Examination of Witnesses (Questions 1-88)
RT HON
JACK STRAW
MP
24 NOVEMBER 2009
Q1 Chairman: Welcome, Lord Chancellor,
there are quite a few things that we want to cover this afternoon,
so I am going to ask you to be as concise as you can. I know how
helpful you try to be to the Committee and how extensively you
try to assist us.
Mr Straw: I take
that as a justified criticism. I will try to avoid being prolix.
Q2 Chairman: Here is a question which
admits to a very short answer if you know what it is. How many
Libyan prisoners have been transferred since the prisoner transfer
agreement was made?
Mr Straw: I do not know the exact
number off-hand. I answered a parliamentary question about this.
I will let you have the answer.
Q3 Chairman: Is it much in excess
of one?
Mr Straw: I speak from recollection:
it is something in excess of one, but I do not have the answer
in my head.
Q4 Chairman: Obviously lying behind
that question is the quite widespread belief that the transfer
agreement was heavily motivated by the Al-Megrahi case. Lord Falconer
wrote to Alex Salmond in June 2007 that the Government had reminded
Libya of its acceptance that anyone convicted of the Lockerbie
bombing would serve their sentence in Scotland, and that the Government
had made clear on diplomatic channels that, for this reason, any
Prisoner Transfer Agreement with Libya could not cover Mr Al-Megrahi.
Things moved on from there. You wrote to Kenny MacAskill, the
Scottish Justice Minister, in December to make clear that it had
not been possible to make the kind of arrangement that was envisaged
earlier. You said to him in your letter: "The ultimate decision
therefore rests with you, and Al-Megrahi, like any other prisoner
in a similar situation, could only be transferred with your explicit
approval. This gives the ultimate reassurance to the people of
Scotland." Was that not just passing the buck really?
Mr Straw: No, it was not, Chairman,
far from it. It was always the case under any PTA, whether or
not it had a specific carve-out for an individual prisoner, that
it was the decision of the sentencing state as to whether or not
to send a particular prisoner, in this case, to Libya. One of
the negotiating problems that emerged with Libya was that initially
they had been given the standard draft Council of Europe prisoner
transfer agreements in standard form, which did not provide a
specific carve-out for any individual prisoner, but they knew
all along too, because it is in the text, that decisions about
individual prisoners would be in the hands of the sentencing state.
May I also just add to this that of course in the event the PTA
was not used, so exactly what I said was the case happened. An
entirely separate decision was made by the Scottish Justice Minister
to release Mr Megrahi on compassionate grounds. Of course that
had the paradoxical effect of leading directly to his liberty,
whereas had there been a decision under a prisoner transfer arrangement,
that would have involved his continued imprisonment. Both sets
of decisions were ones for the Scottish Executive.
Q5 Chairman: But the Scottish Executive
would not have had this decision to make had you achieved, or
the Government collectively achieved, the negotiating outcome
that Al-Megrahi would not have been included?
Mr Straw: They would not have
had the decision to refuse the PTA request, which in the event
they did, which gives further corroboration to the fact that my
statement in that letter I sent to Kenny MacAskill in December
2007 was accurate. They could, in any event, have released him
on compassionate grounds, even had there not been a PTA at all
because those powers are quite separate. So what has in fact transpired
could, and I imagine would in any event have transpired, even
in the absence of any PTA with Libya.
Q6 Chairman: Coming out of the decision
that was made to release him on compassionate grounds, did you
have any discussion with Scottish ministers, or did your officials
have any discussions with the officials of the Scottish Government,
about this matter before that decision to make a compassionate
release was made?
Mr Straw: There were discussions
between myself and Alex Salmond, and I cannot be certain whether
they took place between myself and Kenny MacAskill, but certainly
I recall one discussion about the idea of compassionate release
of individual prisoners, including Mr Megrahi, but that was, as
I recall, quite a long time before they had papers in respect
of the proposed release of Megrahi. Did I have any discussions
with any Scottish minister in August of this year as they were
coming to a decision? No. Indeed I was on holiday and the first
I knew about it was when I saw an item on the BBC website.
Q7 Chairman: Were you copied in to
any other discussions between other departments, such as the Foreign
Office and Scottish ministers, about the possibility of a compassionate
release?
Mr Straw: Not in August. As I
say, there had been earlier discussions which had taken place.
They were not theoretical but they were not either about an imminent
decision, but I cannot say whether my Department was copied in.
I can say for certain that I was not copied in or, if I was, I
certainly never saw that.
Q8 Chairman: Would it be fair to
say that at that stage the ground was cleared by making it clear
to the Scottish Government that they had the power to make this
decision and that the Westminster Government would like them to
make this decision?
Mr Straw: They knew they had power
anyway. Everybody knew they had the power to make a decision on
compassionate grounds, and they have always had that power. It
used to reside with the Scottish Secretary of State, now with
the Scottish Executive. So that was not an issue. When the Foreign
Secretary made a statement to the House on 12 October of this
year, a month and a half ago, he referred in that statement, and
I am trying to find the exact point in this, to advice that they
offered to the Scottish Executive. I can turn that up, but it
was a matter for the Foreign Office and obviously not for us.
I will in a second no doubt find the relevant extract.
Q9 Chairman: If it is something you
have difficulty producing, by all means let us know at a later
date.
Mr Straw: I have found it. This
is at column 31. This was in the statement Mr Miliband made on
12 October. He said this: "Notwithstanding that any decision
on release was for Scottish Ministers and the Scottish judicial
system, the UK Government had a responsibility to consider the
consequences of any Scottish decision. We assessed that although
the decision was not one for the UK Government, British interests,
including those of British nationals, British businesses and possibly
security co-operation, would be damaged—perhaps badly—if
Megrahi were to die in a Scottish prison rather than in Libya.
Given the risk of Libyan adverse reaction, we made it clear to
them"—and the context makes it clear `them' is Scottish
Ministers—"that as a matter of law and practice it
was not a decision for the UK Government and that as a matter
of policy we were not seeking Megrahi's death in Scottish custody."
That was the position which the Foreign Secretary set out.
Q10 Mr Hogg: Secretary of State,
that actually makes it quite plain, does it not, that the Foreign
Office was giving in effect guidance to the Scottish Administration
that in the opinion of the United Kingdom Government release on
compassionate grounds to Libya was what you wanted. That is what
the Foreign Office was in fact saying. What is more, your Department
would have been copied in on that correspondence, would it not?
Mr Straw: As to the first, Mr
Hogg, as I understand it, that is certainly not what the Foreign
Secretary said and also it is not the position of the UK Government.
What the Foreign Secretary said was that the position of the UK
Government was that as a matter of policy we are not seeking Megrahi's
death in Scottish custody.
Q11 Mr Hogg: That is the same thing,
Secretary of State.
Mr Straw: That is slightly different
from saying we wanted him released on compassionate grounds. Whether
he was to be released on compassionate grounds was a matter for
the Scottish Executive.
Q12 Mr Hogg: You were saying that
you had no difficulty with that policy. That is the same thing
as saying that is what you wanted, in the circumstances.
Mr Straw: I think it is different,
with respect, and the decision of the Scottish Executive was a
matter for them and, as I think it was Kenny MacAskill who made
clear at the time and subsequently, they said that there was no
interference in that decision by Westminster or in Whitehall,
and that is true.
Q13 Chairman: You could have gone
back to the Libyans and said, "We would like to release Mr
Al-Megrahi on compassionate ground but the Scottish authorities
will not do it"?
Mr Straw: The Libyans, certainly
when I was dealing with this and I am quite certain at the time
when this matter became much more imminent this summer, always
knew—and they never argued about this—that because
of our system of government in this country, the decisions in
respect of Scottish prisoners, whether PTA decisions or compassionate
release decisions, were ones for the Scottish Executive and that
we could not and would not interfere in those. That was the position.
Q14 Mr Tyrie: I would like to take
you back to rendition, which we discussed briefly last time you
came before us. I would like a clear statement to the question:
has the UK been involved in the US programme of kidnap and torture—that
is, the US rendition programme?
Mr Straw: Not in my knowledge
or experience, no.
Q15 Mr Tyrie: When the judge in the
Binja Mohammed case said that the conduct of UK authorities went
far beyond that of a bystander or witness to the alleged wrongdoing
and when he went on to say that we facilitated the interviews
and thereby facilitated the rendition, do you not consider that
involvement?
Mr Straw: As far as that is concerned,
I stand by what I have just said. I also just point out that it
is pretty certain that that judgment is the subject of a pending
appeal.
Q16 Mr Tyrie: On fact or law?
Mr Straw: As far as I know, on
both but I am not directly party to this. I am as certain as I
can be that that is the subject of a current appeal. I think it
is better if the British Government can make its case in court
rather then here, if I may say, without any notice whatever that
this was a likely line of questions you were seeking to pursue.
Q17 Mr Tyrie: So the judge has got
it wrong?
Mr Straw: Mr Tyrie, you know exactly
what I am saying, that this is the matter of an appeal at the
moment, I am pretty certain.
Q18 Mr Tyrie: Would you consider
the transfer of people using UK facilities to constitute involvement?
Mr Straw: This was a matter, you
may recall, when I was Foreign Secretary. A huge amount of work
was undertaken in the autumn of 2005 to check whether there had
been any involvement at all by UK personnel or through UK territory.
An astonishing amount of work was undertaken and I made that publicly
available, as I recall, in early December 2005. Again I speak
from recollection. I do not complain, Chairman. I am just saying
that I had absolutely no notice that this was going to be a line
of questioning,
Q19 Mr Tyrie: I did raise this at
the last meeting and you must know, indeed we have had extensive
exchanges of correspondence on this in the past, that this is
an issue that concerns me, a member of this Committee. It could
hardly be, as you have described it, so left field.
Mr Straw: Mr Tyrie, I am well
aware of that. I make no complaint about the fact you are raising
it. I am just saying that if you want chapter and verse, I am
trying to help you.
Q20 Mr Tyrie: My question was: would
the use of UK facilities constitute involvement in rendition?
Mr Straw: Yes, the use of UK facilities
would constitute involvement. Of course it would. The next question
is: were they used? They were certainly never used under any authority
of the British Government or my authority as Foreign Secretary.
I am quite clear about that. Were they used in other ways? As
I say, in the latter part of 2005 a huge search was made to check
whether there had been any kind of operations by the United States
or other governments making use of UK territory. From recollection,
we found two cases which went back to 1998, but again I am very
happy to provide you and the Committee, Chairman, with further
details of what was said back then. I also recall, and I think
it was 5 December 2005, that there was a NATO-EU meeting in Brussels
where I gave further information about that to that meeting.
Q21 Mr Tyrie: So, despite all this
extensive work, which you have just described as an extraordinary
amount of work, you ended up with the wrong answer?
Mr Straw: What subsequently transpired,
subsequent to my leaving the Foreign Office, as I recall, was
evidence that there had indeed been some movement of US personnel
with prisoners who were being rendered through UK territory. That
has been put publicly on the record.
Q22 Chairman: You are talking about
Diego Garcia now?
Mr Straw: Yes. The difficulty
of this is checking through records, and officials did an astonishing
amount of work trying to prove a negative. The legal position
is very clear and so too was a lack of authority for this very
clear, but we were also asked to triple check whether, notwithstanding
that, there had been any such transfers and, as I said, very extensive
checking has taken place subsequently to the answer I gave in
2005. Further information, after I left the Foreign Office, became
available. Again, I think you are familiar with that. I can make
it available to the Committee if you wish.
Q23 Mr Tyrie: You are agreeing or
conceding, I hope, that the assurance given by the Prime Minister,
and I quote "at no time have there been any detainees on
Diego Garcia or who have transited through Diego Garcia"
was wrong.
Mr Straw: What I am conceding—
Q24 Mr Tyrie: Was it wrong?
Mr Straw: Mr Tyrie, you must allow
me to answer, if I may. What I am conceding is what has already
been placed on the record by the Foreign Secretary and the Secretary
of State—no more and no less.
Q25 Mr Tyrie: Given that I was given
robust assurances on Diego Garcia that turned out to be wrong,
and I and others were given robust assurances that we were not
in any way complicit or involved in rendition, not least by you,
and it turns out that a High Court judge has concluded that we
facilitated rendition, and given that your own terrorism watchdog
Lord Carlile has concluded, having looked at this, that we now
need a public inquiry to restore public confidence, why will not
the Government concede one?
Mr Straw: I think the first thing
we need to do is to await the outcome of the appeal. The matter
can then be reassessed in the light of that outcome.
Q26 Mr Hogg: Can I just press you
a little more about this, Secretary of State? So far as the appeal
is concerned, it is very unlikely to be an appeal against fact
because, as you know full well, there are very seldom appeals
against fact from a High Court judge. Leaving that aside, so far
as the Diego Garcia transmission is concerned, that must have
been cleared at some level because people do not land at airports
without clearance. The question is: at what level was clearance
given? Presumably it went to the station commander. From where
did the station commander get further authority? Was it ultimately
from ministers or was it from officials and if from the latter,
where did the buck stop? If from the former, where did the buck
stop?
Mr Straw: Mr Hogg, as I have already
said, it certainly did not come from me as Foreign Secretary.
Q27 Mr Hogg: I do not suggest it
did. I merely asked where the buck stopped.
Mr Straw: I will have to find
out the answer for you.
Q28 Mr Hogg: Would you be good enough
to do so and write in detail about it?
Mr Straw: I will write; how much
detail I am able to provide depends what the answer is, but I
will certainly write.
Q29 Mr Tyrie: I would like to come
back to what I originally asked you last time. You did say and
I quote: "Unless we all start to believe in conspiracy theories
that officials are lying, that I am lying, that there is some
kind of secret state which is in league with dark forces in the
United States, there is simply no truth in the claims that the
UK has been involved in rendition." That was incorrect, was
it not?
Mr Straw: No, I do not accept
that. I was making the point, which I have repeated here—
Q30 Mr Tyrie: But we have been involved.
You agreed that we were involved in Diego Garcia.
Mr Straw: As I say, from recollection
that was one or two incidents of transfers through Diego Garcia,
which happened without ministerial authority, and I am as certain
as I can be too without the authority of senior officials on behalf
of ministers.
Q31 Mr Tyrie: You do not regret saying
that?
Mr Straw: No, I do not regret
this because I am absolutely clear that far from there being any
conspiracy to allow for rendition in a wholly mendacious and deceitful
way, our policy was the reverse. I do not approve of unlawful
rendition and never have done and that was made clear, and neither,
as it happens, from a moral point of view, did officials.
Q32 Mr Hogg: May I ask one question
about that? If that is so, what has happened to officials, whoever
they were, who approved the application, no doubt by the Americans,
to land because somebody must have given clearance?
Mr Straw: Again, I will have to
include that in the letter I write to you, Mr Hogg.
Q33 Dr Whitehead: Could I change
the subject somewhat and address the question of the changes to
the programme of Legal Aid reform and the way in which the Legal
Services Commission has conducted this, particularly as far as
public consultation on those changes is concerned? What assessment
have you made of the way in which that consultation is being undertaken?
Mr Straw: I have not made a direct
assessment of the way the consultations are being conducted. Sometimes
consultations on changes to Legal Aid policy that involve quite
big policy are conducted by the Ministry of Justice directly,
sometimes by the Legal Services Commission if they are more operational,
and it varies. In every case, except very urgent cases, where
we are making a change to the Legal Aid regulations, there is
a consultation because this is a complicated field. I think everybody,
including practitioners, now recognises that although the money
is very high in comparative terms internationally, it is fixed
and finite. It is important that we try and get the best value
for money and do not have inadvertent consequences from the changes
we make.
Q34 Dr Whitehead: Bearing in mind
that there has been considerable concern expressed about the level
of legal expertise that would be available in complex cases, are
you satisfied that family Legal Aid continues to be on a sufficiently
robust footing?
Mr Straw: Yes, I am. Obviously
I understand the concerns of practitioners but the truth is that
spending on family cases has increased very significantly—by
about 25% in the last four or five years—whilst the total
caseload has gone down. Practitioners say that the explanation
for that is an increase in complexity, but we spend a huge amount
of money. We spend more on family Legal Aid in this country than
most of the countries with which we are compared spend on any
Legal Aid at all. It is on every comparison a very generous system.
We are now spending £2 billion a year on Legal Aid.
Q35 Dr Whitehead: Is there any significance
in the publication of the most recent consultation paper on Legal
Aid funding reforms, published on 18 September, being issued by
the Ministry of Justice rather than the Legal Services Commission?
Is there anything in that for China watchers or is it just a happy
coincidence?
Mr Straw: No, it is not. It really
goes back to the answer I gave earlier, which is that because
it is a much heavier policy, it seemed appropriate for the Ministry
of Justice to do it. I may say too, and this is a criticism that
has been made of the LSC by the NAO, that there is a certain amount
of duplication of policy work on Legal Aid in the Ministry of
Justice and in the Legal Services Commission; there are about
60 people on policy of some kind or another in the LSC. To make
the system more efficient and cut costs, the numbers involved
in policy in the LSC are being considerably reduced.
Q36 Dr Whitehead: In that specific
report you quoted the evidence indeed to this Committee by the
Criminal Bar Association to support what you have suggested is
perhaps implied by cost constraints of reducing funds to defence
lawyers by I think 23%. The evidence to this Committee by the
Criminal Bar Association was quite the opposite, that they wished
to increase the funding for prosecutions so there would be an
uplift in prosecution funding to equate to that of defence funding.
You appear to have used the consultation to suggest to us precisely
the opposite. Is that a good way of going about the consultation?
Mr Straw: It has been well known
that fees paid to prosecution advocates were significantly less
than those paid to defence advocates. The CPS and other prosecutors
tell us they have no difficulty in finding advocates for their
work. I think therefore it is reasonable for us to look at the
evidence which the Criminal Bar Association provided and to come
to our own conclusions. This is a market and those who are advocates
at the Bar and are court advocates among solicitors are private
practitioners in a market. To repeat the point, the Legal Aid
system in England and Wales is by every comparison very generous,
and it also leads to much higher earnings at the top end than
practitioners can get in any other system, including in Scotland.
The difference is very stark. An example given by the Criminal
Bar Association is that in a rape case the prosecution advocate
to receive £3,086, defence advocate £5,730, and that
is a relatively small gap compared to some of the others they
highlight, so I think it was reasonable for us to draw that conclusion.
I may just say on that on the 23% there has been further work
done by LSC statisticians with the Criminal Bar Association's
statisticians and all statisticians now accept that the disparity
is in practice 18% rather then 23%. That does not affect the consultation.
Q37 Dr Whitehead: In terms of responses
to the consultation, if I were the Criminal Bar Association, I
think I might be rather miffed at the fact that their evidence,
particularly to this Select Committee, had actually been used
for the opposite purpose from that for which it had been submitted
in the consultation itself. Perhaps here is an opportunity today
to emphasise that that was not the intention of the consultation
in any way and that the Criminal Bar Association's evidence might
perhaps be looked at again therefore?
Mr Straw: I obviously understand
the Criminal Bar Association representing their members wishes
to see the highest level of remuneration for all their members
in every case, so I understood why they put it forward.
Q38 Chairman: I must that is a distortion
of the evidence that they gave to us in which they distinguished
that in cases there were quite different levels of remuneration.
Mr Straw: I have their evidence
here and the cases which they gave were cases where they appear
to be claiming the defence and the prosecution were working on
a broadly equal basis in terms of workload. I may say, Chairman
and Dr Whitehead, that the information which the Criminal Bar
Association gave we could have obtained in any event. It just
happened that they produced it and since they had produced it,
we were happy to rely on it. After all, these are lawyers; they
must realise that if they offer evidence people may draw inferences
from the evidence which are not necessarily the inferences which
those offering them wish to make, but that is a risk you take.
Q39 Dr Whitehead: I think one can
accept a 20% divergence from evidence but an 180 degrees about
turn in evidence perhaps might be seen as a little excessive.
Mr Straw: We are not challenging
their evidence, which is very factual. Their conclusion is that
we should have uplifted prosecution fees. There is no way that
can be done.
Q40 Dr Whitehead: I think the general
issue that I am trying to explore is the whole question of where
we stand on consultations—the content of consultations and
the response to them. For example, in the Public Law Family Fees
consultation the response came out as a fairly stark conclusion;
indeed, the Department said it was "clear that the majority
of respondents were against full cost fees for public law child
care proceedings". The Ministry's conclusion was: well, we
are going to proceed anyway with the proposed changes, with no
material in support of that particular conclusion. If you were
a respondent to a consultation, at that point, would you not feel
that the consultation was rather a waste of time?
Mr Straw: This is not a Legal
Aid decision. You are talking about the decision that was made
in early 2008 to increase the fee paid by local authorities up
to around £4,000 on full cost recovery. Local authorities,
by the way, also received a transfer of £40 million from
Ministry of Justice funds to them to cover that. That, however,
was a subject later of an adverse recommendation from Lord Laming
and there has since been a review by Francis Plowden of the impact
of these fees. Whether these fees should stand is subject to very
active consideration right now.
Q41 Dr Whitehead: Finally, you have
now invited Sir Ian Magee as the Department to assess the delivery
and the Government's arrangements for the Legal Aid system. You
have done that as the Ministry of Justice. Does that perhaps not
imply a loss of confidence in the Legal Services Commission in
its capacity to deliver reform, and does it indeed not also put
at least a question mark as far as the policy direction following
Lord Carter's Legal Aid reforms?
Mr Straw: I emphasise that I do
not think it raises a question about the direction of Lord Carter's
reforms because they were designed to get a control on what had
been ever rising expenditure on Legal Aid. I say again that what
I have had to wrestle with is this extraordinary increase in Legal
Aid, which has been 236% in real terms since 1984-85. It happens
to have flattened out in recent years, not least because of the
Carter reforms, but it is still £2 billion and around three
times as much as comparable common law jurisdictions are spending,
like Australia, New Zealand and Canada, and also more than that
which is being spent in Scotland. On the Ian Magee review, I think
they have now been made public but we became aware of likely very
adverse reports from the NAO, Attorney and Auditor General and
others about certain operations of the Legal Services Commission.
Those were not reports one could simply ignore and they did point
to some difficulties in the administration of the system. All
right, the NAO report is not out yet but on Friday. I am sorry
about that. You have to respond. Myself, I have been worried about
the fact that there appeared to be a duplication of policy effort
by my own Department and by the LSC and policy needs to be dealt
with by ministers because we are accountable for it. I have been
concerned about that and then prompted by an adverse recommendation
from one of these bodies, whether made public or not, I thought
first we ought to act on that but also have a review. The other
point I would make briefly, Chairman, is that in the Access to
Justice Act 1999, section 2 anticipates that there might be a
change in the structure of the LSC because it allows the Lord
Chancellor by order, subject to affirmative resolution, to change
the structure to move from that kind of body to a different body,
maybe to have two bodies, or for example to have one body but
with two clear separate funds: one for criminal aid and one for
civil. Those are the sorts of things that Sir Ian Magee is looking
at.
Q42 Mr Heath: Lord Chancellor, I
would like to move to the subject of out-of-court disposals. I
notice you made a speech in Birmingham Town Hall recently to the
magistrates or you featured on that. Do I take it from what you
said there that you believe that it is never appropriate for a
caution to be used as a disposal for a case of rape or grievous
bodily harm?
Mr Straw: I said there that I
was astonished by that. I am not a prosecutor and I think they
have a difficult job but it seems to me that either there is good
evidence in respect of a rape or an allegation of grievous bodily
harm, in which case it is the subject of charge and prosecution,
or there is insufficient evidence, in which case it is not continued.
Q43 Mr Heath: So a caution is completely
inappropriate, given that it then places it on the record without
it ever being proven yea or nay?
Mr Straw: For a caution there
has to be an admission of guilt but, even so, it is very unsatisfactory,
above all to the victim. That is my view. It came as a surprise
and a shock to me as it did to other people.
Q44 Mr Heath: I think it also raises
the question then of who decides what crimes, either individual
crimes or categories of crimes, are appropriate for a non-court,
out-of-court, disposal. Is this purely in the hands of the individual
police officer or should we not be giving clearer guidance?
Mr Straw: My understanding is
that for indictable only offences the decision is made by the
Crown Prosecution Service. That has to be, and so for rape and
for grievous bodily harm it is a matter for the Crown Prosecution
Service. A point I made in my speech at Birmingham Town Hall on
the 14th of this month is that out-of-court disposals of one kind
or another are as old as our police service; they have always
been and they will continue. No system in the world is mechanical
and says where there is evidence of a crime then automatically
there is bound to be a prosecution. No system works like that.
The question is how formal you make it and ensuring that it is
proportionate and it is properly administered. For example, one
of the things that I did when I became Home Secretary with Mr
Michael was to stop the repeated cautions particularly for young
people, so they were just going through a revolving door, and
so a very clear hierarchy was established with very clear guidelines;
on the whole, I think that has worked quite well. Interestingly
enough, the criticism about out-of court disposals has in general
not been directed to the youth justice system because there is
a much clearer set of rules. On fixed penalty notices, in the
main they were designed to deal with disorder and to upgrade the
punishment in a situation where too many of them were being made
informally or without any kind of police process at all, but I
accept, certainly in respect to shop theft, that the guidance
had not been properly followed and also the guidance needed altering,
and so I have done that.
Q45 Mr Heath: But this is a criticism
that was made right at the time that the fixed penalty notice
was introduced for shop theft that there was no follow-up—exactly
the criticisms that you indicated of cautions with youth crime.
In terms of shop theft, you could have a repeat offender without
any sort of effective record being kept of fixed penalty notices;
no pattern of criminality developed; no court having oversight
of that. Was it not entirely predictable that we had that sort
of situation? It was predictable because I predicted it, so I
know.
Mr Straw: The gap that was attempted
to be filled by an extension of the penalty notices for disorder
to cover shop theft was from the fact that there had been evidence—this
happened after I was Home Secretary so I speak second-hand—that
a lot of police officers were simply letting offenders go for
one reason or another—if, for example, the stolen goods
were returned—and so that led to an extension of PNDs to
cover shop theft. I have made it clear in the House not least
that I think that their use for shop theft has gone too far. That
is why I have very significantly restricted their use. We will
also find, as virtual courts get going and the powers in the Coroners
and Justice Act are brought into force which remove the requirement
for consent for virtual courts, that for example in a number of
police divisions in London they are going to be moving out of
PNDs for this kind of offence altogether and having a court process,
and I agree it is better.
Q46 Mr Heath: Is there not a problem
also with consistency? We have fixed penalty notices for all sorts
of things but the penalty for shop theft is often less than a
relatively trivial civil offence—parking next to a dropped
kerb or something like that? Given that we have that inconsistency,
your review appears to be only dealing with Home Office and your
departmental cases, CPS cases, but is it not worth extending it
to all out-of-court disposals so that we actually have a degree
of consistency and common sense about the whole area?
Mr Straw: The public concern,
if I may say so, rather than parking tickets or speeding tickets
is about what the public regard as offences involving a degree
of criminality, which are disorder principally, but of course
criminal damage and shop theft, and that is the only offence of
direct dishonesty that I can think of. I think it is sensible,
frankly, that we confine the review to that rather than getting
into the penalties for parking tickets.
Q47 Mr Heath: Why, they still have
to be paid?
Mr Straw: What the reviewers will
do is take account of the penalties for parking and for speeding.
I take your point there, but there is no great evidence that people
wish us to go back on that system. Of course I understand the
point. Part of the difficulty of course is that with a lot of
offenders who, say, commit shop theft, but not all of them by
any means, or other offences covered by PNDs, on the whole the
courts have problems getting the money out of them in a way that
they do not necessarily in respect of parking tickets.
Q48 Julie Morgan: If the review results
in many more cases going to court, how will the court system cope
with the possible influx of many more cases, especially in view
of the fact that the same week that the review is announced there
were cuts in the Courts Service also announced?
Mr Straw: I think they will be
able to cope. The workload of magistrates has gone down now. We
do not think it has gone down because of PND notices; indeed,
PND notices are slightly down as well. It is partly because the
magistrates' courts have become much more efficient, following
the introduction of CJSSS. It is also because more cases are being
selected for trial and being sent to the Crown court, and that
was another key point of my speech to the Magistrates' Association.
We are not anticipating problems of capacity in the magistrates'
court. I was inviting the magistrates to consider sending fewer
"either way" cases to the Crown Court because they are
better dealt with in the magistrates' court.
Q49 Julie Morgan: If this review
resulted in thousands more cases going to court, you still think
the courts will cope?
Mr Straw: I do not think it will
with changes like the virtual courts and other improvements, say
in case management. The amount of money which is spent by the
system in duplicating case files remains a major problem and there
is a big effort going on to get integrated case management between
for example the police and the CPS and the courts. In some areas
they are doing it. I saw this operating successfully in Hackney.
It is a beneficial consequence of the pressures on costs now impacting
on both the police and the other agencies.
Q50 Jessica Morden: Moving on to
children and young people in custody, the Youth Justice Board
has said that since 2000 there has been an increase in under 18
year olds with 41% being remanded in custody. Do you agree with
that figure and what do you think about it?
Mr Straw: What year are you quoting?
Q51 Julie Morgan: Since 2000?
Mr Straw: I think that figure
is correct. I am trying to turn up the figures. The number now
in custody has fallen in the last 18 months and it has fallen
by 13%. I can make this table available to the Committee if they
wish, Chairman. In October 2008, there were 2,934 children and
young people in custody, either remanded or sentenced, and in
October of this year there were 2,556.
Q52 Jessica Morden: To what do you
attribute the fall?
Mr Straw: It is partly because
of the relative success of our youth justice measures, one of
the architects of which is sitting next to you, because they are
working. What is very significant is that the number of young
people coming into the youth justice system as offenders has gone
down, and also the result of other work is that for those who
do go into the system, reoffending rates have improved. It may
also be a result of courts looking for other measures to deal
with young offenders rather than putting them into custody, although
I may say, notwithstanding what the pressure groups say, I have
never met a youth justice magistrate or a Crown court judge who
handles these cases who wants to send young people into custody.
The vast bulk of them are 17 year olds; it is getting on for half
in each case.
Q53 Jessica Morden: On that issue,
Lord Bach has admitted previously that the treatment of 17 year
olds remanded as adults is an anomaly and had being looked at
by the Standing Committee on Youth Justice. Is there any further
action on that?
Mr Straw: There is not immediate
progress on this. It is an anomaly because under PACE they are
treated as adults and for the rest of the system they are treated
as juveniles. The system works round it at the moment. Bear in
mind that 17 year olds often, as far as their victims are concerned,
are very adult, and they are a completely different category from,
happily, the tiny handful of offenders in custody who are aged
12 or 13.
Q54 Jessica Morden: Finally, a recent
inquest jury found that systematic failures contributed to the
death of a 15 year old in a young offenders' institution, who
was, I believe, the 30th child to die in custody since 1990. I
believe there is a Prisons and Probation Ombudsman report as a
result of that with 30 recommendations. Will you be publishing
that and what action will you be taking as a result of it?
Mr Straw: As far as publication
is concerned I will be following the normal arrangements. This
was a very difficult case. It happened at Lancaster Farms Youth
Offenders' Institution in north Lancashire, and also a coroner's
jury made some comments about what they said were systemic failings
in the care and support of this young man that led to his death.
The coroner also commended members of staff at Lancaster Farms.
There were failings here and we always try to learn lessons from
them. That said, it has to be recognised that the youngsters who
end up in custody are amongst the most difficult of all young
people to deal with and the young people who do go into custody
are in general much more volatile than adults in custody. They
are very difficult to deal with.
Q55 Chairman: When you said "the
normal arrangements" in your reply, did you mean that publication
would follow in due course?
Mr Straw: I was trying to remember
the answer!
Q56 Chairman: Does anybody want to
prompt the Secretary of State with the answer, which we all hope
would be publication, unless there are any particular matters?
Mr Straw: As I say, obviously
the recommendations and conclusions of the jury at the inquest
have already been made public. That was on 13 November.
Q57 Chairman: You may have to write
to us about this as well to tell us?
Mr Straw: I may.
Q58 Chairman: We would like to know
what is going to happen to this report.
Mr Straw: We will find out.
Q59 Dr Whitehead: Can I address a
couple of thoughts to the responsibilities that the Department
of Justice has as far as Crown Dependencies are concerned? When
you spoke to this Committee in October 2008 and you were specifically
addressing the governance of Sark, you said in that context, "There
is this wider responsibility for good governance." What is
the legal basis for that belief?
Mr Straw: The legal basis is what
was said in the 1973 Kilbrandon report on other constitution and
the fact that it follows from our wider responsibilities for Crown
possessions. We are responsible for international relations for
Crown Dependencies and for their defence. What is the legal basis?
Among others, it is our obligations under the European Convention
of Human Rights. Where for example somebody feels aggrieved that
their rights under the Convention have not been acceded to in
respect of activities or lack of activities by the governments
of the Crown Dependencies, the respondent to those actions in
the European Court of Human Rights is the United Kingdom Government,
and that was the position in one of the Sark cases. It follows
from that that we have a responsibility for good governance. The
other legal basis is that all Acts of their legislatures require
Royal Assent and that Royal Assent comes through a Committee of
Privy Counsellors, which usually operates on paper but which I
chair. In the case of one proposal from Guernsey and Sark to change
the governance arrangements for Sark, I turned that back. I was
not satisfied that it met modern requirements for good governance.
Q60 Dr Whitehead: Is the definition
of good governance that you are looking at there addressed in
terms essential of human rights or in terms of what might be regarded
as the norms of good governance of the United Kingdom?
Mr Straw: Both: in terms of active
intervention rather than, say, just turning back a proposal; if
there had to be active intervention, taking something like a breakdown
of civil order or something very serious.
Q61 Chairman: Can I be clear that
during your time in this office, and presumably also when you
were at the Home Office you had responsibilities as well, you
did not have occasion to make plans for any kind of direct intervention
in any of the Crown Dependencies?
Mr Straw: No, not as we did in
Antigua in 1966 for example. It would be a very severe step to
take. I think it is known that there are fairly frequent representations
to me in respect of one of the Channel Islands to intervene and
so far I have declined to do so. I have not seen any evidence
to support the case.
Q62 Dr Whitehead: As far as the Isle
of Man is concerned, it recently had its payment from the UK Treasury
reduced by £50 million from April 2010 and a further £50
million from April 2011. The Isle of Man's Chief Minister said
that this had resulted from intensive negotiations, which I would
imagine the Department of Justice would have been intensively
involved in. Would that be right?
Mr Straw: Yes, we were involved
in them and we were trying to ensure that there was fairness on
both sides and I think we achieved it.
Q63 Dr Whitehead: The Chief Minister
also said, as a result of the two grounds of £50 million
reduction: " ... it is very likely that some public services
will have to be reduced to enable us to ensure we can continue
to fund the most important areas." How might that impact
on good governance in the Isle of Man?
Mr Straw: I have had no representations
that it will. The background to this is that these reductions
arise out of a VAT sharing agreement. The Isle of Man must speak
for themselves but all the evidence has been that the Isle of
Man have done very generously from this arrangement in the past
and there has now been an adjustment in respect of VAT sharing,
which we think matches the reality or, as you say, Dr Whitehead,
it led to this £50 million reduction in 2010-11 and £100
million in the following financial years. So it has an impact
on a pretty small population but one which we think is manageable.
Q64 Chairman: The British Government
is responsible for the external relations of the Crown Dependencies.
If I can take the example of the Icelandic banking crisis, which
tested many of these relationships quite severely, how could the
British Government simultaneously to the Icelandic authorities
represent the interests of the UK Treasury and those of the Isle
of Man Government, and it was the Treasury that was doing the
negotiation, bearing in mind the Treasury had taken the decision
to freeze the assets of the Isle of Man banks in the interests
of UK-based depositors, but that was to the detriment of depositors
in the Isle of Man, whether Isle of Man based or based elsewhere.
How could it be that one government department, the Treasury,
could simultaneously represent both these cases?
Mr Straw: The Treasury had to
make some extremely difficult and very urgent decisions to protect
the British national interests from this, and I think they did
pretty well on that. I had a constituency case about this. I speak
from recollection here, but the Isle of Man did have a depositor
protection arrangement in place.
Q65 Chairman: I am trying to focus
very specifically on the fact that the responsibility for negotiating
with the Isle of Man on behalf of the UK and on behalf of the
Isle of Man with its different interests sits together either
with you or with the Treasury in this case because they carried
the burden of negotiations. Are you not really being an advocate
for two different clients in this situation?
Mr Straw: I do not think so is
the answer. The Isle of Man, along with the Channel Islands, has
been very keen to maintain the wide level of autonomy that they
have had over the banking system. I think they would say they
have benefited very much from this as being areas where the British
had generous tax arrangements. They put in place regulatory arrangements.
They had to accept the consequences of that; they were allowing
the financial institutions based in their territories to take
deposits and to be at risk for astonishing sums of money relative
to the total GDP of those territories.
Q66 Chairman: I am not trying to
address the substance of the issue because there are many aspects
we could raise about that. It is simply the role which your Department
plays. Perhaps I could put the question this way? Ought not your
Department to sit in on any negotiations that any other department
is having on behalf of the Isle of Man Government, particularly
when the possibility of divergent interests exists?
Mr Straw: We were involved to
a degree, but what the Treasury sought to do was not only to represent
the interests of the Isle of Man and the Channel Islands, but
also, in the case of the Icelandic Bank problem, to facilitate
the Isle of Man and the Channel Islands speaking direct to the
Icelandic authorities, but in the end it was actually ultimately
in the interests of the Crown Dependencies as well as the UK mainland
that the UK authorities made those decisions they did about the
Icelandic banks because of their very serious exposure.
Q67 Alun Michael: Could I turn to
the issue of complaints when things go wrong in the criminal justice
system. There seem to be a lot of inconsistencies. The Independent
Police Complaints Commission is probably the gold standard and
its methodology has improved massively over the years, but often,
when there is a complaint, it is not clear to the complainant
whether it is something the police have done wrong or where the
Crown Prosecution Service has gone wrong and/or the courts' administration
has gone wrong. Now, obviously in respect of judicial decisions,
there is the appeal system, but that does not deal with administrative
issues. Would you agree that there is a need for a levelling up
of the way in which complaints are dealt with and a system which
means that the victim or the complainant is not put in the position
of having to decide somehow how to play ballgames with three or
more different administrations?
Mr Straw: Mr Michael, I think
you raise a very important point and I do not pretend that the
current arrangements are wholly satisfactory. I think that you
have acknowledged that the IPPC has vastly improved the handling
of police complaints and police confidence and is light years
away from the system that was there 12 years ago, to take a date
at random. The complaints processes for the CPS and for the courts'
administration have also improved, but, looking ahead, personally
I would, as I think you would, like to see us introducing over
time an integrated complaints system so that it is, as it were,
the Complaints Commission which has to determine which part of
the criminal justice system it goes to for an answer rather than
the complainant. That will take many years, but I certainly think
we should, as it were, set that as a clear aspiration.
Q68 Alun Michael: Well, thank you
for that and I look forward to discussing that more in the future.
On another issue in relation to the criminal justice system, several
inquiries that we have undertaken have thrown up questions about,
on the one hand, the overall purpose of the criminal justice system
and, on the other hand, the need for each agency and department
to contribute particularly to cutting offending and re-offending.
I would argue that that is a victims' issue given that what we
have been told is that what victims want, apart from wishing they
had not become victims in the first place, is not to become a
victim again. Now, other departments and other ministers are involved,
but would you agree that each part of the criminal justice system
ought to be made to focus on cutting crime as a clear part of
its remit, and how can we improve the way the system makes individual
parts of the overall system focus in that way?
Mr Straw: I would say that a major,
overriding purpose of the criminal justice system and the other
partners involved is to make for a safe society and for a safe
environment in which individuals are to live, and one of the methods
of doing that is by cutting crime and there are other ways of
doing it as well. Partnership working has greatly improved in
recent years, but we have got to do a lot more there. For example,
the Department of Health has got an important role to play in
this respect, as we know from the work which you and I have talked
about separately of Professor Jonathan Shepherd at Cardiff University
where his work in identifying, not why people have been injured,
that is through street violence, but how they have been injured
and how they have been at risk has led to, as he has been telling
me, a very significant drop in the number of people presenting
themselves at accident and emergency departments, and not just
in Cardiff because his work across the country shows that there
is a very significant reduction by trying to deal with the situation
which people find themselves in. It is very simple, straightforward
stuff, like how bars are designed, what sort of lighting is available,
whether the glasses can be turned into weapons or just shatter
when they are broken. There are all sorts of other methods which
reduce the opportunity for violence as well as much better public
education and treatment of alcohol abuse because there is not
the least doubt that alcohol abuse lies behind a lot of violence,
particularly mindless violence.
Q69 Alun Michael: I think that probably
reads through to a simple yes to my next question, which is essentially:
should the methodology, the stringency of approach of analysing
a problem and looking for solutions, which was brought by Jon
Shepherd and his team, not be applied across crime more generally
in the future and across the way in which it is approached by
all the partners?
Mr Straw: I think it is much better
now than it was—
Q70 Alun Michael: Sure.
Mr Straw: —and partnership
is working at a local level where you have got the police and
local authorities and, these days, health authorities because,
for example, in my area the health authority is paying for a lot
of gym sessions and `keep fit' classes for youngsters as well
as older people which, as well as keeping people healthy, raises
people's self-esteem and also keeps them off the streets.
Q71 Chairman: Have you felt able
to defend that in the face of the media criticism which, I know,
it has been subjected to in some areas?
Mr Straw: Certainly there has
been no media criticism in my area or from the other political
parties, and the local authority is now run by a coalition of
Conservatives, Liberal Democrats and Darwin First, which is down
to the south of Blackburn.
Q72 Mr Heath: I thought you were
going to say anti-Creationists!
Mr Straw: No, they are Darwin
First. They were breakaways from the Liberal Democrats, Mr Heath!
People have been enthusiastic about it and it has made a big difference
and it is contributing to a reduction in crime.
Q73 Alun Michael: The last time you
were before us, we discussed the issue of promoting the knowledge
and understanding of judges and magistrates of non-custodial disposals
and increasing confidence in them. Can you tell us anything about
the progress on that?
Mr Straw: Yes, a lot of progress
is being made and it is improving. One of the, I think, big changes
which has been made is the approach of the judiciary, both of
the salaried, full-time judiciary, the district judges, circuit
judges and High Court judges, and the magistracy, to being involved
much more hands-on in sentencing. In some cases, they can make
use of the section 178 powers where they supervise the sentencing
in the mental health courts and so on. Just to give one example,
last Friday I went to Derby to look at the operation of one of
our important pilots on intensive alternatives to custody, and
this is trying to take high-end offenders, people who have been
in and out of prison often for persistent offences rather than
single, serious offences, these were alcohol-related offences,
drug-related offences and driving offences, and all but one of
the offenders I spoke to, and I spoke to nine, had been in prison
before on a number of occasions and they are now, as a last chance,
given intensive alternatives to custody which involve daily attendances
at the beginning of the sentence with their probation officer,
intensive unpaid work and also confidential mentoring about their
family circumstances. One of the things the probation officers
were saying to me was that they had been really pleased that both
the lead circuit judge in Derby and the lead magistrates and DJs
had been enthusiastic about this and had really got involved,
and I think that indicates a way forward.
Q74 Alun Michael: Are you going to
do anything to make sure that the Sentencing Council focuses on
the issue of what works and perhaps spreading the awareness amongst
the judiciary of the sort of examples that you have just referred
to in your last two replies?
Mr Straw: Yes. I have to say,
there is no impediment to persuading the judiciary that this is
a way forward, they want to do this, and the Judicial Studies
Board again is enthusiastic about this. The Sentencing Council,
which has now passed into law, will greatly assist, not least
through data-collection and analysis, looking at levels of sentence
for different offences and then comparing those with comparable
areas because some quite stark differences emerge, and then finding
out whether they affect crime levels.
Q75 Alun Michael: On the issue of
prisons, I do not want to take too much time on these issues,
so on the detail you might want to perhaps respond in writing,
but there are a number of issues that come out of our recent inquiry
in relation to staff:prisoner ratios and the fact that those ratios
have a crucial impact on the building of positive relations in
prison and, therefore, the potential for reducing re-offending.
You told the House that staffing in prisons has increased commensurately
with the increase in prison numbers, but the evidence that we
were given during our inquiry was rather different, and I wonder
if you could clarify the position on those ratios. Also, what
do you anticipate to be the likely change in prisoner:staff ratios
following (a) the implementation of workforce modernisation and
(b) the introduction, if they proceed, of the 1,500-place prisons?
Finally, what is the difference between the total prisoner:staff
ratio on a system-wide basis and the average ratio of prisoners
to rostered or on-duty staff and how does that vary across the
prison categories? I assume that data is collected. As I say,
there is quite a bit of detail there on which you might write,
but I wonder whether you could respond in general to me.
Mr Straw: I have got some data.
The ratio between all officer grades, uniform grades, and prisoners
was 2.46 in March 1997 and it is now 2.92. The ratio of all officers
and operational support grades, because we have brought in a lot
of operational support grades, was 2.10 in March 1997 and in October
2009 it was 2.23, so the overall change has been a slight one,
a slight tightening on the ratio, but I would be happy to send
these figures.
Chairman: We will confirm to you the
details that we are seeking on that.
Q76 Alun Michael: And you are aware
that there is worry about education and other services that promote
rehabilitation being squeezed with the increase in prisoner numbers?
Mr Straw: I am. I read your latest
Report, which I have here as well, and I am grateful for it. I
am aware of that. Again, we are in a situation where money is
tight and our Prison Service, when compared with comparable ones,
is not under-resourced at all. It is a very large service, and
I think the public would be interested in these figures because
we have 84,500 prisoners and, to cope with those 84,500 prisoners,
we have 33,800 staff, which is a lot of people, a very significant
number of people, and the big challenge for all prison managers
is how they are used.
Q77 Julie Morgan: I have just a quick
question about what is going to happen about the probation trusts
because obviously there was a timetable set and I believe that
there have been no successful applications from Wales, in particular.
What is going to happen?
Mr Straw: Well, 26 probation trusts
have now been approved and the remaining ones have applications
which are under active consideration. If a probation service's
application is turned down, regarded as unsatisfactory, then it
may be proposed that they merge with another adjoining, successful
trust, or it may be that they will be kept going for a period
until they can then apply. We are not just going to leave them
stranded, but they will need to sort out the problems that have
emerged. It has been quite a good exercise.
Q78 Julie Morgan: Certainly the four
trusts in Wales have all been unsuccessful in their first applications.
Mr Straw: Yes, I know, but they
have not been alone, if I may say so, Ms Morgan.
Q79 Julie Morgan: No, but it would
be difficult for one of those to be taken over by a neighbouring—
Mr Straw: There has been quite
a lot of consideration in Wales, as you know, about how many trusts
there are, but we are anxious to complete the process. My guess
is that the overall result will be in by March/April of next year.
All but probably around five probation areas, will have received
trust status by then and then we will obviously have to make decisions
about what to do with those five whose applications have not been
approved, but I would rather the number were zero and we were
working to that, but I think in the real world it may be five;
we will have to see. We are not going to leave them stranded.
Q80 Julie Morgan: So I can be hopeful
about Wales?
Mr Straw: Of course I will try
and be helpful about Wales.
Q81 Julie Morgan: As just a quick
question on the Land Registry and the failure of the Chain Matrix
IT system, I do not know if you could tell us how much it actually
cost and what are the financial problems which have resulted?
Mr Straw: Well, it cost about
£4.6 million, from recollection, of which £2.8 million
was the cost of gathering expert advice to develop the technology
and the remaining £1.7 million was staff costs. I think you
know that the Land Registry is no longer actively pursuing this,
although it is offering to support developers and commercial enterprises
who wish to market their own commercial Chain Matrix products,
so it is £4.6 million which was not brilliantly spent.
Q82 Julie Morgan: In terms of the
proposed changes in the Land Registry, the privatisation and the
job losses that are proposed, I understand that the latest staff
survey to 1 November showed that only 10% of staff have confidence
in the boards leading through the changes. I do not know if you
have got any comments on that.
Mr Straw: Well, the cuts in staffing
have been caused by the significant downturn in the property market,
so that is the key driver of that and I very much regret that
staff, who have had a relatively secure environment and job for
many years, because of the economic downturn, now face a situation
where they are facing redundancy. It is very sad and they are
decent, good people, but the drop in house prices understates
the decline of activity in the housing market by some margin and
that is the problem we faced in this period.
Q83 Chairman: Where does that leave
the privatisation process?
Mr Straw: That is some way away.
Again I can send you a note about it, but it is some way away.
Q84 Julie Morgan: Perhaps you would
send us a note about it.
Mr Straw: I will send you a note
about it, yes.
Q85 Mr Turner: Could you tell us
what is the order of batting, as it were, in your title—Secretary
of State for Justice or Lord Chancellor?
Mr Straw: Well, I make no point
about it particularly, but it tends to be the way it is written
is `Lord Chancellor and Secretary of State for Justice', but it
is not something I stand on. I am just intrigued by the point
of your question, Mr Turner.
Q86 Mr Turner: I just thought I would
ask.
Mr Straw: The reason I have two
titles is because it is two functions and some decisions which
I make I make as Secretary of State and others I have to make
as Lord Chancellor because that is what the law says.
Q87 Chairman: It must be very difficult
getting up in the morning, having to decide which you are!
Mr Straw: I think it is the least
of my problems!
Q88 Mr Tyrie: Weighed down by the
chains of office!
Mr Straw: It is the least of my
problems in the morning, I am afraid!
Chairman: Thank you for your evidence.
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