for keeping at it herself.

The Minister mentioned conditions, and I understand the concern about possible overuse—abuse would be the wrong term here—of the category of victim of trafficking for immigration applications far in the future. During the discussions last week about what has ended up as these two amendments, there was a suggestion that there might be a reference to prescribed conditions and then a decision that what is now Clause 11 could cover matters, as the Minister said. Will he tell the House whether there are any other concerns that the Ministry has in mind at the moment—it may find others—apart from the time limits?

The noble and learned Baroness mentioned concerns about the workings of the national referral mechanism and time limits. Like her, I hope that that will be kept under review. I have two other areas of concern around this. If legal aid is not available until there has been a reasonable-grounds decision, will the Border Agency put the immigration case on hold? In the mean time, what happens if the individual is in detention or is without housing and food? At the previous stage of the Bill, I referred to the complex needs of trafficked people and mentioned housing and benefits. Immigration is often the gateway to them. Article 12 of the convention refers specifically to accommodation and generally to subsistence, and I suspect the Government would prefer to be clear about this rather than find themselves with claims under what is now Clause 10. The importance of identifying victims of trafficking is a moral matter, but it is also important because of their role in detecting and prosecuting traffickers, and it may take some time for a victim to be identified or to self-identify, so I am adding to the list of considerations. The Government have said that they will keep matters under review and they now have a mechanism to do so. Therefore, I welcome the amendment, although there may still be work to be done.

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[Lord Cameron of Dillington]

My Lords, I support the amendment. Restorative justice is an important tool to have in your kitbag when trying to prevent or mend the effects of crime. It is not a soft option; rather, it is an economic option with extremely good, tried-and-tested results.

In Somerset, where I come from, we had a scheme that ran for five years, from 2005 to 2010. The plan was that the scheme would expand and spread to other communities but, sadly, its funding was cut by around 90 per cent due to central and local authority cuts. In the five years that it operated and the 940 cases that it dealt with, the reoffending rate was less than 5 per cent compared with our more normal courts and probation service reoffending rate of 65 per cent to 70 per cent. Among the 940 cases there were 90 cases of first-time offenders who were thus diverted from the criminal justice system, the likely establishment of a criminal record and the inevitable ongoing costs and negative social impact of that. In terms of pure economics, 30 per cent of the cases referred would have gone to court and thus cost the Somerset taxpayer some £612 per case, compared with £139 per case for the restorative panel.

As everyone knows, restorative justice saves police time, has immeasurable social benefits and brings a new perception of crime and safety into the community, which is important, as well as the re-education of potential criminals. The object of restorative justice is to repair harm and thereby strengthen the community. The process treats the harm, not the individual who caused it. As the noble and learned Lord, Lord Woolf, said, it allows the victim a voice and a part in the decision-making about the best way for the harm that they have suffered to be put right. It is not adversarial but rehabilitative.

Frequently the offender has never had the education, whether from life or from a parent, necessary to understand the effect of their actions. Invariably, when they hear, either from the victim or from the victim’s friends and family, about the detailed and personal effects on the victim of what they did, they feel intense remorse, which is very uncomfortable. The context of the discussion enables them also to realise that they themselves actually count, the people around them care and what they do matters and has an effect. They are given a choice that can change their lives and that of their community for the better. I strongly support the amendment.

[Baroness Butler-Sloss]

My Lords, I can be brief, having heard what the noble Lord, Lord Cameron, has said, setting out the facts about what works well in the county next to the one where I live. It is very impressive.

It is right to say that restorative justice is not for everyone. There is a sort of case where it would be quite wrong: someone who has been a victim of serious domestic violence, for instance, would seldom find it possible to meet the offender, who is often another member of the family. In suitable cases, though, and there is no shortage of suitable cases, it is good for the victim—as the noble and learned Lord, Lord Woolf, has said, it gives them a voice—but it is extremely salutary for the offender, as the noble Lord, Lord Cameron, has said.

I have had instances where offenders—young offenders in particular; those just grown up—have ended up in floods of tears because they had not appreciated the impact of the way in which they had behaved, particularly in something like burglary or theft when they took from someone elderly some not very valuable things that had enormous personal value for that victim. Being told, with the victim in tears, that a great-aunt’s cup that had been preserved through the family had been stolen and thrown on the ground can lead to the offender being in tears too, and this shows that there is a real value.

The figures from Somerset showing the high degree of non-reoffending, which is a great deal more than the noble and learned Lord said was the average of 27 per cent or 28 per cent, shows that restorative justice is a real tool. I find it utterly astonishing that this Government, who have been listening throughout so much of the Bill, have failed to listen on this issue.

[Lord Hodgson of Astley Abbotts]

My Lords, briefly, I support the amendment of the noble and learned Lord, Lord Woolf. I have been involved in restorative justice through a charity called Why Me? for some years. I became involved because it offered a victim-oriented strategy, as mentioned by the noble Lord, Lord Ramsbotham. Restorative justice offers an opportunity for the person who has been offended against to address the trauma that they have suffered, to see how and why it came about and, in that way, to achieve some sort of closure. On the other side, it has had significant effects on reoffending. As the noble and learned Baroness has pointed out, offenders will say, “There was just a name on a charge sheet but when I see that it belongs to a person with a home and a family, which I have broken into or broken up, I begin to see some of the dreadful things that my actions have done”. Therefore, I am anxious that the Government should accept this amendment.

There are only two reasons why they might not accept it that I can see. First, there might be a need to restrain public spending. I accept that there is a need for this sort of activity to be carried out by well trained people to be effective. However, there will be a net benefit. If we can continue to achieve the reduction in reoffending rates that has been achieved in the past, there will be a reduction in costs as we avoid some of the costs of reoffending. Secondly, the Government have said that this amendment is overly prescriptive but I have some difficulty in understanding why. As the noble and learned Lord pointed out in his opening remarks, this just adds to the menu of options available. Therefore, it is not prescriptive in my reading of how the amendment has been drafted.

In conclusion, my concern is that if we are not careful, the idea of RJ will fall victim to what I call the Daily Mail effect. Restorative justice is not an easy thing to defend. It can appear a bit touchy-feely. One or two cases that led to difficult headlines in the newspapers could lead to the Ministry of Justice saying, “This is a bit difficult. We had better back off from this one”. Therefore, my reason for strongly supporting the noble and learned Lord’s amendment is that if we get it into the Bill, we will then have something that can be used in the future and cannot be brushed away by some unfortunate event that might lead to public opinion turning against it and putting temporary political pressure on the Government of the day.

[Baroness Northover]

My Lords, Amendment 31, tabled by the noble and learned Lord, Lord Woolf, returns to restorative justice. I thank him for bringing this important issue before the House and for his tenacious support for its principle.

The amendment is very timely as this morning we published our consultation on community sentences, Punishment and Reform: Effective Community Sentences, which includes a chapter on reparation and restoration. I am very pleased that the noble and learned Lord has welcomed this publication. The consultation offers us an important opportunity to seek the views of practitioners, sentencers, magistrates, probation officials, victims and victims’ groups about the use of restorative justice as part of our response to tackling more serious offending through the use of community sentences. It asks questions about the use of pre-sentence and post-sentence restorative justice, what more we can do to strengthen and support the role of victims in RJ and, crucially, what might be the right approaches to building capacity and capability and boosting a cultural change for RJ. We want to gather all views on how to do this, and through what means, so that we can develop the most effective approach. Noble Lords have emphasised their experiences of how restorative justice works and have cited research to back up those experiences.

We are anxious to ensure that innovative and effective restorative practices continue to be developed and are driven by local areas and tailored to local need. We certainly want to support initiatives by building capacity in the criminal justice system so that we can deliver the restorative process that this amendment champions. I believe, therefore, that we need to undertake the important consultation exercise that we have initiated today before we can give consideration to whether further specific legislation is necessary for restorative justice, taking into account all the options for how we intend to widen its application.

Noble Lords have made a very powerful case for the use of RJ. My honourable friend in the other place Crispin Blunt, my noble friend Lord McNally and I very much welcomed the meeting that took place earlier today, to which the noble and learned Lord has referred. I hope that it reassured him that we are making progress in this area to increase the use of restorative justice across the criminal justice system. We hope that he will contribute his enormous wisdom and experience to the consultation that we launched today. I assure noble Lords that everything that they have said will be fed into that consultation process and what emerges from it.

[Baroness Butler-Sloss]

I apologise for interrupting the noble Baroness but she has got to a point where I need to ask a question. Here is a vehicle of primary legislation into which something about restorative justice can be placed. If she and the Government wait for the results of the consultation, where on earth will they find the vehicle of primary legislation into which to slot restorative justice?

[Baroness Northover]

I think that I am being invited to comment on what might be in the Queen’s Speech, as was my noble friend. That is way above my pay grade.

[Baroness Butler-Sloss]

I merely wanted to say that here is a piece of legislation into which this measure can be placed. However, if it is not included in this legislation, there is a danger that it will not go in anywhere. In the absence of primary legislation, there is a danger that the Government will have difficulty in implementing the measure. That is the point I am making; I was not trying to get an idea of what is in the Queen’s Speech.

[Baroness Northover]

I understand what the noble and learned Baroness is saying. As we discussed in Committee and on Report, the use of restorative justice can already be taken forward under current legislation. The question is whether further legislation is required. The noble and learned Lord and other noble Lords have made the case that restorative justice is useful, as has the noble and learned Baroness. However, as I say, RJ can already be taken forward and is being developed. We hope—