Legal Aid, Sentencing and Punishment of Offenders Bill

My Lords, I shall not touch on legal aid or sentencing, which have been so comprehensively covered by other noble Lords, but instead try to explain a long-held disappointment and how it leads to a current fear. When I heard that there was to be a legal aid, sentencing and rehabilitation of offenders Bill, I hoped that this marked the end of the mistaken idea that the criminal justice system is solely about punishment. However, when the Bill appeared, my heart sank because there was the word ““punishment”” instead of ““rehabilitation””. The change had been ordered, I was told, by No. 10 Downing Street, and it confirmed my fears that a truly coherent criminal justice policy remains an impossibility while there is a continued failure to understand or accept what its acute part—imprisonment—is all about. The criminal justice system is made up of four distinct parts: courts, police, prison and probation. The success or failure of the system as a whole depends on these four understanding and working with each other. I put imprisonment in pole position because, like hospitals in the NHS, prisons are the acute part, where treatment takes place and to which no one should be sent unless they need the treatment that only hospitals or prisons can provide. That treatment will not be completed in either hospital or prison, but has to be continued in the community in the form of aftercare. However, just as the healthcare system would break down if hospitals were choked with people who did not need that level of treatment, so the criminal justice system has broken down over the past 18 years because prisons have been choked with steadily increasing numbers who do not need expensive imprisonment. The Justice Secretary should know this because he was Home Secretary in the early 1990s, the last time that there was any clear thinking about imprisonment, as set out by his predecessor, the noble Lord, Lord Baker of Dorking, in his 1991 White Paper Custody, Care and Justice, following the prison riots in 1990, and the masterly report on their causes and possible repair by my noble and learned friend Lord Woolf. That White Paper, agreed to by all political parties, laid down clear priorities for the Prison Service. These included: to develop community prisons, which will involve the gradual realignment of the prison estate into geographically coherent groups serving most prisoners within that area; to increase delegation of responsibility and accountability to all levels, with clear leadership and a published annual statement of objectives; to provide a code of standards for conditions and activities in prisons which will be used to set improvement targets in the annual contracts made between prison governors and their area managers; and to provide active and relevant programmes for all prisoners, including unconvicted prisoners. Had those priorities been enacted and had the thoroughly unpleasant competition between the main political parties to appear tougher—or not weaker—than the other not undermined rational thinking about the role of imprisonment, I believe that we would not be in today’s mess. What is that role? Some say that it is to deter people from crime, but the figures prove that the fear of imprisonment does not do this; others that it is to satisfy victims, but they are only a small part of society; others that it is to reform and rehabilitate those who are sentenced to imprisonment; and others that it is to punish, but the deprivation of liberty is the only punishment involved. Courts determine the length of that punishment, related to the seriousness of the crime. Therefore, while imprisonment is punishment, prisons are not for punishment, at least not in a civilised country, which we purport to be. Finally, some think that it is a mix of all four. However, roles are synonymous with aims. The overall aim given to the criminal justice system is to protect the public by preventing reoffending. Therefore the role of the Prison Service should be related to the prevention of reoffending, which means rehabilitation. Taken objectively, I am surprised that successive Governments, while voicing their concerns about the rising numbers of those in prison, appear not to have thought through why the current conduct of imprisonment is clearly failing—witness the appallingly high reoffending rate—and what this says about that conduct. I contend that the avalanche of confusing legislation and torrents of wishful thoughts and undeliverable ideas, not least the expensive introduction of the so-called National Offender Management Service—which, if it is anything at all, is a system and not a service—stem from the fact that successive Ministers and their officials have failed to carry out such an analysis and have allowed themselves to be led astray by the seductions of penal populism and the cult of managerialism, which is all about process and not about outcomes. If you accept that imprisonment is the acute part of the criminal justice system, and should be structured and managed accordingly, you will understand why I am so afraid that the Secretary of State should be embarking on the rehabilitation revolution—the intent for which I strongly support—without the necessary structures or management in place to ensure that it can succeed. It would be an avoidable tragedy if it failed for all the wrong reasons. At present, prisons are not organised into geographically coherent groups, with regions responsible for the rehabilitation of their own prisoners. Today’s incoherent prison population management system, as when I first saw it in 1995, prevents continuity of treatment. Also, because no one is responsible or accountable for any type of prisoner, other than high security, there is no consistency of treatment in prisons of the same type, and individual prison governors are not required to carry on from where their predecessor left off. Imagine the outcry if acute hospitals in the NHS were run in the same way. Why are acute prisons? Therefore, during the passage of the Bill, I will be tabling amendments designed to try to improve the ability of the acute part of the criminal justice system to carry out its role, not least in improving alternatives to custody. I shall challenge some of the omissions and the wishful thoughts, and shall focus on the working prison, substance abuse treatment, women in the criminal justice system, restorative justice and the treatment of young adults. Finally, I would like to say a word about indeterminate sentences, to which I have been opposed ever since they were introduced. Of course there will always be some criminals who should never be released, most of whom receive natural life sentences. However, the obscenity of the IPP is that the overcrowded system cannot provide the programmes that prisoners need to qualify for release. While I applaud the Secretary of State’s decision to end IPP sentences, like my noble and learned friend Lord Woolf, I am concerned that he has not tackled the problem of those serving such sentences now. There are two immediate steps that I believe the Secretary of State should take, for which he has given himself the necessary weapon in Clause 117 of the Bill. First, he should conduct a census of all IPP prisoners and establish precisely why any of them are over their tariff, what is required of each of them to qualify for release, and what plans, if any, have been made to ensure that they are enabled to do so. This task would be far easier to execute if, as should have been done years ago, someone was made responsible and accountable for the oversight and management of all IPP prisoners, because that information would be available now. I urge him to make such an appointment. I have had more than 500 letters from prisoners serving an IPP, and their families. I share their view that the IPP is a stain on our reputation for civilised behaviour and should be removed as quickly as possible. Secondly, he should conduct a similar census of all determinate-sentence prisoners who are over tariff, and establish exactly the same facts. This is a very important Bill because it contains many features of the rehabilitation revolution. Sadly, it has lost some of the clarity of purpose contained in Breaking the Cycle, which this House now has an opportunity to restore. I know that the Justice Secretary and the Minister share my concern that the acute part of the criminal justice system should be made fit for purpose. We must not waste this opportunity of helping them to make it so. I hope that, unlike their predecessors, they will repair the flaws in the system that they have inherited.