Crown Estate (Wales) Bill [HL]

Debate between Lord Thomas of Cwmgiedd and Lord Sandhurst

Committee stage
Friday 6th June 2025 Lords Chamber

[Lord Thomas of Cwmgiedd (CB)]

I shall speak to the amendments in my name. By way of background, we have had the benefit of the noble Baroness, Lady Harris of Richmond, speaking about what makes this issue what I would describe ultimately as a hearts-and-minds issue. The acquisition of the Crown Estate in Wales by conquest and inheritance, the imposition of English laws, the exploitation, as it is perceived in Wales, of Wales’s resources of coal and water and the fact that Scotland has been allowed to control its own estate turn this into an important political and hearts-and-minds issue. I have tried, through the amendments I have put forward, to recognise that. In saying that it is an important hearts-and-minds issue, we must bear in mind the view of the Welsh Government, of the same complexion as the Government here in London, that they want devolution. The overwhelming majority of Welsh authorities want devolution. The very strong feeling is, for the reasons that I have tried briefly to summarise, that there ought to be devolution of the Crown Estate to Wales.

What has bedevilled this problem is a failure to understand and give effect to the difference between ownership and benefit from an asset and management of an asset. Those of us who may be fortunate to have the odd spare penny or two know the difference. Allowing someone else who is better qualified to manage assets while ensuring that the policy towards those assets and the ultimate benefit appertain to the owner is an important distinction that I have sought to make.

The first step is to try to identify what is the Crown Estate in Wales. Is it valuable? Does it have any assets? Does it have any revenue? Noble Lords may recall that in the Second Reading debate I spent a little time—I am not going to do that today because it is unnecessary—going through the accounts of the Crown Estate Commissioners in respect of Wales. The revenue and asset values for the year ending March 2021 were clear, but there was nothing in the accounts thereafter.

I challenged the Minister, the noble Lord, Lord Livermore, the Financial Secretary to the Treasury, about how an accountant could possibly not be able to identify the assets and income. I am immensely grateful to him and the chief executive of the Crown Estate Commissioners and to one of the commissioners for a meeting I had with him. Having checked with him, and I am happy to say he agrees that I can say this, I was told by him that in the financial statements for next year—that is, for the year ending March 2026—it is the commissioners’ intention to provide a separate breakdown for Wales of the assets and revenue. That shows that you can identify what is Welsh and what is English, and you can show the resultant revenue streams and capital expenditure, so an awful lot of the obfuscation that has occurred can be got rid of. I do not want to comment any further. Let us wait for those accounts to be produced. It brings to an end the argument that you cannot really say what is Welsh and what is English and what is the benefit from it. We will know. It is a great pity that this was not done before.

Therefore, I think that what is before us now is, if this hearts-and-minds issue is to be addressed and dealt with, how do we take this forward? It would be very helpful for us to hear from the Minister about the discussions that have been taking place between his colleagues—I assume that they are his colleagues—in Cardiff and his colleagues here in London about dealing with this hearts-and-minds issue and, as the noble Lord, Lord Moynihan, has been very careful to stress, obtaining economic benefits for Wales. The distinction that I try to draw is between ownership of and benefit from the assets and the management of the assets, and that is why I put forward Amendments 4 and 7.

First, Amendment 4 is primarily to set a timetable. It is no use having a Bill, it seems to me, that transfers the assets on its passing without some clear preparatory work and a timetable to reassure investors and others that the transfer is orderly. Therefore, Amendments 4 and 7 put forward a timetable. I have put dates forward as indicative only: obviously, the timetable is a matter for detailed discussion between the Governments in London and Cardiff, providing that, during that period, the Crown Estate commissioners remain completely in control—they ought to take account of the views of Welsh Ministers but not be bound by them—and that the income thereof in the meantime is properly identified. This really provides a bridging period, dealing with the issue of the transfer of the assets but allowing their management to continue, and therefore really tries to address the problem that, as I understand it, some Government Ministers have put forward, that all this would wreak havoc with investment and jobs in Wales. I regard that as a fallacy. When one really looks at what we are talking about, it is accepting that the Crown Estate in Wales is a national asset of the Welsh people, but accepting that there needs to be an orderly transfer.

As to the future, I have put down a separate amendment, Amendment 5, which I will address in due course, in the second group of amendments, because it addresses this fundamental misunderstanding that is used to try to justify the preparation of an injustice which does such damage to the union.

[Lord Sandhurst (Con)]

My Lords, the amendments in this group relate to the operation of the Crown Estate in Wales under the newly devolved approach. I should say at the outset that on this side of the House, we are opposed to the Bill in principle. I know that the noble Lord, Lord Wigley, tabled amendments to the Crown Estate Act during its passage through your Lordships’ House. The Official Opposition were clear at that point that the Government should resist those amendments. As my noble friend Lady Vere of Norbiton said then, we have set the Crown Estate on a very different path as a result of that legislation, and now is not the time to frustrate that process with a very different proposal on the direction of the Welsh part of the Crown Estate. That argument was right then; it is right now.

Amendments 1 and 6 in the name of my noble friend Lord Harlech would require the revenues of the Welsh part of the Crown Estate to be paid to the Exchequer after the devolution and transfer of functions to a new body. This would ensure that the existing revenues go to the Exchequer, which, as we all know from the rumours about the spending review next week, is already in great need of income. If control of the functions of the Welsh Crown Estate were to be devolved but the revenues continued to be paid to the Exchequer, that would at least achieve part of the aim of the noble Lord, Lord Wigley, without depriving the Exchequer of much-needed revenue. Perhaps the noble Lord is open to that.

My noble friend Lord Harper raised interesting and cautionary points about the Barnett formula more generally. Amendments 2 and 8 in the name of my noble friend Lord Moynihan seek to ensure that the Welsh Crown Estate is bound by the same borrowing limits as the Crown Estate itself. As noble Lords will recall from the passage of the previous Bill, my noble friends Lady Vere of Norbiton and Lord Howard of Rising spoke at length and pressed Ministers to secure that borrowing limit. We were pleased that Ministers accepted those calls and implemented a borrowing limit, even though this was placed on a statutory footing. The amendment which my noble friend Lord Moynihan has sensibly tabled seeks to ensure that the Welsh Crown Estate is similarly bound by an appropriate limit on its borrowing. Here I should mention, of course, the important points that he made about the impact that this transfer would have on the future of energy, in this country as a whole and in Wales in particular, and the difficulties in apportioning that.

Amendment 3, in the name of my noble friend Lord Moynihan, seeks to establish a backstop to prevent mismanagement of the Welsh Crown Estate. We know how poorly Wales is served by her current devolved Government. Whether it is education, healthcare or economic outcomes, Wales consistently underperforms, so much of this is the responsibility of the Welsh Government. Given that backdrop, it is understandable that noble Lords are a little more than reticent about proposals to take another step down that road, with a body as important as the Crown Estate and with such big assets. We on these Benches share the concern that motivates my noble friend in his amendment, and we would be interested to hear from the Minister whether the Government might consider some form of backstop such as that proposed by this amendment.

Amendments 4 and 7, in the name of the noble and learned Lord, Lord Thomas of Cwmgiedd, reflect legitimate concerns about the untimely transfer of these powers in the event that the Bill is passed. Clearly, a sudden change so soon after we passed the Crown Estate Act, which sets a very different direction of travel for the Crown Estate, would be very disruptive to that new direction. Perhaps the noble Lord, Lord Wigley, would respond to that point in his remarks at the conclusion of this group.

In summary, we have serious concerns about the transfer of the Welsh parts of the Crown Estate to a devolved framework. There are many important issues that must be addressed before this proposal could go forward. We look forward to hearing from the noble Lord, Lord Wigley.

Sentencing Guidelines (Pre-sentence Reports) Bill

Debate between Lord Thomas of Cwmgiedd and Lord Sandhurst

Report stage
Wednesday 4th June 2025 Lords Chamber

[Lord Thomas of Cwmgiedd (CB)]

My Lords, I wish to add a few sentences to what the right reverend Prelate said. I preface that by noting that, when we built the Sentencing Council, the legislation was discussed and agreed. It was clear when this Bill was introduced that discussion and agreement were needed. I find it very disappointing that we have not been able to get together to find a satisfactory way to deal with this legislation other than by dropping it—I regard that now as gone.

I think it important that Ministers appreciate what the right reverend Prelate said. It is plain that pregnancy and maternity are characteristics, and one ought to ensure that all judges receive the same guidance as to obtaining pre-sentence reports. I know that the Minister and the Lord Chancellor are very keen that pregnant women do not go to prison, but they are not the law; the law is laid down by this unfortunate legislation. If there is one thing we can do to ensure that it does not wreak injustice, it is to allow the amendment proposed by the right reverend Prelate. There is a huge amount more that we should do, but, without a consensus and discussion between us, I do not believe that we can make any improvement. That is why I content myself with this very narrow point. We cannot be in a position where we cannot give guidance to courts that they should get a pre-sentence report to avoid sending pregnant women to prison.

[Lord Sandhurst (Con)]

My Lords, I thank all noble Lords who contributed to the Bill’s progress in Committee. In particular, I acknowledge the thoughtful and constructive contributions from the noble and learned Lord, Lord Burnett of Maldon. We have heard further thoughtful contributions today, not least from the noble and learned Lord, Lord Thomas of Cwmgiedd, and the right reverend Prelate the Bishop of Gloucester.

None the less, from this side of the House, I wish to place on record our broad support for the principles that underpin the Bill. The use of pre-sentence reports, when applied rigorously, consistently and with due regard to the individual circumstances of the offender, is an essential part of a fair and effective justice system. They play a crucial role in informing judicial discretion, ensuring proportionality in sentencing and helping to reduce the risk of reoffending through appropriate rehabilitative measures. We welcome the intention of the Bill to strengthen and clarify the expectations around the preparation and consideration of pre-sentence reports. These seek to embed good practice across the system and to promote greater consistency in the court’s approach to sentencing.

However, while we on this side support the direction of travel, we remain mindful that sentencing is a complex and sensitive area of the law. It touches not only on legal principle but on human lives, social outcomes and the effective operation of our prison and probation systems. In that context, I will take a moment to acknowledge a specific concern raised by noble Lords in Committee: the lack of clarity around the term “personal characteristics” as it appears in the Bill. This is not a small point. If the legislation is to provide clear and workable guidance to practitioners, including report writers and the judiciary, we must be precise about what we mean. Any doubt or uncertainty in this area risks inconsistent application. It undermines the very consistency and fairness that the Bill seeks to promote. I hope that the Government will reflect carefully on these concerns and consider whether further definition could be usefully provided.

More broadly, I echo the view expressed at earlier stages that, with just a little more time and careful consideration, we could strengthen and improve this legislation further. There remain questions that would benefit from additional scrutiny, and we should proceed with care. We must get this right, not only in the interest of justice but for the confidence of the public, the judiciary and those working on the front line of our criminal justice system. We on these Benches remain committed to working constructively with the Government, with noble Lords across the House and with all those who bring experience and insight to bear on this important issue.

I will turn briefly to the amendments in the first group. As for Amendments 1 and 7, spoken to by my noble friend Lord Hailsham, we recognise that Amendment 1 seeks to provide clarity about the range of matters that the sentencer may take into account. We invite the Government to consider these during the Bill’s journey through the other place.

Litigation Funding Agreements (Enforceability) Bill [HL]

Debate between Lord Thomas of Cwmgiedd and Lord Sandhurst

Committee stage
Monday 29th April 2024 Grand Committee

[Lord Sandhurst (Con)]

My Lords, like others here today, I support the Bill and the amendments which the Government have laid. Like others, certainly including the noble Lord, Lord Carlile of Berriew, I am grateful for the Bingham Centre’s helpful briefing note. It sets out the issues clearly, in particular in respect of retrospectivity and the need for the Government to give good reasons for that, which I believe they have done.

What is important in this case is that before 19 July 2023, government policy endorsed the use of litigation funding agreements. There had been discussion about whether they should be regulated and how they should be managed, but the policy was absolutely clear. I referred to that at Second Reading. The Supreme Court, for good reason, did not have to address that issue of policy as it was not appropriate, but the effect of its decision is that litigants have lost much-needed support. If we are to ensure access to justice, particularly against monopolists, we now require a statute to undo that Supreme Court decision and do the best we can to restore the status quo ante. We have to hope that this legislation does not induce a spate of future litigation of the wrong satellite nature, but simply allows matters to proceed as they were until July last year.

For good constitutional reasons, retrospective provisions are not the norm, but when Parliament reaches a considered decision to pass legislation that is fully retroactive and does so for good reasons then, providing the legislation is drafted carefully, the Supreme Court has ruled that it is not contrary to our constitutional norms. In that respect, I refer to its decision in AXA General Insurance Limited and others v Lord Advocate and others, reported at [2011] UKSC 46.

I agree entirely with the noble Lord, Lord Carlile, that we should not fear challenge at some later date in the ECHR. The balancing reasons are absolutely clear: this is for access to justice. There may be no perfect answer, but this is the right route—or the least bad route. I am confident that the Government will look further at the detail of the retroactivity provisions and will not bring this Bill to finality without taking care to ensure that it is properly addressed. In doing so, they will have weighed the public interest in access to justice and in established positions that might be damaged by the Bill. It is pretty clear to me, and I think to others here, that the overwhelming public interest is in allowing matters to be restored to the general form of what everybody thought they were in the summer of 2023.

While I am sympathetic to the noble Lord, Lord Marks, and his amendment, I am persuaded and now agree that the appropriate course is to leave this to the Civil Justice Council. It is now seized of the matter and will have the benefit shortly of the report from the European Law Institute—the noble and learned Lord, Lord Thomas, is a member—and will guide this country into making good regulations. Regulation will not be straightforward, but it has been managed with some trial and error in conditional fee agreements, and we are now without problems there. It has been managed in damages-based agreements, so I would be surprised if it could not be managed in litigation funding agreements, albeit that I am sure that some lawyers will do well out of satellite litigation in the early stages.

[Lord Thomas of Cwmgiedd (CB)]

My Lords, I thank the Government again for bringing this matter with such expedition before this Committee. I wish to make two observations. First, I warmly welcome the Constitution Committee’s report, which is helpful and will no doubt help the Government further on the retrospectivity point.

Secondly, I am glad that the noble Lord, Lord Marks, put forward his amendment because it enables us to thank the Civil Justice Council and the Government for putting the terms of reference in such broad forms. As I mentioned at Second Reading, there is a lot of experience worldwide on that, but since then I have discovered more about the position in Australia and hope that the work done by the European Law Institute will in part reflect the substantial Australian experience. The Civil Justice Council will be able to look at that. Having heard what has been said in Australia, one has to take care, as not all are as responsible as the members of the litigation funders’ body. Others are tempted to enter into this area, so one might see that Australia has a lot of experience of how to deal with this, looking not to the creation of yet another regulatory body but to whether the courts themselves, through the Civil Procedure Rules, can be given the powers and guidance necessary to deal with the issues.

No doubt we will return to this in the autumn of 2025 for a very interesting debate.

Police, Crime, Sentencing and Courts Bill

Debate between Lord Thomas of Cwmgiedd and Lord Sandhurst

Committee stage
Wednesday 24th November 2021 Lords Chamber

[Lord Sandhurst (Con)]

My Lords, I will speak to Amendments 320 and 328, which would repeal the Vagrancy Act. This 197 year-old Act does nothing to tackle and resolve homelessness, and nor does it prevent antisocial behaviour. In fact, by criminalising rough sleepers, it prevents them accessing vital services to support them to move off the streets. This is important in the context of people trafficking—modern slavery. Its victims are those likely to end up sleeping rough on the streets to escape danger. They need our help. Criminalising rough sleeping marginalises the most vulnerable and may mean that rough sleepers move away from, not towards vital support. It does not address the underlying causes.

The Act now has only two effective provisions. Section 3 makes it an offence in any public place to beg or cause a child to beg. An offender can be locked up for one month. Section 4 addresses what we call rough sleeping. It also encompasses those who are in enclosed premises for an unlawful purpose. This is used to deal with people who are thought to be “up to no good”. The fact is that there are perfectly good ways of dealing with all those people both within and without the criminal law. Indeed, on 9 March the then Secretary of State said in answer to a Parliamentary Question that the Act should be repealed. In this amendment, we offer a fully drafted way forward. If minor changes are needed, they can be made—there is no problem there.

The number of convictions for rough sleeping and begging have fallen consistently in the past 10 years. Indeed, in 2019—the most recent year for which figures are available—only one person received a custodial sentence for begging, and only 16 received a custodial sentence for being in enclosed premises for an unlawful purpose. The numbers are tiny. Let us throw away the sledgehammer. The police, local authorities and other agencies have ample powers.

Let me explain very briefly. The Highways Act 1980, Section 137, makes it an offence wilfully to block free passage along the highway. That is punishable by a fine. The Public Order Act 1986, Section 5, makes it an offence to use threatening or abusive words or behaviour. That, too, is punishable by a fine. Moving to civil measures, the Anti-social Behaviour, Crime and Policing Act 2014 introduced a wide range of measures to deal with the different types of anti-social behaviour. Recourse can properly be made to those measures for people who are repeat nuisances. They are all available under the 2014 Act.

Taking it very summarily in the short time available, there are civil injunctions to prevent nuisance and annoyance. Breach of those civil injunctions gives rise to civil contempt, with all the remedies available for that—up to 2 years’ imprisonment for the worst offenders, but it is done properly. Secondly, there are criminal behaviour orders. These can impose requirements as well as prohibit certain activities. Thirdly, there are community protection notices. These can be issued by the police, a social landlord or a local council if behaviour is detrimental to the quality of life of a local community. Fourthly, there are dispersal powers, under which a local council, following consultation with the police, may issue a public spaces protection order to place restrictions or impose conditions on activities that people may carry out in the designated area.

In respect of that, since 2014 the Home Office has issued statutory guidance under the 2014 Act, recently updated this January. Our amendment, as noble Lords will see from its terms, will strengthen that. We propose a co-ordinated package. Where something has to be done, the police and local authorities have the powers to do it. We ask the House to act now to put an end to this prehistoric, unjust and inappropriate law. I commend the amendments.

[Lord Thomas of Cwmgiedd (CB)]

Briefly, I entirely support the repeal of the Vagrancy Act, and there is no point in repeating what have been compelling, eloquent and, I believe, unanswerable points. Long experience has shown that arguments do not get better by repetition.

What I wanted to do, however, was to make four quick points from my experience in support of Amendment 292J in the name of the noble Lord, Lord Hunt of Kings Heath. First, the category of person dealt with is easy to identify. Therefore, that is not an answer. Secondly, the evidence of the risk of future offending is compelling. That in relation to Wales is set out—I need not repeat it—in the report of the Commission on Justice that I chaired and there is masses of such evidence. Thirdly, the proposal is plainly value for money. One has only to look at the cost of what it takes to deal with those who have gone wrong. Fourthly—surprisingly, some may think—the proposal would have enormous public support. When we canvassed views about it, and when I did so as a judge, one always found that the overwhelming majority felt that these people deserved a chance and support.