Judicial Review and Courts Bill
Lord Falconer of Thoroton ExcerptsThursday 24th February 2022
(2 years, 1 month ago)
Lords ChamberRead Full debate Judicial Review and Courts Act 2022 View all Judicial Review and Courts Act 2022 Debates Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: HL Bill 102-II Second marshalled list for Committee - (22 Feb 2022)
Baroness Chakrabarti (Lab)
My Lords, before I speak to Amendment 37, I should like to congratulate my noble friend Lord Ponsonby on everything that his public service outside this Committee and your Lordships’ House brings to our deliberations about criminal justice. The Committee needs no reminders from me of all that the eminent silks, retired Law Lords and former members of the senior judiciary bring to your Lordships’ House. The magistracy is a very important part of the criminal justice system. My noble friend brings an experience, a humility and an anxious scrutiny of the system to our deliberations which is incredibly helpful and always illuminating.
Amendment 37 is purely a probing amendment, and I hope the Minister received that message via his office. I have unashamedly taken this opportunity to put issues concerning women and girls in the criminal justice system on the map. As the Committee and the Minister will know, this is ultimately a shared responsibility with his noble friend Lady Williams of Trafford and her department. These two great departments of state—the Home Department and the Ministry of Justice—are responsible for the whole system, including matters well beyond the scope of this Bill, such as the police and the CPS. They also have responsibilities that are dealt with in this Bill, such as for the court system.
Just last year, both Secretaries of State felt the unprecedented need to issue a public apology to women and girls for their experience of the handling of sex offences in our criminal justice system. To some extent, that has led to the resignation of the Commissioner of Police for the Metropolis. Perhaps more importantly still, it has led not just to terrible attrition rates for sex offences in particular, but to a real crisis of trust and confidence in the system on the part of women and girls that none of us on either side of your Lordships’ House wants to see.
I do not want to say that there should be an inquiry on the narrow grounds that happen to fit into the scope of this Bill. Rather, I want to give the Minister the opportunity to update the Committee and therefore the country on where the Government are and where they propose to be, and how quickly they can rebuild trust and confidence in relation to sex offences in particular and criminal justice in general for slightly more than half of the population.
Lord Falconer of Thoroton (Lab)
My Lords, I will make two separate points. First, Amendment 54, tabled by my noble friend Lord Ponsonby, relates to Clause 43, which abolishes local justice areas. It says that the Lord Chancellor must,
“by regulations, make consequential or supplementary provision in relation to the abolition of local justice areas.”
I assume that the thinking behind this is that it would be convenient if all justices were appointed, say, for England and Wales and not to a local justice area, and training, deployment and other issues should be dealt with on a national basis.
I do not know what is planned, but I do know from my experience as Lord Chancellor that being a Justice of the Peace in a particular area is of very considerable importance. I also know that people are appointed as magistrates because they are committed to their local community, and that people being trained and deployed together over a period of time in a particular area is also incredibly important to local justice.
This looks to be a very wide-ranging provision which may well have been thought out in full, but I should be grateful if the Minister explained the thinking, and what is being done about recruitment, deployment and training.
Lord Wolfson of Tredegar (Con)
Of course I accept that point as a matter of principle. That is why consultation is really at the heart of this. There has to be a balance. For example, there could be a case where you have a number of very disabled witnesses and a particular courthouse is more accessible for them than another one. There could be cases, as in the pandemic, for example, where some courthouses have been more easily adapted than others. But, as I hope I have made clear, we will make sure that there will be full consultation on this. But we want to build in the legislative flexibility to allow that to take place in cases where it is needed. If I may say—
Lord Falconer of Thoroton (Lab)
The legislative form that this is taking, in Clause 43(1), is:
“Local justice areas are abolished.”
The Minister referred to things on the edges, such as greater flexibility between areas and particular courthouses being suitable, all of which sound quite sensible. But it is very hard to think that that requires the wholesale abolition of local justice areas. Echoing what the noble Lord, Lord Marks of Henley-on-Thames, said, could the Minister tell us what consultation has taken place already and led to the conclusion that the solution to, and the right way to deal with, what appear to be problems around the edges is to abolish local justice areas altogether?
Lord Wolfson of Tredegar (Con)
First, the legislative architecture, so to speak, is not just Clause 43: I have already mentioned other statutory provisions that require consultation. There has been consultation on this, although I do not have all the details of it to hand. If I may, I will drop the noble and learned Lord a note setting that out.
I was just about to thank my noble and learned friend Lord Mackay, and I apologise for standing up when he was about to speak. I respectfully say that he summed up perfectly the balance that is required between the need for a local link and for flexibility when it is useful.
Finally, as the noble Baroness, Lady Chakrabarti, explained—I received the message—Amendment 37 essentially a probing amendment for me to explain what is going on. It would formally require an inquiry into the adequacy of the criminal courts in relation to women and girls. We are doing significant work in this area, both to improve the experience of women and girls in the criminal justice system—or, in some instances, the justice system more broadly—and to better scrutinise the agencies involved. As she said, a number of agencies are involved, and this is a cross-government issue.
We are already taking specific actions. I shall set out some of them now, although it is a non-exhaustive list. We know that pre-recorded cross-examination can help to improve the experience of victims, so we are rolling out the use of this measure, known as Section 28, for sexual violence and modern slavery complainants to all Crown Courts nationally. We have introduced a single source of 24/7 support for victims of rape and sexual violence. We are working with the police and the CPS to reform approaches to disclosure, and I am sure that the noble Baroness has heard the DPP talk about that in particular. In July last year we launched a violence against women and girls strategy that contained a number of commitments to keep women and girls safe. I will not read those into the record, but I know the noble Baroness is familiar with them.
On a cross-government basis, we have cross-system governance structures to hold criminal justice system partners to account. We published the first criminal justice system scorecard for adult rape in December last year. Publishing and monitoring that data will enable us to improve how adult rape cases are handled at each stage of the criminal justice system, focusing on key metrics such as—I apologise for using this phrase because I hate it, but it is the phrase that is used—“victim attrition”. It sounds terrible but we know what it means.
Finally, there are reviews and inquiries, similar to the one proposed in this amendment, already in place. On 5 October last year the Home Secretary announced the Angiolini inquiry to investigate the issues raised by the conviction of Wayne Couzens for the murder of Sarah Everard. Among other issues, the inquiry is looking at what police forces are doing to identify and deal with misogynistic and predatory behaviour.
In October last year, the Metropolitan Police announced that it had commissioned the noble Baroness, Lady Casey, to lead an independent review of its culture and standards following Sarah Everard’s murder. The review will assess the extent to which the force’s leadership, recruitment, vetting, training, communications and other practices effectively reinforce the standards that the public should expect. Finally, the Victims’ Bill consultation, which recently closed, explored how to amplify victims’ voices, improve the accountability of criminal justice agencies and generally improve support for victims, and we will of course be responding to that in due course.
I am very grateful to the noble Baroness for raising the issue. I hope she will forgive me for not mentioning everything in response, given that her amendment is a probing one, but obviously I can assure her that this is right at the top of our priorities across government. Formally, though, I respectfully ask noble Lords not to press their amendments.
Baroness Whitaker (Lab)
My Lords, I support all the amendments in this group. My support comes from my experience as a magistrate, and I appreciate the endorsements of the role of the magistrate from all around the Committee. As those who frequent magistrates’ courts will know, they are places where invariably vulnerable and some other defendants are simply not able to understand or cope with the requirements of the legal system, as my noble friend Lord Ponsonby described, so effectively they do not have a fair trial. With regard to increasing the powers of magistrates in Clause 13, magistrates too are not experts, and that is partly the point of them. In my view, the safeguards in Amendments 35 and 36 would be very useful against inadvertent injustice.
Lord Falconer of Thoroton (Lab)
My Lords, I have very considerable concerns, which have also been expressed by the Delegated Powers Committee, about the Secretary of State being able in effect to double the length of time that a prison sentence can last in relation to both summary offences and either-way offences. How long a person goes to prison for as a result of a magistrates’ court sentence is a considerably important factor in determining which cases are tried by a jury and which are tried by the magistrates’ court. If there is to be a change in the powers of the magistrates’ court of this dimension, it should always be done by primary legislation and not by regulatory powers. I oppose the proposal that the Secretary of State could in effect double the sentencing power of the magistrates’ court and think that should be left to primary legislation. For that reason, I support the amendment tabled by the noble Baroness, Lady Chakrabarti.
Lord Deben (Con)
My Lords, as a non-lawyer, I have listened to much of this debate before and today and I think this Government are going too far in taking into ministerial powers decisions which should come before Parliament. This is another example of that. I do not want the Secretary of State to be able to do this without Parliament discussing seriously what it means. Parliament ought to be much tougher about its powers being taken into the Executive.
I was first elected to the other place in 1970. Since then, Parliament has become increasingly less powerful and increasingly the Executive have increased their power. I do not believe that the Secretary of State should have this power. I believe it should be Parliament. What is more, I believe that the public think it should be Parliament. Only with the consent of the public does the legal system work.
I usually come here to ensure that lawyers do not do things a bit on their own in legal matters, and I think I am the only non-lawyer here, but I wish to say—I apologise to the noble Lord, Lord Ponsonby, a fellow recalcitrant individual. It seems to me that we have to be much tougher about things that look small because, in aggregate, they become very dangerous, because the public will lose their belief in the fact that the legal system is independent except that it is dependent on the good sense of the elected Parliament and the House of Lords in ensuring that the Executive do not overstep the mark. I do not want this Government to overstep the mark in this or any of the other things they seem to wish to take unto themselves.
Lord Pannick (CB)
The Minister draws my attention to subsection (6), which allows a person to choose to do so by non-electronic means, but that is not easy to reconcile with the provision I have just referred to in Clause 19(1)(b). If the Minister can assure me that the person who is the litigant—either the claimant or the defendant—can always choose in all cases to have an oral hearing in the court, then I would be very pleased indeed to hear that.
When we debated provisions in very similar form in 2019 in Committee and, I think, on Report, the noble and learned Lord, Lord Keen, assured the House that the Government’s intention was to introduce online procedures only for civil money claims up to the value of £25,000. I ask the Minister whether that remains the intention of the Ministry of Justice. Does it have any plans to introduce these online procedures, including those covered by his Amendment 38, for any other civil proceedings?
Lord Falconer of Thoroton (Lab)
In relation to that point, it is absolutely plain that the wording of Section 19 applies to any sort of civil proceedings, including family proceedings. So it is plainly envisaged that this goes beyond simply money claims. Can the Minister describe the sorts of family proceedings that will be dealt with by the Online Procedure Rules and online processes? In particular, is it envisaged that this is to be restricted to the actual process, for example of getting a divorce or judicial separation, as opposed to proceedings that relate to the division of assets upon judicial separation or divorce, proceedings in relation to wilful neglect to maintain and any proceedings—in both private and public law—relating to children?
Secondly, and separately, I want to make a much more minor point. I understand that one of the things the Master of the Rolls has in mind in relation to Amendment 38 is that dispute resolution services must be used before, or as part of, the online process. The services envisaged by the amendment will themselves be online, so purveyors of online dispute resolution services will become quite significant players in the civil justice system, and perhaps in the family justice system as well. The rules may include a provision that the goodness or quality of those services can be
“certified by a particular person as complying with particular standards.”
To be helpful, in a way, the amendment says that
“‘particular person’ and ‘particular standards’ include, respectively, a person of a particular description and standards of a particular description.”
Can the Minister indicate who will determine whether the online dispute resolution services, which may become something that you as a litigant must engage with, meet an adequate standard? Will it be a judge, an official or some independent body? I would be interested to know what the Government’s intentions are in relation to that.
Lord Falconer of Thoroton (Lab)
I am increasingly bewildered by these answers. I have obviously misunderstood this clause, but it says that the rules
“may authorise or require the parties … to participate in hearings, including the hearing at which the proceedings are disposed of, by electronic means.”
I thought that meant you could have rules that said this sort of case has to be dealt with at an electronic hearing, which does not give the judge a discretion. Is it the position that this is all subject to an overarching discretion in a judge to say that the hearing can be dealt with in person?
Lord Wolfson of Tredegar (Con)
That is the point I was going to come to. Here we are dealing with the rules set out by the Online Procedure Rules Committee. That is not the Lord Chancellor. I want to show the Committee that the Online Procedure Rule Committee is set out in Clause 22, and in the usual way it is a committee which is not run by the Government but is run in the way that the procedure rule committees are run, which is ultimately under the control of the judiciary. The central point is that ultimate control rests with the judiciary.
As I understood it, the point made by the noble Lord, Lord Pannick, was that two safeguards are in place in relation to the powers to make amendments in Clause 27, which states:
“The Lord Chancellor may by regulations amend, repeal or revoke any enactment to the extent that the Lord Chancellor considers necessary or desirable in consequence of, or in order to facilitate the making of, Online Procedure Rules.”
I cite—this goes back to a point made by the noble Lord, Lord Pannick, in relation to a different issue—subsection (3), which is a consultation requirement with the Lord Chief Justice and the Senior President of Tribunals, and subsection (5), which states:
“Regulations under this section that amend or repeal any provision of an Act are subject to affirmative resolution procedure”.
I suggest that that is very important. So the architecture here means that, ultimately, judges retain control, in practice, of what is heard online and what is heard in court.
However, there will be increasingly firm directions and defaults as to what is heard online and in court— I make no apologies for this. In my own area, the Commercial Court, although you can ask for an in-person hearing if there is a good reason, it is now the default that, if you have an application for half an hour or one hour in front of a judge, it will be online, because that saves time and money and provides access to justice.
On family courts, which the noble and learned Lord, Lord Falconer of Thoroton, asked about, I had discussions very recently with the President of the Family Division about this. Again, this is ultimately a matter for the judges, but he was saying that it is actually better to have certain hearings online. For example, if everything has been agreed between the parents and it is essentially a consent hearing, that will be done online. I am sure that it would be inconceivable that a public law family hearing, for example, where the court is taking a child away from parents, would be done online. But, ultimately, that is a matter for the judges.
I regret that, during the pandemic, there were cases where that had to be done, unfortunately, because of the need to protect children—because, when push comes to shove, protecting children is more important than having a face-to-face hearing. But, in normal circumstances, one would certainly expect that that sort of hearing would be face to face—but that is not a matter for Government Ministers or the Lord Chancellor.
These provisions seek to set up the Online Procedure Rule Committee, which will have the same sorts of powers for online procedures as the current rules committees have for the current procedures, whether that is the Family Procedure Rule Committee, the Civil Procedure Rule Committee, the Criminal Procedure Rule Committee or the rules committee for the Court of Protection—there are a number of different rules committees—
Lord Falconer of Thoroton (Lab)
The relative of the noble Lord, Lord Thomas of Gresford, is the proof that we all want. We are also aware that the judges will have an incredibly important role in determining the rules. The fact that the judges will have an important role in determining the rules does not mean that Ministers should not tell Parliament what the Online Procedure Rule Committee has in mind. We should expect to be told, for example in relation to money claims, whether, if £25,000 is okay online, £25 million is okay online and required to be online. If that is the vision, tell us, so that Parliament can properly debate it.
In relation to family matters, I am hugely unimpressed by the Minister referring to consent orders, because almost every consent order now is already dealt with online, in the sense that it will be dealt with by emails. We should be told if it will go beyond the sorts of things that I referred to earlier—not because we will necessarily object to it but because we can then debate it. Of course, we are as keen as he is to go towards the future, but we would like to know what the Government’s view of the future is. If the Minister wants to write to us, that is fine, but on Report this might be quite important.
I will say just one more thing. I probably missed it, but I am keen to know who these people were who were going to approve the dispute resolution alternatives to court that are referred to in Amendment 38.
Lord Wolfson of Tredegar (Con)
Let me deal with that last point. Amendment 38 is not about approving the persons but approving the process. For example, the Online Procedure Rule Committee will say, “This is the protocol” and there will be Wolfson Mediation Services and Falconer Mediation Services and people can choose in a market who they go to. Of course, those services which offer seamless transition to the online courts service are likely to be better placed in the market, because they will have an advantage. However, it will be up to the providers to set up their services so that people can seamlessly transfer in. The Online Procedure Rule Committee will set up the protocol, so that you know what you are aiming at and the way that you must set up your online procedures so that, if the case does not settle, the data can transfer into the court process.
Lord Falconer of Thoroton (Lab)
What is envisaged in Amendment 38 is that, if it is Falconer Services or Wolfson Services, somebody has to say that they are okay. Who will be saying whether those services are okay?
Lord Wolfson of Tredegar (Con)
That is not what Amendment 38 is aimed at. It is not about accrediting mediation services. It is about saying to mediation services, “If you want people who are using your services, if the case does not settle, to be able to integrate seamlessly into the online court space, these are the protocols to do it”. It is a process point, not a mediation accrediting point. There is a separate issue out there about accrediting mediators. The noble and learned Lord will be aware that there are a number of entities that seek to accredit mediators. There are also a number of bodies such as CEDA in that space. That is an important issue but a separate one to the point of Amendment 38.
I will write about what is online because this is a much bigger point than the Online Procedure Rule Committee. Ultimately judges—I emphasise this point—decide what is online and what is not. At the moment, judges decide whether you get a hearing at all. As the noble Lord, Lord Pannick, will be aware—to give an example from my background, but it appears in other areas of the law as well—if you appeal an arbitration award to the commercial courts, the judge may say no without giving you a hearing at all, either because you do not pass the permission threshold or because you do but the judge decides to have the hearing on paper. There is therefore no substantive difference between that and what is proposed here.
As to what the Online Procedure Rule Committee will do, I am afraid I will not be able to assist the Committee because the Online Procedure Rule Committee has not been set up yet; there are no people on it and it does not exist. This legislation sets out what the Online Procedure Rule Committee will be looking at. I will, however, look again at what the noble Lord, Lord Pannick, has said, and I will write if I can.
Lord Falconer of Thoroton (Lab)
I strongly agree with the noble Lord, Lord Beith, but I understand that he does not contest any of the propositions put forward by my noble friend Lady Chakrabarti and the noble Lord, Lord Thomas of Gresford. They are dealing with cases where people are desperate to find out what happened and want a proper hearing.
I underline the point made by the noble Lord, Lord Thomas of Gresford, which is that the key issue here will be in the next group dealing with the provision of legal aid, where appropriate, in cases where there is a dispute. We are not talking about that now, but it is vital to there being a level playing field.
This group of amendments is, in effect, trying to bring the coronial system into line with its current role to allow a proper contested hearing, where appropriate, if there is an issue about the cause of death, rather than it being the administrative process it previously was. There needs to be that change.
The biggest example of why these amendments are right and the Government’s position is wrong is in the amendment proposed by my noble friend Lady Chakrabarti on what is currently Clause 38. Clause 38 amends Section 4 of the Coroners and Justice Act 2009. The 2009 Act allows the coroner to stop an investigation where the cause of death becomes clear after a post-mortem examination. Section 4 also provides that the coroner can, if asked, give reasons after he has discontinued the investigation. That is not apparent in this Bill, but comes only in Section 4 of the 2009 Act.
Based on not just a post-mortem examination but any other matter the coroner thinks relevant, if he is satisfied that the cause of death has become so clear that he thinks an inquest is no longer appropriate, he can simply stop the whole investigation, without reference to the family, even if they are desperate for an inquest. The coroner’s only obligation is to explain why he or she did that after the event. That is the effect of Clause 38, so my noble friend Lady Chakrabarti is absolutely right to say there should be safeguards, and the key safeguard is that proposed in Amendment 40, subsection (4)(2A)(d):
“the coroner has invited and considered representations from any interested person”,
which would include the family. Why do the Government not think there should be such a requirement? What is the purpose of a justice system that can reach a decision without hearing from interested parties, and whose only obligation is to explain why it took that decision after it has been made, without giving the family the opportunity to comment?
Baroness Chapman of Darlington (Lab)
My Lords, I commend my noble friend Lady Chakrabarti for tabling these amendments so quickly; I am pretty sure we would have tabled something almost identical. She is right in everything that she said, and she did so succinctly but effectively. I shall address Amendments 40, 42 and 43 in her name as well as Amendments 41, 44, 45 and 53 tabled by my noble friend Lord Ponsonby.
As the noble Lord, Lord Thomas of Gresford, said, there is a theme running through this group: putting families at the heart of this process. There are long-standing concerns about the way that the process often takes place. It is unfortunate that the Government have not taken this opportunity to consider the issue as fully as they could have done. We are worried that efficiency and streamlining of processes should not in any way bring about a sense that these matters are to be treated with less solemnity or seriousness than they should be. We are very nervous that the Government are permanently changing procedures because of a backlog following Covid-19; we understand that that needs to be dealt with, but the needs of families must be central to the Government’s thinking here and at the moment I do not think they are.
We all appreciate that there is widespread inconsistency with coroners and that something of a postcode lottery is developing. I recommend the Justice Select Committee’s report to Members of the Committee. It is a thorough and excellent piece of work; the Government would do well to consider it and implement more of its recommendations. One of the suggestions that the Select Committee made was the introduction of a national service. As I say, the Government have missed an opportunity to go much further than the measures before us, which I am afraid seem motivated predominantly by a need to make up ground after the pandemic.
The current law, the Coroners and Justice Act 2009, holds that where a coroner has commenced an investigation, they must proceed to an inquest unless the cause of death becomes clear in a post-mortem examination. The Government are arguing now that cause of death can be established by what they call “other means”, and they give the example of medical records. They need to be incredibly careful not to create a situation where the justification for discontinuing is based on evidence that cannot be challenged by the family or by others.
My good friend Andy Slaughter in the other place gave a long list of examples, which he probably got from inquest, showing clearly the need for safeguards, particularly the need to allow the family to consent to discontinuation and for such consent to be properly informed. I shall read from Hansard an example that he gave, of Laura Booth. It will just take a minute to read it, but I think it will help us to appreciate the seriousness of the issues that we are considering:
“Laura sadly died on 19 October 2016 at the Royal Hallamshire Hospital in Sheffield. Laura went into hospital for a routine eye procedure, but in hospital she became unwell and developed malnutrition due to inadequate management of her nutritional needs. The coroner overseeing the investigation into Laura’s death was initially not planning to hold an inquest because the death was seen to be from natural causes. However, Laura’s family and BBC journalists fought for the coroner to hold an inquest. The inquest reached the hard-hitting conclusion that Laura’s death was contributed to by neglect. A prevention of future deaths report issued by the coroner to the Royal Hallamshire Hospital noted serious concerns about the staff’s lack of knowledge and understanding of the Mental Capacity Act 2005, and recommended that families should be better consulted in best-interests meetings.”—[Official Report, Commons, Judicial Review and Courts Bill Committee, 18/11/21; col. 334.]
So this really matters. Inquests play a vital role in making sure that loved ones understand the reasons for a death.
Amendment 41 would provide that the Lord Chancellor should establish an appeals process for families who disagree with the decision to discontinue an investigation. We think that is an important safeguard, and it would rightly respect the interests of those whose closest have died. We see it as an anomaly that no right of appeal exists for families in that situation.
Amendment 44 would prevent an inquest being conducted by telephone or other means that were audio-only. We think that audio-only risks hindering engagement with families, and it may be inappropriate in these circumstances.
Amendment 45 would ensure that remote inquest hearings and pre-inquest hearings were still be held in a manner accessible to the public. We think this is important for public confidence, for scrutiny and for challenge. We are worried that measures in the Bill designed to streamline processes will make it more difficult for families to be active participants in the process when all the evidence is that we should be taking steps to help their participation.
We strongly support Amendment 42, which would ensure that inquests were not held without a hearing if that was against the wishes of the family. To do so, as well as being incredibly insensitive, would deprive the family of the opportunity to explore all available evidence and limit their ability to scrutinise the accounts provided by relevant authorities, including by hearing oral evidence and questioning key witnesses. I am sorry the Government are taking the route that they are taking, and I am sure we will want to continue to press them on this as we progress.
Lord Wolfson of Tredegar (Con)
Of course I understand that point, in the sense that I too have read the material of people who have been involved in inquests. I have read some of the material from the various groups which have been lobbying for changes in this area. I hope that I have set out the Government’s position fairly. As we all recognise, the point being made to me is fundamental. I do not want to keep repeating it in response to each amendment, but I certainly accept that what I have just said underpins the Government’s response to a number of these amendments. Therefore, I absolutely accept and understand the noble Baroness’s position; that is, because she disagrees with me on this fundamental point, necessarily she will disagree with me on a number of these amendments because they are underpinned by the same point—
Lord Falconer of Thoroton (Lab)
Whether the process is inquisitorial or adversarial, surely you are entitled to basic fairness. This means you are entitled to having a say on what is going on and an opportunity to make proper representations. This is the case whether you are either a family member saying, for example, that your loved one is the victim of a criminal offence by the police, or you are a police officer being accused of manslaughter. Indeed, the Minister has just said that there would be a coroner at the inquest. Therefore, I am not sure why—whether it is inquisitorial or adversarial —you are to be deprived of that basic fairness.
Lord Wolfson of Tredegar (Con)
The fundamental point is: who is the “you”? Who are the parties to an inquest? As I was saying earlier, you do not have “parties” in inquests, in the same way that you do in adversarial proceedings. Of course, there are inquests where legal aid is provided and family members—or, indeed, other people—turn up with lawyers. However, as a Government, we certainly do not want the general inquisitorial procedures, in the normal run of an inquest, to become adversarial. I understand that this is a point of principle between us; this is not a point of detail.
This point will underpin a number of the responses which I am going to give. I turn to Amendment 42, which would require the coroner to obtain consent from interested persons, including bereaved families, before determining whether to deal with an inquest on the papers. Clause 39 has been designed to give coroners the flexibility to conduct inquests without a hearing, where there is no need to hold one. They would exercise that power judiciously, because they are judicial officeholders, in cases where they consider them to be non-contentious, where there is no concern about the cause of death, or where the family have indicated that they do not wish to attend a hearing.
To return to the point I started with: because coroners are independent judicial officeholders, introducing the concept of consent into their decision-making process would cut across their judicial independence and fetter their discretion. The coroner would still be required to hold inquests with a hearing, in cases which require one. The Chief Coroner would issue guidance to coroners on how they should exercise their discretion.
Amendments 43, 44, 45 and 53 all relate to remote hearings. The purpose of Amendment 43 is to ensure that additional safeguards are met before a coroner can hold a remote hearing. The position here is that coroners have always been able to conduct hearings with virtual elements, but the coroner and the jury, if there is one, must be physically present in the courtroom. Clause 40 allows all participants to participate in a remote hearing.
As we have said on previous groups about magistrates and jurors, throughout the pandemic, coroners’ courts have also worked very hard to keep their services running. They have taken advantage of the benefits of remote hearings to keep inquest participants safe. Key witnesses, who often could be front-line doctors, have been able to focus on their primary role and attend remotely. Clause 40 ensures that coroners can continue to operate remotely, when they regard it as appropriate. Again, we expect that, being judicial officeholders, coroners would work with interested persons to address any concerns that they may have regarding remote hearings. Again, the Chief Coroner is expected to provide guidance on any law changes.
Amendment 44 deals with remote hearings. The short point here is that there may be instances where participants might prefer or need to participate in a remote hearing only by audio, without video; perhaps that is the only way that they can participate if they are based abroad, for example, and there are technical limitations to how they can access the hearing. As we understand it, the amendment would exclude those participants from participating in the hearing remotely—
Judicial Review and Courts Bill
Lord Falconer of Thoroton ExcerptsMonday 21st February 2022
(2 years, 1 month ago)
Lords ChamberRead Full debate Judicial Review and Courts Act 2022 View all Judicial Review and Courts Act 2022 Debates Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: HL Bill 102-I(a) Amendments for Committee (Supplementary to the Marshalled List) - (21 Feb 2022)
Lord Faulks (Non-Afl)
I am grateful for that clarification, but I am afraid to say that I still fail to follow how bringing forward a fairly balanced Bill is somehow the Government reflecting an elected dictatorship. But I hear what the noble Baroness says.
Lord Falconer of Thoroton (Lab)
My Lords, this is a very important debate and in this part of it, I will focus only on whether it is appropriate to empower a delayed quashing order—as proposed in new subsection 1(a)—and whether it is appropriate to give a power to say it shall be prospective only. My overall position is that if the courts want these powers, let the courts develop them. Do not do it by legislation.
Lord Hope of Craighead (CB)
The noble and learned Lord was kind enough to refer to the case that I was referring to. However, I was suggesting that the court should have power, in effect, to direct that the order made under the United Nations provisions be treated as valid until Parliament could introduce a measure giving authority to the making of the order. That is indeed what happened afterwards; Parliament had to remedy the problem and some time was needed to allow it to do that.
The banks were holding on to the money; of course, they were not going to release it unless it was demanded by these suspected terrorists, but had they demanded it, it might have been quite difficult for the banks to refuse to release some money. My point was that something should be done to prevent that happening. The last thing one wanted was to give these terrorists the opportunity to make off and dissipate all the assets that had been protected by the order made under the international obligation.
The problem that the noble and learned Lord is grappling with is that there is a huge range of circumstances in which these provisions may come into effect, some of which, I quite agree, would be offensive. I would hope that the courts would be sensible enough not to exercise the power. There are various provisions later in the Bill, which we will discuss and which might be better removed to preserve the court’s flexibility. The question is whether the power should be there at all. My point was that, yes, it should be there because there can be cases where the interests of good administration, and possibly national security, require the possibility of doing that to prevent the event—or whatever it was that the defective order was designed to prevent—taking effect.
Lord Falconer of Thoroton (Lab)
New subsection (1)(a) deals with that point. The effect of the order stood until the Supreme Court set it aside, and everybody would accept that that is the position. If the Supreme Court had had new subsection (1)(a)—which it could have—it could have said that the order freezing the money continues for six more months and in six months’ more time it is then quashed. That is my understanding of a (1)(a) order: the quashing order means getting rid of the restraint on dealing with the money and does not take effect until the date specified in the order.
If the Supreme Court had said, “This order stands until six months’ time”, and a bank had then been approached and told, “Excuse me, the terrorists want their money now”, the answer would have been no because there would still, in effect, be a restraining order. It would have dealt with the problem that the noble and learned Lord posits; I think Clause 1(1)(a) would have dealt with it.
Lord Hope of Craighead (CB)
I recommend that the noble and learned Lord refers to Treasury 2 because I made exactly the point that he was trying to make and I was overruled by the others. They said, “You can’t do that”, and they would not make the suspended order. We are in Committee and we cannot prolong the discussion, but that is the problem that I was faced with. I tried to do exactly what the noble and learned Lord suggested but I was overruled. That is the problem that I think the Government are trying to address; the Minister will correct me if I am wrong.
Lord Falconer of Thoroton (Lab)
If the court determines that regulations that impose a tax charge are unlawful but decides that this should be prospective only, is the consequence that the taxes raised before the date are “treated” as having been lawfully raised?
Lord Wolfson of Tredegar (Con)
If the noble and learned Lord will forgive me, I will come to precisely that point later in my speech, because it arises under the amendment put down by the noble Lord, Lord Ponsonby.
Lord Falconer of Thoroton (Lab)
I am raising it now because the noble Lord is placing huge emphasis on the word “treated”. I would be interested to know whether that word means that tax raised under unlawful regulations in the past remains treated as if it were raised lawfully.
Lord Wolfson of Tredegar (Con)
I will come to this point because these are two sides of the same coin. The short answer to the noble and learned Lord’s point is that it would be almost incomprehensible that a court would use a prospective order in circumstances where people have paid taxes that were necessarily unlawfully raised—so the question would not arise. It is a nice theoretical question, but it would not arise. That is why I will deal with it later, and I am happy to take further interventions at that stage, if we can try to deal with the points separately. I see where the noble and learned Lord is going, but at some point one has to live in the real world and consider whether a prospective-only order would be appropriate. Remember, the court has to look at the factors in subsection (8), including paragraph (f), which refers to
“any other matter that appears to the court to be relevant.”
It also has to look at where subsection (9) says
“unless it sees good reason not to do so.”
The idea that that could survive an unlawfully raised tax case is, I suggest, almost incomprehensible.
I will go back to where I was. We are not making an unlawful act lawful. The real question is: what is a remedy at all? In particular, what is a quashing order? This is something that has, frankly, bedevilled public law for some time. It is not clear that public lawyers, or indeed anyone else, have come up with a good answer to it. I suggest, however, that the remedy that the court gives, whether a quashing order or an order of prohibition, does not determine whether something was unlawful or not. It is the judgment and any declaration as to the state of the law that do that. The remedy decides what the effects of that unlawfulness should be, because there are cases where the court will declare that something was unlawful but not actually give a quashing order—but the action is still declared unlawful.
So this new power allows the court to modify the remedial effect of the quashing order so that, up to a point, the action or decision in question would be treated as being valid for all intents and purposes. The court is therefore doing its traditional job of declaring what the law is and what the law was, but it has greater flexibility in determining the real-world effects of its determination. I therefore respectfully agree with the way in which the noble Lord, Lord Anderson of Ipswich, put it. I heard his slightly in terrorem threat as to when we come to the presumption—but I will deal with that at that time.
That approach is consistent with public law as we understand it today. Judges are faced with situations where, despite a finding of unlawfulness, a quashing order does not issue, for a variety of reasons. I do not think therefore that it follows on principle that a finding of unlawfulness should always result in the voiding of the decision ab initio. I am grateful therefore for support on this point from the noble and learned Lords, Lord Hope of Craighead and Lord Brown of Eaton-under-Heywood, although I will avoid getting into any relitigating in this Committee of either Spectrum or Ahmed—we will leave that for later groups and possibly further editions of memoirs.
We need to avoid an approach which would take us right back into the straitjacket of nullity, and the academically interesting but practically frustrating doctrines that characterised decisions from Anisminic to Ahmed. We are not giving the court a binary choice of quashing retrospectively or giving declarations that state the law but do not necessarily deal with the effects of the impugned decision, even if it is declared to be unlawful. That is my response to the first main point from the noble Lord, Lord Pannick.
His second contention is that the new powers draw the courts into policy questions. I say respectfully that we are simply not doing that. We are asking the courts to do what in many ways they do already, which is to assess the possible effects of their judgment on the parties and the public interest. It may well be the case that having given the courts these two new tools—I think the noble Lord, Lord Faulks, made this point—they do issue quashing orders in cases where they would not have done so if the only option open to them was an ab initio quashing order. Well, so be it. If Parliament has given them these extra tools, that is the way matters will work out. Subsection (8) sets out what we believe to be the pertinent factors, but we made it expressly a non-exhaustive list.
Courts have long recognised the principle that the administrative burden of rectifying the effects of a past decision can outweigh its potential benefits, especially if the Executive are rushed into action. Importantly, there are cases where the courts have recognised that regulations or policies that have a wide effect can create expectations for third parties: plans could have been made, contracts signed and money spent, all in pursuit of what everyone thought was a lawful policy.
We must not get lured into the example of somebody paying tax under regulation which turns out to be unlawful. People might have signed contracts on the basis of a regulation which turns out to be unlawful. They may have spent money or set up businesses. To undo all that could give rise to far more injustice than making sure that present and future situations are rectified. The example I gave at Second Reading, which the noble Lord, Lord Anderson of Ipswich, also mentioned, was the case of BASCA v Secretary of State for Business.
There is a further benefit to good administration, which is really what judicial review is all focused on anyway, which is that public bodies can make good a decision without having to revisit what can sometimes be long and drawn-out policy processes for the sake of a small error.
In cases relating to Heathrow expansion, for example, one point of contention was whether the Government had to take into account the Paris climate agreement. If the court had ended up finding that the decision not to take it into account was unlawful, it would surely have been far better to give a prospective order, so that the overall process of expansion was protected and the decision could be amended properly to take into account the relevant agreement. Quashing retrospectively would mean that the entire process would need to begin again from square one. A prospective remedy would allow the unlawfulness to be corrected at lower cost and in a shorter time, while still recognising—I underline this point—that the initial decision was unlawful.
I also emphasise the points in subsection (8)(c), which ask the court to have regard to
“the interests or expectations of persons who would benefit from the quashing of the impugned act”
and subsection (2), which allows the court to set conditions on the remedy. I hope that those provisions assuage any concerns that individual rights would be prejudiced—on the contrary, they ought to be taken into account by the court.
I have gone into some detail on that point because it was focused on by the Committee. I hope I can deal with the other amendments slightly more quickly with that background.
Amendment 3 removes the ability of the court to attach conditions to a suspended or prospective-only quashing order. These are intended to give the court maximum flexibility. For example, a court might want to make an order prospective only to reduce administrative chaos, but only on condition that parties who may have lost out financially are properly compensated. The conditions may not be necessary in every case, but it is an option for the court where appropriate.
Finally, Amendment 6 aims to ensure that the invalidity of quashed regulations can be relied on in criminal or civil proceedings. As I understand it, the concern of the noble Lord, Lord Ponsonby, is twofold. First, defendants could be prosecuted under regulations that have been ruled to be unlawful yet, because of the powers in this Bill, are treated as valid. That point was made by the noble and learned Lord, Lord Falconer, and the noble Lord, Lord Marks.
Secondly, this might mean that claimants or victims would be less able to obtain damages, restitution or compensation. As I have suggested already, the amendment is unnecessary. As the noble Lord, Lord Faulks, said, collateral challenge is not at issue. The Bill does not necessarily prevent such challenges, because it gives the courts powers to formulate the remedies appropriately. In circumstances where provisions which create criminal penalties are being challenged, and have been challenged successfully, I find it very unlikely that a court would decide to use a prospective-only remedy. That is not only because the list of factors includes in subsection (8)(c)
“the interests or expectations of persons who would benefit from the quashing of the impugned act”
and, in subsection (8)(f),
“any other matter that appears to the court to be relevant”.
That would, I think, mean that the court would certainly find a “good reason”—to use the language in subsection (9)—to use a retrospective quashing order, so that any persons, for example, who had paid tax would have a remedy in restitution.
In similar cases where a court considers a suspended remedy, the ability to set conditions on the order would also mitigate any risk of injustice. For example, a court could use a suspended quashing order with the condition that the authority in question does not take any further enforcement action. This goes back to my main point about maximum flexibility. For those reasons, I invite the noble Lords who have tabled these amendments not to press them.
Baroness Jones of Moulsecoomb (GP)
I do not see this as a tool in the toolbox but as opening up a nest of snakes. When you use the phrase
“unless it sees good reason not to do so”,
it opens up some real complexity if people start to make further appeals on the basis that there was good reason not to do so or good reason to do so. I do not see that this is any sort of simplification. The Government will probably regret opening this system of quashing because it will add complications when the Government presumably want it to run more smoothly. I cannot see that there is any point to this. I hope that all those legal eagles over there will start circling round our little legal lamb here and explain to him that he has got this completely wrong.
Lord Falconer of Thoroton (Lab)
These are important amendments. They address the botched way that, if these powers are to come in, the exercise of discretion is to be applied. My noble friend Lord Ponsonby is saying that you would use what the noble Lord, Lord Wolfson, describes as the tools in the toolbox only if it is “in the interests of justice to do so”. That is the starting point. That sounds to me a lot more sensible a starting point than the very strange wording in new subsection (9), which is, if the court is to make a quashing order in accordance with new Section 29A(1),
“the court must exercise the powers in that subsection accordingly unless it sees good reason not to do so”,
and the condition is that
“as a matter of substance”
an order under new subsection (1) would
“offer adequate redress in relation to the relevant defect”.
Obviously, there is a difference between adequate redress on the one hand and what is the best order in the interests of justice overall on the other. Can the noble Lord tell us why this strange wording has been adopted if all that is intended is the broadest possible discretion in relation to using these two new tools in the toolbox?
My noble friend Lord Ponsonby’s amendments also relate to new Section 29A(8). The Minister said, in reference to prosecutions and taxation, that you would never make a new subsection (1) order, whether a delayed quashing order or prospective only one, and that is clear, he says, from new subsection (8). He relied in particular on new subsection (8)(c), which refers to
“the interests or expectations of persons who would benefit from the quashing of the impugned act”.
If I have been prosecuted under a regulation that was unlawful, I would expect my prosecution to be upheld. But then, new subsection (8)(d), refers to
“the interests or expectations of persons who have relied on the impugned act”.
Therefore, if, for example, it is made unlawful to do a particular thing and I have had my dog put down as a result or I have bought lots of expensive equipment to comply with the criminal law as I thought it was, my interests or expectations under new subsection (8)(d) would be “Let the law stand”. So new subsection (8)(c) points in one direction and new subsection (8)(d) in another. If it is the Government’s intention that all prosecutions brought under unlawful regulations or laws will never be prospective only, and if it is their intention that taxation raised under unlawful regulations will never be prospective only, in my respectful opinion—I may be wrong, in which case let me corrected by the noble Lord, Lord Wolfson—new subsection (8) does not get him anywhere near that. Indeed, it leaves the judge to decide and the judge has to decide on the basis of new subsection (9).
I therefore strongly agree with my noble friend Lady Chakrabarti. A bit more work needs to go into this to get to a point where there is clarity about what the Government intend, if their intention is that these are only two tools in the toolbox, with complete discretion over how to use them. If that is what they want, my noble friend Lord Ponsonby’s amendments are giving them quite a good opportunity of getting there.
Lord Brown of Eaton-under-Heywood (CB)
I hesitate, my Lords, to speak again. I feel that so much of what has been said has been dancing on the head of a pin. I have to say that I have come to see new subsections (1)(a) and (1)(b) in new Section 29A in Clause 1 not as dramatically different things but rather as a continuum. They cover a spectrum; indeed, there is an overlap in between them, in the middle. There is no question here of subsection (5), to which the noble Lord, Lord Pannick, objects so strenuously—the one about being treated, and so forth. It is always subject, be it noted, to new subsection (2) of new Section 29A. Any of these orders under new subsection (1)—in other words, whether it is an order under new subsection (1)(a) or (1)(b)—can be made subject to conditions. Those conditions clearly would control the extent to which there is to be any degree of retrospectivity or retroactivity, call it what one will.
I am a huge admirer and respecter of the noble Baroness, Lady Chakrabarti, but I do not see this as being, so to speak, comparable to Parliament infinitely rarely passing legislation retroactively. We must always remember, must we not, that judicial review is, at the end of the day, a discretionary remedy; you do not actually have to make these orders anyway. I still see this, as the Minister would urge, as a tool in our toolbox, giving us the maximum flexibility and discretion to do what justice requires to all—which includes, of course, to those who are not in the courtroom, who do not have legal aid, and all the rest of it. With criminal convictions—taxation and things—one trusts and assumes that the court is going to behave correctly. In the Percy and Hall case, with the good lady trespasser and PC Hall who was being sued for damages for having arrested people who on the face of it were invading this territory, contrary to apparently valid by-laws, I pointed out in the judgment that, if and insofar as she had actually had criminal convictions, of course they would be set aside. But that is merely an aspect of judges behaving, as one hopes and believes they will, in a judicial manner.
So I respectfully continue to support this clause. I said at Second Reading that I was agnostic or entirely relaxed—I think that was the term used by the noble Lord, Lord Anderson—as to whether it is “may” or “must” in new subsection (9), and I remain so. “Must” simply urges the judges to give attention to this new tool in their armoury or toolbox. But they do not have to, and they will not, unless by all the conditions that they wanted to impose, they have made it clear that what they are doing will not be contrary to justice.
Lord Wolfson of Tredegar (Con)
My Lords, I will respond to the amendments in this group in grouping order. I start by making a point about the list of factors. The purpose of the list of factors in subsection (8) is, as I said in the previous group, to allow the court to respond flexibly in the interests of delivering justice. However, it is important that the court considers—I emphasise “considers”—whether the remedies to be used are appropriate. These are the factors to which the court must have regard.
Lord Falconer of Thoroton (Lab)
Is the Government’s intention that these two remedies—new subsection (1)(a) and (b)—should be in a different category from every other remedy the court has under judicial review?
Lord Wolfson of Tredegar (Con)
Yes and no, in the sense that this gets us into the argument about the presumption, because the presumption applies to only these two remedies. To that extent, the point made by the noble and learned Lord is correct: that is the nature of the presumption, which we will get to in the next group. We want the court to specifically consider whether these remedies are appropriate and to use them, as the ending of new subsection (9)(b) says,
“unless it sees good reason not to do so.”
Because these are new remedies, we have set out a list of non-exhaustive factors which the court must consider. These are the factors in new subsection (8)—and it is expressly non-exhaustive in new subsection (8)(f). I agree with the noble and learned Lord that, as he put it, these are important considerations. However, we want to encourage consideration of their use; we are certainly not mandating their use in any case.
The other thing we want to do, by putting these factors in the Bill, is to provide consistency in the jurisprudence from the start as to how the remedies are used in the cases which come before the court. I remind the Committee that we consulted on the sort of factors that should be included in the list. We received some very useful contributions in response to that consultation. However, the “must” in new subsection (8)—which is contrary to the proposal in Amendment 7 before the Committee—requires the court to consider each of the factors in the list. Coming to the point made by the noble Lord, Lord Marks of Henley-on-Thames, the “must” does not require the court to find that every factor in the list applies. It does not require the court to say that all the factors are relevant in the instant case. The court may consider that some of these factors in the case before it are not relevant at all; some might have very limited weight or only marginal relevance. All the court must do is to consider them. As the noble Lord, Lord Faulks, pointed out, the court may add to its consideration absolutely anything it wants under new paragraph (f).
Lord Faulks (Non-Afl)
Perhaps I might briefly add to that point before the noble and learned Lord, Lord Falconer, speaks. An absolutely classic example of legislating for discretion would be Section 33 of the Limitation Act, which courts are applying every single day of the week, which lists a large number of factors which the court may take into account and concludes by saying that it may take any other thing into account. Although I absolutely take the point made by the noble and learned Lord, Lord Thomas, there is nothing particularly unusual about setting out in detail the discretion and then, nevertheless, allowing the court to take into account other matters.
Lord Falconer of Thoroton (Lab)
I have just two points. First, I agree with the noble and learned Lord, Lord Hope, that no reason is given as to why there is the presumption, but it is worth emphasising that the Explanatory Notes accept that there is a presumption. What is being said is, and it is the intention of the Government, that, if a quashing order is to be made—certain sorts of judicial review will always lead to a quashing order; for example, if a power to prosecute people has been given without justification from primary legislation—there is to be a presumption that the quashing will be delayed and that, subject to the condition in new Section 29A(9), you will use either the delay or prospective-only power.
Lord Falconer of Thoroton (Lab)
Surely the courts will consider it when it is raised by the Government, and the question of the amount of time and how often the courts consider it will be dependent on the number of times it is raised as a proposition. I do not see why we need the presumption to get the courts to consider this.
Lord Wolfson of Tredegar (Con)
There are two parts of the answer to that. First, there are, as I said earlier, many judicial reviews in which it is not “the Government” in the way that the phrase “the Government” is used.
I am grateful to the noble and learned Lord, because the second point ties into a point I was going to come to. It is, I am afraid, a longer response than the speech which provoked it from the noble and learned Lord, Lord Judge, who said that this is a presumption in favour of the wrongdoer. I will try to answer the two points together. With great respect, I disagree for this reason: the presumption is not a presumption in favour of the wrongdoer. It is a presumption in favour of finding the appropriate remedy for the facts of the case. As we have heard, rightly, from a number of noble Lords, the claimant might not be the person who is actually most affected by the decision in question. There could be a whole class of people who are very severely affected by the decision in question who are not before the court. The claimant, who is before the court, is affected because they are sufficiently affected to have standing, but they may not be affected to the same degree. Therefore, it may not matter too much to the claimant as to whether the remedy is given. It may, on the facts of the case, not even matter too much to the defendant whether this remedy is given, but it may well affect third parties.
Another benefit of the presumption is that the court, so to speak, has to go through that thought process of whether this would be the appropriate remedy, thinking about people—we talked about the factors in subsection (8) earlier—who are not before the court, because on the facts of a particular case, the claimant may not actually be too bothered about whether these remedies are used. The defendant may not be too bothered whether the remedies are used, but it could well affect the position of third parties. Therefore, with respect, I dispute the proposition that this is a presumption in favour of the wrongdoer. It is in favour of the appropriate remedy.
Lord Wolfson of Tredegar (Con)
With respect, no. The noble Baroness is looking at this in a very negative way. The whole point about the music copyright case was that the prospective-only remedy was there to protect people who have relied on the regulations. One must not look at these cases with the view that you have all these people out there with claims against the Government and the prospective-only remedy insulates the Government from all these other claims. There are lots of cases where a local authority, or the Government, or some other public body has made a decision and people have relied on it. Businesses have been set up, people have taken out bank loans and made investments. In those cases, I ask rhetorically, should all those third-party interests be disregarded merely because in the case of the claimant bringing the judicial review, his bank loan has not been drawn down yet, so he does not mind whether they are upheld, so to speak, prospectively or retrospectively?
As the noble and learned Lord, Lord Hope, said in the very first debate, there is a wide gamut of cases that come before the courts, and we have to give remedial flexibility; that is what all of this is seeking to do.
Lord Falconer of Thoroton (Lab)
That is an interesting answer. If there are two judicial reviews going on and one holds, for example, that the regulations are unlawful—not in accordance with a statutory power—but says prospective-only, it is presumably open to a second judicial review, which might be going on in parallel, to say, “It is unlawful, and I argue for it not to be prospective-only, for the following reasons.” Would it be open to two judicial review courts to come to different conclusions on the same unlawfulness?
Lord Wolfson of Tredegar (Con)
We all know that judicial reviews have to be brought within three months of the act. Therefore, I suggest to the noble and learned Lord that it is highly unlikely that one will have two separate courts adjudicating on the same decision. If there were separate judicial reviews, they would be consolidated.
Lord Falconer of Thoroton (Lab)
I disagree quite strongly with what the noble Lord, Lord Faulks, said about how suggesting that this part of the Bill be removed is irresponsible. As the impact assessment put forward by the Government indicates, if this part of the Bill goes forward, between 173 and 180 Upper Tribunal and High Court days would be saved, which they calculate at £400,000. We are talking about a saving of £400,000 if this goes through, according to figures advanced by the Government.
As the briefings we have received from a number of organisations indicate, the effect of Cart judicial reviews has been quite significant. Points of law have been established as being wrongly decided by the First-tier Tribunal and the Upper Tribunal. No criticism of those two tribunals is intended, but that is what happened. They have been of some considerable importance, particularly in relation to human trafficking, duress and asylum status.
In relation to the point about Lord Justice Laws, his judgment in Cart in the Court of Appeal utterly exploded the theory that, simply because it was a superior court of record, there could not be judicial review. It exploded that proposition—which had been the basis of saying that Cart was not the subject of judicial review—so totally that in the Supreme Court, the judges who gave reasoned judgments indicated that he had done such a great job in relation to that that nobody now sought to restore that argument.
I am against this provision in relation to Cart because it does two things which are bad. First, it removes the High Court from considering whether or not the Upper Tribunal has got it wrong. In England—I say nothing about Scotland—it is the High Court that is the absolute cadre that determines the development of the law and the quality of the law, and I am not in favour of it being removed from this for £400,000.
Secondly and separately, as Cart in the Supreme Court said, there are a range of options open to the Supreme Court as to what the test should be for allowing judicial reviews from the Upper Tribunal’s refusal of permission to appeal from the First-tier Tribunal. It considers the ranges, such as exceptional circumstances, or asks whether it should be on the basis of, “We will give judicial review when the Upper Tribunal should have given leave to review it”, or some combination of the two, or a breach of natural justice—something like that. It said that the Supreme Court had a quite broad discretion to determine what the filter should be.
In the report of the group that he chaired, the noble Lord, Lord Faulks, said that the way that judicial review should develop should be on the part of appropriate deference by Parliament to the courts, and by the courts to Parliament. What I took that to mean is that the courts should be very careful to make sure that, in every case they can, they give effect to what Parliament wants. I took the noble Lord’s reference to deference by Parliament to the courts to mean: let the courts develop the precise ambit of the process by which they will judge illegality or not.
I object to Clause 2, because what is happening here is that inappropriate deference is being shown to the courts. The courts have the power to decide what the filter should be. They made that clear in Cart. The Supreme Court can revisit Cart; it is seven years old and, anyway, it can revisit it if it is 10 minutes old. It, not the legislature, should decide what the filter is in relation to this.
The key thing about judicial review is that it is the main means—not the only means, but the main means—by which the courts uphold the rule of law. Our constitution is based on democracy and the rule of law. Although there are functions within government that determine, or try to protect the state from, breaches in the rule of law, the key vindicator of the rule of law is the courts. Why on earth, for £400,000, is the legislature galumphing in to this area when the courts themselves can give the precise limits of this? It is—perhaps the noble Lord will let me finish.
It is such a mistake to do this. It sets out an ouster clause; that may be used in future, but I am pretty confident that the courts will construe ouster clauses against the background, so the wording in one case may well not work in another case. What is wrong here is that the Executive should not be doing this, because the courts have the power to sort it out themselves, and they should. I apologise for not taking the intervention from the noble Lord straightaway.
Lord Faulks (Non-Afl)
The noble and learned Lord does not mischaracterise the conclusions we reached at all. Quite rightly, we emphasised the respect of the various parts of the constitution to each other and the importance of that. However, he omits to mention a fact we stressed: none of the judges who made a submission to us ever suggested that, when Parliament thought a decision was wrong, it was not appropriate to legislate to reverse the effect of that decision. To suggest that does not do violence to any of the principles that we identified—I think the noble and learned Lord and I would agree about those principles. As for the hourly rate of judges, with great respect, whether they are remarkably good value for what they do does not alter the fact that, if something is bad law, it needs reversing.
Lord Falconer of Thoroton (Lab)
There is a fundamental misunderstanding there. Of course, Parliament can reverse a judicial review on its substance. If the courts conclude that some social security regulations do not meet a particular provision, they can change those regulations and come to the same result they wanted to all along, which is fine. I am talking about the fundamental role of the court in relation to determining whether the Government are acting lawfully. In relation to that, namely the ambit in which the court will operate Anisminic onwards, as it were, do not interfere with it. Let the courts determine that. Ultimately, the limits of that have to be set by the courts and not Parliament.
Lord Pannick (CB)
The noble and learned Lord has raised a number of very valid points in opposition to Clause 2. I offer another, in response to the noble Lord, Lord Faulks, who emphasises that there must be finality in litigation. The problem with that argument is that Clause 2 itself recognises the need for exceptions. New Section 11A(4) specifies exceptions, in particular for a
“fundamental breach of the principles of natural justice.”
In my Amendment 19, I suggest we need a further exception for where the Upper Tribunal has made a fundamental error of law. The noble and learned Lord, Lord Falconer, gave a number of examples where there may be important areas of law that raise fundamental issues that go to the safety of the individual who is going to be removed to a place where they may face persecution or torture. I for my part do not understand why a fundamentally unfair procedure is a greater mischief in this context than a fundamental error of law by the tribunal system. In each case, the Upper Tribunal and the Court of Appeal will have declined to intervene. If the judicial review route is nevertheless to remain open, as Clause 2 recognises, for fundamental procedural defects, surely it should remain open for fundamental substantive defects.
I accept of course, as again the noble Lord, Lord Faulks, emphasised, that there will be claimants with no legitimate point who seek to argue that they fall within the exception, but that is equally true of an exception for fundamental procedural defects. In any event, the answer to that concern is to ensure that any application for judicial review, whether of substance or procedure, is looked at and addressed by the judge on the papers and within a very brief time period.
Police, Crime, Sentencing and Courts Bill
Lord Falconer of Thoroton ExcerptsTuesday 25th January 2022
(2 years, 2 months ago)
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“(c) manslaughter in circumstances where—(i) the death was not caused by dangerous driving or driving when under the influence of drink or drugs, and(ii) but for causing death or serious injury to the emergency worker, the unlawful act would have attracted a maximum sentence of less than five years imprisonment.”
Lord Falconer of Thoroton (Lab)
My Lords, on 24 November 2021, the Government announced in a press release that they were introducing into the Bill a provision that imposed a mandatory life sentence where a key emergency worker dies as a result of manslaughter. The introduction of that provision into the Bill was not the product of any debate in this House or the other place.
On 1 December 2021, the relevant amendment giving effect to the provision that there was a mandatory life sentence for manslaughter was tabled with the Table Office. On 8 December 2021, the matter was debated in this House. A large number of Peers spoke in the debate, including the noble Viscount, Lord Hailsham, the noble and learned Baroness, Lady Butler-Sloss, the noble Baronesses, Lady Fox, Lady Hamwee and Lady Jones of Moulsecoomb, the noble Lords, Lord Beith, Lord Pannick, Lord Carlile and Lord Marks, and the noble Earl, Lord Attlee. They gave a variety of reasons why the provision had particular defects; there was a range of detailed complaints about it. The noble Lord, Lord Ponsonby of Shulbrede, spoke on behalf of the Labour Front Bench and indicated that Labour accepted the amendment in principle but that there were problems with the detail.
Before there was a vote on the amendment itself, the noble Viscount, Lord Hailsham, suggested an adjournment to discuss the detail. There was a vote on that and it was rejected. There was then a vote on the amendment. Anybody fairly reading that debate would conclude that the principle of the amendment was agreed to—that this House agreed to the principle of a mandatory life sentence where an emergency worker dies as a result of manslaughter. However, nobody reading that debate could possibly conclude that the detail was treated as being resolved in relation to that.
One detail that affected many noble Lords was the consequence of having a mandatory life sentence for manslaughter if, for example, in a demonstration about, say, HS2, a demonstrator pushed over a police officer acting in the execution of his or her duty, who bumped their head—which would be common assault at worst—and died. That demonstrator would end up with a mandatory life sentence. They would not be saved from the mandatory life sentence by the exceptional circumstances defence.
This caused many people in the House considerable concern. I completely accept that the principle of the mandatory life sentence is no longer up for debate; that has been resolved. However, in conjunction with my noble friend Lady Chakrabarti—to whom I pay tribute for her work on this issue—I have crafted an amendment that does not touch the detail of the provision, in the sense that it leaves in place the principle agreed but says that, where the offence you would otherwise be charged with does not attract a sentence of more than five years, you will not be susceptible to it. This is to deal with the one-knock manslaughter case. It leads to justice and reflects where the House is coming from. I strongly commend the amendment to the House and very much hope that the noble Lord, Lord Wolfson, will address the detail.
Lord Falconer of Thoroton (Lab)
I am incredibly grateful for the support from all around the House. I am particularly grateful to my noble and learned predecessor and my noble and learned successor for supporting me in this matter.
The response from the Minister was incredibly disappointing. It was bombastic and technical and failed to address the essential issue, which is: what about the “one knock” manslaughter case? The answer that came in the end appeared to be, “Actually, we intend to cover that.”
The Minister made one good point on the drafting. He is absolutely right that my draft covers only 17 year-olds because it refers only to page 4. I would have had to submit the same draft in relation to pages 5 and 6 as well, which, if I had got page 4 in, I am sure would not have made much difference.
This is such an important issue that I would have been tempted to obtain the opinion of the House. All around the House there has been support for it, but the only encouragement I get is the technical point the Minister made. It may be that when this comes to the House of Commons, the Government will consider that they could improve my drafting and get to the same result. In those circumstances, with regret, I beg leave to withdraw the amendment.
Police, Crime, Sentencing and Courts Bill
Lord Falconer of Thoroton ExcerptsWednesday 15th December 2021
(2 years, 4 months ago)
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Lord Falconer of Thoroton (Lab)
Having very kindly accepted that the maximum is wrong, the Minister’s only point appears to be that it would put it out of sync with these others. What work is being done in the Ministry of Justice and when can we expect to see legislation bringing them all to a position where there is an appropriate maximum sentence? This matters very considerably to victims of a Section 1 crime.
Lord Wolfson of Tredegar (Con)
My Lords, it certainly matters. I am a little concerned that the noble and learned Lord has seen my notes because that was precisely the point to which I was coming when he intervened. I am grateful for the intervention and for the points made by my noble friend Lord Sandhurst and the noble Lord, Lord Faulks, which I endorse. We need consistency and a fair approach in this area. We will begin by drawing up, as my noble friend Lord Sandhurst invited us to, a list of relevant offences, to ensure that we capture this issue fully.
Lord Falconer of Thoroton (Lab)
I am sorry to interrupt again, but when that has been done, what is the next stage?
Lord Wolfson of Tredegar (Con)
There may be others, but I am coming to the next stage. The noble and learned Lord is very keen.
Also part of the framework is the law of contempt of court, which we must consider if we are to look at this area properly. In some circumstances, it might be an alternative to charging the appropriate breach offence, although conduct is usually dealt with as a contempt only where some harm to the administration of justice was likely. It also does not attract the investigatory powers which these offences attract.
My right honourable friend the Attorney-General has already independently asked the Law Commission to examine the law of contempt in this regard. I could not say this in Committee because at that point I was saying that we would invite the Law Commission to do it. In fact, they have already committed to such a review. We have asked them to add in the breach of anonymity offences, both for Section 5 and related offences.
The noble and learned Lord says “years”. It will take some time, but the alternative is to legislate on a piecemeal basis. I do not want to explain to a victim of FGM who is named why she is being treated less favourably than a victim of any other offence. We want consistency in this area. If we have a Law Commission to ensure that we look at the law holistically in an appropriate way, it will deliver a coherent approach to penalties for all offences involving breach of reporting restrictions.
Moving to Amendments 78C and 78D, the unduly lenient sentence scheme allows anyone—the CPS, victims, witnesses, or members of the public—to ask for certain sentences imposed by the Crown Court to be considered by the law officers, where that sentence is felt to be unduly lenient. I underline that point. Anybody can ask the law officers to consider referring the sentence to the Court of Appeal. I am afraid that a number of my colleagues at the Bar have taken the view that it is somewhat improper for Members of Parliament to invite the Attorney-General so to consider. I underline again that anybody can ask the Attorney-General to consider referring a sentence to the Court of Appeal. That is how the scheme operates. It is then for the law officers to decide whether to refer the case to the Court of Appeal, which may then decide to increase the sentence.
Amendment 78C places a duty on the Secretary of State to nominate a government department to inform victims of the details of the scheme. We recognise the importance of victims being aware of the scheme and being clear on how it operates. However, the duty is not necessary. The revised Code of Practice for Victims of Crime—the victims’ code—which came into force on 1 April, already provides victims with the right to be informed about the existence of the scheme. Furthermore, it includes a requirement for the witness care unit to inform victims about the scheme following sentencing. Therefore, that provision is unnecessary.
Turning to the timing point, an application by the law officers to the Court of Appeal must be made within 28 days of sentencing. The absolute time limit of 28 days reflects the importance of finality in sentencing. That point of finality in litigation is sometimes marked by a Latin tag, which I will not trouble your Lordships with, but it is particularly important when it comes to sentencing. While we will keep the operation of the scheme under consideration, including the time limit, there are no current plans to remove the certainty of an absolute time limit in any circumstances.
Amendment 78E would expand the circumstances where a whole life order would be the starting point to include cases of murder involving the abduction and sexual assault of a single person. I explained in Committee that of course we sympathise enormously with the concerns that underpin this amendment, but we do not agree with its purpose. Our current sentencing framework can and does respond to these horrendous cases. The courts can, and do, impose lengthy sentences that fully reflect the gravity of this type of offending and the appalling harm that it causes to families of victims and the community generally.
All those convicted of murder already receive a mandatory life sentence. The murder of a single victim involving sexual conduct has a starting point, when determining the minimum time to be served in prison—the tariff, as it is sometimes called—of 30 years. This can be increased depending on the circumstances of the individual case and the presence of aggravating factors. Additionally, as was demonstrated by the sentencing of Wayne Couzens for the horrific murder of Sarah Everard, there is an existing discretion to impose a whole life order if the seriousness of the individual case is exceptionally high, which Wayne Couzens received.
Amendment 82B, tabled by the noble Baroness, Lady Brinton, seeks to prevent the release on home detention curfew of any offender who has previously breached a protective order and who has been convicted of offences relating to stalking, harassment, coercive control, or domestic abuse. I set out in Committee the importance that we attach to this area. The noble Baroness was quite right to refer to my comments made in another part of the Palace at an event organised by the right reverend Prelate the Bishop of Gloucester, and I stand by them.
I have asked officials to consider the risks presented by such offenders, to ensure that all appropriate safeguards are in place to protect victims and the public and to ensure that unsuitable offenders are not released on home detention curfew. Once that review is complete, I will update the noble Baroness and the House. Despite the fact that we were not able to arrange a meeting in the last 48 hours, I or the Minister for Prisons will be happy to meet with her. I do not believe that legislating on this matter is proportionate or effective in safeguarding victims. The safeguarding can be achieved via the policy framework, without the need for any change in statute.
We are committed to ensuring that serious sexual and violent offenders serve sentences that reflect the severity of their crimes. For those reasons, I urge noble Lords not to press these amendments.
Police, Crime, Sentencing and Courts Bill
Lord Falconer of Thoroton ExcerptsWednesday 8th December 2021
(2 years, 4 months ago)
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Lord Wolfson of Tredegar (Con)
My Lords, I am not going to try to adjudicate on that point, which seems to be a point of procedure, better left to those who know more about it than I do. I have listened very carefully to the debate, and points of principle have been raised. With genuine respect, however, I believe that I have set out the Government’s position on those points of principle. Kicking the can down the road—attractive as that can sometimes appear—will not achieve anything substantive.
Lord Falconer of Thoroton (Lab)
This is pretty shocking. There is a lot of support for the principle that the amendment could be so much better if it could be debated. I completely understand the noble Lord’s embarrassment. He does not want to go back to the Ministry of Justice and not have the amendment, but if you want good law, recognising that the Government want this, there is so much that could be discussed to make this provision better.
The noble Baroness, Lady Williams, agreed without any pressure on two things in relation to the additional protest measures. First, she agreed that they should come at the end of Committee and secondly, she did not move them in Committee because of the exact problem that has arisen in this case. She indicates the right way forward. We would greatly appreciate in the House if the noble Lord would show us the same courtesy that the noble Baroness, Lady Williams, showed us.
Lord Wolfson of Tredegar
I am very happy to be accused of all sorts of things, but I hope that nobody in this House believes that I act either towards it or towards any of its Members with discourtesy. We may have disagreements, but they are always, I hope, courteous. I am not in the least embarrassed about going back to the Ministry of Justice with or without anything. My task, as I see it, is to set out the Government’s position in this House and then the House has to take a view.
With great respect to the noble and learned Lord, I do not accept that this is a question of tweaking the provision or making it better. The points that have been put to me are really points of principle—people do not agree with this at all, while saying, “Of course we agree.” The matter ought to be presented to the House and dealt with by it today.
Offenders: Pregnant Women
Lord Falconer of Thoroton Excerpts(2 years, 5 months ago)
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Lord Wolfson of Tredegar (Con)
My Lords, there is rather a lot in that. As far as the ombudsman is concerned, we and the Prison and Probation Service have accepted and completed the implementation of the recommendations. We have set up the board, which I mentioned in response to the noble Lord, Lord Hunt of Kings Heath. We have put a lot of money into this area. I am not convinced that setting up another inspection body is needed; we already have a very robust inspection regime for prisons, with a specific focus on prisoners with additional vulnerabilities, including pregnancy.
Lord Falconer of Thoroton (Lab)
This is, as everybody who has read the report knows, a horrific case. I want to raise two issues. First, the Minister rightly said that the statutory position at the moment is that the same standard of care should be available in prison as is available in the community. The ombudsman’s report said that the midwife-led community approach is wholly inappropriate for a prison, where everybody should be treated as high-risk. Does the Minister not agree that the time is now right for a statutory duty to be placed on the prison authorities to ensure that the care provided is
“appropriate to a custodial setting”?
Secondly, and separately, eight prison officers came near to Ms A during the course of that horrific night and none of them spotted what was going on. Can the Minister tell us how many prison officers on duty that night had more than two years’ experience, and how many had more than five years’ experience? Our concern is that there is a lack of experience in the Prison Service. I gave the Minister some notice of this question, but not enough, probably.
Lord Wolfson of Tredegar (Con)
My Lords, I am afraid that I am not convinced that a new statutory duty is the way to resolve this. I think the statutory framework is sufficient. What we need to ensure is that the duties are actually implemented on the ground in prisons.
So far as the staff on duty are concerned, the noble and learned Lord did give me a little bit of notice for this, as he said, but not very much. I do not have the information to hand, but the ombudsman looked at this incident in great detail and did not raise as an issue either the sufficiency of the staffing levels or the experience of the staff on duty.
Police, Crime, Sentencing and Courts Bill
Lord Falconer of Thoroton ExcerptsWednesday 17th November 2021
(2 years, 5 months ago)
Lords ChamberRead Full debate Police, Crime, Sentencing and Courts Act 2022 View all Police, Crime, Sentencing and Courts Act 2022 Debates Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: HL Bill 40-IX Ninth marshalled list for Committee - (15 Nov 2021)
“(8) After section 102, insert—“102A Centralised monitoring of court decisions to impose youth custodial remand (1) Within six months from the day on which the Police, Crime, Sentencing and Courts Act 2021 is passed, the Secretary of State must nominate a body to collect, analyse and publish data on the decision-making process of courts when sentencing a child to custodial remand.(2) “Decision making process” refers to the consideration and application of the required Conditions for the custodial remand of children by the court, as set out in the Legal Aid, Sentencing and Punishment of Offenders Act 2012.(3) A report on the findings must be laid before Parliament and published on an annual basis.(4) The first report must be published and laid before Parliament no later than 18 months from the day on which the Police, Crime, Sentencing and Courts Act 2021 is passed.””Member’s explanatory statement
This amendment seeks to introduce centralised monitoring of the youth remand decision-making process.
Lord Falconer of Thoroton (Lab)
Before we come to this important group of amendments, I have one housekeeping matter. As noble Lords are aware, the amendments have been marshalled according to the instruction of 13 October 2021, and that puts Clauses 55 to 61 towards the end of our Committee stage. If noble Lords who have the ninth Marshalled List of amendments go to Amendment 319A, they will see a number of pages of government amendments which, in effect, introduce a range of new offences and new powers for the state. In effect, they introduce the offences of locking on and of being equipped for locking on, and they change the law on wilful obstruction of the highway and on obstruction of major transport works.
This is not for the noble Lord, Lord Wolfson, but it would be convenient if the Government, at some stage during Committee, indicated how they intend to deal with the pages and pages of amendments. A whole new structure of offences is being introduced in Committee in the Lords without the stages in the Commons having been gone through and without a Second Reading on those issues. This is not for now, because I have given no warning of it, but it will take as long as it takes to get an answer as to whether special provisions will be made, whether the Government intend to stop the Committee and have a Second Reading, or whatever. Whatever the plans are in relation to this, we on this side of the House—indeed, I think the whole House—would like to know, so we can think about how we deal with it, because it is an important issue.
The group we are about to deal with concerns youth justice. We are into a new part of the Bill and part of this group will raise issues about the age of criminal responsibility. The only reason I am starting is because my Amendment 219B requires the centralised monitoring of court decisions to impose youth custodial remands. As noble Lords will know, a whole new regime of remanding people aged 10 to 17 in custody was introduced by the LASPO Act in 2012. It gives rise to very practical difficulties throughout the country in relation to finding appropriate places to remand people of that age in what is, in effect, detention of some sort. There is no centralised monitoring.
In responding to this amendment, will the Minister indicate what the current arrangements are for monitoring this nationally, and what is the Government’s proposal, if any, for making sure that national statistics are regularly available? Without such statistics, it is difficult to have an informed debate about what additional provision is required, save to say that the experience on the ground is that there needs to be more proper provision over a range of options. I beg to move.
Baroness Butler-Sloss (CB)
My Lords, I shall speak to Amendment 220. I feel very strongly about the issue of the age of responsibility of children. I first raised it in this House in 2006, when a Labour Government dismissed it out of hand. I was for 35 years a family judge dealing with children; I happen also to have brought up three children, and I care about children. In 2006, what is now known about young children and the maturation of their brains was not particularly well known, but a great deal of evidence has now come forward. It was looked at by the Select Committee on Justice in the other place in November of last year.
Psychiatrists gave evidence, in particular about the fact that young children aged 10—and, for goodness’ sake, a child of 10 is young—do not really mature until considerably later. We have only to look at what is happening across Europe as an example. Scotland has raised the age to 12. The age of responsibility across Europe is either 12 or, in more places, 14. We remain at 10. I think it is probably because successive Governments, on both sides of this House, are afraid of what the public will say.
Lord German (LD)
My Lords, I too have added my name to Amendment 221A, which would make youth diversion schemes statutory. I will say a few words about that, as well as about Amendment 219B in the name of the noble and learned Lord, Lord Falconer.
Formal criminal justice system processing—for example, through prosecutions or out-of-court disposals—makes children more, not less, likely to offend. The further a child is processed inside the formal criminal justice system, the greater the likelihood of reoffending, especially for lower-risk children. There is strong evidence both nationally and internationally that youth diversion can reduce crime, cut costs and create better outcomes for children. However, it is currently a non-statutory function for youth offending teams.
We know that practice varies considerably between areas and that some areas have no diversion scheme at all. The 2019 mapping exercise carried out by the Centre for Justice Innovation found that, of the 115 youth offending teams responding, 19 said that they did not have a point of arrest diversion scheme. There is a wealth of great work going on across the country, but there is a dearth of best-practice exchange. I believe that it is quite correct that there should be the principle of local decision-making because that can bring together the wide range of partnerships needed to make any programme work. Keeping it local means that the team can do its work best.
However, the picture is of a set of procedures that are variably practised—some with both breadth and depth, and some without one or other of those attributes. Locally, practitioners are dedicated and have built up some very impressive practices, but in many areas the eligibility criteria are unduly strict, the referral processes slow and the interventions too lengthy. Youth offending teams are not to blame for the variation we see. Because it is non-statutory, we lack robust data and data analysis. Many youth offending teams struggle to keep their services within budget, and staff and funding may not always keep pace with the increased workload, especially when it is non-statutory.
We need a better understanding of what is happening on the ground, where the gaps in provision are, how good schemes can be supported and how good practice can be passed on. The way to achieve this is to make the service statutory and to support the work with funding as necessary. Amendment 219B, in the name of the noble and learned Lord, Lord Falconer of Thoroton, has much the same knowledge request. Basically, you cannot know what you do not know, and if you do not know what the figures and statistics are, you will be unable to take action accordingly. Understanding this better matters both locally and nationally. I believe that making this statutory would ensure that the good practice which abounds in our country is given the opportunity to grow even more, so that we can divert as many young people as possible from the criminal justice procedure. But to do that, we need certainty, and this amendment provides it.
Lord Falconer of Thoroton (Lab)
My Lords, I join noble Lords in wishing the noble Lord, Lord Dholakia, well and a fast recovery. He has played an important part over many years in the debate on child responsibility and the criminal responsibility age. We miss him today in this debate.
I also express my unconditional support for Amendment 221A in the names of the noble Lords, Lord Marks and Lord German, which would put pre-charge diversion schemes on a statutory basis. As the noble Lord, Lord German, said, these good schemes are present in many places; it would be a good thing if they were put on a statutory basis.
I agree with many of the points made by the noble Baroness, Lady Sater, on Amendment 221B. I will be interested to hear what the noble Lord, Lord Wolfson, says about it. I do not know whether a review of the whole sentencing position in relation to the youth court is the right answer—let us see what the Minister has to say—but the noble Baroness’s points were powerful and important, and the Government need to deal with them.
The main issue in the debate on this group is the age of criminal responsibility. The case for increasing it has been made overwhelmingly and I agree with it, particularly the point about evidence on the maturation of children and whether they should be viewed in the same category. I strongly support the view that that would increase reoffending because it would make a child see himself or herself as a criminal, which is bad for society. I was also influenced by the point that we are an outlier and that what we do with children, whether in the care system or in the criminal justice system, should not be different.
I have one big concern, however. I do not accept the characterisations of the noble Lord, Lord Marks, and the noble and learned Baroness, Lady Butler-Sloss. Both referred to the incredibly tragic Bulger case, saying that you should not give way to pressure because it does not show leadership when dealing with a case like that; the noble and learned Baroness referred to the tabloids. What happened in the Bulger case was awful and had an utterly legitimate effect on the Merseyside community. To try to dismiss that as something “got up by the tabloids” is, in my respectful view, to misunderstand utterly the significance of the event. Also, if you speak to people who were involved in the Bulger trial, you realise that it was an incredibly important trial. It lasted a month and brought to the fore a whole range of things that were troubling the community, and it also identified what had happened.
For justice to work in our country, it must to some extent reflect reasonable views about what should happen. I do not say that as a result of the Bulger trial, the age of criminal responsibility should be 10. But in considering how to deal with the age of criminal responsibility, which may well go up to 12—the evidence on that is overwhelming—you have to have a justice system that functions properly to deal with that sort of case. Otherwise, the community reacts not because they are inflamed by the tabloids, but honestly and in a normal way to what has happened.
Jamie Bulger’s parents, quite legitimately, made public what had happened and the community knew what had happened. The justice system must be able to deal with that, perhaps through some sort of intermediate proceedings; however, we do need to address this. To those noble Lords, such as the noble and learned Lord, Lord Brown, who say that it casts a long shadow, I say this: it does and it is still there, and it must be dealt with.
Subject to that, I am in favour of increasing the age of criminal responsibility from 10 to something higher. I am not as dismissive as other noble Lords of having some sort of review to deal with this. It would need to look at the issues raised by the noble Lord, Lord Hogan-Howe, which are important. Also, if you are taking 10 to 12 year-olds out of the criminal justice system, it would need to consider how to deal with the issues raised by the Bulger trial, perhaps not through criminalising but through some other process.
Baroness Butler-Sloss (CB)
My Lords, the noble and learned Lord misunderstood, if I may say so, what I was saying. Of course one had to treat the Bulger case with great care. I had a part in giving what were by then two young men lifetime anonymity, so I had to learn a great deal about what went on. Of course they had to be dealt with severely but what should happen in the future, in another case, should be, under the Children Act, secure accommodation, where they could have been kept as long as if they had been criminalised. I was merely using that appalling Bulger case as an example of how 84,000 people thought that they should stay in prison for ever, until they died. My point was not to treat the Bulger case as less serious; it was unbelievably serious. As the noble and learned Lord, Lord Brown of Eaton-under-Heywood, said, it has cast a long shadow, which continues today. The Bulger case was wrong in that the children should not have been tried in an adult criminal court. It was purely and simply to show the punitive element in this country, which had a marked effect on the noble and learned Lord’s Government. When I raised this issue in 2006, I was dismissed summarily, it being seen as quite unsuitable to raise the age from 10 to 12. That Government were without the evidence that there is today, but, for goodness’ sake, they also took the view that Lucy Frazer took to Sir Robert Neill’s committee.
Lord Falconer of Thoroton (Lab)
My Lords, that was my fault. I was not for one moment suggesting that the noble and learned Baroness, Lady Butler-Sloss, was saying that the Bulger case did not require enormously sensitive handling, nor that she was in any way underestimating the seriousness of it. I was seeking to say that the fact that there were tabloid campaigns about it and that people were very concerned about it was absolutely legitimate. What they were asking for was not necessarily legitimate, but there was very real concern. Obviously, there must be anonymity, but if the matter is dealt with entirely in the care system, without any public element of how the law is dealing with it, then the community never gets satisfaction in relation to what is happening. By satisfaction, I mean that there must be some recognition within the justice system of the appalling nature of what has happened.
Lord Carlile of Berriew (CB)
Surely the noble and learned Lord is not saying that the public aspect of this, which he describes rightly, must be dealt with by a criminal trial. Numerous other mechanisms can be used. An inquiry, for example, can ventilate all the public factors that need to be discussed without the artifices of a criminal trial for 10 year-olds.
Lord Falconer of Thoroton (Lab)
I agree that it does not need to be dealt with in a criminal trial, but there needs to be some process. Before one increases the age of criminal responsibility from 10 to 12, which we should do, this must be looked at. This is why I rather favour the second amendment, tabled by the noble Baroness, Lady Chakrabarti, which is a review of this, because broadly the case is made in relation to it. It probably should not be something ad hoc, as is the nature of an inquiry, but it should have some recognition that cases such as the Bulger case, which have a significant effect on not only the local but the national community, must be dealt with in a special way.
Lord Marks of Henley-on-Thames (LD)
My Lords, I associate myself with everything that the noble and learned Baroness, Lady Butler-Sloss, and the noble Lord, Lord Carlile, have said. I am not sure that the noble and learned Lord, Lord Falconer, has accepted my point, which to a certain extent is the same as that made by the noble and learned Baroness, Lady Butler-Sloss, that we do not wish to reduce or minimise the importance of the Bulger case. My point is that, where publicity is as extensive as it was following that case and where the publicity seems to be directed as in the example that the noble and learned Baroness gave, producing a result where children under the age of 12 would be sent to prison for life and be treated by ordinary criminal process, which is entirely unsuitable for children of that age, the Government must show moral leadership and change the position based on the evidence, rather than taking a political view that it might be easier to duck the question when the evidence is so clear. That is the point that I invite the noble and learned Lord to take. I understand that he supports the increase in the age of criminal responsibility, but I do not hear him saying that the Government must show the leadership to do that in spite of publicity to the contrary.
Lord Falconer of Thoroton (Lab)
I accept that the age of criminal responsibility should go up. I strongly endorse what everybody is saying about the Government and, in particular, I endorse what the noble Lord, Lord Marks, is saying about the Government showing leadership in this respect. I also endorse what he says about the Government needing to show leadership in standing out against campaigns that seek to criminalise people under 10 or, in the campaign that he was referring to, between 10 and 12. My point, which I keep coming back to, is that this Committee should not underestimate, or treat as simply got-up, campaigns concerning the justice system, which in some ways expands beyond the criminal justice system, in cases such as the Bulger case.
The Parliamentary Under-Secretary of State, Ministry of Justice (Lord Wolfson of Tredegar) (Con)
My Lords, these amendments concern youth justice matters. I will address each of them in turn.
Amendment 219B, tabled by the noble and learned Lord, Lord Falconer of Thoroton, would require the centralised monitoring of youth remand decisions made by the court and the laying of a report of findings before Parliament on an annual basis. I understand that the amendment’s purpose is to improve the scrutiny and monitoring of youth remand trends. However, that is precisely what our measures seek to achieve, as I will explain, while leaving the detail of operational processes to the various operational bodies. We think that this is the better way to do it.
The new measures will require the court to be explicit that they have considered not only the two sets of conditions but the interests and welfare of the child. Furthermore, while at the moment the court only has to explain the reason for remand in open court and specify it in the warrant and in the register, our new subsection (5)(za) requires that the court also gives the reasons in writing to the child, their legal representative and the youth offending team, which will enhance the ability of those justice partners to monitor the reasons for custodial remand.
Turning to the specific question put to me by the noble and learned Lord, Lord Falconer, on what arrangements are in place for monitoring courts’ decisions and whether statistics are readily available, as I have said, courts already state in open court their reasons for remanding the child to youth detention accommodation. That information is included on the warrant of commitment and the court register. Pronouncement cards from the Sentencing Council provide guidance to the judiciary on how to do that.
As for statistics, my department already publishes annual statistics on court outcomes on youth remand. The population on remand in the youth custody estate is published monthly. We have new IT systems being developed and, in light of those new systems, we will reconsider the best way to collect, analyse and, so far as is appropriate, publish the information that courts will now be required to provide in writing. However, it is best to leave that granular level of operational process to the entities doing the work on the ground, rather than to prescribe it in statute. Our intentions are certainly aligned. I am sure that the noble and learned Lord will appreciate the need for pragmatism in how best to achieve that.
Amendments 220, 221 and 221ZA seek to raise the age of criminal responsibility from 10 to 12 and to require the Secretary of State to complete a review of the age of criminal responsibility including, as my noble friend Lord Sandhurst explained, an assessment of the protected characteristics of children in detention, under the Equality Act. I listened very carefully to my noble friend and, I think it is fair to say, I set out the position on that in some detail on Monday. With respect, I am not going over that again. I hope I made the Government’s position clear on Monday.
I am grateful to the noble and learned Baroness, Lady Butler-Sloss for raising Amendment 220. I am aware, as she said, that she has brought this to the attention of the House on a number of previous occasions. As far as open ears are concerned, I assure the noble and learned Baroness that my ears are always open. I listened carefully to her speech and the speeches of the noble and learned Lords, Lord Brown of Eaton-under-Heywood and Lord Thomas of Cwmgiedd. I join other noble Lords in wishing the noble Lord, Lord Dholakia, who is absent, a speedy and full recovery.
I will set out the Government’s position on this issue. We believe that setting the age of criminal responsibility at 10 provides flexibility in dealing with children, allowing early intervention with the aim of preventing subsequent offending. Our primary objective when it comes to children, as I have made clear on previous groups, is to prevent children offending in the first place. Where there is offending, we need to provide the police and courts with effective tools to tackle it. Critically, having the age of criminal responsibility at 10 does not preclude other types of intervention—for example, diversion from the criminal justice system—where it would be a more suitable and proportionate response. To that extent, I agree with the noble Lord, Lord German, that diversion from the criminal justice system should be at the heart of how we approach children in the vast majority of cases.
When considering the most appropriate and proportionate response to offending by a young person, the maturity and needs of a child, as well as their age—to make the obvious point, a 12 year-old is not a 17 year-old—are always considered. We also consider protected characteristics in our work, as per the public sector equalities duty. This is borne out in practice. Most children aged 10 to 14 are diverted from the formal criminal justice system or receive an out of court disposal. The number of children aged between 10 and 12 years in the youth justice system has fallen dramatically since 2009, and we are keen for that downward trend to continue. Since 2010, which is more than a decade ago, no 10 or 11 year-olds have received a custodial sentence.
It is, however, important—to this extent, I adopt the remarks of the noble and learned Lord, Lord Falconer of Thoroton—to ensure that, when appropriate, serious offences can be prosecuted and the public protected. The horrific Bulger case has been mentioned by a number of noble Lords and I remember it clearly. I grew up in Liverpool and it shocked my native city to the core. Whether we are talking about the Bulger case or any case involving children, even the most serious, there is a distinct and separate sentencing framework for children aged 10 to 17, which recognises that they have their own specific needs that require a different and more tailored approach. That looks at age, so someone aged 13 is treated differently from someone aged 17 and a half. As noted by the noble Lord, Lord Carlile of Berriew, that pervades the approach of the criminal justice system to children. It is not a matter just of clothing, words or wigs; there is a fundamentally different approach tailored to dealing with children.
Lord Wolfson of Tredegar (Con)
I am grateful to my noble friend for the question, and for taking the time to discuss it with me in the past. Because the offender is 18 at the time of the case and of the sentence, the system has to respond to the fact that they are now adult. It may well be, in some cases, inappropriate to lump that adult in with children. Some sentences and responses that the youth court can give to children would be inappropriate for someone who is now an adult of 18. I suggest that the fact that the court starts with the sentence that would have been appropriate at the time of the offence, and then takes into account all other relevant factors, means that we deal with these cases suitably, bearing in mind the time gap before sentencing during which the offender has reached legal maturity.
Lord Falconer of Thoroton (Lab)
My amendment was the monitoring amendment and was not the heat and burden of this debate. I beg leave to withdraw the amendment.
Lord Wolfson of Tredegar (Con)
My Lords, Amendments 222 and 223, which I move today on behalf of the Government, are technical amendments to Clause 139, which clarifies that 16 to 19 academies can provide secure accommodation and allows for the establishment and running of secure 16 to 19 academies to be treated as a charitable purpose. The amendments, as can be seen from the Marshalled List, are a technical tweak, and will have no practical impact on the children or young people placed in these secure academies, or on how the academies are run. They are simply there to ensure consistency with other education legislation. “Pupil” is defined in the education Acts to refer to those attending a school; 16 to 19 academies are not, in the legal sense, schools, and “student” is the standard term used in the context of such academies.
I am conscious that this group also contains amendments from the noble Lord, Lord German, on the organisations which can establish a secure school, and from the noble Lord, Lord Ponsonby of Shulbrede, on local authorities’ secure accommodation provisions. I propose, if the Committee finds it helpful, to pause my remarks now, having introduced my amendments, and allow other noble Lords to speak to those amendments, and then I will respond. I see some nodding heads. If that meets with the Committee’s approval, I will sit down, having formally moved my amendments.
Lord Falconer of Thoroton (Lab)
I am going to talk about Amendment 223B onwards; Amendment 223A comes first, but I am happy to start with those.
Amendments 223B to 223F have been suggested by the Mayor of London’s office to place a new duty on relevant local authorities in England to convene a new secure accommodation local partnership board that would assess the need for secure accommodation and develop a strategy for tackling any shortfall in secure accommodation. There is, as everybody knows, a significant lack of secure beds in London for young people who come into contact with the criminal justice system. This results in them being dispersed across the country, far away from their families and the professionals committed to their care and well-being.
While this is a particular concern in London, it is also the case in other parts of the country. There are only 15 secure children’s homes in England and Wales, and none in the London area. The recent decision of the Ministry of Justice to remove all children from a key institution detaining young offenders in the United Kingdom—namely, the Rainsbrook Secure Training Centre—meant that more London children were sent away from where they lived. They are being provided with neither the care nor the welfare that they need as vulnerable young people. The recent critical inspection report on the Oakhill Secure Training Centre, alongside the decision to close Rainsbrook, also raises worrying concerns about the future of this type of facility.
It is crucial that such provision is available for those who might be placed there on welfare grounds and for those within the criminal justice system. Amendments 223B, 223C, 223D, 223E and 223F, in the name of my noble friend Lord Ponsonby, give effect to this proposal.
Lord German (LD)
My Lords, I apologise for being slightly out of turn; I will speak to Amendment 223A in my name and that of my noble friend Lord Marks, on secure accommodation and local authority provision. In December 2016, the Government committed to phase out juvenile young offender institutions and secure training centres and to replace them with a network of secure schools. These have since been renamed secure 16 to 19 academies. Legally, they will be approved by the Secretary of State for Education as secure accommodation and are defined in the Bill as “secure children’s homes”.
Lord Wolfson of Tredegar (Con)
It might well be that it operates in a slightly circuitous way. I have not looked at that section myself. Let me look at it after I sit down. If I need to upgrade, so to speak, what I have said, I will write to the noble Lord, because I do not want to understate the position if I have inadvertently done so. I will look at the section later—I hope, today.
The noble Lord, Lord Carlile of Berriew, said that it is not so much about the name of the institution as about what goes on within it. On that, I strongly agree, as I do on the importance of education in this context, especially in the example given by the noble Lord, of somebody who it appears had not had the benefit of any education before. That is therefore especially appropriate.
At the same time as what I said earlier about local authorities, it is right to say that local authorities have a statutory duty to safeguard and promote the welfare of children in their local area. We would therefore expect secure school providers to work closely with local authorities in relation to the well-being of children in their care. It is important to note also that secure children’s homes, which can be run by local authorities, remain an important part of the current and future youth custodial estate.
Let me deal particularly with the profit motive, which seemed to lie at the heart of a number of contributions to this debate. As academies, secure 16 to 19 academies will be state funded with the core charitable purpose of providing education for the public benefit. All academies, including 16 to 19 academies, are part of an academy trust, which is a not-for-profit charitable entity and, as such, cannot make a profit—or, to be more precise, any profits which are made have to be ploughed back into the purpose of the trust. Secure schools will always be run by non-profit organisations. I therefore hope, in light of what I have said, that it will be appreciated that the second part of this amendment, proposed new subsection (9), preventing profit corporations establishing or maintaining these academies, is unnecessary.
On Amendments 223B to 223F, presented to the Committee by the noble and learned Lord, Lord Falconer of Thoroton, I have assumed that these amendments are intended to apply to children looked after by local authorities, but it is worth noting that secure accommodation is used more widely, including for children who are detained by the police and for children who are sentenced or remanded as part of criminal court proceedings.
Local authorities have a duty under the Children Act 1989 to ensure sufficient appropriate accommodation for all the children they look after. I recognise that some local authorities have found it difficult accessing in practice the most appropriate accommodation, particularly for children with the most complex needs. The lack of available and suitable placements for those most vulnerable children is extremely concerning and is something which I and the Government take seriously. We are taking significant steps to support local authorities to fulfil their statutory duties. A programme of work is starting this year to support local authorities to maintain existing capacity and expand provision in secure children’s homes. That means that children can live closer to their previous home and in provision which best meets their needs.
Let me deal specifically with Rainsbrook, to which the noble and learned Lord referred. The situation there is completely unacceptable. We acted decisively to empty the site. All children have now been removed from Rainsbrook. We transferred them to alternative appropriate accommodation within the youth secure estate. We are working through the contractual options with MTC on the future of that contract. When we have completed that work, we will make a further announcement.
In response to the recent concerns about performance at Oakhill, the former Lord Chancellor commissioned Ofsted to undertake a monitoring visit. That took place on 13 September. The report was published within a month, on 11 October, and noted concerns that inspectors had had. Having subsequently attended the centre for a full annual inspection at the beginning of October, Ofsted, together with the Chief Inspector of Prisons and the Care Quality Commission, invoked the urgent notification process at Oakhill on 14 October; that is, within the last month. On the 11th of this month, a response was published to Ofsted and the accompanying action plan, and we are now considering plans to ensure sufficient accommodation for those children at the site.
The spending review announced another £259 million to continue the programme to maintain capacity, expand provision and support local authorities in this regard. There is also the independently-led care review to support improvements to children’s social care and ensure that good practice is applied to every child. That review is expected to be published in the spring. I do not want to pre-empt it now, but we are alive to the particular needs of the children in this cohort.
I have received a note—I will keep my word to look at this matter again later—which indicates that the noble Lord, Lord Marks, may have erred. It is such an astonishing proposition that I will check it for myself later. I am told that he may have nodded in the sense that Section 6 relates to schools being converted to academies. It has no impact on local authorities entering into funding agreements with the Secretary of State. Whether the noble Lord has misunderstood, or whether the note I have been provided with is somewhat cryptic, I will keep my promise to look at it myself later in the day.
Lord Falconer of Thoroton (Lab)
The Minister mentioned £259 million in relation to the secure training programme. I may have not quite heard what he said. Is that new money or is it just maintaining the existing amount of money per annum?
Lord Wolfson of Tredegar (Con)
My understanding is that the £259 million was announced in the spending review to continue the programme to maintain and expand capacity in both secure and open residential children’s homes. I am not able to say any more than that; it might be a question for my Treasury colleagues to clarify. However, I am also able to clarify it to the noble and learned Lord. Perhaps I can drop him a line on that specific point.
Police, Crime, Sentencing and Courts Bill
Lord Falconer of Thoroton ExcerptsMonday 15th November 2021
(2 years, 5 months ago)
Lords ChamberRead Full debate Police, Crime, Sentencing and Courts Act 2022 View all Police, Crime, Sentencing and Courts Act 2022 Debates Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: HL Bill 40-IX Ninth marshalled list for Committee - (15 Nov 2021)
Lord Falconer of Thoroton (Lab)
I commend the speech of my noble friend Lord Blunkett. I agree with every single word of it. I am as culpable as he is in relation to this. I was a junior Minister in the Home Office at the time, and the Lord Chancellor did not foresee the consequences of what the noble and learned Lord, Lord Brown, who I am glad to see in his place, described as
“the greatest single stain on our criminal justice system.”
Our purpose on these Benches is to participate in a coalition of people with a view to persuading the Government to make sensible changes to the regime to get rid of this injustice that the noble and learned Lord, Lord Brown, and my noble friend Lord Blunkett, have referred to. The amendments before the Committee today provide a number of sensible options, but we put them forward, or support them as part of that coalition, with a view to reaching agreement with the Government to do something about them.
I may try the patience of the Committee too much, but I will speak to the amendment to which my name is put, and then I will speak again indicating the Labour Party’s position on the whole range of amendments. The amendments I speak to at the moment, therefore, are Amendments 208A and 208C, which deal with the position in relation to those IPP prisoners who have been released, and what the Government should be doing about them. I add my thanks to those of my noble friend Lord Blunkett to the Prison Reform Trust, which has provided an incredibly valuable briefing to the whole House. I also thank the Howard League for Penal Reform, which has done the same; Frances Crook, who has, over a very long period, provided real guidance to policymakers on these issues; and UNGRIPP, a group of friends and prisoners who have suffered as a result of this regime.
I turn now to the probing Amendments 208A and 208C, which are in my name and that of my noble friend Lord Blunkett. He gave the figures. The basic proposition is that to reduce reoffending, energy and resources need to be devoted to ensuring that IPP prisoners who secure their release are able to live successful lives thereafter, avoiding recall to prison. That is what is best for society and for them. Without this, the current incidence of recall will soon, as my noble friend said, lead to a situation in which the number of people serving the IPP sentence may start to grow rather than decrease. From 30 September 2015 to 30 June 2021, the number of never-released IPP prisoners fell by 61%, from 4,431 to 1,722.
However, at the latest date for which I have figures, which is June 2021, there were 1,332 people back in prison having previously been released—more than double the number of five years ago. Recalled IPP prisoners who were re-released during 2020 have spent an average of 20 further months in prison before re-release. The hopelessness and despair that engenders is incredibly effectively described in the Prison Reform Trust’s report No Life, No Freedom, No Future. Its findings are based on data provided from Her Majesty’s Prison and Probation Service on recalls and re-releases and on interviews with 31 recalled IPP prisoners. A briefing from the Prison Reform Trust said:
“The report found that IPP prisoners’ life chances and mental health were both fundamentally damaged by the uniquely unjust sentence they are serving. Arrangements for their support in the community after release did not match the depth of the challenge they faced in rebuilding their lives outside prison. Risk management plans drawn up before release all too often turned out to be unrealistic or inadequately supported after release, leading to recall sometimes within a few weeks of leaving prison, and for some people on multiple occasions. The process of recall also generated strong perceptions of unfairness.
At its worst, the report found that the system … recalled people to indefinite custody”
for what appeared comparatively trivial matters,
“defined needs (e.g. mental health) as risk factors … ignored the impact of the unfairness of the sentence on wellbeing and behaviour … could not provide the necessary support; and … provided no purpose to time back in custody or a plan for re-release.”
Not all IPP recalled prisoners endured that, but it was common enough to say that the system needed looking at overall. As I indicated, many IPP interviewees suggested that the recall decisions were taken too lightly. At most, 23 of the 31 participants had not been convicted of a subsequent offence when they were recalled.
What to do about it? To prevent the current situation continuing—and I am dealing only with people being recalled—there are basically eight things to do. First, the process for licence review should be automated, and the qualifying period reduced from 10 years to five. That is in line with Amendment 208D. Secondly, the test for recall should be changed. It should be that there is imminent risk of the person committing an offence causing serious harm, and that that risk cannot be managed in the community. For other things, such as not staying at the address named in the conditions, other measures should be thought about—for example, adjusted reporting requirements, use of electronic tags and curfews. Thirdly, where a person has been charged with a further offence, the normal criminal justice processes should apply, with a court considering whether remand in custody is appropriate for the new alleged offence. Fourthly, if a person is convicted of a further offence, the court should decide what happens to that person, not an official. Fifthly, if a person is convicted of a further offence and the court decides to recall them under the provisions of their IPP sentence, the Parole Board should be required to consider release alongside any considerations of discretionary release that attach to the new sentence—for example, an extended determinate sentence. Sixthly, IPP prisoners who have been recalled, not having received a new custodial sentence and not being re-released on the papers by the Parole Board, should have the right to an oral hearing if they so wish. Seventhly, if the Parole Board panel upholds the decision to recall, it must set a fixed date for a further review. Eighthly, all recalled prisoners should be entitled to annual reviews of their continued detention at an oral Parole Board hearing with free legal representation.
We, on this side of the Committee, are very much aware that proper measures need to be in place to provide public protection, but that has to be balanced against a system where once people on IPP are released, they are not recalled except when something significant has happened and there is proper and serious support. I commend these amendments to the Committee.
Lord Brown of Eaton-under-Heywood (CB)
My Lords, first, I commend, as others have, all those who have, in recent times, been building the road on which we are set today—none more so than the noble Lord, Lord Blunkett. For many years, I have urged, with no success thus far but with great hopes today, the reform of what remains of the IPP sentencing regime. It is in no way hyperbole to describe it, as I already have, as the greatest single stain on the justice system. Indeed, it is a deeper, growing stain because of the situation with the recalls.
Lord Falconer of Thoroton (Lab)
My Lords, I have already spoken once. I speak very briefly to say two things. First, what an impressive debate this has been. I draw attention in particular to the speeches of my noble friends Lord Blunkett, Lord Hunt of Kings Heath and Lord Bradley, the noble Lords, Lord Moylan, Lord Ramsbotham and Lord Hogan-Howe, and the noble Baroness, Lady Burt. I draw attention to them because they are not lawyers; they are people who have had contact in other ways with this system and come to the conclusion that it should end.
Secondly, we on this side of the House support all the amendments. Some are alternative ways of dealing with a particular problem, but we support all the proposals. We are not, in the amendments before the House, going as far as some of the speeches went. We are not suggesting the immediate abolition of the sentence. We are saying: support for those in prison to try to get released; support for those who are released to get proper help; and an easier process of having consideration of the licence being got rid of.
As the noble and learned Lord, Lord Brown of Eaton-under-Heywood, said, the one with the teeth is Amendment 208F. It says you get rid of these licences and release the person if they have served more than the sentence for the offence. If you have been sentenced to five years in prison, and that is the maximum sentence, once the maximum is reached, unless the detaining authority can prove that you are still a risk, you get released. If you are still below the maximum sentence for the offence for which you were convicted, but you have been in for 10 years, the same principle applies. It is an incredibly sensible way of ensuring the sentence goes for those who have got it, but you keep inside those who represent a severe danger, as long as the detaining authority can establish that they remain a danger.
I very much hope that the Minister will be able to give some words of comfort to the effect that these very moderate proposals will be taken up by the Government. If there are amendments to these proposals, of course, everybody in the House will consider them, but it is time for a change. These modest proposals require consideration for this Bill, because the biggest disappointment would be to be told that it is coming at some later stage.
The Parliamentary Under-Secretary of State, Ministry of Justice (Lord Wolfson of Tredegar) (Con)
My Lords, Amendments 208A to 208H relate to offenders serving sentences of imprisonment for public protection commonly known as IPPs. The noble Lord, Lord Pannick, who was very kind about my work as a Minister, invited me to put away the departmental brief. I am not going to do that, not least because it might mean that my work as a Minister here ends somewhat prematurely. But that is not inconsistent, I hope, with making it clear to the Committee that I have listened carefully to the debate and to the points raised around the Chamber. I will reread the debate in the Official Report as well.
Of course, I feel the mood of the Committee—that would be impossible to miss. The speeches have been powerful and sometimes heartfelt. Without wishing to ignore others, may I say the contributions from the noble Lord, Lord Blunkett, and the noble and learned Lord, Lord Woolf, about their personal part in the genesis of IPPs have been unusual and moving. This politician, may I say to the noble Baroness, Lady Chakrabarti—although I see myself still as a lawyer, not a politician—certainly is trying to get this right. I do not think this is an issue which admits of easy analysis. To use the words of the noble and learned Lord, Lord Judge, it is something of a puzzle, which requires looking at carefully and solving.
I am grateful to those noble Lords who have met with me and discussed the issue. I am sure we will have further discussions between now and Report. I should say that I read Matthew Parris’s column at the end of July as well.
I will go through the amendments and set out the Government’s position, then I will come back at the end to some more general points. Four of the amendments, Amendments 208A to 208C and 208E, the latter from my noble and learned friend Lord Garnier, would require the Government to conduct a review on matters such as sentence progression, resettlement and supervision of prisoners serving an IPP sentence, and to lay a report before both Houses of Parliament.
The Government recognise that work needs to be done in relation to this group of prisoners. I will set out the work that has been done so far. We have put together what I think has been a successful action plan dedicated to the rehabilitation and risk reduction of IPP offenders. We continue to work to increase opportunities for IPP offenders to progress through their sentences via this plan. A qualified psychologist leads a review of the case of every IPP prisoner who is not making the expected progress. Between July 2016 and September this year, which is about five years, just under 1,700—1,679—reviews were completed; 440 prisoners were subsequently released and a further 474 secured a progressive move to more open conditions.
My noble and learned friend Lord Garnier commented on the availability of courses for IPP prisoners to help them make that progress. It is right that during the pandemic there were fewer places on some group interventions. We asked offender managers to look at other sorts of interventions to draw evidence from them for the parole reports. However, we have now been able to ramp up the provision again. Not all IPP prisoners will require the same interventions, of course, but we try to make sure that each prisoner has a suitable pathway, as it is called, to a future safe and sustainable release. That is the focus of the programme. There is a range of interventions, including places on progression regimes, other accredited programmes and places in open prisons. Where a programme is not available for an offender, the prison offender manager would seek to have the prisoner transferred to a prison where the programme is available, subject to a risk assessment and available places. In the meantime, other work would be identified so that the prisoner could undertake that work.
We believe that the action plan is working. High numbers of IPP prisoners are being released each year and the proportion of positive Parole Board decisions remains high. I do not think anybody mentioned this, but let me put it on the record that the Justice Select Committee in the other place has recently launched an inquiry into IPP sentences. Its stated aim is to examine
“the continued existence of IPP sentences and to identify possible legislative and policy solutions.”
The Select Committee will scrutinise what the Government are doing. I have no doubt that it will provide recommendations, which the Government look forward to hearing. I therefore underline that we are doing work in this area. We do not believe that a separate government-led review is necessary at this time.
I turn to Amendment 208D from my noble friend Lord Moylan. Currently, an IPP offender may apply to the Parole Board to have their licence terminated once 10 years from their first release from custody has elapsed. To do that, the offender must give their permission to the Secretary of State to apply to the Parole Board for licence termination on their behalf. The first part of this amendment would therefore remove the legal requirement for the offender to give their permission. Instead, offenders would be automatically rereferred for consideration each year, were they unsuccessful. The second part would change the time period from 10 to five years.
Lord Falconer of Thoroton (Lab)
None of the amendments would mean that there would not necessarily be a consideration by the Parole Board, including Amendment 208G, which is the two-year automatic end unless the Government made an application to the Parole Board, so I am not quite sure what the basis of rejection of that one is.
Lord Wolfson of Tredegar (Con)
I am not basing it only on what I have called automatic termination. The scheme set out in Amendment 208G would represent a very different approach to management on licence and, for the reasons I have set out, that is not a form of management which we think provides adequate protection to the public. I may come back to that.
Amendment 208H creates a power for the Secretary of State to release an IPP offender who has been recalled to prison, so long as the Secretary of State is satisfied that it is not necessary for public protection for the offender to remain in prison. The position at the moment is that the Parole Board has a responsibility to assess whether offenders are safe to be released into the community, even after an IPP offender is recalled to prison. They can take a decision to rerelease from only 28 days after the offender is recalled. We believe that the Parole Board’s expertise in determining whether offenders serving indeterminate sentences are safe to be released is, as I said, an essential tool of public protection.
If I may, I come back to where I started, with the words of the noble Lord, Lord Pannick. Again, I am grateful for his kind words. I agree that there are certainly problems with the current system; we are looking at it. We believe that our IPP action plan has achieved significant results and we keep it under constant review. The noble and learned Lord, Lord Judge, in what I have learned to be his habit of putting his finger on the point at issue, asked, “Well, what is going to be done?” I hope that I have made it clear that I have listened to the debate very carefully, and that I have no doubt of the mood and the strength of feeling of the Committee. I am also sufficiently acquainted with the ways of this House to anticipate what might or might not be moved on Report as and when we come to it. I can say this afternoon that I will continue to work on this issue—a number of noble Lords know that I have been working on it already—and to listen to the debate, but for the moment, I ask noble Lords who tabled this amendment to withdraw it.
Lord Falconer of Thoroton (Lab)
My Lords, I support this amendment, and very much hope that the Government will either accept it or explain what they are doing in response to the report of the Prisons and Probation Ombudsman on the case of Miss A and her baby. The noble Baroness, Lady Burt, has explained the facts; it is worth looking at them in a little more detail.
Miss A, as she is called in the report, was remanded in custody on 14 August; she was pregnant. It does not say in the report whether the court knew that she was pregnant, but that is not what this amendment deals with. On 19 August, she was seen by a safeguarding midwife, who said that her estimated delivery date was between 24 September and 14 October. On 26 September, she was put on extended observation, which means she would be seen by a nurse in the morning, at lunchtime, in the evening and twice overnight. On that very day, 26 September, she went into labour. At 8.07 pm, 8.32 pm and 8.45 pm, she called for help and, in particular, called for a nurse. All three calls for help were ignored. At 9.27 pm and 4.19 am that night, she was inspected—I assume through a cell hatch—for a regular roll call, and nothing untoward was spotted. At 8.21 am the next morning, other prisoners reported that there was blood in her cell, and at 9.03 am an officer identified that she had given birth overnight and that the baby had died.
It is an absolutely terrible story, as the ombudsman describes. As the noble Baroness, Lady Burt, said, the ombudsman made specific recommendations, which are reflected in proposed new subsections (1) and (2) of her Amendment 209. It says that the Secretary of State must provide “appropriate midwifery care” within the female prison estate, and then defines “appropriate midwifery care” as meaning
“midwifery care that is appropriate to a custodial setting … maternity services that are suitably resourced to provide … an appropriately qualified midwifery lead in each prison to oversee all aspects of perinatal care … a maternity pathway for prisoners that includes a process for women who decline to engage with services”—
as Miss A may have done—
“access for prisoners to psychological and psychiatric services … training for staff in trauma-informed care … training for staff in neonatal and child resuscitation procedures; and … appropriate emergency equipment for children and neonates.”
A lot of those go beyond what would have made a difference in this particular case, but if those recommendations of the ombudsman had been given effect to, the tragedy almost certainly would not have occurred. This gives the Government the opportunity to respond in this House to those recommendations, all of which seem sensible and will not impose a substantial financial burden on the prison estate, because there are not that many women’s prisons. If the Government are not willing to accept these proposals, what are they going to do about the problem? Can they give a reason why a duty such as this on the Secretary of State should not be expressed in the legislation?
Lord Wolfson of Tredegar (Con)
My Lords, I am very grateful to the noble Baroness, Lady Burt, for tabling this amendment. As the explanatory statement makes clear, the amendment builds on the recommendations of the recent independent investigatory report by the Prisons and Probation Ombudsman into the death of Baby A—as we are calling the baby—at HMP Bronzefield.
I shall start by repeating what my honourable friend Victoria Atkins MP said when giving oral evidence to the Justice Select Committee’s inquiry into women in prison on 3 November. I quote her because I want to associate myself with this, word for word. We are
“very grateful to the ombudsman for her report. The facts as they unfolded in that report were truly shocking. And the fear that that young woman must have felt and the loss she is dealing with even today, we do not, we cannot contemplate anything of that nature ever again within the prison estate.”
My deepest condolences remain with those affected.
The death of Baby A was a tragic and harrowing event and has rightly been the subject of several investigations and inquiries, including that by the PPO, to try to ensure that all the necessary lessons have been learned to avoid a repetition in future. The Committee may be interested to know that there is a Question on this incident on, I think, Wednesday, which will be another opportunity for the House to look at this terrible event, and I believe I am going to be responding to it.
While I point out that we are not talking about sentencing here, and the noble and learned Lord, Lord Falconer of Thoroton, was right to say so, it is right to say that when it comes to sentencing, pregnancy is certainly a mitigating factor that is specifically taken into account in the sentencing guidelines. I should also say that it is exceptionally rare now for a woman to give birth in prison. The most recent figures, from July 2020 to March 2021, show that 28 births—90% of the total number of births—took place in hospital and none took place in prison. I understand that in the case of the missing 10%, the baby came out a bit quicker than anticipated and the birth might have taken place in the ambulance, but none took place in prison.
In response to the terrible disaster of what happened to Baby A, the previous Lord Chancellor, the right honourable Robert Buckland MP, commissioned the independent external investigation by the PPO. We have since accepted and acted upon all its recommendations for the Ministry of Justice and the Prison Service. We immediately put in place practical steps across the women’s estate, including providing all women with free phone access to local NHS pregnancy advice services and additional welfare observations for pregnant women in their third trimester. At that time we were already undertaking a fundamental review of national policy on pregnancy, mother and baby units and maternal separation in women’s prisons.
As the noble Baroness, Lady Burt, recognised and said she welcomed, that work led to a new policy framework, published on 20 September, which develops those immediate actions into national requirements for all women’s prisons, delivering on a wide range of reforms. The new framework has an extended policy remit covering requirements on perinatal care and maternal separation, in addition to mother and baby units. I hope that what I have said so far—although I will say something more—reassures the noble Baroness and the noble Lord, Lord Hunt of Kings Heath, that we are serious about our response to this matter. We are determined to take all necessary action to avoid a similar tragic event in the future.
I shall turn to the detail of the amendment and explain why, in the light of the current legislative framework, we are not persuaded that what is proposed is necessary. Currently, NHS England is responsible for commissioning almost all forms of healthcare for prisoners within both the public and private estate in England under Section 3B of the National Health Service Act 2006 as amended by the Health and Social Care Act 2012. That statutory obligation has to be read together with Rule 20(1) of the Prison Rules 1999, which states:
“The governor must work in partnership with local health care providers to secure the provision to prisoners of access to the same quality and range of services as the general public receives from the National Health Service.”
The requirement to commission healthcare services and to secure and ensure prisoners’ access to them therefore already applies to the provision of maternity services in the women’s prison estate, so we do not consider that there is any need to add a further separate obligation in statute as proposed by the amendment. What is important is that we ensure that it actually happens. I certainly do not mean to be flippant, but repeating something in statute is not the way to ensure that it happens. We are focused on ensuring that it happens. We already have the statutory obligation.
In fairness to the PPO, I should note that it did not recommend any change to the statutory framework. Rather, it said at paragraph 14:
“Overall, the healthcare offered to Ms A in Bronzefield was not equivalent to that she could have expected in the community.”
It is that provision that we are focused on—ensuring that expectant mothers in prison get the same care as they would have received in the community. The Government’s position is that we would rather focus on that than duplicate statutory provision.
Lord Falconer of Thoroton (Lab)
The amendment would not be duplicating anything because it contains specific provisions that are not referred to in the other statutory obligation, so it would be clear what was required.
Lord Wolfson of Tredegar (Con)
What is required is that women in prison have access to the same maternity services as they could expect in the community. My suggestion is that once that is set out, that is a sufficient legislative obligation and the Government need to ensure that it actually happens.
I hope that nothing I have said detracts from what I said right at the start, which is that we are appalled by what happened to Baby A. It must never happen again, and we are going to do all we can to ensure that it does not. However, for the reasons I have set out, I invite the noble Baroness to withdraw the amendment.
The Lord Bishop of Ely
My Lords, I was not intending to speak to these amendments but, having been involved in prisoner resettlement in the past, I feel it is important to say that Friday release has a particular impact on younger women prisoners if their only option is a bail hostel. Women, as we know, are much more likely to find their family life disrupted than men during the often short sentences that they suffer. The noble Lord mentioned somebody being in a car round the corner. That very patient person who was managing that young woman as a sex worker before she went into prison will spend the whole day waiting to snatch her away and take her back to the life she was in before. When the alternative options are so dreadful for such young women, it is not surprising that there are the statistics on them falling back into the kind of oppression they knew before. Our whole approach to resettlement would be advanced hugely by these amendments being accepted by the Government.
Lord Falconer of Thoroton (Lab)
An incredibly powerful case has been made. We support it and I am grateful to the noble Earl, Lord Attlee, the noble Lord, Lord Hodgson, my noble friend Lady Lister and, in her absence, the noble Baroness, Lady Bakewell, for tabling these amendments. I completely adopt what my noble friend Lady Lister said about the total inadequacy of the reasons given in the Commons for not supporting this. The first was that it would mean there would be bunching of releases on other days, but if a third are on Friday already that seems a completely hopeless point. Secondly and separately, it was said that it is not used very much in Scotland; if it is not used very much, then the Government would not have much to worry about. Why not do it?
Lord Wolfson of Tredegar (Con)
My Lords, I am grateful for the various speeches which have been given on these amendments, which, as we have heard, seek in different ways to avoid the release of prisoners on a Friday. Obviously, I understand the distinction between the two, although it is fair to say that they are both aimed at substantially the same point.
The current position is this. Section 23 of the Criminal Justice Act 1961 provides that prisoners whose release dates fall on a weekend or bank holiday should be released on the working day which immediately precedes that weekend or bank holiday. In most cases, that is a Friday, which is why, to make the obvious point, we have “bunching” on Fridays. If one would expect release dates generally to fall over the week, given the law of large numbers, you have Saturday and Sunday pushed back to Friday, plus the occasional bank holiday. We are very aware of and alive to the challenges that this can create in accessing support and services in the community. We are taking steps to mitigate those difficulties; I will turn to those in a moment.
First, however, the amendments seek to reduce releases on a Friday or non-working weekday by either preventing the court setting a sentence length that is likely to lead to release on those days, or by providing greater flexibility for prison governors to avoid Friday releases by giving the discretion to release earlier in the week. I heard what the noble Baroness, Lady Lister, said about the responses given in the other place: that the Minister there was clutching at straws. I think the noble and learned Lord, Lord Falconer of Thoroton, has set me the challenge to be better than “completely hopeless”. That is a bar I hope to surmount.
I assure the Committee that I am open-minded and have listened very carefully to the debate. While I am sympathetic to the need to tackle this issue, I do not agree that it is necessary to legislate in the way proposed by the amendments, and I will explain why. To do so would either undermine existing sentencing principles by preventing the court passing a sentence which is likely to result in release on a Friday, or it would allow prisoners to be released even earlier from their sentence. Legislation provides that prisoners are released on the working day closest to their statutory release date and we do not believe it is necessary to go further than that.
I will deal with sentencing first. It is not realistic or achievable to require a sentencing court to try to work out on which day of the week an offender would fall to be released and adjust the sentence accordingly to avoid that being a Friday, weekend or bank holiday. I would have thought that that is self-evident. It is obvious because a prisoner’s release date is something of a complex calculation. It is carried out by prison staff and depends on a number of different factors that a sentencing court would not necessarily be able to take into account. These could include: any other concurrent or consecutive sentences the offender might already be serving; the correct amount of remand time to apply on all relevant sentences being served; and any added days imposed for bad behaviour while serving the sentence.
Baroness Lister of Burtersett (Lab)
The Minister may be about to come to the point I was going to make. The provisions in Amendment 211 are discretionary. If it is possible in Scotland, why is it not possible here?
Lord Falconer of Thoroton (Lab)
The Minister said that he was dealing with the amendments logically. He dealt with only Amendment 210 and did not deal with Amendment 211.
Lord Wolfson of Tredegar (Con)
I am coming to the point about discretion in Scotland. I will respond to that in a moment, if I may. First, I wanted to identify how we think we can best deal with the problems which bunching can give rise to. I absolutely agree that reducing further crime by those who have been released is critical. We have to cut reoffending and we know that a lack of suitable accommodation or sustainable employment, as well as substance misuse, can lead offenders to return to crime. Therefore, we need to ensure that people leaving prison on all days of the week, Fridays included, have access to services.
I will briefly identify four important things in this regard. In January this year, we announced a £50 million investment to reduce crime and tackle key drivers of reoffending. In July, we launched temporary accommodation for prison leavers at risk of homelessness in five probation regions, because we know that having access to transitional accommodation is very important. We have invested a further £20 million in the Prison Leavers Project, which tests new ways to reduce reoffending by addressing the challenges people face when they leave prison.
Police, Crime, Sentencing and Courts Bill
Lord Falconer of Thoroton ExcerptsMonday 15th November 2021
(2 years, 5 months ago)
Lords ChamberRead Full debate Police, Crime, Sentencing and Courts Act 2022 View all Police, Crime, Sentencing and Courts Act 2022 Debates Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: HL Bill 40-IX Ninth marshalled list for Committee - (15 Nov 2021)
Lord Paddick (LD)
I am grateful for the clarification that the noble Lord has given, and I will allow noble Lords to read the official record and draw their own conclusions from what he said.
The noble Lord’s amendment manages only one of these risks—arguably the much lower risk. Each case should be, and is currently, managed on a case-by-case basis, and that should continue. We oppose the amendment.
Lord Falconer of Thoroton (Lab)
We, too, oppose the amendment. I think we all accept that transgender women are entitled to live in their chosen gender. The law protects transgender women and transgender men from discrimination because they are transgender men or transgender women. The position that is outlined in this amendment leads all transgender women to be consigned to the male prison estate—a point made very forcibly by the noble Lord, Lord Pannick. The moment one says that, one sees the total unthought-out nature of the amendment.
The way forward was, I believe, charted by the noble Lord, Lord Pannick, and the noble Baronesses, Lady Falkner and Lady Brinton. The noble Baroness, Lady Falkner, indicated in a powerful speech that one is dealing, in effect, with rights that may conflict: on the one hand, the right of a transgender woman to be properly protected, including in her choice to be a transgender woman, and on the other, the possibility that certain prisoners, including transgender women, can be a threat to other prisoners in the women’s estate. The way that that is dealt with at the moment was well outlined by the noble Baroness, Lady Brinton, in her excellent and detailed speech. The prison authorities deal with it on a case-by-case basis using a series of detailed processes. Should we continue with that, or should we condemn every gender recognition-certificated transgender woman who is charged—maybe not convicted —of a violent or sexual offence to being in the male estate?
For my own part, it is pretty obvious that one should continue with the current arrangements. I am sure that they could be improved—I am not in a position to detail any improvements that could be given to them—but that case-by-case basis must be a better approach than that adopted by the amendment in the name of the noble Lord, Lord Blencathra. I would go further and say that I do not suggest to the noble Lord and those who have also supported the amendment that they come back with something else. This is much better dealt with on a case-by-case basis, so we on this side of the House oppose the amendment. We do not think it is appropriate; we do not think it even tries to balance rights, and we would not support it coming back on Report.
Lord Russell of Liverpool (CB)
I thank the noble Lord. If anyone else wants further clarification, I am sure other noble Lords who have read the Equality Act will come in and back me up.
A particular point that I think my noble and learned friend Lord Judge would have made, were he able to be with us, is that he is clear that this amendment and change to the Sentencing Act would be welcomed by the judiciary, who are often asked to make quite difficult judgments. This would make their ability to do so a great deal easier.
There is another important point. The noble Baroness, Lady Newlove, mentioned how some police forces around the country voluntarily started recording alleged misogynistic acts, primarily against women. We had a briefing last week, which I attended online, in which two of the police forces involved—Nottinghamshire Police and South Yorkshire Police—gave evidence, several years on, about how effective that was. The thing that came out clearly, which they find very frustrating, is that having amassed this information and passed it on to the Crown Prosecution Service, the way in which the CPS deals with the information and data that has been recorded and given to it as additional evidence when considering or making prosecutions is wholly inconsistent between different offices and areas. One of the virtues of inserting this amendment into the Sentencing Act is that it would make it crystal clear to the Crown Prosecution Service that information must be part of any case that is potentially brought before the judiciary, because this data is required to be considered when thinking about sentencing.
I commend this amendment to the Committee. It is simple, unambiguous and protects everybody.
Lord Falconer of Thoroton (Lab)
The following characteristics are protected under the Equality Act: age—something else that we do not need to worry about; gender reassignment; and sex. There are others, but those are the three. Sex being a protected characteristic means that you are entitled not to be discriminated against on the ground of your sex, whether you are a man or a woman. That means that if you are a transgender woman, you will be entitled to be protected on the grounds of sex because you are a woman, and on the grounds of gender reassignment. So, the noble Lord says that gender is not a protected characteristic under the Equality Act, but a person is entitled, as one would expect, not to be discriminated against because of their sex.
Baroness Noakes (Con)
I thank the noble and learned Lord, Lord Falconer of Thoroton, for his lesson in equalities law. My Amendment 219A was degrouped from Amendment 219 late last week. While it is drafted more broadly than Amendment 219, I tabled it to address the very same issues covered by Amendment 219. I therefore believe that, for the convenience of the Committee, I should speak to my Amendment 219A now. I hope that the other noble Lords who have added their names—the noble Baronesses, Lady Ludford and Lady Grey-Thompson, and the noble Lord, Lord Hunt of Kings Heath—will do so as well. On that basis, I will not move Amendment 219A in the next group. I hope that, given all the amendments left still to be debated, the Committee will welcome this.
My Amendment 219A, like Amendment 219, does have cross-party support, so the issues raised by both amendments are not party-political in any sense. Indeed, I find myself in the unusual position of being on the same side of the argument as the noble Baroness, Lady Ludford; neither she nor I ever thought that we would be in that position. I have two main problems with Amendment 219, the first of which is directly addressed by my Amendment 219A. Amendment 219 pre-empts the work of the Law Commission, which, as we have heard, has been working on hate crime for some time now. Its consultation document runs to over 500 pages, with over 50 dedicated to sex or gender.
The Law Commission has received many thousands of consultation responses and is now working on its final position. I believe that its work should conclude before we legislate in this area, and my Amendment 219A gives the Government a regulation-making power to amend Section 66 of the Sentencing Act 2020 to implement the Law Commission’s recommendations. That gives the Government, if they agree with and accept the recommendations, the fastest possible implementation route. The Law Commission’s final recommendations may well be controversial and therefore would not qualify for the special procedures for Law Commission Bills that we use in your Lordships’ House, if primary legislation were the route taken. Amendment 219A therefore uses the draft affirmative procedure to enable some additional parliamentary scrutiny.
I believe that it would be wrong for Parliament to anticipate the final views of the Law Commission. There are different views on both the principle and the substance of the extensions to the hate crime laws, and noble Lords would be wise to wait for the Law Commission’s final recommendations, rather than proceed on the basis of its provisional views.
On the extension of hate crimes to sex, the Law Commission was clear that it believed that two of its criteria for amending the hate crime legislation—demonstrable need and additional harm—were met, but it was far less clear that its third criterion of suitability was met. To mitigate that, its consultation includes some very significant potential carve-outs, covering, for example, domestic abuse and sexual offences so that, if hate crime were extended to sex, the very crimes that I know some noble Lords are particularly concerned about might not be included in the Law Commissioner’s final recommendations. This is not an area where there is a settled view about what should be done.
My second problem with Amendment 219 is a substantive one about whether, if hate crime laws are extended to sex, they should be—
Lord Falconer of Thoroton (Lab)
Does the noble Baroness know when the Law Commission might produce its final report and what the timetable thereafter would be—for example, how long there would then be before the Minister has to respond and how long thereafter before there would be some provision in relation to it?
Baroness Noakes (Con)
I think that was a trick question from the noble and learned Lord, Lord Falconer of Thoroton.
Lord Falconer of Thoroton (Lab)
It is not a trick question; I would have thought that that piece of information might be quite important to evaluating her amendment.
Police, Crime, Sentencing and Courts Bill
Lord Falconer of Thoroton ExcerptsWednesday 10th November 2021
(2 years, 5 months ago)
Lords ChamberRead Full debate Police, Crime, Sentencing and Courts Act 2022 View all Police, Crime, Sentencing and Courts Act 2022 Debates Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: HL Bill 40-VII(b) Amendments for Committee (supplementary to the Seventh Marshalled List) - (10 Nov 2021)
“Minimum sentence for an offence under section 1 of the Sexual Offences Act 2003
(1) This section applies where—(a) an individual is convicted of an offence under section 1 of the Sexual Offences Act 2003, and(b) the offence was committed after the commencement of this section and at a time when the individual was aged 18 or over.(2) The court shall impose an appropriate custodial sentence (or order for detention) for a term of at least the required minimum term (with or without a fine) unless the court is of the opinion that there are exceptional circumstances relating to the offence or to the offender which justify it not doing so.(3) In this section “appropriate custodial sentence (or order for detention)” means—(a) in the case of an offender who is aged 18 or over when convicted, a sentence of imprisonment, and(b) in the case of an offender who is aged under 18 at that time, a sentence of detention under section 91 of the Powers of Criminal Courts (Sentencing) Act 2000. (4) In this section “the required minimum term” means seven years.”Member’s explanatory statement
This amendment would ensure those found guilty of abduction, sexual assault, and murder would receive a Whole Life Order as a starting sentence.
Lord Falconer of Thoroton (Lab)
My Lords, this group contains three amendments in my name, and a Clause 103 stand part debate in the names of my noble friend Lady Massey and the noble and right reverend Prelate the Bishop of Derby, neither of whom appears to be here at the moment. The amendments fall into two categories, but I make no complaint about them being grouped together. Amendments 195, 196 and 197 are based on the deep concern on this side of the Committee that the Government have not done enough in the Bill to mark their animosity to violence against women and girls.
Amendment 195 proposes a minimum sentence for an offence of rape under Section 1 of the Sexual Offences Act 2003. That minimum term—of seven years—applies unless the court is of the opinion that there are exceptional circumstances relating to the offence or the offender which justify it not doing so. I propose that minimum term for rape without one iota of apology.
The framework for sentencing by the courts has to be set by Parliament. The way Parliament does this—as the two former Lord Chief Justices made clear—is by setting a maximum sentence, and the courts then reflect on what they conceive to be the justice of the case, as determined by the maximum. In exceptional cases—I use that word advisedly—it is appropriate for there to be minimum sentences as well. If there is a minimum sentence, the judge’s discretion is removed, but that is because Parliament is saying that particular offence merits a minimum sentence except in exceptional cases.
I strongly agree with the proposition that one should keep those sentences to the minimum. I also strongly agree with the noble and learned Lord, Lord Thomas, that, where Parliament says “exceptional circumstances”, for all the impressive sophistry of the noble Lord, Lord Wolfson, it is definitely saying, “We want the norm to be whatever the minimum is, and as few cases as possible should not be in the norm”. There is nothing wrong with Parliament doing that. Rape, in our view, is one of those cases.
Viscount Hailsham (Con)
My Lords, I have a feeling I am going to be in a minority in this Committee. As much as I like and admire the noble and learned Lord who has just spoken, I disagree with at least two of his amendments. I disagree with Amendment 195 on the minimum sentence for rape, partly because of the general point that I have made about judicial discretion already, which I am not going to repeat, and partly because—I draw now on my own experience as a criminal barrister; perhaps not a very distinguished one, but I was a genuine lawyer for quite a long time —rape is a broad spectrum of offence, from ones which one can comprehend to the truly awful. There is a spectrum here, and it is wrong to fetter the judicial discretion to the point envisaged by this amendment.
The other amendment I do not agree with would make the murder cases of the class described by the noble and learned Lord in Amendment 197 a whole life offence. I personally shrink from whole life sentences if they are mandatory. There are many cases where they are proper, but I would leave it to the judge. I very much dislike the concept of sending lots of people to mandatory whole life sentences with no prospect of rehabilitation.
Lord Falconer of Thoroton (Lab)
The noble Viscount may be assuaged by the fact that what I am talking about is the starting point. Therefore, it is not a mandatory whole life term, it is a mandatory life sentence, and it is for the judge to indicate what the position is. The effect of my amendment is to say that the starting point is a whole life term.
Viscount Hailsham (Con)
We have been here before in previous debates. The effect is to make it mandatory unless there are some very powerful arguments against. If the noble and learned Lord will forgive me, having read his Amendment 197, I recognise that in many cases falling within that classification a whole life sentence would be appropriate: abduction, yes, murder, of course, but sexual assault? One needs to keep in mind that is a fairly broad offence from the relatively trivial to the very serious. I am not at all happy about including that as a triggering element which makes the whole life sentence the starting point. But I know I am in the minority on this point and the Committee will doubtless take a different view.
Lord Marks of Henley-on-Thames (LD)
My Lords, we have heard which amendments are in this slightly disparate group. On Amendment 195, I am in agreement with the noble Viscount, Lord Hailsham, and in disagreement with the noble and learned Lord, Lord Falconer, I am afraid, because it would require the courts to pass a minimum sentence of seven years for rape in the absence of exceptional circumstances. I fully accept that this amendment is motivated by a determination to respond strongly to the completely horrible offence of rape, and by a desire to be seen to be determined to tackle and reduce it by bringing offenders to justice and dealing with them with the full force of the criminal justice system through long sentences of imprisonment. Nevertheless, I cannot support the amendment.
On these Benches, we will take lessons from no one on how serious a crime rape is. Members on these Benches have spoken repeatedly of the need to increase the rates of reporting rape, the approach to investigating rape, ways of increasing rates of prosecutions and the rate of successful prosecutions for rape, and ensuring that courts, juries and the public—young and old—are fully aware of the meaning of consent. But we do not believe that a minimum seven-year sentence for rape will increase the number of victims prepared to report offences—particularly in cases where the assailant is known or related to them—or reduce the difficulty for the police in investigating rape, securing the co-operation of parties close to the case, securing witness statements or getting witnesses to give evidence in court. Nor do we believe that such a sentence would make it easier to secure convictions from juries, particularly in cases they might regard as borderline, against the background of appallingly low conviction rates.
We have heard many times about the background of failure to bring rapists to justice. In the year to March 2020, nearly 59,000 cases of rape were recorded by police in England and Wales. Of those, there were only 21,000-odd prosecutions and an appallingly low 1,400-odd convictions. We have also heard many times that in 57% of cases investigated by the police in that year, the victims withdrew their support for the prosecution. There is no evidence at all relied upon by the noble and learned Lord, Lord Falconer—or, I suggest, in existence—that minimum sentences of seven years, or of any figure, would improve that position.
Every lawyer, investigator or judge who has ever had anything to do with criminal courts knows the extent to which one case of rape differs from another. The noble Viscount, Lord Hailsham, is right about that. Although every case represents an egregious abuse, a standard minimum sentence cannot be justified. That brings me back to the points I made in the previous group about the importance of judicial discretion and the inappropriateness of a test requiring a judge to find exceptional circumstances before being permitted to pass less than the minimum sentence.
There is a minor point as well about the drafting of the amendment: it is unclear as to the age of the offender. Proposed new subsection (1)(a) applies the clause to offenders “aged 18 or over” at the date of the offence, while proposed new subsection (3)(a) applies to an offender under 18 at the date of conviction. There is an internal inconsistency which the noble and learned Lord may wish to consider.
Rape is a scourge. We must address it, reduce it and bring offenders to justice, as well as change the culture in our society that tolerates it and, as the noble and learned Lord said, does not control the appalling epidemic of violence against women and girls. But minimum sentences will do none of that.
Amendment 196 seeks to increase the sentence for naming a complainant. The noble and learned Lord is absolutely right that this offence can do great harm by removing anonymity; it can cause considerable distress and often psychological damage as well. Increasing it to a two-year maximum on indictment or 12 months on summary conviction is a sensible change to the law, which we support.
Amendment 197 would add
“the abduction, sexual assault, and murder of a person”
to the offences in Schedule 21 to the Sentencing Code for which a whole-life sentence is a starting point. I take it to mean that the whole-life sentence would be a starting point if all three elements were present: the abduction, the sexual assault and the murder.
Lord Marks of Henley-on-Thames (LD)
The only reason I make that point is that there was a misunderstanding—not inherent in the noble Viscount’s speech, but that might have arisen from his speech—where he talked of sexual assault as being a very varied offence; of course it is, but here it is combined with abduction and murder.
I think the starting point argument made by the noble and learned Lord is valid because the starting point applies on the statute if the court considers that the seriousness of the offence, or a combination of the offence and one or more offences associated with it, is exceptionally high. It is only a starting point: it does not mean that judicial discretion is removed or even significantly fettered if particular circumstances applied to make that an inappropriate or unjust sentence. I see no reason why that should not be added to the list, which we already have, of heinous offences for which a whole-life order is a starting point. But I fully agree with the noble and learned Lord that we need to keep whole-life orders to a very restricted class of cases because they are sentences without hope.
Finally, the noble Baroness, Lady Massey, and the right reverend Prelate the Bishop of Derby—whose position was eloquently expressed by the right reverend Prelate the Bishop of Durham in the earlier group—oppose Clause 103 because new Section 321(3B) of the code would permit whole-life orders for those aged 18 to 20. We agree, for all the reasons they gave, and the reason that the noble and learned Lord, Lord Falconer, gave, that that is inappropriate. Whole-life orders should not be imposed in such cases.
Lord Wolfson of Tredegar (Con)
My Lords, this is obviously an important set of amendments. I thank all those who spoke on the arguments put forward. We agree across the Committee that sexual violence is a devastating crime that can have lifelong impacts on victims and survivors. The noble Lord, Lord Marks of Henley-on Thames, used the word, “scourge”. I do not disagree with that. He was also right to say that a change in culture is part of the solution here but also that these crimes have to be punished with sentences that match the severity of the offence.
As the noble and learned Lord, Lord Falconer, said, the group of amendments encompasses a number of such crimes. Let me take each one in turn. I will start with the Amendment 195, which would require the court to impose a minimum custodial sentence of at least seven years for a rape offence committed under Section 1 of the Sexual Offences Act 2003 unless, as stated in subsection (2), there are exceptional circumstances that justify not doing so. I respectfully agree with the noble and learned Lord that there is an important point here. He was making, it is fair to say, substantially the same point that I was making to the noble and learned Lord, Lord Judge, about the roles of Parliament and the courts. Just as the noble and learned Lord, Lord Falconer, has nothing but respect for the courts and judges, so do I. I should also say that my wife is a judge but she does not come anywhere near to sentencing anybody, so perhaps I do not have to make that declaration.
We agree on the principle that there are some cases in which it is right for Parliament to set out a minimum sentence with an exception, and other cases where it is appropriate to have greater judicial discretion. The real question is how we respond to each case, bearing in mind the scope of the sentences available to the sentencing judge.
Against that background, we have to remember that the maximum penalty for rape is life imprisonment. Quite rightly, rape offenders already receive significant sentences. I remind the Committee that in 2020, the average—I underline “average”—custodial sentence given to adult offenders for a Section 1 rape offence, where the victim was 13 or over, was almost 10 years. That represents an increase of almost 15% over the past decade. Also in 2020, over two-thirds of those offenders received a custodial sentence of over seven years.
Also, in certain circumstances, where offenders are convicted of a repeat serious sexual offence, including rape, the law already provides for a minimum sentence of life imprisonment. I should underline that the original offence, when we are talking about the repeat offence category, may not necessarily have been rape but one of a number of serious sexual and violent offences. In addition, in this Bill, and through legislation in the past year, the Government are ensuring that rape offenders sentenced to over four years must spend two-thirds of their sentence in prison, as opposed to being released at the halfway point.
However, as the noble and learned Lord, Lord Falconer, recognised in his Second Reading speech, it is important that we maintain judicial discretion for the court to consider the facts of the case before it and decide on the appropriate sentence. Perhaps I can provide some support on this point —or perhaps the noble Viscount may give me some support. It is important that, given the complex nature of this offence and the wide range of circumstances the court may need to take into account, we maintain that role for judicial discretion. We may both lack the appellation “learned” but I hope that that does not detract from the strength of the point we are making.
Although the sentence lengths for rape have increased, we have a serious problem. We have long recognised that the decline in the number of effective trials for rape and serious sexual offences is a cause for serious concern. I have said that from the Dispatch Box before. Let me take the opportunity to mention briefly some of the wider action we are therefore taking to support rape victims and improve the way rape cases are handled by all criminal justice partners.
We published the End-to-End rape review on 18 June. This sets out our ambitious plans to improve numbers of rape cases being referred by the police, charged by the Crown Prosecution Service and reaching the court. On 21 July, we published the cross-government Tackling Violence Against Women and Girls Strategy, to help better target perpetrators and support victims of crimes which disproportionately affect women and girls. As to sentencing, the maximum penalty for rape is life imprisonment, and it is already the case that the courts impose significant sentences. For the reasons that I have set out, we believe it is proper that the courts retain discretion to ensure that they can impose the appropriate sentence based on the facts of the individual case.
Turning now to Amendment 197 on the abduction, sexual assault and murder of a person, I read it as the noble and learned Lord intended, that it is all three. The amendment would expand the circumstances where a whole-life order would be the starting point to include cases of murder involving the abduction and sexual assault of a single person. While this Government obviously greatly sympathise and understand the concerns that underpin this amendment, I respectfully disagree with what is proposed. All those convicted of murder already receive a mandatory life sentence. For murders involving sexual or sadistic conduct, the starting point for the minimum term in prison is 30 years. Judges are able to increase or decrease a minimum term from this starting point according to the circumstances and relevant aggravating or sometimes mitigating factors. In addition, and as was demonstrated by the sentencing of Wayne Couzens for the horrific abduction, assault and murder of Sarah Everard, there is also an existing discretion to impose a whole- life order if the seriousness of the individual case is exceptionally high.
We are committed to ensuring that serious sexual and violent offenders serve sentences that reflect the severity of their crime. However, I believe that our current sentencing framework, a crucial component of which is judicial discretion, responds correctly at present to these horrendous cases. The courts can, and indeed do, impose extremely robust sentences where appropriate that fully reflect the gravity of this offending and the appalling—often lifelong—harm that it causes.
As I am on the topic of whole-life orders, I will go slightly out of turn chronologically to address the notice given by the noble Baroness, Lady Massey, and the right reverend Prelate the Bishop of Derby that they oppose Clause 103 standing part of the Bill. Clause 103 makes it possible for people aged 18 to 20 to receive a whole-life order where the crime committed is extremely serious. Clause 103 has to be read together with Clause 102, which expands the range of circumstances where a whole-life order must be the starting point to include the premeditated murder of a child. The current position is that whole-life orders can be imposed only on offenders aged 21 and over. This acknowledges the utmost seriousness of this punishment and its overwhelming effect on an offender’s future. We recognise, however, that there may be some rare cases where it may be appropriate to impose a whole-life order on offenders aged 18 to 20. We propose, therefore, to give judges the discretion to impose a whole-life order on an offender aged 18 or over, but under 21, in those cases.
We have set out an important clarification or criterion for when that sentence would be available. Clause 103(2)(b)(3C) makes it clear that the sentence will be warranted for offenders in the 18 to 20 year-old cohort only where the crime was extremely serious even by the standards of the crimes which would normally attract a whole-life order. We anticipate that this discretion would be exercised rarely. The expectation is still very much that offenders aged under 21 would not receive a whole-life order, but the change will allow judges to impose these sentences for these younger offenders, who are of course still adults, where that is necessary.
Let me turn finally to Amendment 196 which the noble and learned Lord, Lord Falconer, set out. As was stated in the other place, we are sympathetic to the objective of this amendment. The unlawful naming of people whose identity is protected by law ought to be appropriately punished. It is a crime which can have serious consequences and cause serious upset, concern and more.
However, with respect, our view is that the amendment does not go far enough. It is limited to breaches of Section 5 of the Sexual Offences (Amendment) Act 1992. That Act applies where an allegation of a sexual offence is made, and it imposes an automatic prohibition on publishing any material likely to lead to the identification of the complainant. It also covers alleged victims of human trafficking. This amendment would cover those types of victims, but there are many others whose identity is also legally protected, where the existing penalty for breach would be unaffected.
Sometimes the protection is automatic, for example for victims of female genital mutilation and forced marriage, where the breach offence is the same as that in the 1992 Act, or victims, witnesses and defendants under the age of 18 in youth court proceedings, something which I know the noble Lord, Lord Ponsonby, will be familiar with. In addition, reporting restrictions can be imposed at the discretion of a court, for example in relation to underage participants in a Crown Court trial or vulnerable adult witnesses. Since one reason for imposing these discretionary restrictions may be to protect the subject from injury, one should not assume that the discretionary imposition of restrictions is any less serious than the automatic ones.
Contempt of court may overlap with specific breach offences in circumstances where there is a potential impact on the justice process; that would have a two-year maximum. Therefore, we believe there is a strong case for examining this area of law as a whole, rather than amending legislation piecemeal. My right honourable and learned friend the Attorney-General has invited the Law Commission to undertake a review of the law of contempt of court, with particular reference to the interface between that and the criminal law, including the specific breach offences under discussion today. If the Law Commission takes on that task, it would provide a sound basis to look at this area properly and provide some real improvements in the protection the law offers to participants in the criminal justice process.
For the reasons I have set out, I invite the noble and learned Lord to withdraw his amendment and invite the Committee to allow Clause 103 to stand part of the Bill.
Lord Falconer of Thoroton (Lab)
I am obliged to everybody who took part in the debate. There was widespread support around the Committee for the increase in the penalties for the naming of an anonymous complainant. I thought the speech from the noble Lord, Lord Wolfson, was cruel, because it appeared to support it and then talked about the Law Commission. That is years away, so I think we will come back to this on Report. If the Minister would be willing to help me, we could expand the range if he thinks that is appropriate.
In relation to the question of a minimum sentence for rape, as far as the Government are concerned, there is already a minimum sentence of seven years for third Class A drug trafficking offences, a minimum of three years for third domestic burglary and a minimum sentence for offences of threatening with weapons or bladed articles. I am broadly in agreement with the proposition that minimum sentences should be exceptional, but if they are to apply to any case, rape must be the appropriate case.
“Duty to inform victims and families of the Unduly Lenient Sentencing Scheme
(1) The Criminal Justice Act 1988 is amended as follows.(2) After section 36, insert—“36A Duty to inform victims and families of the Unduly Lenient Sentencing Scheme The Secretary of State must nominate a Government Department (“relevant body”) to inform victims and their families of their rights under the Unduly Lenient Sentencing Scheme, and such information provided must include the type of sentence and the time limit for application, and advise that applications must be made to the Attorney General.””
Lord Falconer of Thoroton (Lab)
This is about a completely new topic that we have not addressed before, which is the unduly lenient sentence scheme. The scheme allows the Attorney-General to refer to the Court of Appeal a sentence which he or she regards as being unduly lenient. Only the Attorney-General can do it, there is a 28-day period for referral from the date at which the judge has passed the sentence which is impugned by the unduly lenient sentence application, and it applies only to particular identified serious crimes. From time to time, there is a review of which crimes to which it refers, and the crimes have been changed from time to time—always increased, not reduced. It does not apply to the crimes to which it applies if they are tried in the youth court.
One of the great campaigners for change in relation to this is Tracey Hanson, whose son Josh was brutally stabbed to death in October 2015. The person who committed the murder absconded in a private plane, and many years went by before he was finally arrested and charged, convicted of murder and given a life sentence with a minimum sentence of 26 years. Josh’s mother took the view, completely understandably, that this was an unduly lenient sentence. She knew nothing about the unduly lenient sentence scheme until she was told about it on the 28th day. She got in touch with the Attorney-General’s chambers, who said that it was out of office hours and too late to make an application. It would have had to be the Attorney-General who made it, not Tracy Hanson, so the opportunity was completely lost.
Amendment 196A proposes that the Secretary of State for Justice would nominate a government department —almost certainly the CPS—to inform victims and their families of the type of sentence that has been passed, the time limit for an application to be made by the Attorney-General, and that an application by a victim or their family for an increase in the sentence should be made to the Attorney-General, so you do not end up in a circumstance where the victim finds out only at the very last moment that this right exists.
Amendment 196B would allow in very exceptional circumstances the time limit of 28 days which applies to the ULS scheme to be extended. It should be extended only in exceptional circumstances. Those circumstances should include but not be limited to where the relevant body which is obliged to notify the victim or the victim’s family of the existence of the scheme fails to do so. If there was this limited discretion to extend the 28-day period, that would avoid the feeling of injustice that Josh’s mother and the rest of her family experienced.
My Amendment 196C says that, within 12 months from the date upon which the Bill becomes law, the Secretary of State shall undertake a review of the offences to be included within the scope of the ULS scheme to allow consideration of whether other offences should be added. Amendment 196D seeks to render cases tried in the youth court, where they are for one of the index offences, also subject to the ULS scheme. I beg to move.
Baroness Brinton (LD) [V]
My Lords, I am pleased to support the noble and learned Lord, Lord Falconer, on Amendments 196A to 196D, and I thank him for so ably and eloquently presenting the importance of these changes. I am sorry that the noble Baroness, Lady Newlove, has been unexpectedly called away, but, as your Lordships’ House knows, she was the Victims’ Commissioner, and, through her work with victims, she has asked me to say that she is extremely supportive of this group.
I think that most people are aware of the fundamental right in our justice system to appeal a sentence handed down by a judge. Following a sentence hearing, a convicted offender will meet with their lawyer to discuss what comes next and what their rights are with regard to an appeal. This is a fundamental and correct part of our process, and we should hold it in high regard. But what many are not aware of—and this leads me to the necessity of these amendments—is the unduly lenient sentence scheme, which provides the right for anyone to appeal a sentence. This right is of particular importance to the victims of crime and bereaved family members, and the scheme is recognised as a key entitlement in the victims’ code of practice. Operated by the Attorney General’s Office, it provides this fundamental right, which is an important process for victims and bereaved families and can bring comfort and increased confidence in the justice system.
However, as we heard from the noble and learned Lord, Lord Falconer, these rights are not equal in policy or practice, and many victims find themselves learning of their rights by chance, too late or not at all, all of which can have a devastating impact on a victim’s recovery. The scheme, like an offender’s right of appeal, has a time limit of 28 days. This limit provides some assurance for those involved, which we think is important. However, this is where the parity between victim and offender ends, and the amendments tabled by the noble and learned Lord, Lord Falconer, would rectify the problem. While offenders are told of their right to appeal almost immediately following the sentencing, we know that many victims are never informed of their rights at all.
I will briefly tell you about someone who has been denied her rights under this scheme. Claire, a loving mother to a young daughter, was stabbed repeatedly and had her throat slashed by her ex-partner. Thankfully, Claire survived this most horrific of attacks, which was carried out in the presence of her daughter. The offender in the case was arrested and charged, and plead guilty to attempted murder earlier this year. He was handed a life sentence but with a minimum term of just eight years. No justice agency told her of the unduly lenient sentence scheme, and it was only while speaking to Tracey Hanson, whom the noble and learned Lord, Lord Falconer, referred to, that she became aware of it. She spoke to the police about it, and they incorrectly told her that she could not appeal due to the offender having received a life sentence.
The problem is the lack of clarity about this scheme, and the lack of responsibility for telling a victim meant that Claire was unable to request that the sentence be appealed within the 28 days. And so the man who slashed her throat her in front of her young daughter may be released in as little as eight years. We must stop failing victims who bravely come forward to bring offenders to justice and whom we repay with this appalling treatment and injustice.
The revised victims’ code of practice, which came into force in April and codifies the rights and entitlements of victims of crime, assigns this responsibility for informing victims to witness care units. While this is useful and important, it fails to realise that many victims and bereaved family members will have no contact at all with witness care units, leaving many still unaware of their rights. So we must ensure that victims and bereaved families are informed in good time after sentencing, because it is absolutely vital that they are able to use their right to appeal if they so want.
These amendments also seek that the Secretary of State conduct a review of eligibility under the scheme, opening up the possibility of including further serious offences, with the aim of delivering this vital right to more people. Gareth Johnson, MP for Dartford, speaking in the other place, talked passionately of the experience of his constituents: the family of Gemma Robinson, who was brutally beaten by her partner, who was the subject of a restraining order following a previous assault against her. Following this, her partner was arrested and charged with Section 18—grievous bodily harm—an offence recognised under this scheme. Tragically, Ms Robinson took her own life prior to his appearance in court and the charge was reduced to Section 20, malicious wounding. This offence, as it stands, is ineligible for the unduly lenient sentence scheme, so Ms Robinson’s family could do nothing as a sentence of just 3.5 years was handed down.
I thank the London victims’ commissioner, Claire Waxman, and her office for their tireless work in pushing for reform to the unduly lenient sentence scheme. I thank the noble and learned Lord, Lord Falconer, for tabling these amendments and making the possibility of reform a reality. I urge the Minister to support this amendment, not just for those whom the system has failed but for those whom it can stand to benefit in future—those victims and families who feel that in their case justice was not done.
Lord Falconer of Thoroton (Lab)
I express my gratitude to the noble Baroness, Lady Brinton, and, through her, to the noble Baroness, Lady Newlove, for their support on these amendments. I also thank the Minister for his careful reply.
Again, very briefly, it is disappointing that, in relation to whether there should be a duty on the Secretary of State to get a government department to be under a duty to tell victims of the possibility of going to the law officers, the Minister’s answer was that the witness care units have a code of practice that tells them they should do that, and it is in a pamphlet produced by the CPS. With respect, I take the noble Lord to be accepting that somebody should tell them. If we really want that to happen, we should impose a duty on the Secretary of State to do that. So I am not sure that we are necessarily at odds on the outcome, but I think that, if one is serious about it, this is the way to do it.
In relation to the time-limit point, the defendant can have his time extended, which brings a degree of uncertainty to victims. In my respectful submission, there should be a similar parity of protection for the victims who wish to question the sentence. Again, there can be limits on that exception, and I am more than happy to entertain any limits that the Minister thinks should be put in—but there must be some means of extending it because of justice.
In relation to the other two, I do not think that I can achieve much by referring to them, except to confirm that my intention in relation to Amendment 196D was to deal only with offences that would otherwise be subject to it in the adult court.
I beg leave to withdraw the amendment.
Lord Falconer of Thoroton (Lab)
My Lords, this is a very interesting proposal. I think we all agree, across the House, that where somebody is entitled to automatic release at half or two-thirds of their sentence, if there is proper material from which the conclusion can be reached that the defendant poses a significant danger to the public, then the automatic release date should not apply, and presumably the defendant should then be kept in prison until the end of the nominal sentence. As the Bill is currently drafted—putting it shortly—if there are reasonable grounds for the Secretary of State to believe that the defendant might pose such a risk, the Secretary of State can refer it to the Parole Board to decide.
What the noble Lord, Lord Carlile of Berriew, wants is that, if the Secretary of State forms that view, he or she should refer the decision to the High Court. The High Court would then make a determination on the substance of the issue: whether the prisoner constitutes a danger. The noble Viscount, Lord Hailsham, called it a drafting point, but as I understand the drafting here, if the High Court forms the view that the prisoner does constitute such a danger, the High Court does not determine whether or not the prisoner is released but refers the matter to the Parole Board. In his opening speech on the amendment, the noble Lord, Lord Carlile, said he believes that the operative decision should be made by the Parole Board, not the High Court.
Necessarily, that ends up with a situation where what the High Court is deciding, one way or another, is whether there are proper grounds for the Secretary of State’s belief that the prisoner may pose a risk. It would be necessary to amend the amendment to say that, because otherwise the operative decision is plainly being taken by the High Court, not the Parole Board—and the noble Lord, Lord Carlile, wants the decision to be taken by the Parole Board, which I understand. Once you get to that point—namely. whether there are proper grounds for the Secretary of State’s belief—then it is judicial review, so I am not sure what is added by this proposal.
I do not wish to give away any secrets, but I am sure there are Secretaries of State who, under press or political pressure, would refer such a decision to a body with the power to determine whether or not somebody should be released at the automatic release date. Whether the reference is to the Parole Board or to the High Court, honestly, Secretaries of State will still be guided by political considerations. As far as the Secretary of State is concerned in the notional example given, if they want to make a political point they will refer it to whoever the statute says they should, irrespective of their precise state of knowledge, for political reasons. The noble Viscount, Lord Hailsham, and the noble Lord, Lord Carlile of Berriew, are saying that they will be pushed into it by politics. Well, under his amendment, they will be pushed into referring it to the High Court, and under the Minister’s position they will be pushed into referring it to the Parole Board, which is where the noble Lord, Lord Carlile of Berriew, wants it to end up anyway.
I am not sure that this amendment achieves much, as it pushes you back into judicial review, which is where we are already. I am sympathetic to the position adopted, but—I put this advisedly—if the noble Lord, Lord Carlile of Berriew, was willing to put his money where his mouth is, surely the end point should be that the High Court decides. That would provide a much more effective safeguard. This does not quite get there.
Lord Wolfson of Tredegar (Con)
My Lords, we have had a very interesting debate. The last few speeches have highlighted the problems with the approach that I was going to set out. In short, where we end up on this amendment is, in effect, the High Court taking the decision and not the Parole Board. I shall come back to the “would” point made by my noble friend Lord Hailsham, which I was going to make as well and is absolutely right.
The amendment would require the Secretary of State first to refer high-risk offenders to the High Court. They could then be referred to the Parole Board only with the court’s approval. That is the structure that we are dealing with. The structure in our clause is that the Secretary of State refers directly to the Parole Board. If referral to the High Court is put in as an intermediate process, it would mean two things. First, the High Court may reject the referral from the Secretary of State if it did not agree that the offender would pose a risk of serious harm. My concern is secondly that, if the High Court did consider that the offender would pose a risk of serious harm, it would roll the pitch in a very serious way for the Parole Board.
I therefore have concerns about both the necessity and the benefit of involving the High Court in this process, but nothing I am going to say is intended to undermine two points on which I agree with the noble Lord, Lord German; first, on the importance of due process and, secondly, that we should limit arbitrary power. I suggest that the court does set out due process and limits arbitrary power.
The important point to bear in mind is that the new power is not a re-sentencing exercise. It is not the Secretary of State extending the detention of the prisoner. I fully accept the point made by the noble Lord as to the important boundary between Secretary of State and judge, between Executive and judiciary. I also want to have a strong and independent judiciary; I believe we do. That principle is not contravened by this clause, because it is the independent Parole Board that will make the final decision as to whether an offender is safe to be released early. The Secretary of State has the power to make a referral, but he or she must have a sound basis for doing so and must give the prisoner notice, which must include the grounds for making the referral and give the prisoner the opportunity to make representations to the Secretary of State.
As for the criteria in play, we will closely monitor and record how the power is used. We will publish a policy which clearly outlines the threshold that must be met and the principles which will underpin the Secretary of State’s decision-making procedure in determining whether to refer a case to the Parole Board.