Nuptial Agreements

Lord Bellamy Excerpts

Tuesday 25th April 2023 Lords Chamber

[Baroness Shackleton of Belgravia]

To ask His Majesty’s Government what plans they have to introduce the draft Nuptial Agreements Bill, as drafted and recommended by the Law Commission in its Matrimonial Property, Needs and Agreements report, published on 26 February 2014 (HC 1089).

[The Parliamentary Under-Secretary of State, Ministry of Justice (Lord Bellamy) (Con)]

My Lords, it was announced on 4 April that the Law Commission will be conducting a review of the law on financial provision on divorce. While this review is taking place, the Government do not consider it the right time to legislate in respect of nuptial agreements. The Government favour a holistic rather than a piecemeal approach to any future legislative reform in this area.

[Baroness Shackleton of Belgravia (Con)]

My Lords, I am disappointed but not surprised by that response. I declare my interest as practising in this field. It is well known that this is stand-alone legislation which came about as a consequence of a House of Lords decision in Radmacher in 2010. During the coalition, the Law Commission set up a paper and, as a consequence, in 2014 there was a response which is oven-ready for putting on the statute book.

Instead of that happening, with almost indecent haste and despite the warnings, the no-fault divorce law has proceeded through these Houses. We have more people with pre-nuptial agreements and more people getting divorced, and there is no direction for the judges as to how the law has changed as a consequence of these agreements being enforceable. Please can the Minister explain why it is acceptable to delay this legislation, which would be quite simple to push through, in circumstances where the courts are over-burdened, the judges have no direction and lawyers practising in this field have lucrative groundhog days ahead?

[Lord Bellamy (Con)]

My Lords, I thank my noble friend Lady Shackleton for her question. The answer is twofold: first, the Government consider that the present root-and-branch review of financial provision is better than looking at a particular outcrop within that landscape. Secondly, any Government have to prioritise. In recent years, priority has been given, for example, to the Domestic Abuse Act 2021; the Divorce, Dissolution and Separation Act 2022, which introduced no-fault divorce; and the Marriage and Civil Partnership (Minimum Age) Act 2022, which made it illegal to marry under the age of 18. These are all fundamental reforms and I make no apology for prioritising those measures.

[Baroness Deech (CB)]

My Lords, may I start by wishing the Minister a happy birthday—and ask him whether there is any prospect of this Bill being enacted in his lifetime and mine? He has mentioned all these other statutes, which are not really relevant. The failure to enact this Bill undermines the no-fault divorce law, because the failure to have binding nuptial agreements leaves couples in as antagonistic and expensive a situation as before. Will he please get on with it?

[Lord Bellamy (Con)]

My Lords, I thank the noble Baroness for those birthday wishes. It is often said that life begins at 40 but experience shows that it is very much later than that. I very much hope that we will be able to legislate in her lifetime, if not my own. Prenups are undoubtedly an important issue. Since 2010, the law has been that there is a presumption in favour of enforcing prenuptial agreements unless it is unfair to do so. Secondly, although this is an important question, it affects a relatively small and privileged cohort, and it must take its place in the queue on that basis.

[Lord Thomas of Gresford (LD)]

The Minister refers to a small cohort. Has he any idea how many nuptial agreements exist as a percentage of those people who get married these days?

[Lord Bellamy (Con)]

My Lords, I do not have that information. I will see if I can find it and if I can, I will write to the noble Lord.

[Lord Watts (Lab)]

My Lords, this is a sensible move. It would make sense to introduce this legislation now, provided that it does not affect the overall review that is taking place. Why does the Minister not just act on this one piece of legislation now?

[Lord Bellamy (Con)]

My Lords, it is hard for me to add to my previous answer. The Government feel that we must look at the whole landscape and get the law on financial provision sorted out, and that gives us the context in which we can decide what to do about prenups.

[Lord Sandhurst (Con)]

My Lords, as others have said today, such a Bill can stand completely independently of the planned reform. The whole point is that those who embark on this do not want to litigate, in the unhappy event of a divorce, and do not want to expose themselves to all the uncertainties of the court’s discretion. Why on earth can the Government not do something about it now?

[Lord Bellamy (Con)]

My Lords, it is not a straight- forward issue; even the Law Commission’s report of 2014 made it clear that there had to be quite a number of exceptions in relation to financial need before one could legislate. As I say, the Government prefer to proceed on a broad front rather than deal with this issue specifically.

[Lord St John of Bletso (CB)]

My Lords, I have practised as a divorce lawyer in South Africa, where the prenuptial agreement is respected, and it should not be seen purely as a protection for high net worth individuals. Why is there so much resistance to respecting and introducing a prenuptial agreement?

[Lord Bellamy (Con)]

My Lords, the Government have confidence in the courts to apply the general law, which is that prenups should in general be respected unless it is unfair to do so. That is not far off what the Law Commission recommended in 2014.

[Lord Ponsonby of Shulbrede (Lab)]

My Lords, most couples going through a divorce do not have their financial arrangements made by judge. Some reach settlement with the assistance of lawyers, others through mediation and arbitration. Of course, many do not have access to lawyers because of the withdrawal of legal aid. When the holistic review looks at financial provision for divorce, will that include the increase in legal aid for divorcing couples?

[Lord Bellamy (Con)]

I think the answer to that question, for which I thank the noble Lord, Lord Ponsonby, is that this is not directly within the Law Commission’s terms of reference, but it is well within the review of civil legal aid upon which the Government are currently embarking.

[Baroness Butler-Sloss (CB)]

When are the Government going to get on with financial relief and produce some legislation?

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[Lord Bellamy (Con)]

When the Law Commission’s report is available.

[Lord Wallace of Saltaire (LD)]

My Lords, it was very reassuring to hear the Minister say that we need to consider legislation very carefully before it is introduced and see how it fits in with other Acts and so on. Can he assure us that similar procedures have been applied to some of the legislation currently before the House with which we are struggling?

[Lord Bellamy (Con)]

The Government always do their best to ensure that the legislation is comprehensive and consistent.

Economic Crime and Corporate Transparency Bill

Lord Bellamy Excerpts

Committee stage
Tuesday 25th April 2023 Grand Committee

[Baroness Blake of Leeds (Lab)]

I thank everyone for the extraordinary debate that we have had on this issue today. I continue in the vein of looking for optimism in the outcomes of some of the discussions that we have had. I pay particular tribute to Members of this House who have joined Members of the other place in relentlessly pursuing this issue, to the extent that there is now a far greater understanding—not only in Parliament but in the wider country and the communities particularly affected—about the issue of SLAPPs, which perhaps a year or two ago was not understood at all.

To start by going back to the very basics, SLAPPs are, as we know, strategic lawsuits against public participation, abuses of the legal system, generally by the super-rich—and, it is important to remember, they are intended to harass, intimidate and financially and psychologically exhaust one’s opponent. I am not sure that that element has quite come through, although everyone is fully aware of it. We have talked today about this practice being embedded in the system and its close relationship to the scourge of economic crime. In other debates that we have had on the Bill so far, we have highlighted the real extent of economic crime facing this country. All of us have an obligation and commitment to come together to work out how we are going to deal with it.

As we have heard, the use of SLAPPs has been linked to Russian oligarchs. That is inevitable, given what has happened over the past year, particularly with regard to looking at ways to prevent journalists from reporting on their links to economic crime, with particular reference to the war in Ukraine. As we have seen, SLAPPs are not only used by those committing economic crime, but the amendments proposed here narrow the definition to those concerned with suppressing information on economic crime. The wider point which we need to take on board is about the serious concerns that SLAPPs are now being used to suppress democracy globally. It is important to put it as far as this.

I am sorry that the noble and learned Lord, Lord Garnier, has had to go, but I would like to say to him that his attempt to reassure us on the numbers has not had that effect at all. It has been clearly stated that the small numbers that reach court highlight and emphasise the problem that we have.

I shall go on to ask the Minister to comment on the view coming from the other place that SLAPPs are under a separate jurisdiction and therefore should be under a separate Bill. We have heard some great arguments as to why we should look at these amendments seriously and incorporate them into this Bill.

I thank all noble Lords who have spoken to their amendments and clearly given us a full understanding of the purpose behind them and how they will contribute to the overall objective. From our position on these Benches, we look forward to engaging in full and detailed conversations as to how, as I suspect will be necessary, we present further amendments on Report. We support the principle of the Government bringing forward effective legislation and will continue to call out this issue wherever it occurs, whether on this estate or elsewhere, when anyone in a position of influence puts undue pressure on someone to make sure that important matters do not see the light of day.

I want to highlight some of the reasons why feelings are running so high. We need to understand and remember the severe power imbalance between the claimant and the defendant. In this context, journalists and media outlets are put at a disadvantage from the outset, as we have heard today. Defending a legal case can, as we know, be prohibitively expensive and a huge drain on resource. As we need to emphasise every time we speak about this, SLAPPs can create significant financial jeopardy for journalists and media outlets, with legal costs starting to accrue long before cases get anywhere near reaching court.

Putting ourselves in the place of those who have been subjected to this, I think that the process of defending a legal case in this sphere can feel like punishment: a fear of devastating financial impact, potential loss of savings, their homes, pensions and livelihoods if a case goes to court. The effort in putting a case together involves massive distraction from the work that people are trying to do. As others have said—it is a serious charge but one we should take seriously—this is having the impact of undermining the basis of democracy.

We have talked about how libel laws in the UK are weighted, but we also need to emphasise the issue of libel tourism. It remains an issue in the UK. The bar to bring a case here is problematically low, and the use of privacy and data protection laws is increasing. We need to consider that SLAPPs in the UK are often pursued against individuals rather than the organisation they work for, which undermines the resources available to mount an adequate defence.

One of the themes running through all our discussions on the Bill is the reputational damage to London and, therefore, the country. London’s obvious position as a global hub for the super-rich has compounded the problem. We must make sure that clients cannot use threats of legal action to clean up their image and remove unfavourable information from the public domain. There has been insufficient recognition by the UK Government and official bodies of the connection between protecting media freedom and countering corruption.

Returning to the personal, I suggest that other factors include the psychological impact of intimidation and harassment on those subject to legal challenges. That has not been sufficiently recognised, and such things lead to a massive impact on mental health.

Will the amendments before us today tackle those issues? I think that is a subject for further discussion, but the main question that has been put repeatedly from across the Committee today is whether the Government are serious about measures to end these practices. We had some optimism in July last year when there seemed to be a commitment that legislative reform measures would come forward, but where are they? Are they being moved forward? Will the Government follow through by supporting the measures proposed in amendments to the Bill?

We have heard that this is a serious issue. It is urgent for so many reasons that we have discussed today. My last question for the Minister is: will the Government take this opportunity to act, recognising how urgent the situation is, and meet with us to discuss ways that we can move this important matter forward?

[The Parliamentary Under-Secretary of State, Ministry of Justice (Lord Bellamy) (Con)]

My Lords, I warmly thank all noble Lords who have spoken in this debate and who have spoken to me directly on this issue. I also thank noble Lords for the enormous amount of thought and consideration that has been put into this issue by those who have spoken. There is significant strength of feeling across the Committee on this important issue. I begin by providing an assurance that the Government share those concerns and that it is clear to the Government that we should take legislative action against SLAPPs. As the Government have set out, for many reasons that have been mentioned in this debate, we are firmly committed to legislating effectively, comprehensively and without undue delay on this issue.

Noble Lords will not necessarily be entirely happy when I say that we do not think this Bill is the correct vehicle for tackling this issue. There are essentially two reasons for that. One is that here we are dealing with economic crime. I take my noble and learned friend Lord Garnier’s technical point about the scope of the Bill, but the major issue here is that, even if we were to put in an amendment to this Bill, it would still be too narrow because we are not covering matters that are not economic crime, such as freedom of expression, political interference, national security and so forth. The Government’s preference would be to handle the entire landscape of SLAPPs in one place, and that is not this Bill.

[Lord Agnew of Oulton (Con)]

The Minister talks about introducing some SLAPPs legislation “without undue delay”, but there is no possibility of a timetable to introduce that. We are only 15 or so months away from a general election, and the legislative timetable is jammed solid already. There is no fixed slot for it to come in. I utterly reject the idea that the Government want the perfect to be the enemy of the good: “We are going to do everything in one Bill”. Why not do this bit now, which will take very little parliamentary time? As the noble Lord, Lord Cromwell, said, it will deal with probably 80% of the problem, because we know that shutting down debate on economic crime is probably our biggest problem. When in 10 or 15 years’ time—this point was made by the noble and learned Lord, Lord Thomas—the Government finally find the perfect moment, although some of us will be dead by then, they could then repeal the relevant clauses of this Bill and do it all in one bit. But I utterly reject the pathetic excuse that this is not the right moment. I ask my noble and learned friend to be a little more straightforward in his commitment.

[Lord Bellamy (Con)]

My Lords, I entirely understand the frustrations felt by my noble friend Lord Agnew and others. It is not to be ruled out that we could find an appropriate legislative vehicle for this matter before the next general election. That is not to be ruled out. However, I cannot today go further than to say that this issue will be brought forward by the Government when parliamentary time allows. That is normally a long-grass phrase—kicking it into the long grass. I regard it today, and say it today, as a short-grass phrase because I am not at the moment giving up on having legislation relatively soon, but I can give absolutely no commitment on that matter.

[Lord Thomas of Cwmgiedd (CB)]

I ask the noble and learned Lord, as a little test of this commitment, is there is a draft Bill? If there is one, his assurance is really wonderful but, without one, is it not just a phrase for the long grass?

[Lord Bellamy (Con)]

I can tell your Lordships that the Government have not been idle in preparing possible drafts to deal with this matter, and I am very happy to keep in close contact with noble Lords between now and Report on progress and to discuss as widely as we need to how we should approach this matter.

[Lord Cromwell (CB)]

What the Minister is saying is potentially helpful. His initial statement was almost verbatim what we got at Second Reading and in previous Bills. I could almost set it to music now, I have heard it so many times, but we seem to be getting somewhere. Will he clarify whether he is happy to continue discussions with us about these Bills, which, apparently, the non-idle Government have been working on or about a possible amendment to this Bill? Will he clarify which one we are addressing here?

[Lord Bellamy (Con)]

It is the former. The second point here is that the Government are not happy, for reasons that I shall now, I hope, go into a little detail about, about the actual amendments being proposed here. I preface that by saying that we should not overlook the fact that there is one enormous conceptual issue behind all this, which is the question of access to justice. This is probably the first time that anyone has ever legislated against someone bringing something to court, which is something that we need to stop and think about. Where is the balance? If I may say so, reference has been made to the rule of law, and it is somewhat ironic to say that we must uphold the rule of law by penalising someone who seeks access to justice. That is a very difficult area, and we need to find a balance. The Government would like to explore further how that balance is to be found because, in the Government’s respectful view, it is not yet found in the amendments before the Committee today.

[Lord Cromwell (CB)]

I think that we are actually in agreement on that, and I hope that I made it clear earlier that what we need to do is to work together to get this right with critical friends, including the noble and learned Lord, Lord Garnier, who will bring a forensic examination of whether the work is right, but I go back to an earlier comment that this is difficult. Yes it is, but it is not impossible.

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[Lord Bellamy (Con)]

I entirely accept that it is not impossible and, to take the phrase of a noble Lord earlier, that it is actually doable. I think that it was the noble Lord, Lord Cromwell, who used that phrase.

[Baroness Bennett of Manor Castle (GP)]

My Lords, I was hoping that someone with a great deal more legal knowledge than me would rise to speak, but I feel that I need to challenge the Minister’s comment that this proposal is unprecedented. Other noble Lords will be able to say more, but we have a process of law about vexatious litigants who are unable to bring cases. There is a whole set of rules there, and there are rules in the family courts that eventually stop cases being brought. So it is not the case that this is something that has been miraculously conjured out of the air that does not exist in any form whatever in the legal framework.

[Lord Bellamy (Con)]

My Lords, on that last point I had primarily in mind the amendments that seek to criminalise bringing cases before the courts, which is the subject of some of the amendments.

[Lord Fox (LD)]

I am sorry. I appreciate the access that the Minister is giving us. I am really following up the point that the noble and learned Lord, Lord Thomas, made. The Government are not being inactive. Can the Minister tell us how many people are in the dedicated team that is currently pursuing this issue? It is complicated, as he pointed out, and Government do want to get more depth on this, so how many people are now working on this, and when does he think they might actually come up with something that could then go into a draft Bill? In a sense, what is the timetable and what is the amount of horsepower that is going into that timetable?

[Lord Bellamy (Con)]

I am afraid I cannot give the noble Lord a timetable. I cannot tell him how many people are working on it, but I can tell him that important work is being done. I am not in a position, and I very much regret that, to go further than that today, but I am prepared to keep in close touch with your Lordships between now and Report to share progress and thoughts on whether there is a legislative vehicle that can conveniently—and soon—be introduced.

[Lord Cromwell (CB)]

I am sorry. I will press the Minister a little more on that. When will we first hear from him on that update on progress?

[Lord Bellamy (Con)]

Can I write to the noble Lord, Lord Cromwell, on that point?

[Lord Cromwell (CB)]

I eagerly anticipate it.

[Baroness Blake of Leeds (Lab)]

Can I ask that we are all included in the correspondence?

[Lord Bellamy (Con)]

Absolutely. I will write to everybody after this debate and try to elaborate a little on what I have said. I hope noble Lords understand that in terms of my boss, I recently had a change of personnel, and it takes a little while to allow the dust to settle, if I may put it like that.

The only other thing I would respectfully draw noble Lords’ attention to, and I fully accept there is a certain amount of controversy as to how big this problem is, is that the Solicitors Regulation Authority issued a warning notice on 28 November 2022, which led to that authority undertaking investigations in relation to SLAPP complaints, so we are not without a regulatory instrument to at least hold the line until we are able to legislate. That, as far as one can tell, has had a salutary effect on the practical consequences of SLAPPs. It is not the case that nothing has been done.

[Lord Thomas of Gresford (LD)]

My Lords, the Minister said that the amendment which I have put forward criminalises access to justice. It does not do that; it criminalises a threat of litigation that is unwarranted and known to be unwarranted without reasonable excuse. It is perfectly simple, but I would be very unhappy to leave this Room today with the thought that the Minister has in mind that my amendment is criminalising access to justice.

[Lord Bellamy (Con)]

My Lords, perhaps I expressed myself a little loosely. Let me put it like this: in the Government’s view, this is not an area where we should introduce the criminal law, whether it is in relation to pre-litigation or in any other respect in terms of litigation. One is faced with a very basic question of when is something that is a robust and justifiable approach to litigation in a pre-action letter a threat. That is not straightforward, in the Government’s view. The Government’s view is that this is not a matter where the criminal law should intrude.

[Baroness Stowell of Beeston (Con)]

My Lords, I am sorry to interrupt my noble and learned friend, but his reference to the Solicitors Regulation Authority prompts me to ask him a couple of questions. He makes reference to access to justice and to the Government being nervous about legislating in a way that would call that into question. As I said at the start, the amendments that I have tabled, Amendments 87, 88 and 89, are directed at the Solicitors Regulation Authority. As my noble and learned friend has already said, it issued a notice recently to reinforce the fact that this kind of activity is unacceptable.

My amendments seek to codify that yet further and give it the power, which it does not feel it has sufficiently clearly in law, to act when a solicitor is conducting themselves in a way that could be supporting somebody trying to prevent proper inquiry into what could be economic crime. I am struggling because I understand the argument my noble and learned friend is making about parliamentary time and the Government wanting to legislate for this in the round, but I also know as a former business manager that it is very difficult for any individual government department to be confident, even if it wants and hopes to be able to legislate in the way he is indicating that he and his department do, because the timetable is not in its control.

There is frustration in this context because we know that this is about only economic crime and that we are proposing amendments that would tackle only economic crime, as the noble Lord, Lord Cromwell, has said several times—maybe this is a bigger issue than even the SRA is telling me. This would make a difference none the less. In my humble view—I am not a lawyer—I do not think we are proposing anything that would limit people’s access to justice. When my noble and learned friend goes back to his department, even if he cannot make any kind of commitment at the Dispatch Box today, which I understand, could he at least have a conversation with others that is a bit more open-minded than his colleagues seem to have been on this matter up to this point?

[Lord Bellamy (Con)]

I thank my noble friend for that intervention. I can certainly have that conversation. I do not want to give the impression that the Government are close-minded. We are very prepared to legislate and have said that we are willing; the question is finding the right vehicle. I will deal with my noble friend’s amendments in a moment. When I said a moment ago that there are issues around access to justice, I meant no more than that. We have to be very careful in talking about approaching a court and whether that is in some way unprofessional, subject to sanctions or otherwise criticisable.

As far as the Government can see—if I may think aloud—there are probably two essential mechanisms to deal with this, one of which is in part reflected in some of these amendments, although the Government would not entirely agree with how it is put. One is an early disposal mechanism and the other, critically, is a cost protection measure so that people are not exposed to costs. As has been said many times, the risk of having to pay the costs is the real imbalance. Those are two general thoughts that, I hope, illustrate that the Government are not closing their mind to this. We are thinking about it and hope to come forward with a comprehensive, balanced solution, but today I cannot say exactly when.

With that background, I will deal with the specific amendments, which the Government are sympathetic to but cannot accept. On Amendment 80 from the noble Lord, Lord Thomas, as I have already said, new criminal offences should be created with care. That is especially true when targeting professionals with responsibility for assisting persons to achieve access to justice. There is a risk of inadvertently undermining access to justice in that way and the Government’s view, as I have said, is that a criminal approach in this area is not correct and would in any case create quite a lot of difficulties around proof beyond reasonable doubt, the concept of reasonable excuse, et cetera. Criminal offences need to be clear and we are very reluctant to see a new criminal offence created. That is our position on Amendment 80—it is too far-reaching. On that basis, I ask the noble Lord, Lord Thomas, in due course to withdraw it.

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[Baroness Stowell of Beeston (Con)]

Briefly, I urge my noble friend to look at the correspondence I have had with the SRA specifically about the Bill. The SRA makes it clear that what I am proposing by way of these amendments would give greater clarity to the fact that SLAPP cases which relate to economic crime would also not be subject to the current cap but would benefit from that cap being lifted, which the Government are seeking to do. To put it another way, my amendments are trying to make sure that the intention of what is already in the Bill is achieved in the way that the SRA is asking for.

[Lord Bellamy (Con)]

Indeed. I respectfully suggest to my noble friend that she may have copied the letter to which she refers to the Home Office and the Ministry of Justice recently.

[Baroness Stowell of Beeston (Con)]

It was also copied to the Minister’s office.

[Lord Bellamy (Con)]

Indeed. I suggest that I meet with my noble friend and we go through it with a fine-toothed comb. I am happy to meet with anybody else who wants to go through particular amendments with a fine-toothed comb and see where we are, because there is no point in arguing about things where we are ad idem.

The same point arises on Amendment 89, which relates to POCA—I pronounce it “poker”, but others pronounce it “pocker”—and Section 327 of that Act. Amendment 89 aims to stop corrupt claimants using their criminal property to pay their legal fees. Our view on Section 327 of POCA is that that is already effectively covered because it makes it a criminal offence for anyone to convert, conceal or transfer criminal property, so the payment for legal services using criminal property is already a crime. I am led to believe that the Solicitors Regulation Authority will shortly publish new guidance on the application of POCA in relation to solicitors’ responsibilities in that respect. So our position on our amendment is that it is already covered, but again, let us discuss this in detail so that we can get it right. Formally speaking, for those reasons I ask my noble friend in due course not to press her amendment today.

I am grateful to the noble Lord, Lord Cromwell, for his Amendments 105 and 106, and for the care and attention that he has devoted to this. Again, the Government’s position is that these amendments do not quite cut the mustard, if I may put it that way.

As drafted, Amendment 105, which seeks to create a new defence, would cut across several other areas of jurisprudence. There is a common law public interest defence for a breach of confidence, and a very careful balancing, in Section 4 of the Defamation Act 2013, as to when you can have a public interest defence in defamation cases. This kind of provision should not be rushed through without a careful examination of its side effects on other legislation and potential unintended consequences. Neither does the amendment quite attack what the Government would suggest is the main problem, which is not whether you have a defence but whether you have the money to fight it in the first place. You need some cost protection to be built into the SLAPPs framework.

The same point applies to Amendment 106 on the power to strike out. There are already powers to strike out, and the noble Lord makes it clear that we need to clarify those powers—but one cannot get away from the fact that, typically speaking, a strike-out application is very expensive and complicated, because you are trying to throttle a case at the beginning and the court is having to go through a great deal of work to get there. In the end, a strike-out will probably not be effective in achieving what the noble Lord seeks to achieve. We share the objective, but we are not sure that this is the right way to do it.

While we are sympathetic to the sentiment behind the amendments, from a technical point of view, the Government do not think that they are quite right. Unscrupulous claimants could exploit all this by ensuring that the process remains very complicated, long and burdensome. That is the Government’s position on these amendments. I repeat that I am very happy to engage so far as I can in a dialogue with noble Lords to see whether we can make further progress on the technicalities of this issue and look for a proper legislative vehicle in which to carry it forward.

[Baroness Bennett of Manor Castle (GP)]

I do not believe the Minister addressed the point that I and a number of other noble Lords raised about the international dimension of this, and the UK’s position in the international framework. Noble Lords may have seen that the noble Baroness, Lady Kennedy of The Shaws, was joined in this Committee by some guests, one of whom was Sebastien Lai, the son of Jimmy Lai, who was a victim of what has been labelled lawfare by the Chinese state in Hong Kong. We are also seeing British institutions being used as a weapon for that lawfare. Does the Minister acknowledge that there is a true international reputational issue and that the whole rule of law across the world is under attack?

Reflecting on what the Minister said, I think we heard something of a hint about the Government’s thinking that cost protection could be one way of addressing this issue. That fails to address the point made by the Labour Front Bench and others that, even if there is cost protection, an enormous amount of time, energy and stress goes into a case. Even if you are able to take away the financial threat, you are taken away from doing other journalism if you have to spend months engaging in a case.

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[Lord Bellamy (Con)]

I thank the noble Baroness. I am perfectly prepared to accept that there is an international aspect. The Solicitors Regulation Authority is on the case, it has issued its warning notice—fired its warning shot—and that is having an effect, so it is not as if the position is not being tackled. The question is about legislation, and the need to get it right from a rule of law and an access to justice point of view. There is a conflict here, as the noble Lord, Lord Vaux and the noble and learned Lord, Lord Garnier, pointed out. One has some misgivings about this because, as was also said earlier, journalists are not always right, and one must bear that in mind. If you have ever been on the receiving end of the tabloid press as a defendant, you will know that they still have not inconsiderable power if you have no money to defend yourself.

[Lord Cromwell (CB)]

If I may say so, one of the formative experiences of my childhood was being on the receiving end of tabloid journalism, and it is something I will never forget. That does not alter my commitment to getting this right.

I am encouraged by the Minister saying that my amendments do not quite cut the mustard—“do not quite” is a pretty good score in my book. I agree with him that early access will be a key feature of the right answer here, and cost protection, depending on what form it takes, is potentially helpful. He constantly prays in aid access to justice is a big issue, and I agree that the definitional issue of a SLAPP is very important. However, in the conversations he has promised to have, I would want him to make a distinction between harassment and denying the right to justice. Denying the right to justice, the ability to go to court if you wish, is not what I am about—I am about where people have no intention of going to court if they can possibly avoid it but are simply harassing people who want to bring economic crimes into the light. The Minister has given us a hint that there is a government Bill in draft here. I am taking that in good faith; I hope that faith will be well placed and that we will see it soon.

[Lord Bellamy (Con)]

Again, I thank the noble Lord for his remarks. The key problem is to distinguish access to justice from harassment. It is quite difficult, but it can be done. That is my answer to that question. On where the Government are, as I said before, we are working on drafts, but I cannot go any further than that until I know whether there is a legislative vehicle and which it can be. I am sorry not to be able to commit the Government at the Dispatch Box today any further than that but, as I said, I am hoping—and I can only express as a hope—that this is a short-grass and not a long-grass issue.

[Baroness Bennett of Manor Castle (GP)]

My Lords, I apologise to the Committee, I perhaps should have declared my position as co-chair of the All-Party Parliamentary Group on Hong Kong in my last intervention.

--- Later in debate ---

This has been a very interesting debate. The essential point of my amendment is that I want to stop it before proceedings commence, and you can do that with criminal law and sanctions only by saying that someone who threatens litigation knows what he is doing and intends to stifle proper journalistic investigation, and he has no reasonable excuse for it. To my mind, that is within criminality. For the Minister to say, “We can’t have another criminal offence, we have too many”, is just a joke. This Bill is littered with new criminal offences —every day we debate new criminal offences in the Chamber. It is a joke to say that my simple amendment cannot be accepted because it creates a new criminal offence, as it is designed to—not to put people in prison but to stop them doing what they are doing today. It is intended to change the atmosphere and culture and prevent the use and internationally known abuse of SLAPPs in this country from going any further.

[Lord Bellamy (Con)]

Just to clarify, as I said, the Government’s position is that it is not appropriate to introduce a criminal offence in relation to access to justice. It is not a question of just having another offence. Access to justice is a very important area, and we are on a slippery and possibly Orwellian slope if we start saying that it is criminal for someone to go to the law on some point. It is a very difficult area—that was all I said.

[Lord Thomas of Gresford (LD)]

So, according to the Minister, it is not criminal for a person to threaten litigation, with all the expense and worry that that involves and the way that it crimps the investigation of crime. He is saying that it is not unlawful and should not be criminal. There are criminal offences that cover conduct far less morally bankrupt than that, which is what I hope we shall discuss with the Minister before Report. For the moment, I beg leave to withdraw my amendment.

--- Later in debate ---

[Baroness Blake of Leeds (Lab)]

I do not have an enormous amount to add but I thank the noble and learned Lord, Lord Etherton, for his comments and for the full explanation of the amendments before us in this group.

I will add a concern about the removal of the schedule naming the offences. Perhaps we will need to have a better understanding of why that would be an advantage, but I remain to be convinced on that point. On Amendment 90, I do not have much to add to the comments made by the noble Lord, Lord Fox, which lead to a need for greater clarification before we can move on from this.

[Lord Bellamy (Con)]

Once again, I am grateful to noble Lords who have spoken in the debate. I will first take Amendments 81 to 84, tabled by the noble and learned Lord, Lord Etherton.

Whereas our lengthy debate earlier in the day was directed at expanding the Bill, this is directed at narrowing it. It may not be a total surprise if I say that the Government are not very happy about proposals to narrow the scope of the Bill. As was said, these amendments arise, apparently, with the support of the Law Society and the Bar Council. The Government met the Law Society and the Bar Council on a number of occasions and the question of the definition of economic crime was gone into in some detail, and one is a little surprised to see that this matter is being persisted in.

The list of the offences in Schedule 9 is very close to the list of offences in the Crime and Courts Act 2013, which applies to deferred prosecutions in various cases, which are often relevant in financial matters, and, although not exactly the same, they are based on that definition.

The other introductory comment that I would, if I may, make is that, while the overwhelming bulk of the legal profession upholds the highest standards, much of this Bill would have been unnecessary were that true of all legal professionals. It is against that background that the Government are reluctant to run the risk of introducing loopholes into the Bill by reducing the scope of Schedule 9.

The first point to note is that the definition of economic crime in Clause 180 and Schedule 9 applies right across the Bill and includes the information-sharing measures in Clauses 175 and 176. Those measures, for example, entitle bank A, when it receives from bank B a large sum of money, to ask bank B whether it is a proper transaction, so there is information-sharing between financial institutions. Clause 176 enables a financial institution to notify a platform, for example, that it has concerns about particular transactions or clients. These are pretty essential powers in the Bill, and the definition of economic crime applies to those powers as well. In the Government’s view, it would not be desirable to have two definitions of economic crime across the Bill as a whole.

The definition applies to other legal services measures in Part 5 of the Bill, which amend the Solicitors Regulation Authority fining limit and information provisions. So for consistency and ease of understanding, the Government’s position is that it is sensible to have a single definition of economic crime through the Bill, and not reduce that definition at this stage. Just to make an illustration, there was some suggestion that introducing the word “theft” would go a bit too far. It may in a certain situation be quite difficult to say whether something was fraud or theft—it might well be both—but it is not the sort of argument that the Government feel that one should get into. Having worked with the Law Society of England and Wales and the Bar Council on these matters, the Government have clarified in the Explanatory Notes which offences are likely to be most relevant to the financial sector. They have not excluded them, but they have indicated that fraud, money laundering, terrorist financing, bribery, and any offences under regulations made in relation to money laundering are likely to be the ones that the profession should concern itself with most in practice. But it is important that regulators should not be unduly constrained in the ambit of the definition of economic crime in this Bill.

I can reassure noble Lords that all the existing safeguards that apply to regulators under public law principles, including what is proportionate and fair, continue to apply. Section 3 of the Legal Services Act provides that the Legal Services Board must have regard to the principles of transparency, accountability, proportionate action and consistency and target only those cases where action is required. The new objective in relation to economic crime fits within that framework. One is to an extent tilting at windmills here to try to reduce the scope of this major piece of legislation designed to tackle the very serious problems that noble Lords have now debated at length. On that basis, I shall ask the noble Lord in due course to withdraw his Amendment 81 and not press his other amendments.

I turn to Amendment 90, which affects the regulatory objective. The essential aspect of the amendment is that the objective is too wide and that we should spell out that it is all subject to legal professional privilege. Those are the essential points that were made.

I will take the point about legal professional privilege first. The Government entirely accept and agree with the noble and learned Lord that legal professional privilege is a fundamental principle of English law. It protects the confidentiality of communication between a lawyer and client in terms of legal advice, and ensures complete fairness in legal proceedings in terms of litigation privilege, for example. However, the Government are not able to accept the amendment for the following reasons.

Offenders (Day of Release from Detention) Bill

Lord Bellamy Excerpts

2nd reading
Friday 21st April 2023 Lords Chamber

[The Parliamentary Under-Secretary of State, Ministry of Justice (Lord Bellamy) (Con)]

My Lords, first, I warmly thank the noble Lord, Lord Bird, for a characteristically compelling and very moving speech on this issue. I also thank him for the work he is doing—in particular, in encouraging his contacts in Brixton to work with prisoners to obtain jobs on their release, particularly from Brixton prison. This is a very positive development, and it has been a great pleasure to work with him on this issue. I am grateful for the very broad support the Bill has received, both in the other place and in this House, and to all those who have worked on it, particularly Simon Fell MP. I am also grateful for the input of Nacro and other interested parties. It is a great pleasure, for once, to be able to say that we are all more or less on the same page, working in the same direction.

As far as the Government are concerned, the direction of travel is indeed towards rejuvenation, to use the word of the noble Lord, Lord Bird, and rehabilitation generally. I was particularly pleased about and grateful to the noble Lord, Lord Thomas, for recounting the positive developments at Berwyn prison in particular, which seems to be setting a good example of the work that can be done and what can be achieved with targeted resettlement and rehabilitation efforts, particularly concentrating on employment—local possibilities with local employers—and accommodation and related matters. I take the opportunity to say that that was very much driven by my right honourable friend the late Secretary of State for Justice, who resigned today but who has very much led the direction of travel for rehabilitation and resettlement of prisoners.

The importance of the Bill is shown by the widespread and consistent support it has received. It is a simple measure, as has been said, but it is likely to have a strong and positive impact on the rehabilitation of offenders leaving custody and it is clear that it commands widespread public support. I am sure that it will particularly help the repeat offenders referred to by the noble Lord, Lord Hacking, and I hope that it will reduce that “very lonely place” to which the noble Lord, Lord McNally, rightly referred. It will be particularly important, as has been mentioned, for youth offenders, who were underlined by the noble Baroness, Lady Bakewell. Because we now have relatively fewer youth offenders in custody, youth offending establishments can be quite far away from home, so youth offenders who are released face enormous difficulties if they do not have a support system. This will enable much better support for that particular category of prisoners, including those who have been in the recently created secure 16 to 19 year-old schools, and will mean that they will experience no delay in contacting their youth justice worker and can be properly protected. I compliment and thank the Youth Justice Board for all its work in this general area.

I fully accept the comment of the noble Lord, Lord Ponsonby, that there is a great deal more to be done, but I venture to suggest that we are beginning to make progress in these areas with the various initiatives that have rightly been mentioned. In that connection, the noble Lord asked what has changed since the Government’s previous position. As I understand it, there was a consultation on the Prisons Strategy White Paper which produced a lot of responses. It enabled further discussion to be had, particularly with policy officials, prison staff and third parties in the community as to how we should manage all this. The Secretary of State will now delegate the decision to prison governors and the equivalent but will give some guidance as to how it is going to work, so that you give priority to certain people and make sure that, as it were, it is staged down through Wednesday and Thursday as well as Friday. There will still be some residual prisoners who are released on Friday; there is no particular reason why those who have homes to go to, such as the white collar offender, should have particular priority, but that enables you to give priority to the people who need it most.

The noble Lord, Lord McNally, asked why we need an Act of Parliament. We need one because—I think I am right about this; I will write to the noble Lord if I am wrong—if Parliament says you should serve a sentence of so much, you have to serve that sentence. Only Parliament can authorise people to be released just short—in this case, a couple of days short—of serving that sentence. Although it is only a couple of days, one needs legislative authority to do it. I think that is the answer, but I will check in case I have it wrong.

I hope I have covered the various points that were made. This is perhaps not the occasion to discuss sentencing policy. I entirely accept the points made by the noble Baroness, Lady Bakewell, and the noble Lord, Lord Ponsonby, that these matters, including whether we should use prison in a slightly different way and whether we should avoid shorter sentences, need to be reviewed continually. These are important issues but I venture to suggest that they are not for today.

I thank the right reverend Prelate the Bishop of Leeds for his contribution, in particular in relation to the female estate. I know that the right reverend Prelate the Bishop of Gloucester is particularly concerned about that. As has been pointed out, we have the same problem with the female estate because it has relatively few offenders so there are not that many female establishments, meaning that offenders are often far from home; they can also be very vulnerable when they are released. This problem needs particular planning; I hope this Bill will give us an opportunity to ameliorate it.

Following what the noble Lord, Lord Thomas, was kind enough to tell us, I can say that the Government have taken significant steps in improving prison leavers’ accommodation; in building stronger links with employers through dedicated prison employment leads, so that there are now people in the prisons who are responsible for finding employment and prison employment advisory boards through which, as the noble Lord illustrated, local business leaders can come into local prisons; in offering more work within prison; in delivering and improving a prisoner education service; in increasing access to drugs rehabilitation; and in other actions.

The reoffending rate is slowly coming down, from 31% in 2009-10 to 25.6% in 2019-20, and the Government are further investing in driving it down. These are important interventions. The Bill will be an important support for all the things that are going on and will ensure that the offenders most in need of help will be given a full opportunity to access support before a service is in effect closed for the weekend. We will develop policy guidelines to help heads of establishment or the appropriate officials in youth establishments to target exactly the offenders most in need and support them to make decisions that allow offenders who need it time to resettle and reintegrate into their community.

This is a simple and proportionate Bill. I think I have covered most of the points that were raised. I can only reiterate my thanks to the noble Lord, Lord Bird, and everyone who has helped to support the Bill. I commend it to the House.

Prison Officers: Retirement

Lord Bellamy Excerpts

Thursday 30th March 2023 Grand Committee

[The Parliamentary Under-Secretary of State, Ministry of Justice (Lord Bellamy) (Con)]

My Lords, I thank the noble Earl, Lord Attlee, for tabling this Question and all noble Lords who have spoken this afternoon. I will try to explain the Government’s position but, before I do so, it is right for me to highlight and pay tribute to the vital role that prison officers play in keeping the public safe and rehabilitating offenders. Prison officers and probation staff are vital key workers; many go above and beyond the call of duty to keep safe the public, their colleagues and those committed to their care. One is hugely impressed by the commitment of prison staff, who work in the most challenging of circumstances.

I will first make a clarification regarding a phrase used in the Question and at times this afternoon: the “retirement age” of 68. This is the age at which the state pension is fully payable, so we are not talking about a retirement age; we are talking about the age at which a full pension is payable. Nothing prevents anyone retiring before 68; many in the prison service retire before that age and very often return part-time or do other jobs. We are talking about the state pension age and the fact that, in line with the rest of the Civil Service, prison officers at the moment qualify for the full pension at that age.

I should say to noble Lords, although I am not fully apprised of the details, that I think there is a Statement today about the fact that the Government are considering the point at which to introduce the age of 68. There is talk of deferring the introduction until after the next general election in 2026, having regard to changes in life expectancy following the pandemic and other factors. However, this afternoon, let us continue with the hypothesis that we are talking about a difference between the state pension age which applies to all prison officers and the whole of the Civil Service, as compared to the lower pension age that applies to police officers and firefighters. I think I can leave out of account the armed services because we are probably in general agreement that that is a different case, for fairly obvious reasons.

It is also worth recording that, as I understand it, as of today, about half the prison service in bands three to five, who joined before 1 April 2015, are on legacy pension arrangements of one kind or another. In those cases, their retirement age may well be 60 or 65, depending on the legacy arrangement in question. It is perfectly correct that the full pension age refers to recruits joining after 1 April 2015, and it is likely to be between 65 and 68, depending on the precise date of birth of the individual in question. As noble Lords have observed, that results from the reforms proposed by the noble Lord, Lord Hutton, in the Hutton report in 2011, subsequently enacted in the Public Service Pensions Act 2013.

The answer to the first part of the Question as tabled is that 68 is the full pension age because this is the age which applies to the Civil Service generally, which comprises hundreds of thousands of people, and reflects the recommendations of the noble Lord, Lord Hutton. It is quite true that his recommendation 14 proposed an exception for the uniformed services, but he defined uniformed services as the Armed Forces, police and firefighters. He suggested in those cases that the normal pension age should be 60, which was in fact an increase from 55. But he did not, as has been pointed out, include prison officers.

In effect, the thrust of this Question is whether prison officers’ retirement age should be reduced from that which applies across the public sector now to that of police and firefighters. For various reasons, the Government’s position is that such a reduction is not appropriate in the present circumstances—or, to put it another way, the Government are not yet persuaded that such a reduction is appropriate. I deliberately put it in that slightly softer way because I entirely accept the comments that have been made that the Government would wish to have a constructive relationship with the trade unions and, particularly, with the Prison Service. I will come back to the questions that have been asked in that regard.

The short answer to the Question that has been posed is that despite the very persuasive points that have been made by noble Lords today, the Government do not currently consider that the job of a prison officer, very demanding though it is, is sufficiently comparable with that of a firefighter or a policeman to justify a downward reduction in the qualifying age for full pension.

Firefighters have exceptional fitness requirements much more stringent than those for prison officers. They do life-threatening work. Similarly, the work of police officers, generally speaking, involves a higher degree of risk of fatality or serious injury. Since the noble Lord, Lord Hutton, did not include prison officers, it would not, in the Government’s view, be appropriate to reopen that issue.

Certain general points arise in this respect. The first is that in most western societies such as this one, the general trend is to raise the pension age. We know that that is happening as a result of longer life expectancy, ageing populations and falling birth rates. Looking at it for a moment in a global view, any responsible Government concerned with controlling public expenditure in the future would have to think very hard before reversing the trend—actually lowering a pension age. We have seen the opposite problem in France, where they are trying to raise a pension age. Fortunately, we have not had the same problem in this country. But, in current circumstances, to reduce the pension age would be going against the grain of wider economic trends and demands. That is a first point.

A second point, if I may make it—and I would be interested to know whether noble Lords agree—is that we are, as a society, moving away from the idea of a job for life, or that you start a career and continue in that career, like the distinguished examples given by the noble Lord, Lord Thomas, of his father and by the noble Lord, Lord Balfe, from his long career in the trade union movement: starting at 16 and remaining typically in that same occupation for many years. These days, people move around a great deal. The expectation that today someone of 18 would think of remaining with the Prison Service until he is 68 would be open to question, frankly, because modern youth, certainly the ones that one knows of anecdotally in one’s immediate circle, do not really think in those terms.

So the Government are cautious about acting on the basis that someone at the age of 20, deciding whether to join the Prison Service, is at all focused on whether their full pension would be payable in 2071, 2068 or 2063. In the Government’s view, that is not the kind of thing that affects recruitment or retention. So that is a further general point in relation to the impact—which is probably contestable—that this pension age has on the decision of a recruit to either join, or stay in, the Prison Service. These are rather detached points, and the cause and effect that has been raised is not entirely persuasive in the Government’s view, to put it as softly as that.

Thirdly, the issue of the contributions was raised. Under the standard Civil Service pension scheme, the employee rate is about 4.6%, and there is an employer contribution of 27%, which is pretty generous, compared to police and firefighter schemes, where the rate is between 12% and 14%. It is possibly the case that there is link between pay and pensions, and one has to look at them as package, as it were. In 2017, and on an earlier occasion in 2013, the Government considered, and negotiated with the prison officers, a package that would have involved a lower pension age but also had various points about pay and conditions. The POA voted on the package, and it was rejected.

So it is not as if the Government have not done anything in this respect; they have addressed questions of pay and pensions. The 2017 negotiations—they might be the Liz Truss negotiations to which the noble Lord, Lord Ponsonby, referred—did not reach agreement. The Government would say that that was not for lack of trying on the Government’s part, because a package was sufficiently agreed by the parties to be put to a ballot, but the ballot did not work. My noble friend Lord Attlee said that a retirement age of 65 had been “conceded” in the negotiations but, if I am correct, that would have been in the context of the wider package. I do not think that anything, as such, has been conceded separately as an appropriate retiring age for prison officers.

I will pick up the remaining points. I entirely accept my noble friend Lord Balfe’s suggestion that the Government desire a constructive relationship with the Prison Service. I am not in a position to commit the Prisons Minister to discuss this with the Prison Officers’ Association as a separate point, but the Minister is in constant touch with it, and I am sure that this, among other issues, will come up.

On this particular issue, there is a slight complication at the moment as a result of the McCloud judgment, which has thrown in some doubt the 2015 pension reforms as regards the younger members of the various pension schemes. There is a question about whether there is an age discrimination issue in those reforms. That is currently under consideration by the Cabinet Office, and, as I understand it, a remedy will be duly developed across the Civil Service to deal with that judgment. That may change the landscape a bit, but I think a detailed discussion of pensions should probably take place when that remedy is clear—or is announced or agreed, whatever the situation is—and would probably need to take place in relation to discussions about pay as well.

In relation to pay, the Minister for Prisons, my colleague Minister Hinds, has only today been giving evidence to the Prison Service Pay Review Body. Prison officers received a pay award last year, which has been welcomed. There are some signs of improved recruitment and retention. We have an extra 4,000 officers compared with 2017. Retention is still an issue in some prisons, but not in all prisons; some parts of the country have no trouble at all in recruiting and retaining prison officers. In general, the retention rate on average—I mean the rate of those not retained—is around 15% annually. Across both the public and private sectors, the national average is about 14% and in the Civil Service it is about 12.5%, so it is not completely out of line. But that is an average, and there is not a problem everywhere; it is only a problem in some cases. There are very focused efforts on trying to improve that situation, but the Government are not persuaded that there is a real link between the ultimate pension age at which the full pension is payable and the problems of retention and staffing in prisons. I think that they are due primarily to other factors and not the pension issue, although I accept that the pension issue has some symbolic value.

However, this is a difficult issue, and the Government would not wish to indicate that the position is for ever closed. It depends on what the remedy is that comes out of McCloud and further discussions. I would not presume for a moment to be able to replicate or follow the magnificent example of Viscount Monckton of Brenchley, who was mentioned earlier as a very fine Minister of Labour in the 1950s Conservative Government, but I hope that we find a way to move forward constructively with all parties on this question.

Committee adjourned at 4.47 pm.

Jurors: Mental Health Impact

Lord Bellamy Excerpts

Tuesday 28th March 2023 Lords Chamber

[Baroness Berridge]

To ask His Majesty’s Government what assessment they have made of the emotional, psychological and mental health impact on jurors of sitting in serious criminal trials.

[The Parliamentary Under-Secretary of State, Ministry of Justice (Lord Bellamy) (Con)]

My Lords, research into the impact of jury service has found that most people enjoy their service and find the experience interesting and informative. We know that some people can find it distressing. Anyone feeling this way is encouraged to contact their GP, who can put them in touch with the necessary support services. We are currently looking at options, including providing guidance to courts, to explore what more can be done.

[Baroness Berridge (Con)]

I am grateful to my noble and learned friend for that Answer but there are now increasing reports in the media of those having adverse reactions to the evidence that they are hearing, and the type of evidence they are having to hear is more graphic and often video footage. Will my noble and learned friend outline whether there are plans to have a proper systemic review of a court centre and talk to jurors before, and particularly after, their experience to see whether people are being adversely impacted by doing jury service?

[Lord Bellamy (Con)]

My Lords, the latest research was done by Professor Cheryl Thomas in 2020: 81% of those who had served on a jury said that they would be “happy to serve again”; 78% found it “interesting”. At the same time, it is quite true that 42% found the experience “stressful”. It is an issue, and the department is exploring options. What shape those options will take—whether there should be some sort of counselling service, whether it should be authorised by a judge and who would provide it—are all questions currently under consideration.

[Lord Pannick (CB)]

Does the Minister agree that everything depends on the nature of the trial? If you are asking jurors to hear a case involving graphic evidence of sex abuse, it really is not good enough to say that, if they are troubled, they can go to their GP. The same is surely true of the judges who have to hear such cases on a regular basis, it is true of the court staff and it is also true of the counsel and solicitors who specialise in this area. Really, something needs to be done about this.

[Lord Bellamy (Con)]

My Lords, as I say, the Government are exploring options. Sometimes a judge will warn jurors in advance that it is distressing and ask whether any of them wish to be discharged. There is a post-trial leaflet and an interesting video, which I watched yesterday, for jurors after the trial, which suggests what they should do if they feel stressed. Some courts of their own volition make references to local charities, and we are providing further guidance to courts on what to do in those circumstances.

[Baroness Kennedy of The Shaws (Lab)]

My Lords, I will come to the assistance of the Minister because he has been a practitioner in the courts, as I have. I know that the noble Lord, Lord Pannick, is not someone who practises in front of juries—

[Baroness Kennedy of The Shaws (Lab)]

—but it is commonplace now for judges to say to a jury that a case is of a sexual nature or involves homicide or murder where the facts are particularly troubling and gruesome, and to ask: “If any of you have any reason why you feel could not sit on such a case, then please come forward and tell me”. You can have a juror say, “I have had an experience in my past which will make this particularly difficult”. Judges will take the opportunity to say that the juror does not have to sit. That is commonplace in serious cases now. I ask the Minister: should it not be an obligation on the Crown to inform a court and the judge who is sitting that a case may be very disturbing for jurors, so that they can step forward and withdraw from sitting as a juror on that particular case?

[Lord Bellamy (Con)]

My Lords, I am entirely in agreement with the noble Baroness that in most cases of this kind judges will warn jurors in advance. That should generally be done, and I think it is for the judge to decide.

[Lord Marks of Henley-on-Thames (LD)]

My Lords, the noble Baroness, Lady Berridge, raises a very important issue. We ask citizens to perform this important public service and increasingly, as she said, it can be harrowing and traumatic. At present, as the Minister said, HM Courts & Tribunals Service tells jurors only that they can consult their GP or the Samaritans, who counsel potential suicides. The noble Baroness is right that professional counselling must be available where necessary. Will the Minister arrange such counselling and ensure that its availability is known to potential jurors at the time they are summoned so that they can see what the potential dangers are and consider their position, and have the information available throughout?

[Lord Bellamy (Con)]

My Lords, I do not think that I can add to my earlier Answer that the Government are currently considering all options. Roughly 100,000 people serve on a jury every year; most, as I have just said, find the experience interesting and informative, and the Government will keep this under close review.

[Lord Hope of Craighead (CB)]

My Lords, it is helpful to see what happens in Scotland. The Scottish Courts and Tribunals Service provides specialist assistance in cases of particularly violent and distressing crimes. It is available in the court. It is available to jurors, who may not realise, even given the warnings that have been referred to, that the scenes they are going to have to view repeatedly as a juror as the evidence goes on are particularly distressing. Will the Minister have a look at what happens in Scotland and perhaps follow its example?

[Lord Bellamy (Con)]

My Lords, I will gladly look at what happens in Scotland—I believe there is a service provided through NHS Lothian. I am not sure I can undertake to follow a Scottish example; Northern Ireland has a counselling association associated with its employee assistance programme. We are exploring a number of options.

[Lord Wolfson of Tredegar (Con)]

My Lords, is not the criminal justice system unusual among public services because it depends on volunteers, or at least non-professionals, for the vast majority of the work? Jurors are present in our most serious cases and magistrates hear the overwhelming number of criminal cases. Will my noble and learned friend the Minister therefore ensure that His Majesty’s Government look at both these groups of non-professionals and ensure that they are given the financial and non-financial support they need?

[Lord Bellamy (Con)]

My Lords, lay participation in justice, whether through the jury, the magistracy or, I would add, membership of tribunals, is at the heart of the common-law system and the Government will fully support that participation.

[Lord Ponsonby of Shulbrede (Lab)]

My Lords, judicial officeholders, their partners and their children are offered helpline support 24/7 for 365 days a year through the Ministry of Justice. There is no equivalent for jurors. Arguably, judicial officeholders are better placed to withstand the pressures of their role because they have the support of their peer group. When jurors leave the court, they are on their own. Does the Minister think that this should change and the Government should offer the same support to jurors as is offered to judicial officeholders?

--- Later in debate ---

[Lord Bellamy (Con)]

My Lords, the Government can accept that there is a case for offering further support for jurors who have been through very distressing cases. I should perhaps observe that jurors have been trying distressing cases now for hundreds of years so we are not in a new situation. A 24-hour helpline may be one of the options that we should explore.

[Baroness Butler-Sloss (CB)]

I ask the Minister that those who look at whether or not jurors should be helped are shown some of the sorts of photographs that jurors may have to see, because they would be pretty shocked.

[Lord Bellamy (Con)]

My Lords, I entirely accept that comment.

[Lord Mackenzie of Framwellgate (Non-Afl)]

My Lords, does the Minister share my concern and surprise that no one has mentioned the welfare of police officers who have to sit through hours of usually pornographic material involving children, which can have a tremendous effect on their stress levels?

[Lord Bellamy (Con)]

I entirely share the sentiment expressed by the noble Lord.

[Lord Foulkes of Cumnock (Lab Co-op)]

My Lords, the noble Lord, Lord Pannick, makes me think: if Boris Johnson is brought to trial, would it be possible to volunteer for the jury?

[Noble Lords]

Oh!

[Lord Bellamy (Con)]

My Lords, how on earth is one supposed to answer that question? Fortunately, as far as I know, that does not arise—or it certainly does not arise yet.

[Lord Kamall (Con)]

My Lords, following the question from the noble Lord opposite, would counselling also be offered?

[Lord Bellamy (Con)]

Would it be offered to jurors who served on a jury in relation to the late Prime Minister? I do not think I can answer that question.

[Lord West of Spithead (Lab)]

My Lords, many horrible things happen in life and have done so for decades and decades. Does the Minister believe that we need to think that people need to be a little more robust? I certainly found in the Navy when things had happened that if you asked people whether they had been affected, they would tell you they had been affected, but if you did not ask them, they just got on with their job.

[Lord Bellamy (Con)]

My Lords, it is unusual to have so many opportunities to agree with noble Lords opposite. I entirely agree with the noble Lord, Lord West. Although we have had a moment of levity in this Question, I respectfully remind your Lordships of what the late Lord Devlin famously said:

“Trial by jury is … the lamp that shows that freedom lives”.


The Government entirely agree with that and will support juries as much as is needed.

Prisons: Education

Lord Bellamy Excerpts

Thursday 23rd March 2023 Lords Chamber

[Baroness Blower]

To ask His Majesty’s Government what assessment they have made of the potential merits of bringing the delivery of prison education into the public sector.

[The Parliamentary Under-Secretary of State, Ministry of Justice (Lord Bellamy) (Con)]

My Lords, core education in prisons is delivered by four providers: three classified as public sector providers and one as a private sector provider. Wider, non-core prison education is delivered by a range of suppliers, including the third sector. We are engaging with the market to encourage new providers to work with us to deliver high-quality prison education. We do not currently envisage fundamental change to the present system of outsourcing core delivery to specialist education providers.

[Baroness Blower (Lab)]

Does the Minister agree with me, Charlie Taylor and the Education Select Committee that education is fundamental to rehabilitation, so the fact that current providers do not have teaching prisoners to read as their responsibility is staggering? Can the Minister agree to look, at least, at the launch of the prisoner education service as an opportunity to bring all prison education back into the public sector, with standardised curriculum and qualifications, which are so important when prisoners are moved, and standardised education staff contracts to assist with recruitment and retention?

[Lord Bellamy (Con)]

I thank the noble Baroness for her question. The Government entirely agree that prison education is vital for rehabilitation. In the Government’s view, it does not follow that education, particularly in relation to reading, should be brought back into what the noble Baroness describes as the public sector. Specifically on reading, I can report the Chief of Inspector of Prisons’ remarks of yesterday. Following his report last year, he considers that we are seeing some improvement in reading and that there are encouraging signs of good developing practice in relation to reading education in prisons.

[Baroness Meacher (CB)]

My Lords, as a member of the Justice and Home Affairs Committee, I know that the Minister has recognised the huge importance of prison education. Have His Majesty’s Government assessed the potential benefits of doubling the prison education budget, and, in particular, have they assessed the impact of such a policy shift on reoffending rates?

--- Later in debate ---

[Lord Bellamy (Con)]

My Lords, the Government currently spend about £125 million a year on the core programme and a further £30 million on special development strategies. In relation to the future, we are developing new contracts from 2025, and I am sure the question of the budget will arise in that context.

[Lord Cormack (Con)]

My Lords, the noble Baroness, Lady Blower, made the point about rehabilitation being so vital. Can my noble and learned friend publish statistics to show the variable reoffending rates between those who do not get qualifications and various other things from education in prison, and those who do? I think this could be very interesting and salutary information.

[Lord Bellamy (Con)]

My Lords, the Government are committed to improving the statistics in this area, and I will investigate whether we can publish that further information.

[Baroness Burt of Solihull (LD)]

My Lords, the best education in the world, public or private, is useless if there are not the staff there to enable prisoners to get out of their cells to receive it. But if they could, the education service has been carved up by just four main providers, and governors have little or no say in who delivers education in their prisons. The House of Commons Education Committee report has already been mentioned. What are the Government going to do about this issue?

[Lord Bellamy (Con)]

Staffing levels are a continuing problem, but full-time equivalent prison officers have increased by 3,677 between 2016 and December 2022; it now stands at 21,632. In the Government’s view, there is no problem with the quality of our existing providers. The challenges of prison education are evident to all, and the Government are doing their best to tackle them.

[Lord Harris of Haringey (Lab)]

My Lords, when I conducted the review into self-inflicted deaths in prison some years ago, a very substantial issue arose about the cancellation of education sessions simply because there were insufficient staff to transport prisoners to education venues within prisons or, alternatively, because prisons were locked down. What proportion of education sessions do not go ahead for the reasons I have described? If those statistics are not collected, could the Minister explain why this rather important performance indicator is not looked at?

[Lord Bellamy (Con)]

My Lords, I cannot give the noble Lord the information he rightly seeks, but I will see if I can. Attendance at classes is an ongoing issue. It is sometimes due to staff shortages. We have introduced new KPIs for prison governors which include attendance, among other things, so I hope to see improvement in this area.

[Lord Bellingham (Con)]

My Lords, would the Minister agree that a vital part of prison education is to help former offenders into gainful employment at the end of their sentence? A number of businesses such as Timpson, under the inimitable Sir John Timpson, have done pioneering work in this field to help prevent recidivism. What more can the Minister do with his department to encourage other firms to follow Timpson’s example?

[Lord Bellamy (Con)]

My Lords, I entirely agree with my noble friend in paying tribute to Timpson. There are many other employers with which we are in close touch. The Prison Service has recently introduced prison employment advisory boards in all prisons and an employment innovation fund, and heads of education, skills and work will be established across the prison estate. This is all to improve post-prison employment, which is, I am glad to say, on the increase.

[Lord Addington (LD)]

My Lords, would the Minister agree that prisoners have probably the highest density of special educational needs of any group in society? All these groups need different learning patterns compared to the norm to be successful. Is the prison education service equipped to, first, identify and, secondly, provide the extra different types of learning to this client base? If not, it is not going to succeed.

[Lord Bellamy (Con)]

I agree with the noble Lord that the Prison Service needs to be equipped, and I respectfully suggest that it is. There are a whole range of things here. There is the core curriculum, which is made up of English, maths and digital skills; vocational courses, such as construction; personal development courses; and digital personal learning plans. I assure the House that the Government are on the case and working hard to improve matters.

[Baroness Wilcox of Newport (Lab)]

My Lords, the Open University offers a range of introductory access modules funded by the Prisoners’ Education Trust, under the banner of “Steps to Success”. They have been specifically designed to help students find out what it is like to study with the OU, get a taste of a subject area, develop study skills and build confidence. As a former teacher, I can tell your Lordships that those things are vital. Does the prison estate have the facilities to offer such excellent distance learning, and who would meet the cost of these courses that are on offer?

[Lord Bellamy (Con)]

My Lords, there is a problem within the prison estate in relation to distance learning from external providers, because most prisons do not have external access to the internet. There is an intranet, and it may well be that in due course organisations like the Open University are encouraged to access that facility. But I take the noble Baroness’s question and will investigate further.

[Baroness Boycott (CB)]

My Lords, I am sure the noble and learned Lord knows about the Clink Charity, which sets up restaurants in prisons where prisoners are taught by chefs and then serve meals to the general public. If any noble Lords do not know about this, I urge them to go to the one in Brixton. These now have a 49.6% rate of lowering reoffending, because prisoners come out with a job and a skill and somewhere to sleep, which is arranged. This all depends on the good will of the governors. Can the Minister assure the House that he will encourage such projects? I think there are seven now, but there could be many more.

[Lord Bellamy (Con)]

My Lords, the answer is yes. Prison governors are now specifically required to have regard to developing employment opportunities for those in prison, attendance rates at courses and other matters. I pay tribute to Clink, which is a very well-known and respected organisation. Similar programmes are being offered by other employers, and this is all, I respectfully suggest, good progress.

[Baroness Fox of Buckley (Non-Afl)]

My Lords—

--- Later in debate ---

[Baroness Fox of Buckley (Non-Afl)]

My Lords, in my experience with broader education projects such as Debating Matters Beyond Bars, I have found that private sector prisons can be more flexible and less bureaucratic than some state-run prisons. Does the Minister agree that we should focus less on who provides prison education and that education should be given far more priority? Does he also agree that prison education should not be limited to literacy, as it often is, but should be far more imaginative?

[Lord Bellamy (Con)]

My Lords, the Government regard prison education with high priority and are working to improve its imaginative and innovative aspects all the time.

Judicial Pensions (Fee-Paid Judges) (Amendment) Regulations 2023

Lord Bellamy Excerpts

Tuesday 21st March 2023 Lords Chamber

Moved by

[Lord Bellamy]

That the draft Regulations and Order laid before the House on 23 January and 8 February be approved.

Relevant document: 30th Report from the Secondary Legislation Scrutiny Committee. Considered in Grand Committee on 20 March.

Motion agreed.

Criminal Justice Act 2003 (Home Detention Curfew) Order 2023

Lord Bellamy Excerpts

Monday 20th March 2023 Grand Committee

Moved by

[Lord Bellamy]

That the Grand Committee do consider the Criminal Justice Act 2003 (Home Detention Curfew) Order 2023.

Relevant document: 30th Report from the Secondary Legislation Scrutiny Committee

[The Parliamentary Under-Secretary of State, Ministry of Justice (Lord Bellamy) (Con)]

My Lords, I beg to move. As your Lordships will know, the home detention curfew—or HDC—scheme allows certain prisoners to be released from prison early and kept on an electronically-tagged curfew in their home. The scheme was first established some 20 years ago. The statutory instrument before us extends the permitted maximum HDC by 45 days—around six weeks—from 135 days to 180 days. I will say a little more about the effect of that in a moment.

In parallel with the statutory change, which extends the HDC period, the Government are at the same time introducing non-statutory policy changes to exclude certain kinds of offenders from the scope of HDC. As your Lordships know, in statutory terms, certain offenders are totally excluded from HDC—for example, when they are sentenced to more than four years or are registered sex offenders, terrorists, or others. Other kinds of offenders are presumed unsuitable under the relevant HMPPS policy framework, including, for example, foreign national offenders liable to deportation, those convicted of possession of an offensive weapon, possession of firearms, and so on.

Following the discussions that took place in connection with the passing of the Police, Crime, Sentencing and Courts Act 2022, to which the noble Baronesses, Lady Brinton and Lady Newlove, and the noble Lord, Lord Ponsonby, made important contributions, further offences are now being added to the “presumed unsuitable list” to coincide with the coming into force of the statutory instrument on 6 June. These are offences relating, for example, to stalking; harassment; the breach of a non-molestation or similar order; controlling or coercive behaviour in an intimate or family relationship contrary to the Domestic Abuse Act 2021; and non-fatal strangulation and suffocation. In other words, offenders guilty of those offences will be presumed not suitable for HDC, unless the prison governor concerned is persuaded of exceptional circumstances.

In addition, since April 2022, it has been mandatory for information to be gathered from police and children’s services about domestic abuse or safeguarding risks. It is only after that information has been gathered and a full risk assessment made that an offender may be released on HDC. While the HDC period is being extended, these parallel measures protect the public—in particular, from potential abusers.

The net effect of these measures, in parallel, is that fewer offenders are likely to be eligible for HDC, whereas those who are eligible may be on HDC for up to six weeks longer. In practice, the net increase of prisoners out on HDC is expected to be about 300 up from the current figure, which is about 1,850. I should add that, in practice, because of the requirement to serve a minimum of a quarter of any prison sentence, this statutory change affects those serving between 18 months and four years, with those serving between two and four years eligible for the maximum period of 180 days.

In addition to these developments, technology in this area continues to improve. GPS now allows the monitoring of offenders away from home, which also enables certain types of offender, such as those known as acquisitive offenders, to be targeted. If one is wandering away to do some shoplifting, the GPS can follow one, as it were. It also now permits alcohol monitoring, so alcohol monitoring tags have been rolled out across England and Wales. This technology development is supporting the policy.

HDC has been used successfully for 20 years to better manage the transition of eligible offenders from prison back into the community, and the changes I have outlined continue along that path. The other place has just approved the statutory instrument this afternoon, and I commend the instrument to the Committee.

[Lord Ponsonby of Shulbrede (Lab)]

I thank the Minister for that introduction, and we support the SI. As the Minister said, the current maximum period that an eligible offender may spend in the community on home detention curfew is 135 days, and this is being increased to 180 days through the order. He gave an example and talked about the improvement in the technology for those who are on HDC. Are all prisoners on home detention curfew on some form of electronic monitoring, or are some deemed to have no monitoring necessary?

The Minister also spoke about the greater use of GPS monitoring, rather than just home curfew monitoring, and alcohol monitoring. Would he care to speculate on what other forms of technological improvement we might see in the next few years? I have been involved, on and off, in giving tags to people on bail, and so on, and I have seen the technology used and abused over the years. It is interesting how the technology has developed and how the courts and prison system is learning to work with it appropriately. I should appreciate it if the Minister would speculate a little on how that might change in future.

The MoJ states that the purpose of running the home detention curfew is to ensure that offenders have a smooth transition back into the community from custody. We agree with that, and we support the scheme as a whole. However, we say that there is limited evidence to support the claim about reoffending statistics. The draft Explanatory Memorandum points to research published in 2011 that shows that offenders released on home detention curfew

“were no more likely to engage in criminal behaviour”.

That is a rather lukewarm endorsement of the policy—even though we do support it. The Ministry has said that it will publish internal evaluations on the expansion of the scheme in 2024. Given the lack of clear supportive evidence for the effectiveness of the scheme, despite the length of time it has been running, will the Government ensure that robust evaluations are made as soon as possible?

--- Later in debate ---

As the Minister said in his conclusion, the net effect of the scheme means that there will be fewer prisoners eligible for home detention curfew, but those who are eligible will be out for longer—and we support that broad principle. I look forward to the Minister’s answers to the questions I have raised.

[Lord Bellamy (Con)]

My Lords, I thank the noble Lord, Lord Ponsonby, for his remarks and questions, and I shall deal with them as far as I can.

I understand that all prisoners on HDC are on some form of electronic monitoring, and some have a kind of location monitoring in addition to help them, so that one knows more precisely where they are exactly and what they are up to, if I may put it like that.

I am reluctant to speculate today on exactly how far this scheme will develop, and I am sure that the Government will be very interested in drawing on the experience of the noble Lord himself and others on how it works out. He referred to the “use and abuse” of the systems. Of course, every time one invents new technology, someone tries to find some way around it or some way of defeating it, so we will need to work that through. However, the general direction of travel is that the technology is improving all the time and we will learn by experience how to use it in an appropriate way to achieve the mutual objectives of helping prisoners back into the community.

On the “no more likely” point of the general efficacy of home detention curfews, the Government’s position is that they work and that they help people to make the transition from prison to the community. It is certainly the Government’s position that the improvements in technology that I have mentioned—the location and alcohol monitoring—will reinforce it, so that is how it will evolve. We have committed to make an internal evaluation in 2024, and we probably have to wait a little bit of time until we see how it goes, so that we can properly evaluate the new extension we are talking about. We will certainly make that evaluation, which will be further information on which policy decisions can be taken.

On the noble Lord’s question about suitability criteria, if I did not mention stalking, I should have done so—it is at the top of the list. The scheme offers a very important protection for the public and for people particularly concerned with stalking and the stalking risk, as it were.

I have endeavoured to answer the questions of the noble Lord as best I can, and I therefore commend the instrument to the Grand Committee.

Motion agreed.

Judicial Pensions (Fee-Paid Judges) (Amendment) Regulations 2023

Lord Bellamy Excerpts

Monday 20th March 2023 Grand Committee

Moved by

[Lord Bellamy]

That the Grand Committee do consider the Judicial Pensions (Fee-Paid Judges) (Amendment) Regulations 2023.

[The Parliamentary Under-Secretary of State, Ministry of Justice (Lord Bellamy) (Con)]

My Lords, the statutory instrument before us today amends the Judicial Pensions (Fee-Paid Judges) Regulations 2017, which established the fee-paid judicial pension scheme 2017. The statutory instrument was approved in the other place on 21 February.

At present, the fee-paid judicial pension scheme provides only for eligible fee-paid judicial service on or after 7 April 2000. The main purpose of the statutory instrument is to provide pension benefits for certain eligible fee-paid service before 7 April 2000. The situation arises as a result of three cases.

The first was O’Brien 1 in 2013, when it was decided that fee-paid judges were workers and therefore eligible for pension benefits that mirrored those of salaried judges under the then judicial pension scheme. That was from 7 April 2000, the date when the relevant EU regulation was transposed into UK law. It led to the 2017 regulations.

In 2018, in O’Brien 2, the European Court of Justice found that eligible fee-paid judicial service prior to 7 April 2000 should also be taken into account for the purposes of calculating pension benefits. If one was already a judge on 7 April 2000, service before that date should count towards the pension.

In 2019, in the Miller case, the UK Supreme Court found that the time limit for fee-paid pension entitlement claims runs from the date on which the judge retired from judicial service rather than the date on which they left the fee-paid office concerned. You had until your ultimate retirement date to make the relevant claim.

Although we now have a new judicial pension scheme, these regulations ensure that the judgments I have just referred to are fully implemented and that the judges concerned get pension benefits in respect of their historical fee-paid judicial service.

The detail of the regulations is, if I may say so, impenetrably complex, as a result of different pension arrangements over the years. There was a different arrangement in force between 1981 and 1995, and then again between 1995 and a later date. These regulations deal with the pre-1995 provisions as well as the post-1995 situation. They make certain changes or additions to eligible offices and provide for a way of dealing with small amounts; one can commute to have a lump-sum payment, if there is just a small pension entitlement; they provide for the purchase of additional benefits; they apply to various techniques for reconciling various amounts outstanding; and they correct certain minor errors. These are very detailed matters indeed, but the essential purpose is to make sure that the pensions to which those judges are entitled are enshrined in the statutory instrument.

There was a consultation in 2020, and the responses received were broadly supportive. Officials have been in close touch with the devolved Administrations in Scotland, Northern Ireland and Wales, which have been kept apprised of developments, and, as I said, there has been close consultation with the judges affected.

In closing, I will make two points. Questions have been raised as to whether these regulations are affected by the retained EU law Bill currently before Parliament. On the assumption that the Bill becomes law, the regulations provide for already acquired pension rights, and I can confirm that they will not be sunsetted or otherwise adversely affected as a result of that Bill. Assuming that in due course it becomes an Act of Parliament, the relevant rights will be preserved.

Lastly, I point out, in case anyone has ever glanced at my CV, that I have no personal claim under any of these regulations.

[Lord Ponsonby of Shulbrede (Lab)]

My Lords, the cavalry has just arrived in the form of my noble friend Lord Davies of Brixton, who is a pensions expert. Unfortunately, he will not say anything on the SI, which I will take as a level of endorsement of it. He is nodding his head—jolly good.

As the Minister said, the SI amends the judicial pensions regulations 2017, which established the fee-paid judicial pension scheme and provide pension benefits for eligible fee-paid judicial service from 7 April 2000 to 31 March 2022. It mirrors the pension benefits for salaried judges under the Judicial Pensions and Retirement Act 1993.

As the Minister set out, the SI amends the 2017 regulations, as required by O’Brien 2 litigation. In several ways, it is very complex. The Labour Party supports the SI. In essence, its purpose is to ensure that the work of fee-paid and salaried judges is undertaken and remunerated in the same way, and that that is recognised in their pensions.

I thank the Minister in particular for being very clear about the retained EU law Bill. I was indeed going to ask about that, and he could not have been clearer in saying that the Government will not put any sunset clauses in and will expect to retain all the provisions under this SI after the retained EU law Bill is passed.

I will go no further than that, because the Minister has answered the questions I was going to ask. As I said, the Labour Party is happy to support this statutory instrument.

[Lord Bellamy (Con)]

My Lords, in those circumstances, I commend the instrument to the Committee.

Motion agreed.

Divorce: Financial Provision

Lord Bellamy Excerpts

Wednesday 8th March 2023 Lords Chamber

[Baroness Deech]

To ask His Majesty’s Government what progress they have made with their three-year review of the law governing financial provision on divorce since the commitment made by the then Advocate General for Scotland Lord Keen of Elie in his letter dated 16 March 2020 (DEP2020-0150) to gather evidence, consult and develop recommendations on this matter.

[The Parliamentary Under-Secretary of State, Ministry of Justice (Lord Bellamy) (Con)]

My Lords, the letter to which the noble Baroness refers was sent during the passage of the Divorce, Dissolution and Separation Act 2020. Since then, we have prioritised the implementation of that Act and the digital systems that go with it, the court recovery programme during and after the pandemic, the Domestic Abuse Act 2021, the Marriage and Civil Partnership (Minimum Age) Act 2022 and further work on the family courts. I hope to announce a review of financial provision very shortly.

[Baroness Deech (CB)]

My Lords, I fear that the noble Baroness, Lady Shackleton, and I were misled when, three years ago, we were guaranteed a review of the financial elements of divorce. Relying on that, we refrained from pressing amendments. The law that relates to splitting money on divorce is so antagonistic and unreformed that it undermines the alleged good points of the no-fault divorce law. We are lagging 50 years behind nearly every other country in the western world, including Australia. The amount of discretion in our law makes it very hard for unrepresented parties. Money that should go to the children is being spent on legal costs. Even judges have called this law “apocalyptic” —accessible only to the rich. When will the Government reform this very bad law?

[Lord Bellamy (Con)]

My Lords, I pay warm tribute to the noble Baroness, Lady Deech, my noble friend Lady Shackleton and many others for their work in this area. Respectfully, I do not accept the characterisation that the Government have misled everybody; we have had our hands somewhat full in recent times. The Matrimonial Causes Act 1973 reaches its 50th anniversary this year and a review of financial provision is indeed opportune. The Government are in close consultation with the Law Commission, which we consider the most appropriate body to carry out that review.

[Baroness Shackleton of Belgravia (Con)]

My Lords, I declare my interest as a practitioner in this field for 40 years. The law is hopelessly out of date: it relies entirely on finance and the discretion of judges. The judges have a fiefdom now in that, since 3 October 2017 you cannot go to the Court of Appeal if leave is refused, so their discretion is absolute. It is normally commercial judges who change the law, and arbitrators, mediators and judges need guidance. There is no use in having a divorce if the money is not sorted out; the house has to be sold and the children are caught in the conflict. Divorce practitioners like me make a fortune in arguing, because the guidelines are 50 years out of date. I know that this is not a vote winner and does not appeal to the masses, but many people in this country are touched by this and I would like an assurance that it will be included in the King’s Speech as vital business on the agenda, because responsible Governments do service to this.

[Lord Bellamy (Con)]

My Lords, these matters will be considered fully in a forthcoming review, hopefully by the Law Commission. That commission is completing important work on surrogacy at this moment. Subject to final agreement, I hope to make a further announcement very soon indeed.

[Lord Watts (Lab)]

My Lords, there are models around the world that the Government could adopt. Why do they not look to those models and introduce them now?

[Lord Bellamy (Con)]

The Government think that the Law Commission is best placed to investigate all these matters, establish what the existing law and practice is and where the problems lie, and make comparative studies of various other jurisdictions, including Australia and elsewhere, as has already been mentioned.

[Lord Hunt of Wirral (Con)]

My Lords, I declare my interest as a practising solicitor. I share the views of many around this House in applauding the work of the Law Commission, which is engaged in a number of important areas. Will my noble and learned friend the Minister undertake to ensure that the Law Commission is properly resourced, so that it can deal with this aspect, which needs urgent reform, as quickly as possible?

[Lord Bellamy (Con)]

My Lords, the Government will do their very best to make that the Law Commission has the resources it requires.

[Baroness McIntosh of Hudnall (Lab)]

My Lords, given that there is clearly some scepticism about whether the Law Commission is the right body to conduct this review, could the noble and learned Lord give the House some idea of how long he expects it to take to undertake it, and at what point he thinks it will be commissioned so to do?

[Lord Bellamy (Con)]

My Lords, I hope to make a further announcement immediately before or shortly after the Easter Recess. Matters are being finalised at the moment. Typically, Law Commission work takes place in two phases. There is an initial phase of the kind I have just outlined, where the problem is identified and comparative studies are made. That is typically followed by a consultation phase in which all stakeholders’ views are fully taken into account, which results in final recommendations and possibly draft legislation. That process will probably take at least two years.

[Baroness Berridge (Con)]

My Lords, not only is this law antiquated—it is 50 years old—but there is an out-of-date view, which I found even among those in their twenties and thirties, that if you are cohabiting you are in some sort of arrangement called common-law marriage, which does not exist, and that the court would have powers under the Matrimonial Causes Act. So without going to the Law Commission, can my noble and learned friend the Minister please raise awareness that actually, that is not the legal position and there is an even more complex situation if you are not in a legal relationship such as a marriage or civil partnership?

[Lord Bellamy (Con)]

My Lords, cohabitation is not envisaged as being within the review we have been talking about today. It does raise important issues and the Government keep them under review.

[Lord Ponsonby of Shulbrede (Lab)]

My Lords, the noble and learned Lord will be aware that the time taken to reach a financial settlement following a divorce is often far greater than that taken for the divorce itself. The noble and learned Lord will also be aware that children often suffer badly from family breakdown and its consequences, particularly when there is an acrimonious and protracted divorce. Legal aid is currently permitted only in limited circumstances, such as when there is evidence of domestic abuse. Will the Government reconsider the issue of legal aid for matrimonial matters, particularly where one party has insufficient resources to get the necessary advice?

[Lord Bellamy (Con)]

The Government have commissioned a review of civil legal aid, which includes legal aid in the family courts. The point the noble Lord raises will be included in that review.

[Baroness Janke (LD)]

My Lords, it is well known that women suffer tremendously in divorce settlements regarding pensions and that tactics are employed to make them really lose out on the pension they would potentially be entitled to from their marriage. Will the noble and learned Lord assure us that he will examine this aspect of divorce when he looks into updating the law?

[Lord Bellamy (Con)]

My Lords, I am sure the Law Commission will look very carefully into the points the noble Baroness raises.