Judiciary: Independence

Lord Marks of Henley-on-Thames Excerpts

Tuesday 15th November 2016 Lords Chamber

[Lord Keen of Elie]

The Lord Chancellor is well aware of her rights and obligations in respect of this matter. Many people were shocked by some of the headlines that we saw last week. I have yet to speak to anyone who actually believed them.

[Lord Marks of Henley-on-Thames (LD)]

My Lords, the Question of the noble Lord, Lord Lexden, refers to the duty to uphold the independence of the judiciary, but the Lord Chancellor also has a duty, under the Constitutional Reform Act, to have regard to the need to defend that independence. I am afraid that many believe that she singularly failed in both those duties following the decision of the High Court on 3 November. Will the noble and learned Lord convey to the Lord Chancellor how seriously this House takes both those duties and ensure that she is fully briefed on what is required of her should the Supreme Court come under an attack similar to that levelled at the judges of the High Court after the decision earlier this month?

[Lord Keen of Elie]

The Lord Chancellor takes her duties towards the judiciary every bit as seriously as this House.

Prison Officers’ Association: Protest Action

Lord Marks of Henley-on-Thames Excerpts

Tuesday 15th November 2016 Lords Chamber

[Lord Marks of Henley-on-Thames (LD)]

Of course we do not support the prison officers’ unlawful industrial action, but that does not mean that we do not sympathise with them over what has got us here: too many people sent to prison, particularly for short sentences, overcrowding, too few staff, too much time for prisoners in their cells and inadequate education and purposeful activity. Consequently we have what we have spoken of many times in this House: a crisis of increasing violence and deaths among staff and prisoners. It is no wonder that prison officers often feel extremely unsafe. Frankly, 2,100 extra officers by 2018 is too little, too late. We need twice that number and we need them much more quickly. When talks with the Prison Officers’ Association resume, will the Government reconsider the number of new officers to be recruited, the timing of their recruitment and those other issues that, in answer to the noble Lord, Lord Beecham, the noble and learned Lord just mentioned —issues about training, about retention and about conditions for prison officers in relation to violence?

[Lord Keen of Elie]

I am obliged to the noble Lord. I would point out that these issues have now been addressed by the White Paper announcement and will be taken forward in the context of that White Paper in order that they can be debated and, hopefully, resolved.

Prisons: Self-inflicted Deaths

Lord Marks of Henley-on-Thames Excerpts

Thursday 3rd November 2016 Lords Chamber

[Lord Marks of Henley-on-Thames (LD)]

My Lords, some 70% of prisoners who commit suicide have serious mental health conditions. Many should have been in secure hospitals. The ombudsman’s recent report on prisoner mental health highlighted the shortage of secure hospital places, lengthy waiting times and the incidence of avoidable suicides while prisoners awaited transfer. Will the Government increase the number of secure hospital places and improve the arrangements for the speedy transfer of prisoners who need them?

[Lord Keen of Elie]

My Lords, a key aspect of our prison reform programme will be to address offender mental health and improve outcomes for prisoners. That is why we are investing £1.3 billion to modernise the prison estate.

Offender Rehabilitation: Entrepreneurship Training

Lord Marks of Henley-on-Thames Excerpts

Wednesday 26th October 2016 Lords Chamber

[Lord Marks of Henley-on-Thames (LD)]

My Lords, in winding up this debate for the Liberal Democrats I am aware that there has been a fair degree of unanimity in the speakers before me, since only Liberal Democrats have so far spoken. I join my noble friend Lady Bakewell of Hardington Mandeville in congratulating my noble friend Lord German on securing this debate and bringing this issue before the House, and I look forward to hearing what the noble Lord, Lord Beecham, and the Minister have to say.

This debate takes place against a background of a well-documented and well-recognised crisis in our prison system. I have frequently spoken, along with many other noble Lords, about the need for fundamental reforms in our prisons, sometimes to the apparent irritation of the Minister. Yet we are all agreed on the fundamentals. We all agree about the need to cut prisoner numbers by making more use of rehabilitative community sentences; to improve, indeed transform, the squalid conditions in our prisons; to eliminate overcrowding, so that custodial facilities hold only the numbers of inmates for which they were designed; and radically to increase staffing levels, not just to exercise adequate control, but to provide far more purposeful activity for inmates and drastically reduce the hours they spend locked away in their cells to levels that are humane and sustainable. If these improvements could be made, they would cut dramatically the disgraceful levels of violence in our prisons and would have a marked effect on decreasing reoffending levels, which are far too high. The prison reforms proposed by Mr Gove promised to start addressing these issues, and I join my noble friend Lord German in asking the Minister what is to happen to them with the new Secretary of State in place. I make no apology for spending a little time on this depressing background because it is, frankly, inimical to improvement in offender training of all sorts that prisons should be in this state and I invite the Minister to say how far he agrees that conditions in our prisons, in particular the lack of staffing and the lack of purposeful activity, frustrate the provision of adequate education and training.

For most prisoners, purposeful activity fundamentally means education and training. This debate takes place against the background of Dame Sally Coates’s excellent review. That review started from the limited educational attainment of most prisoners. My noble friend Lady Bakewell has given the figures. Dame Sally’s starting point was to put education at the heart of the prison system. She rightly pointed out that:

“If education is the engine of social mobility, it is also the engine of prisoner rehabilitation”.

She emphasised the need for high-quality vocational training and employability skills to prepare individuals for jobs on release from prison, but she also stressed the importance of enterprise and self-employment support and training.

At a purely practical level, if offenders on release are equipped with the necessary skills it may, as my noble friend Lord German pointed out, often be easier to take up self-employment as a way of securing gainful occupation than to find employment with employers elsewhere, given the difficulty of persuading employers to give jobs to ex-offenders on release from prison.

There are, of course, many employers who as a matter of policy provide work to ex-offenders on release. Among them are Timpson, the shoe repairers, which has a prison recruitment scheme and has had considerable success in attracting and retaining ex-offenders who have settled with them to long-term and successful employment, and many have gone on to success in self-employment as well. There is also Gleeds, the construction company, which has made a special point of finding jobs for ex-offenders on release and which has campaigned to “ban the box”, meaning the criminal records tick-box on employment application forms, which prevents many finding new jobs. I will be interested to know the Minister’s attitude to job application forms.

Employment with helpful and energetic employers may be the best way of equipping former offenders with the skills and confidence to start up in self-employment. However, many will try starting up in self-employment after prison, but it is clear that it takes particular confidence for a prisoner, even a skilled one, to start a business. An ex-offender leaving prison faces many challenges in any case in finding his place in his community and re-establishing relationships with family and friends, so it is a real challenge to set up in any form of a business at the same time.

In this context, Dame Sally’s recommendations on developing mentors in prison may point a way to enabling prisoners to benefit from the experience of other prisoners. I hope that the community rehabilitation companies providing supervision to ex-offenders on release will play a part in building up networks of possible mentors following release who might help newly released prisoners through the first, very difficult, stages of setting up in business. In this context I add to the points made by both my noble friends about the need for a rehabilitation loan fund to provide the vital initial finance and for the co-ordination of training and funding within prisons, which was mentioned by my noble friend Lady Bakewell. Training in business skills and financial management is also necessary.

A lot can be done in prison too with imagination and encouragement from the prison authorities. An example is the Clink Charity’s restaurants, which have been a startling success. The Clink Charity started at HMP High Down in Surrey and now runs restaurants in Brixton, Cardiff and HMP Styal in Cheshire, which is a woman’s prison. The restaurants are very successful and are run by prisoners for the public. The men and women working there are training for their City & Guilds qualifications in food service and preparation. A mentoring service operates following release which is designed to help them find employment in the field. It has also opened a horticultural garden in HMP High Down and another in another woman’s prison, HMP Send in Surrey, where the prisoners train in horticulture and grow the produce for the four Clink Charity restaurants. At HMP Send, they also rear chickens and provide the restaurants with eggs. The Clink Charity boasts an 87.5% success rate in reducing reoffending. The point of all this is that there is a link between training, recruiting, learning the skills to run a business, mentoring and, finally, either finding employment or opening a business in the community on release. But it all depends on people with the imagination, drive and desire to help encouraging prisoners on their way.

So far I have concentrated on education in prisons. However, it is very important, if we are to achieve our aim of reducing the number of offenders sent to prison, that we also develop the potential of community sentences for providing education, including training in entrepreneurship. The provision for rehabilitation activity requirements, which may be imposed as part of a community order as a result of the Offender Rehabilitation Act 2014, provides a useful and effective vehicle for training offenders in the community. Some CRCs already offer activities over a wide range. Warwickshire and Mercia CRC provides a care farm skills programme at Willowdene Farm. The programme is set over 25 seven-hour days in a 14-week period. It offers courses specialising in mechanics, woodwork, IT, plumbing, forestry, animal welfare and agriculture—all areas in which self-employment is possible. It aims to prepare offenders to be work-ready and achieve two nationally recognised qualifications by the end of the programme. It works with offenders at high risk of reoffending and deals with those with a history of substance abuse. The London CRC helps offenders to develop basic skills in literacy and numeracy, and gives them training which might lead NVQ awards. It also helps ex-offenders to find employment, assisting with such things as CV writing and interview techniques. However, I suspect that more imaginative schemes, such as the West Mercia farm scheme or the Clink restaurants, are more likely to produce long-term benefits, not just for those involved at the time but also for those who might mentor later. What steps do the Minister and his department propose to encourage development by the CRCs and within prisons of the sort of schemes that I have mentioned? We are a long way off. The central point that I make is that we have to improve the system to give training a chance to flourish. Achieve that we must.

Legal Aid, Sentencing and Punishment of Offenders Act 2012

Lord Marks of Henley-on-Thames Excerpts

Tuesday 25th October 2016 Lords Chamber

[Lord Keen of Elie]

A number of parties have raised the question of review of the impact of LASPO. The government position remains, as I outlined earlier, that we will carry out the appropriate review by April 2018.

[Lord Marks of Henley-on-Thames (LD)]

My Lords, the provisions for legal aid for domestic violence victims and exceptional case funding were intended to ensure protection for such victims and a safety net for deserving cases outside the scope of legal aid. Does the noble and learned Lord share my regret that difficulties in access to legal aid in these areas have led to disappointingly low take-up, and does he agree that this highlights the urgency of the need for the promised review?

[Lord Keen of Elie]

The Government acted quickly to change the evidence arrangements in respect of domestic violence cases following a decision in February of this year, and the take-up on these cases has increased by about 30% since that time. With regard to exceptional case funding, again the number of applications and grants has increased markedly in the past year and indeed, according to the data available for the last quarter of 2015-16, the number of grants in respect of exceptional case funding has increased by 32%.

Prisons

Lord Marks of Henley-on-Thames Excerpts

Thursday 20th October 2016 Lords Chamber

[Lord Keen of Elie]

It is recognised that there has been an increase in violence in prisons in the past 10 years or more. It should also be noted that in the period from 2005 to 2015, the number of offenders in prison for violent conduct increased by 29%. So far as resources are concerned, we have already announced, as of 30 June this year, the allocation of an additional £10 million of new funding for prison safety. That funding is to include Pentonville prison. In addition, by March 2017 we expect to find 400 extra staff deployed in consequence of the funds being made available, as I mentioned before.

[Lord Marks of Henley-on-Thames (LD)]

My Lords, Pentonville prison, where Jamal Mahmoud was stabbed to death, was designed to hold 900 prisoners but is now packed with 1,200. A public inquiry would bring long-term benefit, but will the new Justice Secretary now address the present crisis of too many people being sent to prison, overcrowding, understaffing, inadequate activity and squalid conditions, all of which are leading to endemic violence and any number of other disasters that are waiting to happen? Will she please act now?

[Lord Keen of Elie]

The Secretary of State has already announced a £1.3 billion programme for improving and increasing the prison estate.

County Court Judgments

Lord Marks of Henley-on-Thames Excerpts

Tuesday 11th October 2016 Lords Chamber

[Lord Keen of Elie]

The rules regarding money claims in the county courts seeks to strike a balance between the rights of creditors quickly to claim and receive money that is owed to them and the right of defendants to be informed of a claim against them. Since the last Labour Government amended the rules in respect of these matters in 2008, the rules have required claimants to take reasonable steps to ascertain the defendant’s current address. Claimants must sign a statement of truth confirming that the details in their claim are true, and this includes the address of the defendant. Anyone deliberately providing false information to the court faces prosecution.

[Lord Marks of Henley-on-Thames (LD)]

My Lords, the noble Baroness’s Question raises an issue about so-called enhanced court fees. Claim fees are 5% of the sum claimed up to a fee of £10,000, even on uncontested debts, whatever the prospects of recovery, so it is the creditor who takes the risk of insolvency. Does the Minister accept that these very high claim fees deter creditors from claiming genuine debts and encourage debtors to avoid payment?

[Lord Keen of Elie]

In light of the fact that there have been 1.48 million county court default judgments in the past two years, it does not appear that claimants are being deterred by court fees, which have to be managed in order that the court estate can somehow remain solvent. At the end of the day, court fees are a recoverable element.

Queen’s Speech

Lord Marks of Henley-on-Thames Excerpts

Monday 1st June 2015 Lords Chamber

[Lord Marks of Henley-on-Thames (LD)]

My Lords, I join the noble and learned Lord, Lord Falconer of Thoroton, in congratulating the noble Lord, Lord Dunlop, on his maiden speech and in welcoming him, on behalf of these Benches, to his new position.

I start with two general observations on justice issues. Others on these Benches will speak on devolution and constitutional issues. First, I hope that this Government, now untrammelled by the constraints of coalition with my party, will nevertheless continue to test all their proposals against the fundamental values of human rights and liberty that have, in the past, been championed by both our parties. Secondly, I hope that this Government will maintain a commitment to the rule of law in its widest sense—embracing the concepts that government may not act unlawfully without challenge, that all citizens must have genuine access to justice and that our Government must faithfully abide by all their international obligations. These concepts are easy to state and all too easy for Governments to affirm, but they can nevertheless be challenging for Governments to achieve in practice.

It is against those benchmarks that I approach this Queen’s Speech. In the justice area there are several proposals which are to be welcomed. I will mention just four. First, the proposed policing and criminal justice Bill promises that 17 year-olds will be treated as children under all the provisions of the Police and Criminal Evidence Act, bringing English law into line with the UN Convention on the Rights of the Child and the European Convention on Human Rights, and in particular ensuring that 17 year-olds have a legal right to be interviewed in the presence of an appropriate adult.

Secondly, the Government’s proposed amendments to the Mental Health Act should end the scandal of patients, often children, who are suffering from serious mental illness being locked up in police custody for want of appropriate places of safety. But if the legislation is to work, the Government must ensure that there are always safe mental health facilities available for emergency admissions, and that these are convenient for patients’ homes and families. The Government claim to be serious about giving parity of esteem to mental and physical health. This will be an early test of their resolve.

Thirdly, the proposed end to indefinite pre-charge bail is long overdue and the Government’s proposals seem proportionate and humane. The sword of Damocles approach to criminal process is wrong. No one should ever be on police bail indefinitely without charge and without even knowing whether or not they are to be charged.

Fourthly, the Government’s promise to continue the reform of the criminal justice system is welcome—if it can be delivered. This means implementing the Leveson review’s recent proposals and providing the resources to make them work. But they cannot work if criminal lawyers are demoralised and angry. The previous Lord Chancellor left office with both sides of the profession convinced that a non-lawyer could never do the job of Lord Chancellor. That leaves Mr Gove, as a non-lawyer, with a serious challenge and he will meet it only if he carries the professions with him.

He might start by announcing a full review of criminal legal aid to ensure that the system will sustain a high-quality service that will command public confidence and deliver increased efficiency. For savings in criminal legal aid, he should look first at compulsory legal expenses insurance to cover criminal defence costs for directors of larger companies. He should also ensure that wealthy defendants can use restrained assets to pay their legal costs—a move inexplicably opposed in the previous Parliament by the Home Secretary. These two measures would release substantial sums spent on legal aid in very high-cost cases. In 2013—a relatively low-cost year—they were still less than 1% of the workload but accounted for more than 10% of the costs. The Lord Chancellor should also announce an immediate review of the changes to civil legal aid to see how far they have damaged access to justice and how best to undo such damage.

Like the noble and learned Lord, Lord Falconer, my chief concern for this Parliament is the future of the Human Rights Act and our membership of the European Convention on Human Rights. It is a great relief that the immediate threat to repeal the Human Rights Act has been replaced by a more measured approach but the threat remains. We have been reminded many times that the convention was fostered by Winston Churchill. One of its principal draftsmen was the Conservative lawyer David Maxwell Fyfe—later, as Lord Kilmuir, Lord Chancellor—who was Attorney-General in the wartime coalition and then won distinction for his cross-examination of Hermann Goering at Nuremberg.

The joint commission established by the coalition Government recommended by a majority that there should be a UK Bill of Rights, which would incorporate and build on convention rights, with possibly some additional rights guaranteed. Attractive possibilities for additional rights would include incorporating the UN Convention on the Rights of the Child and establishing a series of guaranteed digital rights with strong but appropriate protections for online privacy. The commission majority believed that such a Bill would be more in sympathy with British legal traditions and might gain wider public acceptance than the Human Rights Act.

If that is what ultimately comes before Parliament, I would not in principle oppose it, provided that three conditions were met: first, that the UK would remain a member of the convention; secondly, that convention rights would still be justiciable in British courts; and thirdly that the British Government would still regard themselves as bound to comply with decisions of the Strasbourg court. On this last issue, there has been much muddled talk. Article 46.1 of the convention provides:

“The High Contracting Parties undertake to abide by the final judgment of the Court in any case to which they are parties”.

It follows that we cannot cut the link between the UK and the Strasbourg court without leaving the convention, and that is a course with which I would vehemently disagree. I believe that leaving the convention would set a dreadful precedent for other countries and would undermine the moral case we make for human rights internationally. I note that the Prime Minister appears to be reconsidering the Government’s position on the convention. He may be reflecting on the obvious damage to his current difficult negotiations with other EU member states that our threatening to withdraw from the convention would cause. But above all, I believe that we need a commitment to human rights that is anchored in international obligation, which requires respect and compliance from our Government, not just from a possible illiberal future Government but now, from this and all future Governments, of whatever political colour or colours.

I mentioned the welcome proposal to ensure that 17 year-olds are treated as children in the criminal justice system. This reform is a response to the English High Court judgment in the case of HC, in which Lord Justice Moses said:

“It is difficult to imagine a more striking case where the rights of both child and parent under Article 8 are engaged than when a child is in custody on suspicion of committing a serious offence and needs help from someone with whom he is familiar and whom he trusts, in redressing the imbalance between child and authority”.

The court found against the Secretary of State on Article 8, the right to family life. We should remember that most cases under the Human Rights Act are decided in British courts by British judges, not by the court in Strasbourg. However, if we had only a British Bill of Rights, the Secretary of State might persuade the Government that the cost of treating 17 year-olds as children, which she assessed as £19-odd million a year, would justify the Government in derogating from the purely British Bill of Rights, which Parliament, at the behest of a majority government, could do. It is our membership of the convention and the fact that the Strasbourg court is there in the background that gives our citizens an international guarantee. I, for one, am not prepared to lose it.

On the more general question of the British Bill of Rights, I found persuasive the arguments of the noble Baroness, Lady Kennedy of The Shaws, and Professor Philippe Sands, who were the minority members on the Commission, that a constitutional convention would be the best forum for discussing the future of human rights legislation in the UK before legislation were enacted. They were particularly influenced by the issues raised by devolution; so should we be. The convention is embedded in the Good Friday agreement. It is incorporated into the devolution settlement with Scotland, and Scotland wants to keep it that way. To interfere with it without Scottish consent would add to the threat to the union, and we should tread with great care. In Wales, the Commission recorded a general view of satisfaction with the Human Rights Act and convention system and the general view that human rights changes ought to be matters for the devolved Governments. Indeed, that issue has not really been resolved at any stage.

The Government have now signalled caution. A constitutional convention would combine caution with the best prospect of consensus and legislation that would command widespread respect. Consensus and widespread respect should be prerequisites for legislation in this crucial but extremely complex area.