Property (Digital Assets etc) Bill [HL]

Lord Ponsonby of Shulbrede Excerpts

Report stage
Wednesday 30th April 2025 Lords Chamber

[Lord Sandhurst (Con)]

My Lords, traditionally, English common law has recognised two forms of property: tangible things in possession and intangible things in action, such as debts and shares. However, as we have heard, with the rise of digital assets such as crypto- currencies, tokens and non-fungible tokens we encounter items that do not fit neatly into either category. These assets are becoming essential in modern commerce, and it is vital that English law remain at the forefront of international trade, safeguarding London’s position as a legal and financial hub.

The Law Commission looked at this and proposed a third category of property to accommodate such digital innovations, allowing for legal evolution without imposing rigid definitions that might exclude future technologies. The commission emphasised that statutory intervention must not undermine the existing legal clarity or introduce unnecessary complications. The flexibility of English common law is a strength; it has already adapted to address key questions in the digital sphere. The current regime offers a balance of predictability and adaptability, making our jurisdiction well positioned to lead in this space.

The Bill the commission drafted, which is now before us, does just that. We have tested it thoroughly in Committee. I have listened carefully to the concerns raised by my noble friend Lord Holmes of Richmond, and while I recognise them, the Bill has been carefully drafted and it is not necessary to amend it—save for Amendment 6, which we will come to later.

Addressing Amendments 1 and 2 in a little more detail, it will be for the courts to develop the law on the treatment of this category or to widen existing categories—whichever way one wishes to look at it. The proposed wording of Amendment 1 goes too far. The Bill’s wording is elegant and encompasses digital assets, which are not easily categorised in the conventional classifications. It also encompasses other things not yet contemplated or in our imagination but which, when they do come into existence, will be thought by the courts to deserve rights. That is what the Bill is doing; it is expressly not limited by over-definition. It achieves protection for these as yet unimagined things, while making it clear that existing digital assets will be protected.

We would be bold to depart from the views of Professor Green, chair of the Law Commission report, who is very hostile to this sort of amendment. When asked about one such suggested amendment, she said:

“That would really take away the whole bite of the Bill … the whole mischief that it addresses is that we no longer have to be stuck with these categories”.


Therefore, we cannot support Amendments 1 and 2.

Turning to Amendment 3, on codes of practice, we follow the reasoning which I have outlined. Any code of practice risks definitions which do not accommodate a new type of activity or entity outside its scope, but which is worthy of protection. Equally, the code might suggest that property rights be given to an activity which, after the detailed investigation that a trial can give, a court rightly decides should not be so protected. It is best left to the courts, which will receive evidence, hear arguments from competing parties and be able to resolve those matters. The six-month period is too soon. If the Law Commission had thought this a good idea, it could have said so. It is contrary to the tenor of its lengthy report. If the Act would, in five years’ time or whenever, benefit from amendment, it should be done with the benefit of hindsight and experience. Meanwhile, such amendment is premature.

[The Parliamentary Under-Secretary of State, Ministry of Justice (Lord Ponsonby of Shulbrede) (Lab)]

My Lords, I thank the noble Lord, Lord Holmes, for raising these issues. They get to the heart of the Bill: whether there is a need to recognise a further category in statute, and whether it is helpful to provide further guidance to the courts on the attributes to consider.

On the first of these points, the Government’s firm view is that the Bill’s current approach is the right one. Some stakeholders hold to the two-category view and say that there can be no further category beyond things in action and things in possession. This view is understandable but has its roots in history, including in an influential statement in a 19th-century case. That statement was made at a time when assets such as crypto tokens simply could not have been conceived of. The world has moved on, and the law needs to move on with it.

The Special Public Bill Committee heard from stakeholders who would prefer to see these emerging assets categorised as things in action, on the basis that their approach would give more legal certainty. However, the need for new solutions is the result of the unique features of these assets and not of their categorisation. For example, the existing rules on transfer of things in action, or on remedies for interference in things in action, are simply not adequate for assets such as crypto tokens. Either way, the law, through the courts, will have to respond to their new features.

The Bill is the result of a three-year project by the Law Commission during which all arguments, including the arguments in favour of this amendment, were considered in full. A strong majority of consultees to both consultations undertaken by the commission expressed a preference for a further category. Most respondents to the committee’s call for evidence also supported this approach. This approach came from a wide range of stakeholders—from legal professionals to industry bodies and academics.

Another advantage of the Bill’s approach is that it is technologically neutral. As the noble Lord, Lord Sandhurst, excellently put it in Committee, the Bill

“encompasses other things not yet contemplated or in our imagination”.—[Official Report, 3/2/25; col. 16.]

The Bill future-proofs our law in the way the other two categories do not. As Professor Green put it in her evidence, as quoted by the noble Lords, Lord Holmes, Lord Clement-Jones and Lord Sandhurst,

“the whole mischief that it addresses is that we no longer have to be stuck with these categories”.

By removing any uncertainty around a possible further category, we will give the courts the freedom to develop our common law. This approach allows them to consider and respond to the unique features of digital assets, and other assets that we cannot yet foresee.

This flexibility is also relevant to the question raised by Amendment 3: whether the Secretary of State should publish codes of practice about the attributes of digital things that confer personal property rights. The Government’s view is that requiring the publication of codes of practice could undermine the flexibility that the current drafting affords the courts. The Law Commission considered the features of assets that have characteristics of property but do not fit into the existing categories. However, City law firms, senior barristers, financial industry groups and crypto industry groups gave clear feedback that a more detailed statutory provision incorporating these features could be counter- productive.

The Government are concerned that the same issues could stem from publishing a code of practice. It could create unhelpful boundary challenges, lead to undue complexity, and prevent the common law being able to respond flexibly and dynamically to new technologies and unforeseen challenges. This feedback was reflected in some of the written evidence submitted to the Bill Committee.

As noble Lords will remember, the Bill Committee was firmly in favour of maintaining the Bill’s current approach. My noble friend Lord Stansgate got to the heart of the matter when he said:

“The whole point of the Bill is to set out something relatively simple, to take into account new technology and to enable judges to develop common law”.—[Official Report, 3/2/25; col. 19.]


As the noble Lord, Lord Sandhurst, so eloquently put it:

“The relative silence of the current Bill is golden”.—[Official Report, 3/2/25; col. 20.]


The Bill deliberately does not try to define the types of assets that may fall within its scope. Rather, it unblocks the common law and leaves it to the courts to develop the appropriate principles, building on centuries of world-renowned common-law development. By doing this, English and Welsh and Northern Ireland law can remain dynamic, globally competitive and a useful tool for those in the digital asset market. I ask the noble Lord to withdraw his amendment.

--- Later in debate ---

[Lord Sandhurst (Con)]

My Lords, an impact assessment is not practicable, whether in six months’ or three months’ time, we respectfully suggest. It would be premised on too many uncertainties. What we know is that the Bill will do no harm and is likely to do good. We have, if you like, the theoretical impact assessment of the Law Commission, which looked at all the issues in great detail. So, I suggest that we do not need this amendment, and we would not support it.

As to Amendment 5, six months’ time is, again, with respect, too short. I would suggest in parentheses that a review in five years’ time to see whether it is useful, whether it needs further amendment, how it is operating and what the effect is on the London market and litigation in London, could well be of value. Whether it needs a formal assessment or not is something that can be looked at four years down the road, but this is early days. We simply do not know enough. With respect to my noble friend, a review in a few months’ time will not help us at all. We do not support the amendment.

[Lord Ponsonby of Shulbrede (Lab)]

My Lords, at the outset, I acknowledge the long-standing advocacy for technological innovation of the noble Lord, Lord Holmes. I also pay tribute to his deep commitment to ensuring that our regulatory framework is fit for purpose in an increasingly digital world.

These amendments would mandate reviews of the impact of digital assets being treated as property by virtue of the Bill’s provisions. One amendment requires the Government to publish an economic impact assessment of the Bill on the day the Act is passed. As noble Lords will know, the Government published an impact assessment when introducing the Bill. I hope it will assist and reassure noble Lords if I highlight some of the most salient points.

As the impact assessment sets out, the Bill is expected to bring clarity to personal property law, reduce uncertainty for businesses and ensure England, Wales and Northern Ireland remain leading locations in which to innovate. Due to limited data, it is very hard, if not impossible, to quantify these benefits. However, we think the Bill will help ensure our laws remain competitive on an international stage.

The impact assessment considered the potential for the Bill to encourage the use of digital assets. However, this impact is highly debateable, given the Bill merely confirms the position that has been gradually emerging through case law in recent years. It is not expected or intended that the Bill will cause a significant increase in uptake of digital assets.

The same amendment calls for the impact assessment to cover the estimated change in demand for, and use of, digital assets. The assessment would also have to cover data centre power usage, the current level of data centre power provision and its ability to meet any increase in demand for digital assets. This follows on from the points the noble Lord, Lord Holmes, made in Committee. He mentioned that he would like to hear that the Government are committed to data centres being fuelled through renewable energy and a discussion around where data centres would be located, given the value they can bring to the country. Although these are important points, they sit outside the remit of the Bill.

I say to my noble friend Lord Stansgate that whether a data centre is in space or not is also outside the relevant part of the Bill.

Furthermore, it would likely be impossible to accurately estimate the long-term effect of the Bill on data centres. There are many greater influences on these areas, such as cloud computing, AI and general data storage. This will make it extremely difficult to assess the impact of the Bill. Therefore, such a review could result in speculative or misleading conclusions.

The other amendment calls for reviewing the

“need for further regulation of stablecoins and tokenised deposits”

within six months of the Act passing. Here, I reiterate that the Bill does not specify how the courts will treat these particular digital assets. If they were considered personal property under the Bill, this would not affect the need—or not—for regulation. The Bill deals only with a discrete matter of private law. Therefore, the proposed review is unlikely to yield any meaningful conclusions.

Moreover, issues around regulating stablecoins and tokenised deposits are already being addressed. The Government’s forthcoming financial services regulatory regime of crypto assets will include a new regulated activity for stablecoin issuance in the UK. Overseas-issued stablecoin will be regulated in the UK in line with other crypto assets. This will ensure that the Financial Conduct Authority can properly manage stablecoin-specific risks.

In addition, the Prudential Regulation Authority has published its views on the risks associated with tokenised deposits and how it expects banks to address those risks. Where tokenisation does not change the underlying economics and fundamental nature of a depositor’s claim, the PRA’s prudential regulatory framework will treat a tokenised deposit similarly to a traditional deposit. Where banks intend to take tokenised deposits from retail customers, the PRA expects this to be done in a way that meets the PRA’s rules for eligibility for depositor protection under the Financial Services Compensation Scheme.

The Bill takes a minimalist approach to achieve the specific aim of unblocking the common law on personal property. While I am very pleased that I have had the opportunity to debate these amendments, the Government fear that they could cause unnecessary bureaucracy and regulatory duplication, which could increase uncertainty rather than alleviate it.

As set out already, we think there are significant benefits of the Bill, such as bringing clarity to English, Welsh and Northern Irish law and keeping it world leading. We will, of course, monitor those benefits closely in the future. Given that, I ask the noble Lord to withdraw his amendment.

[Lord Holmes of Richmond (Con)]

My Lords, I thank all noble Lords who have contributed to this brief debate and say, again, “Job done: mission accomplished”, on the record, I beg leave to withdraw the amendment.

--- Later in debate ---

[Lord Sandhurst (Con)]

My Lords, we support this amendment, for the reasons advanced by my noble friend Lord Holmes. I, too, add my thanks to the noble Lord, Lord Anderson of Ipswich, for all the hard work which he put in and to our excellent clerk, Matthew Burton. It is a pleasure now to see this Bill reach a happy conclusion, I hope.

[Lord Ponsonby of Shulbrede (Lab)]

My Lords, this amendment seeks to restate the Long Title of the Bill, and I have put my name to it as the noble Lord, Lord Holmes, said. The amendment was tabled by the noble Lord but was suggested by Adam Temple, a senior barrister who specialises in financial services, when he gave evidence. This amendment addresses a slight discrepancy between the wording in the Long Title and the Bill’s operative clause. This discrepancy in wording came about following the Law Commission consultation on the draft Bill, which led to Clause 1 being amended to address concerns that it could be read as providing that any thing was capable of being personal property. That is not the intended effect of the Bill. Therefore, the wording changed from saying that a thing may be capable of being an object of property rights to instead saying that a thing is not prevented from being the object of personal property rights merely because it does not fit into the traditional categories of things in possession or things in action.

At the time of drafting, the Law Commission did not feel it was necessary to make a corresponding change to the Long Title. However, several noble Lords raised concerns about this discrepancy during our Committee debate and asked the Government to consider it further. Having reflected carefully, we are satisfied that making this change will not have any substantive effect. We are therefore content to accept this amendment so that the Long Title is consistent with the operative clause of the Bill. I end by thanking the noble Lord for his constructive discussions on this point. As for thanking noble Lords, I will leave that to the last stage of the Bill.

Amendment 6 agreed.

Headingley Incident

Lord Ponsonby of Shulbrede Excerpts

Wednesday 30th April 2025 Lords Chamber

[Lord Cameron of Lochiel (Con)]

My Lords, I know I am joined by the whole House when I express my deepest sympathy for the victims injured in this attack. We all hope for their full and quick recovery—indeed, in the last few hours the second victim in the attack has been discharged from hospital.

Communities in Headingley and across the country are feeling alarmed and fearful in the aftermath of this attack. Can the Minister please update the House on how the Government and other agencies are co-ordinating efforts with the police to intervene early and doing their utmost to prevent another attack of a similar nature taking place?

[The Parliamentary Under-Secretary of State, Ministry of Justice (Lord Ponsonby of Shulbrede) (Lab)]

I share the sentiments that the noble Lord has just expressed. I am pleased to hear that the second victim has been discharged from hospital. What I can say is in the public domain already: the police are, obviously, investigating this matter very seriously, including counterterrorism police, and there is a sustained policing effort in the area to reassure the residents that they have no particular cause for ongoing alarm, if I can phrase it like that.

[Lord Caine (Con)]

My Lords, as somebody who lives in Leeds—I was in Headingley on Friday evening— I add my own support and thanks to the police and emergency services for their very swift responses, commend the bravery of those members of the public who intervened and wish the two women who were harmed a very speedy recovery. I welcome the news that the second lady has now been discharged from hospital. Notwithstanding the death of the prime suspect yesterday—I understand that this is an ongoing police investigation—can the Minister confirm that the additional policing that has been announced will be in place in Headingley for as long as necessary to assure, support and protect the community in that famous and very vibrant part of my city?

[Lord Ponsonby of Shulbrede (Lab)]

I can give the assurance the noble Lord seeks. I will certainly make sure that the comments he has made are fed back through the appropriate channels. I agree with the point he is making; it is important that the local community feels reassured.

[Baroness Doocey (LD)]

My Lords, I also send our best wishes, from these Benches, to the people who were injured. It must have been such a dreadful shock, and our hearts go out to them. I also welcome the Government’s recent amendments to the Crime and Policing Bill on crossbows. The Liberal Democrats have long called for these, and I hope that the upcoming consultation findings can kick-start a further conversation about the need for full licensing and a registration scheme for crossbows. Firearms in the UK require strict licensing, police checks and registrations, with severe penalties for unlicensed possession. In contrast, adults can buy and own crossbows without any license, registration or police oversight. Does the Minister agree that there is an urgent need to tighten the law, particularly around high-powered crossbows with limited legitimate sporting use, which are so easy to obtain and are available online as we speak?

[Lord Ponsonby of Shulbrede (Lab)]

I thank the noble Baroness for those questions. I can confirm that amendments will be tabled to the Crime and Policing Bill to strengthen the verification controls. I can also confirm that we will publish the review shortly, which will look at how to address this issue. As the whole House will know, there have been a number of these attacks in recent years and, as the noble Baroness rightly says, these types of weapons are available online. We do not know how many are owned in the country; of course, they are much more powerful than they were 10 or 20 years ago. It is a problem which the Government are very aware of and we will publish some recommendations soon.

[Baroness Tyler of Enfield (LD)]

My Lords, I will pursue the point on policing and ask the Minister what plans the Government have to make pub crawls such as the “Otley run” recognisable events, subject to the same laws and protections as events that take place at a single venue, such as the Manchester Arena, thereby providing the means to fund the additional policing needed—not least from some businesses that are making enormous profits while communities in Headingley feel increasingly under siege.

[Lord Ponsonby of Shulbrede (Lab)]

I thank the noble Baroness for raising that point; it is not one that I have heard before. I understand that one of the joys, if I can put it that way, of the “Otley run” is that it is done every week, mainly by students and very often in fancy dress. I did not know that there were calls for it to be regulated in some way. I will ask about that and, if appropriate, I will write to her, because I thought it was seen as a boon and an advantage to the local community that that run goes on regularly.

“Hillsborough Law”

Lord Ponsonby of Shulbrede Excerpts

Tuesday 22nd April 2025 Lords Chamber

[Baroness Chakrabarti]

To ask His Majesty’s Government when they intend to introduce the ‘Hillsborough Law’ as set out in the Labour Party Manifesto 2024; and what steps they are taking to ensure any such legislation will meet the objectives set out by the bereaved families.

[The Parliamentary Under-Secretary of State, Ministry of Justice (Lord Ponsonby of Shulbrede) (Lab)]

My Lords, the Hillsborough disaster is one of the greatest stains on British history, and the families of those who lost loved ones have shown endless determination to get justice. Having consulted with these groups over the past few weeks, we believe that more time is needed to draft the best version of a Hillsborough law. We remain fully committed to bringing in this legislation at pace.

[Baroness Chakrabarti (Lab)]

I am grateful, as always, to my noble friend the Minister for his compassion. As far as the families are concerned, the Hillsborough law is the Public Authority (Accountability) Bill, which received a First Reading with cross-party support in 2017. They worry that starting from scratch will lead to a dilution of its vital protections. Will the Government please show them any new draft in advance of introduction? There is considerable irony in such a secretive process over a new duty of candour.

[Lord Ponsonby of Shulbrede (Lab)]

My Lords, I understand there have been multiple meetings between Hillsborough Law Now and the Government, Andy Burnham, Steve Rotherham, Liverpool MPs and my noble friend Lord Wills. I also understand that the Prime Minister is taking a personal interest in this matter. I know that the Government have undertaken to look very seriously at all the questions raised and will come forward with legislation at pace, as I said in my original Answer.

[Lord Alton of Liverpool (CB)]

My Lords, is the Minister aware that the Joint Committee on Human Rights carried out an inquiry into the proposed Hillsborough law, unanimously coming out in its favour having heard evidence from, among others, victims of the Hillsborough disaster, the Lord Bishop of Liverpool, James Jones, who chaired the independent inquiry, and Andy Burnham? In a letter dated 12 April, the Government did not say which of the three provisions—the duty of candour referred to by the noble Baroness, Lady Chakrabarti, equality of arms or the independent advocate—now requires more delay and further consideration. Do we not owe it to the 97 who lost their lives in 1989—including children, some of whom were my constituents in Liverpool at the time—to say why a promise made as a manifesto commitment is now a promised that has not been kept?

[Lord Ponsonby of Shulbrede (Lab)]

My Lords, the Prime Minister is painfully aware that he made a promise and yet that date has slipped. Regarding the specific points made by the noble Lord, the Government have undertaken to look at this very closely and come up with legislation. I also am personally affected by this matter—a friend of my brother died in the disaster—and everyone I know who is involved in this is very seized of the matter and wants to get the answer right as quickly as possible.

[Lord Rennard (LD)]

My Lords, after the lies of the police at Hillsborough, embellished by the infamous front page of the Sun, why would the Government not insist on an enforceable duty of candour? Would that not reduce the costs of many millions of pounds in other inquiries concerning the police where the culture of secrecy and cover-up still persists?

[Lord Ponsonby of Shulbrede (Lab)]

The Government have said that they want to introduce a duty of candour, with criminal consequences for those who do not live up to that standard. But it is part of a greater whole, which is the reason why the legislation has not come forward as we would have liked and why we are undertaking further talks with the parties I have mentioned.

[Baroness O’Loan (CB)]

My Lords, is the Minister aware that, in 2021, following a very lengthy process, which was exacerbated by prevarication, obfuscation and failure to deliver materials to the panel, the Daniel Morgan Independent Panel, which I chaired, recommended the creation of a statutory duty of candour, to be owed by all law-enforcement agencies to those that they serve, subject only to the protection of national security and relevant data protection legislation? The response of His Majesty’s Government, in June 2023, was that the Home Office was reviewing this recommendation and working with HMICFRS on the introduction of a statutory duty of candour. Will the Minister please tell your Lordships’ House the current position of the Government?

[Lord Ponsonby of Shulbrede (Lab)]

Yes, the Government are very clear: we remain fully committed to bringing legislation forward at pace, which will include a legal duty of candour for public servants and criminal sanctions for those who refuse to comply with that duty of candour.

[Baroness O’Grady of Upper Holloway (Lab)]

My Lords, many truth and justice campaigns, from Orgreave to Grenfell as well as Hillsborough, have faced that culture of state defensiveness and denial. In addition, working-class communities also face an unequal battle for justice because of legal aid and resources. Can my noble friend the Minister guarantee that the new law will right that wrong and give working-class communities real access to justice?

--- Later in debate ---

[Lord Ponsonby of Shulbrede]

Yes, I can give my noble friend the reassurance that she is looking for. It is about looking at the extent of the legal aid that will be available to those families as they go into these types of large-scale litigation. It is precisely those issues that are being looked at. There will be further discussions with the groups that are affected.

[Lord Keen of Elie (Con)]

My Lords, Hillsborough was, of course, a disaster with tragic consequences. It evinced a disgraceful response from many public servants, public authorities and, indeed, in some instances, the police. It is rather depressing to find that we have to legislate to impose a duty of candour on such public servants when we already have a law with regard to misfeasance in public office and, surely, a failure of candour amounts to misfeasance in these circumstances. When the Government eventually come to legislate, will they ensure that they have effective means of enforcing the duty of candour—not imposing it but enforcing it—and ensuring that there will be punishment for those who fail to display such an obvious duty in public office?

[Lord Ponsonby of Shulbrede (Lab)]

I take the point that the noble and learned Lord has made. It is regrettable that we need this duty of candour, but we do need it. We have seen what has happened in events over the last 20 years or so. As I have said in answers to other noble Lords, it is the intention that there will be criminal sanctions in the duty of candour when it is brought forward, and that is the firm commitment of the Government.

[Baroness Manningham-Buller (CB)]

My Lords, will the Minister explain how the duty of candour—notable in its lack at Hillsborough, and not only at Hillsborough —can still be made compatible with the need to protect secrets, which we need to address the complex national security threats that we face? This was referred to by the noble Baroness, Lady O’Loan; it is a critical part of getting this legislation right, I suggest.

[Lord Ponsonby of Shulbrede (Lab)]

The noble Baroness has made a very good point. I will write to her on that matter; it is clearly a sensitive matter, so I think it is more appropriate to write.

[Baroness Kramer (LD)]

My Lords, I am a very strong supporter of the duty of candour; nothing should hinder the Hillsborough law from coming on to the statute books as soon as possible. However, does the Minister understand that, to make it fully effective—this could be done in a further process—there has to be protection for the people who speak out, who are very afraid of the detriment that they will experience, as well as a system that ensures there is investigation when the issues are raised?

[Lord Ponsonby of Shulbrede (Lab)]

The noble Baroness has made a very good point in raising the issue of whistleblowers, which I have heard her raise in many other contexts as well. It is worth making the point from this Dispatch Box that the duty of candour is itself a piece of legislation, but a range of measures needs to be taken and behaviours inculcated into our public service to address the wider issues which have been revealed—if I can put it like that—through past behaviours over the past couple of decades.

[Lord Hannan of Kingsclere (Con)]

My Lords, I am sure the whole House will share the Minister’s admiration for the steadfastness of the Hillsborough victims and his horror at the police cover-up, but will he take this opportunity to say a hard thing which none the less needs saying? After a disaster of this kind, although victims deserve our sympathy and support, they do not become experts on the law or the ultimate arbiters of what should change. Indeed, our criminal justice system and our political system depend precisely on those decisions being made by cool-headed people who are at one remove because they are not directly involved with the horror.

[Lord Ponsonby of Shulbrede (Lab)]

Yes, I think I agree with the point that the noble Lord has made. Victims are not arbiters of the law. However, it is incumbent on anyone in government to be as sympathetic as is practical to the victims. As I said in answer to an earlier question, the Prime Minister is taking a personal interest in this matter, and if anyone will know the limitations of where sympathy is appropriate, but where the law is also appropriate, he will. It is our firm intention to bring forward legislation as soon as possible.

Sentencing Council Guidelines

Lord Ponsonby of Shulbrede Excerpts

Thursday 3rd April 2025 Lords Chamber

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

My Lords, the Lord Chancellor maintains that this Statement raises issues of principle, that it is about policy being for Parliament and not for judges, and that the Sentencing Council has breached the principle of equality before the law. We hear complaints from the Conservatives in particular—the noble and learned Lord, Lord Keen, is no exception to this, and it is unsurprising that I take a different view from him—of judicial overreach and of a two-tier justice system. However, all in this House are committed to equality before the law.

The background to the new proposed guidelines is the wealth of evidence, almost entirely undisputed, that ethnic minority defendants are more likely to be sent to prison than white defendants. Yesterday I mentioned the Lammy review, but there is so much more. This inequality of outcomes must be addressed; it is the very opposite of equality before the law.

Pre-sentence reports are a vital tool that enable judges to take into account the circumstances of an offender as well as the nature of the offence for which he is before the courts. The Lord Chancellor appears to accept that. The only other significant assistance a sentencing judge receives on an offender’s background and circumstances is the speech in mitigation from defence counsel. Although speeches in mitigation are powerful tools, they are made by defence counsel on the instructions of the defendant, so they are neither independently prepared nor impartial. They also cannot generally be independently verified, as pre-sentence reports can.

So we need these reports, and they have long been intended to be the norm not an optional add-on, yet resources for these reports have, in effect, been rationed. The Probation Service was hopelessly mishandled by the last Government, and one result is that there is not enough money to fund the number of pre-sentence reports we need. The noble Lord, Lord Timpson, yesterday gave the figures: the number of pre-sentence reports is down by 44% between 2013 and 2023.

The letter from the chairman of the Sentencing Council to the Lord Chancellor on 10 March explained the very thorough process that had led to these new guidelines, in the context of the statutory duty imposed by Parliament for the Sentencing Council to give guidelines to judges on sentencing. Part of the reason behind establishing the Sentencing Council was precisely to encourage consistency in sentencing—that is, equal treatment before the law—yet now we have the Government resorting to hastily drawn and unhelpful emergency legislation that tries to address a complex issue in simplistic terms. The operative section would provide that

“sentencing guidelines about pre-sentence reports may not include provision framed by reference to different personal characteristics of an offender”.

A subsection goes on to say that the “personal characteristics” may include—not must include—

“in particular … race … religion or belief … cultural background”.

The cohorts identified by the Sentencing Council as normally calling for a PSR include being a young adult, female, pregnant, or postnatal. Are those not personal circumstances and are they not relevant?

The solution to this is not emergency legislation. The emergency has now passed because the Sentencing Council has paused introduction of the guidelines. This emergency Bill has not yet had a Second Reading, and I therefore invite the Government to withdraw it now and end this unnecessary row. It is unseemly and widely regarded as such by the public. I suggest that the solution lies in rational and moderate discussion between the Sentencing Council, the Lady Chief Justice and the Government, to which Ministers in this House from the Ministry of Justice would have an important contribution to make.

The first aim would be to reach a solution that ensures that pre-sentence reports are properly funded so that they become the norm once again in all cases where a substantial prison sentence is not inevitable. The second would be that we recognise these reports play an important part in addressing and reducing the inequality of outcomes for ethnic minority defendants—this must be a major priority of the Government. The third would be that we all respect and ultimately achieve genuine equality before the law.

[The Parliamentary Under-Secretary of State, Ministry of Justice (Lord Ponsonby of Shulbrede) (Lab)]

My Lords, I thank both noble Lords for the points they have made and the questions they have asked. To set the scene, we believe the guidelines, as formerly suggested, risk differential treatment before the law, and that is why we opposed them. We asked the Sentencing Council to revise the guidelines, and it did not do so. The Lord Chancellor introduced legislation a couple of days ago to address the specific issues to which the Government object, and the Sentencing Council has put its guidelines on hold while Parliament has its say on these matters. The Lord Chancellor has gone further than this: she has committed to reviewing the role of the Sentencing Council more broadly and is considering all options. We are grateful to the Sentencing Council for pausing the introduction of the guidelines so that Parliament can have its say on the Bill that has been introduced.

The noble and learned Lord, Lord Keen, referred to the Conservative Party’s proposed Bill. We believe that that Bill goes wider than necessary, and the Bill that the Government are putting forward is addressing the specific point within the guidelines to which the Government object, but we acknowledge that there are wider considerations, and that is why my right honourable friend has put in place this wider consideration of the role of the Sentencing Council and its recommendations. I reject the noble and learned Lord’s assertion that magistrates and judges were blindsided. I do not think they were, and I do not think there would have been any inadvertent sentencing. I reject that accusation. I think there is a core problem here, which my right honourable friend has acted swiftly to address.

I agree with a lot of the points made by the noble Lord, Lord Marks. I was just reflecting that, in my previous role as a magistrate, I would have ordered many hundreds of pre-sentence reports, but I am conscious that, sitting in this Chamber now, there are colleagues who would have ordered many thousands of pre-sentence reports throughout their career. Of course, I agree with the points he made that they are an invaluable tool for anybody seeking to sentence in our criminal courts and that they had been degraded under the previous Government in their use and, to be frank, in the trust they were held in by sentencing magistrates or judges. It is very much the current Government’s intention to increase the number of probation officers—there were 1,300 more last financial year and there will be another 1,000 in the current financial year, and it is very much anticipated that there will be an enhanced role for the probation services as we move forward with future recommendations on sentencing, which are imminent. I agree with the general points that the noble Lord made about the importance of pre-sentence reports, and we want to build on that.

On the point the noble Lord made about the wider cohorts which are not explicitly referred to in the published Bill, I make the point that any judge or magistrate can always order a pre-sentence report as they wish. That has always been, and remains, the situation. Just because a specific cohort was not referred to in the Bill does not mean that judges cannot go ahead and order pre-sentence reports as they see fit. Nothing has changed in that context.

In conclusion, this is clearly a difficult situation. However, the Lord Chancellor has strong views on these matters, and it is of utmost importance that the wider public have, and continue to have, faith in our court system and the judiciary, which the Government certainly hold in the highest regard.

--- Later in debate ---

[Baroness in Waiting/Government Whip (Baroness Anderson of Stoke-on-Trent) (Lab)]

My Lords, I am so sorry, but the Minister needs to reply.

[Lord Ponsonby of Shulbrede (Lab)]

My Lords, I thank the noble and learned Lord for the point he makes, and I accept that the reason the guidance included those specific phrases was to address the points made in the Lammy Review a number of years ago. The point that my right honourable friend makes and objects to is that that leads to a perception of unfairness in sentencing. While we acknowledge the fundamental mischief, if I can put it like that, of differential sentencing of certain ethnic and racial groups, we think there is a better way of addressing that, rather than explicitly referring to it in the guidelines to the judges and magistrates when they make their sentencing decisions.

[The Lord Bishop of Southwark]

My Lords, the independent Lammy Review of 2017, concerning the treatment of and outcomes for BAME individuals within the criminal justice system in England and Wales, identified disproportionate outcomes in a number of areas. I ask the Minister about two points raised in the final report relevant to the issue and whether there has been any progress. One was a lack of sophisticated data around ethnicity in the criminal justice system, and the second was that white suspects appearing in court were markedly more likely to plead guilty to an offence and thereby benefit from up to a one-third reduction in the sentence than was the case with BAME suspects.

[Lord Ponsonby of Shulbrede (Lab)]

My Lords, I thank the right reverend Prelate the Bishop of Southwark for those questions. Regarding the lack of sophisticated data, that is a fair point, and we are continuing to work on building up that database, but it is an ongoing project to properly understand the nature of the differential treatment. The second point the right reverend Prelate makes is about the propensity of certain groups not to plead guilty, which means that they do not get the discount. That is certainly true in my experience of sitting in youth courts and adult magistrates’ courts. However, I do not think it accounts for all the disparity in sentencing, and I think there is more to the story. That needs to be gone into, and a better database would help the Government do that.

[Lord Garnier (Con)]

My Lords, having worked in justice for nearly 50 years and in Westminster for nearly 40 years, I am not so naive or squeamish as to be shocked by this political squabble over the recent sentencing guidelines. That said, will the Minister accept that the most difficult job for any sentencer—as he and I know from experience—is to sentence the defendant in a way that does justice to the victim, the public and the defendant? Will he also accept that the failure to ensure the provision of far more pre-sentence reports, which are, as he said, an invaluable tool to assist the sentencer, is not confined to this or the previous Government but is of long standing? Will he also agree that although we all have the right to criticise a sentence, even from a position of ignorance of the facts before the judge, parliamentarians should not resort to ugly personal attacks on members of the judiciary, who cannot respond?

[Lord Ponsonby of Shulbrede (Lab)]

I agree with all the points the noble and learned Lord has made. It is for sentencers to sentence in a way that can be understood by the offender, the victim and the public. All our adult courts are open to the public and the press. It is also true in youth courts, which are not open to the public, but the same principle obtains. It is worth adding that, in my experience, pre-sentence reports compiled for the youth court are far more extensive than those compiled for the adult court. When it comes to the extent of pre-sentence reports, the Probation Service, which compiles them for the adult courts, has something to learn from YOTs that compile reports for youths who are sentenced. I realise that that is a resource issue, but nevertheless when one sentences, as I used to do very regularly, the difference in those reports was quite stark.

[Lord Boateng (Lab)]

My Lords, I declare my interest in the register as a non-practicing member of the Bar of England and Wales. I have also been a Minister of State in the Home Office, so the Minister has my sympathy. Will he please address this issue? He has described the disadvantageous treatment of black and brown people of colour under the criminal justice system as a mischief. He has accepted the Lammy report, as did the previous Government. He said that the Government believe that there is a better way to deal with that mischief. What is that better way, and when will Ministers, having slapped down the Sentencing Council, do something about it?

[Lord Ponsonby of Shulbrede (Lab)]

Clearly, I cannot give a time or date in answer to my noble friend’s question about when the review will conclude. It is a complex issue, as he knows as well as I do. One very important factor is that all people who come in front of courts should believe that they will be treated equally fairly. If they are aware of differential sentencing guidelines, that undermines that trust. That is the fundamental belief of the Lord Chancellor, and it is one that I share. It is a complex question. We acknowledge the fundamental mischief, but we want to find a better way of addressing the discrimination in the system without anyone who comes up in court believing that they are going to be treated differentially from anyone else.

[Lord Carter of Haslemere (CB)]

My Lords, the Government’s Bill would exclude references in the sentencing guidelines to personal characteristics. It refers to race, belief and cultural background, but personal characteristics are then defined very broadly to include all personal characteristics. The guidelines, as has been pointed out, already contain references to other personal characteristics as well as race, belief and cultural background, some of which are protected characteristics under the Equality Act. Is it the Government’s intention by this Bill to require the Sentencing Council to remove all those existing references to other personal characteristics, even if they are protected characteristics, as indeed are race and belief, under the Equality Act?

[Lord Ponsonby of Shulbrede (Lab)]

I thank the noble Lord for that question, and I recognise its complexity. That is why my right honourable friend wants to look at this question in the round, because the point he made is correct. I do not want to anticipate what the answer to his question will be, but nevertheless I acknowledge the complexity that he has pointed out.

[Baroness Fox of Buckley (Non-Afl)]

My Lords, I commend the Justice Secretary and, indeed, the Opposition for agreeing on the need for legislation on this matter. Does the Minister agree that, as illustrated perhaps by many of the comments that we have already heard, the guidance on pre-sentencing reports or differential bail et cetera, which is designed by an unelected quango, is not the place to pursue wholly political and often divisive and contentious policies around identity, whether it is race, ethnicity, faith, transgender and so on? It is just not the right place for it to happen. Is not the problem a bit broader in that whenever an unelected quango, such as the Sentencing Council, acts in defiance of Parliament, it undermines public trust in democracy, not just in the courts? That is why I am glad the Justice Secretary acted at last.

[Lord Ponsonby of Shulbrede (Lab)]

I thank the noble Baroness for her support.

[Lord Thomas of Cwmgiedd (CB)]

My Lords, I do not think there is any dispute whatever about the principles upon which judges should sentence. Most of them are laid down in the Sentencing Code, and there is absolute agreement on equality before the law. I also think everyone recognises the achievement of the Sentencing Council in going a long way to achieve consistency and to educate the public in understanding the way in which sentencing operates, but—and I do this without wishing to enter into the political debate—we find ourselves constrained by resources, and when resources are tight, problems arise. Therefore, I greatly welcomed the Lord Chancellor saying yesterday in the other place that she would make more resources available to the Probation Service.

However, my experience has been twofold. First, we have a constitution that operates on a degree of partnership between the Lord Chancellor and the head of the judiciary, the Lord Chief Justice. Secondly, at times when resources are tight, people forget that our whole constitution operates on interdependence, not just independence, between the different branches of government. I hope that we can follow the example of the late Lord Judge and Mr Straw, who together crafted this legislation—I was there when it happened. There will be disagreements. I see with pleasure that a former Lord Chancellor is in his place in the Chamber. We used to discuss things often. Unsurprisingly, we did not see eye to eye on everything but we managed to find a way forward. Can the Minister assure us that everything will be done to try to make this work in discussion, in partnership and in keeping this whole thing out of politics, which is so destructive to the independence of the sentencing process?

[Lord Ponsonby of Shulbrede (Lab)]

I thank the noble and learned Lord for his wise words and his analysis. Of course I acknowledge the point he made about resources. I earlier pointed to the discrepancy between youth and adult pre-sentence reports. The fact of the matter is that it is a resource issue. This is one very specific example, but the noble and learned Lord’s general point is absolutely right.

The other point the noble and learned Lord made about the interdependence of judges and the political leadership, if I can put it like that, as well as the independence, was also right. Protecting that is very important. Nevertheless, we believe that this example of the way different ethnic groups should be addressed within sentencing guidance is a policy issue. That is why my right honourable friend the Lord Chancellor has acted as she has in introducing this specific and targeted Bill. Nevertheless, the more general point that the noble and learned Lord makes about the importance of partnership and discussion is right. I thank him for making those points.

[Baroness Butler-Sloss (CB)]

My Lords, may I respectfully agree with every word that the noble and learned Lord, Lord Thomas, said, and ask a practical question? We have heard that there are likely to be more probation officers and more resources. Does that mean that judges and magistrates will have the opportunity to ask for more pre-sentencing reports?

--- Later in debate ---

[Lord Ponsonby of Shulbrede (Lab)]

The short answer is yes. We are certainly recruiting more probation officers, as I said in answer to an earlier question. Of course, judges are already 100% free to order pre-sentence reports, but we want to build up the confidence, if you like, of judges and magistrates in the Probation Service so that more reports are ordered. It is quite likely—I think there is no secret here—that there will be greater use of community sentences and suspended sentences in the future, and we need to work towards that. One way to do that is rebuilding the Probation Service, which was so badly damaged by the previous Government.

[Lord Grayling (Con)]

My Lords, I pay tribute to the noble and learned Lord, Lord Thomas, who was a wise partner to me in my former role. He is absolutely right about the need for partnership between the judiciary and politicians. They have different challenges but, none the less, they need that collaboration. The current situation is clearly regrettable. I simply urge the Minister and his colleagues not to rush the solution to the problem. Let us get this right, rather than doing it in a hurry and getting it wrong.

[Lord Ponsonby of Shulbrede (Lab)]

I thank the noble Lord for that point; he is absolutely right. There is a specific problem, and a Bill is currently before the House of Commons. I do not know the timetable for that Bill and I will not speculate on it, but the noble Lord is clearly right that we need to get it right.

[Lord Paddick (Non-Afl)]

My Lords, do the Government understand why a pre-sentence report is more likely to discourage a judge from sending an offender to jail? Does the Minister believe that the result could be more accurate or appropriate sentences being handed down as a result of a better-informed sentencing decision? If he does, what is wrong with encouraging judges to ask for pre-sentence reports in such cases where, historically, sentences appear to have been disproportionate?

[Lord Ponsonby of Shulbrede (Lab)]

I agree with the noble Lord’s point. As I pointed out, I ordered these reports hundreds of times in my previous role, and I invariably did it so that the sentencing bench could make a better-informed decision. The only times I did not do it were when I could see no alternative to custody. Of course, the same situation applies now as before: any judge can order a pre-sentence report at any time. The mischief and the problem that my right honourable friend had was the perception that if particular racial groups were more likely to get a pre-sentence report, there could be a political attack—indeed, there was a political attack—that this meant that they would be less likely to be sent to prison. She saw the perception of that as the mischief, and it was the reason she brought forward her Bill. She wants to find a different way of addressing the fundamental problem, which is the disproportionality within sentencing outcomes.

[Lord Lemos (Lab)]

My Lords, I should declare my interest, as I was the lead non-executive director of His Majesty’s Prison and Probation Service from 2018 to 2025. Will my noble friend reassure the House that resources will be made available for the Probation Service, which, as he rightly said, suffered terribly under the previous Government and has been reunified into a national Probation Service only in the last few years? Will he reassure the House that resources will be found not only to improve the quantity and quality of pre-sentence reports as necessary but to increase the use of community sentences, which he referred to and which we hope will be the case following the review of sentencing by David Gauke? Lastly, will he reassure the House that this row, if I may call it that, does not influence too much the way that David Gauke’s recommendations are considered?

[Lord Ponsonby of Shulbrede (Lab)]

Yes, I can give my noble friend all the reassurances that he seeks. I share the objectives that he alluded to. Clearly, we want a greater quantity and quality of pre-sentence reports. The review being undertaken by David Gauke will be far more wide-ranging. We wait to see the specific details that it will bring forward but I very much hope that this specific issue, which is dealt with in the Bill currently before the House of Commons, will have a minimal impact, if any, on the recommendations of the Gauke review.

Online Procedure Rules (Specified Proceedings) Regulations 2025

Lord Ponsonby of Shulbrede Excerpts

Thursday 20th March 2025 Lords Chamber

Moved by

[Lord Ponsonby of Shulbrede]

That the draft Regulations and Order laid before the House on 29 January and 6 February be approved.

Relevant document: 18th Report from the Secondary Legislation Scrutiny Committee. Considered in Grand Committee on 17 March.

Motions agreed.

Crown Court Criminal Case Backlog

Lord Ponsonby of Shulbrede Excerpts

Thursday 20th March 2025 Lords Chamber

[The Parliamentary Under-Secretary of State, Ministry of Justice (Lord Ponsonby of Shulbrede) (Lab)]

My Lords, this has been a fantastic debate. It has been wide-ranging and extremely well informed. My noble friend Lady Longfield made an excellent maiden speech. I very much look forward to working with her and learning from her in the future as we discuss youth justice and young people. I also thank the noble Lord, Lord Carlile, for securing this debate. There is no doubt that the Government face a profound challenge in the Crown Courts. Our ability to provide justice to the public is of utmost importance and I am very glad that we have had this debate here today.

I will rehearse some of the statistics, even though other noble Lords have given them. When the Government came to power, we inherited a record and rising courts backlog which today stands at over 73,000 cases. It was around half of that figure five years ago.

The issue is more difficult to tackle than just rising numbers. Receipts are increasingly high and the outstanding case load is different from before the pandemic, as it is made up of a greater proportion of more serious and complex offences. Those offences take up more court time and tend to have a lower guilty-plea rate.

In July, the Lord Chancellor made an immediate decision upon entering office to increase Crown Court sitting days by 500 on top of the allocation provided by the previous Lord Chancellor in the previous Government. This was followed by a further increase of 2,000 sitting days in December of last year. We also increased magistrates’ courts’ sentencing powers for a single triable either-way offence: previously, they could only impose a six-month prison sentence for these offences; that has now been increased to 12 months and, in doing so, we have freed up capacity in the Crown Court to hear more of the most serious cases. The capacity that will be freed is equivalent to an extra 2,000 sitting days in the Crown Court. We did not stop there. Earlier this month, we announced funding for a record high allocation of 110,000 sitting days in the next financial year to deliver swifter justice for victims. This is 4,000 more days than the previous Government funded.

However, we are aware that increased capacity alone is not enough and only fundamental reform will tackle the issue. That is why we appointed Sir Brian Leveson, one of our most distinguished judges, to conduct a wholesale review of our criminal courts and propose long-term reforms. Tackling the outstanding case load in the Crown Court is a top priority for this Government, and we will look to act on recommendations from the report as soon as possible.

I want to touch on other jurisdictions. The department has been focused on tackling demand within the Crown Court, but it is important to recognise that it is part of an interlinking court system and we must work to tackle demand across the whole system. More than 90% of all criminal cases are dealt with in magistrates’ courts, where cases continue to be completed swiftly. Although the case load rose from 72,151 cases to 333,349 cases between September 2023 and September 2024, the timeliness in getting through that increased case load within magistrates’ courts has remained stable. That is a real achievement, which we should acknowledge, of the MoJ in managing the issue and of the magistrates’ courts themselves.

To deal with increased demand, we continue to invest in the recruitment of more magistrates. On the point made by my noble friend Lady Hazarika, we are aiming to recruit 2,000 new and diverse magistrates this year and similar numbers in the next couple of years. But we need to increase that figure, and one of the things I spend my time doing is working out how we can increase the recruitment of magistrates. When I started as a magistrate about 20 years ago, there were 30,000 magistrates in England and Wales; there are now 14,000. We need to get the numbers back up to over 20,000, and then up again, depending on what Sir Brian recommends.

In family courts, the case load in both public and private is reducing a bit, so that is a good story. There are other problems within the family court arena, which I am very aware of, but there is not the emergency situation in family courts which we are seeing in the Crown Court.

To return to the issue of the Crown Court backlog, many noble Lords, including the noble Lord, Lord Marks, asked about the impact of delays on the reliability of evidence. This affects victims and witnesses, and of course many witnesses are victims as well. There are measures in place to support them in giving their evidence.

The right reverend Prelate the Bishop of London asked about support for victims. We regard that as important and we accept that victims tend to drop out the longer that a case is delayed. The criminal justice system already works together to give vulnerable and intimidated victims an earlier opportunity to provide their evidence after a not guilty plea is entered. Under Section 28 of the Youth Justice and Criminal Evidence Act 1999, eligible victims can have their cross-examination pre-recorded, enabling victims or witnesses to give evidence at an earlier stage, when their recollection of events is likely to be better. In addition, the police, the CPS and HMCTS employ a joint protocol to expedite cases involving witnesses under 10 years old, thereby maximising the opportunity for them to provide their best evidence and minimising the stress and emotional impact of the criminal justice system.

Prosecutors have guidance on allowing witnesses to refresh their memory. This usually involves the witness rereading their witness statement on the day of the trial. The department’s funding of the national Witness Service means that crucial emotional and practical support is provided to both prosecution and defence witnesses in all criminal courts in England and Wales, to enable them to give best evidence.

I wish to address the undeniable impact that court backlogs have on victims. The human cost of these delays is considerable, and witnesses—who are often victims as well—play a crucial role in ensuring that justice is served. Indeed, as the Victims’ Commissioner mentioned in her report, the delays in the court system can have a particularly adverse impact on victims of rape and serious sexual offences. To ensure ongoing communication with victims in the pretrial period, every CPS area now has at least one dedicated victim liaison officer in its rape and serious sexual offence unit, and pretrial meetings are offered to all adult victims of these crimes. This Government have committed to introducing free, independent legal advice for victims and survivors of adult rape across England and Wales to help them understand and uphold their legal rights. We aim to begin a phased rollout of that service later this year.

The Government have committed to implementing the Victims and Prisoners Act 2024. The Act contains a package of measures that, once implemented, will improve victims’ experience of the criminal justice system and offer better access to information. The first tranche of victim-related measures from the Act commenced in January this year. They simplify the complaints process for victims and enhance the Victims’ Commissioner’s ability to hold criminal justice agencies to account. We are implementing provisions to ensure that local commissioners collaborate on support services for certain victims. We will consult on a new victims’ code, so that every victim of crime knows the rights they should receive under the code.

Lastly, on support to victims, I agree with the Victims’ Commissioner that support services have an important role in keeping victims engaged with the criminal justice system, and that this can help mitigate the impacts of court delays. That is why, in the upcoming financial year, we have protected dedicated spending in the department by maintaining this year’s funding levels for ring-fenced sexual violence and domestic abuse support.

Moving on to the fairness of proceedings for defendants, we recognise that the prolonged uncertainty of waiting for a trial can be overwhelming for some defendants, and we do not underestimate the impact that this has on the defendants and their families. The judiciary and the Crown Court are responsible for ensuring that cases are heard as promptly and efficiently as possible. They continue to work to prioritise cases, including those involving custody time limits. Custody time limits safeguard defendants by preventing them being held on remand in prison for an excessive amount of time prior to their trial. If the trial cannot be heard before the limit expires, the court must release the person on bail, unless the prosecution successfully applies to extend it.

Fairness is integral to the criminal justice system. While miscarriages of justice are, thankfully, rare, it is important that our appeal system, including the possibility to apply to the Criminal Cases Review Commission, functions well. Last month, the Law Commission launched a public consultation on the law relating to criminal appeals, aimed at ensuring that the system is fair and effective. We look forward to receiving the final recommendations from the Law Commission once the consultation exercise has concluded.

Reducing the Crown Court backlog and improving the experience of victims through the process of seeking justice continues to be the priority of this Government. I thank the noble Lord, Lord Carlile, for raising this subject.

I turn to contributions from noble Lords in the debate. Both the noble and learned Lord, Lord Bellamy, and the noble Lord, Lord Meston, expressed scepticism about the judicial function of listing. The noble and learned Lord argued that general listing was a legitimate subject for debate in Parliament and generally. He said that specific listing of specific cases should remain a matter for judges. That was an interesting point—I suspect the noble Lord, Lord Meston, agrees with it—and I will make sure that it is fed back to colleagues.

The noble Lord, Lord Thomas, spoke about the time for action. We agree with that, of course, and we are acting: we have these two extremely important reviews under way. I can assure the noble Baroness, Lady Porter, that we think daily about dovetailing these two reviews and how they will work together, because this is an integrated system—a point that the noble and learned Lord, Lord Keen, made. You really need to look at the whole system to try to get the benefits we hope to achieve through the reforms.

The noble Lord, Lord Faulks, pointed out that there are a number of areas where jury trials have stopped and the world has not stopped turning. We wait to see what Sir Brian recommends, but there may be a recommendation for an intermediate court for cases up to, say, two years’ sentencing—or maybe five years, as the noble and learned Lord, Lord Keen, suggested. We wait to see on that matter.

The noble Baroness, Lady Coussins, asked about interpreters. There is of course an absolute requirement in the code for professional translators. The Government will consult on a new code in due course. I recognise her point about the importance of interpreters to enable fair trials and fair hearings in courts.

I particularly thank the noble Lord, Lord Meston, for raising the Lammy review, which quite rightly pointed out the trust that people have in jury trials, particularly people from ethnic minorities. I and the Government recognise that it is a gold standard. However, it does not necessarily mean that all trials, or the same proportion of trials as now, will continue to be jury trials. The point was well made and is one that we need to reflect on as we consider proposals as they come forward. I add that magistrates, of course, are more diverse than the rest of the judiciary, particularly here in London. We—I was a magistrate—were a pretty diverse bunch within London. Nevertheless, I thank the noble Lord for making that point.

My noble friend Lord Lemos spoke with great authority about the problems of overcrowding. Of course I aspire to great investment within the whole system, but his points about the knock-on problems of overcrowding in the Prison Service were absolutely right.

The noble Lord, Lord Stevens, made a number of detailed proposals. I am sure the officials will read them with great interest, but I will not comment on them individually now. I thought they were points well made.

The noble Lord, Lord Sandhurst, spoke about there being too few criminal barristers. That is obviously right. There is no shortage of trade unionists for the criminal barristers in this House, I have to say, although that does not mean it is not merited. The noble Lord also advocated for the increased use of out-of-court disposals. It is worth reflecting that one of the great successes over the last 20 years is the reduction in the number of youths in custody. That is very much driven by the increased use of out-of-court disposals for youths.

When I started as a youth magistrate, there were 3,000 youths in custody; now, it is a matter of a few hundred, and out-of-court disposals were a part of that transition, if I may put it like that.

My noble friend Lord Hacking gave me one of his usual history lessons, for which I am very grateful. The point he made about trials getting longer and longer were of course absolutely right.

There are other points I would like to make. My noble friend Lady Levitt and the noble Lords, Lord Thomas and Lord Marks, spoke about the Judicial Attitudes Survey and asked what the Government are going to do with it. One thing the Government will do, obviously, is continue to invest in regular recruitment and recognise the factors that have come up through that survey. There will be a major review of judicial pay, which has been commissioned, and it will look at the issues affecting judges and particular judge types. So, we recognise the point that my noble friend made.

The other point, which was made by the noble, Lord Carlile, was about prisoner transport and how—as I know from my own experience—this is often a source of delay. I can confirm that, in respect of the transport supplier, when the delays are unacceptable and there is performance failure, then direct action can be taken by the MoJ. That is done occasionally, and it is recognised that a completely unreasonable number of delays are caused by prisoners or defendants simply not getting to court on time—I absolutely recognise that point.

I have already welcomed my noble friend Lady Longfield, but I want to say that I am very glad she will be joining my colleague the honourable Nic Dakin for his round-table discussion on the topic of youth in the criminal justice system. My office is literally next door to Nic Dakin’s, so I am sure I will hear all about it.

The big point to close on—this has been accepted by all noble Lords who have spoken—is that that we really have a very profound challenge in front of us. As a Government, we are taking bold actions to try and address the two main problems that affect our criminal justice system, which are Crown Court backlogs and prisoner overcrowding. These two problems are hugely interlinked, and we are determined to address these problems and turn the tanker around. But there are many aspects to this, and I look forward to the interest of noble Lords as we continue along this road.

Online Procedure Rules (Specified Proceedings) Regulations 2025

Lord Ponsonby of Shulbrede Excerpts

Monday 17th March 2025 Grand Committee

Moved by

[Lord Ponsonby of Shulbrede]

That the Grand Committee do consider the Online Procedure Rules (Specified Proceedings) Regulations 2025.

Relevant document: 18th Report from the Secondary Legislation Scrutiny Committee

[The Parliamentary Under-Secretary of State, Ministry of Justice (Lord Ponsonby of Shulbrede) (Lab)]

My Lords, this instrument will specify proceedings for which the Online Procedure Rule Committee can make rules. The OPRC, established under the Judicial Review and Courts Act 2022, aims to modernise the civil, family and tribunal jurisdictions by developing rules governing the practice and procedure for specific types of online court and tribunal proceedings. These rules are intended to be simple, accessible and fair. They will streamline online processes and enhance the overall efficiency of the system. The OPRC cannot make any online procedure rules until the proceedings are specified in regulations.

I shall explain the proceedings for which this SI will allow the OPRC to make rules. In the civil jurisdiction, the OPRC will be able to make online procedure rules for property proceedings. The Ministry of Justice and HM Courts and Tribunal Service are working closely with MHCLG to ensure that the justice system is fully prepared for the implementation of the Renters’ Rights Bill. As part of this, HMCTS will digitise the court process for landlords to regain possession of their property, introducing a digital service for both landlords and tenants. Procedure rules will be required to allow use of this service. Parliamentary approval of the statutory instrument will enable the OPRC to make these rules. The digital service, and the rules, will reflect the renters’ rights measures as and when they are brought into force. The introduction of the digital service, and the rules which underpin it, are not, however, tied to the timelines for bringing the measures in the Renters’ Rights Bill into force. The OPRC will also be able to make online procedure rules for property proceedings in the First-tier and Upper Tribunal. This will allow certain cases currently dealt with by the Property Chamber or the Lands Chamber to be included in online procedure rules as and when HMCTS introduces digital systems that mean that those cases are managed online.

In the family jurisdiction, the OPRC will be able to make rules for financial remedies. This will include contested financial remedies and financial consent orders, for example, following a divorce. Online procedure rules for these proceedings will be designed to support the existing online services provided by HMCTS, which are currently governed by practice directions made by the Family Procedure Rule Committee.

The extent of this instrument is UK-wide. Its territorial application is England and Wales in respect of civil and family proceedings and UK-wide in respect of tribunal proceedings.

We believe that the digitisation of court and tribunal processes requires the development of procedure rules that are suitable for the digital age. They must be concise and straightforward to understand. They must support HMCTS and the judiciary to deliver online processes and keep adapting to advances in technology. These aims will be met by the transfer of these specified proceedings to the OPRC, a cross-jurisdictional rule committee whose members include experts in the law and in the development of user-focused digital services. I beg to move.

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

My Lords, I am grateful to the Minister for his helpful introduction to these proposed regulations. We on these Benches support the introduction of digital procedures, certainly where they can be introduced without any adverse impact on the fairness, transparency and user-friendliness of the procedures as a whole. We agree that digital procedures have the potential to streamline court proceedings, cut delay and costs and, to use the Minister’s words, produce a straightforward and concise procedure that will be more accessible. We supported the introduction of online procedures when the Judicial Review and Courts Act was debated in the House in 2022.

We also welcome the introduction of the Online Procedure Rules Committee. It can only be helpful to have a specialist committee to establish rules for online procedures across several fields. There will be scope for cross-fertilisation between different areas utilising the various digital skills that are available for the development of sets of rules in different fields, and that can only be of considerable advantage.

--- Later in debate ---

Subject to seeking that assurance and that caveat for the future, we support these proposed regulations.

[Lord Ponsonby of Shulbrede (Lab)]

I thank the noble Lord for his support. I am able to give him the assurances that he is looking for. He is right to say that the OPRC will continue to make rules as the use of digitisation in the court system continues to develop. The point that he made about cross-fertilisation between different areas and different jurisdictions was a good one; the committee will continue to work on that basis.

The noble Lord sought assurance on access to the courts for people who are adversely affected in whatever way. I am happy to give him that assurance, whether it be through paper or through other ways of supporting people to access the court system. This is an issue that I absolutely recognise through my former work in the court system.

I hope that, through my earlier introduction, I have been able to demonstrate the fundamental aim of this instrument, which is primarily to grant the OPRC rule-making powers in civil proceedings in England and Wales relating to property, family proceedings in England and Wales relating to financial remedies and First-tier Tribunal and Upper Tribunal proceedings relating to property. This instrument will define those proceedings, enabling the OPRC to achieve its objective to advance the modernisation of the civil, family and tribunal justice systems.

Motion agreed.

Civil Proceedings and Magistrates’ Courts Fees (Amendment) Order 2025

Lord Ponsonby of Shulbrede Excerpts

Monday 17th March 2025 Grand Committee

Moved by

[Lord Ponsonby of Shulbrede]

That the Grand Committee do consider the Civil Proceedings and Magistrates’ Courts Fees (Amendment) Order 2025.

Relevant document: 18th Report from the Secondary Legislation Scrutiny Committee

[The Parliamentary Under-Secretary of State, Ministry of Justice (Lord Ponsonby of Shulbrede) (Lab)]

My Lords, this draft instrument makes a technical amendment to three court and tribunal fees to ensure that they can continue to be charged at their current level by His Majesty’s Courts & Tribunals Service. This forms part of a wider set of amendments to 27 fees whose latest estimated costs have fallen below their current value. The 24 fees not included in this affirmative instrument will be reduced by a negative SI, which will be laid before Parliament shortly.

No one will be required to pay a higher fee as a result of the changes made by this affirmative instrument. Rather, it simply changes the legislative power under which the three fees in question are set without amending the amount charged to HMCTS users. The amendments will protect at least £3.5 million in income a year to help ensure that the courts and tribunals remain efficiently and effectively resourced, reducing the overall cost to the taxpayer. A properly funded and functioning HMCTS is critical to upholding the Lord Chancellor’s statutory duty to protect access to justice.

Fees act as an essential source of income for the funding of the courts and the tribunals, with over 300 fees charged for a variety of administrative and judicial services provided by HMCTS. In line with the principles in HM Treasury’s Managing Public Money, most court fees are set to recover no more than the underlying estimate of what it costs HMCTS to run the corresponding service. Others are set deliberately below the cost of the service to ensure that access to justice is protected, such as in proceedings concerning domestic abuse.

A minority of HMCTS fees are set under what is known as the “enhanced” power via Section 180 of the Anti-social Behaviour, Crime and Policing Act 2014. Enhanced fees can lawfully over-recover their underpinning cost to cross-subsidise HMCTS services for which low or no fees are payable.

Following a substantial review of my department’s costing methodology in relation to court processes, the newly estimated costs of 27 fees were found to have fallen below previous estimates. The revised costing methodology is an improved, more nuanced model that relies on data sources that were not available to the previous methodology. The powers under which the 27 fees are currently set allow them to recover a maximum of their underlying cost. This means that the 27 fees must either be reduced to their estimated cost or kept as they are but restated under the 2014 Act in order to become enhanced fees.

In line with the Treasury principles, it is prudent for the 2014 Act to be used sparingly in setting fees that over-recover their cost. My department’s position is therefore that the enhanced power should be reserved for fees that can generate substantial levels of income to cross-subsidise under-recovering parts of HMCTS, provided that doing so has a minimal impact on access to justice. This is why the majority of the 27 fees in question will be reduced in line with their newly estimated cost by an upcoming negative instrument, with only three enhanced by this affirmative instrument.

I shall now refer to each of the three fees in turn, with a view to explaining the service to which they are attached and why my department deems it appropriate that each is enhanced for the purpose of cross-subsidisation. The first is the 50p fee charged for a council tax liability order. This is payable by local authorities to legally demand payment of council tax arrears. HMCTS receives high volumes of CTLO applications each year which raise significant levels of income to support the running costs of courts and tribunals. In 2022-23, 2.1 million CTLOs were made, resulting in £1.1 million in fee income. Enhancing the fee will not only ensure that this crucial income is retained but remove the cost to the taxpayer of adjusting the fee in line with its regularly fluctuating cost.

The second fee is charged at £22 for a warrant of entry. These warrants are mostly applied for by utility companies to gain legal access to private premises. Similarly to CTLOs, high volumes of these warrants are made each year, generating £7.2 million alone in fee income for HMCTS in 2022-23. Reducing the fee to cost would place a significant pressure on my department at a particularly challenging financial time.

The third fee relates to ships or goods which have been seized in the event of a breach and are then sold off at auction. The Admiralty Court charges several fees which are payable upon sale of a vessel or goods, but the amount payable varies depending on the value of the ship. The fee relevant to this instrument is that charged for ships valued over £100,000. Unlike the flat CTLO and warrant of entry fees, this fee is £1 for every £100 of the ship’s value up to £100,000 and increases by a further 50p for every £100 of the ship’s value above £100,000, with a minimum fee of £205. Although this fee does not attract as many applications as those for a CTLO or warrant of entry, it still provides an important source of income for HMCTS. This is because some ships are sold for several million pounds, meaning that even low levels of annual volumes can result in notable overall income generated.

I reiterate that this instrument merely maintains the status quo by not increasing the value of any of the three fees it restates under the 2014 Act. As a result, there is no anticipated impact on users of the courts and tribunals specifically deriving from this instrument. The negligible bearing this SI will have on HMCTS users was echoed in the responses to the 2023 consultation, undertaken by the previous Government, regarding a series of updates made to court and tribunal fees. Included within this consultation was a proposal to enhance the CTLO fee. The other two fees in question had not yet been identified as over-recovering at the time of the consultation. Of those who responded to this proposal, 63% had no view and no further comments to share, while 17% of respondents agreed with the proposal, stating that enhancing the fee would not negatively impact users given that its current value of 50p would be retained. The two respondents who disagreed had incorrectly assumed that the fee was being increased.

I reassure Members that the number of variations between costs and fee values that are corrected through this instrument and the accompanying negative SI is considered higher than usual. This is because of the revisions brought about through my department’s updated costing methodology. Although the costs underpinning HMCTS fees will be reviewed annually, I do not anticipate the need to amend this many fees year on year, thanks to the improvements made by the new methodology.

The three fees in question are charged in England and Wales only. This instrument will therefore create no effect on the court fees charged in Scotland and Northern Ireland.

This instrument can be seen as a corrective SI which simply delivers minor updates to the statute book for continuity purposes. As such, it does not bring about any practical changes to those affected by court and tribunal fees, and in fact ensures that the fees payable by the relevant court users remain the same. I believe that the amendments affected by this SI and its accompanying negative instrument represent the most pragmatic approach in keeping my department’s fees legislation up to date. I beg to move.

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

My Lords, once again I am grateful to the Minister for his introduction to this instrument. It is difficult to say much about this amendment order in that, as he pointed out, it does not alter the existing fees at all, as far as I can see. Also, the possibility of enhanced fees is restated in relation to the fees covered by the order, there already having been that possibility in legislation.

Having read the Explanatory Memorandum and listened to the Minister’s introduction, it appears that the level would have gone down on the introduction of what I think he called the new methodology, which I thought was an attractive word in relation to this instrument. In the interests of transparency, it would be interesting if he could say how much lower the fees would have been on the introduction of the new methodology had this instrument not been brought into effect.

In general, we are of the view that the level of court fees should be assessed by reference to the recovery of the costs of administration, rather than being treated as a kind of profit centre for either the department or the Courts & Tribunals Service. Therefore, we do not see it as sensible to set fees at a level that produces a substantial profit for the administration, although I can see an argument for the cross-subsidisation that the Minister mentioned where there are other areas that are loss-making for the Courts & Tribunals Service which are covered by some excess income on some of these very high-volume fees. I do not suppose that anybody will be too worried about the commission-type fee for the sale of goods and shipping.

We simply state that, in general, there should be a good reason for enhanced fees, which I think is a principle that the department accepts. We accept that some fees will exceed the costs of administration, but that needs to be justified. We do not see the fees charged by courts as an appropriate way of raising extra funds for the public purse.

[Lord Ponsonby of Shulbrede (Lab)]

I thank the noble Lord for his comments, and I agree with the way he set out the objectives of raising fees. It is not the objective to make a profit on them. The vast bulk of fees are set at a level to recover their administrative cost. However, occasionally there are these enhanced fees. For reasons which the noble Lord will understand, there is some limited extent of cross-subsidisation for certain fees which are set much lower or at zero. But the general principle is that the fees should cover the cost of the application itself.

The noble Lord asked what the fees would be if this order was not in place. In the case of the council tax liability order, the fee is being maintained at 50p, but it would go down to 23p if this SI was not put in place. In the case of the warrants of entry, it is currently being maintained at £22 but would go down to £12.09, for the same reason. It is more difficult for me to give the equivalent value for the sale of ships or goods because it is a different calculation and I cannot give a single number to give a comparison. However, I hope that answers the noble Lord’s questions. I commend this order to the Committee.

Motion agreed.

Courts and Tribunals: Sitting Days

Lord Ponsonby of Shulbrede Excerpts

Tuesday 11th March 2025 Lords Chamber

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

My Lords, the Statement describes the Government’s inheritance from the last Administration on Crown Court capacity as little short of disgraceful. It was worse than that: it was an utter disgrace. Sadly, even with the measures announced in the Statement, an utter disgrace it remains. A once great system of criminal justice, admired internationally, has sunk to a level of service that has produced unpardonable delays; decrepit courts—and not enough of them; and underpaid and demoralised staff and lawyers. Offenders are in custody on remand for unacceptable periods and prosecutions are dropped on many occasions because victims and witnesses lose heart and abandon cases, lacking the confidence that they will ever see justice. When trials eventually happen, they are bedevilled by lapse of time and witnesses’ failing recollection. Overall, the level of public trust in our criminal justice system as a whole is rightly, abysmally low.

Furthermore, the system would be even worse were it not for the tireless commitment of those who work within it, mostly underrewarded staff, lawyers and, in particular, our committed, indefatigable and independent judiciary, who struggle to keep the courts working with some semblance of order against overwhelming odds.

This Statement represents a move in the right direction. To that extent, we welcome it, but it is not enough. The Secretary of State and Lord Chancellor recognise that. As the noble Lord, Lord Cameron, said, she has acknowledged that, even with the funding and measures she has announced, the backlog will grow. She pins her hopes on more radical measures of structural reform that may or may not be proposed by the Leveson review. These will take place only when the review has reported and its recommendations have been implemented. Far more extensive measures are needed now to bring down the backlog.

There is, after all, no significant saving of resources in keeping people hanging around for long periods—often running to years—with their lives largely on hold because we cannot get cases to trial. I do not question the Government’s recognition of the seriousness of the crisis they inherited and we now face, but I do question the lack of urgency.

I have a number of questions for the Minister. Why is it that, at a time of catastrophic shortage of sitting days, a progressive Government, dedicated to the delivery of justice, should simply accept that the concordat process of agreeing a number of court sitting days should be a negotiation between the Government and the judiciary? The Lady Chief Justice, a judge widely admired for her level-headedness and good judgment, sought agreement to an extra 6,500 days a year. She advised the Government that that many extra days were available to address the court backlog of 73,000 cases within the system as it stands. Why have the Government not simply accepted that? Why have they not agreed to all the extra days for which she sought sanction and arranged to provide more? Those extra cases would make a significant difference.

In its report published last Wednesday 5 March, the House of Commons Public Accounts Committee described the MoJ as

“tinkering at the edges, reacting to each new issue that affects the courts, without planning for long-term solutions.”

How is it that the Government have not made swifter progress with initiating a comprehensive programme of necessary repairs to our courts? Of course, the increased funding for repairs is very welcome, but why is the urgency lacking? This was a known problem way before last July’s general election. Might some of the Nightingale courts not have been retained in use to clear part of the backlog? Have the Government considered evening and weekend sittings for uncontested cases, leaving more court days available for trials?

I know that the Government are well aware of the disproportionate effect of long delays on cases of rape and serious sexual violence. Victims withdraw from prosecutions under the psychological pressure that these cases entail. The average wait for serious sexual offence cases, not from report or charge but from arrival at Crown Court to completion, is now 356 days. This is a shocking figure. Many cases wait far longer. Have the Government considered according an enhanced status to these cases because of the particular difficulties they face in order to get them on more quickly?

We agree that there is a need for long-term reform and we trust that Sir Brian Leveson’s review will make recommendations that will help restore our criminal justice system. There is much that we can do now and I invite the Minister to take back to his department an invitation to the Government to do much more, more quickly.

[The Parliamentary Under-Secretary of State, Ministry of Justice (Lord Ponsonby of Shulbrede) (Lab)]

My Lords, first, I welcome the noble Lord, Lord Cameron, to his current role. This is the first time I have encountered him speaking from the Dispatch Box.

The Government inherited a record and rising backlog that now stands at 73,000 cases—twice the figure of five years ago. As the noble Lord, Lord Marks, said, there is a human cost to these delays. Victims are waiting years for justice and the attrition rate in rape cases has more than doubled in the last five years, from 2.9% in 2019 to 7.5% now—so I recognise the figures he quoted. This Government are funding a record allocation of Crown Court sitting days to deliver swifter justice for victims—110,000 sitting days next year, which is 4,000 more than the last Government funded.

The noble Lord, Lord Cameron, asked me a number of questions. Basically, the question was why we were not maximising the number of sitting days and taking up the Lady Chief Justice’s offer, as he put it, of sitting at capacity in the Crown Court system. There are two simple answers to that. One is a cash constraint—and I think we need to acknowledge that the Lord Chancellor has wider responsibilities than the courts and has to balance how the money is spent on the whole criminal justice system. We acknowledge that there are serious issues, and we have increased the number of sitting days. The second point is that it is wise to keep some headroom within the Crown Court system. We saw the benefit of that when we had the riots last year and were able to deal with them really quite quickly, in part because of the policy of keeping some headroom within the Crown Court system.

The noble Lord, Lord Marks, rightly said that trials are bedevilled by delays, and he was right when he said that victims drop out of the system and there are many problems because of the many delays within our system. The noble Lord mentioned the concordat process. It is worth noting that that process has been accelerated this year; it has been resolved much earlier in the year than in many previous years, which will give more certainty to the judges when they are planning and allocating their sitting days between the various courts. That is the benefit of the system that the Lord Chancellor has introduced.

I reject the charge that we are tinkering at the edges. The fundamental point, which I think the noble Lords, Lord Marks and Lord Cameron, acknowledged, is that ever-increasing sitting days will not solve the problem. We need more radical reforms, and we are looking to Sir Brian Leveson to present reforms. A number of things are being constantly talked about in the papers. We do not know exactly what he is going to recommend, but we are absolutely clear that there needs to be a much more radical change in how we deal with trials in the magistrates’ courts and Crown Courts. We have obviously gone some way within the magistrates’ courts by doubling magistrates’ sentencing powers to 12 months—but, again, that is a marginal benefit, and there need to be other changes. We are looking forward to Sir Brian’s recommendations.

The noble Lord, Lord Marks, spoke about repairs to the courts. As I think he acknowledged, there has been an increase in court maintenance, up to £148 million from £120 million—but of course we are trying to catch up on many years of underinvesting in our court estate. I have personally seen a number of courts that are in dire need of emergency maintenance. I acknowledge the point that the noble Lord made, but we are taking steps in the right direction to try to increase the quality of our court estate—and there are a number of Nightingale courts still operating, partly for that reason.

The noble Lord, Lord Marks, made another point about the sexual offences or RASSO cases, and how people are waiting far too long. Some courts, including Bristol Crown Court, I believe, are using a different approach—I hesitate to use the word “specialist”—to how they bring on RASSO-related cases. I believe that a couple of other Crown Courts are looking at this as well. Nevertheless, I acknowledge the point that the noble Lord made about the importance of doing this—otherwise, you will get a higher victim drop-out, which is not in the interests of justice.

[Lord Carlile of Berriew (CB)]

My Lords, before abolishing any element of trial by jury, does the Minister accept that the Government should prioritise improving the effectiveness of the Crown Court by swift progress of cases and by appointing a cadre of procedure judges to ensure that the number of hearings per case is reduced dramatically, thereby saving a great deal of time?

[Lord Ponsonby of Shulbrede (Lab)]

I thank the noble Lord for giving me notice of that question. I absolutely recognise the point on the importance of cases coming on in time. One hears far too many stories of cases having to be abandoned, often because of poor administration of the case. We have a number of pilot courts—I think it is about 10—where we are introducing case co-ordinators. They are people whose only job is to go over the cases to make sure that all the different elements are in place and to make sure that the case gets on. I realise that that is not exactly the point that the noble Lord made, but it is acknowledging the importance of making sure that these cases get on and are not abandoned for any reason.

[Lord Thomas of Cwmgiedd (CB)]

I have a couple of questions. First, it is very clear that if you get a backlog in the system, people will plead not guilty. That was my experience with the magistrates’ court in Gloucestershire in 2006, and I do not believe that anything has changed. Therefore, my first question is: what are the Government’s projections, going forward over the next 12 months, as to the likely increase in those awaiting trial? The real problem is that if you do not clear the backlog, it makes it worse because it is always tempting to put off facing reality; it just gets worse and worse.

Secondly, in a court system time is always lost during the day. One problem that we have relates to prisons and the difficulty of bringing prisoners to the courts on time. What is being done to ensure that is improved? I remember this being a problem more than 20 years ago, and it really required extraordinarily tough contract management. I took some of the job on myself, as the Ministry of Justice did not seem capable of doing it. What is being done to manage the contracts so that they are managed as a commercial contract should be managed, and there are penalties or other stern action taken if a prisoner is late? I hope that the contracts are tough enough to ensure that.

In connection with prisons, when I chaired the Commission on Justice in Wales, it was obvious that there was a problem in funding the criminal justice system. I do not think that there can be any real doubt that the financial problems arise from the overall fiscal constraints, which I completely understand, on what money is available for justice—but you are driven to the conclusion that if the Exchequer will not provide more money, the only place it can come from is reducing the prison population. When are we going to find out not how we avoid the crisis that will come in the early part of next year but what is being fundamentally done to reassess our policy of sending people to prison for a very long time? That, I believe, is at the heart of the problem.

The Lord Chancellor spoke very eloquently—and I commend her on this—of dealing with the question of an intermediate court, but the much more difficult political question is dealing with the sentiment that was impressed on us some years ago that “prison works”. I do not believe that is true, but it works to undermine all the rest of the justice system by there not being enough money for paying lawyers to do their job properly and funding the administration of justice.

I am sorry—I took my second question in two parts. I commend the Lord Chancellor on what she has done, but there are other problems to which we need to face up.

[Lord Ponsonby of Shulbrede (Lab)]

I agree with the concluding sentence of the noble and learned Lord—there are indeed other problems which we need to face up to, and reducing the prison population is one of the most fundamental of them. In many ways, that problem goes hand in hand with the problem of the Crown Court backlog. The noble and learned Lord will know that my noble friend Lord Timpson went to Spain to see their prison system, and my right honourable friend the Lord Chancellor went to Texas, looking constructively at other ways of dealing with these issues. Of course, as he said, reoffending rates are crucial in trying to reduce the backlog and there will be legislation on this coming forward in due course.

The noble and learned Lord opened by talking about the incentive to plead not guilty because of the lengthy backlogs. That is undoubtedly true; I have heard that point made many times. It is an added incentive for us to try to reduce the backlogs. There will be a number of benefits to this, and the noble and learned Lord has pointed to one in particular.

Regarding intermediate courts or giving magistrates more sentencing powers, it is my understanding that magistrates’ courts work about five times more quickly than Crown Courts. I do not know what Sir Brian is going to recommend, but, if more work could be done within magistrates’ courts, that would help as well.

The noble and learned Lord spoke about bringing prisoners to court in a timely way. I of course agree with that point. The last mini-campaign I did when I was still a sitting magistrate was to try to allow prison vans in London to use the emergency service lanes to get people to court. It was a minor battle I had with the Mayor of London and I am afraid that I lost it. Nevertheless, the point he makes is a good one. It is very important that everybody gets to court on time, so that the whole process can be properly managed, which is of benefit to everybody involved in it.

[Lord Thomas of Cwmgiedd (CB)]

Perhaps I could ask a supplementary question. Has the Ministry of Justice got a really tough contract manager? All of one’s commercial experience shows that, if you contract out a service, you have to be tough in the performance of it. I need not raise the problems that have arisen. In the past, contract delivery companies did not have a good record, if one might say this.

--- Later in debate ---

[Lord Ponsonby of Shulbrede (Lab)]

What I can say is that I have been in meetings with the Permanent Secretary and the Lord Chancellor and I would not like to be on the wrong side of them when they are talking directly to contractors—which they do every now and again.

[Baroness Hamwee (LD)]

My Lords, following the points made by the noble and learned Lord, does the Minister agree that it is about not only contract management but the design of the contract from the very beginning, so there can be break clauses or a contract may be terminated if it is not properly performed? Also, following the noble and learned Lord’s comments, does the Minister agree that what will be far more helpful to justice proceeding more speedily is to suggest not that pre-sentence reports are a bad thing but that well-designed pre-sentence reports can assist in the appropriate sentences being applied as part of the attempt to reduce reoffending?

[Lord Ponsonby of Shulbrede (Lab)]

Yes, I agree with the points the noble Baroness makes. The aspiration is to move towards a greater proportion of offenders having pre-sentence reports before they are sentenced. To me, that seems an obvious state of affairs. So, I agree with the point that the noble Baroness made on that. Regarding the contracts, I understand that they do have break clauses and can be terminated: that is a possibility within current contracts, as far as I understand it.

Strategic Lawsuits Against Public Participation

Lord Ponsonby of Shulbrede Excerpts

Thursday 6th March 2025 Lords Chamber

[Lord Black of Brentwood (Con)]

My Lords, in begging leave to ask the Question standing in my name on the Order Paper, I declare my interest as deputy chairman of the Telegraph Media Group and note my other interests in the register.

[The Parliamentary Under-Secretary of State, Ministry of Justice (Lord Ponsonby of Shulbrede) (Lab)]

My Lords, the Government are committed to tackling SLAPPs. Our immediate focus is on implementing the anti-SLAPP provisions in the Economic Crime and Corporate Transparency Act 2023, and their operation will inform any future action. We are determined to take the necessary time to consider this complex issue carefully and ensure that we do not risk upsetting the delicate balance between access to justice and free speech.

[Lord Black of Brentwood (Con)]

My Lords, SLAPPs are an unacceptable infringement on free speech; their sole purpose is to empower the powerful and corrupt to silence journalists and bloggers and to shut down legitimate scrutiny. In opposition, the Prime Minister and the Government strongly backed legislation to end their continuing abuse, but now they have gone back on that commitment and said that changes to civil procedure rules will be enough. Is the Minister aware that free speech campaigners such as Article 19 and Transparency International, backed by studies from the universities of Birmingham and Leeds, have said that these rules will be wholly ineffective in stopping pernicious lawsuits and that what is needed is full-throated legislation? Rather than hiding behind piecemeal legal tweaks, will the Government look at this again, stick to their unequivocal promises and set out a timeline for the development of a robust anti-SLAPP Bill?

[Lord Ponsonby of Shulbrede (Lab)]

My Lords, the statutory definition of an economic crime SLAPP was within the previous Act, and the Civil Procedure Rule Committee has introduced rules. My honourable friend Minister Sackman signed the rules to come into law in January this year, and those measures will be implemented later this spring. The Government want to see how those measures will work before deciding on more legislation.

[Lord Thomas of Gresford (LD)]

My Lords, in 2023 the Conservative Government formed a task force to deal with SLAPPs under the direction of DCMS, with a wide representation of government officials, solicitors, barristers and journalists, and with terms of reference requiring bi-monthly meetings. Four reports were produced, the last in March 2024; there has been nothing since. Have the current Government abolished the task force? If not, what is it doing, and how and when will we hear from it?

[Lord Ponsonby of Shulbrede (Lab)]

I do not know the answer to the noble Lord’s question, so I will write to him.

[Lord Cromwell (CB)]

I had quite a lot to do with getting a SLAPPs element into the economic crime Act as a beachhead, but it was always seen as just that: a beachhead. A far more comprehensive law was to follow, covering all the other sectors beyond economic crime. Why have we not seen anything further? Will we see something further during this Parliament to cover the other areas? I am sure the Minister will be aware that law firms that profit from this will be lobbying hard against it. I hope he will resist that.

[Lord Ponsonby of Shulbrede (Lab)]

I remember the interventions from the noble Lord, Lord Cromwell, in the debates on that Act, in which I took part as well. I am going to give the noble Lord the same answer as I have just given. We want to see how the changes to the rules will change the actions of the courts. SLAPPs are covert and they need to be identified. We want to enable the judges to identify them appropriately.

[Baroness Kennedy of The Shaws (Lab)]

My Lords, I too am concerned that this is slipping down the legislative agenda, because this issue is serious. Whistleblowers in the Post Office scandal, for example, were silenced early on when they wanted to go public and received letters telling them that they would be sued for defamation if they pursued their claims. We have seen many journalists being silenced and intimidated with expensive lawsuits by the rich and the powerful. It is identifying those cases and having specific legislation that is effective.

I remind the Minister that a lot of these cases are directed against women, often exposing things to do with powerful men misbehaving and their conduct towards women being highly concerning. Those women are silenced. Given that the Government have committed to protecting women and girls, are they going to do something to protect those who are most vulnerable in this area?

[Lord Ponsonby of Shulbrede (Lab)]

I absolutely recognise all the points my noble friend made in her question. We do not believe that this issue is slipping down the legislative agenda. We want to see how the 2023 Act will work in practice. That will be happening imminently. The new rules will become active later this spring. The point my noble friend makes about intimidation through this procedure is absolutely right. Women, journalists and women journalists are all victims of this, and it is something we will certainly keep an eagle eye on.

[Lord Keen of Elie (Con)]

My Lords, does the Minister agree that we should not confuse the issues surrounding non-disclosure agreements, which can be pernicious in themselves, with the issue of strategic lawsuits against public participation? Does he also agree that because the public profile of SLAPPs has so increased recently, regulators have taken a far more positive approach to dealing with the matter, as recent evidence from the Solicitors Regulation Authority and the Bar Standards Board illustrates? It might be better to see how the civil rules implement the perception against SLAPPs and allow those regulators to discharge their functions with regard to the legal profession.

[Lord Ponsonby of Shulbrede (Lab)]

I thank the noble and learned Lord for that question, and I agree with the points he made. It is indeed true that non-disclosure agreements can be pernicious in themselves, and they are not to be confused with SLAPPs. The new regulations will come into place imminently, and we should see how they go before considering future legislation.

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

My Lords—

--- Later in debate ---

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

My Lords, I think the Minister is aware that the Council of Europe has done a great deal on this matter, particularly the parliamentary assembly committee on culture, media and sport. I think the Minister said in a previous exchange that he would look at the Council of Europe recommendations and take account of them in taking action on this. Has he had the opportunity to do this yet? If not, will he do so soon?

[Lord Ponsonby of Shulbrede (Lab)]

Yes, I remember our previous exchange on this matter, and I have looked at the work done within the Council of Europe, the parliamentary assembly and its culture, media and sport committee. This is a cross-Europe issue. There are groups measuring attempts at SLAPPs across European jurisdictions. We will continue to look at how legislation is developed across Europe. We will keep an eye on this within the UK. The point that my noble friend makes is a good one.

[Baroness Stowell of Beeston (Con)]

My Lords, I refer the Minister to the letter from the SRA, which it sent me this week and I have published on X this morning, detailing why it has not taken action against the lawyers representing Yevgeny Prigozhin, who pursued the journalist Eliot Higgins for tweeting that he was a Russian mercenary and the leader of the Wagner Group. In that letter the SRA is clearer than it has ever been that, in its view, legislation is needed to prevent SLAPPs. Can the Minister please think again about the urgency of this matter? What with not moving on this, yesterday’s complacency on the Telegraph and the Government’s position on copyright, there needs to be a different kind of response from the Government on matters concerning the freedom of the press.

[Lord Ponsonby of Shulbrede (Lab)]

I thank the noble Baroness for sending me a copy of that letter yesterday. The first point to make is that it is for the courts to decide whether a case is indeed a SLAPP. The second is that the case referred to in the SRA letter preceded the legislation that is now in place. The focus of the Government is to see how the new regulations will bed down before we consider new legislation.

[Lord Fox (LD)]

My Lords, the Minister may not be aware that the Georgian oligarchy is introducing SLAPPs laws into its own country now, justifying that by saying that they are British laws. Is the Minister not embarrassed that this is being used to suppress the press and protest in Georgia? Does he not understand that we need to take this out of our laws so that people are not using it as justification elsewhere?

[Lord Ponsonby of Shulbrede (Lab)]

I was not aware of the point that the noble Lord has just made, but of course there is a balance to be struck between Article 6 rights of access to justice and Article 10 rights of freedom of speech, and it is very important that we get that right.