Victims and Prisoners Bill

Baroness Lister of Burtersett Excerpts

Tuesday 12th March 2024 Lords Chamber

[Lord German (LD)]

My Lords, I rise with the leave of the House and at the request of my noble friend Lord Marks to oppose the Question that Clause 49 stand part and speak to the stand part notices for Clauses 50, 51 and 52.

Clause 49 would disapply Section 3 of the Human Rights Act in respect of any decision made under Chapter 2 of Part 2 of the Crime (Sentences) Act 1997. That chapter of the 1997 Act sets out a range of provisions concerning life sentences and sentences of detention during His Majesty’s pleasure, including minimum-term review for under-18s. For life prisoners, the provisions concern release on licence, termination of licences for public protection, recall for breach of licence conditions, the duration of licences, release at the direction of the Parole Board and removal of life prisoners from the United Kingdom.

The chapter is specifically extended by this Bill, in particular by Clause 41, to provide, in respect of public protection decisions, those considerations that the decision-maker is to be bound to take into account relating to such things as the risk of reoffending and the risk of breach of licence conditions. The clause includes, ominously, the provision under Clause 41(9):

“This section does not limit the matters which the decision-maker must or may take into account when making a public protection decision”.


Clause 44 provides for the Secretary of State to have the power to direct the referral of a prisoner’s case to a court—currently the High Court or the Upper Tribunal —as discussed on 26 February. Clause 48 makes further provision about the termination of the licences for life prisoners for public protection. For all these provisions, Clause 49 would disapply Section 3 of the Human Rights Act 1998.

Section 3 lies at the heart of the human rights protection afforded by the Human Rights Act. It governs the interpretation of legislation by courts and also, importantly, by public authorities, and so effectively by all relevant public decision-makers. It provides:

“So far as it is possible to do so, primary legislation and subordinate legislation must be read and given effect in a way which is compatible with the Convention rights”.


Section 3 gives legislative teeth to the convention, requiring legislation to be compatible where possible. Clause 49 would disapply that crucial protection in relation to this chapter of the 1997 Act and any subordinate legislation made under it.

The Explanatory Notes, in paragraph 353, claim that this disapplication

“will apply the section as it is intended to be applied, and not use section 3 to alter the interpretation”.

In other words, the clause is intended to operate in a way that enables convention rights to be ignored or overridden; otherwise there would be no point in the disapplication. This represents a real and important threat to human rights and should be removed from the Bill.

Clause 50 would operate in exactly the same way in respect of the provisions of Chapter 6 of Part 12 of the Criminal Justice Act 2003 relating to the licences, release, supervision and recall of fixed-term prisoners. These provisions are to be amended by Clauses 42, 45 and 47 of the Bill. At present, this chapter of the Criminal Justice Act 2003 is subject to the protection of the interpretive requirement of Section 3 of the Human Rights Act. Clause 50 would remove that provision, and not just in relation to the new provisions in the chapter introduced in this Bill. As with the 1997 Act dealt with in Clause 49, it would remove it in respect of the whole chapter of the 2003 Act dealing with fixed-term prisoners.

Similarly, Clause 51 would disapply Section 3 in respect of the amended Section 128 of the LASPO Act. This amends the power to change the release test for release on licence in cases involving public protection.

Clause 52 deals with a similar issue. It is not approaching the interpretation of legislation in the light of the convention, but the different question of whether a person’s convention rights have been breached in connection with a prisoner release decision under the two chapters I have previously mentioned in the 1997 and 2003 Acts.

Paragraph 354 of the Explanatory Notes sets out how to govern any challenge on human rights challenge under the convention to a prisoner release decision. Where Clause 52 is offensive is in subsection (3), which requires:

“The court must give the greatest possible weight to the importance of reducing the risk to the public from persons who have committed offences in respect of which custodial sentences have been imposed”.


That provision would apply regardless of the length of the custodial sentence imposed, regardless of what harm was being risked to the public and regardless of the injustice to the offender or the offender’s circumstances or the risk to the offender’s health, family or prospects of rehabilitation. What is the “greatest possible weight”? That, effectively, means exclusive weight—the only factor the judge is to consider.

When the Explanatory Notes say:

“Requiring the courts to give the greatest possible weight to this factor reinforces the precautionary approach and means that public protection will be given appropriate consideration in any balancing exercise”,


they are disingenuous. The provision does not call for a balancing exercise. It requires courts not to consider questions of balance or appropriate considerations, but instead to prefer one factor over all others. That is pernicious and ought to go. Judges are perfectly capable of performing balancing exercises. They can and do give appropriate weight to public protection when they do so. They should not have their judicial function curtailed in this way. The clause should go.

[Baroness Lister of Burtersett (Lab)]

My Lords, here we go again. First, they came for the asylum seekers and then for the prisoners. Which unpopular and demonised group—to quote my noble friend Lady Chakrabarti—will be next to be deprived of some of the rights contained in the Human Rights Act?

As some of us have been arguing during the passage of the Safety of Rwanda (Asylum and Immigration) Bill, to deprive marginalised groups of their human rights in this way undermines the principle of universality at the heart of human rights. The noble and learned Lord, Lord Stewart of Dirleton, quoted back at us that it is

“a fundamental tenet of modern human rights that they are universal and indivisible”.—[Official Report, 14/2/24; col. 342.]

He then went on to try to justify the very opposite.

In answer to some general Oral Questions on our human rights legislation in June, the Lord Chancellor and Secretary of State for Justice emphasised the Government’s commitment to

“a human rights framework that … works for the British people”.—[Official Report, Commons, 27/6/23; col. 145.]

He later talked about our legislation delivering on the interests of the British people. Leaving aside whether universal human rights can be confined to the British people, it raises the question of whether prisoners no longer count as British people.

As it is, some of the briefings we have received, including from the Howard League for Penal Reform and the Prison Reform Trust, make the point that in the words of the latter,

“it is precisely in custodial institutions like prison … that human rights protections are most vital, because individuals are under the control of the state”.

The NAYJ, a member organisation which campaigns for the rights of and justice for children in trouble with the law, is particularly anxious about the implications for children in prison. The Law Society, the EHRC and the then chair of the JCHR have all expressed their deep concern about the diminution of human rights protection represented by these clauses. The EHRC, in particular, warns that there may be an impact on the UK’s international legal obligations.

The Constitution Committee sets out the government justification for these clauses in the human rights memorandum on the Bill, but invites us to seek further explanation from the Government as to what effect they intend to achieve with the disapplication of Section 3 of the Human Rights Act. According to the memorandum, the intention is to ensure that the HRA does not get in the way of the policy intentions of the release regime. In other words, it seems to be saying that human rights should not trump government policy. No evidence is provided to justify the need for this diminution of human rights, and of course the clauses were not subject to pre-legislative scrutiny.

In his response to the Second Reading debate, the Minister seemed to say that all the organisations expressing concern are making a mountain out of a molehill because Section 3 of the HRA is “a procedural provision only”. He argued that it gives the courts an

“unusual power to reinterpret what Parliament has said in a manner that may not have been and probably was not Parliament’s original intention so as to render a particular provision compatible with the convention”.—[Official Report, 23/12/23; col. 2135.]

This, he suggested, was a “neutral” description of the function of Section 3.

I am grateful to Amnesty for its help in making sense of what the Minister said, although it would be the first to emphasise that its analysis is in line with that of the independent Human Rights Act review, established by the Government. It questioned whether this was a “neutral” interpretation of the role of Section 3. The reference to reinterpreting legislation seemed to suggest that there is one legitimate act of interpretation, which is then challenged by a second questionable one under Section 3. But this interpretation is itself highly questionable. I am advised that Parliament intended for Section 3 to be used in the way that it is. There is no reason to think that Section 3 interpretations lead to interpretations that are “probably not” in line with Parliament’s original intention, as confirmed by the Human Rights Act review, even if that was not the view of one member of the commission cited by the Minister.

More practically, and I think for the first time in this context, the Minister suggested that it has been a difficult section to apply, with the case law having “gone all over the place” and the introduction of uncertainty where the Government want certainty. I am advised that while this may have been true of when Section 3 was first brought into force—although “all over the place” is a misleading description—that period has long passed and the legal issues around it have not substantively changed for the past decade or so. As the Minister acknowledged, it has “settled down more recently”. So having been in effect for 20 years, it is not at all clear why its continued function would create the kind of complexity and uncertainty the Minister fears.

If the Minister cannot come up with a more convincing case for the disapplication of Section 3 from a group of citizens for whom the protection of the Human Rights Act is especially important, given their relationship to the state, I certainly think that these clauses should not stand part of the Bill. I have yet to hear any argument that justifies this further breach of the principle of the universality of human rights.

[The Lord Bishop of St Edmundsbury and Ipswich]

My Lords, my right reverend friend the Bishop of Manchester regrets that he cannot be here today to speak to the amendments to which he has put his name.

The basis of our opposition to Clauses 49 to 51, to echo points made by the noble Lord, Lord German, and the noble Baroness, Lady Lister, is that human rights need to be applied universally, even when disapplication might seem expedient. We know that, when people are marginalised, it is then that human rights protections are most necessary and, as such, the disapplication of rights to prisoners, who rely on independent courts and the justice system to guarantee basic minimum standards of fairness and respect, is particularly egregious. The Law Society has warned that these clauses

“significantly weaken the system of human rights protections in the UK”.

My right reverend friend and I add our voices to these concerns.