Legal Aid, Sentencing and Punishment of Offenders Bill

Lord Goodhart Excerpts

Monday 21st November 2011 Lords Chamber

[Lord Goodhart]

My Lords, in the last year of his life, Lord Bingham—the greatest judge, I believe, of my adult life—wrote and published a short but remarkable book called The Rule of Law. In Chapter 8, he wrote:

“The pressure for reform culminated in the Legal Aid and Advice Act 1949 … For half a century the legal aid scheme enabled those without means to sue and defend themselves in the courts … But its cost was its undoing. In the years 1988 to 1996/7 expenditure on civil (and also criminal) legal aid rose at a rate substantially in excess of inflation, and was the fastest rising item of government expenditure overall”.

Lord Bingham was, I am afraid, undoubtedly correct, and some reduction of costs here is necessary. On that basis, I start by saying that I agree very strongly with the general principles of my noble friends Lord Hunt of Wirral and Lord Faulks. Of course, we need to keep a no-win no-fee system. The amount involved in this should not be as large as it has been. We cannot justify paying the cost of fees for clients who have no serious chance of winning an action.

Part 1 of the Bill contains changes to the existing law that need to be enacted, but there also are other changes that I do not think should be enacted, particularly those relating to clinical negligence and family violence—although those are not the only ones—where legal rights are plainly necessary and should continue. We should regard a number of provisions introduced in the Bill as, at best, temporary provisions which could be removed when public resources increase. I feel that that is the basis on which we must go ahead. Importantly, that would mean that some legal aid, which is not provided for in the Bill, will continue to be provided. We must also act in a way that will prevent some of these difficulties and some of these seriously unpleasant things, such as the exceptional level of some profits. We also need to deal with the amount of money spent, as far too much has been spent on legal aid in recent years.

Part 3 of the Bill deals with very different issues which I believe should have been dealt with in a separate Bill. However, it is too late for that now. I am most concerned with Chapter 5. I welcome the abolition in Clause 113 of indeterminate or IPP sentences. IPP was a failure from the beginning. It relied on the ability to train prisoners while in prison, and there has been no such ability. There have been many—often justified—complaints, of which I have received a number, about the difficulty of ensuring that prisoners have access to the probation services which are essential for release. It would have been impossible to release many of these prisoners because of the difficulties of administration. IPP should not be allowed to continue for those who are already subject to it and it should be replaced by a fixed time limit. It is absolutely wrong that those subjected to this wholly undesirable sentence of uncertainty should not have a proper degree of certainty about when their time will end.

I am also concerned with Clause 114, which imposes a life sentence for a second listed offence. That is a mandatory sentence and it must be imposed unless the court is satisfied that there are special circumstances. That is perhaps a little better than the Californian custom of two strikes and you’re out, but it is not that much better. The judge will have seen the prisoner under questioning in court and he will have heard the evidence of the witnesses, so I believe that the judge and no one else should decide whether the prisoner should receive a life sentence. That will happen under Clause 115, which empowers the judge to decide whether to impose an extended sentence. Why should that not also apply to the question of life sentences under Clause 114? After all, it is open to the Attorney-General to appeal to the Court of Appeal if the judge has acted wrongly.