Probate Service

Debate between Lord Ponsonby of Shulbrede and Lord Keen of Elie

Monday 27th July 2020 Lords Chamber

[Lord Keen of Elie [V]]

My Lords, in fact, we have taken steps to simplify the probate process. We are replacing affidavits with a statement of truth, accepting electronic-type signatures on probate forms, and allowing legal representatives to sign legal statements on behalf of clients. These steps will simplify and accelerate the process.

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

My Lords, there has clearly been a lot of adverse press and we have heard from other noble Lords about personal experiences where the probate service has not performed as we would all wish. What confidence does the Minister have that the probate service is performing as well as he claims it is? What monitoring does he think is appropriate to put in place so that we can all have confidence that the probate system is fit for the present large increase in Covid-related deaths that we have seen?

[Lord Keen of Elie [V]]

My Lords, in late 2019 we saw a very clear and discernible improvement in the turnaround of probate applications and probate grants. As I indicated, in January to March this year the average waiting time for a grant of probate was about four weeks. Some, of course, are simpler than others. Indeed, where written rather than digital applications are made, there is greater room for error and therefore of delay in respect of these matters. However, we are monitoring the system. That is why we can give figures on the turnaround on probate grants. We are training additional staff as well. We appreciate that this will be required, given that there will be an increase in probate applications over the summer, reflecting the increased death rate as a result of the Covid pandemic.

Royal Commission on Criminal Justice

Debate between Lord Ponsonby of Shulbrede and Lord Keen of Elie

Wednesday 15th July 2020 Lords Chamber

[Lord Keen of Elie]

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

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

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

[Lord Keen of Elie]

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

Lammy Review

Debate between Lord Ponsonby of Shulbrede and Lord Keen of Elie

Thursday 2nd July 2020 Lords Chamber

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

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

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

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

Prisoners (Disclosure of Information About Victims) Bill

Debate between Lord Ponsonby of Shulbrede and Lord Keen of Elie

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

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

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

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

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

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

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

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

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

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

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

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

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

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


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

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

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


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

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

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

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

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[Lord Ponsonby of Shulbrede [V]]

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

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

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

[Lord Keen of Elie]

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

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

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

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

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

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[Lord Ponsonby of Shulbrede [V]]

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

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

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

[Lord Keen of Elie]

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

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

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

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

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

“information pertaining to the application”,

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

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

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

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

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

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

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

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

Prison Sentences

Debate between Lord Ponsonby of Shulbrede and Lord Keen of Elie

Monday 29th June 2020 Lords Chamber

[Lord Keen of Elie]

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

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

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

[Lord Keen of Elie]

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

Prisoners (Disclosure of Information About Victims) Bill

Debate between Lord Ponsonby of Shulbrede and Lord Keen of Elie

Committee stage & Committee: 1st sitting (Hansard) & Committee: 1st sitting (Hansard): House of Lords
Wednesday 20th May 2020 Lords Chamber

[Lord Ponsonby of Shulbrede (Lab)]

My Lords, I am winding up for the Opposition on this short but very interesting debate. I want to open by addressing the point made by my noble friend Lord Blunkett. He concluded in his support for this amendment that we are asking the impossible of the Parole Board. Although I recognise his immense experience, I question whether that basic assumption is true, and I take up the point just made by the noble Baroness, Lady Barker, that we entrust the Parole Board with these extremely difficult decisions. All the members of the board who I have ever met are extremely responsible people. My understanding of this amendment is that it would require two medical opinions, after which the Parole Board would make its decision, and it is right that the Parole Board should have that responsibility.

My main objection to the amendment is that by making it inevitable in some way that people will find it impossible to get out of prison, they could be tempted to knowingly give wrong information and to do so as a form of torture, if you like, because they know that it will cause more distress to the parents involved. We should not give them that power. We should retain the responsibility and the subjective judgment of the Parole Board in making these difficult decisions.

I also listened to the noble and learned Lord, Lord Garnier, and the response to his points by the noble and learned Lord, Lord Mackay. They are both extremely experienced lawyers. I must admit that I was initially attracted to the solution proposed by the noble and learned Lord, Lord Garnier, but I listened with interest to the objections of the noble and learned Lord, Lord Mackay, and his method of solving the conundrum before us.

This amendment is not appropriate for the Bill, and I think we should pass the Bill as amended. While I acknowledge the point made by my noble friend Lord Adonis questioning whether the Bill is necessary, I think it is right that the practice of the Parole Board is put into statute, otherwise there may be other legal mechanisms of challenging the Parole Board’s decisions if it is adopting this practice but is not supported by proper legislation being in place. On that basis I would reject this amendment. We will consider the other amendments in due course, but largely speaking the Bill should pass unamended.

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

I thank noble Lords and noble and learned Lords for their contributions to the debate in Committee —[Inaudible.]

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[Lord Ponsonby of Shulbrede]

My Lords, as the noble Lord, Lord German, has just said, there are essentially two groups within this single group of amendments. The first was introduced by the noble Baroness, Lady Bull, on mental capacity and making sure that the Mental Capacity Act 2005 is properly taken into account in the Parole Board proceedings. I was persuaded by the argument of the noble Lord, Lord Thomas of Gresford, that while we should not do piecemeal reforms of the Parole Board system—I anticipate that the Minister will say there will be a larger-scale review of the Parole Board system—this aspect of the mental capacity of the offenders who come before the board should nevertheless be taken into account.

The noble Baroness, Lady Bull, was very persuasive in her speech. She alluded to my noble friend Lord Bradley’s report, in which he pointed out that it is unknown how many people in our prisons have mental disorders. As the noble Baroness, Lady Bull, said, it should be no surprise that quite a lot of prisoners’ mental capacity deteriorates because of their time in prison, for the reasons she gave in her speech. The other point she made was about dementia. We are often dealing with people on very long prison sentences, and dementia is becoming an ever more real issue. For those reasons, I support the amendments in the name of the noble Baroness, Lady Bull.

The amendments in the second part of this group were introduced by the noble Lord, Lord Thomas of Gresford, who spoke about Newton hearings as a possible way of resolving this conundrum. I have some experience of Newton hearings in a much lower capacity in magistrates’ courts. I regularly have Newton hearings, trying to resolve whatever the issue of the day is. My experience is that, in practice, it is quite difficult to narrow the issues and look just at the issue in dispute in a Newton hearing. It is very often the case that the wider events surrounding the events as a whole are brought into the case, even when one is trying to narrow the issue.

While I understand the suggestion and think it interesting, I am also mindful of the points made by the noble and learned Lords, Lord Mackay of Clashfern and Lord Thomas, that the sentencing judge will have heard the whole case in any event and can explain their view on the reason the offender has not disclosed the location of the body and make it quite explicit whether there is an uplift to the tariff because of the way the offender has behaved. I am open-minded on that point; I have just raised some questions that arise from my own experience in the lower courts.

Nevertheless, these amendments are interesting and constructive. I hope that, when he comes to reply, the Minister will treat them in that way.

[Lord Keen of Elie]

I thank noble Lords and noble and learned Lords for their contribution to the debate prompted by these amendments. I begin with a number of general remarks which may well be familiar to noble and learned Lords, but perhaps not to everyone.

I believe there was a reference at one stage of the proceedings to early release, and I emphasise that we are not dealing here with any issue of early release. As I mentioned in response to observations from the noble Lord, Lord Adonis, we are generally dealing with a life sentence or extended sentence, and when we come to look at that, we can identify two elements—in what I shall refer to as a life sentence. There is the punitive element, which is the tariff fixed by the court, and a preventive element, which is the issue addressed by the Parole Board in the context of public protection. The Parole Board’s role comes into play only at the end of the tariff—the punitive element of the sentence—at which point the Parole Board has to determine whether there should be a continuation of custody or a release under licence, having regard to the public protection test.

The noble and learned Lord, Lord Thomas, was quite right in observing that in most, if not all, of these cases, the judge will have made findings in fact that will address, among other things, whether there has been disclosure of a victim’s whereabouts. If that becomes an issue, there is scope for what is termed a Newton hearing. But generally, the trial judge—whether after plea or after trial—will be in a position to make findings in fact on that issue, and to then reflect those findings in fact in the tariff he imposes upon the individual in question when applying the punitive element of the sentence. I emphasise that because the noble and learned Lord, Lord Thomas, made the point that there should not be punishment again. That is quite right: it is not the role of the Parole Board to punish. The role of the Parole Board is to determine, by reference to the public protection test, whether at the expiry of the tariff it is appropriate for an individual to be released from custody, albeit under licence.

That takes me to an observation of the noble and learned Lord, Lord Hope, who asked whether the object of this legislation is to delay release as a punishment. The answer is clearly no. The issue being addressed is in the context of public protection, and whether the failure to disclose indicates to the Parole Board that there is a very real and material question about public protection, and whether someone should be retained in custody. Indeed, if the object of this legislation was to punish, it would potentially be in breach of both Article 5 and Article 7 of the European convention. I stress that this is not the object of this legislation at all.

I turn specifically to the amendments tabled—first, to those in the name of the noble Baroness, Lady Bull, which really have two limbs. The first is covered by Amendments 2, 7, 10, 13 and 16, and the second by Amendment 4 and subsequent amendments. The first limb would ensure that the Bill’s provisions apply only to prisoners who are “able” to disclose relevant information about the location of a victim’s remains but had not done so. The second limb would particularise a prisoner’s mental capacity as one of the possible reasons for non-disclosure.

The Bill in its current form affords the Parole Board a wide scope to subjectively consider the circumstances of a prisoner’s non-disclosure. The test is broadly drafted to give the Parole Board, an independent judicial body with experience of assessing risk and evidence, sufficient flexibility to take all circumstances into account when making a determination about non-disclosure, including the ability, whether mental or physical, of an offender to disclose.

The amendments as drafted would confine the operation of the provisions to prisoners deemed able to make such a disclosure but who had not done so. However, there may be cases where an offender has had ample opportunity to co-operate with the police or the authorities over many years to reveal a victim’s whereabouts but has refused to do so. If such an offender later became unable to disclose—by reason of age or mental illness, for example—the provision of these amendments would not apply to that offender and the board would be unable to consider a previous refusal to co-operate in its assessment of that prisoner’s risk, yet these previous persistent refusals may well be considered as reflecting quite materially on the risk that the prisoner posed to the public in the event of release on licence.

The current Bill avoids such difficulties by allowing the Parole Board to consider all possible reasons in its view to explain non-disclosure, including considering historical refusals. That flexible approach is underlined by Clause 1(3), which makes clear that the imposition of the statutory duty does not in any way limit other matters that the board must or may take into account when conducting such an assessment.

The existence of mental health difficulties or a lack of mental health capacity would doubtless be a relevant circumstance to be taken into account, but there would also be other relevant circumstances. By not specifically referring to particulars in the Bill, we are not giving some more significance than others; we are instead allowing the Parole Board to use its expertise in how it approaches such cases. It is therefore for the board itself to take a subjective view of what the reasons might be, and then it is for the board to decide what bearing that information may have on the subsequent assessment of suitability for release, which is the relevant test that the Parole Board has to address.

We have deliberately avoided any delineation in the Bill of what the reasons for non-disclosure may be, to preserve this flexible and subjective approach. Noble Lords have correctly identified that a prisoner’s mental state is likely to be a significant factor in assessing reasons for non-disclosure but there may also be other reasons, such as, as I mentioned, geographical change, mental impairment or issues of mental capacity that may not have occurred at an earlier point but will still be relevant to a current assessment. In these circumstances, I will be inviting the noble Baroness to withdraw this amendment.

I move on to the amendments tabled by the noble Lord, Lord Thomas of Gresford, which specify that where a Newton hearing has been carried out to ascertain certain disputed facts—generally where there has been a guilty plea, but it may take place after a trial—that should be considered by the Parole Board. The short point that I would make is that these are matters that it will be within the competence of the Parole Board to consider, and the board can call for all material pertaining to sentencing, including the terms of any Newton hearing that may have taken place. I apprehend that what the noble Lord may have in mind is perhaps to encourage judicial activity when sentencing in these cases to ensure that they address the non-disclosure of the whereabouts of a victim. However, as the noble Lord, Lord Thomas, observed, that is something that will invariably be taken into account by a trial judge in fixing a tariff for the sentence that he is going to impose.

Feltham Young Offender Institution

Debate between Lord Ponsonby of Shulbrede and Lord Keen of Elie

Wednesday 24th July 2019 Lords Chamber

[Lord Keen of Elie]

My Lords, Feltham A has had a progressive regime in place since early May to account for the fact that the prison is able to deploy only about 100 staff against a target of 151, due to temporary absences. Given the limited staff available, the progressive regime is designed to provide young people with greater consistency and predictability by laying down a weekly timetable whereby they are facilitated with a scheduled day and evening each week with a guaranteed minimum commitment from staff to them—that is, time out. However, it is fair to say that the regime has been disrupted, and we are now moving away from the progressive regime, with an increased use of other means of delivering out-of-cell time. I cannot give precise figures because it is in flux at present.

[Lord Ponsonby of Shulbrede (Lab)]

My Lords, I visited Feltham just over a year ago. At that time, I was told by the prison officers who showed me around that the police unit based at Feltham had been withdrawn; as I understand it, the unit was looking at gangs within Feltham and how they relate to the wider community. Was what I was told correct? Was the police unit withdrawn, and might this have had an impact on the deterioration in behaviour that we have seen in recent months?

[Lord Keen of Elie]

My Lords, I am not aware of the withdrawal of a police unit from Feltham and therefore cannot comment on that point. But I undertake to write to the noble Lord and I will place a copy of the letter in the Library.

Courts and Tribunals (Online Procedure) Bill [HL]

Debate between Lord Ponsonby of Shulbrede and Lord Keen of Elie

Committee: 1st sitting (Hansard): House of Lords
Monday 10th June 2019 Lords Chamber

[Lord Keen of Elie]

With respect to my noble and learned friend, my understanding of the position is that the rules will require that certain forms of action—for example, small debt action—should be commenced under the simplified Online Procedure Rules by way of the digital portal, whether you go through electronically or, as I mentioned before, by way of a paper application. However, once that process is in train, there will be a retained judicial discretion to decide whether the case should remain under the simplified online procedure or whether it would be more appropriate for it to be removed from that procedure and to proceed under the ordinary Civil Procedure Rules to an oral hearing.

[Lord Ponsonby of Shulbrede]

My Lords, I thank all noble Lords who took part in this short debate, which has covered quite a wide area. I understand the point made by the Minister about these being civil actions for relatively small amounts of money, and not having the discretion as regards initiating proceedings on paper if that were the case. Although this is the main focus of the Bill now, it has wider connotations—a point made by the noble Earl, Lord Listowel. Some of us, including myself, are thinking about this from other perspectives such as the family jurisdiction.

When addressing Amendment 4, the noble Lord, Lord Marks, made an interesting point, asking what happens when both parties agree to proceed with online proceedings. I thought he intimated that there should be an expectation that they would indeed go ahead with online proceedings. Certainly, from the perspective of somebody who sits in the family jurisdiction, I would say that that would not be appropriate. Whether matters go ahead either online or otherwise should be retained as a judicial decision because it is not unusual for parties to agree to something that is inappropriate in the family courts; the court needs to take a separate view.

Having said that, I thank the Minister for addressing the points; I suspect we will return to them at a later stage. I beg leave to withdraw my amendment.

--- Later in debate ---

[Lord Keen of Elie]

To clarify, I believe I said that many housing issues are currently governed by the Civil Procedure Act 1997. They are therefore subject to civil procedural rules and could, in turn, be subject to rules introduced by the OPRC for digital access. There is no present intention to address that in the context of housing. I went on to add that, at present, there is an online procedure for some forms of housing claim, such as possession claims, which can be made through the relevant website. I emphasise that housing cases fall within the wide remit of this legislation, but there is no present intention to embrace them within the OPRC.

[Lord Ponsonby of Shulbrede]

My Lords, I thank noble Lords who have spoken in this short debate. I understand the central point made by the Minister: that he does not want any statutory limitations on the relationship between the various committees. My Amendment 2 gave one model of a relationship between the two committees. I shall withdraw the amendment, but there is no statutory relationship between any of the committees at the moment. That may have to be developed over time. It may not be for this Bill, but all the committees will have to have a close working relationship which will have to be developed one way or the other. Nevertheless, I beg leave to withdraw the amendment.

--- Later in debate ---

[Lord Ponsonby of Shulbrede]

My Lords, if I may say a word out of turn, I am grateful to the Minister for what he said about my Amendment 20 and for saying that he will consult about agreeing something along its lines. I also want to make a point about Amendment 15, which we have also passed, which is that magistrates are represented under statute, under the other rule-based committees.

[Lord Keen of Elie]

I will briefly clarify the position for the noble Lord, Lord Ponsonby. I was not undertaking to consult to agree, but to give further consideration to the matter before Report.

Courts and Tribunals (Online Procedure) Bill [HL]

Debate between Lord Ponsonby of Shulbrede and Lord Keen of Elie

Tuesday 14th May 2019 Lords Chamber

[Lord Keen of Elie]

My Lords, on the last point, I am not aware of any proposal to attempt to replicate the ability of our judiciary with artificial intelligence. I am obliged to the noble Lord, Lord Beith, for his acknowledgement that the Government are seeking to leap into a gap rather than an abyss.

I will begin by making a number of general observations before I respond to the particular points raised by noble Lords—at this stage in the process we are listening and will consider the points made. First, there is concern that powers under the Bill will enable the Lord Chancellor to take extraordinary steps with regard to the judicial system; for example, by requiring rules that dispose of rights to an oral hearing across the board, perhaps, rather than just in particular cases. Let us be clear, those powers already exist. They are not exercised in that fashion and there is no intention to do so. That is not the purpose of this legislation.

The overarching powers of the Lord Chancellor with regard to the rules and the rules committee already exist with respect to the civil, family and criminal rules committees. This simply reflects that fact. There has been no suggestion in the past that the Lord Chancellor, who ultimately would always be answerable to this Parliament, would seek to abuse any powers he might have in that respect.

Furthermore, the Bill is intended to introduce the opportunity for additional, but simplified, court processes. It is not replacing the existing processes. At the prompting of Lord Justice Briggs’ report, it introduces the idea of a far simpler and more accessible system of disposal with regard to civil courts, family courts and tribunals. It is intended that it should be implemented in the first instance in the area of financial claims, where we already have some digitisation—a digital portal—and extend, in due course, to family law claims. I do not understand there to be any intention to extend it to the Court of Protection. I am not aware of any intention to extend it to housing claims but I will take further soundings on that point and respond to the noble Lord, Lord Beecham, when I have done so.

I emphasise again—and this is partly in response to the points made by the noble Lord, Lord Ponsonby—that we are intending to introduce an additional, much-simplified procedure that people can employ. Of course, we recognise that not everyone will wish to engage in that procedure, although why they would want to pursue a more complex and less accessible procedure might be difficult to fathom. We understand that some people will find it difficult to engage with such a digital procedure and that is why we intend to take steps to make assistance available to people, whether by telephone, other electronic means or face to face. As the noble Lord, Lord Marks, indicated, provisions are already in place for such face-to-face advice to be given.

Some people may want to engage in the simplified procedure but to do so in writing. There will be scope to do that. Somebody may put their claim in writing, rather than online, and that written claim may then by scanned on to the system. Somebody may respond to a claim in writing. Whether it is then appropriate for the claim to remain on the online system will be a matter of judgment at the time, depending on how parties respond to the system. As I understand it, there will be the ability to engage in the simplified process even if there is difficulty in actually entering the online system itself. However, there may come a point where there is really nothing to be gained from having people pursue such written forms along the lines of this new set of rules, and they may then revert to the existing civil procedures. That remains to be seen.

The noble Lord, Lord Ponsonby, talked about consultation and the potential for pitfalls with new technology. We are very conscious of that. The intention is to pilot the schemes and reflect what has already been done with regard to small financial claims by extending the limits for those claims. Overall, though, I emphasise in response to the noble Lord that we intend to introduce a simplified process that does not replace the existing process but will provide the means by which people without recourse to legal advice and guidance will be able to pursue a claim; in other words, as Lord Justice Briggs observed, a process that is designed not by lawyers for lawyers but for the use of the lay person.

[Lord Ponsonby of Shulbrede]

My Lords, the Minister has made that point twice. Does that mean that we will see two systems operating within the family jurisdiction: the simplified online system, to which the Minister has referred, and the existing paper-based system, which the Minister is saying is more complex? Will there be two systems operating in parallel?

[Lord Keen of Elie]

I do not suggest that there will be two systems operating in parallel, although it is perhaps the use of that word that I am concerned with. This will be the staged introduction of a simplified process that will cover simplified claims and, in due course, family law claims. It will not replace the family rules that already exist; it will be an additional, simplified process that people can engage in through a digital portal.

As I say, those wishing to use the simplified process may begin in writing and then see that written claim scanned into the system. They will still be using the simplified system of rules that it is intended should be introduced. There may be cases—this is where judicial discretion will come into it—where it is determined that it is not appropriate for a case to continue in that simplified process. There could be any number of reasons for that to occur and I would not seek to speculate on what they might be. That will be the outturn of the application of these processes once the relevant rules have been made and applied to particular types of claim.

The noble Lord, Lord Beith, asked what would happen when one party wanted to use the online process and another did not. As I have sought to explain, it will be essentially a situation in which a claim will be made using the simplified process. If it is not made online, it may be made in writing and then scanned into the process. Whether it is feasible for it to continue in the digitised process, we will have to wait and see. However, the idea is certainly to give the claimant the option as to where he begins with the claim. At the end of the day, there is an element of flexibility, I hope.

I turn to the observations of the noble and learned Lord, Lord Judge. He touched first upon the membership of the rules committee. The intention is that the rules committee should be kept relatively small and flexible. There is of course provision in the Bill for changes to be made in the constitution of the committee depending upon our experience, but this is going to be the starting point to see how easily it can work. Regarding the membership of the committee, with two appointed directly by the Lord Chief Justice and three by the Lord Chancellor after consultation with the Lord Chief Justice, the noble and learned Lord brought out the idea that where we have consultation within the Bill, we should replace it with concurrence. I question whether that would be appropriate. I hear what has been said on that point by number of noble Lords, but there is a balance to be struck here. For example, within the provisions of the Bill itself, where there is a need for regulation to be made subject to the affirmative procedure, noble Lords will see that there is to be consultation with the Lord Chief Justice.

Examples can be found in Clause 2, which addresses “‘Specified kinds’ of proceedings”. Regulations there are,

“subject to the consultation requirement”,

with the Lord Chief Justice, among others, and,

“subject to affirmative resolution procedure”.

The same applies to Clause 3. However, in circumstances such as those in Clause 6, where there is to be consultation, there is also a provision for the negative resolution procedure.

At the end of the day, it is the Lord Chancellor who will be answerable to Parliament. It strikes us as unattractive to have a situation in which the public, the Executive and Parliament wish to see a change in procedures and process, but the Lord Chief Justice can effectively veto any such change because he is not prepared to give his concurrence. The Lord Chief Justice is not answerable to Parliament but the Lord Chancellor is. In those circumstances, it would be for the Lord Chancellor to answer to Parliament after consulting the Lord Chief Justice.

Before I go on to a contrasting situation, the noble and learned Lord, Lord Judge, said that of course the Lord Chancellor can always come back to Parliament if the Lord Chief Justice will not give concurrence. Yes, he could, to try to seek primary legislation to overcome that issue and amend the existing Act. Given the legislative process, it might take years to address a situation in which changes are desired, if the issue is one of concurrence not consultation. Therefore, I do not believe that that is an answer to our concern on this point.

I will mention a contrast. Parts 1, 2 and 3 of Schedule 1 to the Bill deal with practice directions, which are given by the Lord Chief Justice to the judiciary. Those are very much the responsibility of the Lord Chief Justice, and in these circumstances, his obligation goes only so far as to consult the Lord Chancellor. I suggest that there is an element of balance here. When a matter falls very directly within the responsibility of the Lord Chief Justice, as with practice directions, he is required only to consult the Lord Chancellor, and when a matter falls very much within the responsibility of the Lord Chancellor, because he is answerable to Parliament, he is required only to consult the Lord Chief Justice. That is the balance that the Bill seeks to achieve in this context. It may not be a balance that is acceptable to everyone, including the noble and learned Lord, Lord Judge. I hear what he said on this point and it is something I will consider before Committee. Nevertheless, that is how I would explain the present position.

I turn to a number of points made by my noble and learned friend Lord Mackay of Clashfern. He mentioned the dangers of any electronic system and what he termed “leakage” therefrom. That is a perennial problem for us all, but it is one we are conscious of and will seek to guard against. I see no reason why there should be any greater problem there than there is with the present judiciary.

My noble and learned friend Lord Mackay also asked whether the Court of Protection would be covered. Strictly, one could argue that the proceedings of that court are civil proceedings, but there is no intention to make them subject to this simplified procedure. As I understand it, we are concerned in the first instance with financial claims, and thereafter with developing this in respect of family law claims. Each step of the way will involve a process of consultation, not only with the relevant committee but with the Lord Chief Justice, the Secretary of State—in so far as it deals with employment tribunals and employment appeal tribunals—and the Senior President of Tribunals.

My noble and learned friend Lord also raised an issue about the quality of justice being attributable to the judiciary—with which I entirely concur—and concerns about such matters as pensions, which are currently being considered and addressed by us. I do not take that matter further.

He also raised the question of Scotland, because, in respect of the employment tribunals and employment appeal tribunals, these provisions extend to Scotland. Of course, at present, these are UK-wide jurisdictions, which is why the provisions with regard to appointment to the committee are set out as they are. There will be developments there because, under the amended Scotland Act, the Scottish Government will, in due course, be able to take up responsibility for employment tribunals and employment appeal tribunals. As and when that happens, the whole process will be handed to them and will come under their own tribunal legislation. In the meantime, we have consulted, not only with officials but with Ministers in the Scottish Government, who have expressed themselves content with the way the present provisions are formulated. I hope that brings some relief to my noble and learned friend.

The noble and learned Lord, Lord Thomas of Cwmgiedd, also welcomed the Bill. He raised a number of questions about how it would operate in practice. He emphasised a point made by Lord Justice Briggs: the whole point of this process is to bring forward a set of rules—a system of justice—that is not only accessible to lay people but understood by lay people. That is what lies behind much of what we propose in this legislation. We will ensure that those lay persons are given assistance in accessing these digital portals. I do not consider it necessary to place that in the Bill, and I question the way in which that might be done. I suggest that it is better that we have sufficient flexibility to ensure that, as technology develops, we can respond to those developments and make the appropriate provision available for those lay persons who wish to employ these processes.

My noble friend Lord Faulks and other noble Lords referred to the programme of court closures. There is no direct link between these proposals and court closures, but if this digital process is successful, we may see a reduction in the demand for physical court structures. However, that is an incidental point and not the intent behind this legislation, which is to improve access to justice for all. On that last point, I am reminded that my noble and learned friend Lord Mackay also raised the question of small businesses being anxious about fees and related matters. Of course, if we can develop this digital process successfully, the cost of litigation should be reduced. I hope that gives some reassurance to parties such as small businesses.

The noble Lord, Lord Beecham, raised a number of issues—including housing, on which I will write to him—about the powers available to the Lord Chancellor. He referred in particular to Clause 9. The Lord Chancellor’s power there is subject to the affirmative procedure. That is expressly provided for already. There are a number of instances in which there is provision for the negative procedure, but the power in that clause requires the affirmative procedure.

The noble Lord referred to Clause 8 and asked what would be a “reasonable period”. I have to respond: how long is a piece of string? That would be addressed in the facts and circumstances of any case, but it is not something we could anticipate at this stage. The purpose of these provisions is to provide the maximum flexibility for the provision of a simple and accessible set of rules for disposing of civil claims, family claims and tribunal matters. To achieve that flexibility, we have somewhat wide-ranging provisions, but they are no greater or wider than those for the existing Civil Procedure Rules and Family Procedure Rules. They will be exercised subject to consultation or concurrence with the judiciary and disposed of by an independent committee, with the Lord Chancellor being answerable ultimately to Parliament not only for their terms but for their effects.

Finally, on review, it is intended that we will have an interim review in about 2021 and a completed review in about 2023 or 2024. It would not be sensible to seek a review any earlier than that because we need to see how these processes will work in practice and evaluate feedback from those who engage with them.

In these circumstances, and having regard to the reminder I keep getting from my Whip about the amount of time I have, or do not have, left, I commend the Bill to the House.

Probation Service

Debate between Lord Ponsonby of Shulbrede and Lord Keen of Elie

Thursday 14th December 2017 Lords Chamber

[Lord Keen of Elie]

We do not accept that it is necessary to go back to the drawing board. It is, however, necessary to address the shortcomings in the delivery by CRCs. That is what we are in the course of doing.

[Lord Ponsonby of Shulbrede (Lab)]

My Lords, is the Minister satisfied that the CRCs are properly breaching people, given that they are not fulfilling the requirement of their orders? Does he accept that it is extremely important that the judiciary and the magistracy retain their faith in community sentences? If the orders are not properly administered and people are not properly breached, it will undermine faith in those sentences.

[Lord Keen of Elie]

My Lords, I endorse entirely the observations made by the noble Lord. It is for the courts to impose programme requirements as part of the community or suspended sentences orders that they make. Clearly, we have to ensure that they continue to have faith in the system when they are making those orders.

Family Court

Debate between Lord Ponsonby of Shulbrede and Lord Keen of Elie

Monday 9th January 2017 Lords Chamber

[Lord Keen of Elie]

I am obliged to the noble Baroness, who makes a very good point with regard to how we may attempt to tackle this matter, by way not only of legislation, be it primary or secondary, but also by way of the procedural rules which apply in the context of family cases. That will be looked at in the context of the present review and work. If we consider that steps can be taken, we will make representations to the judiciary so that it can properly examine how these procedural rules can be considered. I understand that the President of the Family Division has arranged that certain work should be undertaken with regard to children in the context of the procedural rules.

[Lord Ponsonby of Shulbrede (Lab)]

My Lords, I sit as a lay family magistrate in Greater London. Sir James Munby has introduced Practice Direction 12J whereby abusers cannot cross-examine people in court. However, my experience is that while the parties in the family court are very often unrepresented for various reasons, not least because they have not applied for legal aid, there are other opportunities for interaction and potential abuse in the court system, not just in the courtroom itself. Therefore, while I welcome the emergency review announced recently, I think that there needs to be a more wide-ranging review of the family court process as a whole if one is to address these issues. It is certainly my experience that the practice directions that we operate in Greater London prevent the sort of cross-examination which a lot of pressure groups are talking about. The issue is about the wider context. I hope that the Ministry of Justice will expand its review of the family court practices.