Employment of People with Criminal Convictions

Lord Ponsonby of Shulbrede Excerpts

Monday 26th February 2024 Lords Chamber

[Lord Bellamy (Con)]

My Lords, as your Lordships know, under the Police, Crime, Sentencing and Courts Act 2022 the Government have been progressively reducing the need to disclose previous convictions, particularly in relation to community sentences and sentences of under four years, and now even some non-violent sentences of over four years can be regarded as spent. As the noble Baroness has said, the ban the box campaign run by Business in the Community, which comprises more than 150 employers covering over 1 million roles, asks employers to delay the point at which applicants are asked to tick a box on and give details about any criminal convictions so that they can expose their skills at interview before any disclosure of convictions is made, if such disclosure is still required.

The Government are very pleased to commend the work of Business in the Community, which has now led the ban the box campaign for several years. In 2021 it passed the milestone of covering more than 1 million roles, and as long ago as 2016 the Government signed up to it for the Civil Service. The noble Baroness rightly identifies that this is a very important initiative. Increasing rates of employment on release from prison is very important, and the Government will continue to support the initiative.

[Lord Ponsonby of Shulbrede (Lab)]

My Lords, I was going to ask about ban the box as well. The Minister has given a full answer. However, can he say something about the practices of the Ministry of Justice? When it contracts with numerous companies and NGOs, does it require them to practice ban the box themselves?

[Lord Bellamy (Con)]

My Lords, I will have to come back to the noble Lord on that question, as I am not in a position to answer it straightaway.

Victims and Prisoners Bill

Lord Ponsonby of Shulbrede Excerpts

Committee stage
Wednesday 31st January 2024 Lords Chamber

[Baroness Brinton (LD)]

My Lords, I agree with everyone who has spoken so far. I say to the Minister that, given the mentions earlier today about putting the victims’ code on a statutory footing, the brevity of this debate is in inverse proportion to the importance of the amendments. We appreciate that the Government have not come as far as us. I am grateful to my noble friend Lady Hamwee, who helpfully set out the concerns of the committee that she quoted about this not being strong enough to get compliance.

I want to go back over a little bit of history. When I joined your Lordships’ House in 2011, a number of inquiries were going on relating to victims of crime. I became vice-chair of the all-party group on victims of crime. That group introduced the stalking inquiry report, which led to stalking law reform. Between 2011 and 2019, this House debated the role of a victim’s code and the victims of crime on many occasions. I had a Private Member’s Bill on the issue which had its Second Reading in July 2019. Not only did the Conservative manifesto of 2019 mention it but there was more detail about it in an addendum to it. I have no doubt that that was due to the work of the then Victims’ Commissioner, who is the Victims’ Commissioner again, sitting on the opposite Benches.

All that was because the current system does not work; it is quite simple. Until the services that have to provide the victims’ code are made to do so, there will be no incentive for them to deliver it if they have other pressures. It is the old thing: if you have to do something, then you will. You will have targets and you will be judged by your performance. Without that—if this is just a “thing too much—it will not happen.

As we come to the end of this Parliament, I want to say that it was a key tenet of the Conservative manifesto to make sure that a victims’ code was enshrined in law, but what we have seen is not what was spoken about during that general election campaign.

[Lord Ponsonby of Shulbrede (Lab)]

I find myself in a difficult situation, because in the previous group I had said that we should not have a sterile debate about whether we should have all the victims’ code on a statutory basis, and I challenged the Minister to look at individual provisions that should be on a statutory basis. I understand that that is not the tenor of the debate that we have been having in this group. However, Amendment 108, which was spoken to by the noble Lord, Lord Polak, in the previous debate, looked at a specific element—namely, to do with the relevant local commissioning of bodies for specialist support for children who are victims, and whether that should be on a statutory basis, so as to put it on a similar basis to that for domestic abuse victims. I do not think that the Minister answered that amendment. While on the one hand I acknowledge the point that having an all-or-nothing approach may not be the best use of our time, on the other, it would be helpful if the Minister addressed the specific proposals in the amendments in the previous group.

Having said that, we are at a relatively early point in Committee, and there will be opportunities to bring these matters back. As my noble friend said, she has a further group of amendments looking at the powers of the Victims’ Commissioner. Having explained my position to the Minister, I look forward to his response.

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

My Lords, I thank the noble Baroness, Lady Chakrabarti, and others, who have spoken in this part of the debate. To take up at once the challenge of the noble Lord, Lord Ponsonby, the Government’s position is that there are no specific amendments, including Amendment 108, which could or should be promoted into the Bill—they should all be dealt with in the code, in the right place. The difficulty of putting specific matters in the Bill, among other difficulties, is that you make a policy choice, irrespective of the available resources and the available situation in different areas, and so forth, as to which—

Victims and Prisoners Bill

Lord Ponsonby of Shulbrede Excerpts

Committee stage
Wednesday 31st January 2024 Lords Chamber

[Baroness Brinton (LD)]

My Lords, my noble friend Lady Benjamin would have liked to speak from these Benches today, but, unfortunately, she cannot be here. She told me that, in signing all these amendments, she supports the attempt of the noble Baroness, Lady Coussins, to strengthen interpretation, in particular, but also access to services in other languages. Much has been said, and I will not repeat it, but we need to commend the noble Baroness, Lady Coussins, who has from every possible aspect in your Lordships’ House—whether in debates or on legislation—ensured that we think about the importance of other languages that are not our first or our own. One of the key things that has come through this short debate is that that relates to not just the traditional languages that we may have perceived through learning at school or going on holiday but the rights of people who are deaf to have BSL interpreters; to have easy-read or particular interpreter support for children or those with learning difficulties is equally vital.

The right reverend Prelate the Bishop of Leeds reminded us that this is all about fair access for victims, and he talked about “the culture”. I worked at Cambridge University for 20 years in various roles and on two or three occasions had to help foreign-language students when they had been victims of crime. They had good English, but they did not have confident English to deal with what had happened to them in the aftermath of an incident, let alone understand the culture of how our system works—whether it is the police or the criminal justice system. Having an interpreter to whom they can explain what has happened and in return to hear how the process will happen—importantly, that must neutral, as many noble Lords have mentioned—is vital.

I thank the noble Lord, Lord Wigley, for raising the issue of vulnerable groups because that is important too. He might be amused to know that I am now the step-grandmother of a six year-old child for whom Welsh is very much her first language—I am trying to catch up. A child of that age just speaks the language as it comes and even in the family environment it can throw you when you do not understand. How much more important is that when you are navigating a system such as the criminal justice system?

My noble friend Lord Marks set out the important reasons for the criminal justice system that we professionalise language and interpretative services. We absolutely support that on these Benches and I hope the Minister will listen favourably to all the comments that have been made so far.

[Lord Ponsonby of Shulbrede (Lab)]

My Lords, I too thank the noble Baroness, Lady Coussins, for this group of amendments, to which I have put my name. I echo the point that she has had a sustained campaign on this through a number of Bills and I very much hope that this group of amendments will reinforce her campaign, if I can put it like that, and the Minister will look at it favourably. She gave various examples of shortcomings in the court system where interpretations go wrong and I have had personal experience of every single one of the shortcomings that she highlighted. I suspect that anyone else who has worked in the courts, particularly in our metropolitan cities, will have experienced those shortcomings as well.

The right reverend Prelate the Bishop of Leeds spoke about his work as a linguist and I think I am right in saying that he is a Russian linguist—he is nodding his head a bit. It reminded me of when I understood the difference between interpretation and interpreting. That was when I was working in Ukraine and had a Russian interpreter interpreting for me. She was so fluent that she could talk simultaneously in whatever conversation was happening and, she told me, she also did her shopping list in her head at the same time. That is how fluent she was. There really are some remarkable people who do this work. The other thing I learned through various aspects of my life is that there are specialisms within interpreting and it is very important that you recognise the limits of the interpreters one is dealing with at any particular time.

This brings me on to the point made by the noble Baroness, Lady Newlove. She gave the example of an Albanian gang member who was involved in interpreting in a case of alleged rape. One thing I have become aware of in dealing with domestic abuse, particularly when it is minority groups with minority languages, is that you have to be very cautious about who the interpreter is. The information that comes through the interviews with the lawyers and the like can easily leak out into the wider community of that group and can undermine the woman in whatever legal remedy she is seeking. It is a point that I absolutely recognise.

The noble Lord, Lord Hogan-Howe, talked about the processes themselves and the noble Lord, Lord Meston, talked about value for money. He also spoke about sign language and lip-reading, both of which I have experienced in court. It is quite an exhaustive process and I understand that it is quite expensive when you have to have relays of sign language interpreters when one is dealing with particular cases. Nevertheless, there is a fundamental point underlined in this group of amendments from the noble Baroness, Lady Coussins, about access to justice and we need to make sure that the standards are as high as possibly can be obtained.

The noble Lord, Lord Marks, said, “Don’t underestimate good intentions when interpreters are interpreting”. Many times, I have seen them try to help understanding by overexplaining things, which actually undermines one side or another of the case. I understand that this is a difficult, sensitive issue but I very much hope that, when he comes to reply, the Minister will give as much reassurance as he possibly can—both that standards are kept at the highest possible level and that all necessary procedures and protocols are properly reflected—so that the aspirations of the noble Baroness, Lady Coussins, can be fully met.

[Lord Bellamy (Con)]

My Lords, I thank the noble Baroness, Lady Coussins, for raising this important topic. I join in the general commendation of the way in which she presented her amendments and the way in which noble Lords have subsequently supported them.

In relation to the remarks of the right reverend Prelate the Bishop of Leeds, I will, if I may, trespass on your Lordships’ indulgence. Let me say that, having had to work for several years in an entirely foreign language and an entirely unfamiliar legal system, I am quite conscious of the difficulty that one has. There comes a point—in my experience, at least—when you get stuck between two stools and you cannot say anything in either language in trying to express yourself. So the subject matter of what we are discussing is well understood.

Perhaps we might start with the common ground. It goes without saying that interpreting—I emphasise that word—and translation services must be of the highest quality and clarity in the criminal justice system, as well as tailored to the victim’s needs. As far as the Ministry of Justice is concerned, interpreting and translation services are provided under contracts where the various standards and requirements are laid down. As I think the noble Baroness, Lady Coussins, pointed out, those arrangements have been subject to ongoing and extensive review, which I hope will be completed shortly—at least not before long—to ensure that we have the highest quality. Obviously, the general objective is fairly self-evident: in the justice system, you must have a high standard of interpreting and translation. For the CPS, interpreters must be on the National Register of Public Service Interpreters. That is the first area of common ground.

The second area of common ground is that, for those whose first language is not English, the right to understand and be understood is enshrined in the code. It is right 1—the most important right of all—and is set out on page 15 of the present draft of the code, which says that

“providers must communicate in simple and accessible language and all translation or interpretation”—

I take the point that it says “interpretation” but probably should say “interpreting”—

“services must be offered free of charge to the victim”.

So this is recognised as a right. If it is not always achieved, as the noble Baroness, Lady Newlove, feels, that is, in effect, why we are here. The whole structure of the Bill aims to remedy possible defects and create a system in which we can raise standards progressively and consistently across the country, commissioning bodies can learn from each other and we can improve the service available to victims, generally speaking; that is an operational issue rather than an issue of principle. No one is disputing the broad thrust of the comments that have been made.

Here, once again, we come to what is in some ways the philosophical issue behind everything that we have been discussing: to what extent should we introduce matters in the Bill and to what extent should we deal with the operational and detailed aspects in the code or in guidance? On that point, the common ground tends to be a little more limited, if I may say so.

--- Later in debate ---

[Baroness Brinton (LD)]

My Lords, I will speak on Amendments 108 and 109, in the absence of the noble Baroness, Lady Benjamin, who would have made a contribution. She comments that child abuse and exploitation can happen to any child, in any family, in any location, and, as she would always say, “Childhood lasts a lifetime”. Child abuse and exploitation can have a detrimental impact on children that stays with them for the rest of their lives, harming their mental health, their development and sense of trust. Right at this moment, there is a child experiencing this type of trauma. Of course, it also has a devastating impact on their family and friends, and society as whole. As a country, we still do not provide or fund anywhere near enough for specialist support services to stand up for children’s rights and those who have experienced devastating trauma and abuse. It is shameful that, as a nation, children are left with the horror of abuse, and suffer in silence without any statutory right to support.

Support services are vital for child victims. They give children a space to work through their trauma and begin to recover, offering mental health and counselling services, and advocacy services which help children and their families to navigate the complexity of statutory agencies and the criminal justice system. Child-centred services, such as the Lighthouse, which was described earlier, can also reduce the impact of harm and other risks later in life, including going missing from home, alcohol and drug misuse, homelessness and interaction with the criminal justice system.

In one study, more than eight in 10 male prisoners said they had experienced at least one adverse childhood experience, which includes physical and sexual abuse, and domestic abuse. Yet local services, mostly run by the voluntary and community sectors, are chronically underfunded and undervalued. The Centre of Expertise on Child Sex Abuse, which is hosted by Barnardo’s, has recently published a comprehensive study of the current landscape. I will not go into the detail because the noble Baroness, Lady Newlove, has already covered the results. But just as much as Barnardo’s and the other children’s charities feel that they have a moral duty to support vulnerable children and young people, we cannot continue to see these vital support services as just a charitable add-on that is nice to have. These are life-saving services for a lot of children who have experienced abuse and exploitation. We must ensure that enough are available to support the number of children who, every year, face abuse and exploitation.

From these Benches, we support the amendments tabled by the noble Lord, Lord Polak, which would place a duty on the relevant authorities to commission sufficient child-specific support services for child victims of abuse and exploitation.

My own Amendment 100A in this group follows on from the very thorough report from the Independent Inquiry into Child Sexual Abuse, which gave the Government 20 recommendations, of which the first is a statutory duty of mandatory reporting, by which those in certain employment, whether paid or voluntary, and regulated professions should report allegations of child sex abuse to relevant authorities. The Government have yet to respond on these recommendations. I hope that will change soon.

This Bill is not the right place for an amendment on mandatory reporting. The amendment would provide children and young people with the status of a victim if a person in a regulated profession had a suspicion that they were a victim of child sex abuse. As we have heard from most speakers on this group of amendments, children and adults react differently to trauma. Children need specialist help right from the start. Giving them that recognition as a victim is vital.

[Lord Ponsonby of Shulbrede (Lab)]

My Lords, the discussion on this group has been remarkable. I agree with everything that all noble Lords have said. Indeed, I went to many of the same meetings about which other noble Lords have spoken so eloquently.

Victims and Prisoners Bill

Lord Ponsonby of Shulbrede Excerpts

Committee stage
Wednesday 24th January 2024 Lords Chamber

Moved by

[Lord Ponsonby of Shulbrede]

5: Clause 1, page 1, line 16, at end insert—
“(e) where the person is a child who is a victim of abuse and exploitation which constitutes criminal conduct.”

[Lord Ponsonby of Shulbrede (Lab)]

My Lords, I open by reiterating my noble friend’s point about acknowledging the way in which the noble and learned Lord wound up the previous group of amendments and about working consensually across the Committee as we progress through the Bill. My second point is simple, but I think it worth making. As noble Lords will know, I sit as a magistrate in London in family, youth and adult jurisdictions, and I rarely see victims. I see victims only in trials—they sometimes turn up to trials to give evidence—and I hear from victims only when I sentence and the victim’s impact statement is read out. Through all the rest of the processes which I routinely go through sitting in a magistrates’ court, I do not hear from victims, and I do not see them. It is a simple point, but I thought it was worth making.

The Minister also had his four As, which the noble Baroness, Lady Brinton, has just referred to—awareness, accessibility, accountability and affordability. We agree with those as far as they go, of course, but of course many of the elements in Committee will concern whether accountability should be enforceability. That will be the crux of a number of our debates in Committee.

This group deals with child victims. Amendment 5 in my name clarifies that the definition of “victim” should include a child who is a victim of abuse and exploitation that constitutes criminal conduct. I will go through the amendments in the group and then comment more widely. Amendment 6, and Amendment 10 in my name, extend the definition of “victim” to a child who is

“a victim of child criminal exploitation”.

Other noble Lords will speak to that as well. Amendments 7 and 11 seek to ensure that the explicit definition of a victim includes those who are subject to modern slavery—another aspect that we will debate within this group. Amendment 9, tabled by my noble friend Lord Hunt, is specifically about verbal abuse of children.

While the Bill makes important reference to the Domestic Abuse Act 2021 and to children as victims of domestic abuse, the same organisations that fought for that Act are now asking for the same ambition to be applied to children who have experienced abuse and exploitation. Last week, I and other noble Lords now present in the Chamber went to a survivors’ presentation organised by a coalition of charities led by the NSPCC, where we heard first-hand about survivors’ experiences and how the support organisations and criminal justice system responded to their trauma.

What was particularly telling about those survivor experiences was that, although the abuse itself was, of course, wholly negative, we did hear from one or two survivors who had had a relatively good experience of the criminal justice system—although there were other experiences that were much more negative. That contrast made those testimonies even more powerful. This morning, I, the noble Lord, Lord Hampton, and the noble Baroness, Lady Sanderson, visited the Lighthouse project in Camden. This provides a one-stop shop for child victims of sexual abuse. It is a model of how these services should be provided.

It is in that context that this group is being debated. I want to set out the scale of abuse and exploitation of children. Children—that means people under 18—make up about 20% of the population. The Centre of Expertise on Child Sexual Abuse has found that children are the victims of about 40% of all sexual offences. One in 10 children in England and Wales is sexually abused before the age of 16 and that number means that there are an estimated half a million child victims every year.

Children abused by parents or carers are almost three times more likely to experience other forms of domestic abuse as well, and it was found that 42% of childhood abuse survivors suffered more than one type of abuse. The Bill explicitly recognises children as victims only of domestic abuse and as a result fails to acknowledge the multiple forms of abuse and exploitation that children can experience. They can be subjected to multiple forms of abuse and exploitation during their lifetime. To avoid failing these children, the definition of a victim must cover all forms of abuse and exploitation, in addition to domestic abuse.

The victims’ code of practice recognises that those under 18 are vulnerable and affords them enhanced rights. The children’s coalition, a coalition of charities that are informing what I am saying now—and has no doubt briefed all noble Lords here in Committee as well—has argued that there should be consistency across all legislation, recognising as distinct victims all children, not just those who are affected by domestic abuse. The coalition urges government to ensure that the Bill reflects the code by ensuring that children who experience abuse and exploitation, in addition to those who experience domestic abuse, are in the Bill so that the entirety of the harm they experience is explicit within primary legislation.

If the definition is not amended, the children’s coalition foresees that this will have unintended consequences for the relevant authorities and those in charge of delivering victim support services. Resources will be directed to focus on the needs of children who are victims of domestic abuse above other forms of harm. The coalition is concerned that there is the potential for a hierarchy of abuse that would leave thousands of children affected by other forms of abuse and exploitation without recognition and, ultimately, without support. By not explicitly recognising children as victims in their own right, the Bill could have significant implications for the level and quality of support available.

I am told that evidence already shows that a lack of support for children following abuse and exploitation exists and that ensuring that children and the full scale of the harm they experience are explicitly in scope will act as a cornerstone for responsible agencies commissioning services to make sure that they reflect the needs of children in full. So this is a specific example where legislation will make a difference.

It is impossible to design an effective justice system response to childhood victims without understanding the scale of what we are talking about, which I set out earlier. This cannot be done without recognising all forms of abuse, but this is a specific example where the black letter of the law will have an impact on the services that are delivered to childhood victims of abuse that falls outside the scope of domestic abuse. It is in that spirit that I beg to move Amendment 5.

[Baroness Hamwee (LD)]

My Lords, I have Amendments 7 and 11 in this group and I want to be clear that I agree very much with the views that are behind all these amendments.

I hope that my first question—a technical question—will not be regarded as negative. Is a child a person within Clause 1(1)? That will affect amendments and how they are framed. My second question is probably a bit indelicate. It has only occurred to me this evening, while listening to the examples that your Lordships have given. It is a direct question to the Minister. Is the MoJ aware of examples of possible candidates—that is probably not a very happy term—who have been exploited or subjected to criminal or marginally criminal behaviour, which have not made their way to us? It may be possible. I possibly should not put the Minister on the spot now, but maybe we can talk about what the MoJ has considered and discarded. Amendments 7 and 11 have been brought to us by Hestia, which supports victims of modern slavery. It is concerned with ensuring that those who are born to victims of modern slavery are covered.

I know that we have Clause 1(2)(b), which refers to circumstances

“where the person’s birth was the direct result of criminal conduct”,

but it would be very unfortunate if we were to run into the weeds of whether someone is a victim of rape—in other words, what is the relationship between the mother and the offender?—or if there is a doubt as to who is the father because the woman has been subjected to forced prostitution and the object of multiple rapes, because that kind of issue detracts from the support that is needed by the children of victims of modern slavery or human trafficking, whose experience in itself requires support.

--- Later in debate ---

[Lord Bellamy (Con)]

My Lords, I think that is the Government’s position. In most cases the child will experience the effect of criminal conduct, that being the effect on the mother. That is a sufficiently direct nexus, as it were, to bring it within the scope of the clause.

[Lord Ponsonby of Shulbrede (Lab)]

My Lords, I thank all noble Lords who have spoken on this group. The gist of the Minister’s summing up is that he believes that all the examples given in this short debate are already covered in the Bill. I think he said that there may be a detailed section in the code covering children; I understand that that was not a firm commitment but, nevertheless, it is a step forward.

The Minister gave a number of examples of why the Government want a more explicit recognition, but I gave a specific example where I argued that the black-letter law on the recognition of children could—and does—affect the accessibility of victims’ services. When local authorities look at how to allocate services, there is potentially a hierarchy there. We think that children should be at the top of that hierarchy, equal to domestic abuse victims; that was the specific example that I gave to the Minister.

Nevertheless, this has been an interesting debate on which I and others will reflect. I agreed with every word of what the noble Baroness, Lady Brinton, said about my noble friend Lord Hunt’s amendment. He clearly tabled it to raise awareness—one of the Minister’s four As—and he has effectively achieved that goal. I will be interested to see whether he wishes to take it further. For now, I beg leave to withdraw my amendment.

Amendment 5 withdrawn.

Imprisonment for Public Protection

Lord Ponsonby of Shulbrede Excerpts

Tuesday 16th January 2024 Lords Chamber

[Lord Bellamy (Con)]

My Lords, I think I have explained this matter several times before to your Lordships but, in brief, the situation is this. We have 1,200 prisoners who have never been released. Almost all of those have come several times before the Parole Board, which each time has decided that they are not safe to release. Any resentencing exercise would inevitably either aim at or result in possibly a thousand persons being released who are not safe to release. The cohort includes many violent and sexual offenders, who are particularly difficult to manage in the community. The Government feel that they cannot take that risk and should not raise expectations but manage the situation by preparing the remaining prisoners for safe release.

[Lord Ponsonby of Shulbrede (Lab)]

My Lords, when IPP sentences were in place, the offender received a minimum tariff. When the offender went to prison, an offender manager, who is a probation officer, wrote a sentence plan. That same probation officer would also review that plan. Can the Minister say with confidence that all the elements of the sentence plans which are currently in place can be completed, and in a reasonable time?

[Lord Bellamy (Con)]

My Lords, it is a very good question. A strengthened action plan—a strengthened sentence plan for each IPP prisoner—is an essential part of the wider IPP action plan. That is currently being worked on so that each IPP prisoner still in custody will have a personalised, updated and—we hope—effective sentence plan eventually leading to their release if that is at all possible. The newly established IPP progression board dealing with this matter now includes stakeholder representatives, who met in September and just before Christmas and will meet again in March, when we will report a full update on how the action plan is progressing.

Employment Tribunals and Employment Appeal Tribunal (Composition of Tribunal) Regulations 2023

Lord Ponsonby of Shulbrede Excerpts

Wednesday 10th January 2024 Grand Committee

[Baroness Lawlor (Con)]

My Lords, it is a great honour to follow the noble Lord, Lord McNally, but I do not have his great experience or knowledge. I will make a very lay man’s point. I thank my noble and learned friend Lord Bellamy for his illuminating outline of the background to this question and the history, taking us through why the Government are now keen to unify the employment tribunals within the overall structure of the tribunal system and keep them more obviously within judicial law than they might have been before.

My question is one of clarification. My noble and learned friend explained that the Government do not seek to reduce or undermine in any way the lay composition of employment tribunals in future. Will there be specific instructions to the Senior President about the composition of the panel, including whether one, two or three members will be present? Will there be guidance on the balance between judicial and lay members?

In particular, I pick up on the point from the noble Lord, Lord McNally, about the employer-heavy element in tribunals. I recall when my noble and learned friend Lord Bellamy brought the academic freedom Bill through the House last year. At the time, it seemed important to me that we did what we could to redress the balance for single employees battling against a powerful establishment, often with the law behind them but unable to bear the pressure of finances and the stress that such cases can bring. For these reasons, I say to my noble and learned friend the Minister that it is necessary to keep this in perspective, even if we want to bring it in line with our overall judicial system.

[Lord Ponsonby of Shulbrede (Lab)]

My Lords, in his opening remarks, the noble and learned Lord said that this is not a backdoor to reduce the lay members within the judicial system. He went some way to say how much judges appreciate working with lay members, who are sometimes experts in other fields. The two noble Lords who spoke before me raised concerns on exactly this issue.

Although my brief is to accept the proposals of the Government without reservation—which I do, of course —I have reflected on my own experience. A number of magistrates sit on a number of tribunals; I can think of about 10 colleagues who do this, as it is quite common. Some sit on employment tribunals and some on other tribunals. Sometimes they are experts and sometimes they are lay people in other contexts. I remember a couple of separate discussions, with a magistrate who was a trade unionist and with magistrates who were employers, all of whom sat on these employment tribunals and were sceptical about the changes foreseen by these regulations. That scepticism was about money-saving and about trying to get consistency within the system when there is no merit beyond that consistency itself. There needs to be more of a reason than just consistency to make a change such as this. The noble and learned Lord gave us some reassurances in his opening, but there is scepticism out there nevertheless.

The question that both the noble Lords asked is: after these regulations go through, what criteria will the Lord Chancellor look at, if and when proposals come for more tribunals to be determined by single judges sitting alone, rather than by a panel of three? Will there be a process to review this? We heard from the TUC and I gave my personal anecdotes about colleagues with whom I have sat, and it seems to me that the justification of consistency alone is not sufficient. There needs to be a more profound justification to make this change. I look forward to the noble and learned Lord’s response.

[Lord Bellamy (Con)]

I thank noble Lords for their comments. On the mechanics of this—I will be corrected by those sitting behind me if I get this wrong—if your Lordships approve these regulations, that in itself delegates to the Senior President of Tribunals the power to decide on composition. There is no further step by the Secretary of State; he simply delegates it, as he is empowered to do under the 2002 Act.

It is then for the Senior President of Tribunals to issue a practice direction setting out how he proposes to exercise those powers. There have already been some consultations in relation to that, which are possibly those referred to by the Trades Union Congress. The Senior President has intimated that, until he has the power to make the practice direction, it is not appropriate for him to make the result of the consultation public. I am sure we will know that in due course, but it is not too difficult to speculate, as a lot of reservation has been expressed about the very point that your Lordships are making. This point is not new; it is in the public domain. In effect, it is: “Don’t tinker with the well-established working relationships of employment tribunals”. That is thoroughly understood.

The Senior President of Tribunals does this job with all tribunals across the piece. Employment tribunals are special up to a point, but this is a job that he does and, if I may say so, we have to acknowledge that we have a wise and experienced president, as I am sure we will in the future. I am equally sure that he will exercise those powers responsibly.

Judicial Pensions (Remediable Service etc.) (Amendment) Regulations 2023

Lord Ponsonby of Shulbrede Excerpts

Wednesday 10th January 2024 Grand Committee

[Lord McNally (LD)]

My Lords, it is a great pleasure to follow the noble and learned Lord, Lord Bellamy. I held his position in the Government between 2010 and 2013. I became Minister of State at Justice with the now noble Lord, Lord Clarke—Ken Clarke—as Lord Chancellor. One of our first visits was to go across Parliament Square to pay a courtesy call on the Supreme Court. He was, of course, in his element as a QC and a former Home Secretary, but I was filled with trepidation when soon after we arrived three Supreme Court judges bore down on me, clearly to seek some discussion on some high point of law—some difficult and abstruse point. I need not have worried: what they wanted to press me on was judicial pensions. There was some passion in that. I remember one of the first stages in the coalition Government, which probably ended up in the 2015 Act, was to try to address the various anomalies and uncertainties in judicial pensions, so it is with a sense of closure that I come this afternoon to support what the noble and learned Lord memorably described at an earlier stage as

“44 pages of the densest technical complexity one could imagine”.—[Official Report, 15/6/23; col. GC 375.]

Why am I not surprised that that should be the legislation dealing with judges’ pensions?

I am sure that we share with the Minister the hope that this is the final tweak to the regulations. In voicing our support from these Benches, I ask him how the regulations fit in with the more general objectives of judicial reform. Will we see a judiciary—particularly a senior judiciary—more diverse in social, gender, ethnic and educational background than hitherto has been the case? Does the Minister agree that it is important that our legal system should as much as possible reflect the society it serves? There is much to admire in the intellectual quality, integrity and independence of our judiciary. Its members are most certainly not “enemies of the people”, but they must not be seen as a Brahmin caste, separate from society as a whole.

The direction of travel in recent years has been slow but steady. I hope that a sensible and secure pension scheme will underpin the flexibility and social mobility necessary to retain confidence in and respect for our judiciary.

[Lord Ponsonby of Shulbrede (Lab)]

My Lords, I too remember when the noble Lord, Lord McNally, had his time in office as a Minister of State.

[Lord McNally (LD)]

The noble Lord was a lot of trouble.

[Lord Ponsonby of Shulbrede (Lab)]

Well, one of my roles is to be a lot of trouble—although I will not be a lot of trouble in this particular debate.

The noble Lord spoke about the Supreme Court judges talking with passion about judicial pensions. As a lowly magistrate, I have sat in magistrates’ retiring rooms with district judges, and I can say that they talk with equal passion about judicial pensions—I have heard about it for a number of years. A number of them are of course part-time district judges, and the matter is of great importance to them.

The noble Lord said that he approaches this debate with “a sense of closure”. I think that everybody hopes for a sense of closure on this issue, so the first question that I put to the Minister is: are we right to think that this is the last time that we will hear about this issue? It would be interesting to hear his reflection on that.

Previously when I have taken part in these debates, I have had sitting behind me my noble friend Lord Davies of Brixton, who is an actuary and an expert on these matters. The particularly interesting question that the noble Lord, Lord McNally, raised was on how these pension reforms will fit in with the wider objectives for the judiciary as a whole in building diversity and flexibility and other desirable objectives, which will affect pension entitlements, one way or another. If the Minister could say something about this in the wider context, that would also be of interest.

I have a further question about the likely timetable for implementing this remedy. Is it already under way and when might it be complete? A final question is on whether any judges would need independent advice on whether they should accept these proposals. Is it their responsibility to get their own independent advice? I do not know how that works. Is there an expectation that judges should take independent advice before receiving these pensions?

Other than that, we clearly support the measures as far as they go. I look forward to the Minister’s response.

[Lord Bellamy (Con)]

My Lords, I thank noble Lords for those remarks. I respectfully tiptoe in the distinguished shoes of the noble Lord, Lord McNally—let me make it absolutely clear: he was one of the most astounding Ministers in the ministry for many a long year. The Government entirely accept and support the sentiments he expressed that the judiciary should reflect as fully as possible the society it serves. There is still a way to go on that, and we may well touch on it in the debate on the next statutory instrument, where I have some observations to make on that very point.

All I can say from a pensions perspective is that it is important to be able to attract very good people into our judiciary. We increasingly call on them to do very difficult and demanding work. The judicial pension scheme is aimed at being a secure and attractive scheme sufficient to ensure that we attract a competent, robust and diverse judiciary. It is difficult for the Government to go beyond that but, clearly, this has to be a part of the general move to make sure that we have a sufficiently diverse and competent judiciary. As far as that general point is concerned, it is indeed a matter of ongoing concern to the judges that that should be the case, as both noble Lords said.

In relation to the points raised by the noble Lord, Lord Ponsonby, I hope—again—that we will now see the end of these processes and that we have now got it right. As your Lordships will appreciate, it is a fiendishly complicated area. It has been complicated by some quite intense litigation in the background. Judges may well want to take independent advice, but the judiciary has shown no lack of either independence or knowledge about the pension arrangements in the various fora in which that has been debated. It is partly because of the detail into which the Government have had to go that these statutory instruments have been introduced. I understand that the timetable for implementation is in the next few months. It is rolling forward and there should be no further difficulty; we very much hope that the end is in sight.

I hope that I have answered your Lordships’ questions and points. I see that the noble Lord, Lord Ponsonby, is quickly refreshing his notes. I commend these regulations to the Committee.

Arbitration Bill [HL]

Lord Ponsonby of Shulbrede Excerpts

Second reading committee
Tuesday 19th December 2023 Grand Committee

[Lord Ponsonby of Shulbrede (Lab)]

My Lords, the noble and learned Lord, Lord Bellamy, introduced the Bill by saying “Everyone in the Room knows more about this than me”. There is an exception—I suspect that I know less about it than any other noble Lord here.

I am the only speaker in this debate who is not a lawyer. However, I have employed a lot of lawyers in my time and my business experience in employing them was in trying to avoid litigation or arbitration. I was very much of the view that it was not a route that would be beneficial to the businesses which I was involved with, but it was very welcome that that resource was there. Litigating or arbitration within England and Wales was trusted by all international parties with which I was dealing. There was never any question about the jurisdiction in which any future disputes would be agreed and it was always an easy thing to agree with international colleagues.

My noble friend Lord Hacking gave us a tour de force on the historical context. He took us all the way back to 1698 and talked about his early days in this House. I have been around here quite a long time too and remember very well Maurice Peston, Peter Fraser and a number of the other noble Lords to whom he referred when the 1996 Bill was being considered, although I do not go back as far as 1979.

The noble and learned Lord, Lord Etherton, opened by congratulating the Government on the Bill, as I think everyone did. However, it is fair to say that all noble Lords, while congratulating the Government, raised particular issues. The noble and learned Lord referred to anti-discrimination procedures, the Equality Act and the appointment of arbitrators. I will be interested to hear what the Minister has to say on that.

The noble Lord, Lord Verdirame, spoke in a wider context, if I can put it like that, about how English and Welsh arbitration fits within an international framework. I have been on the edges of those types of procedure and they have been wholly unsatisfactory, from my point of view. There is an international frame- work for dealing with matters when they cross boundaries and, when there are disputes about jurisdiction, it can be an extremely lengthy and expensive procedure in which to be involved. When there are these jurisdiction issues, I would be interested to know whether the Bill may, for example, go some way to resolving them, because I understand that they can be difficult.

The noble and learned Lord, Lord Hope, asked a particular question about the Scottish position on arbitration. Again, I will listen to the Minister’s response on that.

The noble Lord, Lord Faulks, raised Nigeria v P&ID Ltd. This case was referred to in the Explanatory Notes and I had a look at that judgment. It seemed that the concern raised within it by Mr Justice Knowles was whether going through the arbitration process itself can be used as a way of money laundering. That is a concern. The noble Lord asked a number of questions of the Minister on whether, in that set of circumstances with those particular concerns raised, the Bill will go any way to addressing those concerns or whether it is such a particular set of circumstances that it is not appropriate for this Bill. I thought that was an interesting question.

The noble and learned Lord, Lord Thomas, essentially raised the same point about making sure, to quote his words, that London arbitration is seen as fair, honest and clean. If it is anything less than that, it will undermine its competitiveness and its standing in the world.

We then had the two speakers in the gap, the noble and learned Lords, Lord Hoffmann and Lord Mance. They both spoke with huge amounts of expertise and raised their own particular technical points, which I am sure the Minister will answer fully. The noble Lord, Lord Beith, concluded that he agreed that this is an important and well-prepared Bill—a model, to use his word, of how Bills should be handled in this House.

The Labour Party obviously supports this Bill. The only point I have for the Minister is that none of the measures introduced in the Bill can be easily measured. Will there be any sort of assessment, in a year or two’s time, of whether the changes introduced are working satisfactorily and whether this may need to be returned to in the next few years? Whether the changes are actually having any impact would not seem to be easily measured but, other than that, we support the Bill.

Victims and Prisoners Bill

Lord Ponsonby of Shulbrede Excerpts

2nd reading
Monday 18th December 2023 Lords Chamber

[Lord Ponsonby of Shulbrede (Lab)]

My Lords, I open by thanking the Minister for the tone in which he introduced the Bill. It has been widely anticipated, we have all received a huge amount of lobbying on it, and I hope that we can consider it in the same tone as we have had this debate here today. The Bill covers a great deal of ground and there has been a fair amount of consensus displayed in today’s debate.

As my noble friend Lady Thornton pointed out, we have been waiting a long time: the Bill was originally in the 2015 Conservative Party manifesto, since when there have been government consultations, reviews and announcements and extensive revision in the other place. Many of the advocacy groups which have contacted me and others see the Bill as an opportunity to better embed victims at the heart of our justice system. In fact, every speech I have read on the Bill, from the original Lords Chancellor’s introduction to those of opposition Members of Parliament and Peers here, shares that ambition, and it is the role of the House to look to introduce further improvements.

I also congratulate the noble Lord, Lord Carter of Haslemere. He has huge experience in this matter. Not only do I have no doubt but I do not think anybody who has taken part in this debate will have any doubt that he will make a substantial contribution to the work of this House.

I am taking my structure in dealing with the Bill from the Lords Library Note, which I found to be quite helpful. In that, there are six main provisions, which I will go through, and I will refer to a couple of other matters as well. The first provision in the Library Note is

“placing key victims’ code rights into law and reviewing compliance with the code”.

My noble friend gave the statistics from the latest survey from the office of the Victims’ Commissioner, and those statistics were indeed disheartening. Putting code rights into law is surely the minimum required and we will look at what extra we can do to ensure those minimum requirements are met.

A number of noble Lords, including the noble and learned Lord, Lord Thomas of Cwmgiedd, my noble friend Baroness Chakrabarti, the noble Baronesses, Lady Burt and Lady Coussins, the noble Lords, Lord Hogan-Howe and Lord Russell, and others, spoke about adding teeth to this element of the Bill, changing the culture and the money available to make the victims’ code and rights of tangible benefit to victims of crime, rather than aspirational. My noble friend Lord Bach, a former police and crime commissioner, went into interesting detail on tangible things that can be included in the Bill to encourage code compliance. He also said that legal justice boards should be put on a statutory footing, which is an issue we might want to examine at a later stage.

The second point in the Lords Library Note refers to changing the requirements for making victim information requests during criminal investigations. All noble Lords have had a lot of lobbying on this matter—for example, about whether rape victims’ therapy notes should be available to the prosecution. The Minister referenced that point in his opening speech, as did my noble friend Lady Thornton. There are many other examples detailing how information is made available to victims.

Victim information requests and victim support surely go to the heart of how the criminal justice system treats victims, while maintaining confidence in the fairness of the trial itself. Clause 15 seeks to standardise of the role of IDVAs and ISVAs. While this is welcome, we had a number of contributions from noble Lords about extending this to children. I and other noble Lords have had a lot of lobbying from children’s advocacy groups, which regard the Bill as excessively adult-focused. They are looking for the Bill to acknowledge that children need particular support when they are victims of or witnesses to crime. The speech by the noble Lord, Lord Meston, was particularly interesting on this matter. I absolutely acknowledge his expertise as a family court judge, and he made some interesting points about how children need to be supported as they go through those difficult processes, in not only the criminal court but the family court. Other noble Lords, including the noble Baronesses, Lady Gohir, Lady Finlay and Lady Benjamin, my noble friends Lady Lister and Lady Warwick, and the noble Lord, Lord Hampton, all spoke with great authority about beefing up the support for children in the Bill. We have an opportunity, and we should take it.

The third point in the Lords Library Note concerns requiring a compensation body to be established within three months of the Bill receiving Royal Assent, in order to deliver compensation to victims of the infected blood scandal. We welcome the Government’s climbdown on this matter, and particularly that the change was introduced in the other place, which makes it even more likely to become law. I understand that there was a Statement earlier today, which will be repeated tomorrow and handled by the Cabinet Office. The noble Baroness, Lady Meacher, urged the House to consider filling the gaps in compensation in the Bill; she may well bring up that issue at later stages. The noble Lord, Lord Wigley, and the noble Baroness, Lady Finlay, spoke about the position of Welsh victims, who, of course, would have been infected before devolution.

The fourth point in the Library Note addresses Part 4 of the Bill, which introduces various parole system reforms, including allowing the Secretary of State to refer prisoner release decisions for top-tier offenders to the Upper Tribunal or High Court. While I welcome the Government’s amendments to the Parole Board provisions in the Bill, I remain baffled as to why the Lord Chancellor would want to retain these powers for himself. Surely the Lord Chancellor’s involvement in Parole Board cases will create delay and uncertainty for victims and offenders, and a political spotlight on any particular case will not help in the reaching of a just decision.

Many noble Lords spoke about the provisions of Part 4. Although all noble Lords spoke with great authority, I will focus on the comments of the noble Baroness, Lady Prashar, who has particular knowledge of this point. She asked, rhetorically, why the system was broken and needed fixing. She quoted the figures on the extremely low failure rate—when people go on to reoffend—and raised a very fair point. I simply do not understand why a Lord Chancellor would want to be involved in these decisions. It will not help the reaching of just decisions.

My noble friend Lord Bach asked why it would be the Upper Tribunal and the noble and learned Lord, Lord Thomas, asked why we do not make the Parole Board a tribunal itself, which is an interesting idea. My noble friend also asked, if the Lord Chancellor is to make these decisions about whether to refer matters, who will actually do the work—will it be him or a civil servant? The Minister should answer that question.

The fifth point in the Library Note is around amending the process for the termination of licences for those serving imprisonment for public protection sentences. A number of noble Lords welcomed this; no doubt, we will hear more from the noble Lord, Lord Moylan, at a later stage if he tables amendments, which I would welcome and look at constructively.

The sixth point in the Library Note concerns prohibiting whole-life order prisoners from marrying or forming a civil partnership. While this is perhaps the smallest measure in the Bill in respect of the number of people affected, my personal view is that it is difficult to escape the conclusion that it is a petty measure that will do no good and may do harm. The Minister referred to a particular case in his introduction, but I am not sure that one difficult case is enough to justify changing the law. We are constantly told in debates around sentencing powers and keeping prisoners in custody about the importance of hope and relationships. It is difficult to see how this small measure will enhance the ease with which a prison regime can be managed.

We have heard a number of powerful speeches on independent public advocates, including from my noble friend Lord Wills, who of course has a great background of knowledge on this matter, the noble Baroness, Lady Sanderson, the right reverend Prelate the Bishop of Manchester and my noble friends Lady Kennedy and Lord Bach—he also asked about legal aid, which I am sure will be raised in Committee.

The noble Baroness, Lady Bennett of Manor Castle, and the noble and right reverend Lord, Lord Harries of Pentregarth, raised restorative justice, which is absent from the Bill. We have had many debates on it in previous criminal justice Bills and it is embedded in the work of the Probation Service and the Youth Justice Board. I would be interested if the Minister could say something about the continuing work of developing restorative justice in our wider Probation Service.

As I turn to Clauses 49 to 52, I can do no better than quote Sir Robert Neill, chair of the Commons Justice Committee:

“Whatever one’s view of the Human Rights Act, there is no evidence that this is a problem in such cases. In fact, the evidence we heard from practitioners, from both sides, is that it can be helpful to have … regard to section 3 in these hearings. These clauses seem to be trying to solve a problem that does not exist, and I wonder whether we really need them. It is perfectly possible to have a robust system that still complies with section 3. This is a needless distraction that sends the wrong signal about a certain desire to pick unnecessary fights, which I know is not the current Secretary of State’s approach”.—[Official Report, Commons, 15/5/23; col. 604.]


I think he says it all. Many noble Lords have expressed similar concerns, so I look forward to the Minister’s justification for disapplying parts of the Human Rights Act.

Sentencing Act 2020 (Amendment of Schedule 21) Regulations 2023

Lord Ponsonby of Shulbrede Excerpts

Tuesday 12th December 2023 Grand Committee

[Lord Beith (LD)]

I am very grateful to the Minister for his introduction and his helpful and illuminating response on the matters that I raised in my intervention. As he said, these regulations carry out the intention to address murder related to domestic violence and coercion. The intention was expressed in Schedule 23 to the Sentencing Act 2020 and follows the Clare Wade report. We support these provisions, which take into account the context of controlling and coercive behaviour in relationships, treating them as an aggravating factor in sentencing for murder or, in the case of a murder by a victim of a controlling relationship, as a mitigating factor.

The regulations introduce the concept of overkill—a word which bothers me as much as it did the Minister as being inadequate to describe the use of violence in excess of what would have been required to kill the victim—as an aggravating factor, not least because of the deeply distressing impact of some of these horrific murders on victims’ families.

However, I have some concerns. I begin with those raised by the Secondary Legislation Scrutiny Committee, one of which has been referred to by the Minister. The reference to consultation with the Sentencing Council blandly and misleadingly fails to mention the council’s concerns, including about the wording of the overkill provision. The Explanatory Memorandum should explain using all the relevant facts. It should not obscure by omission. I presume the revised wording has met some of the council’s concerns, but I would be grateful for some clarification of that as it was raised quite forcefully by the scrutiny committee.

The scrutiny committee also questioned the failure to include other provisions proposed in the Government’s response to the Wade review. We had a helpful explanation from the Minister that things are moving on and that the new Lord Chancellor has indeed taken up the concerns and included them in draft legislation. Indeed, I was a bit surprised by the Government’s defence that the earlier omission of some of the recommendations was because these statutory instruments were an interim response, but I will not criticise further because there is obviously progress on that front. I rather agree with the committee that

“in general, it is better policymaking to make all related changes at the same time”.

More than that, I argue that it makes for more coherent legislation if you put things in the same piece of legislation.

In supporting these provisions, I must, however, make clear what they cannot do. In the first case, they cannot and should not remove the judge’s ability to take into account all the relevant circumstances of the case when passing sentence. Justice should not be blind or deaf to the many different issues that may emerge in evidence or in mitigation. The judge must justify deviation from the guidelines but must be free to do justice.

Secondly, we should not deceive ourselves or the public with the pretence that these provisions will have a powerful deterrent effect. Justice has many purposes, including punishment and rehabilitation, but deterrence is scarcely a major factor for this kind of crime. Someone who, having used enough violence to kill the victim, carries on to inflict more violence is not going to think, “Oh, I’ll get a slightly longer sentence, won’t I, because of that statutory instrument?” That is not the real world; it is not the mindset of those who would carry out such terrible and vengeful acts.

That brings me to my final point. For the murders we are talking about, the murderers need in many cases to be imprisoned for long periods for public safety, including the safety of other potential victims of the same kind of crime, but adding a few more years to the sentence may only marginally, if at all, add to public safety and will do nothing to protect safety when they are eventually released. The extra years are added to recognise the greater severity of the offence, and we add them because they are almost the only means we know of recognising that severity and marking it with a more severe penalty. It would appear ethically bland if we treated different murders in exactly the same way, but what we actually do is allocate significant resources to keeping somebody in prison for a bit longer in a hopelessly overcrowded prison system, in which resources are desperately needed for rehabilitation to reduce the risk of reoffending when offenders are released.

As a society, we need to look for more effective ways of recognising and challenging crimes of varying degree and asserting that they will not be tolerated, otherwise we are condemned to endless sentence inflation because sentences for one crime affect sentences for another. It will not be long before comparison is made between these crimes and some other crimes and an argument for longer sentences for them. We have a problem as a society in finding ways of recognising the greater severity of some crimes than others that do not simply commit resources in an ineffective way when those resources are needed to secure public safety.

As I said, we support these provisions, but room must be left for judicial discretion and there must be some recognition that we do not cure crimes simply by passing statutory instruments such as this.

[Lord Ponsonby of Shulbrede (Lab)]

My Lords, I, too, thank the Minister for introducing this statutory instrument. The Labour Party supports these regulations.

As we have just had explained to us, the instrument introduces two additional statutory aggravating factors and one additional statutory mitigating factor in the determination of the minimum term relating to the mandatory life sentence for murder. The new aggravating factors are the fact that the offender had repeatedly or continuously engaged in behaviour towards the victim that was controlling or coercive and the use of sustained and excessive violence towards the victim. The new mitigating factor is the fact that the victim had repeatedly or continuously engaged in behaviour towards the offender that was controlling or coercive.