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The words “the normal working of a prison” are the kernel of the dispute. They have caused deep resentment, anger and dismay. This is in the aftermath of Section 127 of the Criminal Justice and Public Order Act. The POA believed that statements made by the then leader of the Labour Party, Tony Blair, met its aspirations when he said:

There is great significance in the words that have been used. I was delighted and grateful when I read Hansard of another place to see that the Minister for Justice recognised that—and I was just as grateful for the words the Minister sitting in front of me used when raising this issue—when he said:

That is where we are today; we are in the other place. I do not want to spoil the situation, but I am very hopeful.

To what was the Minister for Justice referring when he made that statement, and what is the possible way out of the impasse? The Minister here today can be in no doubt that there is deep disquiet bordering on anger at the treatment the POA believes it has received in recent times. Consultation and agreement on the precise words, matched by an agreed alternative, can lift the atmosphere of suspicion of deception. That atmosphere can be dispelled by using words with new meanings. The Minister knows, as do I, that this is an ongoing situation and it is not too late.

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The Minister for Justice said, in replying to the honourable Member for Morecambe:

So the question is: why did the POA sign up to it? Because it thought it had a deal, a quid pro quo, whereby it inherited better, more equitable pay negotiation procedures. What has happened since? The Minister for Justice justifies breaking his agreement on pay by saying that there were “exceptional economic circumstances”. Thus the arbitrary power to scupper an agreement is seen by the POA as a reneging on that agreement.

The situation does not affect only the POA but has seeped into all public sector trade unions. In a letter dated 14 January, Brendan Barber, the general secretary of the TUC, tells me that the TUC expresses,

The most significant paragraph in his letter reads as follows:

A new beginning is badly needed. That may come through the report by Ed Sweeney of ACAS, which proposes, as in similar public sector services, the establishment of minimum cover arrangements instead of a statutory ban. Those proposals ought to be discussed at meetings on 24 January. They should not be jeopardised or put at risk, and no words of mine seek to exacerbate the situation. The offending words to which I have referred could, and should, be substantially changed. I urge the Minister to draw back from making industrial relations in the Prison Service worse than they are. In my view, the ball is in the Government’s court.

7.28 pm

Lord Low of Dalston: My Lords, I am normally fairly understanding of the exigencies of governing in the modern world, which necessitates a degree of improvisation and changes of plan in response to rapidly moving events, but the degree of improvisation attending the genesis of the present Bill surely goes beyond all bounds. To that extent I agree with the noble Lord, Lord Elystan-Morgan, who said that the Government needed to be responsive to events in legislation, but I think the Bill goes too far.

I will not weary the House by repeating the catalogue of changes of plan, the number of new clauses and amendments and the lack of time for debate in Committee; noble Lords who have spoken before me today have gone over them many times already. More time has probably been spent on criticising the handling of the Bill than debating its provisions. Not only does the Bill give every appearance of being the Ministry of Justice’s

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kitchen sink, into which to dump every bright idea knocking around, and some not-so-bright ideas, with little sense of coherence and even less consideration, but also the Government seem to be making it up as they go along,

The Bill has been variously described as a hotchpotch and a ragbag. This makes it difficult to know exactly how to react. Again praying in aid the noble Lord, Lord Elystan-Morgan, I say that a degree of miscellaneous provisioning is necessary in criminal justice legislation as the system is progressively fine-tuned to meet changing circumstances. There is obviously, therefore, good as well as bad in the Bill. As well as being a ragbag and a hotchpotch, it is also a curate’s egg. There is good especially where the Government are putting right failures of legislation that have gone before.

On the other hand, one must doubt whether such a ferment of legislation is the best way to develop a rational criminal justice system. One might even say that the Government’s approach to criminal justice legislation has suffered from attention deficit hyperactivity disorder. One may especially beg leave to doubt whether all the late changes, and some of the early ones, are so important and urgent as to require such a precipitate legislative process. Some of them could have waited and would certainly benefit from greater discussion. Of one thing, however, we can be sure: in my short time in this House, and on most of the occasions when I have attended a Second Reading debate, the Minister’s stock response has been: “Well, it’s pleasing to see that the Bill has been so widely welcomed on all sides of the House”. I defy the Minister to make that response today.

However, I shall concentrate the bulk of my remarks on the sentencing provisions in Part 2. It is no secret that the prison system is in crisis. Much of the crisis is of the Government’s own making. According to research by the Prime Minister’s strategy unit, there has been a 22 per cent increase in the prison population since 1997. This is estimated to have had the effect of reducing crime by around 5 per cent—I am not sure how one estimates that, but that is the estimate—but it is at a time when overall crime has fallen by 30 per cent due to other measures and trends. Notwithstanding that, the number of people found guilty by the courts has remained broadly constant: 1,645,000 in 1995 and 1,783,000 in 2005. The number of people given a custodial sentence by magistrates’ courts has risen from 25,000 in 1993 to 57,250 in 2005: it has more than doubled. I repeat that that is at a time when crime is falling overall. The number of people given a custodial sentence at Crown courts has also risen, from 33,722 in 1993 to 43,986 in 2005. In particular, the introduction of a raft of mandatory penalties and, under the Criminal Justice Act 2003, of a new, indeterminate sentence for public protection has led to substantial inflation in sentencing.

Against this background, the overall thrust of the sentencing provisions of the Bill has to be welcomed. I am not one to accuse Ministers of U-turns when I see them trying to put right mistakes of their own making. The Bill’s intention is to reduce the prison population by a modest but useful 4,300—that is about 5 per cent of the present total—mainly through Clause 10 and

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Clauses 13 to 18. Clause 10, which abolishes suspended sentences for summary offences, is a step in the right direction. If it presaged an intention on the part of the Government to move towards a general presumption against imposing custodial sentences for summary offences, or even the abolition of custody altogether, it would be even more welcome. As many speakers have said, prisons have become too much a dumping ground for the socially excluded. Much of the pressure on prison places could be eased if the Government’s stated commitment to reserve prisons for serious and violent offenders could move from the realms of general aspiration to that of determination.

The restriction on imposing community sentences in Clause 11 is a sensible measure, which appears to provide for greater use of financial penalties. The introduction of a system of income-related fines was recommended by the noble Lord, Lord Carter, in Managing Offenders, Reducing Crime in 2003. Day fines operate successfully in much of Europe and can, alongside diversion schemes, help to avoid unnecessary use of community sentences and imprisonment. However, one of the most misconceived innovations of recent years has been the sentence of indeterminate public protection, or IPP, which has been one of the main drivers in the increase in the prison population.

I am indebted to the Prison Reform Trust, whose report on the pathology of IPPs has exposed how fundamentally flawed the IPP system is. IPPs have been heavily criticised also by, among others, the Lord Chief Justice, the chairman of the Parole Board and the Chief Inspector of Prisons. IPPs were aimed at offenders convicted of a serious violent or sexual crime and who the judge believes pose a threat to the public. In practice, however, IPPs have not been used as was intended: as a specialised tool to deal with the relatively small number of dangerous violent or sexual offenders. Instead, they have been used more widely and for less serious crimes. As a result, they have bombed on two counts: they have fuelled an increase in the prison population and they have done nothing to reduce levels of violent and dangerous crime. Currently, there are three times more IPP prisoners than the Minister predicted during the 2003 Act’s passage. By 2012, that number is expected to triple again.

The USA has doubled its prison population during 15 years through risk-based sentencing that has the same logic as the IPP, yet it still has frightening levels of violent crime. It is a shame that the Government have not taken a little longer to reflect on the experience of the USA in that regard. If they are serious about refining IPPs, and not flooding the prison system or planting a time bomb for the Probation Service, they might start by refining the list of crimes that qualify for an IPP.

Clauses 13 to 18 are thus part of the Government’s leisurely repentance for a hasty and ill-considered measure. Raising the minimum tariff to two years is only common sense. Allowing the judge wider discretion in assessing dangerousness should also be seen as a welcome result of mature reflection.

I was a criminologist for a number of years, but that was some time ago, so I am still becoming reacquainted with this area of policy. It has been clear

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to me from listening to the contributions of other noble Lords that I still have a great deal to learn before I am capable of rivalling their level of analysis. However, it would greatly assist me and, I hope, the House if the Minister answered a couple of questions.

In a Written Answer on 27 November, the Government estimated that there were 428 IPP prisoners being held beyond the expiration of their tariff. Can the Minister tell us whether the situation has improved? “Exceeding their tariff” is a neat euphemism, evoking images of a Parisian café overcharging gullible tourists. In at least some cases, however, it signifies people imprisoned with no real hope of release, thanks to the unavailability of the rehabilitation courses that they need to attend to satisfy the parole board that they can be safely released. Will the Government provide figures on how many of the prisoners who have committed suicide since the introduction of IPPs were serving such sentences? This is far too important an issue to be lost behind the cost limits of parliamentary Questions, as has previously been the case.

Public protection is a worthy goal in criminal justice, but sooner or later prisoners are freed. On current rates, two-thirds of them will have committed another crime within a couple of years. Jailing people for public protection without rehabilitation is a cruel deception. I am still not sure whether these sentencing reforms stem from that understanding or necessity.

Before I conclude, I want to say a word or two on the provisions in the Bill relating to unqualified legal representatives. Academic lawyers—and I know because I was once one—sometimes envy the earnings of their peers in legal practice, but never so much as the Government seem to. Lawyers argue that quality legal representation is one guarantee of justice. It will be said, “They would say that, wouldn’t they?”. But I share the concerns of other noble Lords about the proposals to extend the powers of non-legal staff to represent accused persons in court and hope that they will receive close scrutiny in Committee. Quality legal representation entails the expertise and advocacy skills that attend qualification for legal practice. I recognise that there are routine cases that can be handled other than by qualified barristers or solicitors, but I am not sure that the Government have adopted a sufficiently focused and targeted approach in Clause 105, which would allow non-legal staff to conduct a variety of very serious proceedings.

The Minister might like to offer his reflections on research carried out in 2003 by the Crown Prosecution Service which showed that two-fifths of such staff had undertaken work beyond their existing remit. On this point, the reference to Section 3(2)(g) of the Prosecution of Offences Act 1985 is entirely opaque, and the Explanatory Notes are vague. Will the Minister write to me with a full list of the powers already assigned and the powers potentially assignable under the provision?

Another aspect of quality seems to me even more vital than knowledge and skills—independence. Barristers and solicitors receive ethical training before they qualify, as well as years of training in the law and its practice. They are regulated to strict professional standards, owe allegiance to the court itself and depend on no one but themselves for career progression. These are

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not insignificant guarantees of independence. I do not think that any of them apply to non-legal staff. Failures of justice are not, to my mind, acceptable collateral damage from efficiency savings in the court system, and I look forward to returning to this in Committee.

7.44 pm

Baroness Butler-Sloss: My Lords, I apologise to the House for not being here for most of the early part of this afternoon, but I was attending a sitting of the Merits of Statutory Instruments Committee, which I thought was also my duty.

I have several concerns about this Bill, and at this late stage do not propose to go into them in any detail. I very much oppose Clause 42, which is obviously wrong, for reasons that have been so well set out by others. I also have great concern about Clause 105, which has already been so well expressed by my noble friend Lord Low of Dalston. The effect of the Legal Services Act is to set out clearly the disciplinary processes for barristers and solicitors who fall below acceptable professional standards. No such process exists for those who are not trained lawyers, including non-qualified Crown Prosecution staff. They do not owe the same overriding duty to the court that all professional lawyers owe. This is a matter of very considerable concern, as there is a danger of potential miscarriage of justice—and I shall say a lot more about it in Committee. Perhaps I should add that the presence of the clause appears to owe a great deal more to the benefit of cost-cutting than to any advantage whatever to the administration of justice.

I should like to speak today on children, and children who offend. I commend the Government on their drive towards prevention and early intervention for children as well as the good work of youth offending teams, but I feel that a lot more should be done. I preface my comments by a recognition that some children, even young ones, commit serious crimes, which under our system cannot be overlooked. They face the rigour of the law and have to do so in exactly the same way as the young men who kicked a man to death and were convicted of murder. But children who offend were not born bad; they may be born with character defects and they may have developed behavioural problems, but inadequate parenting, the family and social environment, as well as their character defects, have a part to play—often a very large part—in their offending.

As the House knows all too well, there is a great deal of research on this subject, which makes clear the impact on children of problems in the home such as drink, drugs, domestic violence and mental health problems—as well as households where there are many other offenders. Early intervention and diversion from offending or reoffending should play an important part in the approach towards children. We must remember, as other noble Lords said earlier, that children who offend are also children who need help. I very much support the proposal of my noble friend Lady Stern on Clause 9 to give priority to the welfare of the child, especially to younger children. I was also greatly impressed by and very much support the contribution of the noble Baroness, Lady Linklater, to this debate.

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More could and should be done at an early stage to identify the problems in the family, rather than necessarily treating all children as offenders. YOTs deal with children after they have been to the youth court. I propose to put down some amendments, and I hope that the House will bear with me as I explain their background. I have proposals for the diversion of young offenders, starting with 10 to 12 year-olds, so that they do not go to the youth court at all and therefore do not have a criminal finding of guilt but are dealt with in the family court system and not the criminal court system. I suggest that 10 to 12 year-olds who offend and whom the police or the Crown Prosecution consider should be dealt with by the youth court should be looked at by a local committee, chaired by either a judge or magistrate with representatives from police, CPS, probation, social services, education and health, to see whether the offence is so serious that it has to go to the youth court. It may well be known that the family is dysfunctional or the committee may consider that there should be an investigation to see whether there are reasons for offending that might be dealt with so as to avoid repetition of offending and without the child receiving a finding of guilt. That would give social workers an added burden, but it could have the effect of stopping or at least alleviating the cause of offending and, if so, would save years of repeated visits to the criminal courts, with the huge cost per person of an adult in the criminal courts.

If the circumstances point to family or other influences pushing the child into committing crimes, the family proceedings court may be where the child and family should be considered rather than the youth court. The local committee might decide that informal intervention by social workers might do the trick or that the local authority should issue care proceedings to give the family proceedings court the power to deal with the case—it does not have that power at the moment. Social workers would then have to be prepared on such a recommendation to issue care proceedings. The youth offending team could be involved before the child is found guilty rather than afterwards.

An alternative—or, indeed, concurrent—possibility is that, on the child's arrival at the youth court, the magistrate should have the power, which is sometimes called the Section 37 power of the family proceedings court, to require a social report on the child before the child pleads guilty to see if this is a case for social work intervention rather than a decision of the criminal court. That would no doubt require the family to agree, but if the alternative is for the child to be found guilty, the family may well agree. The youth court, on receipt of the social work report, could then decide whether to deal with the child within the criminal proceedings or adjourn or dismiss the criminal proceedings and transfer the child's case to the family proceedings court. Again, that would require primary legislation. It would also require the local authority to be prepared in some cases to make the appropriate application in the family proceedings court, which some local authorities, on past experience, have not been at all keen to do.

There would be an added burden on social services and local authorities or possibly the youth offending team, but if it diverted the child from reoffending, it

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would be extremely cheap at the price. My proposals might fit well with those that I know are being considered for restorative justice for children. Together, the proposals might go forward. I would therefore like to add my proposals to Part 1 of the Bill.

7.52 pm

Baroness Falkner of Margravine: My Lords, the origins of the Bill seem to lie more in a desire to respond to newspaper headlines than a considered analysis of what needs to be done and then to change the law carefully and proportionately to reflect the changes that are needed. The broad sweep of the Bill, comprising piecemeal measures on youth justice and rehabilitation, sentencing, the establishment of new bodies—now to be withdrawn, we are told—changes to compensation, new powers and penal policy indicates that a huge area of the civil and criminal justice systems was frozen in a time warp, has now entered the 21st century and hence needs urgently updating. But as my noble friend Lord Thomas of Gresford has already stated, that is not the case. We have had numerous such Bills over the lifetime of this Government. This can mean two things: that our criminal justice system overall is so inadequate as to require constant readjustment, or that previous legislation in many these areas was not thought through properly. Most people would conclude the latter.

I now turn my attention to the principle that will guide our approach to the Bill from these Benches. There is a concern that when the state interacts with its citizens and uses its powers of sanction against them, it is duty bound to do so proportionately and with regard to an end which, in the majority of cases, is rehabilitation. This will entail the Government putting forward arguments based on evidence—something not readily visible in the provisions we find here today, as my noble friend Lady Miller stressed.

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