Legal Aid, Sentencing and Punishment of Offenders Bill

Lord Judd Excerpts

Monday 21st November 2011 Lords Chamber

[Lord Judd]

My Lords, in opening this debate, the noble Lord, Lord McNally, in his engaging, candid way, asked us to be reasonable and accept that it was not possible for everyone who sought legal aid to have it. The trouble is, if I may say so to the noble Lord, that those with wealth can always have access. That is the basic contradiction and injustice in the system. We must not lose sight of that in our deliberations. Quite apart from the burden on judges, courts and legal systems as a result of inadequate legal aid, which will be caused by the absence of proper professional legal representations, we have to remember the indirect costs, which have been spelt out for other spheres of government and for the economy as a whole; that is, the costs of stress, mental illness, homelessness and the impact on economic performance by people who are so stressed or, indeed, broken.

My noble friend Lord Howarth was right. We have to remain focused on the people about whom this legislation is concerned. We have to focus on the widow, the single mother, the disabled, the chronically sick, the bereaved, the recently unemployed and the redundant. These people often are devastated, broken and bewildered. It is not just a matter of leaving it to them; they need particular help and assistance in their struggle simply to keep going.

The distinguished Howard League has raised key issues in approaching most of us, I think, about these deliberations. It has raised magistrates’ sentencing powers and has asked whether, if we are really serious about reducing the number of people unnecessarily in prison and ensuring adequate rehabilitation, the issue of committing people to prison should be in the realm of the Crown Court and not the magistrates. It has also raised the issue of curfews and extending them, as proposed, to 16 hours. What impact will that have on rehabilitation? For people who are expected to stay at home even longer, what will the situation really be? Will this assist them in becoming more well adjusted, productive citizens or will it make matters worse? The Howard League has suggested that perhaps there is provocation, in effect, in extending the hours, which makes the system almost certain to fail.

On bail, in 2009, 40 per cent of people remanded in custody did not go on to a custodial sentence. Almost two-thirds of those on remand in prison are accused of non-violent offences. The average waiting time is 12.3 weeks. What are the social and economic consequences of this? What about family disruption? Are we thinking through the implications of some of these measures?

The Howard League rightly concentrates, as have other noble Lords, on the position of women. In dealing with women, we are also dealing with children and families. Do we remember that the average distance of prisons away from home is 55 miles? Very often, that distance is faced by families with virtually no spare means available. Only 5 per cent—a shocking statistic—of the children of women in prison remain in the family home. More than 17,000 children in any year are separated from their mothers as the result of imprisonment. While on average women spend four to six weeks in prison on remand, 60 per cent do not go on to receive a custodial sentence, which is clearly contradictory and counterproductive. But what kind of logic is being advanced in favour of a situation of this kind? As my noble friend Lady Corston put it in her good report, surely we should have a situation in which women who are unlikely to be give a custodial sentence are never remanded to prison.

As a former director of Oxfam, I very much share the concern of my old organisation and other organisations working in the same sphere about the way in which wealthy companies have invested heavily in cheap agricultural land in poor countries. In many cases, the land sold is being used by poor families to grow food. Families are often forcibly evicted with little or no warning or compensation. Research by my old organisation has revealed that residents regularly lose out to local elites and domestic or foreign investors and to local corruption, because they lack the power to claim their rights effectively and to defend and advance their interests. There is concern that the changes in this Bill to the cost regime for civil litigation would make it almost impossible for foreign victims of human rights abuses committed by UK multinational companies to access justice in the United Kingdom.

There is real anxiety lest the abolition of success fees being payable by defendants will mean that claimant firms will not be able to run the risk of taking on cases against multinational companies. The financial risk of losing the case will be great. Even if they are successful, they may not be able to recoup all their expenses. This, of course, will be particularly pertinent when the claimants are from developing countries.

The Bill also proposes that the claimant, rather than the defendant, should pay for the “after the event” insurance premium, again reducing compensation recovered. In recognition of the significant expense and expertise required, clinical negligence cases are to be exempt. Surely human rights cases, which require similar levels of expense and expertise, should therefore be exempt. This will need our careful consideration. I think the example that I have just given brings home that, at an international level as well as within the UK, justice is indeed often the key to full mobilisation of people’s potential rather than simply handouts or grants.

Access to justice is, of course, the hallmark of a decent society. Lack of convincing access is a spur to social fragmentation, alienation, instability, or worse. To talk about all being in it together is provocative when it is patently obvious that, in effect, we are not all equal in the processes of the legal system and when too many people simply cannot get access to justice at all. In our deliberations, we must be vigilant lest overall this Bill aggravates that sad reality.