Legal Aid, Sentencing and Punishment of Offenders Bill

Lord Reid of Cardowan Excerpts

Monday 21st November 2011 Lords Chamber

[The Minister of State, Ministry of Justice (Lord McNally)]

My Lords, this is a substantial and far-reaching Bill. Its breadth is a consequence of the scale of its ambition, which is nothing less than intelligent, radical reform of the justice system. It aims to reform our criminal justice system so that it protects and serves the needs of the law-abiding, especially victims. It recognises that, for many offenders, prison does work and clear, stiff punishments are the right response to serious crime. But it also seeks to meet the challenge of persistent offending by bringing on stream a rehabilitation revolution which, if successful, would be a win-win, saving future victims from the trauma of a crime and the taxpayer the cost of incarcerating the offender once again, at the same time introducing to society a productive citizen whose life is not wasted in the cycle of criminality.

The Bill’s second goal is the long-overdue renewal of our system of civil justice. A modern system should resolve conflict as early as possible in the most cost-effective way. Yet the reality is that many ordinary users find going to law a slow, expensive and daunting experience that fosters rather than minimises litigation, often at the taxpayer’s expense.

The Bill therefore seeks to remove certain areas from the scope of legal aid while encouraging a step-change in the use of mediation and other ways of resolving disputes. It also implements the recommendations of Lord Justice Jackson on reforming no-win no-fee funding arrangements, which have become dysfunctional and inflationary. We also propose to ban referral fees.

Underpinning these first two aims is our third intention; namely, to make a contribution to unavoidable and necessary reductions in public spending. We approach our task with a profound belief in the fundamental importance of access to justice but the system as it stands faces an unignorable problem of affordability. Therefore, Part 1 introduces major reforms to the scope of civil legal aid. Alongside this, the changes in Part 1 mean a fundamental shift in the way the legal aid and wider civil justice system works.

For those who say that those most in need must have legal help to support them when they have a serious legal problem, I agree. For those who say that people must have legal help for whatever they want, whenever they want, I cannot agree. Access to justice is not the same as state-funded access to legal representation at court. We must do more to encourage people to use alternative, less adversarial means of resolving their problems.

We have approached our reforms of legal aid from first principles and have taken into account the relative importance of the issues at stake, the litigant’s ability to present their own case, the availability of alternative sources of funding as well as alternative sources of help and advice. Our proposals seek to focus legal-aid funding on circumstances where a person’s life or liberty is at stake, where they are at risk of serious physical harm, or where they face immediate loss of their home. Importantly, we are also retaining civil legal aid in cases where children may be taken into care.

The net effect of all this is significant change. Yet, in all, we estimate that the taxpayer will still spend the best part of £1.7 billion on legal aid each year after these reforms have been carried through. Prioritising critical areas of spend necessarily means taking a more radical approach elsewhere. That is why, for example, we have decided to remove taxpayer funding for legal representation in private family law cases and, instead, increase spending on mediation. Similarly, in areas such as employment, routine immigration applications and welfare benefits issues, legal aid will no longer be available. As noble Lords well know, the original rationale of the tribunals system was precisely to enable people to make their case without the intervention of a lawyer.

Although narrowing the scope of legal aid, we intend to provide a safety net. The exceptional funding scheme established in the Bill will provide funding for an excluded case where failure to do so would amount to a breach of a person’s right to legal aid under the Human Rights Act or European Union law. We also intend to address worries about the future of the valuable work done by the not-for-profit sector. This is an important part of our alternative and we recognise the need for a strong sustainable body of advice providers.

The Government have already announced a £100 million transition fund for the not-for-profit sector. I can confirm that, as announced this morning, we are injecting an extra £20 million specifically for free advice services, as well as undertaking a cross-government review to ensure that people continue to have access to good quality free advice services in their communities.

Concerns have also been raised about the impact of Part 1 on children and women. Let us be clear from the outset: we have retained legal aid for child protection cases, civil cases concerning child abuse and those involving special educational needs. We have also made special provision to retain legal aid for child parties in family cases. The consequence is that the vast majority of support for children will be unaffected by our changes. In 2009-10, the Government provided £133 million in civil legal-aid funding to child parties in all categories of law. Under our proposals, 95 per cent of that will continue.

In relation to women’s access to legal aid, we are again prioritising those most at risk of harm, retaining legal aid for private law cases involving domestic violence, where we have broadened the range of evidence accepted. Applications for protective injunctions and associated advice will continue to be funded.

In addition, in private family cases, Part 2 extends the courts’ powers to require one party to pay towards the other’s costs. This will help significantly in cases in which there is an inequality of arms. In family law as a whole, the taxpayer will still be providing over £400 million, much of which will benefit women.

Of course, the dire economic situation that we inherited drives some of the tough choices that we have had to make. Indeed, noble Lords opposite were already trying to cut legal aid at a time when they were still telling us that they had cured boom and bust. We all agree that legal help for those facing serious legal difficulties is fundamental. On the other hand, substantial changes and reform are much needed. We believe that our proposals in Part 1 achieve this balance.

Part 2 implements reforms in civil litigation funding and costs, based on Lord Justice Jackson’s recommendations. No-win no-fee conditional fee agreements were first introduced in England and Wales by my noble and learned friend Lord Mackay of Clashfern. Most observers believe that they succeeded in their goal of improving access to justice for those who were neither poor enough to qualify for legal aid nor wealthy enough to afford the costs of privately funded litigation. However, later changes tilted the balance much too far in favour of claimants. The Master of the Rolls, the noble and learned Lord, Lord Neuberger, said to the Times only last week:

“When you see the level of costs in some cases … it is clear that the system is unsatisfactory, some would say worse than unsatisfactory, and something needs to be done about it”.

This Bill intends to do something about it by ending the recoverability from losing parties of success fees and insurance premiums that drive up legal costs. This will be balanced against a 10 per cent increase in general damages for claimants. By taking these steps, we will restore common sense to the system and stop the perverse situation in which fear of excessive costs often forces defendants to settle, even when they know that they are in the right. This marks a return to the kind of arrangement that prevailed when the system was first set up by my noble and learned friend Lord Mackay in the mid-1990s.

I am well aware that a number of noble Lords, many of whom are sympathetic to the broad thrust of the Jackson reforms, have concerns about how this will impact on certain areas of litigation. I will listen to what they have to say both during today’s debate and when we return to those matters in Committee.

I turn now to the third and final part of the Bill, which concerns our sentencing proposals. I want to start by making the point that these reforms are designed with the victims of crime very much in mind. As I have said already, for many, prison is necessary and it works. However, if it is truly to protect the public, it needs to do a much better job on tackling reoffending.

We have two key proposals to deliver this change. The first is to introduce reforms across the estate to make our prisons places of hard work, not idleness. Getting prisoners into the habit of work matters in its own right not only because unemployment is a major risk factor in reoffending, but because once you get offenders working, you can institute a much more effective system of reparation to victims and to communities. Accordingly, this Bill enables deductions to prisoners’ earnings to pay for victims’ services and puts a positive duty on the courts to consider handing down compensation orders, the proceeds of which can go direct to victims. These reforms will help to move prisoners from being a purely negative drain on the system to making a positive contribution and pay genuine reparation to the victims who their actions have affected so terribly.

Running parallel to the Bill, our second key proposal is paying by results those organisations which work to rehabilitate offenders. This is a truly radical reform with the potential to revolutionise the way a lot of rehabilitation services operate. Rehabilitation is the key theme that runs right through the Government’s sentencing proposals. One need only look at this summer’s riots, where around three-quarters of suspects had previous convictions, to see that existing punishments have so far failed to reform. I believe that we need punishment which is robust and proportionate but that is also accompanied by a determination to get offenders to face up to the causes of their crime. We are offering those who commit crimes a choice. For those who do wrong, you will be punished, but for those who choose to mend their ways, we are extending a helping hand. That helping hand includes freeing up courts to impose drug, alcohol or mental health treatment requirement programmes which are tailored to individual needs.

I can also announce today that the Government intend to introduce reforms to the Rehabilitation of Offenders Act 1974, the outdated operation of which inhibits rehabilitation. We intend to bring forward amendments to achieve the right balance between the need to protect the public while removing unnecessary barriers that prevent reformed offenders contributing to society. I pay tribute to my noble friend Lord Dholakia on his long campaign on this matter. We believe that punishment must be proportionate, flexible and productive, so let me turn to some of the key measures in the Bill which will ensure that.

The first of the measures is greater discretion. We are legislating to provide more flexibility for judges and magistrates to sentence appropriately. The Bill is a first step to unpicking the labyrinth of legislation governing sentencing and creating a single framework for the release and recall of offenders. We are also proposing a simpler, clearer duty on the court to explain the sentence it passes, enabling it to be understood better. The Bill also introduces greater flexibility and discretion by removing the so-called “escalator principle” of out-of-court disposals for under-18s, which forces young people arbitrarily into the criminal justice system, regardless of the nature of their offending. In this area of youth justice reform, we are also undertaking the important step of treating 17 year-olds as children for remand purposes, and giving “looked-after child” status to all young people aged under 18 who are securely remanded. This will enable, for the first time, care plans to be created for those young people who are remanded to youth detention accommodation.

In the wider system, we seek to take a tougher approach to waste and reduce unnecessary pressures. Our major reform here is our proposals on remand in Chapter 2 of Part 3. These focus the use of remand in custody on those who are likely to receive a custodial sentence if convicted, with an exception in domestic violence cases. While I recognise that this change will be unwelcome to some, continuing to remand into custody people who in reality have no prospect of being sent to prison if convicted is simply a wasteful use of expensive prison places. On the other hand, if you have committed a serious crime, you can expect a serious punishment, so Part 3 introduces a number of new criminal offences which ensure that the public have confidence in the system. These include: criminalising squatting in a residential building; minimum sentences for those aged 16 and over who use a knife or offensive weapon to threaten another person and cause an immediate risk of serious physical harm to that other person; and a maximum penalty of five years’ imprisonment for causing serious injury by dangerous driving.

[Lord Reid of Cardowan]

Before we leave sentencing I would like to ask the Minister a question about indeterminate sentences, which he has not mentioned. In doing so, I declare my interests, as registered. The Minister may know that some years ago when I was Home Secretary, I gently reminded the judiciary of the premise behind the sentencing guidelines that people should not be sent to prison for offences that did not merit it but should be given community services, whereas people who were a serious danger to society should be retained indefinitely for protection, not for punishment. Could he say something about that relationship, in particular indeterminate sentences, before he moves on?

[Lord McNally]

Patience, my Lords. I will be turning to IPPs.

On knife crime, in particular, I understand the arguments of those requests and the desirability of minimum sentences. We have not taken this decision lightly but only after careful consideration. The stark reality is that too many people are affected by this scourge and more often than not those targeted will be other children, whom we have a duty to protect. This offence will bite where this becomes most serious, where the knife is brandished and there is an immediate risk of serious physical harm to another person. I can say with some feeling that every parent of teenage children knows the worry that an innocent night out might end in an act of violence against their child, and I make no apology for acting to send the clearest possible message that this is unacceptable.

I now wish to turn to one of the Bill’s most important reforming measures, namely reform of the current system of indeterminate sentences for public protection. IPPs are poorly understood by the public. They lead to inconsistent sentences for similar crimes. They deny victims clarity about the length of time an offender will serve. The previous Government estimated that there would be around 900 such prisoners in jail. There are now 6,500 and more than half of those are beyond their tariff. As of the end of June 2011, only 320 had been released.

IPPs clearly need major reform. We will replace the IPP with the new extended determinate sentence. Instead of serious violent and sexual criminals being released automatically halfway through their sentence, those receiving the new extended determinate sentence will have to serve at least two-thirds before they can be considered for release, and the more serious offenders will not be released at that point unless the Parole Board considers it safe to do so. Under our plans we expect that more dangerous offenders who commit a second serious crime will receive a mandatory life sentence. We believe this is a balanced reform, one where victims will have a clearer understanding of how long offenders will spend in prison and will be kept informed of progress and release plans. It is an attempt to deal with the real problem without compromising the public safety or ignoring legitimate concerns about serious offenders.

I am well aware, given the range of expertise in this House, that the sentencing reforms that I have outlined will be subject to scrutiny and debate, both today and in Committee. So, too, will our proposals on legal aid, on the Jackson reforms and the rehabilitation revolution. This is as it should be for this is a revisory and an advisory House of great wisdom and expertise, and I will listen. But we remain clear about the need to make hard choices and fundamental reforms in our justice system. If we get this right, the prize is a justice system that contributes to a safer and fairer society by tackling reoffending and by putting the victim at the heart of everything we do. Moreover, it will be a system that protects access to justice where it counts while keeping costs under control and ensuring the system has less waste and less delay. Our aim has always been to propose a balanced package and I can tell the House that that remains exactly what this is. This is a radical and reforming Bill and I commend it to the House. I beg to move.