Examination of Witness (Question Numbers
1-61)
Rt Hon Kenneth Clarke QC MP
15 December 2010
Chair: Welcome to the
Lord Chancellor. We have to go through the declaration of interests
before we start. I will start on this side of the table.
Mr Buckland: My
declaration of interest is that for 20 years I have been a legal
aid barrister. I am still in receipt of payments for criminal
legal aid for cases completed before the election, and I am a
recorder of the Crown Court.
Mr Llwyd: I practised
as a solicitor and barrister. I have done legal aid work, both
civil and criminal, and since April I have been non-practising.
Karl Turner: I practised
as a solicitor and before being elected to this House I was a
barrister in my local chambers in Hull.
Q1 Chair: I don't
think the Lord Chancellor has practised for some time, have you?
Mr Clarke: It is
a little over 30 years since I put on robes in anger and appeared
in a court, but I enjoyed it when I did. I was able to combine
it with being a Member of Parliament in those days. It is infinitely
more difficult now.
Chair: We have quite a
lot of things to get through this morning—two main subjects
but also a little bit on the Magistrates' Court—which means
we have to drive along quite energetically. In that spirit I am
going to ask Claire Perry to open the questioning.
Q2 Claire Perry:
Good morning, Lord Chancellor. When you met us last time you kindly
discussed some of the underlying cost drivers of legal aid, which
was clearly of great concern. We in Britain seem to be spending
far more on legal aid than other countries do for not measurably
greater results. Now that we have some more clarity on the proposals,
by the Department's own estimates we see a potential reduction
in cases coming before the civil courts of over half a million
a year. Clearly, there are great concerns that that means we will
be denying access to justice to many people. Could you comment
a little on the thinking and application of the policy?
Mr Clarke: Access
to justice is not directly affected by anything we are doing because
access to justice by every citizen is fundamental in this country,
but the amount of access financed by the taxpayer will be affected.
What we have done is try to ensure that no one of limited means
is remotely barred from access when their life, liberty, home
or something of fundamental importance to them is affected. We
think the range of legal aid has got too high; we think it has
encouraged people to take a more litigious approach to problems,
some of which would perhaps be better solved in other ways. We
are looking at simpler and less costly ways of resolving disputes
for everybody, for example, by mediation where possible rather
than adversarial litigation, but it is necessary to address the
costs. The costs of legal aid rose by over 20% in real terms from
1993-94 to 2009-10. The last Government had stopped it rising.
I remember Ministers complaining that it has now become the fastest
rising single item in Government expenditure. We do have far and
away the most generous system in the world. Even if the changes
that we have proposed and on which we are consulting have the
effect we intend we will still have the most generous system in
the world, but in some areas we have to look at better ways of
resolving disputes. Certainly, the taxpayer should not pay for
unnecessary or pointless litigation.
Q3 Claire Perry:
Could you give us examples of some of those unnecessary or frivolous
forms of legal dispute? Clearly, there is a lot of talk about
ambulance chasing. The last thing we want to do is drive people
into the "no win no fee" model, if you like, which in
the past has been responsible for a lot of anguish, certainly
in the Committee. What are the examples where legal aid is being
granted vexatiously?
Mr Clarke: In all
areas of law sometimes you do have frivolous cases, but we are
not saying that all the cases on which we are cutting back are
frivolous. That is at its extreme. You provoke somebody to make
a claim which they would not conceivably make. There are such
things as ambulance-chasing lawyers who encourage people to make
claims which probably they would not make until they are told
that it would be paid for by the taxpayer. That is the fringe
of it; that is not our main target. The vast growth is particularly
in the family courts. I think that is where our changes are most
marked. There are lots of very difficult, emotional problems often
following the break-up of a marriage or partnership, particularly
surrounding the children. We think that in public law child care
proceedings it is terribly important to keep legal aid, but in
private disputes between parents over access, contact and so on
we are not at all sure that thousands of pounds' worth of lawyers
on one side or the other, or both, necessarily reduces the conflict,
resolves matters, and makes it easier to decide how the best interests
of the children are maintained and that both parents' rights are
respected. We are looking at mediation there where we think it
doesn't necessarily have a legal solution. There are other areas,
for example, education. You need the advice of educational experts;
you do not need adversarial lawyers necessarily to resolve it.
Welfare cases are a matter for the expertise of people who understand
the welfare system and get the right details out of the claimant
about his or her circumstances. To turn it all into litigation
has been done to too great an extent because people think of legal
aid and lawyers—lawyers' letters and lawyers' claims—and
those are the areas where I think change will come. Obviously,
it has to be reinforced by the courts, and that is why I have
a wider study of family law going on.
Q4 Claire Perry:
The Committee has heard evidence and many of us would agree that
mediation is absolutely the way to go, but does that imply, therefore,
that there will be increased funding streams for less litigious
ways of resolving disputes?
Mr Clarke: We are
continuing to fund mediation and we expect people to go to mediation
first in far more cases than has been the practice until recent
years. It has been growing steadily.
Q5 Claire Perry:
But will there be greater funding for increased levels of mediation?
Mr Clarke: I am
not sure we are increasing the total level of funding for mediation;
I am advised that we are maintaining legal advice for mediation.
Q6 Claire Perry:
We have a concern, again, that it is often the people who are
furthest from the justice system who might need help. It is not
the middle class, well-versed professional litigants we are worried
about; it is the people who come into the Citizens Advice Bureau
in Devizes who have real concerns and simply don't know where
to turn. My concern is that, if we are trying properly to divert
people out of the legal system and into mediation but not increasing
the funding for that, we will see a shortfall and people will
simply throw up their hands in despair and more people will come
to my surgery worrying about it. Have you considered assessing
the requirement for funding more mediation?
Mr Clarke: Our
aim is to maintain taxpayer support for precisely the vulnerable
people who most concern you. I share that view entirely. That
is what legal aid is for; it is to make sure that the less well
off and sometimes the less articulate are not deprived of proper
advice and advocacy in looking after their interests. The ordinary
working family, even the professional middle classes, tend to
fear litigation like the plague because it is very expensive and
most people find it very difficult to afford, but we cannot have
the taxpayer just stepping in, allowing everybody to litigate
each and every problem that life throws up. All our proposals
have been put forward with precisely the people you are describing
in mind but when they are facing serious problems, not when they
are being persuaded or induced to believe that a lawyer and litigation
might help them to get something they would not have asked for
which is not of fundamental or great importance to their lives.
Q7 Mr Buckland:
Lord Chancellor, just developing some of the points you made in
regard to special educational needs, you quite rightly made the
point that it should not be adversarial. We are at a position
now where the Department for Education is to issue its Green Paper
on SEN in February. I understand—this has been trailed by
Ministers in that Department—that they want to look seriously
at the whole adversarial system when it comes to appeals, particularly
those to the upper tier tribunal. That is important work. Would
you accept that that work needs to join up with the work being
done by your Department when looking at removing the scope of
legal aid for representation at SEN tribunals? How much joined-up
thinking is going on here so that parents don't end up being disadvantaged?
Mr Clarke: I believe
and hope that we are in close contact with the Department for
Education. I agree with the point behind your question, Mr Buckland.
We all encounter some of these cases in our constituencies. It
has always seemed to me that they are very legalistic almost from
the word go. I think that some of the voluntary bodies that help
parents, which is very important, tend to take a rather legalistic
approach. We have drifted into a tradition where it becomes very
adversarial. Is that the best way of resolving the very serious
and important question of how best to further the education of
a child who is suffering from some particular disadvantage? I
don't think it is. Underlying the whole thing is the question
of educational expertise that should be objectively applied, not
who has the best legal arguments and who can best master the process.
I think that the Department for Education and ourselves are going
in the same direction, both believing that it is an extremely
serious subject. There is no more serious problem for some families
than making sure their child is not disadvantaged in his or her
education by some special problem.
Q8 Mr Buckland:
I move to a slightly different issue relating to family legal
aid and what I will call the domestic violence test: in other
words, no legal aid unless domestic violence has been present
within the particular scenario. There is a problem, is there not,
because there does not seem to be a unified definition of what
domestic violence means? I think that in the guidance issued by
the MoJ there is one definition of domestic violence which looks
rather wide; it talks about violence against the family, which
could involve violence against children, but the definition that
has been agreed between ACPO, the CPS and the Government is a
somewhat narrower one and relates to violence between adults.
Would you agree that there needs to be a very careful definition
of what domestic violence means so that when decisions are made
about whether cases come into scope decision makers have very
clear parameters, practitioners know where the parameters lie
and we don't end up with appeals to funding review committees
with lots of adversarial arguments about whether or not cases
fall within scope?
Mr Clarke: I agree
with the points you are making; I can see all those dangers. We
are not consciously changing the definition of domestic violence.
We are retaining legal aid availability.
Q9 Chair: There
are several definitions of that.
Mr Clarke: That
is right. As Mr Buckland has said, there is no fixed and certain
one. I think he is right to say that we will probably have to
start developing this in practice when people say that a particular
case has an element of domestic violence and another one does
not. There are those who argue that domestic violence goes beyond
physical violence, but they become particularly difficult to define.
We are consulting. If I may say so, you raise a very real problem—if
we are restricting it to domestic violence cases, what exactly
is meant by "domestic violence"? I take on board the
point that we will probably need to be more precise in the definition
we are applying as long as we do not make it too pedantic.
Q10 Chair: Are
you not looking for an objective definition as opposed to one
which might appear to be a perverse incentive to allege domestic
violence as a passport to legal aid?
Mr Clarke: We have
thought about that problem. There is a risk that some people will
suddenly decide there is a domestic violence content to a family
dispute and they might not have said there was any domestic violence
if they could have got legal aid without alleging that. We will
just have to guard against that. Let's face it: the law is full
of occasions when you are trying to guard against being misled
by people who are colouring their claims or putting in something
that isn't genuine. That's life; that is what we are all used
to in courts and tribunals.
Q11 Karl Turner:
I think you said that we are particularly generous with legal
aid in this country, but is it not right that you compare us with
countries which use very different systems of law: inquisitorial
systems as opposed to our own adversarial system?
Mr Clarke: I agree
that some comparisons are open to that argument. If you compare
the cost per head with continental Europe I accept that people
could come back with the argument, "But that is not an adversarial
system." I am a supporter of our adversarial system in criminal
trials, ordinary civil cases and so on. Therefore, we have made
comparisons normally with Commonwealth countries with the common
law system. If you compare us with Australia, New Zealand and
Canada, the same figures emerge. Not only are we more expensive;
we are usually miles more expensive, although it may be—one
must be cautious with all the statistics in this area—we
are not comparing exactly like with like, but we are miles ahead.
The only jurisdiction anybody in our Department has been able
to find that is possibly more expensive is Northern Ireland. It
appears to have a slightly more generous system than either England
and Wales or Scotland. But the gap is quite substantial; it can
be quite a small number of pounds per head to over £20 per
head.
Karl Turner: I am not
sure that many publicly funded solicitors and barristers would
agree with that, but I am grateful for what you have said.
Q12 Ben Gummer: Lord
Chancellor, just following on from Mr Buckland's questions,
there seems to be an omission in scope and that is judicial review.
I wonder what attention is being paid to the rising cost of judicial
reviews, particularly given the fact that many areas of law where
legal aid is being removed, for instance in exclusions and SEN
tribunals, do end up as expensive judicial reviews.
Mr Clarke: We are
retaining judicial review in scope. The reason we propose to do
that is that you are talking about cases where the citizen is
challenging the state or one of its agencies—central or
local government or a quango—on some administrative decision.
It is key that no citizen should be barred from that, so we keep
it in legal aid. I share your concern, Mr Gummer, about the rising
cost of judicial review; it has exploded. Judicial review is really
a judge-made principle going back about a quarter of a century.
I have always defended it. With the modern Executive, with modern
Government, with the powers at the hands of officials at every
level in so many bodies, it is absolutely essential that every
individual citizen should be protected against aberrant or arbitrary
decision making, but it has exploded. Therefore, partly encouraged
by lawyers who are active in the field, no doubt with the best
possible motives, every time a decision is taken which any citizen
disagrees with, the next thing you are talking about is judicial
review. Leave is given for judicial review over and over again
in a vast number of cases by the courts.
We looked at that and shared all those concerns and
were driven back to the point I made when I started. If we start
saying that the legal aid authorities are to distinguish between
which people of limited means get legal aid for judicial review
for this but not for that, we will get into a complete nightmare.
Therefore, the proposals on which we are consulting are that we
keep judicial review in scope for all legal aid open to argument,
so perhaps in consultation you can find some way of restricting
it to get rid of the more trivial cases that does not give rise
to serious doubts about whether poor people will be stopped from
challenging what might be an arbitrary or unfair decision.
Q13 Ben Gummer:
To move on to the issue of litigants in person, Helen Edwards
in evidence two days ago said that the MoJ expected no additional
cost as a result of moving various areas out of scope. That seems
to be completely contrary to the evidence of a research paper
done by the DCA in 2005 which confirmed what seems to be the opinion
of every barrister and judge—I am not a barrister—that
litigants in person considerably extend the time taken in court.
Why does the Ministry of Justice seem to take a contrary view?
Mr Clarke: Broadly,
our expectation is that if there is an increase in the number
of litigants in person it will be balanced by a reduction in the
number of cases where people have decided not to proceed with
the claim at all, because they will not proceed with actions that
are no longer in the scope of legal aid. That is broadly the argument.
Otherwise, you are into a very uncertain area of prediction. I
doubt whether Helen Edwards denied that when you do have a case
of a litigant in person it takes longer. I have known in my time
very experienced litigants in person who did it as a hobby and
were very good; they knew what was relevant and got on with the
case. But I personally accept that every court dreads suddenly
discovering that there is a difficult case where one of the litigants
insists on appearing in person. I quite agree with your point
that it will take far longer, because not only is the litigant
not well versed in the law and procedure, but the main problem
is trying to get across to the litigant what is relevant to the
particular question before the court. I hope there is not a surge
in litigants in person, but in cost terms cutting scope will offset,
probably, any slight increased cost given the fact that some cases—we
don't know how many—might take a little longer because you
have litigants in person.
Q14 Chair: It is
not true at every level. One judge in the small claims court told
the Committee that if the parties in a case we watched had not
been represented it could have been concluded in half the time
it took.
Mr Clarke: That
is true of tribunals as well. I think that in some of the family
courts it is most helpful for the judge to listen to the actual
parents. Tribunals were designed with the whole point that you
would not need lawyers. I have been here even longer than you
have, Sir Alan. We probably both remember the debates about
employment tribunals. A great virtue claimed on all sides was
that you would not need lawyers making long addresses to the court
on both sides; it would be sensible men of the world sitting on
the tribunal who would listen to the two parties and give a ruling.
They take longer once you have great learned submissions being
made on both sides at a level that no one ever contemplated when
the tribunals were set up.
Q15 Ben Gummer:
May I ask one final question about the differential between the
criminal and civil bar? Everyone is aware of the pressures that
the criminal bar has been under over the last 10 years. Is the
Department sensitive to the considerable concerns that there are,
especially amongst the judiciary, about the quality of representation?
Mr Clarke: Yes.
My anecdotal experience is that all the judiciary complain that
the quality of representation is not what it was. How far that
is because the older generation always say that things are not
what they were in practically every walk of life I am not sure.
We are quite sensitive to the pressures that what we are proposing
will impose on the legal profession. They have already been subject
to considerable squeezes in recent years and the freezing of fees
and we have regard to that, but plainly it is not sustainable
to have a situation where such a high proportion of practitioners
are so dependent on so much legal aid for their living. The first
purpose of legal aid is not to keep up the numbers of the legal
profession but to provide access to law for the most vulnerable
in the most serious cases. I think the quality of advocacy is
being addressed. There is a lot of talk about addressing the quality
of advocacy which I am sure the courts and the professions themselves
will address if they are persuaded it is a serious concern.
Q16 Chair: You
talked a moment ago about tribunals not needing lawyers, but the
people who advise those affected in tribunal cases, for example,
if it is not done by lawyers, are often experienced people in
CABs, neighbourhood law centres and other voluntary organisations
who at the moment are assisted by contracts with the Legal Services
Commission. It is not clear from the statement so far how they
are going to be supported in this kind of work. Even though it
draws quite heavily on volunteers, there are perhaps still significant
costs and there need to be some full-time and well-trained people
to provide that kind of advice but not necessarily lawyers. How
are they going to fund it?
Mr Clarke: On employment
law trade unions provide a lot of advice, and employers can have
access to advice from the local chamber and so on. I think that
the role of citizens advice bureaux predominantly and other organisations
of that kind is very important. We will have to keep an eye on
the impact of changes generally. They are facing pressures mainly
because of the acute financial problems and the fact that there
are to be reductions in public expenditure. Not every citizens
advice bureau receives any legal aid funding; only some do, but
because of the changes we are making in scope I accept that citizens
advice bureaux may see some withdrawal of that.
We are not the Department that is the biggest supporter
of citizens advice bureaux; the main source of grant aid to CABs
is the Department for Business. I think that most citizens advice
bureaux also look to their local authorities overwhelmingly to
provide finance. I am conscious of the problem. I think that the
role of CABs is becoming more important, not less. All of us as
MPs are conscious of the fact that if you have a good citizens
advice bureau, which I happen to have in Nottingham next to me,
it is quite important to the people we are talking about. Therefore,
the Government as a whole is trying to deliver that; it is part
of trying to ensure that the necessary reductions in public expenditure
don't bear down too heavily on parts of the voluntary sector that
need financing as long as they are efficient. But I think that
legal aid was extended to them less than 10 years ago and it is
not the principal source of the funding of CABs.
Q17 Claire Perry:
The welfare and benefits system has become incredibly complex;
I welcome our proposals to simplify it. I too have excellent CABs
in Devizes, Pewsey and the central Wiltshire area. I send to them
lots of cases where people are struggling with a very complicated
welfare and benefits system. I believe that that tribunal advice
in particular is funded through your support for those organisations.
I would like to make a plea for unring-fencing as a minimum so
that the very valuable services they provide do not have to be
cut to comply with the budget cut for one Department versus another.
I think it is the joined-up nature of the advocacy they do that
is so vital for so many people. I worry that what we will do is
simply divert people away without support.
Mr Clarke: I accept
the underlying point. I don't think legal aid should be the major
source of their income. It goes into the general pot; it is not
legal advice that a lot of their clients need; it is debt advice
and a much wider range of general well-informed advice that they
require. Ministers collectively are concerned about this. We have
been in touch with each other and we will have to see what we
can do with citizens advice bureaux, which at the moment are mainly
alarmed by what local authorities are doing to them. We must look
at that.
Q18 Chair: You
should hear the ones that are having problems with the Legal Services
Commission.
Mr Clarke: I quite
accept that the Legal Services Commission and its successor will
withdraw a great deal of the legal aid funding that at the moment
goes to tribunal work and so on that we are taking out of scope.
We have to make sure that one way or another the right level of
advice, as long as it is provided efficiently, is available for
the whole range of family, employment and debt problems that take
so many citizens to the citizens advice bureau which serves a
very valuable function.
Q19 Mr Buckland:
You have answered the point about CABs, but may I press you on
law centres, the majority of which will have their funding from
the LSC? The Wiltshire law centre in my constituency has about
£400,000 of funding for welfare, debt and housing advice.
Quite rightly, they are worried about their future funding streams.
Without law centres we will have advice deserts when it comes
to those areas of advice and representation. I would like to press
you about how we can make those law centres viable in the future
and whether we must have a special arrangement or a different
way of looking at funding them, as opposed to funding them per
head of type of case, because of the invaluable work that they
do.
Mr Clarke: We will
consider that as part of the consultation and I accept that they
are an important part of the picture. Law centres are not universal.
There are some law centres across the country, so it tends to
be a local thing. The first thing we will discover is the impact
on particular law centres of the changes in scope that are proposed.
Assuming it is a good law centre that is delivering efficiently—in
my limited experience of them they are a bit variable in quality—we
will listen to their representations. Obviously, what we cannot
do is start altering the scope to make sure that particularly
law centres are protected if it undermines our intention of concentrating
the reduced amount we intend to continue to spend on legal aid
on the more serious cases.
Q20 Chris Evans:
The Jackson review endorsed before-the-event insurance. In what
specific cases do you think that would be most effective?
Mr Clarke: I don't
think there will be a huge take-up of before-the-event insurance,
but at some stage we will try to discuss this with the insurance
industry to see if people can be made more widely aware of it.
The trouble is that people don't think they might be involved
in litigation so they don't think of taking out insurance beforehand
on the off-chance they would. But it is available on a limited
scale. It doesn't cost you much if it is added to a household
or similar policy. It would be interesting to see whether, in
reaction to the changes that we are making following Jackson's
recommendations, a market is stimulated for before-the-event insurance.
That would have to be considered with the insurance companies
to see whether they can produce a product which they think they
can market.
Q21 Chris Evans:
If you introduced it, would it be a licence to print money for
the insurance companies?
Mr Clarke: One
relies in the insurance business as in others on competition,
so I trust it will not be a licence to print money. Insurance
is not an easy business to make money because the rise and fall
of claims is unpredictable. I hope not, but my view is that before-the-event
insurance is worth exploring. Contact with the insurance industry
will make one more aware of whether it is likely to take off on
any scale.
Q22 Chris Evans:
What specific steps could you take to stimulate the market? Have
there been any discussions with the insurance companies about
stimulating the market?
Mr Clarke: I haven't
had any direct contact, but we have talked about having contact
with the Association of British Insurers. I don't know whether
any official in my Department has. We undoubtedly will at some
stage as part of the consultation on the Jackson proposals.
Q23 Chris Evans:
How would you respond to criticisms that it is usually sold as
an add-on or an afterthought and fails to cover specific circumstances
when it is likely to be needed?
Mr Clarke: Before-the-event
insurance?
Chris Evans: Yes.
Mr Clarke: Yes.
I am sure that the scope of cover provided isn't totally comprehensive.
Frankly, I haven't considered the case; I don't have a strong
view on whether what is provided at the moment, which is very
limited in scale, meets what would be desirable to make sure that
people cover themselves for the eventuality.
Q24 Chris Evans:
You say you do not have a strong view on it, yet in the past you
have supported before-the-event insurance. How have you arrived
at this support if you do not have a strong view on before-the-event
insurance?
Mr Clarke: We support
it, and it may grow. It is worth exploring and discussing with
the insurance business. That is where I am on before-the-event
insurance. I don't think we have ever held it out as necessarily
something that is likely to take off as a total alternative solution
to the problems of changing the nature of "no win, no fee"
at the moment.
Chair: We will turn to
Magistrates' Court closures.
Q25 Mr Llwyd: Yesterday's
announcement was greeted with great dismay by many Members of
Parliament and many people outside. In his response to the consultation
the Lord Chief Justice suggested to the Ministry of Justice that
more information was required on 79 of the proposed 157 court
closures. What further information was sought by the Ministry
of Justice before it took the decision announced yesterday?
Mr Clarke: The
Lord Chief Justice was not trying to usurp decision making in
this field. What he and others did was to pass on the comments
and concerns of the judiciary, in his case, across the country
about particular things. The whole point of the consultation we
carried out was to see whether people thought we were putting
forward the right information and to collect more information.
The impact assessments that will now be available have been brought
up to date, in some cases no doubt changed, in the light of the
response that we got. I think the process that we undertook once
we announced we were consulting was quite exhaustive—far
more exhaustive than would have been followed 20 years ago in
cases of this kind. The result was that before taking the decisions
we were, I have no doubt, much better informed than when we started.
That was the whole point of the process.
Q26 <Mr Llwyd:
He did say, did he not, very strongly in terms that 32 of the
courts should have been retained? Was there any further consultation
or dialogue with the Lord Chief Justice before the announcement?
Mr Clarke: I have
quite regular contact with the Lord Chief Justice but we did not
ever get into court-by-court conversations. He made his representations
really collating the views coming in across the country, but I
am quite sure the Lord Chief Justice didn't believe that somehow
he would lay down some ruling, target or decision on exactly how
many had to be closed. I don't think anybody has challenged the
general idea that we need to readdress the underuse of the Court
Estate and the quite inadequate state of some of it.
Q27 Chair: I think
it is slightly misleading to suggest that the covering letter
sent by the Lord Chief Justice was in the form, "Here are
some views which have been passed on to me that I thought you
might like to see." They seemed to me to be general concerns.
Mr Clarke: No;
all right, but that was what it was based on. The underlying information
was a collation of what had come in from all over the country.
We had got a lot of it ourselves directly.
Q28 Mr Llwyd: He
also gave evidence to this Committee and was very forthright in
suggesting that certain courts should be kept open, one of which
happened to be in my constituency.
Mr Clarke: At Pwllheli?
Mr Llwyd: Yes.
Mr Clarke: But,
quite interestingly, there were local people who supported the
closure of Pwllheli. I am sure you will admit, Mr Llwyd, that
the facilities or usage at Pwllheli are not the best and most
up to date.
Q29 Mr Llwyd: Since
we are talking about a Welsh court, may I put it to you that your
figures for back maintenance costs of Welsh courts were an absolute
fantasy? I had to table two parliamentary questions and eventually
found that the figures were inflated by over 150%. Do you call
that a reasonable consultation?
Mr Clarke: First,
I will admit that I do not have in my head figures about maintenance
backlogs on courts in Wales, but it is a perfectly relevant consideration
when it comes to looking to the future of the Estate. If better
information was produced, that's fine. It sounds as though it
was before the decisions were taken and as part of the consultation.
Consultation is not flawed if, when you go out with your draft
proposals and the best evidence you have to support them, people
come back and point out that some of it is wrong. We did take
into account the information that came back to us before taking
the final decisions. This probably isn't the time and place to
go through it court by court in Wales and I understand there is
anger in some sections of the population, but opinion on some
of them was divided. For some of the Welsh courts we got positive
support for closing down what were old-fashioned, out-of-date
and underused courts.
Q30 Mr Llwyd: You
said earlier on that it was such a detailed consultation compared
with what would have happened 20 years ago. I am saying to you
that the Welsh consultation was predicated on a load of nonsense
in terms of the figures.
Mr Clarke: I am
pretty certain you put that in quite pointedly the moment you
discovered that the proposals were made. What happens when people
claim that is that you go back and re-examine what you believe
is the case for the proposal.
Q31 Mr Llwyd: I
do not want to reargue the case now, but the point is that it
took two different parliamentary questions to obtain adequate
information from your Under-Secretary. Initially, the inflated
figure was 150% higher than what was discovered after the second
parliamentary question was answered. That's not very good, is
it?
Mr Clarke: I hope
you concluded by reaching agreement with the Parliamentary Under-Secretary
of State on what figure was relevant for arrears of maintenance.
Q32 Mr Llwyd: I
do not know upon what basis they were arrived at anyway, which
brings me to another question. It is alleged that the £41.5
million savings exclude closure costs. How much will these closures
cost?
Mr Clarke: Off
the cuff, the short-term cost of the closures is a little over
£20 million.
Q33 Mr Llwyd: Therefore,
yesterday's statement was not exactly forthright, plain and honest
because it should have been £21.5 million, should it not?
Mr Clarke: I was
there for yesterday's statement. I don't think anybody held back
the fact that there was a cost of closures. If you go to the costing
as a whole, you have to draw a distinction between the long-term
continuing savings resulting from the fact that you are no longer
maintaining a building, there are savings in staff costs and you
are no longer facing the risks of large maintenance bills against
the one-off costs that tend to be incurred when you first go into
closure.
Q34 Mr Llwyd: What
weight was given to the impact on police time in regard to Magistrates'
Courts closures and, I add, the extra travel time incurred by
the Probation Service, legal aid lawyers, victim support, etcetera?
Mr Clarke: In each
and every case that was a perfectly relevant and important consideration.
It cut both ways court by court across the country. In some cases
the police and prosecution were quite keen to see courts closed
because they had to keep travelling to remote courts in inconvenient
places. For others, the police and Probation Service would come
up with the opposite argument and talked about the inconvenience
of having to go further. In each case what you have to do is weigh
up a whole lot of factors before coming to a balanced view of
how best to provide a modern, efficient court system. Certainly,
we had to have regard to the views of all those agencies that
support the courts on the impact it might have on them. The main
thing we want to do with police and probation is cut down the
amount of court attendance anyway. Proper use of video conferencing
and virtual courts and better management of cases so that abortive
hearings are minimised are all things to which we attach great
importance and which we will pursue.
Q35 Elizabeth Truss: Lord
Chancellor, I also have a Magistrates' Court that is to be closed
in Thetford, in my constituency. I am particularly interested
to understand how the court closures fit with the devolution agenda
in terms of where the decision is being made and also how we improve
the efficiency of the overall criminal justice process within
that. Is it being considered in the light of the overall devolution
agenda, payment by results and so on, and how does that fit together?
Mr Clarke: I agree
that the localism and devolution agenda is extremely important
and has to be applied to courts in context. Most members of the
public rarely go to court in their whole lives. One can meet quite
a lot of people who have never been to a court in their lives
at all as a witness or in any other way. It is not like a post
office or the village pub; it is not something that people associate
with their daily lives. Large numbers of witnesses or members
of the public when they do go to court find themselves in very
unsatisfactory conditions. There is no proper place to wait; you
hang around all day; the victim's family is muddled up with the
accused's family and all of the witnesses are standing around
as well. The facilities can be good or quite primitive; and far
too many people find themselves towed along to a court for an
abortive hearing and must go away and come back on another day.
All those things need to be addressed. Although I am laying on
the failings where they exist in the worst of the system, the
fact is there is no point in keeping all that on the basis that
it is all part of local justice; it is not. It is a system that
requires modernising and needs to be more efficient. People are
now used to doing things on the telephone. If you have proper
video conferencing facilities they will handle things more effectively.
Norfolk had a lot of courts and there was a range of opinions
on how best to provide the best facilities.
Q36 Chair: If you
look at counties like Northumberland, there are large distances
left without courts. Distance does not seem to have been a big
factor.
Mr Clarke: I don't
claim that everybody is within 60 minutes by public transport;
we didn't achieve that, but we had set that as an aim. I accept
your obvious knowledge of Northumberland. There are places where
we haven't quite made it, but we did have regard to that. In most
cases, the overwhelming majority of the population will be within
60 minutes of a court, but in scattered rural areas it was tricky,
so Wales and Northumberland were difficult.
Q37 Mr Llwyd: Have
you considered the effect upon the magistracy? In other words,
it has come to my knowledge that many people now will either resign
in the patch that I am referring to or good people will not put
their names forward to travel an hour and a half to a distant
court they know nothing about.
Mr Clarke: I hope
that doesn't happen. A lot of the responses to the consultation
were, not surprisingly, from magistrates who wished to retain
the courts with which they were familiar and associated themselves
and so on, but I don't think justice will lose its local quality,
not least because the magistracy is a unique and very important
institution in which local lay people from a wide range of backgrounds
volunteer to contribute to justice. I am not talking about any
particular case. Quite a lot of the complaints I received about
particular courts, even round the House from Members of Parliament,
were about inconvenient journeys. I don't know Wales so well,
but I am pretty certain that in many cases most of their constituents
made those journeys quite frequently, because the places that
they objected to the distances of were ones that most of the population
went to shop and for practically every other local purpose in
their daily lives.
Q38 Chair: You
can't say that about Bedlington.
Mr Clarke: People
sometimes lay it on. Salford and Manchester is the classic example.
You can walk from the Salford court to the Manchester court. I
believe that the Manchester court—I am open to correction
by Hazel Blears—is nearer Salford railway station than the
Salford court. People did slightly exaggerate the distances being
brought in, but before you all come back at me I quite agree that
Northumberland, Wales and Norfolk are somewhat different.
Q39 Chair: If a
bench of magistrates decides that it is becoming rather remote
from some part of its area, is there any reason at all why it
should not decide to convene in another town and hold some hearings
there, either because the court room happens still to be there
because it is being used by the coroner and others or because
there are other premises which are reasonably suitable for the
purpose, especially if the case does not have some of the difficulties
to which you have referred? My assumption is that they do have
the legal power to do that. Is that the case?
Mr Clarke: There
is no objection to that in principle. It has been considered and
it will continue to be considered. You run into arguments about
security and suitability, because you expect a modern court to
have a reasonable level of security—somewhere to hold the
accused sometimes and the ability to separate out the various
witnesses and so on, so that they are not all thrown together.
We will look at that. The irony is that the idea that the Magistrates'
Court sits in the local pub, or above the police station, is what
the whole system has spent the last 50 years trying to get away
from by modern, purpose-built courts, but if in the interests
of localism the magistrates can find some practical means of finding
more informal court settings I certainly would not be against
it.
Q40 Chair: But
that is where many of the courts are. Many of the courts that
you are closing are in fact on top of police stations.
Mr Clarke: Quite
a few are on top of police stations. There used to be some very
primitive ones on top of police stations. There are a few left
that are on top of police stations. I am sure that at one time
it was thought to be frightfully important that we got away from
these rooms above police stations which were thought to be inadequate
for the purpose.
Q41 Elizabeth Truss:
In response to the point about people not going to the court in
the way they go to the post office, should not one of the objectives
of the justice system be greater openness and justice being seen
to be done so people are able to go into court and see the proceedings?
I feel that too often justice is something that people believe
is very distant; they do not necessarily have confidence in the
system. Would not people have more confidence if courts were more
open and they could see what was going on?
Mr Clarke: I agree
with all that. I think public confidence in justice and the transparency
of justice is a perfectly sound agenda. I was merely pointing
out that when it comes to inconvenience of travel, 99% of the
population don't have to make such a journey more than once or
very occasionally. It's not something that most of us hope to
do very often. Most people don't find themselves inside the local
court and large sections of the population have probably never
been in the local Magistrates' Court in their lives.
Chair: We need to turn
to sentencing issues.
Q42 Mr Buckland:
I want to talk about the rehabilitation revolution with particular
reference to cross-departmental working, Lord Chancellor. The
area of great interest has been mental health diversion, whether
it be at the police station or, most importantly, at sentence.
I will give you an example with which you are probably very familiar,
but it is important to put it on the record. The Criminal Justice
Act 2003 created a community order with a mental health rehabilitation
condition. It is hardly ever used because there is just no provision
available. Therefore, a judge will not have that option open to
them on a pre-sentence report. I note that the Green Paper makes
reference to it and talks about piloting. What degree of work
has been done with the Department of Health on that issue? For
example, has there been any economic modelling so that we have
an idea of the unit cost of these proposals so that sentencers
are in a more informed position going into the future?
Mr Clarke: It is
absolutely essential that we work very closely together. Andrew
Lansley and I and our colleagues are working very closely together
on commissioning for the mental health services which people in
prison and offenders require, but also on developing our proposals
for diverting into either secure or community services those who
ought properly to be diverted because that is the best way of
minimising the risks of future criminality. We haven't reached
the stage where we can start to produce any economic modelling.
Obviously, we are both working on that within our respective budgets,
but there is no problem between the two Departments. Both Departments
give very high priority to developing this. As far as I am aware,
it is widely accepted that at the moment we have too many people
in prison suffering from mental illness. The services are probably
much better than they used to be, but in many cases it's not the
best and most adequate service one can provide now and the public
would be better served if we tackled the mental health problems
more effectively.
Q43 Mr Buckland:
At the moment if you have an acute problem, beds are available
under the Mental Health Act. Very often we are putting people
with, frankly, less acute problems into that particular regime
inappropriately, and it is in the community provision that is
desperately needed. Cutting to the chase, by, let's say, 2014,
the end of the review period, will sentencers be in a position
where they will have as part of their menu of options mental health
treatment as part of a community order?
Mr Clarke: I hope
so. As you say, they do now but it varies enormously. In the end,
everything depends on the local availability of service, the better
flow of information to sentencers and making sure that commissioning
is joined up—that there isn't a difference of approach between
commissioning for offenders compared with commissioning for the
general population, certainly in terms of tackling the mental
health element of their problems.
Q44 Chair: Are
you having a tough time with some of these issues? Do you have
cross-Cabinet support and understanding of the kind of gains that
you seek to make?
Mr Clarke: Total
cross-Cabinet support. I don't know about having a tough time.
I am used to having a tough time; it is the reason I enjoy doing
it. I have never had a popular policy to implement in my life,
but the mainstream part of this one is largely popular. As to
support, the Government is run on particularly collective lines
and it is run very well collectively, so all the policy, including
the documents I have consulted on and announcements I have made
on the courts system, legal aid and sentencing, have been cleared
by all my colleagues. They have been discussed in Cabinet Committees
and with the Prime Minister. It is all clear. There is no dissent.
I have not been producing this in isolation in the Ministry of
Justice and waiting to disclose it to my colleagues until we have
thought it through. This is a collective approach. The mainstream
of the policy does not seem to be attracting any great resistance.
I have been complaining about the very high level of reoffending
and the failure of the system to reduce it. I have been emphasising
that we should develop, therefore, ways of tackling this. That
takes one into areas like mental health, drug and alcohol abuse,
failure to train and prepare people for employment and so on.
It's not possible in this world to have something that is nem
con, but I am not aware of any great criticism of that. Therefore,
it's right to give that priority. Of course, there's criticism
of some parts but they don't come from within the Government and
they tend to be rather theoretical arguments that the drift of
this, which we estimate will lead to some reduction in the prison
population, is somehow flawed because it might lead to a reduction
in the prison population. I regard that as a rather fringe view
and it is not one that is going on inside the Government.
Q45 Chair: Are
some parts of the Government less willing to take on uninformed
press comment than your Department?
Mr Clarke: I am
sure that every member of the Government is perfectly willing
to take on uninformed press comment from wherever it comes.
Q46 Claire Perry:
Would you, therefore, like to put on the record that you share
my view that prison works often but is not the total answer to
securing rehabilitation?
Mr Clarke: Yes.
Prison works as a place for sentencing people. It saves people
from crime while they are inside; where it is failing is that
too many people released from prison reoffend. That has been my
mantra all the way through. When I heard this morning that apparently
the Home Secretary had disagreed with me I looked at what she
said.
Claire Perry: She agrees.
Mr Clarke: She
said exactly the same things. One doesn't want to turn it into
a mantra, but prison is the right punishment for serious criminals.
Prison does give some relief from crime while they are inside.
Prison at the moment is not succeeding in getting reoffending
rates down to where they are, which is why we have rehabilitation.
It isn't even my policy originally. I have got very enthused by
it. The only two new things I am seized of are the priority of
reoffending and then payment by results for rehabilitation. They
are the two things that we are seized of. Most of this comes from
opposition when I was not shadowing this situation. I was aware
of the work of Nick Herbert and Edward Garnier; I read the document
they produced on prisons which they labelled a rehabilitation
revolution. Certainly, as far as our party is concerned, it is
a steady and consistent development. I haven't met a Liberal Democrat
who disagrees with it. So that is where the coalition is. I don't
mind people from outside attacking me and I am happy to carry
on an argument about the drift of policy over the last 20 years
backwards and forwards and what people thought of it, but it isn't
at the heart of the Government's policy and there isn't any disagreement
on the Government's key policy.
Q47 Chair: I hope
you are also aware of the work done by members of all three parties
on this Committee in the report on Justice Reinvestment which
set out in detail some of the things on which you are currently
working.
Mr Clarke: The
statement in the House of Commons went surprisingly well. I came
out of the statement in the House of Commons quite satisfied that
it had gone much quieter than I expected—that the overwhelming
majority of people from all three parties did not disagree with
any of this, which is very encouraging, yet it is all rather challenging
in these times. Sections of the press flared up afterwards, but
that was on a totally different angle.
Chair: I am going to change
slightly the order in which we proceed and ask Mr Turner to come
in at this point.
Q48 Karl Turner:
Lord Chancellor, there have been many attempts by the previous
Government to reduce custodial sentences. In my experience judges
in the Crown Court and lay magistrates and district judges in
the Magistrates' Court do their very best to avoid sending people
to custody. It is very often a last resort. What do you think
the judiciary should be doing to deal with things and how you
think their discretion can be increased?
Mr Clarke: First,
I agree with your analysis, Mr Turner, but for that reason. For
example, I have never advocated that we abandon short-term prison
sentences. Every sensible magistrate will tell you and me that
usually you have to sentence people to a short term of imprisonment
when everything else has been tried and there is no way you can
deal with them and protect the public without imposing a short
prison sentence. What we all expect every level of the judiciary
to do is to send people to prison when it is essential to do that
for public protection. In some cases it is obvious because of
the severity of the offence that they have committed; in others
you form a judgment as to whether it is really acceptable to deal
with them in any other way and whether there is any alternative
from which they are likely to benefit.
The policy is not based on some general objective
or target of reducing the number of people in prison. What I think
has been the unintended explosion in prison numbers in recent
years has to be stopped and contained for financial reasons. The
last Government was solemnly planning for 95,000 prisoners by
the end of the Carter review period. The prison population exploded
so quickly during the last Government that they wound up having
to let people out before they had finished their sentence because
they had nowhere to put them. We are quite determined to avoid
a system of early release to make room for newcomers in the prisons.
If we manage to stabilise the population at that population which
must be in prison for the protection of the public, that seems
to be an intelligent and sensible development of policy. But I
share your description of how the bench approaches it at every
level; I agree with you.
Q49 Karl Turner:
In relation to indeterminate sentences I agree with what you say
in the Green Paper. I think I am right in saying that currently
over 3,000 people are serving indeterminate public protection
sentences who are past tariff point. First, why did you not do
away entirely with IPPs? Quite honestly, I do not think they work.
Secondly, what will you do about reviewing those people who are
still serving IPPs? Can you not deal with that situation?
Mr Clarke: We have
over 3,000 who have finished their punitive sentence. We have
about 2,000 who are post-tariff. Since the system started, only
190 have been released once they have an IPP. This isn't remotely
what anybody ever intended—that we have a growing population
of people sitting in prison without the first idea of when or
if they are to be released. They are told they will be released
if they can satisfy the Parole Board that they are a minimal risk
to the public, but it's quite difficult to satisfy anybody when
you are sitting in prison serving your sentence. So I think it
cries out for reform.
You suggest total abolition and you are not alone;
there are quite a lot of people in the legal system who think
they were a mistake and should be abolished. The reason we decided
not to do that was that some of these 3,000 cases—neither
you nor I would deceive ourselves—are quite dangerous and
serious high-risk prisoners, so they are not 3,000 easy people.
To let them out suddenly without any assessment and say they have
finished their sentence would have been unacceptable. We are going
to address how the Parole Board should now deal with these 3,000
people. Is the present test a very difficult one for anybody to
discharge? Should we expect the Parole Board to assume a level
of risk which is one they probably can't feel about anybody in
prison before letting them out? That is how we hope to get back
to an IPP system which— We are going to keep an IPP system
but for the most dangerous people—those for whom Parliament
originally intended it—a very much smaller number of people.
That is where we are. Again, we are likely to have support for
that because nobody who argued in favour of IPPs can really claim
they expected it to produce what is now being produced. It wasn't
what anybody intended.
Chair: I want to move
on to an important innovation about which we need to question
you particularly.
Q50 Elizabeth Truss:
Lord Chancellor, I was interested in the rehabilitation revolution
and the evidence that has been collected internationally about
how successful these types of strategy are. Perhaps you could
highlight any particular countries that you think have successfully
undergone this kind of change.
Mr Clarke: There
is a lot of very good rehabilitation work done now in the Prison
Service itself, by the Probation Service and by a vast army of
volunteers or charitable bodies which in different ways, usually
at a rather local level across the country, do work with offenders
and ex-offenders—sometimes with all offenders and ex-offenders,
sometimes with people who have taken drugs or been involved in
alcohol abuse or whatever. We hope to give further incentive to
that. I can't name a country—it is an interesting question
and I will try to find out—that does spectacularly better
than we do. I also don't know whether anybody anywhere has tried
to use payment by results to quite the extent we intend to do
to stimulate the best of all these efforts. What I like about
payment by results is that we will pay for what works. What delivers
the outcome you want will grow more rapidly and what was well-intentioned
but fails to deliver the outcome will not get the payment from
the results that are achieved. We are extending it outside the
criminal justice system as well; we are using a similar approach
to drug dependency problems amongst the non-offending population
as well as offenders. I don't know. As far as I am aware this
is not based on an international model.
Q51 Elizabeth Truss:
My understanding is that reoffending rates can often be very persistent.
Mr Clarke: Yes.
Q52 Elizabeth Truss:
Some efforts can be made to drive them down but once you get to
a certain level it is difficult.
Mr Clarke: I quite
agree. I am being slightly frivolous in saying that I do not underestimate
the British criminal classes. There is a section of the inhabitants
of prison who are dishonest or violent people and, whatever you
do, some of them will have to be locked up because they will come
back. We have to be real. When we look at the fact that 50% of
prisoners reoffend within 12 months, we are probably talking about
whether we can get that down to 40%. Some of the voluntary bodies
make amazing claims for what they can do on reoffending and would
far exceed that, which is fine. We would wind up paying a lot
of money to help them with their efforts. I am a bit cautious
about the figures. I have to say that I think to take reoffending
down from 50% to 40% will probably prove quite challenging. I
hasten to say it is not a target; I just want it to come down.
But there would be considerable public benefit from that. It will
still leave you with your 40%. They are villains and they are
people who will keep being sent to prison because the public expect
them to be sent to prison for punishment and to give them a break
from their activities.
Q53 Elizabeth Truss:
If after a few years of trying this approach we find that there
is a rise in crime, would you be willing to relook at the policy
and change the approach?
Mr Clarke: Presumably,
every Government looks at policy when crime is going down and
up. When crime goes down the tendency is for the Government to
claim credit for it; when it goes up the Government of the day
says it is nothing to do with them and it is a matter beyond their
control. Crime is very difficult to predict. The statistics are
in my opinion very unreliable. It is one of those areas of debate
where the statistics are used more casually, shall we say, to
support certain arguments than most. Obviously, the aim of policy
is to drive the level of crime downwards, certainly relative to
what it would otherwise be compared with other factors. The difficulty
when you look back and try to analyse it or decide what's happening
at any given moment when it moves is that there is no certainty.
Political debate tends to lead to people making absolutely crystal
clear, simple assertions; we have to in order to engage in public
debate. No area is more complicated in terms of working out cause
and effect—what actually is causing a crime to rise or fall—than
law and order, and people will tend to argue what suits their
case. I have my case; you know what I believe or I don't because
of what I am asserting, but I tend to qualify it by saying, "but
you can argue it either way and you can't prove it either way."
That is the more sensible resolution to the debate.
I remember years ago a recorder of Birmingham who
claimed to have saved the telephone boxes of Birmingham from having
their boxes broken open by his savage sentences at Birmingham
Quarter Sessions. Somebody pointed out that the Post Office had
just changed all the boxes and put in secure ones that the guys
could not get open. He still believed that it was his sentences
that saved the coin-boxes in the phone boxes of Birmingham.
Q54 Elizabeth Truss:
When the Permanent Secretary of the Ministry of Justice appeared
before the Committee on Monday he told us that prison numbers
and the capacity designed were predicated on the policy working.
What happens if the numbers do not come through? What is plan
B?
Mr Clarke: Plan
A is to have an adequate cushion; that is what central planning
has. You obviously plan policy on the basis that you will achieve
your best estimate of the outcome of the policies that you are
following, but I am sure he also explained that the number of
residents in prisons at any time has a cushion above it in terms
of capacity. At the moment I think there is a gap of 3,000 or
4,000 between the number and our capacity, but you can't count
on that because it varies quite unpredictably and you just need
an adequate cushion.
We are still building new prisons; new supply is
coming on stream in the next year or two. We hope to get rid of
some of the older, less suitable and more costly prisons which
in part will be replaced. But in the end you have to keep an eye
on numbers. That was what caught out the last Government. I think
they had done a lot to provoke the rapid increase that was taking
place in the numbers in prison and then it overtook them. There
were good stiff sentences which people were not serving in full;
they were having to be released before the end to make way for
others.
Q55 Chair: How
can you be confident that there will be enough providers of payment-by-results
services prepared to take the considerable financial risk involved?
Mr Clarke: That's
what we are testing. We expect to have at least six pilots starting
next year. As soon as we took office I started getting in touch
with potential providers from the private sector, the not-for-profit
sector and charities—I had a look at what is happening in
Peterborough which keeps being cited—to try to gauge the
level of interest. Our judgment is that there is a very great
deal of interest. Obviously, there is a lot more work to be done
to produce a proper framework contract which can be used for a
whole variety of providers that meets the policy need and gets
people satisfied that they will be paid properly for their success.
Q56 Chair: Do you
recognise this situation: that when a sentencer is sitting on
a bench as a judge or magistrate he knows that if he passes a
custodial sentence there will be a van outside ready to take the
person away and that, however difficult the situation is, a place
will be found somewhere, whereas if he wants to do some other
form of sentencing, for instance if he believes that alcohol or
drug treatment is central to dealing with that person, he will
have to inquire whether there is adequate provision locally, and,
if not, the default option is prison, whether or not it is most
likely to reduce the reoffending potential of that person?
Mr Clarke: That
was why I said effort is put into providing the best information
and range of options for sentencers one possibly can. That is
what half the support services devote themselves to. I would have
to agree with you; that is exactly what the person imposing the
sentence must be satisfied of. What we hope to do is give courts
a good range of credible options so that in the judgment of the
person passing the sentence they choose the thing in the public
interest because it is most likely to deliver the outcome of less
reoffending.
Chair: There are a couple
of quick points before you are saved by the bells. We will go
through the first bell and then the second one.
Q57 Ben Gummer:
Lord Chancellor, I think there is an emerging consensus across
the House of support for your proposals. I also think that this
is an eminently winnable argument with the public. It is made
more difficult by the rather lunatic application of the human
rights agenda within prisons. We had one recently about the name
a prisoner might be called, on which I invite you to comment.
In a youth prison local to my constituency prisoners will throw
their televisions out of windows and claim to self-harm the next
day unless they get a television back. All of this undermines
public confidence because it is associated with reform. I wonder
whether you could comment on that broadly.
Mr Clarke: I agree.
Briefly on the wider point you quite rightly raised, it is true
that the areas of human rights and health and safety both arouse
a great deal of scepticism amongst the public because they get
cited in such ridiculous situations. Actually, I don't know anybody
who is not in favour of promoting health and safety; and I have
not met anybody who will admit that they are flatly against the
application of human rights. Usually, it is not the courts; it
tends to be officialdom, circulars, advice, consultants and insurers
who make the daftest possible claims about what is necessary in
the name of health and safety and human rights and then produce,
as you say, widespread public disapproval. We have to address
these cases and make sure we stick to our human rights obligations
but that the words aren't debased by being applied to ridiculous
claims by ridiculous people who get themselves publicity by getting
them taken on. As to Mr Gunn, he is a serious local criminal from
my part of the world. He is quite good at getting himself publicity;
he seems to enjoy that nowadays.
Q58 Chair: Does
he call you Mr Clarke?
Mr Clarke: What
he is called doesn't seem to be a matter of huge importance. He
seems to be so unpopular that if he wanted to be called by his
Christian name, which I think is Colin, no doubt the press would
have objected to such friendly greetings and would have preferred
that he be called Mr Gunn. Mr Gunn and his media advisers seem
to regard the matter as of huge importance. He is not a person
I hold in very high regard and I am very glad he is in Belmarsh.
Q59 Claire Perry:
Perhaps I may also return to the revolution agenda, if you like,
although perhaps it is a little early to call it that. I think
there is a huge appetite, as you say, on the part of providers,
in particular the St Giles Trust and other organisations, that
are doing such good work and proving that their interventions
really do reduce reoffending. How can we get that common-sense
approach and break down some of the institutional barriers, particularly
those potentially coming out of the Probation Service, to make
sure you can scale up those contracts and start to see some measurable
results? I fear there will be such resistance lower in the system
from existing organisations that we will not be able to get the
results we really need.
Mr Clarke: I agree
that is quite a danger and has been a bit of a problem in the
past. I am told by various people who have done work in this field
that sometimes this is quite difficult. A lot depends on the governor
of the local prison or the attitude of the local probation trust.
We have to make sure that unnecessary obstacles aren't put in
the way. I think there is a changing climate. To go back to the
first work on the rehabilitation revolution, we have focused attention
and raised interest in this field in a new way, and where there
are obstacles put in the way of a bureaucratic kind we will have
to get rid of them. It is a danger to be aware of and I hope it
will be reduced. The best probation trusts are not remotely resistant.
We have to make sure that the general atmosphere throughout the
Probation Service is that this is not a threat but something of
an opportunity, because they can be paid out of the savings; they
can participate in these schemes just as much as anybody else.
Q60 Chair: There
is a bit of confusion about the role of the Probation Service
as to whether it is a provider or a commissioner.
Mr Clarke: Yes,
I agree; we are working on that. We have to be absolutely precise
as to who is commissioning these things at what level and we have
to be absolutely clear about the basis on which the providers
will be rewarded. This is all the detailed work that has been
going on ever since the new Government came into office, and it
must continue before we put it into practice. That is why we have
had lots of discussions and ideas. We will be running pilots in
2011. The reason we must have pilots is that we have to work it
out. The more local it can be the better, but it must also be
robust. I think that some probation trusts would be quite keen
providers and would go into partnership with other people to provide
it.
Q61 Chair: So,
we may come up with a different model in the end?
Mr Clarke: We may.
We are working on it; we are consulting on all these things. This
is a Green Paper.
Chair: Lord Chancellor,
thank you very much indeed for being with us today.
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