Joint Committee on Human Rights questions to Robert Buckland during Covid-19

This is a very short blog reflecting on the questions asked on Monday 20th April, by the Joint Committee on Human Rights, about the Lord Chancellor’s approach or understanding of the rights of children whose mothers are in prison at this time.

Baroness Massey led the questioning, and Harriet Harman, the committee chair, added supplementary questions. The Committee without a doubt understand that the rights of children are being breached in this circumstance. Robert Buckland unfortunately did not seem to understand the first question. He was asked how many women in prison are mothers, and how many of these women are in prison for non violent offences. He did not know the answer to the first question as no data is collected from women either at court or on reception to prison. It is a fundamental problem that children whose mother, often their primary carer is imprisoned, are not known to anyone. They receive no extra support in healthcare, education, or finance.

Instead of saying – we don’t know how many children are affected he tried to answer the question as if he’d been asked how many pregnant women are in prison, and how many mothers and babies are in prison. Shockingly – given the Human Rights Committee had yesterday posted their questions for today on twitter – he actually didn’t know those figures either. How can it be that no one is able to count up how many children under the age of 18 months are currently held in our prisons? I would have thought they’d be quite an easy population to spot.  He thought maybe both groups totalled less than 100.  So far 17 pregnant women have been released, despite the government’s promise 20 days ago  to release  pregnant women and mothers and babies. Not good enough.

Baroness Massey brought him back to the issue of children under the age of 18 who are living through this pandemic; children not in school, at home, without their mother who was perhaps their primary carer. He was asked what contact children are having with their mothers. The answer for most children I believe is very little, but he said that there are now telephones in every cell, so the implication was that children can talk to their mothers as often as they want. We know of course that even if there are now phones in every cell, the price of prison calls is prohibitive and it is unlikely that families at this time have the funds to spend on frequent calls.

He was asked whether given that the right to family life has now been removed in whole from this group of children, there shouldn’t be consideration of releasing non violent women who have children under the age of 18. Here Robert Buckland reminded us that many women are in prison on short sentences and therefore they will come under the early release scheme – but to the best of my knowledge a handful of people have been released under that scheme, and it was in fact halted last week after administrative error.

Robert Buckland’s reason for not considering the course of action suggested by the question was that courts have decided these women should be in prison, and therefore he shouldn’t interfere.  The 2019 General Guideline: Overarching Principles, includes a very full section on the consideration a court should give to a defendant’s dependants when deciding on sentence. The court must consider the impact on the dependants and the impacts may make a proportionate sentence disproportionate. When most of the women in prison were sentenced we were not in lockdown. Prisoners were not kept in their cells for extended periods of time. Children were allowed to visit their mothers and fathers in prison. Children were not at home full time, not attending school, and we were not all fearing that our older and vulnerable family members would catch Covid-19 and die.  There was not an increase in anxiety and suicide attempts among teenagers who are struggling with lockdown and whose GCSE and A Level exams have been cancelled leaving them with little sense of what the future holds for them.  People had not lost their jobs and income or been furloughed. There was not an increased risk to vulnerable children.

So when sentencers sent these women to prison, and balanced the impacts on their dependants they did not take all these things into consideration. The balance of risks has changed. We are not where we were as a country or as individuals 5 weeks ago.

The Lord Chancellor, in my opinion, cannot defend his decision to not even consider this cohort by saying that the sentencers have already taken all circumstances into account. Tellingly he said that he couldn’t do it because it had to be done in a way the public would accept so that the public retained confidence in the justice system.  The Chair responded to this very robustly, suggesting to him that he perhaps doesn’t have enough confidence in the public.  As a senior judges says in the film Safeguarding Children When Sentencing Mothers, it is for sentencers to do justice. And this is not only justice for the victims and the defendants but they must also do justice for the children of the defendants.

The current situation is not providing justice to anyone, other than an imagined public who want people in prison, whatever the cost.

Where does this leave us ? We still don’t know how may pregnant women are in prison, although we know their babies’ right to life is under threat. We don’t know how many children under 18 months are in the prison estate right now. We don’t know how many short sentenced women are the primary carers of children under the age of 18. We do know that the Lord Chancellor is reluctant to act courageously.

I am grateful to the Joint Committee on Human Rights for trying to hold this Government to account, and to Baroness Massey and the Chair in particular, for their questions today.



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