Lord German debates involving the Ministry of Justice during the 2019 Parliament

Mon 18th Dec 2023
Wed 8th Nov 2023
Wed 7th Jun 2023
Illegal Migration Bill
Lords Chamber

Committee stage: Part 1
Wed 15th Dec 2021
Police, Crime, Sentencing and Courts Bill
Lords Chamber

Lords Hansard - Part 1 & Lords Hansard - part one & Report stage: Part 1
Wed 15th Dec 2021
Police, Crime, Sentencing and Courts Bill
Lords Chamber

Lords Hansard - Part 2 & Lords Hansard - part two & Report stage: Part 2
Wed 17th Nov 2021
Police, Crime, Sentencing and Courts Bill
Lords Chamber

Lords Hansard - part one & Committee stage part one
Mon 15th Nov 2021
Police, Crime, Sentencing and Courts Bill
Lords Chamber

Lords Hansard - Part 1 & Committee stage: Part 1
Wed 10th Nov 2021
Police, Crime, Sentencing and Courts Bill
Lords Chamber

Lords Hansard - part two & Committee stage part two

End of Custody Supervised Licence Scheme: Extension

Lord German Excerpts
Monday 13th May 2024

(1 month, 1 week ago)

Lords Chamber
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Lord Bellamy Portrait Lord Bellamy (Con)
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My Lords, I think the House is well aware of the pressures on the prison estate. We have had considerable difficulties in recent times, particularly with a highly increased remand population and the ongoing effect of Covid. The Government have embarked on the largest prison building programme since Victorian times. We have opened two new prisons, and there are two more on the way for which outline planning permission has now been achieved. We are working as well as we can to deal with the situation, but temporary measures are unavoidable, I am afraid, as the Labour Government found when they were in power some time ago. I agree with the noble Lord that sentencing, in terms of community orders and suspended sentences, is very much a subject that should continue to be considered fully.

Lord German Portrait Lord German (LD)
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My Lords, the Government’s approach to this has been rather haphazard. We have moved from 18 to 70 days, and it does not look as if this is getting any better. Has the Minister any news on the Sentencing Bill and the Government’s proposals for people with sentences of 12 months or fewer generally not going to prison? Secondly, when does the Minister expect Dartmoor to be able to take its full quota of prisoners again, having been emptied of most of them?

Lord Bellamy Portrait Lord Bellamy (Con)
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My Lords, I am not in a position to update the House at the moment on the Sentencing Bill, except to say I understand that it will indeed be progressing through the other place in early course. I will write to the noble Lord about the situation at Dartmoor, on which I am not at this moment informed.

Victims and Prisoners Bill

Lord German Excerpts
Tuesday 12th March 2024

(3 months, 2 weeks ago)

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Debate on whether Clause 49 should stand part of the Bill.
Lord German Portrait Lord German (LD)
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My Lords, I rise with the leave of the House and at the request of my noble friend Lord Marks to oppose the Question that Clause 49 stand part and speak to the stand part notices for Clauses 50, 51 and 52.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

When the Explanatory Notes say:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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Lord Bellamy Portrait Lord Bellamy (Con)
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My Lords, as your Lordships know, this group is a stand part challenge to Clauses 49 to 52 of the Bill, which, in essence, disapply Section 3 of the Human Rights Act to prisoner release legislation. The issue before us is, as much as anything, to do with the constitutional balance between Parliament and the courts. It is not about disapplying the Human Rights Act; it is about who does what. What do the courts do and what does Parliament do? That is the issue.

The provisions with which we are concerned include the new release test for releasing prisoners on licence—namely, the public protection test set out in Clauses 41 and 42, which make it abundantly clear that the protection of the public is the overriding factor. The Human Rights Act is also disapplied in relation to the referral mechanism, referring the most serious release decisions by the Parole Board to a court—currently the Upper Tribunal—and to other prison release decisions. As far as I am aware, no amendment has been tabled in this House objecting to the principle of the new public protection test, nor to the proposed referral mechanism—though there is an argument about which court it should go to—nor to the principle of our IPP reforms, except that it is argued that we should go further. Parliament has plainly indicated what it is trying to achieve.

Against this background, where exactly does Section 3 of the Human Rights Act fit in? Lest any misunderstanding persist—which it seems to do—my first point is that nothing in these clauses removes or limits any convention rights enjoyed by any prisoners, or anyone else for that matter, by virtue of Section 1 of the Human Rights Act or under the convention. A breach of human rights may still be pleaded before any domestic court or in Strasbourg in the usual way, whether it be the right to liberty, family life or any other right protected by the convention. Clauses 49 to 51 do not alter or detract from those rights in any way.

Even if—which I do not for one moment believe—anything in the legislation from which Section 3 has been disapplied were held by a higher court to be incompatible with the convention rights, in such a hypothetical case it would be for the court to make a declaration of incompatibility. Then, in accordance with the principle of parliamentary sovereignty, it would be for Parliament to decide what to do—whether to amend the legislation and, if so, in what way. In other words, it is the job of Parliament to make challenged legislation compatible with the convention. It is Parliament’s legislation; it is for Parliament to fix it, and it is the constitutional responsibility of everyone in either House to find a legislative solution.

The problem with Section 3 is that it gives finding the legislative solution to somebody else altogether—namely the court. This is Parliament’s legislation and not the courts’. That was why I said at Second Reading that Section 3 of the HRA is, in essence, a procedural and interpretive provision that requires legislation to be given effect to in a way which is compatible with convention rights. Those words “given effect” have led, in certain circumstances, to the court reading in or reading down words into the legislation that Parliament has passed. In other words, the court is empowered under Section 3 to add to or subtract from what Parliament originally intended. This has been a difficult section to apply. It has required courts to depart from Parliament’s intention and, if I may say so, to stray into the legislative realm.

These amendments directly raise the proper balance between the courts and Parliament when it comes to legislative matters. That issue was highlighted in the 2021 Independent Human Rights Act Review. It was discussed over 80 pages, toing and froing on all sorts of points and suggesting numerous recommendations and amendments, with the majority of the panel finally recommending a series of reforms to Sections 2 and 3.

On the Government’s position that Section 3 is a most unusual power in this respect, I can do no better than refer your Lordships to the trenchant criticism of Section 3 of the Human Rights Act on constitutional grounds by the noble Lord, Lord Pannick, King’s Counsel, present in this Chamber, in his evidence to that 2021 review. His basic point was that it is not the function of the courts to legislate; it is the function of Parliament. Against that background, in the present context, the Government’s position is that, on an issue of importance, such as public protection and prisoner release, it is for Parliament to determine what the test should be.

In the unlikely event of any of those provisions being disapplied, and a declaration being made under Section 4, again, it is for this House and the other place to put it right and not to delegate, abdicate or push away that responsibility on to the courts. That is the Government’s position and it is essentially a question of the constitutional balance between what we do and what somebody else does—in other words, the courts. That is essentially the background to these amendments.

Clause 52 sets out the approach a court should take if there is a challenge on human rights grounds regarding the release of a prisoner. I do not accept the characterisation by the noble Lord, Lord German, that the wording of Clause 52 is effectively saying that public protection is an exclusive requirement; it simply says that that is a requirement to which weight should be given. No doubt, the courts are perfectly capable of arriving at a sensible interpretation of the provision, but the Government’s view is that the importance of public protection is a matter that Parliament can rightly draw to the court’s attention as something to which weight should be given. I will just add that that requirement does not apply to the so-called non-derogable rights under the convention, which are: Article 2, the right to life; Article 3, the prohibition of torture; Article 4, the prohibition of slavery, and Article 7, no punishment without law.

The courts already consider risk to the public. The Bill simply ensures that weight is properly given to that consideration. The essential point is that on these matters, in this context, it is not for someone else to be reading in or reading down what your Lordships decide; it is for your Lordships and for Members of the other House to put matters right.

Lord German Portrait Lord German (LD)
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My Lords, having heard that explanation, on the first part I suspect that this will have to come back when we have an array of former judges of all sorts in this House to test the position the Government have placed on this matter. To a lay person, it seems to be on a trail of chipping away Section 3 of the Human Rights Act, in particular. Therefore, I think this can wait for another day to have that legal learning that I think we will all need to take it on board.

In respect of the Minister’s second point, about weight, it would not be so bad if it were simply “weight”; it would not be quite so bad if it were “great weight”; but it is “the greatest possible weight” and the greatest possible weight to me means virtually everything you can possibly put into it. I will take a simple Welsh analogy. You have a scrum. You put the weight of everybody into it with the objective of pushing the other side off the ball so that you can take it yourselves. That is where you would apply “the greatest possible weight”. There might be a bit of pulling of hair and ears, and whatever else goes on inside a scrum—but I am not going to talk about that any more.

If you think about it, though, the words “the greatest possible weight” are pretty conclusive that what you must do is virtually everything that is in sight. So, I take on board the Minister’s view that the word “weight” is important, but I do not take on board the words “the greatest possible weight”. However, on the basis of the future legal discussion we are likely to have in this House, I beg leave to withdraw my objection to Clause 49 standing part.

Clause 49 agreed.
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Lord German Portrait Lord German (LD)
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My Lords, I too echo the words that have been spoken. Rather than repeating all this or speaking to this in the next group, I will talk about those issues in this group because they are very relevant to these amendments.

I have a series of practical questions. For example, stating which Parole Board members should be involved in a particular case is definitely an interference in the independence of the board. If the reply to that is, “Well we need to make sure that the right people are hearing the right cases”, surely all you have to do is to make sure you appoint to the panels more people who have those experiences available to them. The Government, of course, have gone on the issue of those with enforcement experience. You simply recruit more enforcement-experienced people to the panels.

I agree with what has just been said. These parts of the clauses are analogous to the Government deciding who will be the judge in a particular case. Whether the chair should be involved in individual cases is a matter for the board; it should not be the subject of statutory prescription, as is before us now.

There is concern about the broad powers given to the Secretary of State to remove the chair on the grounds of public confidence. The outgoing chair of the Parole Board, Caroline Corby, said in her evidence to the Justice Committee that the power to remove the chair could see them dismissed if the board made an “unpopular decision”. Unpopular with whom? With the Secretary of State, perhaps. As the noble Baroness, Lady Prashar, just said, she argued that

“the chair of the Parole Board needs more protection than pretty much any other chair of any arm’s length body”.

There is already a termination clause which means that the chair of the Parole Board, or any other member, can be removed. It is therefore not clear why a statutory power is needed. Perhaps the Minister can explain to us why he needs a statutory power rather than relying on the contractual power he already has.

Who is going to judge that public confidence has been breached and when? What is the need for this confidence test? Does the existing contract not provide for appropriate removal? What is going to be the threshold for the new test of breached public confidence? Will it be an opinion poll? Will it be an assessment of the latest newspaper cuttings? What will be the criteria? How will that threshold be applied? As many of us suspect, will it rest merely with the subjective view of the Secretary of State, which is the reason why it appears in the Bill at this point?

Public opinion should not form the basis for ministerial interference in an independent body making quasi-judicial decisions. I say “quasi-judicial” because that is what the Government say they are called. Most people would just call them “judicial”. Last year the High Court noted that:

“It is … well established that, when exercising powers in relation to the Board, the Secretary of State must not to do anything that undermines or would be perceived as undermining the independence of the Board or that encroaches upon or interferes with the exercise by the Board of its judicial responsibilities”.

There is no explanation anywhere why engagement in individual applications is needed. Currently, the chair holds these quasi-judicial judgments in his or her hands. Paragraph 14B of the board’s current rules, which were put before this House in 2022, states that:

“The Board chair may determine an appeal by—(a) upholding the decision made by the panel chair or duty member … or (b) substituting their own decision, which may contain any direction that the panel chair or duty member could have made under paragraph (5)”

of the rules.

Pages 67 and 68 of the root and branch review made no such recommendation to neuter the chair. Instead, the review supported a strategic oversight group and a rules committee to recommend procedural changes to the Secretary of State. The impact assessment for this Bill states that the chair will be appointed for a three-year term, renewable. However, the job pack, a copy of which I have with me, issued by the Ministry of Justice with a closure date of just last month, states that the appointment is to be made for five years. So applications closed in February and people have applied for a job where the tenure of the job—whether it is three or five years—is not known. I hope that the Minister can tell us how that circle is to be squared.

Can the Minister confirm the delegated authority that the Secretary of State has given to Ministers for appointment of the role of board chair? Does it remain as it was when Liz Truss was the Secretary of State, because, on delegation to Ministers, the review said that Ministers

“should be involved at every stage of a competition, including: agreeing the advertising and the advisory assessment panel membership; suggesting potential candidates; being consulted on closing a competition; being invited to give views on candidates; being provided with a choice of appointable … candidates; and having the opportunity to meet candidates”.

If that is still the case, Ministers have an incredible influence over the person to be appointed, and one might reasonably wonder why they might want to sack them.

So those are a lot of practical questions, some of which are contained within the Bill and within the job pack for the new person taking over the role, which need to be clarified. I hope that the Minister in replying will be able to answer them.

Baroness Hamwee Portrait Baroness Hamwee (LD)
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My Lords, I apologise to the Committee for missing the opening part of this debate. I was with representatives of the Bar Council discussing these very issues.

Having chaired a committee that questioned Dominic Raab about his ambitions for the Executive to take over functions which I do not think that any of us regarded as appropriate for takeover, this seems to me to be Members of the House of Lords doing what we do so well. We are trying to help find a way through and answer the questions. We should just be rubbing the whole thing out because of that Executive takeover, which is anathema to probably everybody who is sitting in the Chamber at the moment.

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Earl Howe Portrait Earl Howe (Con)
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My Lords, I have heard the arguments. I hope that the noble Baroness will allow that I have already given an undertaking to take those arguments back with me, and I will do so.

Turning, if I may, to Amendments 170 and 171, the first of these seeks to remove the power currently in the Bill which would allow the Secretary of State to dismiss the Parole Board chair on public confidence grounds and would remove the prohibition on the chair’s involvement in individual parole cases. Amendment 171 seeks to ensure that the chair would continue to be permitted to attend and participate in individual parole cases alongside the more strategic role defined by other amendments to the chair’s functions.

Let me begin by confirming that Clause 54(10) means that any changes in respect of the chair of the Parole Board do not impact on the appointment or functions of the current chair, Caroline Corby. Caroline has led the board well since her initial appointment in 2018, and the Government are very grateful to her for her leadership. However, there might be an exceptional occasion in the future when requiring a change of chair before the end of their appointment period is the best or only option. For that reason, new sub-paragraph (2C) within Clause 54(5) gives the Secretary of State the power to remove a chair from office if it becomes necessary on the grounds of public confidence.

Lord German Portrait Lord German (LD)
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What is the term of office? There is a difference between the impact assessment, which says three years, and the pack against which people have applied, which says five years. Which is true? I am happy if the Minister wants to reply in writing.

Earl Howe Portrait Earl Howe (Con)
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I will reply in writing, if the noble Lord will let me.

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Earl Howe Portrait Earl Howe (Con)
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That is exactly why I said that it is not a power that it is likely any Secretary of State would use often, if at all.

Lord German Portrait Lord German (LD)
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To add to that point, I read out the list of delegations to Ministers about the appointment of the Parole Board chair. I am sure that Members of the House will have realised that it is a pretty extensive power over who gets a job. I wonder whether those delegations have altered. Once again, if the Minister does not know, perhaps he could write to me before we get to Report.

Earl Howe Portrait Earl Howe (Con)
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I should be happy to do so.

Alongside this new power, we are setting out for the first time in statute the functions of the Parole Board’s chair. The intention is both to define the chair’s role as a strategic leadership role and to make it clear that the postholder does not play any part in the board’s decision-making when it comes to considering individual parole cases. The package of measures here, I am advised, ensures that the provisions that we are putting in place are consistent with the European convention.

The noble Lord, Lord Bach, asked me why the Justice Secretary will send only some cases to the Upper Tribunal, and whether he will delegate the power to officials. In line with other significant powers that the Secretary of State operates, such as the power to detain under Section 244ZB of the Criminal Justice Act 2003, which allows the SSJ to override a prisoner’s automatic release date and refer the case to the board, the operation of the power will be restricted to cases where it is considered necessary to take the not insignificant step of referral of a case via an operational policy.

It will be up to the Secretary of State to decide which of those cases they would like to refer to an independent court for a second check. We will develop criteria to ensure that this power is used only in those few cases where it is in the interests of protecting the public and maintaining public confidence. It will also be up to the Secretary of State, if he or she wishes, to delegate the power to senior officials, but we will ensure that there is a robust process in place.

I am of the view that retaining this clause—having a safeguard in case removal is ever necessary and being clear about what the role of the chair is—is vital. However, as I said at the start, I have listened carefully to what the noble and learned Lord and other noble Lords have said. I understand the concerns expressed. Without commitment at this stage, I undertake to consider the issues very carefully, in conjunction with my noble and learned friend, between now and Report.

Lord German Portrait Lord German (LD)
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Before I sum up on behalf of these Benches, I pay tribute to the noble Lord, Lord Carter of Haslemere, for his wise and thoughtful speech. Now that he is out of that Box, I think we are all going to benefit from his wise words in the future. I must pay absolute tribute to him for a splendid maiden speech in this Chamber.

This Bill is heading on the right track, but there is a substantial number of bumps, deep potholes and curves which will need sorting before it will be best suited to reach its destination. It is sad that this Bill is of two parts—a victims’ part and a prisoners’ part. As many noble Lords have said, it tends to deflect from the importance of one or the other, and probably this would have been better in two separate pieces of legislation. But, while this Bill is on the right track but needs amending, it falls very short. I am going to mix my metaphors a little, because this Bill has been late out of the station, but in this House we have a duty to ensure that it gets to its destination in a fit and proper state.

I will speak largely about Part 4 of the Bill, but I want to pay tribute to my colleagues who have spoken about earlier parts of the Bill and it is important to recall the main issues my noble friends have raised. My noble friends Lady Brinton, Lady Burt, Lady Hamwee and Lady Benjamin all raised the gaps in the definition of victims, including the rights of rape victims, victims of anti-social behaviour, victims who are coerced and, as explained by my noble friends Lady Brinton and Lady Benjamin, children who are subjected to sexual and domestic abuse—crimes of the most heinous kind.

My noble friends Lady Hamwee and Lady Brinton emphasised the need for the victims’ code to have a statutory basis, with a statutory duty for public services to deliver the new rights to these victims. The costs of this provision are strangely absent, as is an impact assessment. I ask the Minister: will we have an impact assessment to cover Part 1 at some stage in this process?

My noble friend Lady Hamwee raised the issue of victims having to pay for transcripts. Can noble Lords imagine the outcry if the public had to pay to download Hansard? I think that would probably shake at the roots of what we try to do in this Chamber.

My noble friends Lady Brinton, Lady Hamwee and Lady Burt spoke of the need for an immigration firewall—we need to protect migrants’ rights to data privacy to ensure that they are free to come forward in the same way as other victims, and my noble friend Lady Burt pointed out quite rightly that currently six in 10 victims do not receive their rights.

This is indeed a catalogue worthy of change, which we on these Benches will pursue during the passage of the Bill. As my noble friend Lady Brinton put it, there are a lot of “shoulds” in this Bill which need to be changed to “musts”.

In Part 4, I want to raise several issues, but the one at the root at some of them is what I call the “public confidence” issue. It is twice used in the Bill, first as the judgment to be used by the Secretary of State to refer a case heard by the Parole Board to the courts and secondly as a judgment test for the Secretary of State to remove the chair of the Parole Board. In other words, it hands power to the politician from the independent board. The problem is that the public confidence test is both undefined in the Bill and subjective. The director general operations of His Majesty’s Prison and Probation Service in another context said that using these words

“is highly subjective and, as a result, has been difficult to apply in practice”.

The Howard League for Penal Reform points out, from a High Court judgment this year, that

“this policy criterion … adds nothing”.

The court found that all matters said to be relevant to the issue of public confidence were aspects of the prisoners’ risk, with no factor going to public confidence being distinct from a risk factor. The Howard League further states that public opinion should not influence the independent judicial process. I wonder whether the Minister agrees with that statement.

I turn to the disapplication of Section 3 of the Human Rights Act, mentioned by many noble Lords. It is a growing trend within this Government. First, it conflicts with the statement in the Bill. I know that the Minister has asked for us to understand why it says on the face of the Bill:

“In my view the provisions of the Victims and Prisoners Bill are compatible with the Convention rights”,

when, later on, we are asked to disapply the convention rights. I hope that he can tell us how both those statements are correct. What is the justification for the difference of fact between those two statements in the same Bill?

Secondly, on a more general point, could the Minister tell us what the Government object to in Section 3 of the Human Rights Act? It would be good to know what it is.

Thirdly, as many noble Lords have said, a human right is applied universally. As soon as you carve out that a right does not exist for one group of people, it ceases to become a universal human right. Does the Minister agree that a human right applies to all humans, not just some of them? As my noble friend Lady Hamwee put it, the penalty for crime is the loss of liberty but not the loss of rights.

Many noble Lords have spoken about the problems with the IPP section of this Bill. The changes made by the Government in the Commons are welcome, but they do little or nothing, as the noble Lord, Lord Moylan, pointed out, for those still trapped in the system. There are around 1,200 people sentenced under the IPP rule who have never been released, and about 1,600 who were in custody who were released on licence but have since been recalled. This cohort will first need to convince the Parole Board that the risk to community has been reduced enough for them to be released on licence and remain out of prison on licence for a further two years before the provision to cancel their licence will apply. As many noble Lords have said, the Justice Committee in the Commons recommended re-sentencing as the best way in which to bring this dreadful and much-abused sentencing policy to an end. Will the Minister give attention to using the Justice Committee’s approach for this cohort of IPP prisoners?

There are also practical issues with this Bill that need sorting out. The impact assessment, which needs updating, states that a further 640 prison places will be required. The prison estate, as we all know, is already full. The extra cost to the public purse of building additional prison places will be £250 million over the next decade; the cost of running them will be £28.7 million a year. If those figures are no longer correct, because they were put in place and outlined before the changes were made in the House of Commons, perhaps the Minister can tell us whether there will be a new impact assessment that is to alter those figures. If they are to stand, they are somewhat important to our knowledge and understanding of how the Bill might work.

Additionally, can the Minister tell the House whether there will be a disproportionate impact on black and ethnic-minority prisoners as a result of this Bill? There are also questions around the availability and suitability of community support once people are released from prison and, in particular, the need for mental health services.

I turn to the impact the Bill will have on Parliament and the way it can deal with matters relating to it. Clause 59 basically says that if the Government wish to amend primary legislation, to change it in some way or to repeal or revoke it, they can do that by the affirmative measure of a statutory instrument. It further states:

“Any other statutory instrument containing regulations under this Act is subject to”

the negative procedure. I am sure that the Committee of this House will want to look at that very carefully, but certainly I find that a very strange way in which both Houses of Parliament will have the opportunity to scrutinise major change to the Bill when it comes about. These are all issues that will need exploring as the Bill passes through the House.

Finally, there are the issues relating to the Parole Board which need further examination. My good colleague, the noble and learned Lord, Lord Thomas of Cwmgiedd, expressed that in his normal, vigorous, Welsh manner. It is not just because I am Welsh also that I absolutely agree with him and the manner in which he put it. What is the need for the use of the public confidence test for the removal of the Parole Board chair? Does not the existing power for the removal of the chair provide an appropriate safeguard? Besides which, are we prepared to have a politician making decisions, rather than an independent body which has judicial functions? I would be grateful if the Minister, in replying, could also lay out the reasons for excluding the chair from having a role in individual parole cases. If the chair is to be responsible for the operation of the Parole Board, why on earth can the chair not have a part in those deliberations?

The Bill falls short in an important range of areas, and it will need amendment. I look forward to future stages of our work on it to ensure that it can meet its fundamental objective of an effective, efficient and just victims’ rights system, and a just system for rehabilitation of offenders. To return to my earlier metaphor, this train is years late leaving the station, but when it does leave, it must be in the best condition for those victims who, unfortunately, have to travel on it, and for them to have their rights known, available and enforced.

King’s Speech

Lord German Excerpts
Wednesday 8th November 2023

(7 months, 2 weeks ago)

Lords Chamber
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Lord German Portrait Lord German (LD)
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My Lords, I first lay out my interests as set out in the register. I too want to pay tribute to Lord Judge—I got to know him very well in the past three years—and in particular the work that he started in thinking about how we deal with legislation in this House, particularly secondary legislation and statutory instruments. I think it would be wise for this House to think about how we continue that work in the future.

We heard three maiden speeches today, and I noticed that they were all very different indeed. I very particularly point out to the noble and learned Lord, Lord Burnett, that we will be needing his skills as some of this legislation that we are talking about today requires setting aside human rights legislation which we are currently party to. We will certainly need all the legal expertise we can get.

This has been a thoughtful and very broad-based debate. In order to sum it up, I invite noble Lords to think of it as an artist painting three pictures: in one, there are sticks being used to punish people; in the second, there are sticks or staffs being used to help people stand upright and move along; and in the third, the artist is describing the shortage of sticks altogether. Translated into this debate, the first picture is about the punitive measures contained within the six Home Office and Ministry of Justice Bills we are construing today, the second is about the supportive measures to assist in creating a better society for people to move on in their lives, and the third, naturally, is about the importance of the right resources to achieve the ambitions set out in the first two. From these Benches, there are some measures we support in the government programme, some that we clearly do not, some which may need changes, and, importantly, many which will work only with the correct resources—money, people and facilities —to make them work.

The third area of focus today is devolution. I do not know whether it was put in today’s agenda deliberately or whether a home had to be found for it somewhere. Anyway, I will say a few words about it later and draw some conclusions from what we have heard in this debate.

Many Members have talked about issues relating to sentencing. My noble friend Lord Beith pointed out that tougher sentences do not work, as we have seen sentence inflation ratcheted up across the whole sentencing spectrum. As my noble friend Lord Marks said right at the outset, locking up people without hope just stokes despair, and there is now a trend moving towards greater punishment.

We had a discussion about the role of the police. My noble friend Lady Hamwee warned us of down- grading the work on missing persons by piling on extra responsibilities for the police.

We looked at the state of our prisons. My noble friend Lord Dholakia pointed out how government actions have filled our prisons to bursting point, a point also emphasised by my noble friend Lord Thomas of Gresford.

On victims, my noble friend Lady Hamwee said that victims are to be valued; that we need them and must care for them. My noble friends Lady Brinton and Lord Marks said that the victims Bill is not tough enough and that there is a need for a statutory agency to uphold the services needed.

Finally, there was a singular speech at a very particular moment by my noble friend Lady Benjamin on a fair deal for children. She said passionately that the problem particularly facing black children in tackling discrimination and marginalisation in the criminal justice system and the care system must be addressed.

Many of the Bills and measures that we are presented with cover detention matters. There are plans for longer sentences for the most dangerous criminals, a presumption against prison sentences of 12 months or less and proposals to send prisoners to other countries for their detention. These plans are set against the backlog in our court system, which was very ably raised by my noble friend Lord Thomas of Gresford, who explained in detail what that has meant. Huge delays in cases being heard are resulting in people on remand being mixed with those serving custodial sentences. Huge overcrowding on the prison estate and sentence inflation mean that people are serving longer in prison as sentence lengths grow. My question to the Minister is: how will any of the measures outlined in the gracious Speech make a dent in the unprecedented backlog of court cases that we have?

We on these Benches commend the presumption against short sentences, but the community sentences which will replace them are not a cheap offer. This was pointed out by the noble and learned Lord, Lord Thomas of Cwmgiedd. Of course, he is absolutely right, because the resources are needed to make them run well. Of those serving sentences of 12 months or less, 55% go on to reoffend. That point was raised by my noble friend Lord Thomas of Gresford—we are very blessed in this Chamber to have two Welsh Lord Thomas’s who can treat these matters in a uniform manner. This is the challenge the Government have to face up to. Again, what increased resources are the Government intending to put into effective community sentencing in order to realise the potential of dramatically reducing reoffending? For those transferred to serve a custodial sentence in another country—at great expense—how are rehabilitative measures to take place, with the intention of turning people’s lives around, when they are not in this country?

I now turn to the Illegal Migration Act measures referred to in the Government’s programme. It was mentioned by several noble Lords, particularly in the strong contribution from my noble friend Lord Roberts of Llandudno, that we need to treat asylum seekers as people and friends. The central tenet of the Illegal Migration Act—detention and removal—has yet to be brought into force. I suspect that we all realise it is perhaps dependent on the court case. We still do not have the detail of how, where and at what cost people will be detained. There is the proposed reopening of Haslar IRC and Campsfield IRC, and additional capacity at Yarl’s Wood IRC, Manston and a new site in Bexhill, east Sussex, but has any work started on those places? Is anything ready for people to come in? I do not know.

The first question I would like the Government to answer on this is: where will they find the capacity to detain those in limbo who are left liable under the Illegal Migration Act? What plans are in place to create the detention spaces? When do they intend for those spaces to be available? What additional capacity is being given to legal aid providers to ensure that those in detention have access to legal advice? These are all questions for which we need answers, and we need answers now.

I turn very briefly to tents. I do not have to give the context, because so many Members of your Lordships’ House have used the word and talked about the actions of the Secretary of State. I want to know, before I ask my question of the Minister, whether this was a Secretary of State who had taken the “com” out of “compassion”. I looked at the definition. Compassion means “sympathetic pity and concern for the sufferings or misfortunes of others”. If you take the “com” out, you are left with “passion”, which is described as “strong and barely controllable emotion”. Will the Minister tell the House whether the proposal to ban charities distributing tents to the homeless will be in the crime and justice Bill? A simple yes or no answer will do.

I turn briefly to devolution. Concerns have been expressed, particularly by my noble friend Lord Stunell, about the unconnected zig-zag approach that we have seen—more zigs, or more zags—to dealing with the issues in England of how to make devolution work properly. But, yesterday, I listened to Questions to the Prif Weinidog—I like using that phase because, in Welsh, it means both First Minister and Prime Minister —in the Welsh Parliament yesterday. He was concerned that the word “Wales” appeared nowhere in the gracious Speech. While spend on rail links in the north of England was present, there was no mention of the electrification of the north Wales railway line. Is it still the Government’s intention to proceed with electrification, which would do so much to strengthen the economy of north Wales, improve the linkage with the rest of Great Britain and fulfil the requirement to support the union?

Secondly, the gracious Speech talked about the advanced British standard bringing together vocational and academic qualifications—that is a laudable ambition. However, powers over qualifications lie with the Welsh and Scottish Parliaments. Is the title “Advanced British Standard” in advance of itself? The Welsh baccalaureate has been in place for many years. Is it the Government’s intention to override the powers of the devolved Parliaments and impose a qualification on Wales and Scotland? If so, they had better take note of Michael Gove’s definition of undermining the institutions of Great Britain, because I think such an action would fall into that category.

Much of what the Government are offering is entitled “for the long term”—we can see it in the documentation. That makes me wonder whether the measures before us are simply sticking plasters over jobs that need to be done for the long term. Many noble Lords have talked about how our system is broken—it is, and it needs wholesale repair from one end to the other, looking at the needs that have been expressed by so many noble Lords and considering where the arrow is pointing between punishment and rehabilitation. I would like to move that arrow so that we can get more people back to having meaningful lives in this country.

Baroness Hamwee Portrait Baroness Hamwee (LD)
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My Lords, Clause 7 relates to further provisions about removal. I have three amendments in this group. Amendment 55—I apologise for the grammatical error in it—would require the Secretary of State to publish guidance about the criteria for the order in which individuals are to be removed. It is not likely to be a tidy process and, as we have been debating for two and a half days now, an awful lot of people will be involved.

Therefore, as much transparency as possible about the process is required. For instance, will decisions be taken on the basis of how long individuals have been detained compared with others, where they have been detained, the receiving country, a mixture of all of these, or none of them? On Monday we heard from the noble Lord, Lord Carlile of Berriew, about a woman who had been waiting for 10 years—sadly, not that unusual a situation. The people who will be subject to these provisions are left not knowing what is going to happen to them. The lack of certainty is, to my mind, a cruelty among many others. To know not just that the decision is unfavourable but when its implications are going to be felt in the form of removal, as distinct from detention, will be very relevant.

Amendment 55A probes the process of notifying the Secretary of State under Clause 7(3)(b) regarding a suspensive claim, that the individual P

“does not intend to make a suspensive claim”

and proposes that that can be made through an immigration officer. I assume that that is the case. After all, the Secretary of State does not deal personally with every single application. However, with regard to the reference to notification being given orally, I want to raise the problem in my mind that it is too easy to be misrepresented when you make an oral representation, or simply not heard. I hesitated about tabling an amendment here because, on the other hand, I do not want to disadvantage an asylum seeker by requiring notification in writing if that is a difficult thing to do. I assume that P’s representative can give the notification on P’s behalf, but I would be glad of that assurance and also to know who that representative can be. Would it have to be a legal representative or could it be somebody who was providing support through one of the many organisations that work in this sector?

Amendment 57A would leave out the term “or indicated” in Clause 7(8). That provides for directions to transport officers about removal in a ship or whatever other vehicle

“specified or indicated in the direction”.

What does “indicated” mean? Does it mean “a ship” or “a train”? I suppose the latter would be Eurostar or perhaps a train between Northern Ireland and the Irish Republic—I do not know. It seems—again referring back to the previous debate—that “indicated” is perhaps a rather loose term. I may be wrong—I will probably be told that it is used in other legislation—but I would be glad to hear from the Minister what we should understand by it. I beg to move Amendment 55.

Lord German Portrait Lord German (LD)
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My Lords, I have Amendment 57 in this group, and also the clause stand part debate. I will address my Amendment 57 first, but there are serious matters in the clause as a whole which I will come back to in a moment.

Amendment 57 addresses the far-reaching and perhaps unrealistic legal obligations being placed on private actors and companies to effect removal. This includes the captain of a ship, the pilot of an aircraft, the train manager or the train driver being required to enforce removal of an individual by enforcing detention on the ship, aircraft or train, if required, to prevent disembarking before removal has been fulfilled—and also of course to do it the other way round, as these people are mandated to ensure that the person is taken by those means of transport to the country to which they are being deported.

Two things arise from this part of the clause. One is that it gives inordinate powers to the Secretary of State to requisition not just ships, boats, aeroplanes and whatever else but the services of those who run those means of transport to detain and restrain those who are being transported. I will address in a moment the criminalisation of those people in making them subject to this sort of regulation.

The Explanatory Memorandum says that the Government will procure those services by privately chartering planes or ships or whatever but, clearly, this part of the clause, as drafted, gives the power to the Government to requisition those services. The Explanatory Memorandum also says that the Government can requisition scheduled services—scheduled flights to Kigali, perhaps. There are no direct flights from the United Kingdom to Kigali, by the way, and the flights are all operated by airlines based mostly in the European Union. So the Secretary of State can intervene in scheduled flights and require that they take the asylum seeker to a destination.

The other problem is that clearly, there has been no consultation on this matter with those who are now going to be required by the Government to execute this role on their behalf. To emphasise that, I will read to the Committee the views of the UK Chamber of Shipping, the people whose vessels are likely to be requisitioned:

“We are greatly concerned about these clauses becoming law which could require the ship’s master and crew to detain passengers, something which they are not trained to do, at the direction of the Government. The clauses also seem to allow the Secretary of State to set the period for which a ship’s master is required to detain a person on board a vessel—this could potentially lead to a situation where a ship’s crew is stuck in port for an indeterminate amount of time having received an instruction to detain individuals who are then awaiting the outcome of various legal processes to determine their rights. We are concerned that this puts seafarers at much greater risk from positions of conflict and potential harm”.

That is from the chamber of shipping, which obviously has not been consulted. We have also received a letter from the RMT that makes the same points.

The issue here now is: why has this power been taken? The situation is very similar to that in the Nationality and Borders Bill, which, Members of the Committee will remember, would also have criminalised seafarers who perform humanitarian rescues of persons in distress at sea and bring them to the UK, but those provisions were dropped from that Bill because these people should not be criminalised in this manner.

My first question to the Minister is: if it was determined and agreed by Parliament that this sort of clause was not required for the Nationality and Borders Bill, what is different now? How are the circumstances different? Is it because there are many people—airline pilots or crew, perhaps—who have not been willing to deport people in the manner the Government propose? Secondly, is it because the Government are not intending to provide anyone to accompany these people on their journey but are expecting them to be dealt with entirely by the crews of existing means of transport?

It is beyond my ability to understand why this law is now being put in place when it was previously deleted from an Act that had some of the same intentions. It seems to me that this is an unworkable section of the Bill, particularly in respect of people’s understanding of how they are to be expected to carry out jobs for which they have received no training, in which they have no experience and which they may find morally repugnant.

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Lord Murray of Blidworth Portrait The Parliamentary Under-Secretary of State for Migration and Borders (Lord Murray of Blidworth) (Con)
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My Lords, Clause 7 makes provision for a removal notice to be given to a person and specifies what information this must contain. Each notice must specify that the individual is to be removed under the duty, be clear on their destination and set out a claim period in which to make a factual suspensive claim or a serious harm suspensive claim. That is, of course, suspensive of removal.

The noble Baroness, Lady Hamwee, described her Amendment 55 as a probing amendment, seeking to elicit our intentions as to the order in which individuals will be removed from the UK under the duty to remove in Clause 2. The whole purpose of the Bill is to remove persons who satisfy the conditions as soon as practicable. On the day of commencement, we will be dealing with two separate cohorts. First, there will be those who enter the UK illegally on or after the commencement date. Putting unaccompanied children to one side, as we already have debated how they will be considered, our aim will be to process new arrivals as quickly as possible as they arrive. Clearly, the speed with which individuals are removed will depend on whether they consent to a voluntary departure or, if not, whether they make a suspensive claim. Secondly, as we have discussed, the Bill will have a retrospective effect and the duty to remove will apply to those who entered illegally on or after 7 March this year. Where, in the case of this cohort, any asylum or human rights claim has not been decided by the commencement date, we will commence removal action in accordance with the duty in Clause 2, in parallel with the enforcement action that is being taken against new arrivals.

I assure the Committee that the necessary planning is under way to support the effective and efficient implementation of the Bill, which will ensure that we have an integrated and robust end-to-end process from arrival through to removal. This will cover the use of detention, case-working operation, management of appeals and the logistics associated with the returns themselves. I agree with the noble Baroness that development of robust guidance and training will be a key component across all of this. However, while work on implementation is well under way, we should not get ahead of ourselves. First, we must get the Bill on to the statute book in a form that is operable. We cannot be legislating for a scheme that is so full of holes that it is unworkable.

Amendment 55A seeks to probe how the process will operate, should an individual indicate that they do not wish to make a suspensive claim. If an individual notifies the Secretary of State that they do not intend to make a suspensive claim, the person may be removed to the country or territory which they have been given notice of. As the noble Baroness suggests, such notification may be to an immigration officer or a Home Office official. Where it is given orally, it will be duly recorded. I hope that affords an answer to her point.

Amendment 56, tabled by the noble Lord, Lord Coaker, would set out in statute two additional requirements to the notice, which must be given to the person before they may be removed—that it is provided in a language which they understand and provides information on how to access legal advice. It would be prohibitively expensive to provide translations of decision notices in all possible languages and dialects up front, and there would be a time delay in doing this on an individual basis. It is therefore more efficient to work with interpreters. It is already our current policy to ensure, when serving notices in person, that the contents are explained to the individual in a language which they understand, using interpretation services where required. We also provide information on how to access legal services where relevant.

On the question of legal advice, I reassure the Committee and the noble Lord that, in giving this notice, we will ensure that we also provide information on how to access any legal advice which individuals are entitled to and on how to make a voluntary departure. We will discuss this further in relation to the legal aid provisions, which will come before the Committee in the next few days. Therefore, it is unnecessary to put these additional requirements into the statute.

Amendment 57, in the name of the noble Lord, Lord German, deals with the legal obligations that these provisions place on transport operators. The noble Lords, Lord Davies and Lord Paddick, the noble Baroness, Lady Jones, and my noble friend Lord Balfe raised the same point. This amendment, as the noble Lord, Lord Davies, pointed out, overlaps with his own group of amendments, which we are debating in the next group. I hope that the noble Lord, Lord German, will be content if I deal with the substance of his Amendment 57 when we reach Amendment 57B.

Amendment 57A seeks to test the drafting of Clause 7(8), where it refers to a vehicle being

“specified or indicated in the direction”.

A direction “specifying” a ship, train, aircraft or vehicle may refer to a particular ship et cetera scheduled to depart at a specified date and time, whereas a direction “indicating” a ship may be a more generic item, for example, specifically or simply referring to a flight to depart that day rather than to a particular flight. Moreover, I point out that the drafting here is drawn from and reflects long-established terminology used in Schedule 2 to the Immigration Act 1971.

I will deal briefly with Clause 9. It simply makes a number of consequential amendments to existing immigration legislation to ensure that it works smoothly. There is no contradiction alongside the new provisions for removal in the Bill.

To respond to the noble Lord, Lord German, persons served with a removal notice will have eight days to submit a suspensive claim beginning from the day that they were given such a notice. We will come on to Clause 54 in due course; as I have already said, it provides for free legal advice for those issued with a removal notice. To answer the noble Lord, Lord Bach, persons subject to the duty to remove will have access to advice.

Lord German Portrait Lord German (LD)
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I was interested in two stages. The Minister has talked about when the notice of removal is issued. Presumably there is also a statement of inadmissibility when you have arrived, because it takes some time to prepare the document or whatever the detail is for a removal certificate or notice. Is there an earlier notice? If so, is that the place where people can seek advice?

Lord Murray of Blidworth Portrait Lord Murray of Blidworth (Con)
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I do not have the answer to that at my fingertips but, if I may, I will revert to the noble Lord with it. I suspect that the availability of legal advice will be drawn to the attention of individuals at the earliest possible time, but I will check that point and come back to the noble Lord.

In conclusion, the noble Lord, Lord Coaker, made some valid points on which I will further reflect. I hope I have at least gone some way to respond to the probing amendment of the noble Baroness, Lady Hamwee. On that basis, I ask whether she is content to withdraw her Amendment 55.

Baroness Hamwee Portrait Baroness Hamwee (LD)
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My Lords, it is Committee stage and, as the whole Committee knows, that is what I will do.

On this amendment, the Minister said, possibly twice, that things will be done “as soon as practicable”, but we know that not very much is practicable. It sounds like a parallel, idealised—well, it is not ideal to me but it may be in the Government’s mind—universe where all is possible. On the previous group, my noble friend referred to being somewhere within the wizardry of Oz. I do not know who is which character, and perhaps it would be inappropriate to speculate. However, the point about uncertainty in the minds of the individuals concerned is serious, which is why I made it earlier.

I do not think the Minister answered my question on Amendment 55A about whether notification can be given by a representative of the individual and whether that has to be a legal representative or could be a support worker from an organisation in the sector. Is he able to respond to that now?

Lord German Portrait Lord German (LD)
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I also asked a question to which the Minister did not reply, about a person escaping from South Sudan via Kenya. Kenya would be treated as an unsafe country because it is in Schedule 1. Could the Minister respond to that when he has a moment?

Lord Murray of Blidworth Portrait Lord Murray of Blidworth (Con)
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I apologise for not answering the noble Baroness’s question. Yes, is the answer; representatives could be provided in that way.

To reply to the hypothetical situation that the noble Lord referred to about someone from South Sudan travelling via Kenya, it would depend on the facts of the specific case and whether the conditions were met. It is perhaps not directly relevant to the debate we are having on this amendment, but I am happy to consider that hypothetical in more detail and write to the noble Lord.

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These provisions simply carry across provisions that have already been on the statute book for over 50 years and been operated without difficulty. In answer to the noble Lords, Lord Hacking and Lord Coaker, I suggest that these are workable provisions. They have been so without adverse comment for 50 years. I hope therefore that I have been able to provide some reassurance to the noble Lord, Lord Davies—
Lord German Portrait Lord German (LD)
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We are discussing the issues raised in the previous group and I accept that the Minister wants to talk about them now. I also accept that there are provisions in existing law. Perhaps the Minister can tell us why, therefore, the Government need to put these provisions into the Bill if there is already legislation that stands by that. The difference that I can perceive is the requisitioning of services, particularly transport services. That may be slightly different from what we had before. If the Minister cannot say exactly why these provisions are needed, because they are already in existing powers, there is no point putting them into the Bill.

Lord Murray of Blidworth Portrait Lord Murray of Blidworth (Con)
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The powers in Schedule 2 to the Immigration Act will continue to apply to those being removed who are not subject to the new duty in the Bill but are otherwise liable to removal from the UK. The powers in the Bill will relate to those who fall within the cohort in Clause 2. They provide clarity and certainty by being present in the Bill in this context. It is also clearly right that the 1971 Act powers need to be applied to the Bill, so that is the purpose for their inclusion. I hope that answers the noble Lord’s question.

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Lord Bishop of Durham Portrait The Lord Bishop of Durham
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My Lords, I refer to the register of interests and my involvement with the RAMP project and Reset.

I thank the noble Baroness, Lady Lister, for tabling Amendments 57C to 57G to provide us with the opportunity to discuss issues relating to the level of support that will be provided for those declared inadmissible but who are unable to be removed from the country. I too am highly grateful to the Refugee Council for supporting us to probe this area of policy well, especially in the absence of an impact assessment.

Before I outline questions for the Minister, it is important to note that those deemed inadmissible will include not just those whose asylum cases would likely have been found valid but individuals who would not have qualified. In the absence of any return deals, this could leave the Government in the absurd position of needing to support at public expense those who could be appropriately returned to their own country.

The Government will also need to support those excluded from the asylum system, who of course could support themselves and their families through employment after gaining refugee status. Let us remember again that more than three-quarters of asylum cases assessed last year were found to be valid. Support will need to be indefinitely provided to these families, and every year this group will increase in number. I hope that these amendments, while raising technical issues, will also help us to understand the rationale behind this and the costs associated with this approach.

My noble friend excellently laid out the grave mental health impacts of being confined to a life of permanent precarity and inescapable destitution. I remarked at Second Reading that this amounts to the continuation of detention simply without walls. It is therefore vital to understand what level of financial and accommodation support will be provided to those living in this state-sanctioned situation. I will try to add complementary questions to those already posed, but there will inevitably be some overlap.

Currently, far more people are supported under Section 95 of the Immigration and Asylum Act 1999 than under Section 4. According to Home Office statistics, in the first quarter of this year, there were 11,662 applications for Section 95 support, compared with 642 under Section 4. The Bill before us will change that, as those people whose claims are declared inadmissible will, in most cases, not be eligible for Section 95 support and instead will need to rely on Section 4 to avoid destitution.

I will ask the Minister some questions. First, how will someone who is, in effect, banned from claiming asylum be able to apply for Section 4 support? It is not clear, as the current guidance for Section 4 states that those deemed inadmissible cannot apply on the grounds that there is no viable route of return to their own country as they are due to be removed to a third country. Individuals will also not be able to judicially review the inadmissibility decision and cannot demonstrate that they are taking reasonable steps to leave the UK, given that their country of origin may be unsafe, and they will not have permission to enter another jurisdiction. How will applications from those with inadmissible asylum claims therefore be treated when they apply for support?

Secondly, what will happen to those who have arrived since 7 March and are currently in receipt of Section 95 support—a number already in the several thousands? Will their asylum claims be immediately declared inadmissible, removing eligibility to Section 95 support in one fell swoop? Can the Minister clarify what assistance this group will be given to apply for Section 4 support, or will he commit to automatically transferring people to Section 4 support without requiring a further application? Finally, what assessment has the Home Office made of how many people will be supported under Section 4 in the months and years after the Bill has come into effect? I stress that, to support the effective scrutiny of the Bill, we must know how many families with children will be left solely reliant on Section 4 support.

This set of amendments highlights major questions which remain unanswered about how the Bill is intended to work in practice, beyond the mantra that people will be “swiftly detained and removed”. These are not needlessly prosaic questions to frustrate the passage of the Bill, but a genuine attempt to help those on the front line plan their operational response, which we heard the Minister say earlier was well under way in its planning.

As the Government know, the asylum support system plays a vital role in ensuring that those who would otherwise be homeless and destitute, and who are unable to work and support themselves, have access to basic accommodation and financial support. There is a debate to be had about what form that accommodation should take and how much the financial support should be, but that debate is meaningless if the system is inaccessible. If the system is not adapted to respond to the circumstances created by the Bill, tens of thousands of people could find themselves with no support. On top of the intolerable consequences that this will have for individuals and families, it will inevitably lead to local authorities, faith groups, communities and voluntary groups picking up the pieces.

We often find ourselves in moments of our lives needing to console ourselves and our loved ones that this stage is only temporary and that hope remains. I am constantly in awe of refugees who live with such instability but retain that sense of a brighter future. It is therefore only right that I close my comments by stating the obvious: there is a different way, where asylum seekers have their applications processed in an effective and timely manner so that hope, not desolation, remains a possibility.

This is my week for making apologies. I have to be in Durham very early tomorrow and trains up north are limited, so after dinner break business I will not be able to contribute on those things that I said I would. However, I expect my good friend the right reverend Prelate the Bishop of Southwark to be present and to speak, in his name, on those matters.

Lord German Portrait Lord German (LD)
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My Lords, it is a pleasure to speak after the right reverend Prelate. I make no apologies for supporting this group of amendments and I signed the stand part proposition to probe these issues, because they are of such great importance. I also make no apology for using the word “assessment” very frequently in what I am about to say. The Minister will gather that what I am after is some of the contents of the promised impact assessment before it eventually appears.

Clearly, the essence of the clause is to ensure that people get some support for accommodation and subsistence while they are in this world of being inadmissible but have not yet been removed from the country. The starting point here is: how many people are there likely to be in this situation? I have previously asked the Minister whether he thinks that people who are covered by the duty to remove will actually be removed quickly. In other words, will it be in six or nine months? An estimate will do. That is my first question, because it will give us a sense of the size of the problem that we are about to face. We would then be able to identify and understand how many people would therefore require accommodation and subsistence under Section 4.

In the absence of a government impact assessment as yet, the Refugee Council has done its own analysis. Based on the current 0.7% success rate of removing people under the inadmissibility rules, it has assessed that, by the end of the third year after the Bill has passed,

“between 161,147 and 192,670 people will have had their asylum claims deemed inadmissible but not have been removed”.

So that could be the size of the problem. We do not know what the Government think, because they will say that they do not recognise those figures. However, as the Government have not given us any figures, we have no means of judging that.

That group of people will then be without permission to work and will be reliant on Home Office support and accommodation indefinitely. If you look at the size of that cohort and the amount of money that it will cost, you see that it will be between £4.9 billion and £5.7 billion in the first three years. That is based on the assumption that everyone deemed inadmissible would be awarded Section 4 support and that there would be few people who would not get it. The issue arises that, if you do not get it, you will be destitute. As the right reverend Prelate said, the destitute can get picked up by the voluntary sector. But, frequently, local government is picking up the pieces, using funds which are due for other things that should be going on in local authorities, so that they do not have families in absolute destitution on their doorstep.

On the assessment process—just to help the noble Lord—has there been an assessment of the numbers of those who will not qualify for Section 4 support? In other words, is there an estimate of how many would be left with no recourse to public funds and would become destitute? On the suspensive claims, will people who have made a suspensive claim be eligible to apply for Section 4 support? That is probably an easy one for the Minister to answer.

Has there been an assessment of the impact of this legislation on local government funding? Clearly, it would be useful for the Government to understand how much they are currently spending on picking up the pieces of those who are destitute, and how much that would cost if it were magnified by the numbers we have just been talking about. That is why there needs to be a risk assessment for those on no recourse to public funds indefinitely in terms of their vulnerability to exploitation and trafficking. Having no money and accommodation are the sorts of things which fuel the operation of criminal gangs in the United Kingdom.

Police, Crime, Sentencing and Courts Bill

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Lord Bishop of Gloucester Portrait The Lord Bishop of Gloucester
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My Lords, I agree with much of what has been said. On Amendment 82A I reiterate what has been said, and I hope will be said later, about primary carers. We know the damage short sentences do to families. We also know that close to half of those leaving custody go on to reoffend within a year of their release, but two-thirds of those sentenced to less than 12 months go on to reoffend.

This is not pie in the sky; if we look at Germany, which performs better on virtually every metric including reoffending, they imprison a far smaller proportion of the population and sentencers have to make two assessments before sentencing. First, they have to show that a community sentence is inappropriate and, secondly, they have to say that a short sentence will suit the need better. I commend Amendment 82A.

Lord German Portrait Lord German (LD)
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My Lords, I have added my name to Amendment 82A. I apologise to the House for being a few moments late into the Chamber; my little legs would not carry me fast enough from committee to Chamber.

Amendment 82A amplifies the debate we had on short sentences in Committee. It does not seek to ban short sentences but sets out to reduce the use of custody for less serious offences for which there are better options within the community. The argument made in Committee, that there are already guidelines and the Sentencing Code to guard against the overuse of short sentences, is disproven by the way in which the matter does not arise in sentencing at the moment.

The current arrangements—the ones the Minister spoke of in Committee—appear to be robust in theory because imprisonment is already reserved for serious offences and custody is already described as a last resort. As principles, these sound restrictive but have not proven to be so in practice. The current arrangements regarding the custody threshold are an unsatisfactory test because they can be interpreted as permissive when an offender has experienced all other possible forms of sentence even though their latest offence is not that serious. The problem with this is that it magnifies the roundabout, which is short sentences without any opportunity for rehabilitation, being outside for a very short period, reoffending and coming back through the system yet again.

This Bill creates a strange ladder of offences because, if you add in the additional features of the community sentences, which is detention in people’s homes, then that increases the features of the system in this first part of the ladder. The ladder then has a rung which has a much shorter stage to the position of imprisonment. We could say that the position after this Bill will be that the first part of the community sentences has much more amplification of the measures that can be used to deal with the sorts of crimes we have been talking about.

Police, Crime, Sentencing and Courts Bill

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Lord German Portrait Lord German (LD)
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My Lords, I too have signed this amendment. It amazes me that we have unanimity on the problem—a problem that may be solved in a number of different of ways but something which everyone thinks is a problem and should be solved—yet we are being asked to wait a number of years for that to happen. Talk to any Minister who has an interest in taking forward a new proposal, and the first thing that they will say is, “Ah, there is a problem with how much legislation we can get through in a year”, or whatever the space of time between the Queen’s visits.

Clearly, it is a difficult route for anyone to take through a Bill. I am sure that there would not be a Bill talking about the Friday release problem as a piece of primary legislation. It is bound to fall within another piece of legislation, but it is surprising that the Government support the principles upon which this amendment is created but cannot find the route for it to happen more swiftly. Let us remember the point that the noble Earl, Lord Attlee, just made, that the cost of not doing something here is immense.

If you stand outside a prison gate at a particular time on a particular week, you will often see people lined up at a bus stop with the same plastic bags containing their total belongings, their total life, and with their £76, if they have not already spent some of it on getting themselves some food. That is how they face the life in front of them. My noble friend Lady Hamwee was quite correct that the absolute certainty of getting this right is in the through-the-gate services which the Government must provide. It is one of the sad reflections that the gate is seen as a wall rather than as a place from where opportunities which commenced inside the prison can continue. I always relay to anyone who wonders about this that about 60% of the people who do my local recycling are on day release from prison and go back in the evening. The advantage is that they can earn a bit of money and eventually find their way back to employment more swiftly.

We know the difficulties here and it surprises me that the Government have not yet taken the view of the noble Lord, Lord Hodgson, who has sharpened his pencil and come up with the right answer. The right answer is that, if the Government want to take this forward in a bigger piece of legislation, in the interim you create the regulatory powers for the Minister to be able to give discretionary powers to the prison governor to identify those prisoners who are most at risk, and give them the opportunity to sort the problems out with local government. We are talking about a simple matter here.

As my noble friend Lady Bakewell of Hardington Mandeville said, local authorities have a major problem with housing. I experienced this with a couple of people coming out on a Friday. They went to the local housing office and were told there was nothing available. They wandered round from one local authority to another attempting to find a link between them, and I honestly do not know where they ended up, but it certainly was not in a place where their lives could continue and they could make a future for themselves.

The challenge in paragraphs 139 and 140 of the prisons strategy White Paper we were presented with is to get on with it—that is the Government’s intention. I am sure the intention is not to hold back from it. This is a straightforward, simple resolution of the problem, which meets all the Government’s objectives. I support this amendment, and I hope the Minister can tell me the answer to the question asked by the noble Lord, Lord Hodgson: what is not to like?

Lord Ponsonby of Shulbrede Portrait Lord Ponsonby of Shulbrede (Lab)
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My Lords, my first interest in criminal justice came about 20 years ago, before I became a magistrate, when I was a trustee of the Wandsworth Prison visitors’ centre. Like all those centres, it was set up on the recommendation of Judge Stephen Tumim, and we dealt with the needs of the families of prisoners. It was then that I first came across this problem—it is not new—and the fact that it is very much the management of small issues that is of central importance for the prisoners and their families.

We owe a debt of thanks to the noble Lord, Lord Hodgson. He has indeed gone into the detail of this problem and come up with a highly practical way of resolving it—tonight, potentially. This House should take advantage of that opportunity. In one sense, I will be intrigued to hear what reasons the noble and learned Lord the Advocate-General for Scotland might give for not pursuing this, but this really is an opportunity. The noble Lord, Lord Hodgson, has addressed the three original points made in Committee in his new amendment, and I really encourage the noble and learned Lord to take advantage of this opportunity.

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Baroness Bennett of Manor Castle Portrait Baroness Bennett of Manor Castle (GP)
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My Lords, I rise briefly to offer Green support to the right reverend Prelate, who so powerfully introduced these amendments. Indeed, the stress on the need for information is absolutely crucial.

I want to make a very specific point on how the damage of a prison sentence can be magnified where a prisoner who has primary carer responsibilities—most likely a woman—is then subject to recall to prison for a further time. I am drawing here on a report from the Centre for Women’s Justice, which notes:

“The Transforming Rehabilitation Act 2014 provided that all offenders who had served prison sentences of more than one day should be compelled to attend probation supervision for one year. They can be recalled to prison if probation staff find they have failed to comply satisfactorily. Women on licence recall now make up 8% of women in custody.”

That is a truly shocking and surprising figure. This reports notes that the main reason for recall is

“failure to keep in touch with the supervising officer”,

rather than some more serious offence.

A report by the Prison Reform Trust noted that, of 24 women recalled, three had been pregnant at the time of recall. One said that the reason why she failed to attend an appointment was due to a hospital visit for a pregnancy scan. She was then separated from her other children and put back into prison, with further massive disruption obviously resulting. Will the Minister look into this situation? This is part of the sentencing guidelines, but there is a particular issue here in respect of probation and the way in which women—or anyone with caring responsibilities—are treated in this situation.

Lord German Portrait Lord German (LD)
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My Lords, I too pay tribute to the right reverend Prelate for her dedicated work in this matter. We could see her laser-like approach to looking at each of the issues facing this group of people, which are clearly addressed in these amendments. These amendments cover a range of issues, but I would like to take up the points already made by the right reverend Prelate, the noble Lord, Lord Bradley, and the noble Baroness, Lady Bennett, about data.

It is interesting that on 6 December, the Minister, in replying to the right reverend Prelate the Bishop of Gloucester, said:

“We do not hold current figures on how many women in prison aged (1) 18 to 24 or (2) 25 years or older have dependent children.”

I appreciate that there is attention being given to this for the future, but I can only echo the words that, if you do not know, then you are going to be making policy in the dark, as the right reverend Prelate said right at the beginning.

However, figures have been produced by the Howard League. I think it gained these figures by doing an analysis of what it could glean from talking to prison governors and staff. We know that women make up 5% of the prison population but are more likely than male prisoners to be serving short sentences for non-violent offences. The majority of those women experienced childhood abuse, and many are victims of domestic abuse, so they are more likely than male prisoners to report poor mental health and problems with alcohol and drugs.

Here is the crucial figure: the Howard League says that two-thirds of female prisoners are mothers of dependent children, and that at least a third of these are single parents. That means around 17,000 children are separated from their mothers by imprisonment each year, and the vast majority of them are moved out of their homes as a result. I am sure that every noble Lord here can understand the strong detrimental effect that has on their development and well-being. The harsh impact on the welfare of their mothers goes far beyond the impact of the imprisonment itself.

There was a review of women in prison in 2006-07 by the noble Baroness, Lady Corston. One of the outcomes of that was women’s centres, which have so far proved very effective at keeping women out of prison. However, there are insufficient numbers of them, and they are insufficiently well resourced. We need to enlarge that figure considerably.

The important feature here is the future. We understand that the Government now intend to collect the right data, so that we can inform our policy-making. The issue of recall, which the noble Baroness, Lady Bennett, talked about just now, is a specific issue and one that has a double effect, of course, because sometimes the reason for being recalled is very slender. The children’s lives are then doubly affected.

Finally, I go back to the number of children. A substantial number of children in this country are moved out of their homes and lack the family basis on which they are being brought up. We must recognise that this specific factor—all the other factors range with it—affects the future of those children. If nothing else, this series of amendments must put right, full and square, that the welfare of the child is fundamental in everything we do. There is an awful lot that we need to do, and these amendments reflect that.

Baroness Hamwee Portrait Baroness Hamwee (LD)
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My Lords, one of the children to whom my noble friend refers gave evidence to the Joint Committee on Human Rights when I was a member and we were looking at the impacts on children of imprisonment of mothers in particular—and fathers too. That child had been 15, I think, and found herself going from literally dancing around the living room to music when her mother was in court to finding herself responsible, as she saw it, for herself and her younger brother. The impact is devastating. I do not want to spend any longer on this at this time of night, but I thank the people who give evidence to committees such as the JCHR and the all-party groups about this sort of situation. It is very vivid and helps us to understand better than we can from words on paper just how devastating this situation can be.

Police, Crime, Sentencing and Courts Bill

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As the noble Lord, Lord Dholakia, is not present, it falls on me to urge the Government to accept Amendment 220.
Lord German Portrait Lord German (LD)
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My Lords, I present the apologies of my noble friend Lord Dholakia, who is unwell and in some considerable pain. He is therefore not able to attend your Lordships’ House. On his behalf, I have his speech, from which I should like to read some extracts. I am sure that Members of the House of Lords will recognise, of course, that my noble friend had a Private Member’s Bill precisely on this issue, and that it passed all stages in this House. It fell because of Prorogation and therefore had no time in the House of Commons. This House has certainly made its view well known and presented it to the House of Commons. This amendment gives us an opportunity to make sure that what was decided by this House is carried forward.

My noble friend Lord Dholakia has said that, at present, in England and Wales, children are deemed to be criminally responsible from the age of 10, and this provision was last amended more than 50 years ago, in 1963, when the age of criminal responsibility was raised from eight to 10 by the Children and Young Persons Act of that year. This means that children who are too young to attend secondary school can be prosecuted and receive a criminal record. A 10 year-old who commits a “grave crime”—which includes serious, violent and sexual crimes but can also include burglary—will be tried in the adult Crown Court. A child of 10 or 11 who is accused with an adult will also be tried in the Crown Court.

The age of criminal responsibility in the United Kingdom is the lowest in Europe. In Ireland, in 2006, the age was raised to 12, with exceptions for homicide, rape or aggravated sexual assault. In Scotland, where the age of criminal responsibility was particularly low, at eight, legislation in 2010 amended it to age 12. Outside the British Isles, the age of criminal responsibility is invariably higher. In Holland, it is 12; in France, it is 13; in Germany, Spain, Italy, Austria, Hungary, Bulgaria, Slovakia, Slovenia, Croatia and Romania, it is 14. In most other European countries, it ranges between 14 and 18. Across Europe the average age is 14.

The United Nations Committee on the Rights of the Child has repeatedly stated that our minimum age of criminal responsibility is not compatible with our obligations under international standards of juvenile justice and the UN Convention on the Rights of the Child. In a statement in 1997, the committee said:

“States parties are encouraged to increase their lower minimum age of criminal responsibility to the age of 12 years as the absolute minimum age and to continue to increase it to a higher age level.”

In subsequent reports in 2005 and 2007, the committee reiterated that a minimum age below 12 is not internationally acceptable.

Taking 10 or 11 year-olds out of the criminal justice system would not mean doing nothing with children who offend; it would mean doing what other countries do with 10 and 11 year-old offenders. It would mean doing what we do with delinquent nine year-olds. In other words, it would mean dealing with the causes of these children’s offending through intervention by children’s services teams. In the minority of cases where court proceedings are necessary, it would mean bringing children before family proceedings courts, which can impose compulsory measures of supervision and care. In the most serious cases, this can mean detention for significant periods in secure accommodation, but this would be arranged as part of care proceedings rather than as a custodial punishment imposed in criminal proceedings.

In 2012, the Centre for Social Justice, which was set up by the former Secretary of State for Work and Pensions, produced a report on the youth justice system entitled Rules of Engagement: Changing the Heart of Youth Justice. It said:

“There is now a significant body of research evidence indicating that early adolescence (under 13-14 years of age) is a period of marked neurodevelopmental immaturity, during which children’s capacity is not equivalent to that of an older adolescent or adult. Such findings cast doubt on the culpability and competency of early adolescents to participate in the criminal process”.

The evidence internationally is overwhelming, and from the United Kingdom and from this House. There is extensive evidence from neuroscientists, psychologists and psychiatrists demonstrating the developmental immaturity of young children. The Royal College of Psychiatrists has expressed the view, based on evidence, that our age of criminal responsibility is too low.

While a 10 year-old might know that stealing something is wrong, their ability to apply that knowledge to their actions will be very different from that of an 18 year- old. This does not mean that children aged 10 or 11 have no responsibility for their actions, but on any reasonable interpretation of the evidence, they must be regarded as less responsible than an older adolescent or an adult.

The age of criminal responsibility is an anomalous exception. In relation to the age of consent for sexual activity, for example, we regard any purported consent as irrelevant in order to protect children from abuse or immature sexual experimentation. It is completely illogical that we regard immaturity in this context as worthy of protection by law but take a diametrically opposite approach when it comes to criminal responsibility. The illogicality of our current law is increasingly recognised. The Law Commission concluded last year that the age of criminal responsibility is not founded on any logical or principled basis.

The fact that the numbers involved are relatively small is a strong argument for this amendment. It means that it will not be a huge burden on resources to make alternative provisions through welfare interventions; nor would dealing with these children through non-criminal processes put the public at risk.

Children who are officially labelled as offenders often react by trying to live up to the label and acting in increasingly delinquent ways to achieve status in front of their friends. While the numbers are low, the resources needed to execute a shift towards treating these vulnerable children through a welfare lens, rather than a criminal justice one, would be small, and the positive benefits for them and for wider society considerable.

Even though some changes have been made to court processes involving children, it remains true that exposing young children to a criminal trial is no way to achieve justice. This is a short amendment but its recommendation, if implemented, will change the shape of our criminal justice system for our children.

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Lord Marks of Henley-on-Thames Portrait Lord Marks of Henley-on-Thames (LD)
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My Lords, I apologise to the noble Baroness for speaking before her; I did not realise that she wanted to speak. I also apologise for erroneously referring to her as the noble Lord, Lord Sater.

Lord German Portrait Lord German (LD)
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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 Portrait Lord Falconer of Thoroton (Lab)
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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.

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Lord Falconer of Thoroton Portrait Lord Falconer of Thoroton (Lab)
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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 Portrait Lord German (LD)
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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”.

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Baroness Blower Portrait Baroness Blower (Lab)
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My Lords, it takes a very particular kind of person to be a teacher, but it takes a much more particular kind of person to work in an institution with young people who are clearly already damaged when they arrive. The idea that the Government appear to be taking—a rather dogmatic view about how 16 to 19 provision should be run, in terms of there being only academies and only reflecting the way academies are seen in law in the schools sector—seems to be completely wrong.

It is obvious that the profit motive simply cannot function in this type of provision. Teachers, whether in secure accommodation or other places, are not as well paid as they should be, but the fact is that they are not motivated in general by the level of their salary. Therefore, there is absolutely no reason why we should think that anyone affording that provision should be motivated by profit.

My own experience of young people of this type is that I did, very many years ago, work in a non-custodial, non-residential setting for young people who were at risk of care or custody. I have to say that they were all at risk of custody. But the fact that I worked in a local authority provision, where we were able to work very closely with the youth offending team, our local social services and our probation service, and all of our play therapists and other types of therapists, meant that, in general, it was a very successful provision.

I have, like the noble Lord, Lord Carlile of Berriew, had the opportunity through my union experience to visit teachers working in a whole range of institutions—some of which, I am sorry to say, no longer function. This type of provision, as my noble friend Lady Chakrabarti said, should be at the irreducible core of what the state does and affords for some of our most vulnerable young people. For that reason, I am very happy to support the amendments.

Lord German Portrait Lord German (LD)
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My Lords, I am very grateful to those who have spoken in this short debate. Clearly this amendment is at the centre of this group of amendments. In summing up what everyone has said, I would say that the direction everyone has travelled in is not that these schools or academies should be provided by local authorities, but that they should be given the right to tender to provide those schools or academies.

The judgment that the noble Lord, Lord Carlile, made, was that it does not matter who runs them, providing they get the very best education for these very vulnerable children. The standard of education is what is important, not who runs them. At present, local authorities are excluded simply because there is a view that anything called an “academy” in England cannot be run by a local authority, which seems to create an absolute block to the opportunity for everyone in these institutions to have the best opportunities for life and education.

As the noble Baroness, Lady Chakrabarti, said, these are the most vulnerable of children and young people; their lives and futures are at stake. The noble Baroness, Lady Blower, talked of the qualities of the teachers. These teachers have to be the very best, because they are facing the most difficult of circumstances and it becomes a real challenge. It requires a very special person indeed to devote their life to this sort of education. Where you find the best teachers is in the quality of the tender exercise for these establishments.

Excluding local authorities because they breach the Government’s standard that any academy must not be run by a local authority seems to miss the point. My noble friend Lord Marks talked about the experiment with the rehabilitation companies. A lot of effort went into those. The one thing that was totally absent at the end was the engagement of the charitable and voluntary sector. In other words, because they were driven by having to meet a contract, they were not driven by providing the best service for rehabilitation. Quite rightly, that system has now been overturned.

It drives one to think that, if you have as your goals what is best for the child and what are the best services you can provide, excluding those with the most expertise in this area seems simply crazy. I hope that the Minister will be able to address these matters and take on board the whole point of these amendments, which is not to prescribe local government but to offer it the opportunity where it can compete, providing it can offer the best. What matters is the best for our children, not who should run the service.

Lord Wolfson of Tredegar Portrait Lord Wolfson of Tredegar (Con)
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My Lords, I first turn to Amendment 223A from the noble Lord, Lord German, which would allow local authorities to “establish and maintain” secure academies and prevent any for-profit corporation doing this.

Dealing with those points in turn, first, we are not aware of any specific legislative barrier to the provision of secure 16 to 19 academies by local authorities. However, it is government policy that academy trusts are not local authority influenced bodies. As a result, no academy in England is operated by a local authority and our position here is to mirror academies’ policies and procedures in secure schools to the greatest extent possible. That said—

Police, Crime, Sentencing and Courts Bill

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Lord Paddick Portrait Lord Paddick (LD)
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My Lords, I rise to speak on behalf of my noble friend Lady Bakewell of Hardington Mandeville, who is unfortunately unwell and unable to be in her place. She wanted to speak to Amendment 211 in the name of the noble Lords, Lord Hodgson of Astley Abbotts and Lord Bird, and the noble Baroness, Lady Lister of Burtersett, to which she added her name. She would have spoken about her personal experience, so I shall just read the words that she had hoped to say had she been here.

The routine releasing of prisoners on a Friday, especially before a bank holiday, can cause both services and the prisoners themselves significant problems. Finding accommodation on a Friday afternoon can be extremely difficult. Those who have managed to get clean of substance abuse while in prison find themselves desperate and start using, begin criminal activity again or, in some cases, both. For 10 years, my noble friend was a councillor on South Somerset District Council where there were marvellous officers who worked tirelessly to try to ensure that no one was left with nowhere to stay. The noble Earl, Lord Attlee, made a powerful case for the amendment and the noble Lord, Lord Hodgson of Astley Abbotts, similarly made the case for not releasing prisoners on Fridays or bank holidays. This is a matter that my noble friend feels very strongly about, so I will share two cases sent to her by the officers of South Somerset.

First, prisoner A was released on a Friday from Guys Marsh prison near Shaftesbury. He was given a rail warrant and got on a train to Yeovil. He contacted his family, realised he did not have accommodation to return to and went to see his offender manager at the probation office, who contacted the housing team. By this time, it was 3 pm and they had very little options available for him at that time of day. It was too late for them to find suitable accommodation and although they managed to get him into a hostel in Yeovil, that was not the best place for him, He had left prison clean of drugs and had to stay in a hostel with very easy access to illegal substances. Unfortunately, he used again, the accommodation broke down, he reoffended and was recalled to prison.

Case two was prisoner B, who was released from prison in Bristol on a Friday and got a train back to Yeovil. He then got a bus to Chard, some 17 miles away, to collect his possessions from his old tenancy. He then returned to Yeovil, by which time the offices had closed. He spent the weekend rough sleeping before he could contact the district council again. South Somerset District Council is fortunate to have secured funding to employ a prison release worker who tries to contact prisoners before they are released so they can plan ahead and help them. However, when people are on short sentences, the prisons rarely have time to work with the prisoners, so they get released without the council being informed. My noble friend Lord German has tabled amendments on those serving short sentences.

Other prisoners think they are okay and have homes to return to. These often do not materialise and by the time they realise they are homeless, it is 5 pm on a Friday. Sadly, one of the people in these case studies died over the weekend of 16 and 17 October aged only 45. He was quite a prolific offender and spent a lot of his time in prison. He had been in care from the age of two and did not have the best start in life. The council tried to help him on a number of occasions and sometimes succeeded, but not always. These are just some examples of what happens when prisoners are released on Fridays. This could be avoided by flexibility being used both in the courts and in the prisons. I hope the Minister will agree that this is a very sensible, non-controversial amendment which could prevent reoffending for the want of a roof over the heads of prisoners who have finished their sentences. I fully support Amendment 211 and look forward to the Minister’s response.

Lord German Portrait Lord German (LD)
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My Lords, I will add a few words to give some examples of how this actually affects real people. The third sector, the charities in our society, have been very good at helping and supporting people. Given that we now know that a third of prisoners are released on a Friday, one would think that the charity on hand to meet them at the gate and help them through a very difficult period on a Friday would be helped by the prison authorities explaining when the prisoner was going to be released. After all, if you are sitting in a car, possibly round the corner from the prison, waiting for the gate to open and the prisoner to come out, you need to know that you are not going to be waiting there from 8 am or 10 am until 5 pm or 6 pm. Yet, in fact, that is the story I have heard from one charity that helps people in this matter.

The second example was very concerning. A food bank based in Hereford told me that these prisoners—the third who are released without anywhere to live—were given tents and sleeping bags, directed to a farmer’s field and given the address of the food bank. That is the sort of emergency you then place these people in. These are people who have done their sentence but who face no fixed abode, nowhere to live and certainly no money.

The third thing that worries me is how people get their benefit if you now require a bank account. As I understand it—perhaps the Minister will correct me—setting up a bank account while you are in prison is not a possibility; in other words, even if you were to get your benefit paid at the time you left, you would have to have a bank account to pay it into and to provide the necessary ID as well, all of which of course becomes less popular and less possible on a Friday.

These amendments do not seem to be rocket science. They are actually very practical and since that group of one-third of prisoners who are let out on a Friday are the group most likely to reoffend if they cannot find anywhere, there is a societal impact. We all can benefit by giving these people the right helping hand in their very first window of opportunity in real community life.

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Lord Hope of Craighead Portrait Lord Hope of Craighead (CB)
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My Lords, I support both these amendments, but I want to add a brief comment on the mechanism which they both have in common: the giving of reasons. I know from my own experience how valuable it is to marshal your thoughts when you are having to give reasons, and sometimes when you write them down you wonder whether your thoughts in the first place were correct, and you may think again as a result. So the mechanism that is being suggested is a good one and, with great respect to my noble friend Lord Pannick, I think Amendment 213 in the name of the noble Lord, Lord Ponsonby, does add something to the code.

Of course, the code encourages care in passing custodial sentences and it sets it out very well, but it is this additional element which is of value. One particular word in the amendment adds force to it, and that is “must”. Everybody will have to do this. The noble Lord will know better than I do how often magistrates in particular pass custodial sentences without giving reasons. The point is that this discipline, which both amendments seek to inject into the system, adds value.

That having been said, I hope that these reasons will not just become a rota, because there is some experience in the Supreme Court where we had to give reasons for refusing leave to appeal; we had many of these cases to deal with, and we adopted a mechanism which I think the Minister will know quite well—it was the same reason given every time. That does not really meet what I think the noble Lord, Lord Ponsonby, is getting at, and I hope the Minister will be able to reassure us that when the word “must” is put there, together with the other matters in his report, it will actually add value and people will really think before they give their reasons, and not simply adopt a formula.

Lord German Portrait Lord German (LD)
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My Lords, I would like to add a little to the evidence which has already been provided to the Minister, but he must of course know the evidence which has already been made available to him. Just in case it has not, I repeat what the recent sentencing White Paper says: short sentences

“often fail to rehabilitate the offender or stop reoffending.”

It goes on:

“A Ministry of Justice 2019 study”—

an analytical exercise, full of figures—

“found that sentencing offenders to short term custody with supervision on release was associated with higher proven reoffending than if they had instead received community orders and/or suspended sentence orders.”

In other words, the Government’s own evidence points to supporting these amendments—not necessarily in the same words, but certainly the thrust of them. We should remember that, pre-pandemic, nearly half of those people who were sentenced to custody in England and Wales were subject to short sentences of less than, or equal to, six months.

There are many reasons why we must support the change—more effectively reducing reoffending, dealing with issues such as drug use and producing better outcomes for women. Short prison sentences do not provide sufficient time for addressing those issues, such as dealing with substance addiction, or benefiting from any education and training facilities on offer. There may not even be sufficient time for the prison authorities to devise a programme to address the prisoner’s needs on release day. The best we can say about short sentences is summed up by one of the former Conservative Prisons Ministers, of which there have been many in recent years, who said that short prison sentences are

“long enough to damage you but not long enough to heal you.”

Almost two-thirds of prisoners sentenced to these terms of less than 12 months will reoffend within a year. The amazing statistic is that nearly half of adults are convicted of another offence within one year of release, but anyone leaving custody who has served two days or more is now required to serve a minimum of 12 months under supervision in the community. As a result of not fulfilling their supervision orders in some minor way, 8,055 people serving a sentence of 12 months or less, and sometimes of only a few days, were recalled to prison in the year ending December 2020.

What has happened to the Conservative plan to secure a reduction in the use of short sentences? I think I know the answer, but it would be helpful if the Minister could confirm to the House what has happened to this idea. The Bill can address this issue. To finish with the words of a former Conservative Secretary of State:

“For the offenders completing these short sentences whose lives are destabilised, and for society which incurs a heavy financial and social cost, prison simply isn’t working.”

Offenders are less likely to reoffend if they are given a community order. These are much more effective in tackling the root causes behind criminality.

Given the evidence of both Conservative Secretaries of State and the evidence produced in the Government’s own studies, can the Minister explain whether there has been a U-turn or a Z-turn, or whether the course is laid out as described in the evidence that they have received?

Lord Marks of Henley-on-Thames Portrait Lord Marks of Henley-on-Thames (LD)
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My Lords, this debate has raised two important issues: the justification for short custodial sentences and how we curtail their imposition in practice.

The debate saw an interesting exchange between the noble Lord, Lord Pannick, and my noble friend Lord Beith, and I take the point made by the noble Lord, Lord Pannick, that the law requires courts to avoid unnecessary custodial sentences where alternative sentences are appropriate. However, my noble friend Lord Beith is right that far too many short sentences are still imposed. The noble Baroness, Lady Bennett of Manor Castle, gave us some of the figures. The noble and learned Lord, Lord Hope of Craighead, made the point that the amendment does add something to the existing law. One thing it adds is that it is focused entirely on short sentences, whereas the Sentencing Code provisions are not.

This House has heard endlessly of the damage that short custodial sentences do. There simply is no evidence to justify their regular imposition. If the Minister has any such evidence, perhaps he can tell us what it is. We regularly stress the extent to which the rate of reoffending following short sentences greatly exceeds reoffending rates for community sentences, a point made by the right reverend Prelate the Bishop of Bristol, using the words of the right reverend Prelate the Bishop of Gloucester; it was a point also made by my noble friend Lord German a moment ago.

Police, Crime, Sentencing and Courts Bill

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Lord German Portrait Lord German (LD)
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I will speak to the issues raised in these amendments. In summing up the last group of amendments, the Minister said that we had to achieve the proper balance between rehabilitation and punishment. This is even more important in the area of youth justice which we touched on—admittedly with a bit of elasticity of the rules—in the previous group of amendments, but which are particularly relevant here and will occur later in this Bill as we deal with other measures.

The balance between what I would call repair and support for young people and punishment is one of great importance, and we must adjust that balance with great care indeed. This country, along with many others, recognises that children should be treated differently from adults in the justice system. However, there is a concerning trend in this government-expressed Bill, particularly in Clause 104, towards what I would call harsher treatment of older children, and bringing the sentencing of children closer into line with adults. This clause in particular proposes extending whole-life orders in exceptional circumstances to offenders aged 18 to 20. These are the most severe sentences that can be handed down by the courts. The other clauses also touch on the balance that I am talking about.

The Sentencing Council gives a full explanation of why children have to be treated differently, referring to lack of maturity, acting impulsively, inexperience, emotional volatility and negative influences as factors that ought to be considered. In particular, it notes that children and young people are likely to be susceptible to peer pressure. The noble and learned Baroness, Lady Butler-Sloss, in her example in the last group, referred to exactly that sort of problem, when young people respond to peer pressure and then resent and turn from it afterwards.

Clause 101 would permit the court to diverge from mandatory minimum sentences only when there are “exceptional circumstances”. This is change from the current wording, “particular circumstances”. Neither “particular” nor “exceptional” have been defined in law, or in this Bill, or in the Explanatory Notes associated with the Bill. So who is going to interpret “exceptional circumstances”? If it is to be the Secretary of State, where does that definition exist? Perhaps the Minister could give us the definition at the end.

I went to the dictionary, as one always does to look up words, and looked up “exceptional”. There are at least four definitions, ranging from “only likely to happen very infrequently” to “having much more than average intelligence, ability, or skill”. With that breadth of difference in the understanding of “exceptional”, I am sure that there is a great deal of work to be done on that definition. There is a world of difference between “likely to happen very infrequently” and “beyond the average”, which is the other interpretation that you could give to this word. Either way, it is important that the Government tell us why they have made that change and what it means in practice.

My second point is about the discrimination elements in these amendments. The Government have recognised that these clauses have a disproportionate impact on black and minority ethnic children. We have only to turn to the Joint Committee on Human Rights report. Basing its comments on the Human Rights Act 1998, it says:

“Discrimination may be justified, but only where the difference of treatment pursues a legitimate aim and where there is a reasonable relationship of proportionality between the means employed and the aim sought to be realised.”

The report says that many of the witnesses who were interviewed questioned whether the Bill had gone too far and does discriminate. So there are questions to be asked as to whether the Bill breaches the right that people have under that 1998 law.

The report further states:

“The government recognises the unequal effect of these measures in its Bill, but does not provide any mitigation”.

So can the Minister provide an explanation of the measures they propose to mitigate the impact of this discriminatory effect on BAME children? The House will need to consider whether these measures need to be written into the Bill, but I hope the Minister might undertake that action could be taken through government amendments.

The Bill proposes extending whole-life orders in exceptional circumstances to offenders aged 18 to 20, and these, as I said, are the most severe sentences. But those who offend as children should not lose the opportunity to benefit from the youth sentencing framework and rehabilitation periods, because system delays there are not of their fault.

The court delays we have at the moment existed before Covid and have been exacerbated since. In the year ending December 2019, before Covid, the average delay between offence and court completion was 160 days—nearly 23 weeks. That is eight weeks longer than in 2011, despite the reduction between 2011 and 2019 in the number of youth offence court cases. Covid has made this situation so much worse. Can the Minister confirm that those who cross the age threshold because of these delays will not be subject to a more severe sentence?

In a recent report from Her Majesty’s Inspectorate of Probation, the chief inspector said about the impact on black and minority-ethnic children:

“Half of the boys in the inspected cases had faced racial discrimination in their life; a third had been victims of criminal exploitation and a quarter had a disability … Yet many of these children are only receiving support with these needs for the first time through the criminal justice system.”

By looking at the criminal justice system we are looking at the cart, but the horse has already bolted from the stable. This is quite clearly unacceptable. Her Majesty’s Inspectorate of Probation says so, and I believe we need to revisit the amendments the Government have tabled to ensure that the proper balance is achieved, as the Minister said in response to the previous group of amendments. Proper balance does not mean turning the dial far more towards punishment than towards the repair of these young people.

Lord Bishop of Durham Portrait The Lord Bishop of Durham
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My Lords, I speak on behalf of the right reverend Prelate the Bishop of Derby on this occasion, who could not be here today. I add my support to Amendments 198, 199, 200 and 201, in the name of the noble Baroness, Lady Massey, which deal with tariff starting points or DHMP sentences as they relate to young people. The noble Baroness laid out well the case for amending Clause 104 so that it takes into account evidence on maturation. I will briefly add the right reverend Prelate the Bishop of Derby’s perspective as a Lord spiritual and as part of a team of Bishops focused on Her Majesty’s prisons, particularly young offender institutions. She also declares an interest as vice-chair of the Children’s Society.

Children ought to be treated as children, and we resist any erosion of that in law. If we are to argue to the contrary we must be content to go against the trajectory of every other arena of English law. Eighteen is soon to become the age at which people can legally marry, leave education and join the Armed Forces. I urge noble Lords to reflect on this. If we project from this that children are to be protected from making decisions about marriage, education and even enlisting in Her Majesty’s Armed Forces until they reach a maturation point of 18, then the same logic surely must continue to apply in this instance.

The net consequence of Clause 104 would be more children spending longer in custody. Put simply, with very few under-16s impacted, the result would be more older teenagers receiving more severe sentences than is currently the case.

I intend to oppose Clause 103 being added to the Bill. Clause 103 would make it possible for judges to impose whole life orders on offenders aged 18 to 20. Our amendment would ensure that the minimum age for imposing a whole life order does not drop below 21. Although these are not legally children, in common with Clause 104, Clause 103 fails to take into account the Government’s 2015 response to the report by the noble Lord, Lord Harris, into the deaths of 18 to 24 year -olds in custody, where the Government agreed that

“It is widely recognised that young adults, particularly males, are still maturing until around 25 years of age.”

I am grateful to the Prison Reform Trust for its briefing on this and for highlighting that the origin of Clause 103 derives entirely from a single recent case. I understand the strength of feeling around that particularly tragic case, as it resulted in terrible loss of life. However, I do not believe there is any justification for extending whole life orders to young adults in this manner.

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Lord Wolfson of Tredegar Portrait Lord Wolfson of Tredegar (Con)
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I am certainly not critical of any particular sentence passed in any particular case. What I do think the figures show is that we need a test that more clearly balances the minimum sentence on the one hand with the exception on the other. We think the test of exceptional circumstances—I know that the noble Lord, Lord German, is waiting patiently—meets that test.

I turn now to Clause 104 and 105, which both relate to children who have committed murder and will therefore receive the mandatory life sentence of detention at Her Majesty’s pleasure. I hear in this regard the words read to us on behalf of the right reverend Prelate the Bishop of Derby. When giving a life sentence, the judge sets a minimum amount of time that must be spent in custody before the offender may be considered for release by the Parole Board. This is known colloquially as the tariff. Judges use starting points to determine that tariff. They can set a minimum term higher or lower than the starting point by taking into account aggravating or mitigating factors. Currently, there is a 12-year starting point for all children who commit murder.

In this Bill, we are replacing the fixed 12-year starting point for all children—what might be called the mandatory starting point—with a range of starting points that take into account the child’s age at the time of the offence and the seriousness of the murder. The age groups are to reflect the different stages of development that a child goes through and that, although both in law are children, a 10 year-old is very different from a child of 17 years and 10 months. The different levels of murder, if I can put it that way, are based on the more nuanced system used for adults, which takes the seriousness of a murder into consideration. Therefore, the twin factors of age and the seriousness of the murder are then brought together. The higher the age and the more serious the murder, the higher the starting point, and the converse is also the case.

This amendment retains a range of starting points for children based on three age groups, but it does not distinguish between the levels of seriousness of a murder. Because murder can vary in seriousness in the criminal sense, we believe it is right that the starting points should reflect this as well. We do not agree that starting points should only be based on the age of the child; they should also reflect the seriousness of the murder. Moreover, the amendment does not address the gap in starting points between older children and adults. A child of 17 years and 10 months is very close to becoming an adult. The amendment would mean that the same category of murder would have a 12-year starting point for a 17 year-old, but a 30-year starting point for an 18 year-old. However, I underline the same point that I made about minimum sentences. The judiciary will continue to take the individual circumstances of a case into consideration and can give a minimum term higher or lower than any given starting point.

Let me address the review amendments. Children who are sentenced to detention at Her Majesty’s Pleasure are eligible to apply for a review of their minimum term. In this Bill, we are placing the minimum term review process in legislation. It allows children who are aged under 18 when sentenced to detention at Her Majesty’s Pleasure to apply for a minimum term review at the halfway point. We are restricting eligibility for further reviews to be available only to those who still aged under 18 at the time of the further review. By contrast, this amendment would allow those sentenced as an adult to apply for a review at the halfway point and continue to apply every two years. It would also allow adults who were sentenced as children, who have already had one review, to continue to apply for a review every two years. This amendment is neither necessary nor in line with case law. That is because, under the measures in the Bill, children who are sentenced to detention at Her Majesty’s Pleasure will continue to be eligible for a review at the halfway point of their minimum term.

That right has developed through case law. It recognises the unique rights of children and the fact that they develop and mature at a faster rate than adults. The review is an important part of confirming that the minimum term remains appropriate or determining if a reduction should be made. However, they should be eligible for a further review only if they are still a child at the time of that further review. This is because, as the right reverend Prelate the Bishop of Durham said on behalf of the right reverend Prelate the Bishop of Derby, children have the greatest capacity to demonstrate the significant changes to maturity and outlook that the review considers. Therefore, the opportunity for multiple reviews would be available only to younger children at the initial time of offending, as they are more likely to be under the age of 18 at the time of any further review.

Those who commit murder as a child but are sentenced as an adult have already had their age and maturity taken into consideration. Adults who commit murder are not entitled to reviews and so this Bill ensures that all offenders who are an adult at the time of sentencing are treated equally. It is important to remember that we are talking about the most serious offence, that of murder. The minimum term set by the judge takes into consideration a child’s age and maturity at the time of the offence and reflects the seriousness of the offence. That minimum period should therefore be served, except in exceptional circumstances.

That brings me to the question of the definition of exceptional circumstances, and I am grateful to the noble Lord, Lord German, for his patience. “Exceptional circumstances” is a phrase used all over the law and the criminal law. It is a matter that judges are well used to interpreting. It is a phrase in plain English. With the greatest respect to the noble Lord, it does not need, or would benefit from, a gloss from the Dispatch Box. The phrase means what it says on the tin. It is for the individual judge in the individual case, having heard the evidence, to decide whether the exception is made out.

Lord German Portrait Lord German (LD)
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Can the noble Lord tell me the difference, then, between the current words, which are “particular circumstances”, and those that the Bill is proposing—“exceptional circumstances”? What is the difference between “particular” and “exceptional” to the fraternity of judges and lawyers who do not need it written down because they all understand it? For those of us who are non-lawyers, some definition would be helpful.

Viscount Hailsham Portrait Viscount Hailsham (Con)
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It is a higher bar.

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These are difficult decisions and this is a difficult issue, but the public is better protected by these decisions being made in a conventionally open, transparent and independent way: namely, in a courtroom rather than an office in Whitehall. I beg to move.
Lord German Portrait Lord German (LD)
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My Lords, I have added my name to this amendment not because of its length but because of its importance. The noble Lord, Lord Carlile, has explained exactly the constitutional significance of this matter. Clause 109 as it stands will create a new power for the Secretary of State for Justice to be able to vary, after the imposition of sentence, the effect of a standard determinate sentence for individual prisoners. This provision would empower the Secretary of State to halt the automatic early release of a prisoner if they believed that, if released, the prisoner would pose a significant risk of serious harm to members of the public by committing either murder or a specified offence. Instead of automatic release, these prisoners would be referred to the Parole Board and kept in prison to serve their full sentence if the Parole Board does not deem them safe to release.

The main purpose of this amendment is not to change the action of having a referral but to change where that decision is laid. It is to ensure that decisions about sentencing are taken by the judiciary and not by the politician. Many of us here are politicians, and most of us would regard ourselves as politicians. In that role, when we have taken certain actions it has often been described as political interference. Political interference is of course what this amendment is trying to put to one side. It is to ensure that there is a fair and appropriate hearing and to ensure the strength of the independence of our judiciary and that it retains its ability to make judgments of the kind envisaged in this amendment.

As it stands, the operative actions on the rules on a determinate sentence are to be taken by the Secretary of State. The purpose of this amendment is therefore to uphold the judicial process while still giving effect to the outcome sought in the Bill as presently drafted. It will ensure that there is no inadvertent or intentional political bias that could result in a prisoner serving longer in prison than was envisaged by the sentencing judge.

The division between the Executive, Parliament and the judiciary is a fundamental pillar of our society and should be upheld. At public expense, we send many Members of this House and the other place around the world to try to strengthen the judiciaries in many developing countries. One of the tenets of that work is that there is a strong and independent judiciary. I think it is important that we make sure that we uphold that principle here in Parliament so that we do not move from it.

We are not given an understanding of the tests which will be applied for the Secretary of State to make a direction for a Parole Board hearing. I do not want to start a discussion again about the definition of words, but what are the reasonable grounds? There is no suggestion that the Secretary of State would have to publish the grounds which guide their decision to refer to the Parole Board. We simply do not know what those grounds might be beyond some indications we get in ministerial Statements.

There is a strong incentive for Ministers to say: “There is a public matter here. I can sense that the public are concerned about an issue.” They will then refer it to the Parole Board and the Parole Board would see no political advantage in not referring it and would accept the case as it was given. There would be a momentum for the Secretary of State when matters arose to just simply say that they would be automatically referred.

The effect of this provision in practice will depend heavily on any gatekeeping process before cases are brought to the Secretary of State’s attention. I hope that, when the Minister replies, he will tell us who will be the gatekeeper and what the gate will be like.

The second concern, which the noble Lord, Lord Carlile, has mentioned, is that if prisoners were to be directed by the Parole Board to serve their full term, this would eliminate the ability for such prisoners to transition to community life through the use of licences. The licence provision has been a powerful tool in the rehabilitation process, allowing certain freedoms under supervision. Licences play an important part in transitioning to work and integration into society.

Following due process and limiting arbitrary power are hallmarks of a free society. That is what is at the heart of this amendment, and I ask noble Lords to support it.

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Lord Wolfson of Tredegar Portrait Lord Wolfson of Tredegar (Con)
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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.

Lord German Portrait Lord German (LD)
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That was a good statement of intent. When do the Government expect to be able to produce that? Would it be before we have concluded this Bill, so we will know where we are going with it?

Lord Wolfson of Tredegar Portrait Lord Wolfson of Tredegar (Con)
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I do not want to give an incorrect answer to the noble Lord. I know that there are different codes of practice and different sets of procedures in various parts of the Bill. Can I get back to him in writing on that point, so that the Committee knows where it is before Report?