Covid-19: Prisoners

Lord Keen of Elie Excerpts

Thursday 16th July 2020 Lords Chamber

[Lord Harris of Haringey]

To ask Her Majesty’s Government what progress they have made towards the implementation of the recommendations in the report by the Independent Advisory Panel on Deaths in Custody “Keep Talking, Stay Safe”: A Rapid Review of Prisoners’ Experience under COVID-19, published on 31 May.

[The Advocate-General for Scotland (Lord Keen of Elie) (Con)]

My Lords, we welcome this report from the IAP on the experience of prisoners during Covid-19. The Government are committed to making safety a priority for all those in custody as well as staff. We have reviewed the recommendations in the report and are making good progress against a number of the areas identified, with many discussed further at a Covid-19 sub-meeting of the Ministerial Board on Deaths in Custody on 7 July 2020.

[Lord Harris of Haringey (Lab) [V]]

My Lords, I am grateful to the Minister for that reply. The IAP report said that early release was important to protect life. We were told that 4,000 prisoners would be released; indeed, the MoJ bought 2,000 tagging kits for those released. But, so far, only 209 prisoners have been released early. What went wrong? So far, 23 prisoners have died from Covid-19 in a prison population of 80,000. Each death is a tragedy; those prisoners were under the care of the state, and the state had a duty to keep them safe. However, to keep the numbers to such levels, many prisoners are confined, essentially in solitary confinement, in their cells for 23 hours a day, with limited access to exercise or basic rehabilitative activities, exacerbating mental health problems. There have been 36 self-inflicted deaths so far this year. Can the Minister tell us what proportion of prisoners are currently restricted in this way and when he expects that figure to improve?

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[Lord Keen of Elie]

My Lords, the end-of-custody temporary release on licence scheme was there essentially as a safety valve for capacity reasons. As the noble Lord observed, there have been 209 releases as at 3 July. That is consistent with maintaining appropriate capacity within the prison population. There have tragically been 23 prisoner deaths since the start of the pandemic, again based on data available at 3 July, as against a model in March of 2,300 deaths—I emphasise, a model. Nothing has gone wrong with the release system as such. With regard to the situation within prisons, we have now seen a majority of prisons move to a less rigorous regime within the parameters set for prisons; indeed, a proportion of prisons are now able to admit visitors as well.

[Lord Bradley (Lab) [V]]

My Lords, noting my interests in the register, this report reminds us of the need for robust and effective alternatives to custody. This is especially so for people with mental health problems, whose experience of prison can worsen pre-existing conditions, including the risk of self-harm. Will the Minister therefore assure me that the planned investment in community sentence treatment requirement programmes will continue in the current 12 test areas, and that national rollout will be prioritised to ensure universal sentencing options for the courts and necessary treatment for offenders?

[Lord Keen of Elie]

My Lords, we are committed to developing a more robust community sentencing framework. We recognise the importance of that. With regard to the health of those within the prison system, we have been taking steps to ensure that appropriate support is in place. The Ministry of Justice, working closely with Cruse Bereavement Care, has established a series of interactive webinars specifically designed for chaplaincy and welfare teams.

[Lord German (LD) [V]]

My Lords, in his follow-up report just a few weeks ago, the Chief Inspector of Prisons said that “large and increasing” numbers of new prisoners are arriving and that

“the End of Custody Temporary Release Scheme … had failed to reduce the population meaningfully.”

With overcrowding and capacity still major problems, and with prisoners locked in cells for 22.5 hours a day, what is the point of having a release scheme which, according to Her Majesty’s chief inspector, has failed?

[Lord Keen of Elie]

My Lords, the scheme is there to ensure that there is a safety valve for capacity within our prison system. It has worked in that respect. The primary issue has to be public protection. We have to take great care over the early release of those who have been imprisoned, particularly for offences that might otherwise inflict further danger on the public. At present, the Government have fully implemented compart- mentalisation in 98% of prisons and introduced strong measures to protect not only prisoners but staff. The remaining matters of compartmentalisation simply await the completion of temporary accommodation.

[Lord Garnier (Con) [V]]

I refer to my interests in the register. While recognising the point that my noble and learned friend has just made about security, can he tell us what progress has been made in implementing the report’s second recommendation—namely to streamline and expedite the early release scheme to create the headroom needed to take active steps to protect life? Does he agree with the report’s suggestion that:

“Given numbers of medically vulnerable people who need to be shielded”,


we should

“overhaul the process of release on compassionate grounds and review and halt the misuse of prison custody as a place of safety”?

[Lord Keen of Elie]

My Lords, we are not going to rush into reviews of the kind that my noble and learned friend refers to at this stage. However, we are of course anxious to build on improvements within the prison system, for example by building on some of the recommendations in the report, such as those concerned with the key worker scheme and with greater prisoner engagement and peer support.

[Lord Ramsbotham (CB) [V]]

In view of the Government’s general acceptance of the very sensible recommendations of the independent advisory panel, will they make a further report on the progress of their implementation when the House resumes at the beginning of September?

[Lord Keen of Elie]

My Lords, I am perfectly content to take further questions on this issue as we seek to implement some of the recommendations of the IAP report. As I indicated, it has already been the subject of consideration at a joint sub-committee ministerial meeting and we are taking forward some of the recommendations. I have mentioned two; the others I would mention are improvement in family contact, and the introduction of bereavement support and counselling for prisoners.

[Lord Falconer of Thoroton (Lab) [V]]

I congratulate the independent advisory panel on its report. One problem at the moment, because of coronavirus, is the fact that there are very few jury trials or magistrates’ courts trials, the consequence of which is that more prisoners are spending longer on remand. Can the Minister describe to the House what steps have been taken by the Prison Service to facilitate having more, and quicker, jury trials and magistrates’ courts trials, in particular by facilitating video links to prisons, courts in prisons and lawyers being able to take instructions from people remanded in custody?

[Lord Keen of Elie]

My Lords, the Prison Service is not directly facilitating the issues relating to jury trials, but we are taking steps to introduce additional courts so that we can, essentially, restart and develop the criminal justice system.

[Lord Purvis of Tweed (LD)]

The last full report of the Prisons and Probation Ombudsman suggested that 70% of people who died of self-inflicted means in prison had already been identified as having mental health needs, but that these needs had been flagged to the Prison Service in only half those cases, while 29% of them had not even had a community referral for community mental health services. What is the Government’s target to ensure that 100% of those admitted to prison with mental health needs are flagged up to the Prison Service, and that they are able to continue to receive treatment?

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[Lord Keen of Elie]

My Lords, we have encouraged prison governors to continue to operate peer support schemes, where possible, and issued guidance on how and why they should be maintained. We have also continued our partnership with the Samaritans by providing a further grant until 2021 to run its Listener scheme, which operates in 111 prisons and provided something like 30,000 hours of emotional support last year.

[Baroness Uddin (Non-Afl) [V]]

My Lords, I welcome this opportunity to ask for robust and full implementation of a Lammy recommendation, and I add my voice to that of my noble friend Lord Harris on the implementation of this report. I am disheartened to learn that we did not secure the release of significant numbers of prisoners during the pandemic, particularly those who are pregnant and women with young children. The numbers of black and Muslim men suffering at the hands of our police remain grim and deaths in custody are a scar on our democratic system. I have spoken about Zahid Mubarek in this very Chamber; he was killed in 2000 at the hands of a racist prison inmate and denied human decency when he sought assistance from prison officers. I could list hundreds of others; I wish that I could. I honour the women and families still campaigning for justice. What steps are being taken to enable the justice system to be fit for purpose and to have trust in upholding a humane justice system, eradicating the physical and mental cruelty inflicted disproportionately on black and Muslim men, be it on the roads with stop and search, through arrest or in police custody?

[Lord Keen of Elie]

My Lords, we have taken considerable steps in the implementation of the recommendations in the Lammy report.

[The Deputy Speaker (Lord Faulkner of Worcester) (Lab)]

My Lords, the time allowed for this Question has elapsed. We now come to the third Oral Question.

Competition Appeal Tribunal (Coronavirus) (Recording and Broadcasting) Order 2020

Lord Keen of Elie Excerpts

Wednesday 15th July 2020 Lords Chamber

Moved by

[Lord Keen of Elie]

That the draft Order laid before the House on 22 June be approved.

Relevant document: 21st Report from the Secondary Legislation Scrutiny Committee

[The Advocate-General for Scotland (Lord Keen of Elie) (Con)]

My Lords, the statutory instrument before us grants the Competition Appeal Tribunal a temporary exception to Section 41 of the Criminal Justice Act and Section 9 of the Contempt of Court Act 1981, allowing it to broadcast hearings to members of the public via either video or audio link. This draft order is to be made under Section 32 of the Crime and Courts Act 2013, with the concurrence of the Lord Chief Justice.

For noble Lords who are not familiar with the Competition Appeal Tribunal, more generally known as the CAT, it is a specialist tribunal whose principal functions are to hear and decide appeals of decisions by the Competition and Markets Authority and other economic regulators concerning infringement of UK and EU competition law, and appeals to regulatory decisions in the utility sector. The CAT is sponsored by the Department for Business, Energy and Industrial Strategy but as the power to make the order is conferred on the Lord Chancellor it has been drafted, and laid before Parliament, by the Ministry of Justice.

As noble Lords will be aware, the pandemic means that courts and tribunals throughout this country must adhere to public health measures. To ensure the continued administration of justice throughout this crisis, the Government introduced the Coronavirus Act 2020, which made provisions to allow courts and tribunals to conduct hearings via electronic means, including recording and broadcasting hearings to members of the public. However, given the urgency and speed at which these measures were introduced, the Coronavirus Act 2020 did not make provisions for the CAT but only for the tribunals within the unified tribunal system. The CAT is therefore currently unable to broadcast hearings to members of the public.

The CAT’s rules of procedure state that hearings must be carried out in public, subject to some limited exceptions. The amendments made by this draft order will allow the public to observe hearings remotely, thereby reducing the risk of infection and ensuring the core principles of open and transparent justice are maintained. I conclude by confirming that the draft order is a temporary amendment and it will expire on 25 March 2022, coinciding with the expiration of the Coronavirus Act 2020. I beg to move.

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[Lord Keen of Elie]

My Lords, I am grateful for the contributions to the debate and shall address some of the points raised. My noble friend Lady Anelay of St Johns asked a number of questions. The first was about the numbers who can attend these hearings. In some instances quite a large number may attend, and it will be for the CAT itself to determine what broadcaster and what technology it chooses to employ. There are a variety, but it cannot be said that it will stick only to one—for example, only to CVP, if it chooses that. If there are limitations from the technology, they will be addressed so that appearances and attendance can be expanded if demand outstrips supply. She also raised the question of consulting user groups. Indeed, there is great merit in that, and I am aware that the High Court has had regular communication with those who use the court, to develop and improve the systems it has in place. I have no doubt that the CAT will want to employ a similar approach.

The noble and learned Lord, Lord Hope of Craighead, referred to his directions in 1992 with regard to the Court of Session and the High Court in Scotland, which I recollect. He was quite right to observe that there is no statutory prohibition on broadcasting in that way in Scotland. That brings me on to a point also made by the noble Baroness, Lady Ritchie of Downpatrick. The CAT is a UK tribunal. It may sit, for example, in Edinburgh or Belfast, although generally it will sit in London. This SI is directed at legislation that extends only to England and Wales, and it is not necessary, therefore, to extend legislation in those other parts of the United Kingdom. Of course, a similar position applies in respect of the United Kingdom Supreme Court, which has its own provisions on broadcasting and, from time to time, sits in Edinburgh, in Belfast and, indeed, in Cardiff. I hope that helps to explain the position there.

The noble and learned Lord, Lord Hope of Craighead, posed two questions. The first was about the extent of the use of this sort of remote technology in our courts and tribunals. It is too early to give precise figures, but in general it has been successfully deployed and has therefore made it possible for us to conduct hearings during this period of the pandemic with greater ease. As for whether these provisions should be made permanent, a point raised not only by the noble and learned Lord, but also by the noble Lords, Lord Marks and Lord Ponsonby, no doubt that is a matter that will be under consideration. I am aware that some of the senior judiciary, certainly, are very enthusiastic about these changes becoming permanent as we go forward, at least in some parts of the justice system.

My noble friend Lady Neville-Rolfe asked for an update on competition law and the role of the CAT. That is an area for BEIS rather than the Ministry of Justice, so I would be slow to make any comment, except to say that the Government have committed to consult on the reform proposals of the noble Lord, Lord Tyrie, on the competition regime as a whole. No doubt that will come forward in due course. I hope that also meets the point raised by my noble friend Lady McIntosh of Pickering about what the position will be after the transition period. We will look at the reform proposals. The position with the EU will of course be the subject of negotiation, and I can say no more than that. As to when we will return to normal, as it was termed by my noble friend Lady McIntosh of Pickering, the position is that this SI, like the Coronavirus Act 2020, will expire in March 2022. We hope, of course, that it may be possible to address matters of normality long before then, but we will have to wait and see.

The noble Baroness, Lady Ritchie of Downpatrick, also asked about numbers of outstanding cases. At present the CAT has about 61 cases outstanding. During the period before the SI became available, the CAT conducted four hearings via videoconferencing, but they were compliant with the requirements of the CAT, because they were held in public by inviting journalists to attend and inviting others who wished to attend to register an interest so that they could do so. Of course, that was a demanding and cumbersome procedure, and it will be far easier if we can simply proceed on the basis of the provisions in this SI, which will come into force on the day after the SI is approved.

My noble friend Lord Wei raised a number of points. The first was about data, also addressed by the noble Lord, Lord Ponsonby. He also asked about witnesses and vulnerable people giving evidence. In the context of the CAT, it is unusual for oral evidence to be given by witnesses but, where it is given, they tend to be expert witnesses, whether economists, accountants or others, so the issue of vulnerability that he touched on, and which is very real in the context of other proceedings —for example, family and criminal proceedings—does not arise in quite the same way in this circumstance. I hope I have gone some way to address the questions raised by noble Lords. In these circumstances, I commend this draft instrument to the House.

Motion agreed.

Royal Commission on Criminal Justice

Lord Keen of Elie Excerpts

Wednesday 15th July 2020 Lords Chamber

[Lord Ramsbotham]

To ask Her Majesty’s Government, further to the reply by Lord Keen of Elie on 3 June (HL Deb, col 1357), when they will announce (1) the chair, (2) the timings, and (3) the terms of reference, of the Royal Commission on criminal justice.

[The Advocate-General for Scotland (Lord Keen of Elie) (Con)]

My Lords, we are carefully addressing the scope, terms of reference and membership of the royal commission. In doing so, we will embrace the lessons that we can learn from the present crisis to make the criminal justice system more resilient in the longer term.

[Lord Ramsbotham (CB) [V]]

My Lords, I make no apology for asking this Question again, and I will go on doing so until I get an answer. In June, the noble and learned Lord the Minister described the royal commission as an “important opportunity”, about which further announcements would be made in due time. As the royal commission was announced in December and many, including the Law Society, have highlighted that currently the criminal justice system is not working in an efficient or effective way, when will the Lord Chancellor seize the opportunity?

[Lord Keen of Elie]

My Lords, as the noble Lord may be aware, the terms of reference of a royal commission cannot be altered. It is therefore critical that we determine and finalise those terms of reference with care. A small team of civil servants in the MoJ is working to establish the royal commission and it anticipated that they will transition to make up the secretariat for the commission, which we hope to have operational from the autumn.

[Lord Garnier (Con) [V]]

My Lords, I refer to my interest in the register. When my noble and learned friend the Minister last dealt with this question on 3 June, he was not able to be very forthcoming but, since then, the backlog of trials in both the Crown Courts and the magistrates’ courts has got even longer. A royal commission will not help, but there are plenty of Crown Court recorders and deputy magistrates’ court judges ready and able to assist. Why are they not being deployed?

[Lord Keen of Elie]

My Lords, thanks to the hard work of professionals across the criminal justice system, more than 150 courts have remained fully open to the public throughout the pandemic. By the middle of this month, we anticipate that all court centres will have reopened.

[The Deputy Speaker (Lord Lexden) (Con)]

I call the noble Lord, Lord Hastings of Scarisbrick. No? Then I call the noble Baroness, Lady Mallalieu.

[Baroness Mallalieu (Lab) [V]]

My Lords, I first declare an interest as a retired criminal barrister and the mother of a practising one. It is clear that the report of the royal commission is a very long way away. Will the Minister tell us what is happening right now to clear the trial backlogs, by reopening courtrooms that have been mothballed, opening new ones, using part-time judges—as the noble and learned Lord, Lord Garnier has just suggested—overhauling the case-listing system and ensuring that there is adequate technology to tackle the crisis in the criminal justice system, which is the result of a long period of chronic underfunding which far pre-dates the current crisis?

[Lord Keen of Elie]

My Lords, we are looking at all the matters addressed by the noble Baroness and we have taken steps to open additional courts across the country. We continue with that endeavour to address the backlog of cases that has emerged since the pandemic.

[Lord Thomas of Gresford (LD) [V]]

My Lords, I am aware that soundings have been taken as to the introduction of smaller juries in criminal cases. Whether this is to deal with the pandemic or the backlog of trials, or is for the long term, is it not precisely the sort of issue which a royal commission should discuss publicly and openly before a decision is made?

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[Lord Keen of Elie]

My Lords, at this time we are not intending to make any decision with respect to smaller juries.

[Lord Ponsonby of Shulbrede (Lab) [V]]

My Lords, does the Minister agree that there is a gross imbalance between rising levels of reported crime and a fall in prosecutions to a 50-year low, after a decade of cuts in the police, forensic services and the CPS? Can the Minister say whether the royal commission will consider the growing use of out-of-court disposals when it looks at the workings of the criminal justice system?

[Lord Keen of Elie]

My Lords, we have previously announced increases in the provision for police numbers. With regard to the royal commission, the terms of reference have not yet been finalised; I am therefore not in a position to confirm the precise terms.

[Lord Farmer (Con) [V]]

My Lords, will the royal commission take into account the importance of strengthening offenders’ family and other relationships to further the aim of reducing reoffending and to prevent intergenerational crime?

[Lord Keen of Elie]

The matter to which my noble friend refers is one of considerable importance but I cannot say that it is an issue that will be embraced by the royal commission.

[Baroness Kennedy of Cradley (Non-Afl) [V]]

My Lords, after years of underfunding, our criminal justice system is crumbling. Criminal trials have dropped to an all-time low despite recorded crime continuing to rise. Can the Minister tell us when exactly the terms of reference for the royal commission will be finalised? Also, can he guarantee that the commission will have a comprehensive remit and be able to look at every part of our criminal justice system, and will he ensure that support for victims is put at the top of its agenda?

[Lord Keen of Elie]

My Lords, we anticipate that the royal commission will be able to commence its work in the autumn, having before it a finalised set of terms of reference. We have to be realistic about how the royal commission will operate. We wish it to report within 12 to 18 months; accordingly, the terms of reference will have to reflect that timescale.

[Lord Morris of Aberavon (Lab) [V]]

My Lords, as a criminal law practitioner for more than 40 years, I warmly welcome the setting up of the commission. The listing and hearing of criminal trials is in a mess and underfunded, and efforts to increase court sittings are belated. Will funding for criminal legal aid be part of the remit of the royal commission?

[Lord Keen of Elie]

My Lords, as I have indicated already, I am not yet in a position to confirm the remit of the royal commission as the terms of reference have not yet been published. Again, I remind noble Lords that we are concerned to ensure that the terms of reference are manageable in the context of our wanting a report within 12 to 18 months.

[Lord German (LD) [V]]

My Lords, the Minister has announced a White Paper on community sentencing and sentencing more widely, and that is to be followed by a government Bill. A royal commission will not examine those matters because they are already under way. So, having taken out a large chunk of the justice programme, what will be the main focus of what is left for the royal commission to examine?

[Lord Keen of Elie]

My Lords, as I said, the terms of reference have not yet been finalised but, clearly, the royal commission will be addressing some of the more fundamental issues with regard to the delivery of criminal justice in England and Wales.

[Lord Balfe (Con) [V]]

My Lords, there is clearly a large degree of skill in the House of Lords which could contribute to these terms of reference. Since the Minister has said several times that they have not yet been finalised, is he willing to convene a ministerial meeting of interested persons in the House of Lords to discuss the detail of the terms of reference and what they could—and should not—cover, so that when the terms are announced they have broad support in the House?

[Lord Keen of Elie]

My Lords, given the stage we have reached in this process, I cannot undertake to carry out such an exercise, which, I suspect, would result in considerable delay. We are in a position where we can finalise the terms of reference and make them public in the very foreseeable future. As I said, we are hopeful that the royal commission will commence its work in the autumn.

[The Deputy Speaker]

I call again the noble Lord, Lord Hastings of Scarisbrick. He is not responding. All supplementary questions have been asked and we now move to the next Question.

Northern Ireland Act 1998 (Section 75 —Designation of Public Authority) Order 2020

Lord Keen of Elie Excerpts

Wednesday 8th July 2020 Lords Chamber

Moved by

[Lord Keen of Elie]

That the draft Order laid before the House on 8 June be approved.

Relevant document: 19th Report from the Secondary Legislation Scrutiny Committee

[The Advocate-General for Scotland (Lord Keen of Elie) (Con) [V]]

My Lords, this draft instrument will ensure that the Independent Monitoring Authority for the Citizens’ Rights Agreements—the IMA—established under the European Union (Withdrawal Agreement) Act 2020, is covered by the statutory duties on a public authority as set out in Section 75 of the Northern Ireland Act 1998.

As noble Lords may recall, Article 159 of the EU withdrawal agreement and Article 64 of the EEA EFTA separation agreement required the United Kingdom to establish a new, independent authority to monitor the UK’s application and implementation of the provisions in those agreements relating to the rights of citizens living in the United Kingdom and Gibraltar after the transition period. Consequently, the IMA was established under the European Union (Withdrawal Agreement) Act 2020, on 31 January of this year. The IMA is operationally independent of government and sponsored by the Ministry of Justice. The IMA will be accountable to Parliament through the Ministry of Justice, which reflects its role in supporting the principles of the rule of law and access to justice.

The Government recognise the enormous contribution that EU and EEA EFTA citizens living here make to the United Kingdom. That is why we have made an unequivocal guarantee to those citizens by protecting their rights in UK law through the withdrawal agreement, the EEA EFTA separation agreement and the withdrawal agreement Act 2020. The role of the IMA is to assist in protecting those rights by monitoring the implementation and application of the citizens’ rights parts of those agreements. To do this, the IMA will have the power to conduct inquiries, receive complaints and initiate legal proceedings. It will also have a role in reviewing the effectiveness of the citizens’ rights legislative framework, for instance by reviewing draft legislation.

Full delivery of the IMA is progressing well. An important milestone was the appointment of the interim chief executive, in March. Since then, the choice of the IMA’s premises, in Swansea, has been finalised, and the IMA has begun to recruit staff. The recruitment of the chair and other non-executive members was launched on 3 July.

The IMA’s role, which will be commenced at the end of the transition period, will be UK-wide, therefore the IMA will be carrying out functions in relation to Northern Ireland. The purpose of this instrument is to ensure that the IMA’s functions in relation to Northern Ireland are covered by the relevant statutory equality duties, as set out in Section 75 of the Northern Ireland Act 1998.

Section 75 requires that public authorities carrying out their functions relating to Northern Ireland need to have due regard to two things: first, to the need to promote equality of opportunity between persons with, to summarise briefly, a range of differing personal circumstances or characteristics; and secondly, to the desirability of promoting good relations between persons of different religious belief, political opinion or racial group. The definition of “public authority” in Section 75 includes

“any department, corporation or body listed in Schedule 2 to the Parliamentary Commissioner Act 1967 … and designated for the purposes of this section by order made by the Secretary of State”.

The IMA has already been added to Schedule 2 to the 1967 Act by paragraph 17 of Schedule 2 to the European Union (Withdrawal Agreement) Act 2020.

The statutory instrument before us today designates the IMA for the purposes of Section 75. I hope that stakeholders, particularly in Northern Ireland, will welcome the assurance that these functions must be carried out in accordance with the Section 75 duties. Applying those duties to the IMA will also be consistent with the public sector equality duty, under the Equality Act 2010, having already been applied to the IMA by the withdrawal agreement Act 2020.

To conclude, the SI before us today will ensure that the IMA’s functions in relation to Northern Ireland will be covered by the relevant equalities legislation.

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[Lord Keen of Elie [V]]

My Lords, I am grateful for the contributions to this debate and I shall address the points made as fully as possible. First, the noble Lord, Lord Hain, touched on the issue of victim payments, a point taken up by the noble Lord, Lord Empey, the noble Baroness, Lady Ritchie, and, most recently, by the noble Lord, Lord Ponsonby. Of course, we wish to see this matter resolved as soon as possible. As it is the subject of litigation, it would not be appropriate for me to make any further detailed comments at this time, but I am conscious of the expressions of concern that have been made—and heard, no doubt—beyond the Chamber. I am confident that the noble Lord, Lord Hain, as the noble Lord, Lord Ponsonby, said, will not rest this matter until it is resolved.

I come to some points raised by the noble Lord, Lord Bruce of Bennachie, and a number of other noble Lords about the IMA itself. Yes, the Secretary of State has certain powers with regard to appointments and removals from appointments, as one would expect in this context, but that does not take away from the independent standing of the IMA, which will of course be respected going forward. The idea of a transfer to another body would be contemplated only if it were considered that the time had come when the IMA as such was not required to continue, yet some functions ought to be continued. Therefore another appropriate body would be identified and steps taken to ensure that that body was fully independent and in a position to discharge the functions of the IMA. However, I do not understand it to be contemplated that functions would be divided up between other bodies. The idea is that there could be—I stress “could”, not “would”—a transfer of functions to another body, but the transfer would involve consideration of the receiving body’s ability to discharge all the appropriate functions of the IMA.

Coming to the question of abolition, it is a product of our withdrawal agreement that, after eight years, the IMA, if it were no longer required, could be the subject of abolition, but only with the mutual agreement of the European Union. In other words, it would be only if the EU and the UK decided that there was no longer a role for the IMA that any steps could be taken to abolish it. As I say, that could occur only after eight years.

With regard to the appointments that were made, noble Lords will appreciate that we have not only the provisions of Section 75 in respect of Northern Ireland, but the provisions of the Equality Act 2010 in respect of the United Kingdom. It is against that background that appointments have been made to date. Indeed, when appointments have been made, of course those making appointments have been conscious of the steps that will be taken with regard to the Section 75 order. In any event, as I say, they are conscious of the provisions of the Equality Act 2010.

As regards the appointment of staff, we are confident that the IMA will be functioning fully by the end of the transition period, when it will come into operation.

I stress that the IMA in a sense reflects the role of the commission at present with regard to these matters; in other words, it is concerned not with individual cases as such but with systemic issues which stem from the behaviour of public bodies or public authorities. It will be in a position to receive complaints. It will not be bound to accept every complaint—that is right—because it is looking at systemic issues. When it receives complaints, it may instigate inquiries and if it finds that certain obligations are not being adhered to by public bodies or by those performing functions on behalf of public bodies, it will have the ability to take legal action in the form of judicial review. Where it has a substantive complaint to make, it will be able to secure substantive remedies such as mandatory remedies and so on, so we feel that it will be well equipped to carry out the necessary function in that context.

The noble Lord, Lord Wood, also asked about function transfer and abolition. I hope I clarified what the position would be in that context. Clearly, if any step was to be taken in that regard, it would be with the mutual agreement of the parties and Parliament would be made aware of that, for obvious reasons.

The noble Baroness, Lady Ritchie, raised the question of reports by the IMA. The IMA will report to Parliament with regard to its functions and therefore the discharge of those functions will be subject to oversight by Parliament.

With regard to the resources of the IMA, reference was made by the noble Lord, Lord Thomas of Gresford, to the figures that have been provided. We consider that the IMA will be well and sufficiently resourced to discharge its functions, but again I emphasise that it is going to be looking at systemic issues rather than individual cases and the enforcement of individual rights.

Not only will the devolved authorities be represented on the IMA but so will Gibraltar. The remedies available in Gibraltar will be determined by the Gibraltarian legislature. This is a UK-wide authority and it also extends to Gibraltar.

I hope that I have addressed the points raised by noble Lords in the debate. I beg to move.

Motion agreed.

Lammy Review

Lord Keen of Elie Excerpts

Thursday 2nd July 2020 Lords Chamber

[Lord Ponsonby of Shulbrede (Lab) [V]]

My Lords, the Minister in the other place spoke about the progress the Government had made in implementing the recommendations of the Lammy review. However, my right honourable friend David Lammy spoke of a lack of trust, which is exacerbated when the Government claim to have implemented some of his recommendations when in fact they have not been implemented. Does the Minister agree that the outcomes of the report matter more than the outputs of the recommendations, and that the outcomes are getting worse, with 51% of children imprisoned now from BAME backgrounds, which is an increase from when David Lammy completed his review? Also, the proportion of stop and searches on BAME young people has increased since the report was published. Does the Minister agree that if the Government aim to build trust in the criminal justice system by the BAME community they need to start by being honest and straightforward about the recommendations that they have implemented from the Lammy review?

[The Advocate-General for Scotland (Lord Keen of Elie) (Con) [V]]

My Lords, we responded to the Lammy review by publishing in December 2017 our undertakings at implementation. Where a recommendation could not be implemented in full or as set out in the review, alternative approaches have been sought to achieve the same aim. We were clear then as to how we intended to proceed with implementation and we have been consistent and open in reporting against the actions we committed to take in a report in 2018, and more recently in a report of February 2020. We keep under review the report’s aims and make progress on a wide range of areas—indeed, in some areas beyond the Lammy recommendations. But I accept that there is a great deal more to do.

[Lord Paddick (LD) [V]]

My Lords, the Minister in the other place suggested that police stop and search has increased from 25% to 40% BME over five years because the police are taking action against knife crime. However, 60% of all stop and searches carried out by the police are for drugs and only 13% for weapons. The Lammy report requires agencies to explain or change. The explanation given for you being almost nine times more likely to be stopped and searched by the police if you are black than if you are white does not hold water. When will the Government require the police to change?

[Lord Keen of Elie [V]]

Clearly, these issues are under continuous review, but we have a particular concern over knife crime and we are bringing forward legislation on serious violence that will oblige responsible bodies in local areas to create a comprehensive plan tailored to their area. Stop and search is just one approach and we expect plans to be drawn up on a wider crime reduction basis.

[Lord Ramsbotham (CB) [V]]

My Lords, in 2000, Zahid Mubarek was murdered by a known racist psychopath in HMYOI Feltham. The case was eventually judicially reviewed by Mr Justice Keith. If more of his 78 recommendations for improving the treatment of BAME prisoners had been implemented, the Lammy review might not have been necessary. Can the noble and learned Lord please tell the House why the Ministry of Justice has been so dilatory in tackling known BAME issues?

[Lord Keen of Elie [V]]

My Lords, I do not accept that the MoJ has been dilatory in this respect. As the noble Lord’s question implicitly acknowledges, the Lammy review was necessary. We are still taking forward the recommendation on prisons and prisoners, in particular the position of BAME prisoners. Indeed, that is also reflected in the steps we have taken in recruitment.

[The Lord Bishop of St Albans [V]]

My Lords, one of the important ideas found in the Lammy report is the use of relative rate index analysis, which provides important data on the way decisions at various points of the criminal justice system take place. This is the sort of tool we will need if we are to address this deeply embedded problem. Will the noble and learned Lord tell the House whether this relative rate index analysis has been a repeated and whether the lessons are being implemented?

[Lord Keen of Elie [V]]

My Lords, the CPS in particular is fully committed to ensuring that its decisions are free from racial bias. In that context, it is currently investigating a limited number of offences where review showed evidence of disproportionality in charging. It continues with such quality assurance decisions to check for racial bias. However, there are considerable practical difficulties in pursuing this and the CPS has to act on material passed to it by the police. This has to be undertaken across the entire criminal justice system.

[Baroness Browning (Con) [V]]

When David Lammy was preparing his review, I held a meeting with him because he had identified within the BAME prison population a significant number of prisoners on the autism spectrum. Can my noble and learned friend tell me, particularly in respect of the functioning and fairness of prisons, how this group of people is being supported?

[Lord Keen of Elie [V]]

My Lords, clearly, support is given to those suffering mental health issues. Unfortunately, that reflects a large proportion of the prison population. I cannot give identified observations or information about the BAME community, as distinct from the prison community as a whole, regarding mental health, but I am confident that its members receive similar and suitable treatment.

[Lord Griffiths of Burry Port (Lab) [V]]

My Lords, we have heard ample reference to the fact that a number of aspects of the way racial minorities are treated in the justice system has simply got worse since the Lammy report, which is difficult to square with the assurance given by the Minister that so much is being done. Let me quote someone from the Government Benches: Mr Sajid Javid argues that it is time to shine a light on injustice, but that that is not enough. He says:

“We need an action plan … The Racial Disparity Audit found the data. The commission must deliver the solutions.”


The Runnymede Trust added that the Government are “knee-deep in evidence”. Can the Minister give us the assurance that a sense of urgency is being injected into this whole process? We have heard the same allegations over and over again since Scarman in 1981.

[Lord Keen of Elie [V]]

My Lords, we are committed to improving the collection and publication of data, and to using the data to identify and tackle disparities across the criminal justice system. We have been working very closely with the Race Disparity Unit since its formation in 2016, and we continue to add and update metrics on the ethnicity facts and figures website as part of our commitment to transparency.

[Lord Sheikh (Con) [V]]

My Lords, 41% of children in prisons are from the BAME community, and a large number of them are Muslims. About 15% of prisoners are Muslims, and in London, the figure is 27%. Some of those Muslims have been victimised by the staff. The custodial sentences imposed on those from BAME communities can be up to 10 years longer than those applied to white people—several lawyers have said this to me. There is an appalling lack of diversity in our judiciary, from the magistrates’ courts to the Supreme Court. Only 7% of judges are from BAME communities, and the figure for magistrates is 12%. Stop and search in BAME communities has risen by 69% for the last five years. I have been stopped by police for allegedly using a phone, which was not so. A sergeant then turned up and said that if there was any difference of opinion between me and his officer, he would believe the officer. I was appalled by the closing of ranks. I believe that I was picked upon because I was driving a Bentley coupé with a personalised number plate. Can the Minister comment on my points?

[Lord Keen of Elie [V]]

My Lords, we are of course concerned about ensuring visible diversity across the entire justice system. That is particularly challenging in the judiciary and magistracy, and we have introduced an education programme for those from backgrounds not properly represented to undertake training in order that they can apply. Further across the criminal justice system, I note that we have made progress. For example, with the Parole Board, there was grave underrepresentation of BAME members, but we reported in February this year that 53 independent members would join the board, 48% of whom are from a BAME background.

Prisoners (Disclosure of Information About Victims) Bill

Lord Keen of Elie Excerpts

Report stage & Report stage (Hansard) & Report stage (Hansard): House of Lords
Wednesday 1st July 2020 Lords Chamber

[Lord Ponsonby of Shulbrede (Lab) [V]]

My Lords, I thank the noble Baroness, Lady Bull, very much for moving her amendment. In Committee, I supported the amendments. I also echo the support of the noble Lord, Lord Bradley, who contacted me personally to say that he very much wishes he could have been here to support the noble Baroness’s amendment.

It must be said that a number of extremely eminent lawyers have, in essence, spoken against the amendment moved by the noble Baroness, Lady Bull. My response to those eminent contributions was best articulated by the noble Baroness, Lady Barker. My experience is that many different parts of the criminal justice system do not understand mental capacity legislation properly and that, even if they do, it is often not used to its full extent. That is because such a large proportion of the people we deal with in the criminal justice system as a whole have mental capacity issues.

I support in principle what the noble Baroness, Lady Bull, has said; I understand that she will not press her amendments to a vote. I hope that the Minister will say something more constructive about addressing the perceived gap in the legislation regarding further review by the Parole Board and the practicality of a possible remedy through judicial review. These are all active issues which have been explored in our debate. The Minister should acknowledge that the concerns raised are real and explain to the House why it would not be necessary to meet them in the Bill.

[The Advocate-General for Scotland (Lord Keen of Elie) (Con)]

My Lords, I thank the noble Baroness, Lady Bull, and other noble Lords for their contributions to this debate. Perhaps I may reiterate the position of the Government, which is that we consider that the amendments would unnecessarily fetter the discretion of the Parole Board. I do not accept that there is a gap in the legislation, as suggested by the noble and learned Lord, Lord Hope of Craighead.

I shall initially address Amendment 1 and related Amendments 5, 8, 11 and 14, which would ensure that the Bill’s provisions applied only to prisoners who are, or have previously been, “able” to disclose relevant information but have not chosen not to do so.

The Bill affords the Parole Board wide scope subjectively to consider the circumstances of a prisoner’s non-disclosure. The test is broadly drafted to give the Parole Board, which is after all an independent judicial body with experience in assessing risk and evidence, sufficient flexibility to take all relevant circumstances into account when making a release assessment.

The board must be satisfied that the offender no longer poses a risk to the public, and this high bar can be met only after it considers all elements of an offender’s case. This already includes an offender’s current and past “ability”, whether mental or physical, to disclose such information. The Parole Board may already consider all possible reasons, in its own view, for any non-disclosure, including historic refusals.

There is some uncertainty as to the meaning of the term “able” in these circumstances, and it would be unclear what criteria the board would use to make their determination. In many cases, there are varying degrees of ability, or varying degrees of information, that the prisoner can disclose, and the interpretations of ability in each case will differ—a point made by a number of noble Lords. The Parole Board in its current practice uses a flexible approach to take into account all elements of a non-disclosure. To use “able” in a determinative and inflexible way would cause unnecessary confusion and potential inconsistencies in its application. That has the potential unfairly to prevent the board when applying the Bill’s provisions from considering a non-disclosure by an offender in many circumstances; for example, the case of an offender who had rendered themselves “unable” to disclose due to illicit drug use in prison. There are clearly other examples of how that difficulty could arise.

By specifically avoiding reference to particulars in the Bill, we are deliberately not limiting the board’s ability to use its expertise in how it approaches such cases. I say in response to a point made by the noble Baroness, Lady Bull, that the Parole Board is possessed of considerable expertise in these areas, including that of mental health.

That leads me on to Amendments 2, 6, 9, 12 and 15, which would explicitly direct the Parole Board to take into account one possible reason for non-disclosure; namely, whether the prisoner has or had the mental capacity to disclose information. The Bill places a broad statutory duty on the Parole Board to take into account non-disclosure on the part of a prisoner and, in doing so, it must consider all the reasons for such non-disclosure. It is therefore for the board itself, as now, to take a subjective view of what those reasons might be, and then it is for the board to decide what bearing this information may have on its subsequent assessment of suitability for release. I remind noble Lords of what is provided for in Clause 1(2)(b), which states:

“When making the public protection decision about the life prisoner, the Parole Board must take into account … the reasons, in the Parole Board’s view, for the prisoner’s nondisclosure.”


That wide remit clearly would embrace all the issues that have been touched on in the debate.

The noble Baroness correctly identified that a prisoner’s mental state is likely to be a significant factor in assessing reasons for non-disclosure. However, we do not believe that there is any material benefit in referring to this as a possible reason for non-disclosure in the Bill, as the Parole Board will take all relevant factors into account when assessing a prisoner’s suitability for release. If one factor were to be explicitly stated, it could be asked why other reasons for non-disclosure are not also placed on a statutory footing, such as a geographical change that prevents the location of a victim’s remains being identified or circumstances where mental impairment does not amount to “mental capacity”. As one noble Lord observed, there may be cases where people have simply forgotten or decided to blank matters out of their mind over a period of many years. Clearly, the noble Baroness does not wish to preclude any other relevant factors, but any delineation of what the reasons for non-disclosure may be in order to preserve a flexible approach takes away from the subjective approach that we invite the Parole Board to take. This approach is expressed in Clause 1(3), which states:

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


It is for the board to take these matters into account when conducting its assessment.

There are significant practical difficulties in attempting to give examples on the face of the statute, which could lead to unnecessary confusion. That is why a decision as to mental capacity is one of many that would have to be considered. However, the board is bound by public law principles to act reasonably in respect of all decisions it makes. A decision where a relevant mental capacity issue was not taken into account would clearly be amenable to challenge by judicial review. That is why we believe that the more sensible approach is to leave these matters to the considerable expertise and experience of the Parole Board and not to attempt to take one or two factors out of context and place them in the Bill.

I say in response to one or two points raised in debate that the Parole Board already has expertise available to it in dealing with matters of mental capacity. We are not moving away from the current guidelines; we are essentially expressing in statutory form that which can be found there already. The noble Lord, Lord Balfe, asked whether the matter would go to Strasbourg. I simply draw his attention to the certificate given by the Lord Chancellor and Secretary of State for Justice pursuant to Section 19(1)(a) of the Human Rights Act 1998 that, in his view, the provisions of the Bill are compatible with convention rights.

I acknowledge the concern expressed about mental capacity. I reiterate our view that that is well embraced by the broad terms of the Bill. I therefore invite the noble Baroness not to press her amendments.

--- Later in debate ---

[Lord Ponsonby of Shulbrede [V]]

My Lords, this is an interesting group of amendments, and my party will abstain if a vote is called. I listened carefully to the argument from the noble Lord, Lord Thomas of Gresford, and the noble and learned Lords who have spoken in this debate. The noble and learned Lord, Lord Thomas of Cwmgiedd, summarised the situation clearly from my perspective: Newton hearings are, in any event, the least common form of determining facts. The determining of facts is most often done by judges when summing up the case and, if there is a basis of plea, that would be the basis on which the sentence is made. If it is not accepted, there could be room for moving to a Newton hearing.

As the noble and learned Lord, Lord Mackay, said, Newton hearings occur throughout the whole of the English and Welsh system. As noble Lords may know, I sit as a magistrate in London and we occasionally do Newton hearings. They are used as a method of resolving the seriousness of the offence in some cases, but it seems we are talking about a very narrow set of circumstances here. In particular, the judge will have sat through the whole trial in the first place, and it will be for the lawyers on both sides to go through all the aggravating and mitigating factors, including the non-disclosure of a body. Of course, if the judge is not satisfied that that has been gone into sufficiently, they themselves can ask questions of clarification, if I can put it like that, of any witnesses giving evidence. It seems unlikely that this procedure would ever be used, and as such it should not be in the Bill.

A number of noble Lords spoke about calling witnesses again. It could be an extremely traumatic event for some people to have to be called twice to establish the facts of the case. Surely, it would be far better if all the facts—including the reason for the non-disclosure of the body or of the identity of children who have had sexual images made of them—were established in the trial itself, rather than elements of the trial being repeated in a Newton hearing. I will abstain on this amendment for the reasons I have given.

[Lord Keen of Elie]

I thank all noble Lords for their contributions to this debate. The Government remain of the view that these amendments would place too much emphasis on findings of mental capacity at a Newton hearing, particularly the findings made for the purposes of sentence.

In sentencing an offender, it is for the court to consider the punitive element of an offender’s sentence and, in doing so, to take into account the failure to disclose information in setting the tariff. By reflecting this in the sentencing remarks, victims can be assured that due consideration has been given to the non-disclosure. Tariffs must be served in their entirety and irrespective of any disclosure of information after a trial, so the tariff cannot be reduced because of subsequent disclosures. This is an entirely sensible approach, as I believe the noble Lord, Lord Thomas of Gresford, acknowledged when we discussed this matter in Committee. The trial judge is more able to determine the appropriate weighting with regard to non-disclosure when setting the tariff.

On the other hand, the Parole Board’s role is in relation to the preventive element of the sentence. The consideration that the Parole Board must make is whether there should be a continuation of custody or a release on licence if the offender’s risk can be safely managed in the community. The Bill places a statutory duty on the board, when making that wider assessment, to consider the non-disclosure of information by an offender and the possible reasons for it. The board will take a subjective view of what those reasons might be, and what bearing this information may have on the subsequent assessment of suitability for release. When it comes to consider these matters, it must of course take account of the judge’s sentencing remarks. Those, in turn, will be informed by such issues as non-disclosure. I am obliged to the noble and learned Lord, Lord Thomas of Cwmgiedd, for his detailed analysis of how the court approaches these matters in practice and why, in the context of the Bill, it would not be appropriate to simply import the notion of the Newton hearing for the purposes of the Parole Board’s determination.

The noble Lord, Lord Thomas of Gresford, has correctly identified that a prisoner’s mental state may be a significant reason for non-disclosure—a point made earlier by the noble Baroness, Lady Bull, when she spoke to her own amendments. But to limit this to the specific context of a Newton hearing, and to place that in the Bill, appears to us to be too narrow an approach. The Parole Board should be free to consider all reasons, including those that may arise as a result of a Newton hearing—unusual though they may be—and we should therefore avoid any specific delineation in the Bill.

As new subsection (3) in Clause 1 makes clear, the breadth of matters which the board may take into account is, essentially, as wide as possible. In addition, the board is bound by public law principles to act reasonably in all decisions, so a decision where a relevant Newton hearing or an issue of mental capacity was not taken into account could be subject to judicial review. I venture that this is not the Bill in which to approach the whole issue of sentencing guidelines or findings of fact for the purposes of those guidelines. That is already accommodated, and it is in these circumstances that I invite the noble Lord to withdraw his amendment.

[Lord Thomas of Gresford [V]]

My Lords, it is clear that the noble and learned Lord, Lord Mackay, does not like the system of Newton hearings, but the fact that the defendant has refused to disclose is not necessarily part of the offence. The reasons for his refusal to disclose the whereabouts of a body, or the identity of a child involved in indecent images, may not emerge in the course of a trial and may not be discussed before the jury. A jury listening to a case may not investigate the mental capacity of the defendant before them. If that is not an issue in the trial, examined on both sides, then the judge would have difficulty in forming a view of his own without hearing evidence.

The noble and learned Lord, Lord Thomas of Cwmgiedd, referred to the basis of plea as being the more usual way in which these matters are sorted out. I am completely familiar with the formation of the basis of plea, and the arguments that go on as to whether an agreement can be reached between the defence and the prosecution. However, if a person pleads guilty to murder or manslaughter and there is no trial, and there is a disagreement between prosecution and defence, how is the judge to come to a conclusion as to the degree to which the refusal to identify where a body is buried is to be part of his sentencing process—that it is an aggravating factor which he is to take into account? He has not heard any witnesses. He has just heard that the counsel disagree on what the basis of a plea would be.

--- Later in debate ---

[Lord Ponsonby of Shulbrede [V]]

My Lords, I support the amendment and I support my noble friend Lady Kennedy of Cradley. She set out very clearly the reasons for the amendment, and the majority of speakers have supported her. I found the speech of the noble Baroness, Lady Newlove, particularly moving. She spoke from the heart, as always, and, sadly, she spoke from bitter experience. It was particularly interesting that she talked about the practicalities of getting information from the Parole Board, even when you are very well known to the board as a victim.

My noble friend’s amendment would put in place an opt-out rather than an opt-in system, and the various elements of that are specified in the amendment. The arguments against the amendment made by the noble and learned Lord, Lord Mackay, and the noble Lord, Lord Naseby, was: that is all very well, but why are these victims different from the other victims within the whole of the criminal justice system? The noble Baroness, Lady Barker, made the point very clearly: the reason they are different is that they continue to be victims because of the non-disclosure of the information.

There are roughly only 100 such victims in the country. I hope that any review of the work of the Parole Board will look at making a much wider opt-out system available in the future, but, now, we have the chance to legislate to address the concerns of this very particular group. The Parole Board has a heavy weight of responsibility but this is an opportunity for the House to make a tangible difference to these victims’ lives, and it should seek to do so. I support my noble friend.

[Lord Keen of Elie]

My Lords, I thank all noble Lords for their contributions to this debate. I quite understand the concern that has been expressed about the victims of crime and the victims of these particular crimes.

Perhaps, first, I may make a number of rather technical points in relation to the scope of the amendment. Subsection (1) of the proposed new clause does not apply to those receiving a determinate sentence for the offences contained in the Bill. However, I am confident that the amendment was meant to apply to all sentence types, and I will proceed with my remarks on that basis. Additionally, “relevant persons”, as defined in proposed new subsection (5), would include offenders beyond the scope of the Bill—namely, all those convicted of murder or manslaughter—rather than being restricted to the circumstances set out in the Bill. Again, I will proceed with my remarks on the basis that this was intended to be confined to offenders to whom the Bill applies.

I turn to the substance of the amendment. First, it would require the Parole Board—I emphasise: the Parole Board—to create and maintain a database of victims’ family members in cases captured by the Bill. The board would have to remove a family member from the database if they did not wish to be included. Secondly, it would create an obligation on the Parole Board to provide information to certain groups of victims and, indeed, suspected victims and their families.

This amendment effectively replicates some elements of the victim contact scheme for a limited group of people, and places the duty on the Parole Board to administer it rather than the National Probation Service. With respect, the Parole Board is not equipped for such a function. There is already a well-established process delivered through the victim contact scheme to provide victims with information about the date and outcome of parole hearings, and they can request a summary of the Parole Board decision. This process also facilitates victims requesting the imposition of specific licence conditions for the offender’s release, such as exclusion zones, and assists them in submitting a victim personal statement which will be considered by the Parole Board panel. The Government see no justification for replicating the excellent service provided by the victim contact scheme for a particular group of victims’ families in a limited way.

Proposed new subsection (2) of the amendment proposes an unfettered right to

“information pertaining to the application”,

which may include confidential information relating to the offender, such as police intelligence, which may breach the offender’s confidentiality rights and put their safety at risk. The Parole Board must balance the rights of victims with the rights of the offender.

If there is any suggestion that the parole decision is legally or procedurally flawed, victims may ask the Lord Chancellor to consider making a reconsideration application on their behalf, and the Lord Chancellor can ask the Parole Board to look at the decision again. Victims will receive a detailed letter setting out the reasons why the request for reconsideration was successful or unsuccessful. The victim liaison officer will provide information regarding judicial review if requested.

There are significant practical difficulties in operating such a scheme on the opt-out basis suggested by this amendment. The Parole Board would need to ensure that the correct contact details for each victim are recorded; if a victim does not respond to the offer of contact, it would not be appropriate simply to send updates to a last known address, for example. This amendment would duplicate much of the work delivered under the victim contact scheme but could not replace it entirely. That means that victims would have to receive contacts from and share information with both the Parole Board and the victim contact scheme, which would in turn add to their distress at a potentially very difficult time.

We are currently trialling a new process whereby all eligible victims are referred directly to the National Probation Service, to ensure that they are all offered access to the victim contact scheme directly by it, thus ensuring that we reduce the risk of victims opting out before they are clear about the benefits of the scheme. The new process also incorporates a standard referral form that provides the service with the address, telephone number and email address of victims to allow for multiple methods of contact.

We recognise that receiving information about parole hearings is of great importance to many victims, and we endeavour to support them through the existing victim contact scheme. We consider that this support is far better delivered by the National Probation Service than by being placed on the shoulders of the independent Parole Board, which, as I indicated, is not equipped to carry out such a service.

The amendment also contains a requirement to review the database’s use within one year of its creation. However, as some noble Lords observed, cases such as those detailed in this Bill are extremely rare and it is unlikely that a review after one year could result in any significant, reliable findings.

I emphasise that we are concerned with the position of victims. They are provided with information under the victim contact scheme, which is administered by the National Probation Service. The victim liaison officer will provide information to those who wish to receive it. Where the Parole Board considers or reconsiders a case, victims will receive a detailed letter setting out the reasons why, for example, a request for reconsideration was successful or unsuccessful. We are ensuring that the victim’s personal statement comes before the Parole Board when it has a hearing. We plan to enshrine support for victims in a victims’ law, as we have indicated, but before we do this we will revise the victims’ code to give them more clarity on their rights around access to support and greater flexibility over when and how a victim personal statement can be made.

The noble Lord, Lord German, referred to engagement on this matter. I can indicate that my honourable friend Alex Chalk, the Minister with responsibility in this area, has been endeavouring to arrange a meeting with the noble Baronesses, Lady Kennedy and Lady Barker, to discuss this matter. I do not know whether they are aware of that, but I am advised that this is in train, if I may put it in those terms. In these circumstances and, in particular, having regard to the distinctive role of the Parole Board on the one hand and the National Probation Service on the other, with respect to the victim code, I invite the noble Baroness to withdraw this amendment.

Marriage and Religious Weddings

Lord Keen of Elie Excerpts

Tuesday 30th June 2020 Lords Chamber

[Baroness Cox]

To ask Her Majesty’s Government, further to the Integrated Communities Strategy Green Paper, published on 14 May 2018, what progress they have made on their commitment to “explore the legal and practical challenges of limited reform relating to the law on marriage and religious weddings”.

[The Advocate-General for Scotland (Lord Keen of Elie) (Con)]

My Lords, the Government continue the exploration of limited reform and non-legislative options that they began in detail last spring. We are doing so with the greatest care. Any proposals affecting how religious groups are permitted to conduct marriages must be thoroughly assessed for their fairness to all religious groups, and for how far they could achieve the change of practice intended.

[Baroness Cox (CB) [V]]

My Lords, I remain deeply concerned because we have seen no evidence of any significant progress since I asked a similar Oral Question nine months ago, on 23 October. Given the strong recommendations of the Casey review, the sharia law review and the Parliamentary Assembly of the Council of Europe, and given the number of Private Members’ Bills that I have submitted since 2011 with cross-party support and the support of Muslim women’s groups, will the Minister give an assurance at last that government legislation will be introduced as a matter of urgency? So many Muslim women in this country are suffering in ways which are unacceptable and make our suffragettes turn in their graves.

--- Later in debate ---

[Lord Keen of Elie]

My Lords, I am not in a position to give such an undertaking. The issues raised are considered in the Integrated Communities Action Plan.

[Lord Mackay of Clashfern (Con) [V]]

My Lords, to what extent does the right to practise one’s religion, subject to a proviso, affect the right to maintenance and property during marriage and on divorce or separation?

[Lord Keen of Elie]

My Lords, if a religious ceremony of marriage or purported marriage does not conform to the requirement of Lord Hardwicke’s Act of 1753 or the marriage Act of 1836, then there will be no marriage. In these circumstances, a couple would be regarded as cohabiting and that would clearly have an impact upon any circumstances in which they ceased to cohabit.

[Baroness Meacher (CB) [V]]

My Lords, it is seven years next month since the same-sex marriage Act was passed, enabling Governments to bring about legal recognition for humanist marriages by ministerial order. Since then, successive Ministers have been very supportive but have had a series of reviews rather than taking action. Meanwhile, 6,000 couples who have had humanist weddings have also been required to have a second marriage ceremony with a registrar to get legal recognition of their ceremony. This cannot be justified. Will the Minister help to achieve legal recognition of humanist marriages, which has the support of the majority in all religious groups?

[Lord Keen of Elie]

My Lords, the Law Commission is proposing to look at the matter of where and in what circumstances marriage should be celebrated. I understand that its consultation document will be available in September.

[Baroness Whitaker (Lab) [V]]

My Lords, following the question of the noble Baroness, Lady Meacher, can I press the Minister on this issue? Provision for legally recognised humanist marriages was overwhelmingly supported in the government consultation. What are the real obstacles to our having equal rights with Scotland?

[Lord Keen of Elie]

The major obstacle is the fundamental difference between the law of marriage in Scotland and that in England. The law of marriage in England and Wales, as determined since Lord Hardwicke’s Act, depends upon the place of celebration as well as the celebrant. That is not the position in Scotland, where it is not necessary to identify the location for the marriage ceremony.

[Lord Dholakia (LD) [V]]

My Lords, is there any evidence of girls being married before reaching the legal age at which marriage is permissible, particularly during the Covid emergency of recent times, and is the situation regularly monitored here and abroad to ensure that this does not happen to girls settled in the United Kingdom?

--- Later in debate ---

[Lord Keen of Elie]

My Lords, any purported marriage to a person under the age of 16 would be void and of no effect. A marriage of an individual between that age and the age of 18 would of course require parental consent.

[Baroness Uddin (Non-Afl) [V]]

My Lords, for some years, I have spoken in this House in support of the Register Our Marriage campaign led by Aina Khan OBE, whose commendable work has established the urgent need for legal recognition of any marriages conducted with religious ceremonies. This is not the case at present, as noble Lords have said, which significantly impacts many vulnerable women, who often only become aware when the marriage dissolves that they have little or no marital and financial rights. Will the Minister agree to meet—even on Zoom—with me, interested Members of Parliament and the legal and community experts of the ROM team, to gain greater insight into resolving these outstanding anomalies and eradicating their harmful impact, given that the laws on marriage are due to undergo further and imminent changes?

[Lord Keen of Elie]

My Lords, the position is that there is a very real social issue, but not a legal issue, with regard to this matter. It is not possible simply to say that we will acknowledge all religious ceremonies of marriage, of any kind, as legally enforceable. That would actually expose people to greater harm in the long term. I am perfectly content to meet with the noble Baroness and others to discuss this matter. It would be sensible to defer such a meeting until we have the Law Commission’s terms of reference and consultation document in September of this year.

[Baroness Warsi (Con) [V]]

My Lords, I am sure my noble and learned friend accepts that the role of politicians and indeed government is to ensure that the law responds to the needs of a changing community. Therefore, could he explain why, despite 10 years of government policy consensus on religious marriages—that Muslim women in particular deserve the same protection as other married women—the Government still fail to put that protection in place?

[Lord Keen of Elie]

First of all, those who undergo only a sharia ceremony are not in marriage; that is the source of the problem we have to face here. That is more a social issue than a legal one, and it requires education and information more than legislation.

[Baroness Deech (CB) [V]]

Do the Government not realise how urgent reform is in this area? Not only are religious marriages continuing to take place, with all the drawbacks outlined by my noble friend Baroness Cox—the Minister is right to say that this must be stopped by education—but lockdown has shown the need for simpler weddings and more certainty in formalities, to increase choice, lower cost and ensure legality. Will the Government make time for statutory reform soon, encompass those reforms and whatever the Law Commission comes up with in its timely work on weddings, which has a broader scope but will include discussion of religious-only marriages and the consequences for couples who do not comply with the requirements?

--- Later in debate ---

[Lord Keen of Elie]

My Lords, the Law Commission review will consider the law on how and where marriages may take place in England and Wales. The terms of reference for that project have already been published and we look forward to the consultation paper and the results of that consultation.

[Lord Desai (Lab) [V]]

My Lords, the evidence is not only that underage marriage is sanctioned by parents, but that any woman defying parental orders can suffer violent death. We have to understand that it is not just a matter of the law of marriage but of the legal human rights of underage children, especially girls, to have protection from their families. The Government must do something about that part of the law and not just wait for the Law Commission.

[Lord Keen of Elie]

My Lords, there is an issue to be addressed with regard to what amounts to forced marriage. Since 2014 that has been a specific criminal offence, and since 2017 we have ensured that those who come forward in these circumstances receive lifelong anonymity.

[Baroness Sheehan (LD) [V]]

May I ask the Minister how the Government measure the effectiveness of awareness campaigns to educate socially isolated Muslim women and girls on the benefits of a civilly registered marriage?

[Lord Keen of Elie]

My Lords, there is no absolute means by which one could accurately measure that, so it is necessary to engage with these communities and to analyse feedback from them in order to ascertain the extent of the problem. I readily acknowledge that there is a very real issue with regard to the Muslim community’s tendency, in many cases, to undergo a sharia ceremony rather than a legal marriage.

[The Deputy Speaker (Lord Lexden) (Con)]

My Lords, the time allowed for this Question has now elapsed.

Prison Sentences

Lord Keen of Elie Excerpts

Monday 29th June 2020 Lords Chamber

[The Advocate-General for Scotland (Lord Keen of Elie) (Con)]

Custody is always a last resort, but courts should have the option of imposing short custodial sentences where appropriate. Community sentences also have a part to play in our efforts to break the cycle of reoffending. Our plans for new sentencing legislation include more robust community sentences, which both punish and address offenders’ needs.

[Lord German (LD) [V]]

Bearing in mind that this Question is about reducing the number of short prison sentences—and bearing in mind the Minister’s review of the number and application of these sentences— does he accept the evidence, much of it from his own department, that for many offenders a short prison sentence will lead to a higher rate of reoffending? Remember that, just last year, the Justice Secretary told Parliament that a reduction of 32,000 reoffences could be achieved. What are the Government now going to do about this evidence? Are they going to inform the courts about what they could do?

[Lord Keen of Elie]

On the basis of figures from research in 2016, it is suggested that if offenders received a prison sentence of up to 12 months, they were something like four percentage points more likely to re-offend than if they had received a community sentence. However, noble Lords must bear in mind that those receiving a prison sentence of up to 12 months are very frequently those who have already received a community sentence and then re-offended.

[Lord Judd (Lab) [V]]

My Lords, this is a very important question. It is absolute economic nonsense to put so much concentration on short sentences when the money could be used much more constructively towards rehabilitation. The reconstituted probation service will have a key role to play, but do the Government accept that, apart from establishing that crime is crime and cannot be tolerated, the task overall is to rehabilitate? Many of these short sentences are dealing with people whose lives are in chaos. Without proper rehabilitation facilities, their lives become more chaotic; it does not help towards rehabilitation.

[Lord Keen of Elie]

Rehabilitation is of course an important aim, but it is not the sole aim in the context of criminal justice. At present there are no plans to end short-term prison sentences. Of course, short sentences do not help some offenders turn their backs on crime, but protecting the public has to be our priority.

[Baroness Hamwee (LD) [V]]

My Lords, is the Minister satisfied that the rehabilitation provided during a short sentence can be sufficient to enable an offender to learn to live a better life, rather than learn to do crime better?

[Lord Keen of Elie]

It is very difficult to estimate the extent to which rehabilitation can be effective during a short prison sentence. Indeed, where someone is sentenced to a period of less than six months in prison, the median period actually spent in custody is about six weeks.

[Lord Garnier (Con) [V]]

My Lords, I refer to my interest in the register as a trustee of the Prison Reform Trust. Does the Minister accept that short-term sentences of imprisonment are in normal times of little use in protecting the public and of no use in reforming the offender, who is frequently a mentally ill drug user? However, now they are positively counter- productive. The impact of Covid-19 means that prisoners are in their cells for 23 hours a day, essentially living in a shared lavatory with no access to purposeful activity, fresh air or rehabilitation courses. Should not all custodial sentences of six months or less be immediately suspended, with strict supervision conditions attached?

[Lord Keen of Elie]

The Court of Appeal recently set out in its judgement in the case of Regina v Christopher Manning that

“Judges and magistrates … should keep in mind that the impact of a custodial sentence is likely to be heavier during the current emergency”,


and we acknowledge that to be the case. However, that does not alter our position with regard to the ability of the judiciary to impose short sentences.

[Lord Ramsbotham (CB) [V]]

My Lords, can the Minister tell the House whether the Prison Service is happy with the current situation regarding short sentences?

[Lord Keen of Elie]

My Lords, I am not in a position to judge the happiness or unhappiness of the Prison Service, whether in this context or any other. However, clearly, where the independent judiciary finds it appropriate to impose a prison sentence of 12 months or less, we know that the Prison Service will respond positively and deal with that.

[Lord Ponsonby of Shulbrede (Lab) [V]]

My Lords, does the Minister agree that the vast majority of short-term prison sentences are given to people who have been on community sentences, sometimes a number of times? How do the Government propose to make community sentences more robust, because surely the key is for the judiciary and the general public to have greater faith in them?

[Lord Keen of Elie]

The noble Lord makes a very good point. Of adults sentenced to six months custody or less, about 84% have previously received a community order, and, indeed, a very large proportion of those have received repeated community orders before finally the court has imposed a custodial sentence. I also acknowledge the noble Lord’s point regarding community sentences. That is one of the things our imminent White Paper is going to do, and we will seek to make community sentences tougher, for example through longer curfews and more hours of unpaid work. We are also, of course, developing the whole area of GPS monitoring with regard to community sentences.

[Lord Dholakia (LD) [V]]

My Lords, the pandemic has once again focused attention on short-term sentences or their abolition in favour of community-based penalties. As of 29 May 2020, according to the Library Note, only 95 prisoners have been released under the End of Custody Temporary Release scheme, commonly referred to as ECTR. To what does the Minister attribute the higher sentencing tariff in our courts, and could the Sentencing Council be asked look again at the way judges are using the sentencing tariffs?

[Lord Keen of Elie]

We consider that the independent judiciary should be in a position to impose the sentence they consider appropriate in an individual case. Releases under the early release scheme have of course been done on an individual basis and in addition, female prisoners have been released under the scheme—pregnant prisoners and those in mother and baby units. According to my figures, as of 22 June a total of 23 women had been released under that scheme.

[Lord Dubs (Lab) [V]]

May I refer the Minister again to the Ministry of Justice research report, published last year, on the impact of short prison sentences and community sentences? Did not that research show fairly clearly that replacing short prison sentences with community sentences would prevent many, many crimes? Would not that be the best way forward?

[Lord Keen of Elie]

We are not satisfied, on the basis of available evidence, that replacing short custodial sentences with community sentences would prevent many, many crimes. As I indicated earlier, a very, very large proportion of those who do receive a short prison sentence have received repeated community orders and gone on to re-offend. It is a very difficult issue, but we plan to improve the whole area of community sentences, and that will play a part, we hope, in reducing re-offending.

[Lord Randall of Uxbridge (Con) [V]]

Further to the reply given to my noble and learned friend Lord Garnier, perhaps the Minister will consider whether we should be looking again at the efficacy of short sentences as a result of the pandemic?

[Lord Keen of Elie]

We do not consider that the pandemic is, in itself, a reason to re-examine the whole issue of short sentences, and we have no plans at present to review the ability of the judiciary to impose them.

[Lord Woolf (CB) [V]]

In view of what the Minister has said, does he agree with me that it would be sensible to follow the example, set in Scotland, of having a presumption against short sentences? That does not interfere with the judiciary’s discretion but it confines it to the minimum of cases, where it is appropriate.

[Lord Keen of Elie]

We consider that the judiciary is in a position to exercise its own independent judgment with regard to the imposition of short sentences, without the need for further guidance.

[The Deputy Speaker (Lord Bates) (Con)]

My Lords, I am afraid that the time allowed for this Question has now elapsed, so we will move to the third Oral Question.

Private International Law (Implementation of Agreements) Bill [HL]

Lord Keen of Elie Excerpts

3rd reading & 3rd reading (Hansard) & 3rd reading (Hansard): House of Lords
Monday 29th June 2020 Lords Chamber

Moved by

[Lord Keen of Elie]

1: Clause 2, page 2, line 33, leave out subsections (2) and (3)

[The Advocate-General for Scotland (Lord Keen of Elie) (Con)]

My Lords, I am grateful to the House for Members’ engagement on the Bill throughout its passage. The amendments in this group are all consequential on the removal of the delegated power contained in the former Clause 2 of the Bill. I am moving Amendment 1, and support Amendments 2 and 3, as the provisions to which they relate do not function without the delegated power.

Before I turn to the detail of the amendments, I wish to make clear from the outset that we believe that the delegated power contained in the former Clause 2 of the Bill was a necessary, proportionate and constitutionally appropriate measure, for the timely implementation in domestic law of future private international law agreements which the Government had decided that the UK should join. Subject to a successful application, this could have included the Lugano Convention 2007.

Any decision for the United Kingdom to join a treaty or agreement in this area of law would still have been subject to successful completion of parliamentary scrutiny procedures under the provisions of the Constitutional Reform and Governance Act 2010. The former delegated power in the Bill did not alter the well-established approaches to parliamentary scrutiny of treaties and wider ratification processes under CRaG. Instead, it was simply a mechanism to draw down the treaty obligations into domestic law in readiness for ratifying the treaty.

I will now speak to Amendment 1, in my name, which seeks to remove from the Bill subsections (2) and (3) of Clause 2, formerly Clause 3, which establishes the Crown application of the Bill. These provisions were consequential on what was, originally, Clause 2, containing the delegated power. They provided that regulations made in the exercise of the delegated power in former Clause 2 could bind the Crown, subject to exceptions which reflect those contained in Section 51 of the Civil Jurisdiction and Judgments Act 1982, as referred to in subsection (1).

The Government are bringing forward this amendment to remove these subsections from the Bill, as these two interlinked provisions were originally intended to apply to regulations made under the delegated power and therefore serve no function following its removal. As I have indicated, this is purely to ensure that the Bill is workable for its introduction into the other place, given the outcome of our deliberations in this House.

I have also put my name to Amendment 2, in the name of the noble and learned Lord, Lord Falconer of Thoroton. The amendment seeks to remove Schedule 6 from the Bill. It details how the delegated power could be exercised in practice, including the parliamentary procedures to be followed for making regulations. I accept that the House has made its view clear, and without the delegated power in the former Clause 2, Schedule 6 serves no useful purpose. In these circumstances, purely to enable the tidying up of the Bill, we support the amendment to remove Schedule 6 from the Bill at this point.

Amendment 3, also in the name of the noble and learned Lord, Lord Falconer, seeks to amend the Long Title of the Bill. Again, this is a consequence of the removal of the delegated power. Given that the new title more accurately reflects the content of the Bill as amended by the House, namely the implementation of the 1996, 2005 and 2007 Hague Conventions under Clause 1, in these circumstances the Government are content to support the amendment.

I beg to move.

[Lord Falconer of Thoroton (Lab)]

I am obliged to the noble and learned Lord. There is no dispute between us; all three amendments should be approved, to reflect the changes resulting from removing the wider power. The Minister repeated his argument for why that power should be there. We have had this argument three times now. It was rejected when he put it to the Delegated Powers Committee, rejected when it was put to the Constitution Committee, and massively rejected when it was put before your Lordships’ House, so there is no point repeating it again.

The Minister said that we should be dealing with subsequent conventions by secondary legislation. We have made amendments in this Bill to the three conventions that we are bringing in today. We could not have done so if his Clause 2 powers had been there. I hope that he will bring back what was the view of everybody in the Chamber, apart from him—namely that the Clause 2 power should not be there.

--- Later in debate ---

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

I welcome these sensible amendments which tidy up the Bill, but I also welcome them for an important reason, which is that in removing Clause 2 this House made an important constitutional decision. I welcome the thrust of much of what the noble and learned Lord, Lord Garnier, said. However, I doubt that we need a thoroughgoing review of delegated legislation or the powers to delegate legislation. What we need is to respect more thoroughly the views of the Delegated Powers and Regulatory Reform Committee and the principles that it applies, which are well known and are often stated and applied by this House and were importantly so stated and applied during debates on the removal of Clause 2.

I regard it as a shame that the Minister opened this afternoon’s discussion with a reassertion of the position that he enunciated during earlier stages of the Bill— that Clause 2 was constitutionally proper and not inappropriate. This House decisively rejected that view. I hope that the Government will listen to what has been said today and, more importantly, will consider the arguments that were advanced during the earlier stages of the Bill, change their mind and decide not to reinstate Clause 2 and send it back to this House, taking advantage of their majority; and, rather than having a thoroughgoing review, will decide to exercise some self-control in future and not put before us Bills which contain delegated powers that most of us regard as entirely wrong and inappropriate.

[Lord Keen of Elie]

My Lords, as the noble and learned Lord, Lord Thomas of Cwmgiedd, and my noble friend Lord Holmes observed, it is important that we maintain the position of English law and the jurisdiction, particularly in London, with regard to commercial dispute resolution just as it is maintained under the New York convention with respect to arbitration. That is why we have made our application to the council of the Lugano convention to join that body, but it is step that can be taken only with the consent of the member states and the EU. We recognise that if our application is accepted it is a matter of urgency for us to draw down that treaty into domestic law, which in part explains the position that we have adopted with regard to Clause 2.

It is not often that I find myself in a position where I have to correct the noble Lord, Lord Foulkes of Cumnock. Indeed, I regard this as highly unusual, but I observe that where he said that the Government had decided not to proceed with Clause 2 that was not entirely accurate. It was decided for us, and there is a distinction to be drawn there. As regards the state of play with the Crown dependencies, the provision with respect to the Isle of Man fell with the amendments to the Bill in this House. As regards the Council of Europe, while in theory it may seek to promote some issues in respect of private international law, I do not understand that it has done so or that it imminently intends to do so, but I will make further inquiry and if necessary write to the noble Lord.

The noble Lord, Lord Thomas of Gresford, talked about a matter of principle with regard to the introduction of what would amount to a criminal offence of some limited penalty by way of secondary legislation or something other than primary legislation, a situation that has obtained for almost 50 years since the European Communities Act 1972.

The noble Lord, Lord McConnell of Glenscorrodale, raised prior consultation. I reiterate the points I made at an earlier stage with regard to that. Both the Government of Wales and the Government of Scotland granted an LCM to the Bill in its original form, so they appeared to be relatively content with its provisions.

I am not clear about the reference made by the noble Lord, Lord Mann, to Northern Cyprus in the context of the Bill, but I understand the complications that arise with regard there to private international law, and I would be content to speak to him later if there is a further point that he would like to elucidate, and I would be happy to consider it.

The Government are content to support this group of amendments as they relate to elements of the Bill which no longer function without the delegated power previously in Clause 2. However, as I have made clear, the Government’s position on the Clause 2 delegated power has not changed.

Amendment 1 agreed.

Sentencing Bill [HL]

Lord Keen of Elie Excerpts

2nd reading & 2nd reading (Hansard) & 2nd reading (Hansard): House of Lords
Thursday 25th June 2020 Lords Chamber

Moved by

[Lord Keen of Elie]

That the Bill be now read a second time.

[The Advocate-General for Scotland (Lord Keen of Elie) (Con) [V]]

My Lords, I believe noble Lords will agree with me that the law must be accessible, understandable and predictable. Unfortunately, with the greatest will in the world it has become difficult to say this about one particular aspect of our criminal law, that of sentencing procedure. Over the course of a generation, this body of law has grown incredibly complex and disparate. We have seen numerous examples of even the greatest legal minds in the country spending too much time trying to disentangle which provisions apply in individual cases. That is to say nothing of the challenge of victims and offenders themselves understanding the rules that will govern their case. Such a lack of transparency must be addressed.

That is why, in 2014, the Government agreed that the Law Commission should undertake a project designed to consolidate sentencing procedural law. The resulting consolidation Bill before your Lordships brings together the provisions which prescribe what happens to an offender who has been convicted of, or pleaded guilty to, a criminal offence. The substantive provisions of the Bill make up what is to be known as the Sentencing Code. The Sentencing Code contains the procedural provisions which courts need to rely upon during the sentencing process. This includes general provisions applying to sentencing courts, such as the purposes of sentencing, the duty to explain sentences and statutory aggravating and mitigating factors. It also includes the different types of sentence, such as fines, community sentences and custodial sentences, and also behaviour orders which can be imposed in addition to a sentence: namely, criminal behaviour orders, sexual harm prevention orders, restraining orders and parenting orders.

To aid accessibility and to help minimise the risk of error in the sentencing process, the Sentencing Code structures these provisions in an order which follows the chronology of a sentencing hearing. Certain provisions, such as the power to impose an extended sentence, are split by age of the offender. The Sentencing Code also includes signposts to other legislative provisions which will remain outside the Sentencing Code, to ensure these are not overlooked during the sentencing process.

The Bill also consolidates certain uncommenced provisions, such as the minimum sentencing provisions in the Offensive Weapons Act 2019 relating to certain offences concerning prohibited weapons and the possession of corrosive substances. These uncommenced provisions can be found in Schedule 22 to the Bill, separate from the main body of the Sentencing Code. This approach is intended to ensure that users of the Sentencing Code can be completely confident that the provision they are looking at is in force. If an uncommenced provision is commenced in the future, consolidating such a provision in Schedule 22 should make the commencement process straightforward.

The Law Commission consulted on a draft version of the Bill in 2017, and in 2018 conducted a separate consultation relating to the disposals in the Sentencing Code that are available for children and young persons. Both consultations received widespread backing from judges, lawyers and academics.

I remind the House that this Bill does not introduce any new sentencing law; nor does it make changes to existing offences and penalties. Indeed, as it is a consolidation Bill, it is not open to either House to seek to amend it in order to make such changes.

I finish by acknowledging that the Government are extremely grateful to the staff at the Law Commission and parliamentary counsel for their detailed and thorough work in this area over the past five years. The creation of this Bill is a tremendous achievement by the Law Commission and bears testament to the diligence and persistence with which it has approached this consolidation exercise.

If your Lordships are content to give the Bill a Second Reading, it will be referred to the Joint Committee on Consolidation Bills in the usual way. I beg to move.

--- Later in debate ---

[Lord Keen of Elie [V]]

My Lords, I thank all noble Lords, and noble and learned Lords, for their contributions. I reiterate my thanks to the Law Commission, and in particular to Professor David Ormerod and parliamentary counsel, for producing this consolidating measure—one that we all recognise is of supreme importance in this context.

Going forward, I acknowledge the importance of Parliament, when looking at matters of sentencing, being conscious of the need to mend the Sentencing Code and not derogate from it. Of course, we cannot bind future Parliaments, but we can make it clear today that we consider that that is the only appropriate way forward in dealing with further changes to sentencing.

I will touch briefly on a procedural matter raised by the noble Lord, Lord Campbell of Pittenweem, and touched on by the noble and learned Lord, Lord Thomas of Cwmgiedd. My understanding is that, because this is a consolidation measure, parliamentary practice does not require or direct the preparation of Explanatory Notes, the explanation being that it is a consolidation of the existing law. It may be a point of practice that will be looked at again in the future, but that is why there are no Explanatory Notes.

I will touch on some of the issues raised by noble Lords. The noble Lord, Lord Blunkett, raised the matter of IPP prisoners and prison sentences. I should point out that the Bill does not cover release, which is dealt with by Part 6 of the Criminal Justice Act 2003. Release and recall provisions for IPP prisoners remain as they were before.

The noble Lord also raised the matter of training, as did the noble Baroness, Lady Sater. Of course, we appreciate how critical that will be, and we appreciate that the Judicial College will take on that role with regard to the judiciary. We have heard no expressions of concern about its ability to do so, which may very well reflect the skill with which the Law Commission and parliamentary counsel produced such a formidable Sentencing Code in language of such clarity. Of course, the training will go beyond that of the judiciary and will be required of the legal profession in general.

A number of noble Lords quite rightly mentioned illegal sentences. We have to see the results of the relevant sample in context. What was being looked at were sentences that had been challenged as being either excessive or unlawful and which had therefore been brought to the Court of Appeal Criminal Division to be dealt with. Of course, it is an unusually high proportion of the work before the Court of Appeal, but these sentences were the subject of appeal and were being disposed of—and were the subject of appeal because an error in sentencing had been identified. So I suggest that one should not conflate that with the notion that 36% of all criminal sentences handed down by the judiciary are liable to be illegal. That would not be an appropriate inference to draw. But the matter of illegal sentences underlines what I would term the time-layered complexity of sentencing law, as it is built up over many years. That is what Professor David Ormerod addressed with the extremely astute use of what is termed the “clean sweep” mechanism and with the development of the Sentencing Code itself.

The noble Lord, Lord Carlile of Berriew, asked about the Bill’s commencement. We would like to see it commence as soon as possible, of course, and we continue to aim for 1 October 2020. The legislative programme has been under strain, for reasons that are all too apparent to noble Lords and noble and learned Lords, but at the moment we continue to aim for that date and we understand its importance.

On some of the other points that were raised, the noble Lord, Lord Addington, asked how the clean sweep would apply to someone who committed an offence before the Sentencing Code came into place. Safeguards there ensure that, if an individual would be subject to a sentence under the code which is greater than the maximum that would have been available at the time he committed his offence, that maximum at the time he committed the offence will be applicable and he will not be subject to the sentence in the code. I hope that that gives the noble Lord some comfort. Indeed, if someone who committed an offence before the Sentencing Code came into force would be liable to a minimum sentence that did not apply at the time he committed the offence, again, that minimum sentence would not be applied to him. That is part of the process that is being brought in, albeit it will be transitory because eventually we will move away from dealing with offences which were committed before the code came into place.

The noble Lord, Lord McConnell of Glenscorrodale, raised the question of devolved competence. The Bill does not extend to Scotland, because of course sentencing policy is a devolved competence, and it does not impinge upon devolved competence. A number of matters are dealt with in the code which simply address the transfer to Scotland of community orders and suspended sentence orders, and that is all. However, it does not impinge upon devolved competence as such.

My noble friend Lord Balfe alluded to the question of reviewing all sentences. We do not contemplate doing that and, as I hope I explained earlier, one should not take the sample of 2012 out of context. It is important to understand just how that came about.

Finally, a number of noble Lords—the noble Lords, Lord Adonis, Lord Harris and Lord Trimble—alluded to matters that are essentially outwith the scope of this consolidating measure. I hear what they say, and no doubt Parliament will wish to take account of the concerns that they expressed with regard to both sentencing policy and the whole issue of imprisonment. However, that is a matter for another day.

I hope that I have dealt with the specific questions raised by noble Lords. Again, I am grateful for the support that is being expressed across the House for this consolidating measure.

Bill read a second time.