Criminal Justice and Immigration Bill

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 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 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 all together, 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 whom 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 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 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.