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Speaker: The Rt Hon Kenneth Clarke MP, QC, Lord Chancellor and Secretary of State for Justice

Kenneth Clarke MP, Secretary of State began by thanking the chair for inviting him and saying how glad he was to be there. He said he was not going to talk for long because he preferred to answer questions. He continued. ‘We have produced this monster bill, a real leviathan of a bill. People with an interest in the subject will be reasonably familiar with it. We spent a long process going through consultation on the Green Paper. We responded to that last week and I made a parliamentary statement on it then. We’ve had parliamentary questions again today, and we’ve got a second reading of the bill tomorrow – and there’s an awful lot of it. So what I will do is just briefly touch on where I think we are, and then answer questions, and try to explain why we’ve reached the decisions that we have.

The criminal justice sentencing part of the bill I believe to be a very balanced package of radical reform, and I believe it is quite essential to introduce something of this kind, in order to get the system functioning properly again in the public interest. I wish I had been able to pass a bill of this kind twenty years ago when I was at the Home Office. At times I’ve disapproved very strongly of what happened in the intervening period. But I think we are now driven to doing something very radical about what we have. It coincides with my own particular views. I’ve always been liberal on economics and liberal on social policy. Free market economics combined with enlightened social reform, that’s always been my credo, and we are driven to both on this occasion.

One of the drivers is that we are in the worst financial crisis that anyone alive can now remember, and the whole prison management and prison system has exploded beyond any ability of the economy to afford a continued surge in it.  Meanwhile this rapidly expanding prison population is not serving some of the key social purposes it should have. Plainly prison exists primarily as a form of punishment for serious criminal behaviour, retribution on behalf of the public and so on, but it is supposed to combine that with some reformative quality as well, and the central feature of what I have set out to do is to tackle what I think is the worst failing of the present system, both the prisons and the youth services actually, which is the scandal about reoffending rates. You won’t reduce crime if you don’t reduce the number of people coming out as slightly toughened up criminals who are about to commit some more crime when they finish their sentence. The figures are truly disgraceful, with the proportion of people sentenced who are actually serious recidivists steadily rising all the time. We know that half the people in prison at the moment will reoffend, be caught and convicted within twelve months of release, and three quarters of them will go on to commit more crime.

All this we have tried to tackle in the criminal justice part of this monster bill. The legal aid bit is quite formidable as well and I will answer questions on that if people want to ask me.  I hope you are familiar with most of the things we’ve put forward. The thing I would expect to get most support for from the Prison Reform Trust is the moves we are taking on indeterminate public protection sentences. Many of you here who are, will be familiar with David Thomas’s book on sentencing, the bible on sentencing for practitioners. He described the IPP sentences, which were brought into effect in 2005, as ‘an unmitigated disaster’. They have never worked as parliament intended, creating a flawed system, not well understood by the public and vulnerable to legal challenge. We will replace them with a tougher determinate sentencing framework.

Other obvious problems we are tackling: we have far too many people on remand awaiting their trial in circumstances where they are not actually going to be sent to prison when they are sentenced. In principle we are changing the situation so that it’s not possible to remand in custody someone who is plainly unlikely to get any kind of custodial sentence when he comes before the court, and either pleads or gets convicted of a criminal offence. However we will make an exception for domestic violence cases.

I said I wouldn’t talk for long. The balance of the changes is genuinely reformative, getting rid of some of the worst features of the present system. There is a whole lot of other stuff which reverses a lot of the other bad effects of twenty one Criminal Justice Bills in thirteen years, by simplifying the system, restoring some discretion to the judges where it was quite ludicrously taken away and also we have plans for community sentences and those who administer them. I don’t think we can get rid of all short term sentences. I think that sometimes there is no alternative. Community sentences don’t carry adequate public confidence, and I have to admit that I share some of those doubts about them in some cases, so we are going to try to make them more effective. Unpaid Work is one of the best things, in the right case, because you combine a punitive element – doing work which you are not paid for – with some restorative effects as well, getting people into the habit of working, discipline and doing something that makes them realise that they can do some good for the community in which they live. It is not properly organised at the moment. People can spend years putting in the necessary hours. It isn’t supervised as strongly as it should be in some places – people come when they feel like it – so we are trying to tighten that up. We’re making more use of technology, tagging, curfews and all that kind of thing.

Otherwise we’re trying to make community sentences less prescriptive. Parliament has taken a constant joy in passing criminal laws every year, making it ever more clear what people are meant to do, so all professional judgement has been subordinated, in the probation service and elsewhere, to a rather ludicrously mechanical exercise. The same is true for how you recall people from licence and how you manage licence. We have got to have a service which is allowed to get on with its job. And we will also have some reforms sooner or later which will improve the quality of the support we give to community sentences and elsewhere.

Then there is the question of what happens in prison itself. There is a lot of very good work done already.  It’s not an easy job. But there is a limit to what they can do. Prisons are grotesquely overcrowded, which cuts down one’s ability to do what otherwise one would like to do. Although there are some very good exceptions, the regime is one of bored idleness for a very large amount of the time, which doesn’t do anybody any good at all. We therefore have a programme of trying to get organised work and training into prisons. There are fewer of the old prison workshops than there were twenty years ago when I used to lead on prisons. Accommodation needs have closed quite a lot of them down.  Although we have some good companies going in to run training, and some very good examples, they are very rare. By and large, we want to develop prison industry, to develop arrangements with outside private employers so that you have a sensibly structured ability to provide worthwhile employment experience for people in prison; to pay them, whilst making sure you don’t put competitive firms outside out of business.  Again, we want this organised properly, so we have a means of getting people into some disciplined work, and some training. And we are about to activate a Conservative Act, which has never been activated, to pay prisoners, then make deductions from their pay, to the costs of victim support of one kind or another. We’re very keen on that.

I don’t underestimate the difficulties of all this. In public speeches I try to avoid overselling this, because it’s hard work. I’ve tried it before, and getting it properly organised will take some time to spread through the system.  But we are going to put a real effort into it. I visualise that one day we will have a wide range of availability of places and a serious working environment inside for all those prisoners who want to do so. The experience from abroad is that prisoners actually have to go on a waiting list to get in, because for the sensible ones it is so much the sensible thing to do with your time, rather than hanging about on the wings.

The other thing we are going to tackle is to try to stop the ready availability of drugs in the prison system. I try to avoid overusing the word ‘scandal’, but it’s one of the most extraordinary features of our system.  We are trying drug free wings, and we are also trying a much bigger drive on rehabilitation in prison, working with our colleagues in the health department as well, with the aim of doing something about the drug situation.

That’s part of the other major feature of our reforms. We’re concentrating on reoffending, concentrating on the rehabilitation of offenders, trying to do something to cut back on these appalling rates of further criminal behaviour. The main innovation is the contracts, on a payment by results basis, with public sector prisons, private sector prisons, community sentence providers, acting - as they’ll have to, to deliver - in consortia, in collaboration with voluntary bodies, community bodies and so on, entering into contracts whereby the reward, the payment, will vary.  There will be a return on the ethical investment for those who can demonstrate results, by way of reducing reoffending, and as they share the risk, a loss for some of these investors if it turns out that they make no material difference to the group of people they take on. It’s pretty straight forward, crude really, but a big improvement on trying one thing after another, and also the only way of proceeding at a time when finances are rather tight. Indeed I want to reduce the pressures on the system. There’s this idea that I am aiming at reducing the prison population. Much though I might quite like to see it, I have no means of controlling the population. It is the judges who will determine what the population is. But I would like to stop the remorseless growth, and ease the pressure, because it leaves you more room to do things like rehabilitation and payment by results. You’ve got to have some cash up front, some cash savings, to be able to pay for results.

Finally, we’ve got to keep the costs of the prisons down. Like every other public service we’ve got to save on costs. I’m afraid I am one of those who believe in competition. Not in aid of choice by our residents but choice where the government’s concerned. We have a tendering process, whereby we test the costs and the quality of the regime. We want to pay for a combination of quality and cost, not necessarily for the cheapest bidder. We have a programme of steadily going out to tender to groups of prisons, and awarding the contract to the person who produces the best overall value for money for the public. The last government was going through the motions, but we are doing it seriously. The other thing I like about contracts is that you can stipulate the quality of the regime, and impose penalties if people do not deliver what they are supposed to be delivering. I’m also looking for innovation, so it’s likely to be an advantage to a bidder if they can demonstrate the likelihood of introducing this working environment, or the likelihood of an element of at risk reward for reoffending rates into the contract and so on.

So, I’ve been as short as I can. I’ve left vast swathes of the Bill out, and of course the Bill is parked alongside some of the management changes we are making to alter the whole approach to crime and punishment, particularly so far as prisons are concerned. The aim remains to protect the public, and also to satisfy the quite legitimate public expectation that we are going to punish serious offenders. But there are more intelligent ways of doing it than the way in which we have been doing it in the recent past, in my opinion, and we hope to be able to make considerable advances over the next few years as we roll this programme out. What we are actually doing is making a serious and determined effort to introduce some positive policies on criminal justice that will deliver a better criminal justice system. I’ve left out the courts, legal aid, and all the other things. But we have taken on a most enormous agenda, and it’s quite important to push it on.’

Lord Corbett thanked the speaker most warmly and opened the floor to questions.

Lord Ramsbotham said that although he was entirely with the speaker on his intent, he was desperately worried that the current system was not robust enough to deliver the changes he wanted to see. The Toe by Toe scheme, run by the Shannon Trust, involved prisoners teaching other prisoners to read. Would the encouragement of more such schemes to unlock skills be a way forward at a time of scarce resources? He had found, as Prisons Inspector, that the prisons where people were occupied were the prisons that had least problem with drugs, too.

Kenneth Clarke MP agreed about delivery. Any idiot could write a Bow Group pamphlet. The challenge lay in the implementation. NOMS was a lot better than it had been, though it had been a disastrous idea to set it up. He entirely agreed about the value of the use of prisoners to teach and mentor other prisoners, and ex-offenders too. He also thought that getting the right people in as governors, giving them more discretion, and leaving them there long enough, was vital. The average term for a governor was three and a half years.

Claire Perry MP thought that the bill did a good job of throwing red meat to the tabloids whilst slipping in some good stuff about rehabilitation. However she noted that women were not explicitly mentioned in the bill, and she also voiced concerns about the proposed legal aid changes, and the resultant loss of access to justice. She wondered what the MoJ team was doing to monitor that.

Kenneth Clarke MP To be fair to the previous government, he thought they had done good work on women prisoners. The number of women in prison was continuing to decline, as was the number of young people and juveniles – although the number of adult males was continuing to rise, and acquisitive crime was beginning to increase, with the recession. Whilst women who were violent should be treated in just the same way as men, it was also the case that really good community sentencing could work well for women with multiple social problems, particularly where they had responsibility for children. The reason women did not feature in the Bill was that no legislative change was needed to support such initiatives. As regards legal aid, the system we had was grotesquely expensive, and had expanded out of all proportion over the past decade or two. Of course the tax payer should pay for the poorest and most vulnerable to receive proper legal protection. But it was necessary to cut back elsewhere. He knew it would be ferociously controversial, especially amongst lawyers, but he had listened to all the views expressed during the consultation. If all the cut-backs went through, we would still have by far the most expensive system in the world.

Baroness Masham regretted the loss of the Prison Service’s farming and horticultural activities, which she thought had real rehabilitative power. Would these ever be restored? And what about the mentally ill?

Kenneth Clarke MP shared her regret, but thought that the restoration of farming and horticultural activities was unlikely. Pressure of population and costs had largely wiped these out. Although he agreed they probably had some therapeutic value, they rarely led to employment.  He agreed that the mentally ill had to be taken out of the prison system. There were better places to treat them than in prison.

Lord Cobbold wondered whether the decriminalisation of drugs would help.

Kenneth Clarke MP said that he had never been persuaded by the arguments for decriminalisation of the possession of drugs. He thought that decriminalisation would cause a surge in the numbers of people experimenting with drugs, and that it was a dangerous route to take.

Lord Carlile wanted to return to the issue of mental health. He had seen a very variable quality of mental health care provision over his many visits to prison. Could the Secretary of State ensure that, when the tendering process took place, the prison committed to providing adequate treatment facilities inside, and also the capacity to divert to such facilities as existed in the NHS?

Kenneth Clarke MP responded that he thought things in prison had improved, but that this remained an important consideration.  MoJ staff were concentrating on working with the national commissioning board of the health service, to ensure that prisoners remained a priority, both in terms of diversion out of the criminal justice system and on the creation of proper secure accommodation in the community. Andrew Lansley had a programme for improving community mental health care. However the need for secure prison provision for some offenders with mental health problems would remain, and had to be dealt with sensibly. They were still experimenting with contracts, but were anxious to do something, rather than studying the results of the pilots for five years.

Baroness Gibson wondered whether the Secretary of State had plans to develop prison officer training. In her experience, most officers well understood the correctional aspect of their role, but less so the social and welfare side.

Kenneth Clarke MP said that he would take this up with Crispin Blunt MP, the prisons minister. One thing that had always struck him about prisons was the very different cultures that existed, some being enlightened, whilst others were dreadful.  In some of the meetings and visits he had made, a high proportion of officers had been keen on the idea of doing something more sensible with prisoners and anxious to get involved.

Lord McNally had been surprised to learn that the average term of a prison governor was only three and a half years.

Kenneth Clarke MP agreed that it was regrettable, and both NOMS and the Prison Governors Association concurred, but that sometimes governors had to be reshuffled quickly.

Paul Flynn MP noted that since Ann Widdecombe had pledged to clear drugs out of prisons, he had put down a question asking Home Secretaries to list the drug-free prisons but they hadn’t managed to provide a single one. How was the speaker proposing to change that? Where were drugs in prison coming from?

Kenneth Clarke MP responded that a combination of rigorous security measures was required. Drugs were coming in through visitors, staff, or over the wall. It was vital to stop thinking that drugs kept prisons quiet and orderly. Maintaining prisoners on methadone ensured a black market in that too. It could not be beyond the wit of man to achieve this. The management were up for it. But every aspect of the supply had to be tackled, and it had to be taken seriously.

Baroness Linklater was very appreciative of many aspects of the Bill, especially the emphasis on the value of community penalties in tackling the scandal of reoffending rates. However there was a huge underlying worry. Without an adequate supply of high quality schemes in the community, the low risk offenders diverted from custody would go on to reoffend, and those back-benchers who thought that ‘prison worked’ would feel vindicated. She yearned for reassurance that there would be more resources for community sentence schemes, so that this wonderful vision could be realised.

Kenneth Clarke MP replied that there could only be more resources if the growth of the prison population could be stopped. This was accepted even by critics, both here and in the US, who were neutered by the current financial situation.

Lord Judd wondered whether part of the problem was that the speaker was expected to produce results in such a short time frame. He very much shared Baroness Linklater’s concerns, on the basis of his long experience in the voluntary sector. There would be a shambles if these schemes were not properly financed. He recalled the enlightened policy of emptying the lunatic asylums. But there were not the community facilities available, and it was a terrible mess. We had to be very careful. Many in prison were themselves victims, and it was vital to rebuild relationships and self-confidence, with consistency, and over time.

Kenneth Clarke MP acknowledged that the funds saved by the closure of the asylums had not been reinvested in care in the community, but on more attractive things at the time.  However the MoJ had a narrower focus, so they were more likely to be able to close the loop. Mental illness was a wide bracket, and the public was reasonably sympathetic to the view that those who were mentally ill should not be in prison.  The proportion of prisoners with a personality disorder of some kind was very high, and it was not realistic to think that all of those would be transferred to mental health provision in the community. However the health service had more secure mental illness provision than it used to have, though it was expensive. As to the treatment of offenders generally he thought they had the right balance. He was now labelled as far more of a liberal than when he had been Home Secretary, but he remained convinced that some of the people in prison were dangerous individuals, and some were professional criminals. However he agreed that many were victims who hadn’t had the right start in life, and some preventative work was necessary. If he could get the 50% reoffending rate down to 40% he would think he’d made the world a better place. Politicians had to pretend they could deliver things in 4-5 years, but they couldn’t. He’d tried it with health reform. Twenty years later they were still trying to go in the same direction. But he hoped he could do enough in this parliament to change the situation of politicians competing to sound tough. There would be a number for whom there was no alternative to prison, but you could do something about the nuisances, the inadequates, those who needed support to be rehabilitated from their drug or alcohol abuse, and make a difference.  It would take a long time for attitudes to change - although it hadn’t taken long to go in the wrong direction. The prison population had swelled from 45,000-85,000 in double quick time, and the Americans had tripled theirs. But he hoped to make a start.