Sentencing White Paper

Lord Falconer of Thoroton Excerpts

Monday 21st September 2020 Lords Chamber

[Lord Falconer of Thoroton (Lab)]

My Lords, I start with two preliminary points. The enforcement of the law, particularly the criminal law, is key to the success of the United Kingdom. The White Paper describes the criminal law as

“the basis of a fair, free and safe society.”

It is hard to take lessons on enforcing the law from a Government who will not respect the law themselves. The promotion of law and order from a Government who behave as if the law does not apply to them reeks of the self-serving hypocrisy which makes people hate politicians so much. But it goes much deeper than that. The Lord Chancellor and the Law Officers are the people within government who defend the law. The Lord Chancellor, who is responsible for this White Paper, has said he will resign only where the law has been breached

“in a way which cannot be fudged”.

“Fudged” is defined in dictionaries as “presenting something in a way which conceals the truth”. Can the Minister update the House on whether the Lord Chancellor still considers that the admitted breach of the law in the internal markets Bill can be presented in a way which conceals the truth?

Secondly, the criminal justice system is currently in utter turmoil, with an enormous backlog because of the virus. There are over 40,000 jury trials awaiting disposal, and the Government have been forced to extend custody time limits from six to nine months. The CPS Inspectorate estimated in June that it could take 10 years to clear the backlog. It has got worse since then. This White Paper will be a dead letter if the Government cannot deal with the current crisis. I note that the head of the Courts Service has just left to become the Permanent Secretary, or acting Permanent Secretary, at the Education Department. Can the Minister tell us who is now in charge of the Courts Service at official level? Can she give us details of the current level of the backlog and the steps being taken by the Ministry of Justice to deal with it, and her estimate of when it will be dealt with?

To produce a White Paper like this at this time feels like a gimmick. The White Paper is a hotchpotch, with no unifying themes. Some of the strengthening of sentencing for some violent and sexual offenders is sensible. We welcome the pilots of problem-solving courts; their success already in Liverpool and other places makes me think that the MoJ could go quicker and further on them. Tougher community sentences and greater use of tagging is welcomed as well, and we also welcome the reduction in criminal conviction disclosure periods for those seeking employment.

What this White Paper does not do is signal a fundamental shift in sentencing. It looks like the worst sort of politicking. The fundamental shift should be being consistently tough on sexual and violent crimes and remorselessly focused on reducing reoffending. It should recognise that one-third of those being considered for community sentencing have mental health problems, and the White Paper should begin to address that. To have a proper plan that represents a fundamental shift, there needs to be a properly resourced plan for a properly staffed Prison Service that is able to deal with demand; a properly resourced probation service; and effective and, where appropriate, intense community penalties.

When does the Minister expect the legislation referred to in the White Paper to be produced? What additional resources does the Minister expect to be put into the system to fund this “fundamental shift”? When will the problem-solving courts be rolled out? How many offenders are affected by reducing the two-thirds release date for those sentenced from seven years down to four years? How many more prison places will be required to accommodate the increase in the life tariffs from one-half to two-thirds of the equivalent determinate sentence, and when will those prison places be available?

[Lord Thomas of Gresford (LD) [V]]

The Statement rightly claims that the first duty of any Government is to protect their people. There are two competing views as to how people should be protected. There are those who believe that warehousing offenders for as long as possible is a sure way of protecting the public, at the price of destroying the span of their lives on this planet. The alternative view is that the time and space given by incarceration in prison should be constructively used to reform and rehabilitate the prisoner, not just for his own sake but for the protection of the public in the long term.

The alternative approach is recognised in the White Paper in its call to empower the sentencing system with more effective community sentencing. It recognises the evil of drugs and unemployment regarding the individual and undertakes that individual needs will be identified and met. These reforms, it says, will not work unless they are underpinned by a “world-class” probation system. I entirely agree.

Much depends on the quality of probation officers. I recall from my early days in the law—as did the noble and learned Lord, Lord Woolf, in the debate on the Question a moment ago—that many experienced and mature probation officers did much to improve the life chances of young people. I welcome the reference in the White Paper to a closer relationship between probation and the courts. That is how it used to be. In more recent years, the probation service has not seemed to be in the offender’s corner, to the point where it was risky for defence counsel to ask for a report because it would very likely be negative. The need for diversity in recruitment was not raised today in the earlier Question, but it is important to recall that an investigation in January of this year found that 70% of probation officers were female and white and did not meet the need for people of maturity, of different colour and of greater experience who can deal with the problems placed before them.

This paper, however, emphasises longer sentencing. Like Bad Boris in the “Dead Ringers” radio comedy, the desire to warehouse people creeps through. Here is where the strategy breaks down. I have spoken on other occasions of Berwyn Prison in Wrexham, near my home, which is the newest and largest prison in the United Kingdom and the second largest in Europe. Coming into its fourth year, it is still 400 short of its full complement because it still cannot recruit the staff. It does not begin to fulfil the rehabilitative ambitions with which it was built, and it is a byword for drugs and assaults on staff and fellow prisoners, as a study by Dr Robert Jones of Cardiff University found in June of this year. If such a new prison struggles to succeed, longer sentencing is decidedly not the way forward. This mars the otherwise constructive approach of much of the White Paper.

The noble and learned Lord, Lord Falconer, has asked many questions, so I will not add to the Minister’s further burden with mine.