Legal Aid, Sentencing and Punishment of Offenders Bill Debate
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Jack Straw
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Legal Aid, Sentencing and Punishment of Offenders Bill
Jack Straw Excerpts(13 years, 5 months ago)
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The Lord Chancellor and Secretary of State for Justice (Mr Kenneth Clarke)
I beg to move, That the Bill be now read a Second time.
I shall try to observe your strictures, Mr Deputy Speaker, but this is a very large piece of legislation; I shall probably have to restrict the number of times I give way to interventions.
I am determined to reform the justice system in this country. Keeping the public safe, ensuring that those who break the law face the consequences and providing swift, cost-effective access to justice are fundamental responsibilities of the state towards its citizens. Yet the last 13 years of government have left us a system whose cost and scale have exploded and whose failings can no longer be tolerated.
In the area of criminal justice, more than 20 new Acts of Parliament, thousands of new criminal offences and a huge increase in the prison population cannot mask very deep flaws in the system. Briefly, our sentencing framework is a mess of byzantine complexity that even trained lawyers and judges—never mind the general public—find confusing.
Our punishments do not work. Community sentences are weak, asking little of offenders, and prisons have become so crowded that there is no space for governors to enforce regimes of meaningful work or reparation. Far too many prisoners are left idle in their cells, often on drugs. For that model, the taxpayer has the privilege of paying out an extraordinary sum—£44,000 per prison place per year. I have just been assured that the Ritz is even more expensive, so I slightly exaggerated, but £44,000 per prison place per year is enough to pay the salaries of two newly qualified nurses or teachers.
Mr Straw
I am grateful to the Lord Chancellor. We have heard about this alleged litany of failures. When the right hon. and learned Gentleman was Home Secretary, crime was at a post-war peak on both the measures that the Prime Minister used to discuss crime at questions earlier today. Since then, burglaries have dropped by 70%, thefts by 50%, and crime overall by 50%. Is the fact that the Lord Chancellor never, ever refers to the outcomes of our record due to the fact that that happened mainly under us or the fact that the process started under his successor, Michael Howard?
Mr Clarke
The idea that I set off a crime wave when I was Home Secretary is a charge that I will answer on some other occasion, frankly. As far as the decline in crime is concerned, the biggest decline has been in theft because car manufacturers made cars more secure. The courts used to be full of taking and driving away offences, but are no longer because it is more difficult to take the cars.
The fall in burglary coincided with an economic boom—one of the consequences that came from it. The 20-plus Bills that the right hon. Gentleman and his predecessors brought before the House—more than one criminal justice Bill a year—and the countless changes in sentences filled up the prisons, but in my opinion had no provable, demonstrable effect at all on the levels of crime in this country.
Mr Clarke
The right hon. Gentleman is an ex-Front Bencher. I will give way to him later, but I should observe the strictures of Mr Deputy Speaker, although I enjoy debating with the right hon. Gentleman. I should move on a little further into my speech.
As the right hon. Gentleman has heard me say before, reoffending rates are a national scandal; that is why the system is failing. Half of offenders—49%—have been reconvicted, in part because the system is not tackling the underlying causes of their criminality such as drug abuse, poor mental health and inadequate skills. The consequence of that failure is new victims of crime every day. Despite improvement, victims and witnesses too often still get treated as an afterthought, not a central concern of justice. That is why we need intelligent, radical reform of the criminal justice system to protect and serve the needs of law-abiding members of society.
Mr Clarke
Without fettering judicial discretion, I think I can give that assurance. There are all sorts of grounds on which bail can be refused. We are saying that where it is likely that a person will not be imprisoned when they come up for trial, they should not be refused bail.
Mr Clarke
No, I am sorry. I respect the right hon. Gentleman, but I must move on.
I have said that ordinary citizens find the civil law a rather nightmarish experience when they resort to it. Thanks to the present scope of legal aid and the way in which the no-win, no-fee system operates, many people and, in particular, many small businesses live in fear of legal action. I accept that access to justice for the protection of fundamental rights is vital for a democratic society—something on which I will not compromise. However, our current legal aid system can encourage people to bring their problems before the courts when the basic problem is not a legal one and would be better dealt with in other ways. The scope of legal aid has expanded too far. It cannot be right, for example, that the taxpayer is forced to pay for legal advice to foreign students whose visa applications are turned down. There are many other examples.
Our legal aid system also faces a completely unignorable problem of affordability. I have listened to arguments in the media today challenging that, but we have by far the most expensive system in the world, after Northern Ireland, where I am sure the same problem will be tackled. It costs £39 per head of population in this country, each year, compared with £8 in, for example, New Zealand, which has a similar system of law. In any circumstances our system would need reform; in the country’s current financial crisis reform is imperative.
I have some advice for Labour Members. I do not usually give gratuitous advice, but I think the Labour party is facing one of the problems that we faced in 1997. It should find the courage to admit that it made some mistakes and left some things in a mess. It has been acknowledged by my opposite number, the right hon. Member for Tooting (Sadiq Khan), that, on Labour’s watch:
“Playing tough in order not to look soft made it harder to focus on what is effective”—
wise words. I thought, when we set off on this process of consultation, I had the widespread support of many Opposition Members. I ask the right hon. Gentleman to reflect on the way in which he started his consideration before he gets on with the rest of the debate.
In fact, when Labour was in office, its strategy for our prisons and our courts was legislative incontinence combined with kneejerk populism. On prisons, the Labour Government made the mistake of being unable to make proper provision for the demand for places that they stimulated. Overcrowding devoured the very budgets that should have been used productively to cut reoffending and improve public safety in a lasting way. What was the final result that we all remember? They had to reduce the release point from two thirds to halfway through the sentence. They then had to resort to the financial chicanery of keeping the cost of building prisons off the balance sheet—the so-called Carter prisons. Finally—the ultimate absurdity—they had to let out 80,000 prisoners early, before the end of their sentence, to offset the cost of the allegedly tougher sentences that they had imposed. That is why we need reform now—to reverse that nonsense.
On wider justice matters, the Labour Government proved little better at getting a grip. They had 30 consultations on legal aid from 2006; they did not act decisively, put the system on a sustainable footing or address the litigiousness to which its excessively widely available funding contributed.
Mr Clarke
My right hon. Friend the Secretary of State for Health agrees with the hon. Gentleman and me. My ministerial team and my right hon. Friend’s ministerial team have been holding discussions. My right hon. Friend has a strategy for trying to improve mental health services to the population as a whole. As part of that we are addressing what can be done to help the mentally ill who find themselves in prison. Some of them should be diverted from the criminal justice system altogether; some can be better treated in secure accommodation in the national health service; and many can be treated better than they are at present when being incarcerated in prison is not suitable. I assure the hon. Gentleman that my right hon. Friend and I share his concern.
Underpinning punishment, reparation and rehabilitation is what might be called system reform—simplification, restoration of discretion to judges and the relief of unnecessary pressures on the system. At the same time we must take a more robust approach to costs in the system, including that of prison. We have already shown that through competition it is possible to get prison costs down while improving service quality. Key measures in the Bill include reforming the use of remand. I dealt with this a moment ago. I have told the House that preventing reoffending is the central idea of my reforms. One of the main barriers to doing things in the past few years has been the fact that the prisons have been clogged up, sometimes with people who do not need to be there at all. I will not repeat the arguments that I made a moment ago that give rise to the part of the Bill that restricts the power of courts to remand those who have no reasonable prospect of receiving a custodial sentence, with the exception that I have already described of cases of domestic violence.
Mr Straw
In answer to the hon. Member for Monmouth (David T.C. Davies) the Secretary of State said that where a defendant failed to return to court on time, the court would still be able to remand him in custody so that he could get to court. The Secretary of State clearly spoke in error, because if he looks at page 166 of his own Bill he will see that paragraph (5) to schedule 10 makes it absolutely clear that even where a defendant has failed to surrender to bail and has been arrested he cannot be detained in custody to appear in court unless there is a real prospect of his subsequently being sentenced to imprisonment. How will the public be made safer or witnesses protected by that?
Mr Clarke
I will address the extent to which we retain discretion, as determined under the bail Acts, according to which bail is granted or refused. In 2010, more than 16,000 people were in custody but were released when they appeared for trial and either pleaded guilty or were convicted. Continuing a system whereby people are refused bail when everyone knows that they will not be imprisoned if convicted is a very wasteful use of a very expensive place in our prison system.
Mr Jack Straw (Blackburn) (Lab)
In his closing peroration, the Lord Chancellor said that he wished he had been able to stay on as Home Secretary for longer than he did in the Administration in the early 1990s, so as to introduce a measure of this kind. I have to say to Conservative Members that they are very lucky he did not stay on for longer than the year he was there.
Mr Straw
I am glad to have the approbation of the hon. Member for Shipley (Philip Davies) on that.
When he was the Home Secretary, the Lord Chancellor was the last in line of a number of very complacent Home Secretaries who had allowed crime simply to rise and rise. It doubled under the Conservatives, as Michael Howard pointed out, and reached its peak under the current Lord Chancellor. Nothing that he did then, and nothing that he is proposing today, will do anything to make people safer or to cut crime. Indeed, I warn Conservative Members, for whom I have great affection, that in the coming months, if the Bill goes through, they will face—day after day, week after week—stories in the newspapers in which judges and magistrates complain publicly that defendant X or defendant Y should have been remanded in custody awaiting trial but that the courts no longer have any power on that.
I say to the Lord Chancellor, who has some experience of the criminal trial process, that the provisions in clause 73 and schedule 10 regarding restrictions on bail are wholly irrational and take no account whatever of the way in which courts and defendants operate. The court is not going to know whether it needs to send someone to prison until it has heard the full case and the mitigation. If Parliament lays down rules regarding the prospect of a sentence, how is the court to translate that into a real prospect of a prison sentence? What will happen in a case in which there is a low likelihood of a sentence on conviction and the defendant simply refuses to turn up in court? The Secretary of State was obviously completely unaware of the contents of paragraph 5 of schedule 10—I am glad that he is looking at it now—which makes it absolutely clear that even if the defendant fails to appear in court and is arrested, they cannot be remanded in custody unless the court has come to a prior decision that there is a real prospect of their getting a period of imprisonment at the end of the case. That is mad, and the right hon. and learned Gentleman must look at it again.
Simon Reevell (Dewsbury) (Con)
I wonder whether the right hon. Gentleman has considered sub-paragraph (b), which makes it perfectly clear that if someone has been convicted of an offence in the proceedings, which would include a bail offence, the provision barring the grant of bail does not apply, so if somebody failed to surrender, they would be dealt with as they are now in their absence, and they could be remanded in custody when arrested by the police. The same qualifying sub-paragraph is present on page 168, which deals with bail in other circumstances.
Mr Straw
No, of course I will not. The explanatory memorandum makes exactly the same point.
Let me address the issue of indeterminate sentences for public protection. I entirely endorse what my right hon. Friend the Member for Tooting (Sadiq Khan) has said from the Front Bench. The Secretary of State made one of his sweeping statements, saying that those sentences have been discredited. No, they have not. Who has discredited them? He has, because he has been forced to save money on indeterminate public protection sentences having had to surrender the 50% cut in the bail discount, as he well knows. IPPs have worked.
The Secretary of State comprehensively failed to answer the hon. Member for Shipley yesterday, when the hon. Gentleman said that the reoffending rate for IPPs has been spectacularly successful—of the 1,449 people released, only 11 have reoffended. The Secretary of State laughs, but what we are dealing with here is the most serious offenders who, under the law, are expected to show that they would go straight, if they were released. He is laughing, but the laugh will be on the other side of the Conservatives’ faces when and if his measures go forward and people are released before it is safe for them to be released and they commit further offences. He will be the person to blame for that.
Mr Kenneth Clarke
The right hon. Gentleman is referring to the 200 people who have been released, but more than 6,000 of them are still in prison with no idea when or if they are going to be released. Their reoffending rate is, I agree, very low, but that is not a justification for the system. The vast majority of respondents to our consultation regard it as something of a disgrace that the measure has been put on to the statute book and is working in this way.
Mr Straw
I am afraid that I have had my ration of interventions.
Let me move on to the proposals for civil litigation reform. I established the Jackson review and fully endorsed its conclusions in January 2010. I welcome the fact that this Government are implementing it, but they are doing so only in part.
I want to pick up on the points made by the right hon. Member for Berwick-upon-Tweed (Sir Alan Beith) and the hon. Member for Cardiff North (Jonathan Evans) about referral fees and associated matters. As colleagues will know, on Monday I published the results of an investigation into what I can only describe as a racket in the motor insurance industry in which almost everyone in the chain, from recovery firms, claims companies, medical experts to insurers themselves, is paying between £200 and £1,000 in referral fees. Everybody in this chain is on the take, and the total is running into billions.
Since Monday, I have been overwhelmed by e-mails, which I am very happy to supply to the Lord Chancellor if he wishes, from members of the public and professionals with even more horrifying detail about the dodgy practices, frauds and near-frauds that are now endemic in this industry, including one from a lady who explained that she “had had an argument with her bicycle”. She was the only person present at the time, she went to hospital and ever since she has been pestered to make a claim.
Mr Straw
No, I am sorry.
One solicitor wrote to me saying that referral fees are no more than a “form of legalised bribery”. He is right. They are the parasites eating away at the integrity of the whole of the motor insurance industry and associated professions, including lawyers. Their effect is to drive up costs, and therefore premiums, and actively to encourage individuals—
Mr Straw
I am sorry—I am running out of time.
Referrals actively encourage individuals to try their luck in making claims for fictitious or wholly exaggerated injuries. I accept, and do so publicly, that that comes as a result of the Access to Justice Act 1999, which was based on recommendations from Lord Woolf. It gave rise to expectations that have not been met. I was clear when I established Jackson, endorsed it and set up an immediate consultation process that the system needed root-and-branch reform. I am perfectly happy to accept that.
I was glad to hear the Secretary of State’s words about that. With respect to the Under-Secretary of State for Justice, the hon. Member for Huntingdon (Mr Djanogly), however, referral fees are not, as he said yesterday, a small part of the problem; they are a central part of the problem. Removing them is not a magic bullet, and other actions will also need to be taken. Unless he deals with referral fees, among other things, as well as changing the whole system, he will not deal with the extraordinary abuse that is taking place.
There are other changes that I ask the Secretary of State to consider. First, there could be legislation, possibly in this Bill, to prohibit the payment of damages for so-called whiplash injuries, save where there is other objective evidence of serious injury, as other jurisdictions have already done. The regulators, the Information Commissioner and Ofcom should crack down hard on the patent abuse of individuals’ personal data. I have taken up the issue, and I hope that, as the Secretary of State responsible, he will do so, too.
There should be an urgent review of the effectiveness, or rather the lack of it, of the regulation of claims management companies, as established under the Compensation Act 2006. That, too, is not working as effectively as it should. In Blackburn and in many other urban areas, honest drivers with impeccable driving records are facing huge increases in premiums, not because of any risk that they have any control over but because of the level of claims by other people. It is a form of collective punishment, and it needs to be outlawed.
Over the past 20 years, as a result of taxpayer investment in safer roads and driver investment in safer and more secure cars, there has been a dramatic fall in the number of accidents and the number of thefts from vehicles. There should not be a steep increase in the insurance premium—instead, there should be a fall. It is time for major reforms so that, at long last, motorists can benefit from this investment.
Mr Burrowes
My hon. Friend makes the point that the current guidance states that such people should receive a serious custodial penalty, and the clause tries to reaffirm that in statute, but we need to ensure that, notwithstanding the worthy intentions of the clause, we do not downgrade the simple possession offence; otherwise a clever lawyer might use it to put in an alternative plea of simple possession, which lends itself to a lesser, non-custodial penalty when compared with the aggravated offence. Ministers may want to pass a note to the Sentencing Council to make it clear that the current guidance on simple possession should remain intact.
I also recognise that there are retributive elements in the Bill. There is the important extension of curfews, which my hon. Friends will very much welcome, and we need to recognise that there are more tools in the box for dealing with matters on a community basis and retributively in order to ensure that liberty is restricted and for a longer period.
The second element of the justice system should be a proper restorative element—the basic requirement of justice to make amends as far as possible. Victims should be central to our justice system, and I hate it when people refer to a victimless crime. It greatly concerns me, because when I see what is happening in Enfield, in particular, and elsewhere, I do not see a victimless crime. That is why I welcome the clause that will ensure a positive and much stronger duty to order compensation for any loss or damage, for personal injury and, indeed, for bereavement or funeral payments.
We all know of cases in which people have waited months and months to hear about a claim to the Criminal Injuries Compensation Board for funeral payments, and the Bill will give much greater access to, and opportunity for, compensation involving people who are victims of the most serious crimes. Similarly, there needs to be proper reparation and compensation for minor crimes.
Currently, the compensation order system is seriously underused. Only 18.1% of offenders in 2010 were ordered to pay compensation. That must change and, as a result of this Bill, it will, but I encourage Ministers to ensure that the duty on all courts extends to reparation, so that not just financial but other means of restorative justice are recognised.
Often, when the door is shut on the prisoner, the victim is shut out as well, so we need to ensure that when prisoners are inside they feel a proper sense of responsibility and do not forget that there is a victim. That is why we are implementing the Prisoner Earnings Act. It was enacted in 1996, and ironically we have had a plethora of legislation since, but that good piece of legislation, which Hartley Booth introduced, is now and quite properly going to be implemented.
The Act recognises that we are not going to accept the answer that I received from the Home Office, when I asked it why it was not going to introduce the legislation in 2007. The Home Office said, “We don’t think that prisoners will be able to find the work or work enough to make this viable.” We are not accepting that, because this Government have a much greater ambition.
We are not going to let prisoners sit idle in their cells; they will do proper work purposefully, and their earnings will go into a victims’ fund. The expectation is for £1 million: £1 million of ambition that the previous Government did not have; £1 million that will and should go into the hands of victims. We need to ensure proper enforcement, too, so that the current outstanding compensation payments of some £152 million reach the right people.
We need to ensure that there is retribution, restoration and rehabilitation. The rehabilitation revolution will go much further and deeper than simply this Bill, because it will ensure that we have payment by results. The right hon. Member for Blackburn talked about outcomes—from a previous Government who were all about process, targets and messaging. Well, we are into outcomes, but we are into proper outcomes, so we will have not just the Peterborough example, although that is welcome. Our ambitions are much greater than simply to introduce a social impact bond in Peterborough.
Mr Burrowes
There is not time, unfortunately.
We will ensure that that is done across the country—paying people to get into work, to stop reoffending and to ensure that they get off drugs. We are driving through a much more ambitious agenda of recovery to stop this everlasting cycle of criminality—being on drugs, committing crime to feed a drugs habit, going to prison and so on. We will break that cycle of crime.
There are concerns, whether it is magistrates wanting to extend the period of imprisonment to the maximum of 12 months or on legal aid, but this is a good Bill that—
Mr Straw
Before the Minister turns to legal aid, will he deal with the central proposal in respect of sentencing, which is to restrict the ability of the courts to remand defendants in custody in advance of trial? He skated lightly over that, saying absolutely nothing. Will he confirm what it says on page 166 of the Bill, which is that even where a defendant fails to surrender to bail, that defendant cannot be remanded in custody unless there is a “real prospect” of a custodial sentence? Is that what is intended?
Mr Djanogly
I shall write to the right hon. Gentleman. My understanding is that he is wrong on the issue.
Turning to legal aid, I thank hon. Members who have contributed today and those who have responded to the consultation, along with some 5,000 other people. The Bill sets out those elements of the reform that will require primary legislation. We received a number of detailed alternative proposals from respondents to our consultation, including the Law Society.