Criminal Justice and Courts Bill

Baroness Hamwee Excerpts

Monday 30th June 2014 Lords Chamber

[Baroness Hamwee (LD)]

My Lords, that was a powerful and salutary speech to have to follow.

At the Second Reading of the Serious Crime Bill, I confess that I was at a loss as to how to speak without asking apparently innocent questions as a painful way of masking criticism. That Bill is causing me relatively little anxiety. Today, winding from the Liberal Democrat Benches, I am at a loss as to how to cover even a small portion of the questions and to do justice to the large number of briefings we have all received which display considerable anxiety. Many of their points have been raised today. It is clear to me that your Lordships will do them justice during the passage of the Bill.

Like others, many of my concerns are about the risk of losing focus on rehabilitation, and of reversing progress that has been made in that area. There is also the issue of resources; that, of course, is not a novel point. There is also the evident unwillingness manifest in the Bill to trust the judiciary. Reducing judicial discretion puzzles me. If we want to make the punishment fit the crime, who is better to do so than the person who has heard all the details? I am also concerned about how much of the Bill is there to send messages. We are all aware that this becomes more strident as one gets closer to an election. I hope and believe that this House will consider that the most important thing is producing legislation where legislation is needed—legislation which works.

The House is not short of experts on judicial review and its operation, including the Minister. It is common ground that there has been a proliferation of applications for judicial review; I was interested to see that the number has remained quite steady when immigration judicial reviews are disregarded. If that proliferation is a problem, then it seems to me that the analysis of the problem should start not with the procedures but with why proceedings are thought necessary. I certainly do not want to challenge the tremendously valuable tutorials to which we have been treated this afternoon, but one of the purposes of judicial review is often to achieve transparency and clarity in Executive decision-making, as well as establishing whether there has been an error by the Government or the body in question.

I was in a debate last week on financial support for asylum seekers, a matter on which the court recently found the Home Secretary’s rationale for decision-making was inadequate. I said, and repeat, that I am sorry that the announcement of the Home Secretary’s review following that decision will be made when Parliament is not sitting. There might be less call for judicial review if there was less call for the Government to think again or to express their thinking clearly.

Part 4 of the Bill will be dissected and analysed and will, I am sure, have many other quite rigorous things done to it—but not just by the lawyers. These are citizens’ issues, none more so than the clauses on interveners. The NGOs have an important role and we will—or, I would like to say, we would—lose the benefit of their intervention if the clause were to remain in the form in which we have it now. I look forward to the modifications that the Minister trailed at the start of this afternoon’s debate.

There has been reference, too, to the Lord Chancellor’s powers. I can see that there may be a need to allow for tweaking if practice shows that something is not quite workable, but whether a matter is, for instance, of general public importance seems to me to come close to being a political judgment.

With regard to care workers, the clauses on which were covered my noble friend Lady Barker, I am generally sceptical of the creation of new offences when there are others that would cover the matter, but clearly this has been the subject of very considerable and careful attention. I congratulate my colleagues who ensured that the Bill deals with abuse or “wilful”—which I take to include reckless on the basis of discussions on another Bill—neglect by care workers, and I would put “care” in quotation marks in this context. We are all aware of the scandals that have come to light, though not before much suffering on the part of those who are dependent on others for their care. I am not wholly clear whether issues of whistleblowing, inspection powers and management are all adequately dealt with elsewhere. However reprehensible the actions of an individual worker, it is unlikely that there is not a management issue as well.

Like other noble Lords, I was intrigued by the provisions on “fundamental dishonesty”. I hoped that the Minister might have given us a demonstration of FE Smith’s cross-examination of the claimant, who was asked, “How far can you raise your arm?”, and then, “How far could you raise it before the accident?”—and the witness showed the court. Like the noble Lord, Lord Hunt, I am troubled about the standard of proof and whether the court can still make an award, albeit a reduced one. How does this fit with the context of contributory negligence and of utmost good faith in insurance matters? Indeed, what are the views of the insurers? Not everything is black and white, which of course is why leaving a lot to the judiciary has a lot to commend it because they see all the shades of grey.

Judicial discretion, I would have thought, should be at the heart of dealing with knife crime. The opposition of my party to the knife crime provision has been made very clear for this reason and for the following reasons: whether the threat of imprisonment is effective—a matter that has also been the subject of debate—especially when a knife is carried for protection; the likelihood of knives being passed on to young people, sweeping them into the centre of gang violence; the use of alternative weapons; the impact on stop and searches and the choice of whom to stop and search; and the sheer cost.

As regards secure colleges and education, the demarcation point for the proposed mandatory sentence is the age of 16. Teenage boys up to the age of 18—I should say children because my noble friend Lady Linklater always reminds us that they are children—will, or again would, be affected, and this is the cohort most affected by the new secure colleges. I share the Government’s aim—of course, who could not?—of putting education at the heart of youth custody and, or maybe but, I share the huge concern of so many who work in the field that large institutions whose students, residents, inmates, or whatever we are going to call them, will mostly be 15 to 17 year-old males with all the safeguarding and other risks that this raises.

We have had detailed and to me very persuasive critiques, many of which point us to the risks to rehabilitation of the young people involved. My noble friend Lady Brinton, who wanted to be here this evening but was unable to, has reminded me that learning in offender institutions tends to focus on basic skills—although we are all well aware of literacy and numeracy issues—without any vocational context. Because of their frequent moves, young offenders do not finish courses and the new institution does not receive a proper assessment of where they are on their course. Some seem to do the same course over and over again.

Improving vocational skills levels is a key marker to reducing reoffending. One secure college will not change the culture of learning, or not learning, in custody when children are coming and going at different stages and often far from home. The Prison Minister’s view was that,

“as with free schools it will be for education providers to determine how best the educational engagement and attainment of young people in a secure college can be raised”.—[Official Report, Commons, Criminal Justice and Courts Bill Committee, 20/3/14; col. 291.]

That does not fill me with confidence that the complexities have been addressed.

Then, of course, in the past few days we have heard that lights will be turned out at 10.30 pm, which does not seem to be a sophisticated, delicate, case-by-case solution. I am surprised that the noble Baroness, Lady Stern, resisted mentioning that in her explanation of how we came to have borstals based on public schools.

Finally, I was glad to hear raised by two speakers the needs and interests of children whose parent is in prison. No doubt, some of them will also be clients of the youth offender system.

Inevitably—or at least it is inevitable to me, at any rate—a Second Reading speech wants to look at what might be changed. In my case, I am afraid that it means that I present criticisms in a rather concentrated form. Other provisions of the Bill will dilute the criticisms and, no doubt, the explanations in discussions to come will dilute them further. But what bears repeating is that what is best for society’s victims and offenders is to stop crimes happening in the first place—and the best way in which to reduce crime levels is rehabilitation.