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The result is that the constitution that is being created derives from a bottom-up approach—that is, an amalgam of individual and disparate changes—rather than a top-down one, with reforms resulting from a clear view of what is required in terms of the constitution as a constitution. It is not clear what the effects of these changes will be. As Robert Hazell of the Constitution Unit at University College London has pointed out in the conclusion to his just published volume, Constitutional Futures Revisited, reforms can have unintended consequences. As he writes on page 285:
“Tony Blair was famously blind to the consequences of the reforms he unleashed ... He was startled by the effects of devolution and unaware of the wider dynamics of his constitutional reform programme. Yet the tidal wave of reforms in Blair’s first term released second and third waves which are still working their way through the system”.
Professor Hazell’s book is an attempt to identify where we are going, but it ends up by delineating four different scenarios and identifying likely directions but no certainty as to which one will be realised.
Under Tony Blair, we had a situation in which constitutional change was a priority but something in which the Prime Minister had no interest. We now have a situation in which we have a Prime Minister who has some interest in constitutional change but one in which it is not given priority. The constitutional renewal Bill will be introduced as time allows.
I was struck by the report in the Times on the measures that were omitted from the Queen’s Speech. Philip Webster, the political editor, wrote:
“Notable absentees from the expected list were a constitutional reform Bill and one extending the collection of personal data, both of which were felt to look irrelevant in troubled times”.
Constitutional reform is deemed to be irrelevant in troubled times. One might have expected our constitutional arrangements—the way in which we govern ourselves—to be important at all times.
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I bring my points together. Constitutional change has taken the form of measures that are disparate and discrete. We have had a Prime Minister who has had no emotional or intellectual engagement with constitutional reform. We now have one who has an interest but whose priorities are elsewhere. If there is constitutional change, it may come as much by accident as by design. If it occurs, then, as Professor Hazell cautions, it may not have the desired effects and, in some cases, may serve to undermine rather than strengthen Parliament.
We thus live in an era of significant constitutional change, but we have no clear idea of where we are going or always of the consequences for existing relationships. The judiciary, for example, has acquired major responsibilities as a consequence of a range of constitutional reforms—membership of the European Communities, the Human Rights Act and devolution. What is the relationship of the judiciary to other agencies of the state? My argument is that we need to have a much clearer view of what is happening, how the various changes relate to one another and to existing structures, and the principles that should underpin our constitutional arrangements.
My conclusion is that we need to establish a body, possibly along the lines of a royal commission, to review our constitutional arrangements and to make sense of them. The Constitution Committee of your Lordships’ House has already produced a major report on the relationship between the Executive, the judiciary and Parliament, which we debated at the end of the previous Session. It was an excellent example of the type of exercise I have in mind. We need to look at our constitutional arrangements holistically. The Constitution Committee has other tasks to complete, so it is not in a position to undertake a major inquiry of this type, hence my argument for a dedicated committee or commission. I am not making the case for a commission that will prescribe the type of constitution that is most appropriate for the United Kingdom. That is a matter for wider debate as a result of what the commission does, which is to make sense of where we presently are. In order to decide where we are going, we need a map. I am advocating an exercise in cartography.
I hope that the Minister will tell us precisely what is planned for the constitutional renewal Bill. If it is brought forward during this Session, I trust that it will be on the basis of having taken on board the recommendations of the Joint Committee. I hope, however, that thought will be given to taking stock and making sense of where we now are in terms of constitutional development. Before we embark on any further constitutional reform, let us be clear as to what exactly is happening to the constitution of the United Kingdom.
6.22 pm
Baroness Harris of Richmond: My Lords, as the former chair of a police authority and a former councillor, and as a present vice-president of the Association of Police Authorities, I declare my interest in this debate. I will make my remarks primarily about policing and the proposals in the gracious Speech that touch on the changes indicated in the forthcoming policing and
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I believe that the Government’s proposals on direct elections to police authorities will decrease confidence in the police because unrealistic expectations that cannot be met will be raised among communities. Setting aside the fact that I am not convinced that the public want yet more elections—we can barely encourage them to come out and vote in substantial numbers in any election—I believe that they will be further confused between directly elected council members and the proposed directly elected police authority members. The two will look pretty similar and in the main will probably be white, middle-aged men, as they seem to be at present. Are they more likely to address the concerns of some of our most vulnerable and victimised communities, as well as represent people from diverse backgrounds? I do not think so. In fact, what will happen with the Government’s proposals is that there will be almost in-built decreased diversity among police authority members. This would indeed be most unhelpful, given the huge and largely successful efforts made by police authorities to ensure that they reflect the communities that they serve.
Why do I say that? Work done recently by the Electoral Reform Society, whose analysis of the likely outcome of police authority membership—if we use the Government’s model based on the 2007 local election results—found that the Conservatives would win two-thirds of the seats on police authorities outside London, with only 38 per cent of the popular vote; Labour would have 18 per cent of members, with 22 per cent of the vote; and the Liberal Democrats would have 13.3 per cent, with 24 per cent of the popular vote. In 10 policing authorities, Labour could have no representation and would get only 10 members on police authorities in the three southern regions out of a total of 176. Is that really what the Government intend? It is imperative that the Government use a fair voting system if they want to avoid such an outcome. That would also enable better representation of women and younger people, as well as achieve better diversity in police authority membership.
Frankly, I have to tell your Lordships that the independent members of police authorities have brought an enormous range of skills and experience as well as diversity to police authorities. I would not want that to be lost in any way in new proposals for direct elections. I support the remarks of the noble Baroness, Lady Henig, on those issues. I worry that we will lose the expertise and skills that we need to strengthen police authorities, which I absolutely support. I fear that these same people will not put themselves forward to the electorate in the way in which practised politicians tend to do.
I believe that we must be absolutely clear about the possible consequences of competition between councils and police authorities and about who is responsible for the community safety agenda. Of course, the two must work closely together; they do already and that
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Although Northern Ireland was not mentioned in the gracious Speech, we on these Benches very much hope that there will be legislation in the forthcoming Session to devolve policing and justice powers to the Northern Ireland Assembly. That would have a number of positive effects. First, the transfer of powers could be viewed as a final piece in the jigsaw puzzle of the peace process. It would mark a major step to the normalisation of the political situation. Secondly, while a number of measures have already been put in place to provide for better transparency and accountability in operational matters and performance, the formal devolution to the Assembly will create the cross-community ownership of resourcing and policy matters. Thirdly, there would be enhanced opportunities for joined-up government. Criminal justice matters do not reside within a neat silo. There are some obvious opportunities for any future Minister in working with other departments.
However, we must not underestimate the challenges that face Northern Ireland in policing and justice matters. The Patten report recommended that 7,500 police officers should be maintained until 2010. The Treasury seems intent on reducing this to some 6,000 in the near future. It would be difficult for a newly devolved justice system to preside over such a reversal. I urge the Minister to take note that we will oppose such a reduction in policing levels. There is still much to do to come to a peaceful conclusion for the people of Northern Ireland and I am hopeful that the Government will do all that they can to ensure that they succeed in devolving as much of their responsibility as possible to the Northern Ireland Assembly.
6.30 pm
Lord Judd: My Lords, what exactly are the objectives of penal policy? At the heart of it should be concern for the victims of crime and the need to protect society. Crime should be punished; what is acceptable behaviour and what is not should be made plain. Substantial as distinct from cosmetic commitment to these precepts makes it essential that the overriding priority is given to rehabilitation. This makes sense economically because without it there will be all the costs and pain of repeated reoffending and the costs of repeated imprisonment. Currently, two-thirds of those leaving prison reoffend within two years. Rehabilitation makes sense because it protects society by reducing the number of victims and demonstrates the values of society that we want the criminal to embrace. People matter and most people have the potential to be positive, caring and decent. They need not be enslaved by selfish, destructive criminality. We are all capable of living better lives and we can literally find ourselves in striving to do so. It is here that I believe our penal policy is in danger of going backwards.
Too many people are being kept in overcrowded, inadequate prisons where a criminal culture is able to thrive in uncivilised living conditions. Too many prisoners
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The same dismal story applies to prison education. Highly committed, overstretched educational staff are frustrated by the shortage of facilities and of programmes to stretch prisoners’ imagination and help them to discover their positive capabilities and self-respect. Some very exciting work is done, but too often it is done despite the system and not because of it. I declare an interest as a trustee of the Ruskin Foundation. We have been glad to support the development of a lively prisoner-run newspaper in Haverigg prison in the far-flung parts of Cumbria. Without proper provision for work and education, how can we claim to be taking rehabilitation seriously? We fail society by failing to reduce the scale of reoffending. It is quite frankly irrational and painfully ridiculous.
Perhaps most counterproductive of all is the large number of people in prison who should not be there at all. With mental illnesses and disorders, they should be in specifically designed secure centres where their conditions can be properly addressed. Again, this would make sense economically. To spend more money on locking these people up in institutions where, however hard conscientious staff may try, their condition is likely to be aggravated makes no sense whatever. It results inevitably in further high costs and sometimes dangers to society when these people are released. It is an irresponsible waste arising from the misapplication of taxpayers’ money, because taxes should obviously go to relevant provision.
As my noble friend Lady Corston powerfully argued in her hard-hitting report, too often the plight of women in prison remains deplorable. It is a sad commentary on our society that imprisonment frequently masks the nightmare of women’s lives outside. It is quack medicine of the worst order and the real issues go unaddressed. As the Prison Reform Trust convincingly argues, the Corston report requires urgent implementation. I well remember being told by an exasperated member of staff in Holloway prison, “Perhaps the one good thing we are able to do by having women in here is to protect them from their nightmares outside”.
During my time as president of the YMCA, I was able to witness the association’s work with young offender institutions. The life stories of numerous offenders repeatedly demonstrated that they were themselves the victims of abuse, neglect and the
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Too much of the prevailing political language about penal matters is highly irresponsible. It fosters prejudice and nurtures the ignorant, sensationalist parts of the media. When it becomes an ill disguised competition to demonstrate the most macho attitude, it is unforgivably damaging. It is no good saying, “A few sentences have been taken out of context”, when everyone knows very well that those sentences were put in simply so that they could be taken out of context and used in the wrong way for the wrong reasons.
How on earth the proposed vast, impersonal, warehouse-like Titan prisons can possibly help has yet to be convincingly demonstrated. What we do know is that examples from the United States are depressing. Front-line experience and research repeatedly make it clear that what is really required is a range of smaller secure units with regimes as relevant as possible to the individual prisoner, where really effective rehabilitative work can be undertaken.
My last point is this: we all know that we must have a national regeneration of social responsibility, social solidarity and respect and status for public service, so that public service is not seen as an also-ran, second-class career. There is no alternative. Without this, penal policy is destined to fail. If greed and selfish opportunity are seen to be the creed of too many at the top, where is the credibility in calls for action aimed at those at the bottom of the pile? The foundation for a successful penal policy cannot be a society that says, “Do as too many of us conspicuously don’t do, and do what we say you must do”. That is no approach and offers no context for a successful penal policy. The change has to start with us. Our age of blame needs to be replaced by one of honest self-examination: how far are we all, every one of us, responsible for the tragic stories before the courts?
6.39 pm
Baroness Stern: My Lords, it is always a great privilege to listen to the noble Lord, Lord Judd, given his commitment to a humane and rational penal policy. Certainly, watching the development of the criminal justice system over the past 10 years has not been a cheerful experience. We have a prison population of more than 83,000, including many people with learning difficulties. I am grateful to the noble Baroness, Lady Quin, for reminding us of that, and I would ask: should they really form part of our prison population? We have a widely condemned plan to build mega-prisons;
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I have just read in the magazine Computer Weekly about an offender management IT system called C-NOMIS for which the estimated cost of £234 million in June 2004 had risen to £690 million by August 2007, and it does not work. There may have been other uses to which that money could have been put. I have also just read about a budget for the Ministry of Justice that I understand has to be reduced by £1 billion over three years. I should be grateful if the Minister could confirm that. I did not find any measures announced in the gracious Speech that will help us out of the dysfunctional situation so admirably described by the noble Lord, Lord Ramsbotham.
I shall concentrate briefly on one notable development since 1997: the growth in the number of criminal offences—the unstoppable urge to criminalise. Here I refer to the work of a distinguished American academic, Jonathan Simon, Professor of Law at Berkeley in California. His most well known book is called Governing Through Crime. It is about the United States and, to reduce it to basics, he argues:
“Social problems ranging from welfare dependency to educational inequality have been reconceptualized as crimes, with an attendant focus on assigning fault and imposing consequences”.
The result of this process is not to make communities safer but the opposite. Professor Simon states that the outcome is,
Although he does not write about a similar process in the UK, he could well have done so. We have seen a similar trend. Social problems have been redefined as criminal problems.
Criminal punishment and the possibility of sentencing someone to prison have crept into many areas where they can achieve nothing but harm. I still find it very hard to understand the one example I shall give. When I mention it in other countries, it is greeted with some disbelief. I refer to the law that we passed in 2001 that made it an imprisonable offence to fail to ensure that your child goes to school. I remember the first victim of this law, a woman struggling to bring up three children on her own, who had overcome heroin addiction and had serious health problems. Figures were published last month which show that between 2003 and 2006, 71 parents, most of them mothers, were imprisoned; and that in 2006, 2,952 were fined, most of them also mothers. Yet last year, in spite of all this, it is reported that truancy figures were at their highest since 1997.
I remind your Lordships of the comment made by the noble Lord, Lord Bowness, from the Conservative Benches in this House in 2005. He said:
“The major political parties in our country will have to stop competing with each other to see who can propose more and more custodial offences ... is it really sensible, bearing in mind all the social implications of the situation, to gaol a mother for not sending her child to school?”.—[Official Report, 9/6/05; col. 1042.]
I was very pleased at the end of the previous Session to receive a letter from the noble Lord, Lord
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It is in this context that I support what the noble Baroness, Lady Miller of Chilthorne Domer, said about the Government’s proposals on prostitution. There can be no doubt that women are trafficked and forced to work in the sex industry, and I welcome the ratification at last of the Council of Europe convention for action against trafficking. However, there is considerable difficulty in establishing what the numbers are and how widespread it is. I have read many different figures and I hope that the Minister will be able to help us on this.
There is also no doubt that many of the women engaged in prostitution are from backgrounds of poverty and drug abuse. How the Government think the measures they are proposing in the new legislation to criminalise certain forms of sexual activity with prostitutes will make either of these problems any less widespread is not clear. I am afraid I am more convinced by the arguments of those who have said that these new measures will put the women at risk and do nothing to deter traffickers. I was impressed by the common sense of a member of the Brixham Women’s Institute who told the Independent newspaper,
- “I am all for decriminalising prostitution rather than all this undercover stuff so we can treat drug dependence and check for venereal disease”.
With many of these social problems, two approaches are possible: one is to try to deter people from their problem behaviour by threatening punishment, criminal conviction, imprisonment, a criminal record and a consequent push into the group of the socially excluded; the other approach is harm reduction, giving help, showing ways out and trying to change the lives of the people involved and their families. Can the Minister tell us what evidence supports the decision to go for criminalisation in the approach to prostitution rather than for harm reduction, and will these new offences be imprisonable? Has anything been learnt from the legislation on imprisonment for those who do not get their children to go to school and its effectiveness?
I end with two unrelated points. First, in regard to the use of restraint in secure training centres, I note that the Government were not given leave to appeal to the House of Lords against the Appeal Court judgment in July 2008 which quashed new rules introduced by the Government allowing the restraint of children in secure training centres for the purpose of maintaining good order and discipline. A number of noble Lords will be relieved by that decision as many of us have been involved over a considerable period of time in raising this matter with the Government. It would be helpful to know how the Government intend to proceed and whether any further legislative action on this is envisaged.
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