Illegal Migration Bill

Baroness Chakrabarti Excerpts

Committee stage
Monday 5th June 2023 Lords Chamber

In conclusion, the LGBT exclusions in the amendments I have referred to and co-signed are based on case law, Home Office country of origin information, Home Office country policy and information notes, and incontestable facts and information.

[Baroness Chakrabarti (Lab)]

My Lords, I rise in support of Amendment 53 tabled by the noble and learned Lord, Lord Etherton, and moved by the noble Lord, Lord Carlile of Berriew, also signed by the noble Lord, Lord Anderson of Ipswich. While I support everything said so far, I wish to draw the Committee’s attention to this amendment in particular and its constitutional importance, given the constitutional conceit of this whole Bill.

If I have said it before, I hope the Committee will forgive me: the conceit of this Bill is for the Secretary of State, via primary legislation, to tie her own hands and give herself a duty to do something that we believe to be unlawful. The reason for tying her own hands is to avoid the interference of the courts. That is, in essence, the conceit at the heart of the Bill. It goes a little further. The Home Secretary is tying her hands with a duty to remove people to a list of countries, but it is a list that she may add to. Now we are very permissive and the hands have become untied in a fairly fluid way when it comes to adding further countries to this list of supposedly safe countries in Schedule 1.

The contents of Schedule 1 therefore become quite important, hence the various submissions that are being made and the various amendments that are being tabled in Committee about this country or that country, not just as they are at this moment but, in a very difficult world in flux, regarding what may or may not happen in them in the future. The present Home Secretary, and Home Secretaries of whatever stripe of Government in the future, will have this duty to remove people to countries on a list which they may add to by secondary legislation. Therefore, the factors that they must consider as Home Secretary when adding to that list are incredibly important. I hope that the Committee agrees.

The factors for deciding whether a country is safe to add to the list are in Clause 6, particularly Clause 6(4), for those who can still pick up a Bill at this time of night:

“In deciding whether the statements in subsection (1)(a) and (b) are true … the Secretary of State … must have regard to all the circumstances of the country”.


Well, of course. That is a bit of a non-protection, because we would hope so, would we not? Secondly, the Secretary of State

“must have regard to information from any appropriate source (including member States and international organisations)”.

With respect, that is not enough. Therefore, it is worth being explicit about what has been done in Amendment 53, tabled by the noble learned Lord, Lord Etherton, and supported ably by the noble Lord, Lord Carlile of Berriew, which I support. They have beefed up that second limb, so that it is not just having regard to appropriate information. What does “appropriate information” mean—appropriate information as determined by the Secretary of State in this beautifully circular process? Instead, the Secretary of State must

“apply relevant decisions of courts and tribunals operating in the United Kingdom”.

There is a radical suggestion. The Secretary of State must have regard for the law and apply the law of the United Kingdom—the case law of our courts in this country—about the safety or otherwise of these countries that might otherwise be added to the list of the countries to which the Secretary of State will have a duty to remove people.

I almost choke on my words that this has to be put in law, but we are in a place of such disregard for our domestic courts. Therefore, the noble and learned Lord, Lord Etherton, and the noble Lord, Lord Carlile of Berriew, were quite right to insist at the very least that this should be clear in the legislation before a future Secretary of State can add further to this schedule of countries to which people must be removed by current and future Secretaries of State.

Perhaps more controversially—not for the Minister currently sitting opposite but to others, although I hope not—in addition to applying the law of this United Kingdom, as has become our custom as good members of the Council of Europe and under the Human Rights Act, the Secretary of State, before adding countries to this list, must

“have regard to decisions of the European Court of Human Rights”,

so please do not add further countries to this duty to remove unless you have applied the law of this land and had regard to the European Court of Human Rights. The Minister is a distinguished former judge. He is unique in this Committee and on the Benches opposite as an international lawyer, as opposed to being just any old lawyer, like me. Like the noble Lord, Lord Carlile of Berriew, I hope that he will see the good sense in the amendment tabled by the noble and learned Lord, Lord Etherton.

[Lord Scriven (LD)]

My Lords, I was not going to intervene in this particular group of amendments but, seeing that the two Front Benchers have agreed we are going to stay until 10.40 pm, and as I believe we should not be rushing through groups, I will add my bit to scrutinising the Government’s thinking on these particular amendments.

I have done a lot of work with groups in the UK who work with individuals who have sought asylum because of their sexuality, sexual orientation or gender identity. It is not a straightforward assumption that people come here and the first thing they do is claim asylum on the basis of their sexuality or gender identity. They have lived in countries where to trust the authorities with personal information about your sexual orientation or gender identity would mean either jail, persecution, discrimination or in some cases death.

So when a lot of people come here who are claiming asylum or wish to claim asylum on the basis of their sexual orientation or gender identity, they tend not to tell the authorities to start with. They tend to keep it private and very much to themselves. It is through a process of working with a number of non-government organisations and gaining trust during the interview process for asylum that, maybe on the fourth, fifth or sixth intervention with an official in the UK, they may start to open up. That is when many individuals who are claiming asylum as part of the LGBTQ+ community start to open up. They are secretive and they do not trust authority to start with.

This Bill gives them absolutely no way to explain why they are claiming asylum before the Government, under this Bill, make a decision that they could go to a country where they are in as much or more danger as in the country they have just come from in terms of their sexual orientation or gender identity. I am not clear how the Government come to the view that certain people, particularly gay males, transgender people, or people who are struggling with gender identity issues, are going to be able to go to a country of safe haven under the provisions of this Bill. If somebody is fleeing a country because of their sexual orientation or gender identity, they will maybe go to Gambia or Ghana or Jamaica. One only has to look at the Government’s own website to see travel advice that makes it very clear that these are not countries that you as an LGBT person should go to and be open, even if you are a tourist. The words that come out are “conservative” and “reserved”: “attacks” occasionally appear. So I just wonder how the Government have come up with this schedule, particularly with the process that a lot of individuals go through in terms of claiming asylum for sexual orientation or gender identity, knowing that it tends not to be something that is divulged instantly on the first interview, and then saying that people can go to countries, as I have suggested, and be safe. How would they know they are not sending somebody to a country where they are not safe?

I will move on slightly, because I was quite intrigued by the Government’s website on travel advice. With quite a lot of these countries, the Government’s own advice is that some of them are quite violent, with “express kidnappings” referred to in certain countries. If noble Lords do not know what an express kidnappings is, because I did not, it is literally that somebody will come, be able to determine that you are not from that country, assume that you are a foreign national, kidnap you instantly off the street, and then determine who your relatives are and where you have come from, and use you as a potential source of income, including potentially injuring you and in some cases killing you. On the Government’s website, with some of the countries on this Schedule 1, express kidnappings are there.

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[Lord Bellamy (Con)]

It will remain a question of fact in each case and the examples of relevant harm are set out in Clause 38(4), which refers to

“death … persecution … torture … inhuman or degrading treatment or punishment”

and where onward removal would raise a risk of

“real, imminent and foreseeable risk of … harm”.

If that in practice amounts to a situation in which you could not send a gay person back to that country, that would be a decision for the tribunal.

[Baroness Chakrabarti (Lab)]

I am so grateful to the Minister for responding with his characteristic courtesy and patience. I think I can help him, because I think the problem here arises from the Government own cake-eating, if I can put it like that. The general proposition in the Bill is that we will now decide on a blanket basis that people are to be removed, regardless of their circumstances, because of the means of their arrival, not because of the circumstances of their past and their persecution. Fair enough; that is the thinking behind the Bill. Then the Government say, “Here is the schedule of safe countries”, again on a blanket basis. Then the Government say, “But only for men”—so they have already adopted the approach that there are some countries that are safe for men but not for women. But then when my noble friends and other noble Lords in the Committee say, “But gay people are a vulnerable group in many parts of the world, just as women are”, the Minister is, I think, forced into the Government’s position of saying, “But women are not a precedent”.

That logic is not standing up to scrutiny, in this Committee at least, so I hope that, after Committee and before Report, the Minister might just consider that issue of gay people, or LGBT+ people, in particular. We all know, in this Committee, that just as there are some countries that may be safe for men but not women, there are many countries that are not safe for queer people either. Rather than playing on this sticky wicket, which he, with his characteristic grace, handles with great aplomb, perhaps before Report, the Government could think again.

[Lord Bellamy (Con)]

My Lords, the Government will of course consider that, as we try to consider everything that is said in this House, before Report. I simply reiterate that under Clause 5(3)(d), it still has to be

“a country or territory to which there is reason to believe P will be admitted”—

and that is probably not very likely to be satisfied in the particular countries we are talking about, such as Ghana, for example. Having responded to the noble Baroness, Lady Chakrabarti, the Government will of course consider the position.

Prisons: Education

Baroness Chakrabarti Excerpts

Thursday 23rd March 2023 Lords Chamber

[Baroness Fox of Buckley (Non-Afl)]

My Lords—

[Baroness Chakrabarti (Lab)]

My Lords—

[Baroness Williams of Trafford (Con)]

My Lords, it is the turn of the noble Baroness, Lady Fox.

Independent Public Advocate

Baroness Chakrabarti Excerpts

Thursday 2nd March 2023 Lords Chamber

[Lord Bellamy (Con)]

My Lords, the noble Lord, Lord Carlile, makes a very powerful point. I think it is related to all the issues we have in this particular area, in relation to legal aid, costs to the system, legal aid for inquests and other inquiries. The principle of proper representation is accepted, I am sure, on the part of the Government. How exactly we implement it and where the funding comes from is a matter for further discussion, I hope on a consensual and collaborative basis.

[Baroness Chakrabarti (Lab)]

In the same spirit as that question from the noble Lord, Lord Carlile of Berriew, I have a concern about equality of arms in terms of representation before inquests and inquiries across the piece. I understand concerns about spiralling costs in some of these matters, but it seems to me that often, particularly in inquests but also in inquiries, public bodies are heavily represented. It seems totally iniquitous that public money will be spent with no upper limit to represent those public bodies that may be in the frame for negligence or wrongdoing, but that there is only exceptional case funding and tighter caps on the victims and their families. Is this perhaps something that the Minister, in the collaborative tone that he has adopted, might think about? Might that potentially be within the scope of the Bill itself, or at least the package that should support this enterprise?

[Lord Bellamy (Con)]

I thank the noble Baroness, Lady Chakrabarti, for that question. The question of equality of arms is very much on the Government’s minds at the moment. The point has also been raised by Sir Bob Neill and the Justice Committee that there should be parity and equality of representation. We should do something to level up the ability of families who are up against what appears the be the apparatus or full panoply of the state, as part of levelling up in general. I think that the IPA is an important step in that direction; exactly how we ensure that kind of equality of arms, how it is funded and how we go about it, is something I look forward to having further discussion with all parties about.

Probate: Waiting Times

Baroness Chakrabarti Excerpts

Thursday 8th December 2022 Lords Chamber

[Lord Bellamy (Con)]

My Lords, first, I apologise to my noble friend and all those affected by unacceptable delays in the probate registry. Secondly, active steps are being taken to fix the problem. Some 76% of all applications are now made digitally. The problem arises in so-called stopped cases where an element, such as a document, is missing or a query arises. That is where communications have been less than perfect. The registry has now recruited more than 100 staff to make sure that phone calls and emails are answered properly and that the web chat facility, which deals with around 200 calls a day, works well. My colleague in the other place, Minister Freer, is monitoring this closely. I am told that telephone answering times have now come down to less than 10 minutes. We are determined to ensure that that progress continues. I fully accept that, in a time of bereavement, the service in the probate registry must be beyond reproach.

[Baroness Chakrabarti (Lab)]

My Lords, will the Minister join me in congratulating his noble friend, the noble Baroness, Lady Meyer? This is not the first time in a distinguished career in public service that she has converted personal grief into public campaigning and courage on behalf of other people. I am very grateful for her intervention. The justice system is creaking under the weight of years of austerity. Digitalisation may be part of the answer but it is not the whole answer when there are human beings involved. Perhaps the Minister might meet his noble friend to get some direct experience and advice for his department moving forward.

[Lord Bellamy (Con)]

I fully associate myself with the noble Baroness’s remarks. It is completely right that these issues should be raised, and I congratulate my noble friend Lady Meyer on raising them. I have already met her to discuss this problem. In fairness to the probate registry, I simply point out that we are still enmeshed in the aftermath of Covid. Excess deaths are currently running 13% above the five-year average. The first half of 2022 saw 16,000 extra applications above the same period in 2020. So there is a challenge here. I assure your Lordships that, as far as I am concerned, this issue is being monitored closely and everything is being done to correct it.

Rape: Prosecutions and Support

Baroness Chakrabarti Excerpts

Tuesday 29th November 2022 Lords Chamber

[Lord Bellamy (Con)]

The Government hope to bring forward the victims Bill as soon as possible but have no present plans to change the legislation on violence against women or, indeed, anybody else.

[Baroness Chakrabarti (Lab)]

My Lords, many women are facing a crisis of trust and confidence in the criminal justice system at the moment. I appreciate that the Minister is relatively new to this arena. However, there are people who believe that rape has effectively been decriminalised in our jurisdiction. That is a very serious matter. Would he consider meeting me, perhaps the noble Baroness, Lady Newlove—who is not in her place—other interested Members of your Lordships’ House and victims’ groups, including the Centre for Women’s Justice, to hear their experience before taking this work further forward?

[Lord Bellamy (Con)]

I would certainly be prepared to meet the noble Baroness and others and, on that occasion, take everyone through the steps that we are taking to combat this problem.

Lammy Review

Baroness Chakrabarti Excerpts

Monday 28th November 2022 Lords Chamber

[Lord Bellamy (Con)]

My Lords, stop and search is a matter primarily for the Home Office and the police, but I know that there is special training for police services in relation to this, including better use of body-worn cameras and other action taken to ensure that stop and search is less of a problem than it has been hitherto. In relation to charging, the Lammy report found no discrimination by the CPS in charging decisions, but there is ongoing academic work to establish exactly what the position is as far as the CPS is concerned.

As far as other matters are concerned, this is very much a matter of trust in the system between the ethnic minority and those who are dealing with that person. One of the things in train in the police station is a trial of an opt-in system when legal advice is available. As noble Lords know, free legal advice is available to everyone in the police station. The take-up by ethnic minorities is not very great, because it has to be asked for, but if it is given automatically and the person has to opt out of it, that could make quite a difference in building trust. That is an important initiative currently in train that I hope will bear fruit in due course.

[Baroness Chakrabarti (Lab)]

My Lords, returning to the sensitive but vital subject of judicial diversity, it has long been understood that, in order to do its job, our highest court must have at least one senior justice from Northern Ireland and one from Scotland. Yet, to my understanding, not once have we ever had a black or brown senior justice as a Law Lord or, latterly, in our Supreme Court, notwithstanding the Privy Council, Commonwealth and Empire heritage. Is that really acceptable? Is it not time to experiment with time-limited affirmative action?

[Lord Bellamy (Con)]

That is a matter for the Judicial Appointments Commission. I cannot challenge the facts that the noble Baroness presents. This is certainly an area on which continued work is necessary.

European Court of Human Rights

Baroness Chakrabarti Excerpts

Monday 5th September 2022 Lords Chamber

[Lord Bellamy (Con)]

I think the answer to that question is in the affirmative. The UK Government follow carefully any case that concerns UK citizens under the convention.

[Baroness Chakrabarti (Lab)]

Does the Minister, as a jurist of some distinction, agree that dialogue between domestic courts and international ones is incredibly important, and that is what is enshrined in the Human Rights Act?

[Lord Bellamy (Con)]

I thank the noble Baroness; I entirely agree with the importance of dialogue.

European Convention on Human Rights

Baroness Chakrabarti Excerpts

Monday 18th July 2022 Lords Chamber

[Lord Bellamy (Con)]

The Government have set out their position in the manifesto upon which they were elected. There is no change to that manifesto.

[Baroness Chakrabarti (Lab)]

My Lords, I, for one, am very grateful to the Minister for the clarity of his Answer. However, I am concerned that the more popular of the two candidates in the Conservative race for the premiership who have committed to staying in the ECHR has been subject to an absolutely disgraceful campaign of smearing in the right-wing press. Can the Minister give some fatherly advice to these candidates that when they launch Islamophobic and misogynistic attacks on each other, and when they attack human rights, it is bad for his party and for the country?

[Lord Bellamy (Con)]

I am not in a position to give fatherly advice to anybody. The Government do not support misogynistic or Islamophobic attacks on anyone. I have set out as clearly as I can the Government’s policy, and I shall doggedly pursue that policy unless and until instructed to the contrary.

Human Rights Act 1998

Baroness Chakrabarti Excerpts

Thursday 14th July 2022 Lords Chamber

[Baroness Chakrabarti (Lab)]

My Lords, I should declare that I was a lawyer in the Home Office in the late 1990s during the preparation and passage of the Human Rights Act. I also worked on the Good Friday agreement, to which my noble friend Lord Murphy referred. I am a council member of Justice and was the director of Liberty for some years, during which I had the privilege of publishing Jesse Norman and Peter Oborne’s wonderful pamphlet, Churchill’s Legacy: The Conservative Case for the Human Rights Act. I commend that document to all noble Lords, particularly those opposite.

I congratulate my noble friend Lady Whitaker on securing this debate and on all her wonderful human rights works. Of course, it is always an honour to follow my noble friend Lord Murphy of Torfaen. His record speaks for itself but I wholeheartedly support everything that he said about the importance of the Human Rights Act in our constitutional settlements, including our devolution settlements and the precious Good Friday agreement, in particular.

The Human Rights Act is both a progressive, contemporary Bill of Rights and an exquisite British constitutional compromise. I do not mind the word “compromise”; it is a good word. It preserves parliamentary sovereignty via Sections 3, 4 and 6 while still allowing an independent judiciary to protect both the will of Parliament and the fundamental rights and freedoms of all people, not just citizens, from executive abuse and outmoded, discriminatory laws.

I was slightly surprised by some of the comments from the noble Lord, Lord Sandhurst, because I had not taken him for an originalist, as the Americans refer to people who use very literal interpretations. It is only right to share with noble Lords the facts of the Ghaidan v Godin-Mendoza case that he found so outrageously creative. It concerned a same-sex couple who had lived in rented accommodation for many years. The person whose name was on the rent book died. His partner would have been evicted but for the Rent Act having to be reinterpreted under the Human Rights Act Section 3 duty so that the words “living together as man and wife” could be applied to a same-sex couple. That is the outrage of interpretation to which, with respect, the noble Lord, Lord Sandhurst, was referring.

The Human Rights Act is very British in that compromise, but internationalist in incorporating the European convention, which was itself drafted, in no small part, by Conservative lawyers after World War II, as we heard from many noble Lords—particularly from my noble friend Lady Donaghy, in her fantastic history lesson of a speech. Section 2 requires our courts to take accounts of the decisions of the Strasbourg court, but they are not bound by them. That has now been fully accepted by our Supreme Court, as we have heard. This facilitates, therefore, a wonderful judicial conversation—a continuing judicial dialogue—between national and international jurists. This is so important and to the benefit of both. It benefits our law here and means that great jurists, such as the friend of all of us, the noble and learned Lord, Lord Brown of Eaton-under-Heywood, have contributed to the breadth of jurisprudence in Europe as well as here. That is so important: we do not want to break that dialogue and vital link.

Section 19 statements by Ministers have also been important to parliamentary scrutiny of the human rights impact of legislation. Would the noble and learned Lord tell us how many times, even in the last few years under the Johnson Government, Ministers have actively relied on Human Rights Act obligations and interpretations when justifying things such as the CHIS Bill, as was, and the Nationality and Borders Bill, as was—now unfortunately Acts? Ministers have frequently stood there and said, “Do not worry: this power looks broad, but it will have to be exercised in a way that is compliant with the Human Rights Act.” Presumably, all that goes out the window now.

As we have heard, positive obligations, which are now to be trashed, have helped so many victims, but I have one final point on free speech. The Human Rights Act in Article 10 created the first enforceable right to free speech in this country. That will, ironically, be undermined by this rights removal Bill. Finally, I wonder if the noble and learned Lord agrees with me that the greater threat to free speech in this country does not come from the Human Rights Act; it comes from super-injunctions sought by wealthy and powerful people, including in government, relying on Article 8 and on a lot of money. That is hypocrisy: one rule for some and another for everyone else.

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[Lord Bellamy (Con)]

There is, as far as one can tell, an important part of public opinion that is very doubtful about the role of this legislation and the Strasbourg court in our constitutional settlement. Why that is the case is not for me to speculate, but it does seem to be difficult to say that it is not the case that there are sections of the public that have less confidence in this legislation than Members of this House.

[Baroness Chakrabarti (Lab)]

I am grateful to the Minister for the patience and courtesy with which he is responding to this debate, but I am concerned about one very important element. The Minister said that the Government’s position is that we stay in the ECHR and that we are committed to it; that is the Government’s position, which cannot be overturned by a leadership candidate. But what if that candidate happens to be the current Attorney-General of England and Wales and legal adviser to Parliament and the Cabinet? That is not any old candidate, is it? Ms Braverman surely speaks for the Government, as their Attorney-General. In due course, would the Minister address my question about all these recent powers in the police Act, Nationality and Borders Act and so on, which were justified to us from that Dispatch Box by Ministers who said, “Don’t worry: there is the Human Rights Act as the safeguard, and these powers will have to be exercised in a manner compatible with that”.

[Baroness Ludford (LD)]

In further testing the patience of the Minister, and no doubt the House, does he really think that the constant repetition over decades of certain politicians and sections of the press that it was only undesirable people who were getting the benefit of human rights law—criminals and whoever—has had no effect whatever? That and the lack of civic education in schools about the benefits of the Human Rights Act has helped us arrive at this situation. Perhaps there is only a slight silver lining to the pandemic, which otherwise, obviously, has been horrible: that while not being able to visit their relatives in care homes, some people might have realised or had perhaps a glimmer of understanding of the relevance of human rights to protect family life, the right to life and all those other issues.

Judicial Review and Courts Bill

Baroness Chakrabarti Excerpts

Committee stage
Thursday 24th February 2022 Lords Chamber

[Lord Wolfson of Tredegar (Con)]

My Lords, I am grateful for that further explanation of the point and will happily reflect on it. At the moment, I stand by the point I made a moment ago, which is that it is right in principle for the Government to be able to decide which offences are included under the new procedure. Of course, we discuss with the Lord Chief Justice and other elements of the judiciary how these offences will be managed in practice. As the noble Lord, Lord Pannick, knows, the operation of the courts is run essentially under a concordat agreement between the Lord Chancellor and the judiciary. I will look again at Hansard and go back to the discussion which somebody who was not quite my predecessor was involved in. For present purposes, that is my answer to the noble Lord.

[Baroness Chakrabarti (Lab)]

Just on that—and by the way, I did not speak earlier because the case was made so well by the noble Lord, Lord Marks, and I think it is a kindness to the Committee at this stage not to duplicate concerns and comments—to develop the point from the noble Lord, Lord Pannick, and to comment on his conversation with the Minister, it is not for the Government to decide, is it? It is not actually the Government’s position that it is for them to decide which offences are covered by the new procedure, because mercifully the Government have said that there will be parliamentary procedure and regulations. It is for Parliament to decide.

Is not the point that when Parliament looks at these regulations that are made in the future, by a future Lord Chancellor who may not take such a measured approach as the Minister is taking now in relation to which offences are to be included, Parliament would benefit from regulations that come with the advice and endorsement not just of the Government of the day but of the senior judiciary?

[Lord Wolfson of Tredegar (Con)]

I should say, first, that when I mentioned the noble Baroness in my speech, I was not making the point that she had not risen. I wanted her to appreciate that I had taken on board that she was opposing the clause. When I say “the Government”, of course I mean “the Government with the authority of Parliament”. We are looking at a Bill and that is taken as read. Ultimately, the question is: is it necessarily right for Parliament to say that we cannot proceed unless we know that the LCJ is on board? I suggest that it is quite proper in this case for Parliament and the Bill to say, “This is a power which can be exercised by the Lord Chancellor and no concurrence is necessary.” As I said to the noble Lord, Lord Pannick, I am happy to look at this point, but that is the current position which I adopt.

I was going to make one more point on Clause 4 and Amendment 29, which seeks to raise the age of eligibility for the Section 12 procedure—often referred to as “pleading guilty by post”—from 16 to 18. This procedure has been available as an alternative method of summary-only prosecution for defendants aged 16 and over since 1957. I am not aware of any issues of concern being raised in relation to under-18s during the whole of that time.

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[Lord Ponsonby of Shulbrede (Lab)]

My Lords, in introducing this group, I thought I would tell the Committee about my experience of sitting as a single justice magistrate dealing with Covid emergency legislation about a year ago. I dealt with fixed penalty notices handed out to people who broke the emergency legislation. The fine was £60, but if it was paid within 14 days it was £30. If that was not responded to the defendants received a letter saying that they should either turn up to court or respond to the letter or the matter would be dealt with by the single justice procedure.

I sat at my dining room table as a magistrate and I dealt with 30 trials in the morning. I convicted 29 of the 30. The prosecution case was the police officer’s note, which I had up on my screen so I could read it. There was no defence case because the defendant had not turned up. I then went on to sentence, which was a £100 fine, £100 in prosecution costs and a £34 victim surcharge, so £234 to pay and a collection order. That is what I did 29 times out of 30 last summer. It was a special time. It was a difficult procedure to go through, but we need to be very conscious of the difficulties and potential pitfalls with these types of procedures. Having said that, and given that example, I believe there are occasions and types of cases where it is appropriate.

Both my amendments make the same point in trying to build in suitable reviews of the procedure to ensure it acts fairly. Amendment 30 states:

“Within two months beginning with the day on which this Act is passed, the Secretary of State must commission a review and publish a report on the effectiveness of the single justice procedure.”


My noble friend will speak to her Amendment 37. Amendment 54 says:

“Before section 43 may be commenced, the Lord Chancellor must—


(a) undertake a consultation with relevant stakeholders regarding the proposed abolition of local justice areas under that section, considering in particular the impact on the principle of local justice,


(b) lay before Parliament the Report and the findings of such consultation, and


(c) provide a response explaining whether and how such issues which have been identified would be mitigated.”


To say a few words on Amendment 54, magistrates arrange themselves in local justice areas. There are nine local justice areas in London. It is a historical way of organising magistrates, if I can put it that way. I understand that there are arguments on both sides. I also understand, from talking to the Minister and his officials last week, that there will be extensive consultation and further legislation on this matter if it is taken forward. Nevertheless, I beg to move.

[Baroness Chakrabarti (Lab)]

My Lords, before I speak to Amendment 37, I should like to congratulate my noble friend Lord Ponsonby on everything that his public service outside this Committee and your Lordships’ House brings to our deliberations about criminal justice. The Committee needs no reminders from me of all that the eminent silks, retired Law Lords and former members of the senior judiciary bring to your Lordships’ House. The magistracy is a very important part of the criminal justice system. My noble friend brings an experience, a humility and an anxious scrutiny of the system to our deliberations which is incredibly helpful and always illuminating.

Amendment 37 is purely a probing amendment, and I hope the Minister received that message via his office. I have unashamedly taken this opportunity to put issues concerning women and girls in the criminal justice system on the map. As the Committee and the Minister will know, this is ultimately a shared responsibility with his noble friend Lady Williams of Trafford and her department. These two great departments of state—the Home Department and the Ministry of Justice—are responsible for the whole system, including matters well beyond the scope of this Bill, such as the police and the CPS. They also have responsibilities that are dealt with in this Bill, such as for the court system.

Just last year, both Secretaries of State felt the unprecedented need to issue a public apology to women and girls for their experience of the handling of sex offences in our criminal justice system. To some extent, that has led to the resignation of the Commissioner of Police for the Metropolis. Perhaps more importantly still, it has led not just to terrible attrition rates for sex offences in particular, but to a real crisis of trust and confidence in the system on the part of women and girls that none of us on either side of your Lordships’ House wants to see.

I do not want to say that there should be an inquiry on the narrow grounds that happen to fit into the scope of this Bill. Rather, I want to give the Minister the opportunity to update the Committee and therefore the country on where the Government are and where they propose to be, and how quickly they can rebuild trust and confidence in relation to sex offences in particular and criminal justice in general for slightly more than half of the population.

[Lord Falconer of Thoroton (Lab)]

My Lords, I will make two separate points. First, Amendment 54, tabled by my noble friend Lord Ponsonby, relates to Clause 43, which abolishes local justice areas. It says that the Lord Chancellor must,

“by regulations, make consequential or supplementary provision in relation to the abolition of local justice areas.”

I assume that the thinking behind this is that it would be convenient if all justices were appointed, say, for England and Wales and not to a local justice area, and training, deployment and other issues should be dealt with on a national basis.

I do not know what is planned, but I do know from my experience as Lord Chancellor that being a Justice of the Peace in a particular area is of very considerable importance. I also know that people are appointed as magistrates because they are committed to their local community, and that people being trained and deployed together over a period of time in a particular area is also incredibly important to local justice.

This looks to be a very wide-ranging provision which may well have been thought out in full, but I should be grateful if the Minister explained the thinking, and what is being done about recruitment, deployment and training.

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Particularly when it comes to people with mental health problems or vulnerabilities and the like, I have certainly been in court when, if I may use the expression, “the light goes on” and they understand the seriousness of the position that they are in, and it is because of the allocation procedure. So we ought to be very careful about doing a lot of these procedures administratively or online, without the defendants present or without them being fully involved in the process. If you do that, you lose an opportunity to fully engage the defendant in the process that is happening in court. My experience, in both adult and youth courts, is that one of the greatest problems is making sure that defendants fully engage in the process. In my experience, allocation decisions are an example of where people sometimes fully engage and, as I said, the light goes on and they understand the seriousness of their position. I beg to move.

[Baroness Chakrabarti (Lab)]

My Lords, I shall speak to Amendment 36 in my name. I also support Amendment 36A in the name of my noble friend Lord Ponsonby. I declare an interest as a member of the council of JUSTICE, the all-party law reform organisation, and a British agent of the International Council of Jurists, along with many other Members of the Committee and your Lordships’ House.

Notwithstanding the praise that we all rightly heaped on my noble friend and his fellow magistrates in the earlier group, I am a passionate believer in the right to jury trial. I suspect I am not alone in that in this Committee. Juries are not perfect; however, I have defended jury trial, sometimes against Governments of both stripes, for at least 20 years. I hope I do not need to rehearse for too long why it is such an important right. It is not just because people believe in it. People want to be tried for serious matters that will send them to prison for a long time and destroy their reputations, and lives in many cases, not just because they want to be convicted by their peers; it is also important for trust and confidence in the justice system that it is not always seen as primarily about more-deprived and working people in the dock being adjudicated over by middle-class professionals like this Committee. As a third point, my experience of people who have served on juries is that it is a really important part of public service and engagement that people from a broad range of communities can ideally participate in. It is a very important glue for our country and the rule of law. I hope that did not need rehearsing, and I will stop on it there.

I note that in more controversial debates, for example around the Human Rights Act and its survival or not, some of the Minister’s colleagues—and indeed the current Justice Secretary—have said that one of the ways in which the Human Rights Act might be improved on would be with greater entrenchment of the right to jury trial. That is said on the one hand yet, on the other hand, provisions are taken to extend the sentencing powers of magistrates, which is ultimately a significantly broad back door to undermining jury trial.

I understand that the Government are concerned about the backlog. I certainly understand that the backlog in the system has been exacerbated by the pandemic. But if the Government did not share some of my concerns, they would not have added the so-called off switch in the other place that is now to be found in Clause 13. I am concerned not just in principle because of my belief in jury trial, but in practice as to whether the measures in the Bill will actually do what the Government are hoping. First, will these measures really save 1,700 sitting days in Crown Courts by enabling 500 jury trials to be switched to magistrates? Is that really a credible figure? Even if it is, we think that it would represent a saving of only 1.6% according to recent courts service estimates. Secondly, there is a presumption that defendants will not exercise their right to opt for a jury trial, which they are more likely to do if the benefit of a lesser sentence is not a temptation to take the magistrates’ court option. Thirdly, I am really concerned about whether there will be sufficient and appropriate training for magistrates if we are to double their sentencing powers. That is the rationale behind Amendment 36 and, quite possibly—I will not speak for my noble friend Lord Ponsonby—part of the rationale for Amendment 36A as well.

[Lord Pannick (CB)]

My Lords, I express my support for Amendment 36A. When I was a member of your Lordships’ Constitution Committee we looked into the impact of the pandemic on the criminal courts. What was striking about our activity was the difficulty we had in extracting from the Ministry of Justice any valuable, reliable statistics on what was happening in the criminal justice system. To have a specific statutory obligation to produce data on this important subject is essential if Parliament is to know what the impact of these new provisions will be.

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Moved by

[Baroness Chakrabarti]

40: Clause 38, page 53, line 12, at end insert—
“(4) After subsection (2), insert—“(2A) The coroner is not to decide that the investigation should be discontinued unless—(a) the coroner is satisfied that no outstanding evidence that is relevant to the death is available,(b) the coroner has considered whether Article 2 of the European Convention on Human Rights is engaged and is satisfied that it is not,(c) there are no ongoing investigations by public bodies into the death,(d) the coroner has invited and considered representations from any interested person known to the coroner named at section 47(2)(a) or (b) of this Act (“interested person”), and(e) all interested persons known to the coroner named at section 47(2)(a) or (b) of this Act consent to discontinuation of the investigation. (2B) If a coroner is satisfied that subsection (1) applies, and has complied with the provisions at subsection (2A)(a) to (d), prior to discontinuing the investigation, the coroner must—(a) inform each interested person known to the coroner named at section 47(2)(a) or (b) of this Act of the coroner’s intended decision and provide a written explanation as to the reasons for this intended decision,(b) explain to each interested person known to the coroner named at section 47(2)(a) or (b) of this Act that the investigation may only be discontinued if all such interested persons consent, and(c) invite each interested person known to the coroner named at section 47(2)(a) or (b) of this Act to consent to the discontinuation of the investigation.””Member’s explanatory statement
This amendment would ensure that certain safeguards are met before a coroner can discontinue an investigation into a death and that family members and personal representatives of the deceased are provided with the coroner’s provisional reasons for why the coroner considers that the investigation should be discontinued, helping ensure that family members make an informed decision as to whether to consent to the discontinuation.

[Baroness Chakrabarti (Lab)]

I am conscious that the Committee is valiant and well into the third hour of today’s proceedings; nevertheless, the next is a very important group. We are now in Chapter 4 and we are not talking even about £25 million; we are talking about life and death, bereaved families and the vital work of our coroners’ courts. We are talking about provisions that will broaden the circumstances in which coroners may discontinue their investigations. We are talking, once more, about the power to hold inquests on the papers, in writing only, and we are talking about the wider use of remote hearings. Amendments 40, 42 and 43 are in my name and I am honoured to share those with my noble friend Lord Ponsonby and maybe even my noble friend Lady Chapman of Darlington as well—I am doubly honoured. I also have the support, I am delighted to say, of the noble Lord, Lord Thomas of Gresford, for the Liberal Democrats.

Further amendments in this group are about providing an appeals process for families who disagree with discontinuance, about ensuring that there are no audio-only inquests, even within the class of remote inquests—no telephone or audio-only inquests—and to ensure that remote hearings are still accessible to the public. Amendment 53 ensures pre-implementation consultation before the remote inquests come into effect. The noble Lord, Lord Thomas of Gresford, supported by his noble friend Lord Marks of Henley-on-Thames, has a very important amendment to ensure a right of address for bereaved families. I do not see the right reverend Prelate the Bishop of St Albans in his place, but he may appear in the way that only the Lords spiritual can, and his Amendments 50A and 50B contain important provisions in relation to cases of death by suicide. The indefatigable Minister will speak to his provisions on the register of deaths, which will be important; there are things to tidy up there where an inquest has been discontinued.

I turn to Amendments 40, 42 and 43 in my name. Amendment 40 is about ensuring vital safeguards before a coroner can discontinue an investigation into a death. I hope I do not need to go into too much detail about why safeguards are important in such a scenario, but these include ensuring that family members and personal representatives of the deceased get at least a provisional indication of why this is to be the case, so that they can evaluate whether they support the discontinuance of an inquest. Amendment 42 ensures that inquests will not be held without a hearing—in other words, not on the papers only—if this is against the wishes of the bereaved family. Amendment 43 ensures safeguards before there can be a remote hearing, including by giving interested persons the reasons for that judgment.

I say to the Committee that we need to remember the position that bereaved families, in particular, and other interested parties are in when there is an unexplained or unnatural death. I commend the briefing that will have been provided to, I hope, all members of the Committee by the NGO Inquest. It has done vital work in this area for many years. I remind the Committee that legal aid is not available to these families, and it has often been inquests, over the years, that have been the sole source of support and advice to them. Sometimes these will be deaths in custody, deaths in hospital or deaths in other circumstances where people were very vulnerable and looked after, especially by the state to begin with, before that unnatural and unexplained death happened.

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[Lord Wolfson of Tredegar (Con)]

My Lords, the amendments in this group relate to coroners’ inquests, and include government and non-government amendments. I will begin with those tabled by noble Lords who have spoken and then come to the government amendment at the end.

Before I do that, I should inform the Committee that the right reverend Prelate the Lord Bishop of St Albans has kindly sent me a note, because his Amendments 50A and 50B are in this group. As he is serving elsewhere, in Committee on the Building Safety Bill, he is unable to join this Committee this afternoon. I do not know whether this is normally done, but unless the Committee objects, I propose to write to him setting out substantially what I would have said had he been here and I will circulate the letter, because even though the amendments are not formally moved, the right reverend Prelate raises points which he has raised in the House on previous occasions.

[Baroness Chakrabarti (Lab)]

Subject to the views of the Committee, that sounds eminently sensible. In case it is necessary, perhaps I might say that I support those amendments and would not want to deprive the right reverend Prelate of the opportunity to bring them back to the House at a later stage.

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[Lord Wolfson of Tredegar (Con)]

I understand that, certainly from my postbag. I should say that coroners work extremely hard, but the pandemic has caused a real problem. I do not want to go back to the online discussion, but we hope that enabling people to do that sort of thing online will help. I certainly take the noble Lord’s point.

To solve this, the amendments in my name will enable a coroner to provide the registrar with the information required for the registration to take place on the basis of that information. I should make it clear that we are not introducing new duties on coroners or removing the duty on qualified informants to provide information. It is intended to be used in those exceptional circumstances where qualified informants are unable or unwilling—often for good reason, as the noble Lord, Lord Beith, said—to discharge their duties. The effect will therefore be that the death will not go unregistered. We think that about 200 of these cases happen a year. They affect the accuracy of records, but there is also the potential for fraudulent use of the identity of an unregistered deceased person, since the identity has not been closed by the death being registered. It is not quite Day of the Jackal territory, but there is potential for fraud there. We want to close that.

For those reasons, I invite noble Lords not to press their amendments and I will move mine when the time comes.

[Baroness Chakrabarti (Lab)]

My Lords, I am grateful to every Member of the Committee who participated, in particular to the noble Lord, Lord Thomas of Gresford, and my noble and learned friend Lord Falconer of Thoroton, for crystallising the fundamental inequality of arms that exists in so many inquests. Regardless of jurisprudence or terminology, that is how it is and how it feels for these families.

I am grateful, too, to my noble friend Lady Chapman of Darlington for making it crystal clear that evidence that cannot be challenged is going to be a huge problem, not least for compliance with Article 2, and for reminding us of the tragic case of Laura Booth, which is in the Inquest briefing in case noble Lords want to read it at leisure. There are other tragic cases of that kind, where, but for close scrutiny and the testing of evidence that initially seemed very straightforward, some real public interest problems, whether in our hospitals or elsewhere, would not have been revealed.

I am only slightly disappointed that the very busy right reverend Prelate disappointed my hope that it would be possible for a Lord spiritual to be in two places at the same time. None the less, I am very happy to take care of his amendments and ensure that he has the opportunity to bring them back next time. I think that is the right thing to do.

The Minister will forgive me, I hope, for being disappointed in the 100% defensive rebuttal of every single concern raised in this Committee. He reminds us that coroners are judicial officers and not mere administrators; of course, he is right about that. But he says that in total rebuttal of every safeguard and gentle constraint suggested—for example, the discretion to discontinue these vital investigations.

I cannot help but point out the contrast in the Government’s approach to this part and, for example, to Clauses 1 and 2. In Clause 1 we are told that it is perfectly acceptable for the legislature to constrain judicial thinking and discretion in quite convoluted ways, but here, when we want to put the needs and concerns of families into the equation, we are told that it is somehow an inappropriate constraint on the wonderful, inquisitorial, coronial province. We are reminded that coroners are inquisitorial and not adversarial, as if these terms of art are set not in aspic but in stone. I do not really care whether these are technically inquisitorial or adversarial—you can call them “Doris” as far as I am concerned. There are vital rights and interests being explored in this jurisdiction.

I am sorry to say that I do not know whether the government position is science fiction or space fantasy. In many cases these proceedings are tantamount to very difficult quasi-adversarial proceedings, but one side is silent. One side is silent because it does not have the language and resources to put its side of the picture. This is exacerbated in cases where very defensive public authorities, understandably, are heavily represented by Silks and so on. We cannot say that the full answer to that problem will be a technical, jurisprudential definition of inquisitorial versus adversarial proceedings. That is not reality at this moment in the 21st century.

I gently ask the Minister to consider meeting some representatives of the unrivalled NGO Inquest before Report. That organisation and those working within it have done so much work over the years with a number of bereaved families. I am sure they would at least help illuminate the Minister’s understanding of what some of these most difficult inquests are like for ordinary people. That would be my request to him. None the less, for the moment—but only for the moment, because having heard from my noble friend Lady Chapman and from the Liberal Democrats, I suspect that the Committee will want to return to this group on Report, and I obviously preserve the position for the spiritual Benches opposite—I beg leave to withdraw the amendment.

Amendment 40 withdrawn.