This was published under the 2010 to 2015 Conservative and Liberal Democrat coalition government
Speech by Lord McNally covering the government's programme of reforms of sentencing and legal aid, and competition strategy for offender services.
Bishop Graham, Ladies and Gentlemen: It’s a great pleasure to be here, and to be able to say a few words about the programme of reforms of sentencing and legal aid that the Government is undertaking. I’d also like to say a little about our programme on the competition strategy for offender services.
I’m particularly keen to have the opportunity to discuss with you issues that are of concern to your communities here in Norfolk. I welcome the fact that the Ecumenical Criminal Justice Forum provides time and space for a range of practitioners in the criminal justice system to meet to exchange views, and discuss imaginative solutions to some of the problems local people experience on a day to day basis.
These are times of great challenge and change for all of us; changes forced upon us because of the financial and economic climate; debates taking place within our communities about how we value ourselves and each other; and challenges in the way that both central and local government, and local agencies, provide support, advice and assistance to those who seek it and need it.
Just as important, though, in terms of how we measure ourselves as a just and compassionate society, is how we treat and aim to rehabilitate those who break the law.
Those then, I think, are the “big” themes that I have in mind this evening.
To start with, can I make a couple of key points, and be very clear? Our proposals for legal aid reform are NOT about abandoning the most vulnerable in our society by denying them access to legal advice if their situations demand it. At the heart of our proposals is a recognition that there will always be those who, by force of circumstance, need help with specific issues that affect them, and we are determined to protect that group of people.
On sentencing reform, you’ll be aware that we’ve come in for criticism from some in the media and others – they say our proposals are “soft justice” for offenders. Not so, I say, and I’ll explain why in a little while. I do sometimes despair that in some quarters there appears to be a determination to avoid an intelligent debate about the most productive ways of reducing reoffending, of preventing offending in the first place and, perhaps most importantly of all, trying to ensure that our young people do not get sucked into a life of crime, with the unwanted potential to become fodder for the criminal justice system for years to come.
A group like yours has an enormously important role; by coming together to share experiences from your “day jobs”; by contributing to thoughtful and informed debate; and by trying to discern the best ways of helping those in your care – some of whom, it has to be said, lack the will to improve their lot by themselves, and reject attempts to show them a better and more productive way, for themselves and for the communities they live among.
But we also have to take a long, hard look at the systems that are currently in place, and ask ourselves whether offending and re-offending has a chance of diminishing if we persist with them. That is why I make no apology for suggesting that nothing less than a “rehabilitation revolution” will do, if we are to achieve our aims.
So then, let me try to put some flesh on these “dry bones”. Since your group is primarily concerned with criminal justice issues, I’d like to start by discussing some of our sentencing and prison proposals.
Sentencing and penal reform
Of course we recognise that for some, prison is the only acceptable, safe place to be. Our proposals will not mean, as some have claimed, that we will be flinging wide the gates of the jails, with communities being imperilled as a result. But we are determined that those who are in jail should not be left to stagnate, with no sense of direction or purpose, and with no prospect of a useful future once they are released. For that reason, we propose the concept of “working prisons”.
There are very real benefits to prisoners and society from having prisoners working. Norwich Prison, which I toured today, has some great examples of this. Some of you, I’m sure, know of the Custody and Community Manpower Initiative. This is run jointly with Chapelfield Shopping Centre. Low-risk prisoners work for the community’s benefit and are rewarded with training and enhanced skills.
Those that have benefited from that skills training have included the Benjamin Foundation, which provides valuable services across Norfolk - from accommodation centres for homeless people, to one-to-one support for young people in schools. I was impressed to learn that the Foundation’s “Restore” shop was, with work by prisoners on the scheme, completed ahead of schedule.
I’m sure you have plenty of such examples you could share, and I would urge you to go out and spread this message: even those whom society might ordinarily turn its back on are capable of giving something back, with the promise for some, at least, of a brighter and more productive future for themselves and their families and communities.
And speaking of giving something back, we are determined to set up effective reparative schemes, so that those who cause harm to their victims make amends. We will also place a positive duty on courts to consider making compensation orders, and extend the range of unpaid work to benefit communities.
And as far as financial reparation is concerned, implementing the Prisoners’ Earnings Act will see more funds provided to Victim Support, for them to use for the benefit of victims and communities.
So we have been careful to balance the demonstrable public interest in reparation being made, with the very real incentives prisoners and communities get from working.
Giving prisoners the experience of work, both inside and outside the prison, learning disciplines and skills is, in my view, a critical factor in cutting re-offending.
But we have ambitions to go further. The Bill provides for a wider and more flexible scheme to be set up, which will increase the amount of reparative funds available to a broader cross-section of organisations which support victims of crime.
I am very pleased that Victim Support, among other organisations, has welcomed working prisons and our reparation proposals. I’d like briefly to illustrate some of the work they do.
Victim Support runs immensely worthwhile projects across your county, including support for vulnerable and intimidated witnesses. The young victims’ project focuses on taking the messages about the impact of crime and safety advice to schools, colleges and youth groups in Norfolk. It’s tremendously important that young victims of crime are given the best possible support when dealing with the after-effects of what has happened to them.
What is particularly innovative is that the project has a youth advisory panel, made up of young people who have suffered the effects of crime, to shape and support the service to young victims. I commend the project for the work it does in caring for these vulnerable young people – it is indeed a mark of compassion to strive to help them move on positively with their lives.
I’d like to say something in particular about some of our youth justice proposals. This is a really critical area. If we get it right, then we can look forward to making great strides in preventing young people offending, and providing the interventions necessary to make that a reality, as well as helping to support those whose young lives have already been affected by criminality.
A key priority is greater flexibility in youth sentencing. At the moment, young people are subject to the so-called “escalator” principle, which sees inflexible and ever harsher penalties doled out, regardless of the criminality involved each time. Our view is that this practice should cease. It cannot be right to require a court to deal with a minor offence – at increased cost - when this is neither proportionate nor necessary.
In order to break the cycle of offending, we need to be more imaginative in the range of disposals available - to divert young people away from the formal justice system when their offending doesn’t require it, and to the courts when a formal response is necessary.
By the same token, restricting the use of custodial remand to those young people who have at least a realistic prospect of receiving a custodial sentence makes sense. We need to target our resources on those for whom there is no alternative, at least in the short term.
We propose that local authorities should engage with and support young people to a much greater extent when they are remanded. Conferring looked after child status on all young people in that position will give local authorities an incentive to explore the types of non-secure remand that best meet the needs of individual young people.
I mentioned being imaginative with the range of disposals for young people, so let me take as an example referral orders.
Unlike the present system, we will allow courts to make repeat referral orders when they consider it appropriate. This is much more likely to have a beneficial long-term effect.
A key link to effective referral orders, and also conditional discharges as an alternative on the youth justice side, and with other types of community disposal, such as conditional cautions, is a restorative justice programme.
Restorative justice has an important part to play, but only so long as it is used appropriately, and that interventions are of sufficiently high quality and there are sufficient safeguards in place for victims. Our aim is to introduce a framework for best practice at all stages in the criminal justice system.
Restorative justice is NOT a soft option. Facing up to wrongdoing can be a difficult and unpleasant process, perhaps even more challenging in some ways than some of the more traditional criminal disposals. The work we’ve already done on restorative justice programmes shows us that many offenders find the process demanding and tough. We require offenders to take an active role in repairing harm, acknowledging the impact of what they’ve done and facing up to the consequences.
Figures from the Crown Prosecution Service show that, in the last 12 months, almost 4,500 conditional cautions were given with reparative and restorative conditions attached.
But it’s also worth bearing in mind that there’s a great deal of informal restorative justice work done out of court by the police, which doesn’t involve a criminal sanction. I think that’s notable because of what I said earlier – our goal must be to divert young people away from the criminal justice system whenever we can.
We’re looking across a range of possibilities, including improving use in community resolution to better tackle low-level crime, and embedding the role of victims in restorative justice at each stage of the process. We also want to work with sentencers to improve the advice they get about how they might take restorative justice into consideration in court, through pre-sentence reports and victim personal statements.
We’ll be establishing guidance and minimum standards, in co-operation with Youth Offending Teams and the Probation and Prison Services, to develop more and better restorative justice practices, both pre- and post-sentence.
I don’t want to be unduly prescriptive about the circumstances in which restorative justice might be used. I think it’s important that groups like yours engage with us to have that debate about providing the best possible outcomes for both victims and offenders.
So in all aspects of our sentencing reforms, the discretion of the courts is vital. Our goal is to give discretion back to sentencers. We’ll do this by introducing much more flexibility and a wider range of disposal options. We want to give power back to the judges and magistrates who actually hear the cases and are in the best position to deal with offenders.
Only those working within local communities understand the extent to which different types of crime are prevalent, and local justice requires flexibility in the kinds of disposals that are available. I hope one example will suffice.
We will allow sentencers to make better use of treatment requirements in community sentences, so that more people can have mental health, drug and alcohol issues addressed in the community. This is tremendously important for providing cohesion in the community, where those who fall prey to addiction or to poor mental health can still be valued and treated as members of that community. Strengthening bonds, enabling a shared understanding – this is what counts for the benefit of all.
The measure of a society is, as I said earlier, in part, in how it treats its offenders. Sentencing is complex and controversial. It is complex even for experienced judges – and I say that with no disrespect to some of the guests here this evening. There is something here, I think, about “seeing through a glass darkly”. We need to make the sentencing process clearer, transparent and honest. If individuals and communities continue to feel ill-used by the criminal justice system, we will struggle to build the confidence necessary for justice to be done, seen to be done, and felt to be done.
Legal aid reforms
Can I say something briefly about some of the proposed legal aid reforms?
Resources are scarce. I don’t need to tell you that. Local authorities, as well as central government, are having to make difficult decisions about the ways in which public money is spent. As I said in my opening remarks, our key aim is to preserve access to legal aid for those most in need of it.
We are prioritising those family cases where there is the greatest risk of harm – where cases involve domestic violence or child abuse. We are also prioritising mediation, because we think it is right that people, wherever possible, avoid going to court to settle private disputes. We expect to increase mediation funding by around £10 million a year, but numbers won’t be capped – we’ll fund these cases because we know they offer good value and a quicker and less adversarial route to resolution.
Some have tried to paint our desire to increase the level of mediation as simply a cost-cutting measure. That is too simplistic an argument. Mediation is good for its own sake. Successful mediation benefits individuals, communities and society as a whole. When it works, it draws the sting of personal animosity, of grudges, and of long-felt pain. It can have a healing effect and the power to transform people and their lives.
Legal aid will be available where there is a risk to life and liberty, and it is essential that it is so. I spoke earlier about our determination that the most vulnerable in our society will not be cut adrift.
The Government recognises the work done by the advice sector. I know, and you know too, how much valuable work they do in their communities. Local needs are best met by those with local knowledge and experience of the communities they serve. Advice agencies have built up an expertise that is invaluable, and we must continue to exploit that for the community’s good. To support them in their work, the Justice Secretary recently announced a £20 million increase in funding for the Not for Profit sector.
Competition strategy for offender services A word about competition strategy. Our aim is to use competition between those who provide offender services, to improve the efficiency and effectiveness of those services. A key aspect is the delivery of improved outcomes for victims, offenders and the wider community. Our primary focus is on value for money, service reform and innovation. We need fresh thinking to drive this process. Competition will provide us with the opportunity to implement our priorities. I’ve already mentioned the concept of working prisons and more intensive Community Payback work. We also want to make the creation of a drug-free environment in prison a reality. We intend to apply the principles of payment by results more widely, to ensure that the money we spend on rehabilitating offenders is spent effectively.
Payment by results is intended to change the way in which services are commissioned to deliver better outcomes for the public at the same, or less, cost. Providers will need to focus on the outcomes that really matter – reducing reoffending and crime, thereby improving public safety and preventing future victims. They will be able to try new and innovative approaches to managing offenders, and will be rewarded for their success. But if they fail to achieve reductions in reoffending, the taxpayer should not bear the cost of that failure.
A series of initial pilot projects will test the principles of payment by results and explore how we can encourage and develop a dynamic and effective mixed market of provision. Our aim is to promote a market which recognises the different strengths of different providers, whether they be from the public, private or voluntary and community sector. It’s not about privatisation - simply that harnessing the talents of all is an important step in delivering successful schemes.
Dr Martin Luther King had a vision of what he called “the beloved community” – an activism that moves beyond securing individual rights to a broader understanding of building a just and compassionate society for all people.
I want to echo that vision. We bring our individual experiences of what it means to be a member of society when we meet together. Sometimes it is difficult to persuade each other of our point of view. We are only human. But we function much better as a community and as a society when we pool our understanding of the complex issues that confront us.
In a sense, there is nothing more complex than a system of justice – because all human life is there. But that shouldn’t divert us from the simple tenet that a just society is an inclusive one.
And reforming the criminal justice process will not be easy. Not just because the laws we have made over the decades have complicated rather than simplified. Not just because the technical jargon confuses and frustrates. But because it’s about achieving a cultural shift in people’s attitudes and thinking. That applies just as much to the offender as to the victim; to the criminal justice professionals as much as to the media commentators; and to faith groups and churches as much as to those of no faith.
I started by saying this ecumenical forum has a crucial role to play in developing thinking and innovating change. I wish you success, and I’m delighted to have the opportunity to discuss some of the issues with you.