Tuesday 21st May 2024
(6 months ago)
Lords ChamberVictims and Prisoners Act 2024 View all Victims and Prisoners Act 2024 Debates Read Hansard Text Watch Debate Read Debate Ministerial Extracts Amendment Paper: HL Bill 57-IV Fourth marshalled list for Report - (17 May 2024)
Lord Marks of Henley-on-Thames (LD)
My Lords, the amendments in this group, Amendments 150 to 153, objecting to Clauses 49 to 52 standing part of the Bill, fall into two slightly different categories. The first three amendments, in my name and that of the noble Baroness, Lady Lister of Burtersett, who I am grateful to for her support, would remove the proposals in the Bill that Section 3 of the Human Rights Act be disapplied in relation to three pieces of legislation.
First, by Clause 49, the disapplication would apply to Part 2, Chapter 2 of the Crime (Sentences) Act 1997, which concerns life sentences and sentences of detention at His Majesty’s pleasure, release on licence for prisoners serving such sentences, and their release on licence, recall and removal from the UK, and will include all those amendments to be introduced by Clause 41 of this Bill. Secondly, Clause 50 would disapply Section 3 to Part 12, Chapter 6 of the Criminal Justice Act 2003, which concerns the release on licence, supervision and recall of certain fixed-term prisoners, and will include all those amendments to that Act to be introduced by Clause 42 of this Bill. Thirdly, Clause 51 would disapply Section 3 to Section 128 of the LASPO Act, or any order made under that section. That is the section which, as we have heard in debate at some length in Committee and earlier today, permits the Secretary of State to change the release test for certain prisoners, importantly including IPP prisoners, to shift the balance so that if conditions are met, an IPP prisoner must be released.
As will be familiar to the House, Section 3 of the Human Rights Act requires that:
“So far as it is possible to do so, primary legislation and subordinate legislation must be read and given effect in a way which is compatible with the Convention rights”.
The ECHR is fundamental to the protection of human rights in this country. That is and has long been an article of faith for my party and the Labour Party, which was responsible for enacting the convention as part of domestic law by the means of the Human Rights Act. Indeed, it is important for many but not all in the Conservative Party; we have all seen the fault-lines on this issue over the tenure of this Government. However, the present Secretary of State for Justice is a keen advocate for the convention.
The architecture of the Human Rights Act has been widely and, I suggest, rightly praised for striking the balance between the sovereignty of Parliament and the convention. That architecture has at its heart the combination of Section 3—the section I just read—which requires convention-compatible interpretation and application of legislation where possible, and Section 4, which provides for a court to make a “declaration of incompatibility” where a legislative provision is found to be irrevocably incompatible with the convention right. The making of such a declaration leaves it to Parliament to legislate so as to comply with the convention and remove the incompatibility.
It follows that the proposed disapplication of Section 3 represents an invitation, almost an instruction, to courts to disregard convention rights when interpreting or applying the legislation. This is not a purely academic point; in relation to IPPs, for example, the European Court of Human Rights found in the case of James, Wells and Lee v UK in 2012 that the applicants’ IPP sentences were a violation of their Article 5 rights to liberty and security because the unavailability of rehabilitative courses meant that their detention after the expiry of their tariff terms was “arbitrary”.
As the Prison Reform Trust put it, in its helpful briefing for this debate:
“The introduction of specific carve-outs from human rights for people given custodial sentences contradicts one of the fundamental principles underlying human rights—their universality and application to each and every person on the simple basis of their being human. Moreover, it is precisely in custodial institutions like prisons that human rights protections are most vital, because individuals are under the control of the state”.
These carve-outs represent an insidious threat to the effectiveness of the convention in this country and, I suggest, a stalking horse for future legislation, undermining the balance between parliamentary sovereignty and the convention that I spoke of. They should be resisted.
I am bound to say that I find it very disappointing that the Labour Party is not whipping Labour Peers to support these amendments. The Human Rights Act was one of the Labour Party’s finest achievements. For Labour Peers to be instructed to condone by abstention the disapplication of Section 3 to these provisions is a sad portent for the future.
Before closing, I turn to Amendment 153, which seeks to remove Clause 52 from the Bill. Clause 52 does not seek to disapply any part of the convention, but it seeks to skew the court’s decision-making process on the application of convention rights in a way that is underhand and unacceptable. It would provide that, in making a decision as to whether a person’s convention rights have been breached in relation to a release decision:
“The court must give the greatest possible weight to the importance of reducing the risk to the public from offenders who have”
been given prison sentences. In other words, risk reduction is to outweigh all other factors. But what does the instruction to give “the greatest possible weight” say to a judge? The answer is effectively that no other factor is to count. There is to be no careful judicial balancing exercise, because if the risk reduction factor can be outweighed in the balance, a judge cannot, by definition, give that factor “the greatest possible weight”. Judicial discretion is to be removed; judges are to be compelled to reach decisions that they would not otherwise make, because they may not judge for themselves what weight to give to competing factors. That is not acceptable.
I fully intended to divide the House on these amendments, but given the Labour Party’s decision not to support them but to abstain and the fact that it is now late, I have decided not to. Nevertheless these amendments raise an important point of principle for all those who believe in the convention.
Baroness Lister of Burtersett (Lab)
My Lords, I was very disappointed by the Minister’s response in Committee, so I felt that I ought to have another go in support of the noble Lord, Lord Marks of Henley-on-Thames, aided by the British Institute of Human Rights and Amnesty International, which were also very disappointed.
First, the Minister said that this clause is not about disapplying the Human Rights Act. Well, of course it is not about disapplying the whole Act—but not just Amnesty, the BIHR and the Howard League, but also the EHRC, the chair of the JCHR and the Law Society take the view that it is disapplying Section 3. It feels like one of those occasions when the Government is the only marcher in step.
The BIHR challenges a number of the Minister’s arguments—first, his reassurance that it is still possible to plead any breach of human rights in the usual way and to seek a declaration of incompatibility. It points out that the point of the Human Rights Act was to bring rights home and provide an accessible, practical and immediate remedy. The excision of Section 3 makes access to human rights harder. He said it was a “difficult section to apply”. The BIHR argues the opposite, pointing out that it is used by lay front-line workers who see it as having given them a clear legal framework for arguing for the protection of people’s rights.
Lord Pannick (CB)
My Lords, I associate myself with the remarks of the noble Lord, Lord Marks, and the noble Baroness, Lady Lister. I am unclear whether the Government accept, as I think they must, that the reason why they wish to disapply Section 3 of the Human Rights Act is because they recognise that, without such disapplication, the substantive provisions of this Bill would plainly contradict Britain’s obligations under the European Convention on Human Rights.
Lord Ponsonby of Shulbrede (Lab)
My Lords, Section 3 of the Human Rights Act requires courts to interpret legislation compatibly with rights under the European Convention on Human Rights as far as is possible. Clauses 49 to 52 would disapply Section 3 to prisoners as a group when it comes to legislation about their release. It is disappointing to see this Government wasting parliamentary time and public money to remove human rights from prisoners.
There is no evidence of the Human Rights Act 1998 limiting the Parole Board from making decisions about prisoners. These clauses appear to be trying to solve a problem that does not exist, while the Government ignore the many critical problems across our criminal justice system. We in the Labour Party are proud that it was a Labour Government who brought about the Human Rights Act in 1998, and a future Labour Government will continue to be a bastion of justice and hope, unlike this current Government, who cannot bring themselves to focus on the real issues affecting the public.
The noble Lord, Lord Marks, and my noble friend Lady Lister spoke about the lack of support from the Labour Party if he were to press this matter to a vote. He said—I wrote it down—that he thought this was “a sad portent for the future”. That is a harsh interpretation of our stance. I have just reiterated our commitment to the Human Rights Act. We would not have chosen to support him if he had pressed the matter, but the statement I have read out reaffirms the Labour Party’s commitment to the Human Rights Act. Having said that, I think the noble Lord, Lord Pannick, has put his finger on the central question. If the Government see no diminution of the Human Rights Act, why are they disapplying Section 3 within this Bill? Do they believe that it would breach the Human Rights Act if they failed to disapply the Act in this case?
The Parliamentary Under-Secretary of State, Ministry of Justice (Lord Bellamy) (Con)
My Lords, I thank the noble Lord, Lord Marks of Henley-on-Thames, for his amendments, which seek to remove Clauses 49 to 52. I am extremely sorry to disappoint the noble Baroness, Lady Lister, and others, but the Government laid out their position in Committee and nothing the Government have heard since or this evening alters that position.
As I think I have said previously, Section 3 of the Human Rights Act is a procedural, not a substantive, provision. Clauses 49 to 51 effectively disapply Section 3 in relation to prisoner release legislation. Let me start by reiterating that nothing in these clauses removes or limits any convention rights enjoyed by prisoners. If I was asked, as I think I was, to confirm that the full range of substantive rights under the ECHR remain: yes, of course they do. Nothing in these clauses removes or limits any convention rights enjoyed by prisoners. A breach of human rights may still be pleaded before any domestic court or in Strasbourg in the usual way, and we would not want to prevent such action by prisoners where it is warranted.
I respectfully respond to the noble Lord, Lord Marks of Henley-on-Thames, by saying that this provision does not represent either an invitation or still less an instruction to the courts to disapply the Human Rights Act; nor does it imply, as suggested by the noble Lord, Lord Pannick, and perhaps by the noble Lord, Lord Ponsonby, that the Government believe there is any breach of the European convention in relation to this legislation. That is not the case. The Government do not accept that there is any breach whatever in this legislation. It is the Government’s position that a matter as important as the public protection test should be for Parliament and that it should not be open to the so-called writing-in or reading-down provisions of Section 3, which is an interpretive position which means that the courts may be required to go further than usual in interpreting legislation that would otherwise be compatible with convention rights. Although this has happened less often in recent years, it can require courts to stray from Parliament’s original intention, and the Government do not think that that is appropriate in this context. The real issue is the balance between the courts and Parliament from a procedural point of view.
Lord Pannick (CB)
I am puzzled by this because it is an unusual thing in legislation to say that Section 3 is disapplied. Is it not the inevitable inference from the inclusion of that provision disapplying Section 3 in this legislation that the Government are seriously concerned, at the very least, that the substantive provisions would breach the substantive provisions of the Human Rights Act?
Lord Bellamy (Con)
My Lords, that is not by any means the Government’s position; nor can that inference be drawn. The Government’s position on this clause is, as I understand it, in effect, that which the noble Lord himself is reported as expressing to the independent review on human rights because Section 3 requires the judge to perform a remedial function which legislation does not on its proper construction conform to convention rights. Such a role is inappropriate under our constitution and unnecessary because Section 4 provides an effective means by which Ministers and Parliament can amend the legislation. That is the Government’s position on this provision.
So, totally hypothetically, if anything in the legislation from which Section 3 has been disapplied was found to be incompatible, it would be for the court to make a declaration of incompatibility under Section 4. It would then be up to Parliament to decide how to rectify it, rather than the intermediate rewriting process of the courts. It does not remove or limit convention rights. It is simply saying that in this case that is the right balance between Parliament and the courts. That is the Government’s position on that.
This group of amendments also seeks to remove Clause 52, which sets out that, when considering a challenge, the court must give the greatest possible weight to the importance of reducing risk to the public from the offender. Of course, the courts already consider risk to the public. This clause does not mean that public protection will be the exclusive or only factor to be considered. The matter will be up to the judges, who are very capable of doing their independent part in construing the legislation. What the clause does is to ensure that due weight is given to the important consideration of public protection.
So, on behalf of the Government, I beg to move that Clauses 49 to 52 stand part of the Bill.
Lord Marks of Henley-on-Thames (LD)
My Lords, I beg leave to withdraw Amendment 150.
Lord Bellamy
“(1) Section 239 of the Criminal Justice Act 2003 (the Parole Board) is amended as follows.(2) In subsection (5)”Member’s explanatory statement
This amendment is consequential on my amendment of Clause 53, page 54, line 21.
Lord Bellamy (Con)
My Lords, for convenience, I will start, if I may, with Amendments 154B to 154D, which relate to the role of the chair of the Parole Board. The Government have taken note of the debate in Committee regarding the original proposals affecting the Parole Board chair and the power of the Secretary of State to dismiss the Parole Board chair.
Strong leadership of the Parole Board is essential. It appears that a mechanism already exists, in the unlikely event that it is needed, for the Secretary of State to ask an independent panel to consider dismissing the chair if there are concerns about their ability to do the job effectively. On balance, the Government have decided that this existing mechanism is sufficient, so we will not be proceeding with the original proposals in the original Bill.
We have also listened to feedback that the judicial functions of the chair, including deciding whether a hearing can be held in public, would most appropriately continue to be held by the chair. It has become clear that, to lead the board effectively, the chair should retain these functions, including their ability to take part in individual cases. For these reasons, I have tabled these amendments to remove all provisions relating to the chair of the board from the Bill.
I turn next to my Amendments 153A and 154A, which seek to amend Section 239(5) of the Criminal Justice Act 2003. These amendments enable the Secretary of State to create procedural rules via secondary legislation which the Parole Board must follow when carrying out its statutory duties.
These amendments will allow the Secretary of State to create new rules that will allow the Parole Board chair to delegate certain functions, including some judicial functions, from board members to staff in its secretariat. The Government intend for this provision to be commenced immediately on Royal Assent. This is the subject of Amendments 162A and 162B, to which I shall refer briefly in a moment.
Other courts and tribunals typically have provisions in primary legislation to allow for rules permitting the delegation of certain functions but, to date, we have not had comparable provisions for the Parole Board.
The Parole Board has approximately 320 members and 200 staff in its secretariat. Its members are public appointees, including judicial members, specialist members and independent members, the specialist members typically being psychologists or psychiatrists.
The purpose of the amendment is to give the Parole Board greater flexibility in how it manages its workload. I have to say that delays in the Parole Board process are currently serious and must be tackled. Each review that the Parole Board carries out will include a range of case management decisions, such as varying or revoking certain directions, agreeing deadlines or timelines, adding or removing witnesses, or adjourning or deferring cases that are not ready to be heard. At present, these decisions are taken by Parole Board members, but that is not always necessary. There are efficiency savings to be made if some case management decisions could be delegated to appropriate staff, and the Parole Board supports this amendment, which is dedicated to improving the overall efficiency of the board and reducing delays in the system. That is particularly important in relation to IPP prisoners, whom we discussed earlier, since we can anticipate an increasing flow of IPP decisions to the Parole Board and an increasing workload accordingly.
Lord Pannick (CB)
My Lords, I need some guidance. Today’s list indicates that in this group are contained the government amendments to Clauses 55 and 56, which are the amendments relating to marriage and civil partnership. Today’s list also indicates, in the next group, that we have already debated my opposition and that of other noble Lords to Clauses 55 and 56. I am very happy to delay my comments on Clauses 55 and 56 until the Minister deals with them, but I thought I should just mention where we are.
Lord Marks of Henley-on-Thames (LD)
If I may help advance this, our understanding is that the Clauses 55 and 56 stand-part debates are the subject of group 6. I do not know whether that is the Minister’s understanding.
Lord Bellamy (Con)
My Lords, that is my understanding. I am in a slight panic at the moment—the noble Lord, Lord Pannick, having raised this matter—and I hope I have not proceeded in the wrong order. I think this is group 6, according to my instructions.
Lord Pannick (CB)
I am simply referring to today’s list, which is what I am working from. If the Minister looks at today’s list, he will see that this group includes, for example, government Amendment 156ZB, which is an amendment to Clause 55, and government Amendments 156ZC, 156ZD, 156ZE and 156ZF. I do not mind at all whether my amendments are in another group, but I do not want to be told later that I have missed my opportunity.
Lord Meston (CB)
My Lords, I associate myself with those remarks. I stayed late, expecting to debate the question of the marriage of long-term prisoners, and was a bit concerned to see that the amendment from the noble Lord, Lord Pannick, appeared to be described as “already debated”, which I do not think it can possibly have been.
Lord Marks of Henley-on-Thames (LD)
My Lords, I will try to help once again, because I have in front of me a copy of the groupings that were sent out. The noble Lords, Lord Pannick and Lord Meston, are absolutely right that some of the consequential government amendments have been put into group 5, but group 6 certainly includes—as we were told by the Government Whips’ Office—Amendment 165ZDA and Amendment 156ZI, which is the prisoner marriage substantive stand-part amendment. If we could proceed, that would be most convenient.
Lord Pannick (CB)
I am very happy to proceed on the basis that group 6 will deal with these matters.
Baroness Thornton (Lab)
I have to say that I decided to ignore those and will discuss them in the next group, because they were in the wrong place.
Lord Bellamy (Con)
It is also the Government’s wish and position that we discuss that in the next group.
Lord Thomas of Cwmgiedd (CB)
Would it be possible to say something about what I think is common ground in this group—namely, the amendments dealing with the composition and functions of the Parole Board? This is dealt with in government Amendment 153A and Amendments 154, 155 and 156, in my name and those of the noble Lord, Lord Bach, and the noble and learned Lord, Lord Burnett.
I thank the Government for what they have done. I entirely associate myself with that, and thank the Minister and the Lord Chancellor, and anyone else from the Government who accepted all of this. I am very grateful.
However, I now want to be slightly churlish about the new chair of the Parole Board—a very important position. A new chair is to be appointed, and looking at the website I see that the deadline for the applications was 24 February, sifting was 31 March, and interviews are expected to end on 31 May. I assume that the competition is largely done but current. Maybe the Minister cannot answer this now, but the provisions in relation to the Parole Board have been significantly changed as a result of this amendment.
There are two things. I imagine there are a number of people who would never contemplate taking on a quasi-judicial position; they would not touch it with a bargepole on the basis that you could make a decision that the Secretary of State thought affected public confidence in the board. No one would become a judge if you could be removed on the whim of a government Minister; it seems equally clear that no self-respecting person could agree to be chairman of the Parole Board if they could be removed on the whim of a Minister, as was in the Bill when this competition was run.
More seriously, the role of the Parole Board chair was crafted to remove the chair from the core work of the board—that is to say, deciding cases. Everyone knows that if you sit as a judge it is critical that you are not an administrator—you cannot lead and you are not respected. It seems to me very clear that the position of the chairman of the Parole Board has to be looked at in the light of the amendments that we are about to make.
I find it somewhat disappointing that this competition has been rushed ahead with without the position of the chairman being clear. I very much hope that the Minister can give some reassurance that more time will be taken to consider this in the light of the changes to the Bill, and that the competition will not go ahead without a further opportunity for people to apply and a proper assessment made of whether the persons who are in line are competent to deal with sitting on cases.
I do not know how this has happened. I am sure it has absolutely nothing to do with the Minister, but it is very disturbing that an appointment should be made on the basis of something in the Bill which has now been radically changed. I feel very churlish to be raising this point in the light of the Government’s acceptance of these amendments, but it seems to me that, as the chairmanship of the Parole Board is so critical, as the Minister and all of us accept, we must get the right person to do it. I am not certain that it is possible to have the right person without taking into account the new qualifications. I apologise for being churlish and for asking this question, but it is rather important. Otherwise, I warmly welcome this and thank the Government for what they have done.
Lord Jackson of Peterborough (Con)
My Lords, I concede that I am the amuse-bouche of this debate, rather than the main course, as alluded to by the noble Lord, Lord Pannick. If your Lordships’ House will allow me a few minutes, I will develop my remarks on Amendment 156ZA, tabled in my name, on Parole Board hearings. I thank my noble friend Lady Lawlor for originally moving this amendment so ably in my absence—I was unavoidably detained on parliamentary business—in Committee on 25 March. Naturally, I read my noble friend Lord Howe’s response on that occasion with great care.
The amendment seeks to establish the presumption that Parole Board hearings will be open to the public, but with exceptions. It endeavours to improve public faith and trust in the criminal justice system. This is both a probing and a permissive amendment. It is a natural progression that consolidates the reforms undertaken by Ministers over the last six years.
As we know, this was prompted by public disquiet over the proposed release of serial rapist John Worboys in 2018, which resulted in a review of the parole system and a public consultation, which was published in 2022. There was a finding in the High Court that the Parole Board’s rule 25—a blanket ban on transparency and details of the board’s deliberations—was unlawful. The Government have rightly moved to address the very serious failings identified by the Worboys case by allowing summaries of Parole Board decisions to be provided to victims and other interested parties, and to allow a reconsideration mechanism introduced in 2019. This allows a prisoner and/or the Secretary of State for Justice within 21 days to seek reconsideration of several decisions taken by the board. Victims are now also permitted to seek a judicial review on the grounds that decisions are procedurally unfair or irrational. Most significantly, the Parole Board’s rule 15 was amended by secondary legislation in 2022 to enable public hearings to be facilitated, upon request to the chair of the Parole Board, “in the interests of justice”—a test utilised by the Mental Health Tribunal.
This amendment is nuanced and heavily caveated in proposed new subsections (5) and (7). It presumes no absolute right to open Parole Board hearings on the most serious cases, but it nevertheless presents a balance between the interests of the victim, prisoners and the wider criminal justice system. It imposes a statutory duty on Ministers to take note of the importance of rehabilitation, reducing recidivism, fairness and due process.
I accept that the Parole Board discharges a quasi-judicial function, but secret justice is not justice as most reasonable people would regard it. Open and transparent judicial proceedings are one of a few fundamental principles in the court system of England and Wales. Furthermore, other jurisdictions across the world, such as those in Canada and the United States, have a more open and transparent hearings regime, especially regarding the right of victims to attend and participate in such meetings.
I am not entirely convinced of the Minister’s comments in the previous Committee debate: that the changes made in the 2022 regulations definitively precluded all but a few hearings from being held in public. My amendment specifically addresses concerns about sensitive evidence, and the concerns of the victims. It permits such matters to be raised as a rationale for proceedings to be held in camera.
Finally, may I respectfully disabuse the Minister of the notion that every one of the 8,000 parole cases would be held in public? This is not the aim of the amendment, the permissive nature of which means that there is an expectation that the powers will be only lightly exercised in a minority of the cases by the Secretary of State, with checks and balances in place to protect the operational independence of the Parole Board, and a requirement to publish a review of the efficacy of the policy as it affects the interests of justice test, as well as public confidence in and support of the criminal justice system.
I look forward to hearing my noble and learned friend the Minister address these issues and explain why it is not possible to go further, in the commendable programme of reforms already undertaken, by allowing public hearings to become the default position. I thank him for engaging so positively on this important issue.
Lord Marks of Henley-on-Thames (LD)
My Lords, I am grateful to the Minister for explaining his amendments, which accept a number of points made in Committee. On the point raised by the noble and learned Lord, Lord Thomas, about the position of the chair of the Parole Board—he raised this with me a little earlier, so I have not considered it in great detail— I am bound to say that I take the view that he is exactly right: you cannot possibly proceed with a selection procedure and take it to a conclusion when you have completely changed the job description. I hope the Government will take that point away.
I will speak to my Amendment 156ZAA, which remains on the Marshalled List and remains unresolved. It is intended to reduce the trauma caused to bereaved families and victims by repeated unmeritorious applications to the Parole Board for parole by the perpetrators of crimes who are serving life sentences. The restriction of such applications would be implemented without in any way diminishing access to the Parole Board for applicants who have a genuine reason for making, after an earlier refusal, further applications that may, in the right circumstances, be made as little as a year after a refusal. I am grateful to the London Victims’ Commissioner for her help with this amendment.
The present provision in Section 28(7)(b) of the Crime (Sentences) Act 1997 provides that a prisoner serving a life sentence may not require the Secretary of State to refer the case to the Parole Board until after they have completed their minimum tariff and after the lapse of two years after any previous reference was completed. However, in practice, the Parole Board can, and frequently does, consider parole more often than every two years. Indeed, in the case of Chris Cave, stabbed to death at the age of 17 in 2003, there have been nine parole hearings after the earliest release date. His mother describes the repeated trauma of facing those parole hearings for her son’s murderer as torturing and as sometimes allowing only six months’ respite before the family has to prepare psychologically for the next parole hearing and prepare further victim impact statements.
This amendment would enable the Parole Board to direct a waiting time of between 12 months and four years before a further reference could be made—so the Parole Board could make the direction. However, if there were a direction for a waiting period of more than two years, the Parole Board would have to have a reasonable belief that the prisoner’s release prospects were unlikely to change over the period, and that decision would be reviewable.
The parole process is lengthy and is a potential time of stress for bereaved families and for victims and their families. Although such victims and bereaved families appreciate the opportunity to make impact statements and have them considered by the Parole Board, the strain of making them often is considerable and can often be retraumatising. This amendment is primarily aimed at preventing victims being subjected to that frequent stress when it is clear that nothing has changed.
We have considered concerns, which the Minister raised in Committee, that the rights of prisoners to reviews of their detention under Article 5(4) of the convention might be infringed. But we are satisfied that the flexible provisions in this amendment, including the review provision, are compliant with the convention and strike a fair balance between the rights of prisoners and those of their victims and their families.
At the same time as making this relatively modest change, we invite the Minister to say a bit more about what extra support can be offered through a perpetrator’s parole process to make that process more manageable and less frightening for the victims and bereaved families. With more public parole hearings and the trialling of victims’ attendance at closed hearings expected, the need for that support—and for sufficient resources to be allocated to providing it—is increasingly important.
The provision of further information to families is also very important and we would be grateful if the Minister would say something about the future provision of information to victims and bereaved families, either through the victim contact scheme or otherwise. Better information about the parole process is important, but such information is also needed about moves of prisoners to open conditions and their progress towards rehabilitation. That information would make the perpetrators’ process towards release much less painful for the families of their victims. I look forward to hearing what the Minister has to say about that.
Baroness Thornton (Lab)
My Lords, I am very glad that we have managed to sort out which are the right amendments in the right place through a collective effort across your Lordships’ House.
Noble Lords will recall a discussion on this matter in Committee, which is presumably what has led to these government amendments. Like the noble and learned Lord, Lord Thomas, I welcome them, but his questions about the appointments process are absolutely legitimate and feed into what we said in Committee—that the Government need to recognise the independence of the Parole Board and understand the risks of politicisation. The original Bill seemed to be government proposals in search of an actual problem to solve. The decision on the composition of the board should be a decision for the board.
The 2019 Ministry of Justice review of the Parole Board Rules stated:
“Restrictions on which panel members can hear particular types of case have gradually been lifted over time … to allow greater flexibility and timeliness in listing the right cases for the right panel members and we do not wish to undo the improvements this has achieved”.
That was echoed by Martin Jones, the chief executive of the Parole Board, when he gave evidence to the Commons committee.
So we are in a better place than we were at the beginning of this Bill, but the issues raised by the noble Lord, Lord Marks, are very legitimate and require the Government’s attention and an answer. The noble Lord, Lord Jackson, raised some very interesting points about how the board operates and its accessibility. That is a difficult issue, because it sometimes deals with sensitive and controversial matters. I will be interested to hear what the Minister has to say about that, because its decisions by their nature are sensitive and controversial and the Government should keep the new additional power in sub-paragraph (2C) inserted by Clause 54 under review. Removing the chair because a decision in an individual case is unpopular, as the noble and learned Lord, Lord Thomas, said, would influence the panel’s decisions and I think is not the way the committee and the House wish to see this go.
Lord Bellamy (Con)
My Lords, I begin with the amendments proposed by the noble and learned Lord, Lord Thomas. It was not in the least bit churlish to raise this point about the process for the appointment of the new chair of the Parole Board. I have no reason to believe that this is not a fully effective appointments process, but I am not informed of the detail at this moment, and I will write to all noble Lords to set out what the position is.
I take it that the amendments proposed by the Government remove the need for the noble and learned Lord, Lord Thomas, to move his Amendments 155 and 156. I was not entirely clear on whether the noble and learned Lord is still moving Amendment 154, which relates to the law enforcement members of the Parole Board. In response to the noble Baroness, Lady Thornton, I simply emphasise that nothing in the government amendments decides which individual members sit on which panel in individual cases. That remains the responsibility of the board, and that is right and proper. So I will not say anything further about that group of amendments.
I then come to Amendment 156ZA, proposed by my noble friend Lord Jackson. I thank him for the amendment because, as has been pointed out, it does raise some interesting and important issues. Once again, it is effectively a question of balance between all the various interests: victims, prisoners, confidentiality, details of health, et cetera. To recap, the provision for public parole hearings was introduced in 2022, allowing any hearing to be conducted in public if the chair of the Parole Board decides that it is in the interests of justice to do so. That changed the previous position, where all hearings were held in private. The amendment proposed by my noble friend would change that position so that all hearings would be in public by default, and a private hearing would take place only in exceptional circumstances.
The Government’s position on this amendment has not changed since it was explained in Committee and, if I may put it colloquially, the Government feel that we are still in the relatively early stage of developing and gaining experience from how the Parole Board manages public hearings. We are not yet ready to go as far as my noble friend would like us to go at this point. That is the essential answer to his point—but I do not close off the question at all. As has also been pointed out, it is part of a consideration of the continuous process of updating and reviewing the workings of the Parole Board as circumstances evolve.
To respond to the specific 8,000 hearings point raised by my noble friend, the Parole Board holds more than 8,000 hearings a year. This amendment would require the Secretary of State and the Parole Board to consider the merits of having a public hearing in every case. Victims would need to be contacted in every case, which would potentially add to their trauma. It is more complex and takes longer to have public hearings, and that may well delay proceedings further. To date, the Parole Board has published decisions for just 32 public hearing applications since 2022, eight of which have been granted. That suggests to the Government that the demand for public hearings is not, in fact, especially high, but I again emphasise that the situation is still evolving and that we need to continue to learn from the practice of the day. I very much understand the desire to create more openness, transparency and trust in the parole system, but I would not wish to create new administrative burdens on the system, potentially slowing it down. On the other hand, I do not feel that this amendment can be pursued at this point in time. I therefore urge the noble Lord to withdraw it.
Amendment 156ZAA, tabled again by the noble Lord, Lord Marks of Henley-on-Thames, concerns the interval between hearings and seeks to allow the Parole Board to direct the period of time. It aims to deal with the problem, as he would put it, of repeated applications. The Government are not able to change their position from that set out in Committee. The current system already provides for flexibility in the time set for the prisoner’s next parole review, and it is HMPPS—not the board—that currently sets that interval. HMPPS considers a range of factors in deciding when to refer the prisoner to the Parole Board on behalf of the Secretary of State. Reasons must be given for the length of the interval between reviews, including the Parole Board’s reasons for declining to direct the prisoner’s release at the conclusion of the last review and the interventions required to allow them to progress. The closer the interval length is to the two-year limit, the greater the justification required for the time between reviews.
Lord Bellamy
“(2) After subsection (5C) insert—“(5D) Rules under subsection (5) may also make provision for functions of the Board (including judicial functions) to be exercised by employees of the Board, other than any function so far as its exercise involves—(a) making a public protection decision in relation to a prisoner within the meaning of section 237A(2) of this Act or section 28ZA(2) of the 1997 Act;(b) giving a direction for the release of a prisoner on licence under this Chapter or under Chapter 2 of Part 2 of the 1997 Act;(c) making a decision or giving a direction under subsection (4) or (4F) of section 31A of the 1997 Act (imprisonment or detention for public protection: termination of licences);(d) reconsidering a decision or setting aside a decision or direction under provision made by virtue of subsection (5A).””Member's explanatory statement
This amendment allows for Parole Board Rules to provide for functions of the Board (including judicial functions) to be exercised by employees of the Board, subject to exceptions.
Lord Bellamy
“(1) Paragraph 2 of Schedule 19 to the Criminal Justice Act 2003 (membership of the Parole Board) is amended as follows.”Member's explanatory statement
This amendment is consequential on my amendment of Clause 54, page 55, line 1.
Member's explanatory statement
This amendment is consequential on my amendment of Clause 54, page 55, line 1.
The Deputy Speaker (Baroness Finlay of Llandaff) (CB)
If Amendment 154D is agreed, I cannot call Amendments 155 or 156 due to pre-emption.
Amendment 154D
Lord Bellamy
Member's explanatory statement
This amendment leaves out provisions relating to the appointment, resignation, dismissal and functions of the chair and vice-chair of the Parole Board.
Lord Roborough (Con)
My Lords, with the permission of the House, I suggest that we de-group this amendment and begin the next debate with Amendment 156ZB, as today’s list is not giving the correct information.
Amendment 156ZB
Lord Bellamy
Member's explanatory statement
This amendment is consequential on new subsection (3A) of section 27A of the Marriage Act 1949, inserted by my amendment of Clause 55, page 57, line 19.
The Deputy Speaker (Baroness Finlay of Llandaff) (CB)
For the convenience of the House, as we have just agreed to de-group the amendments, it would be helpful if the Minister could introduce this group.
Lord Bellamy (Con)
We are now on what was group 6. In any event, the Government are bringing forward Amendments 156ZB to 156ZD and 156ZE to 156ZH. These are technical amendments and do not change the policy, which remains as set out on previous stages of the Bill. The amendments make minor revisions to the drafting of Clauses 55 and 56. Importantly, they ensure that registrars have all the information they need at the point they consider an application to marry or to enter into a civil partnership. The information needed is whether an applicant or their intended spouse or civil partner is a whole-life prisoner and, if so, whether they have been granted an exemption from the Secretary of State. They also make some minor changes to clarify the procedure and to update related legislation in line with the reforms. For the reasons that I have just given, I ask that Clauses 55 and 56 stand part of the Bill and invite noble Lords to support these government amendments.
Lord Pannick (CB)
My Lords, I have tabled my opposition to Clauses 55 and 56, which noble Lords know will prohibit a prisoner serving a whole-life tariff from entering into a marriage or a civil partnership with another person without the written permission of the Secretary of State, with that permission to be granted only if the Secretary of State is satisfied that there are exceptional circumstances. I am very pleased to be joined in my opposition to these clauses by the noble Lords, Lord Bach and Lord German—the latter of whom unfortunately cannot be in his place tonight—both of whom spoke very powerfully on this topic in Committee.
I am also very pleased to be joined by the noble Lord, Lord Carter of Haslemere, whom I first met when he was a legal adviser at the Home Office from 1989 to 2006. We used to travel together to Strasbourg to defend the United Kingdom against allegations that it had breached the European Convention on Human Rights. Our record in court was mediocre at best, but the lunches were excellent, and I have great admiration for his expertise and judgment. I very much look forward to what he has to say on this subject.
Why have we brought this matter back on Report? It is not because I have any expectation of changing the Government’s mind, and it is not because I intend to divide the House, particularly at this late hour. My motive is simply to ensure that we record why this is an objectionable measure which has no conceivable justification. There are three reasons why I express such a critical view of these clauses. First, the Government’s reason for conferring this power on the Secretary of State and imposing this disability is so weak. In Committee, the Minister, the noble Lord, Lord Roborough, suggested that these measures will
“drive up public confidence in the justice system”.—[Official Report, 25/3/24; col. 491.]
I can think of many reasons why confidence in the criminal justice system has been undermined: the unacceptable delays in hearing trials in which defendants are accused of serious offences; the fact that so many courtrooms cannot be used because of their poor state of repair; the low rates of pay for prosecutors; and the low rates of legal aid renumeration for criminal barristers and solicitors, which has substantially reduced the number of lawyers available in criminal cases. What I have never heard anyone say is, “My confidence in the criminal justice system has been undermined because whole life prisoners are able to marry”. It is preposterous.
My second reason for objecting to these provisions is that they are wrong in principle. We all know, and the Minister emphasised in Committee, that whole life orders are reserved for those who have committed the most serious crimes—awful crimes of serial or child murders involving premeditation or sexual or sadistic violence. However, this does not mean that we deny such prisoners basic rights. However repellent their crimes, whole life prisoners are allowed to eat more than a crust of bread; they are allowed to exercise; they are allowed to read books, to watch television and to send and receive letters. The right to marry another consenting adult is also a basic right. National law may limit the exercise of that right—you cannot marry your brother, a 12 year-old or your dog—but what the state cannot do, consistent with human rights, is impose restrictions so extreme that they impair the very essence of the right to marry. That is the test repeatedly stated in the consistent case law of the European Court of Human Rights.
The Minister in Committee suggested that the Government consider that Article 12 of the European convention allows for a restriction on the right to marry to be in the public interest. However, that does not assist the Government because there is a judgment of the Strasbourg court in a case concerned with prisoners. It is Frasik v Poland in 2010. The court recognised at paragraph 91:
“Imprisonment deprives a person of his liberty and… some civil rights and privileges. This does not, however, mean that persons in detention cannot, or can only very exceptionally, exercise their right to marry”.
The court added, at paragraph 93, that the state cannot prevent a prisoner exercising the right to marry because of the view of the authorities as to what
“might be acceptable to or what might offend public opinion”.
That is precisely the basis on which this Government purport to justify Clauses 55 and 56 of the Bill—public opinion, public confidence. I ask the Minister, how can the Government maintain the statement, made by the Secretary of State for Justice on the front of the Bill, that Clauses 55 and 56, like the rest of the Bill, are compatible with Convention rights?
Lord Carter of Haslemere (CB)
My Lords, it is a real privilege to support my noble friend Lord Pannick in this debate on whether these clauses should stand part of the Bill. As he has said, back in the 1990s, in another life, he and I used to travel to Strasbourg together to fight prisoners’ cases on prisons law. It is no exaggeration at all to say that I acquired most of my public law knowledge from working with and learning from my noble friend on these and other issues.
Prisons issues back in the 1990s were at the very cutting edge of the development of human rights law. Here we are again, about 30 years later, discussing basic human rights for prisoners such as the right to marry and to form a civil partnership. But it is about much more than that. It is about how as a society we treat those we lock up. Someone said, it may have been Gandhi, that the way we treat those we imprison is a measure of how civilised we are—
Lord Carter of Haslemere (CB)
It was Winston Churchill; I am corrected—both great names.
If we have progressed at all from the way prisoners were treated in the past, we should be enabling whole-life prisoners to find some meaning and purpose in a life that is certain to end in prison. This includes providing opportunities for them to have some social interaction and build relationships, even though they can never expect to be released—in fact, especially because they can never expect to be released. This reflects the long-standing legal position. It is trite law now that prisoners enjoy basic human rights, such as respect for their private and family life, their religion, freedom of expression and access to a lawyer etc. Under Article 12, prisoners have the right to marry and form a civil partnership.
My noble friend Lord Pannick has already referred to the case of Frasik. I will quote again that passage from the court’s judgement, because it is so powerful. Imprisonment, the court said, does not mean that those detained
“cannot, or can only very exceptionally, exercise their right to marry”.
Yet is that not exactly what Clauses 55 and 56 say? The ECHR memorandum conveniently sidesteps that by saying that marriage by whole-lifers
“undermines public confidence in the Criminal Justice System”.
We have just heard from my noble friend Lord Pannick on that one; it is, in effect, code for “offends public opinion”. But the Frasik judgment, as my noble friend said, says that the Bill cannot do that—it cannot automatically prevent prisoners forming marital relationships.
It is not all about the law either. Compelling legal points, such as those we have mentioned, often arise from a rotten policy, which is what we have here. The Government’s justification seems to be the case of Levi Bellfield. Awful as that is as an example of the right to marry being abused, it is one case of about 70 whole-lifers in the system. They have all committed terrible crimes, but their whole-life tariffs are the punishment for that. Even Ministers have recognised that we send people to prison as punishment, not for punishment. Automatically denying prisoners, even whole-life prisoners, the right to marry or enter a civil partnership amounts to nothing more than the state imposing additional, entirely gratuitous punishment on this cohort of prisoners for no reason other than to show the public that it is tough on crime.
The noble Lord, Lord Ponsonby, expressing his personal views at Second Reading, put it well when he described it as a “petty measure”. The noble Lord, Lord German, who unfortunately cannot be with us tonight, rightly called it cruel. It also punishes prisoners’ partners, who are entirely innocent in all this. It punishes them emotionally, of course, but it may also affect their entitlement to, for example, a widow’s pension on the death of a whole-life prisoner or a spouse’s exemption from inheritance tax. Has any consideration been given to the effects of this policy on partners? I would be most grateful to know the answer to that.
There is a simple solution to the Government’s wholly justified concern about the Levi Bellfield case, which would deal with all the legal and policy objections that have been mentioned. The existing law entitles a prison governor to refuse an application to marry or form a civil partnership only if it would create a security risk to the prison. Why not ditch Clauses 55 and 56 and legislate to widen the basis for refusing such applications to include cases where there are reasonable grounds for believing that the application is not made in good faith but from some improper motive? This could easily be made legally watertight to minimise the possibility of unfounded legal challenges.
In conclusion, and at this late hour, in the dying breaths of the Bill, I urge the Minister to ignore the word “reject”, which is in his briefing notes in capital letters, underlined, in bold type. Why not surprise everybody, not least his officials, by agreeing now to remove Clauses 55 and 56 and adopt the more proportionate, but no less effective, solution that I have just proposed?
Lord Bach (Lab)
My Lords, I do not intend to say much, for the very good reason that I do not have to. The arguments put forward by the noble Lord, Lord Carter of Haslemere, and particularly by the noble Lord, Lord Pannick, are overwhelming. I do not want to put the Minister, for whom I have huge respect, on the spot, but I have a suspicion that he has more than a bit of sympathy for the arguments that have been put.
The only point I want to make is this: commentators have said that, when the Minister and the Secretary of State came to their positions, there was likely to be a different attitude towards issues of this kind than there was under some predecessors. The evidence is that that is true, and we have seen examples tonight and this afternoon of the Minister no doubt using his influence in persuading the Secretary of State to have sensible views and change the Bill where it needed to be changed.
This is exactly a case of a clause that is both against the European legislation we have adopted and against all common sense; it should be removed. It would be a real shame if this Bill, which contains some really excellent stuff on both prisoners and victims, has at the tail end of it, as the noble Lord said, this rather ridiculous and very anti-British way of dealing with this issue—so I do ask the Minister to please think again.
Lord Meston (CB)
My Lords, I raised questions about Clause 55 and how it might operate in practice at Second Reading that were really not answered. I make no criticism; the Minister had a lot to deal with. I regret not being able to participate in Committee. But I have devoted quite a lot of my professional life to the formation and validity of marriage, and therefore in the context of this Bill I would like to point out that the question of whether and to what extent certain marriages should be restricted or governed by statute faces two underlying problems.
First, it is generally not necessary for anybody otherwise qualified to marry to have any good or creditable reason to do so. I mention that in the context of my noble friend Lord Carter’s suggestion that possibly in these circumstances prison governors should question the motives and have the ability to do so, and that that may be the way through this problem. I have to say that research suggests that the decision to marry is rarely reached on rational grounds—and indeed the same research revealed that 3% of those surveyed did not know why they were getting married at all.
Secondly, and altogether more seriously, there is the fundamental right to marry, stated in Article 12 of the ECHR. That is a right that long predated that convention in this country. However, it was Article 12 that underpinned the Marriage Act 1983, which allowed for marriages of those detained in prison, for essentially pragmatic reasons. It was legislation that did not attract criticism—indeed, only newspaper headlines such as “Get Me to the Jail on Time”. Article 12 also led to the extension of the Marriage (Prohibited Degrees of Relationship) Act 1986, which I had a part in, believe it or not, and which set mankind free to marry their mothers-in-law.
The restrictions proposed in this Bill on specific marriages were understandably prompted by the attention-seeking attempts by particular convicted prisoners to marry—something that many people, no doubt including their victims and their victims’ families, will have found grossly offensive. Nevertheless, the underlying points emphasised by all noble Lords who have spoken so far simply cannot be ignored.
If Article 12 rights are to be curtailed and qualified simply by reference to the nature of the sentence being served or by vague concepts of public interest, the Government really should spell out more clearly the justification for the proposed restrictions and should clearly indicate the circumstances likely to satisfy the Secretary of State that they are “exceptional circumstances”. At Second Reading, I suggested that they might include terminal illness, but I can see that it ought probably to go wider than that. Otherwise, we are simply going to be storing up problems and litigation for the future.
Baroness Brinton (LD)
My Lords, from these Benches, and in the absence of the noble Lord, Lord German, I want to say that we have had a fascinating, amusing, witty, but actually very important debate. We on these Benches completely support everyone who has spoken so far. I know that there is no question of moving to a vote, but it is something that we fundamentally believe in.
Baroness Thornton (Lab)
My Lords, from these Benches I express irritation that we have these in the Bill at all. We have spent the last two or three months working across the House, improving and building a new framework for victims. It is, let us just say, very puzzling that these are in the Bill.
Lord Bellamy (Con)
I thank the noble Lord, Lord Pannick, for tabling his amendments, and of course I thank the noble Lords, Lord Carter, Lord Meston, Lord Bach and others for their eloquence. I can well understand the feelings expressed. I of course recognise that the noble Lord, Lord Carter, together with the noble Lord, Lord Pannick, has spent many hours in Strasbourg defending the United Kingdom, and in that context, although the noble Lord, Lord Pannick, was modest enough—probably inaccurately—to say that his results had been mediocre, in fact the United Kingdom has, if not the best, at least one of the best records in Strasbourg of respecting human rights.
The question of the compatibility of this particular provision with Article 12 of the ECHR has been very carefully considered—otherwise the Secretary of State would never have given the certificate in the first place.
The Government’s arguments were set out in Committee and I am not sure it is particularly useful at this late hour—especially as it is 10.01 pm—to repeat them. In the Government’s view, the measures are proportionate and apply to a very small cohort of the most serious offenders who have committed the most serious crimes. As of last December, there were 67 whole-life prisoners in England. Because they will never be released, their ability to enjoy anything resembling normal married life is already lawfully and legitimately restricted in a very significant way.
In the Government’s view, the measures are justified on the basis of public interest, as already set out in Committee. The public’s confidence in, and respect for, the justice system is a matter for which any elected Government must have regard—and that of course includes the feelings of victims. The one cause célèbre that has been mentioned did have an important impact in that regard.
I would add only that the measures do not prevent whole-life prisoners benefiting from supportive relationships while in custody, in the same way as other prisoners. We are simply talking about being married or in a civil partnership, and not being able to do that does not have any practical impact on an individual’s ability to maintain a relationship with a prisoner, and does not provide any additional rights or detriments in terms of visits or communications.
I am very sorry to disappoint the noble Lord, Lord Carter, in particular. I do not have any authority to simply drop these clauses, nor am I able to indicate in any way what my personal views may or may not be. I hope I have provided at least some reassurance and I respectfully suggest that the noble Lord withdraws his amendment.
Lord Pannick (CB)
I thank the Minister. I also ask him to give a very modest undertaking this evening that, before Third Reading, he will ask the Secretary of State to consider the proposal from the noble Lord, Lord Carter, as a way of solving the perceived problem, without including in the Bill a clause that so many of us regard as objectionable. I ask him to kindly give that undertaking—with of course no commitment whatever.
Lord Bellamy (Con)
I can and will and do give that undertaking.
Amendment 156ZB agreed.
Amendments 156ZC and 156ZD
Lord Bellamy
Member's explanatory statement
This amendment is consequential on new subsection (3A) of section 27A of the Marriage Act 1949, inserted by my amendment of Clause 55, page 57, line 19.
“(1A) In section 27ZA of the Marriage Act 1949 (circumstances in which a notice of marriage is not to be recorded in the marriage register), in paragraph (a), at the appropriate place insert—“section 27A(3A);”(1B) In section 27A of the Marriage Act 1949 (additional information required in certain cases)—(a) in subsection (3) (case where marriage intended to be solemnized at detained person’s residence)—(i) omit the “and” at the end of paragraph (a);(ii) at the end of paragraph (b) insert “; and(c) stating whether the person is serving a life sentence and, if so, whether the person is subject to a whole life order.”;(b) after subsection (3) insert—“(3A) Where the relevant person is a detained person who is serving a life sentence and is subject to a whole life order, each notice of marriage required by section 27 of this Act must also be accompanied by a statement made by the Secretary of State not more than twenty-one days before the date on which notice of the marriage is given under section 27 stating that the relevant person has the permission required by section 2A(2).”(c) in subsection (6), for “or (as the case may be) (3)” substitute “, (3) or (3A)”;(d) in subsection (7), before the definition of “medical statement” insert—““life sentence” and “whole life order” have the meanings given by section 2A(5) of this Act and section 2A(6) (persons treated as being subject to a whole life order) applies for the purposes of this section; and””Member's explanatory statement
This amendment makes provision about notices of marriage in consequence of Clause 55 (whole life prisoners prohibited from forming a marriage).
Lord Bellamy
Member's explanatory statement
This amendment is consequential on my amendment of Clause 56, page 58, line 20.
Member's explanatory statement
This amendment is consequential on new subsection (5A) of section 19 of the Civil Partnership Act 2004, inserted by my amendment of Clause 56, page 58, line 20.
Member's explanatory statement
This amendment is consequential on new subsection (5A) of section 19 of the Civil Partnership Act 2004, inserted by my amendment of Clause 56, page 58, line 20.
“(5) In section 9F of the Civil Partnership Act 2004 (recording of information in the register: compliance with requirements), at the appropriate place insert—“section 19(5A);”(6) Section 19 of the Civil Partnership Act 2004 (detained persons) is amended in accordance with subsections (7) to (9).(7) In subsection (4) (supporting statement)—(a) omit the “and” at the end of paragraph (a);(b) after paragraph (b) insert “, and(c) states whether the person is serving a life sentence and, if so, whether the person is subject to a whole life order.”(8) After subsection (5) insert—“(5A) Where the detained person is serving a life sentence and is subject to a whole life order, each notice of proposed civil partnership must also be accompanied by a statement made by the Secretary of State not more than 21 days before the day on which the notice is recorded stating that the detained person has the permission required by section 3(1A).(5B) The fact that the registration authority to whom a notice of proposed civil partnership is given has received a statement under subsection (5A) must be recorded in the register.”(9) After subsection (7) insert—“(7A) “Life sentence” and “whole life order” have the meanings given by section 3(3) of this Act and section 3(4) (persons treated as being subject to a whole life order) applies for the purposes of this section.””Member's explanatory statement
This amendment makes provision about notices of proposed civil partnership in consequence of Clause 56 (whole life prisoners prohibited from forming a civil partnership).
Lord Bellamy
Member's explanatory statement
This amendment enables regulations to be made amending other legislation in consequence of provisions in Part 1, 2 or 4 of the Bill other than those currently listed. The affirmative Parliamentary procedure is required for amendments to primary legislation.
“(1A) Each of the following may by regulations make provision that is consequential on, or on regulations under, Part 3—(a) the Secretary of State or the Minister for the Cabinet Office,(b) the Welsh Ministers,(c) the Scottish Ministers, and(d) a Northern Ireland department.(1B) Regulations under subsection (1A)—(a) made by the Welsh Ministers, may contain only provision which would be within the legislative competence of Senedd Cymru if it were contained in an Act of the Senedd;(b) made by the Scottish Ministers, may contain only provision which would be within the legislative competence of the Scottish Parliament if it were contained in an Act of that Parliament;(c) made by a Northern Ireland department, may contain only provision which—(i) would be within the legislative competence of the Northern Ireland Assembly if it were contained in an Act of that Assembly, and(ii) would not, if it were contained in a Bill in the Northern Ireland Assembly, result in the Bill requiring the consent of the Secretary of State under section 8 of the Northern Ireland Act 1998.”Member's explanatory statement
This amendment confers power to make consequential amendments relating to Part 3 of the Bill on the Secretary of State or the Minister for the Cabinet Office, the Welsh Ministers, the Scottish Ministers and a Northern Ireland department.
Member’s explanatory statement
This amendment enables legislation passed or made after the current session of Parliament to be consequentially amended by regulations under Clause 58.
Earl Howe (Con)
My Lords, I shall speak to Amendment 156BA and to the three further government amendments in this group. Yesterday’s publication of the infected blood inquiry’s final report has laid bare the devastating tragedy and suffering that far too many people have endured as a result of the infected blood scandal. I trust and hope that the House is assured of the Government’s commitment to compensate victims of this dreadful scandal, and to do so as quickly as possible. Noble Lords will have seen that I have withdrawn government Amendments 162 and 165, which would make early commencement provisions for the establishment of the infected blood compensation authority and interim payments to the estates of deceased infected people. Having done so, I am now proposing to replace those amendments with government Amendment 162AA, the effect of which is to ensure that all provisions under Part 3 will be available to government on Royal Assent. This will ensure what I know is the wish of all noble Lords: that there will be no unnecessary delay to implementation of the infected blood compensation scheme.
This group also contains further consequential amendments—government Amendments 157CB and 157CC—which allow for consequential amendments of other legislation to be made to ensure that the legislation operates as intended. I beg to move.
Baroness Brinton (LD)
My Lords, from these Benches, we are very grateful that the Government have agreed to move forward with these amendments. It is extremely important that things move at pace. Obviously, there is always a bit of concern about a regulation that can revoke primary legislation, but given the circumstances, it is completely understandable. Given the lateness of the hour, I will stop there.
Lord Ponsonby of Shulbrede (Lab)
My Lords, I agree with the noble Baroness, Lady Brinton. We welcome these amendments.
Member’s explanatory statement
This amendment is consequential on the regulation making powers conferred by my amendments to Part 3 of the Bill and my amendment to clause 58, page 58, line 31.
“(2A) For regulations made under section 58(1A) by the Scottish Ministers, see section 27 of the Interpretation and Legislative Reform (Scotland) Act 2010 (asp 10) (Scottish statutory instruments).(2B) The power of a Northern Ireland department to make regulations under section 58(1A) is exercisable by statutory rule for the purposes of the Statutory Rules (Northern Ireland) Order 1979 (S.I. 1979/1573 (N.I. 12)).”Member’s explanatory statement
This amendment is consequential on my amendment to clause 58, page 58, line 31.
“(2A) A statutory instrument containing (alone or with other provision) the first regulations made by the Secretary of State or the Minister for the Cabinet Office under section (Infected blood compensation scheme) must be laid before Parliament after being made. (2B) Regulations contained in a statutory instrument laid before Parliament under subsection (2A) cease to have effect at the end of the period of 28 days beginning with the day on which the instrument is made unless, during that period, the instrument is approved by a resolution of each House of Parliament.(2C) In calculating the period of 28 days, no account is to be taken of any whole days that fall within a period during which—(a) Parliament is dissolved or prorogued, or(b) either House of Parliament is adjourned for more than four days.(2D) If regulations cease to have effect as a result of subsection (2B), that does not—(a) affect the validity of anything previously done under the regulations, or(b) prevent the making of new regulations.(2E) Any other statutory instrument containing (alone or with other provision) regulations made by the Secretary of State or the Minister for the Cabinet Office under section (Infected blood compensation scheme) may not be made unless a draft of the instrument has been laid before and approved by a resolution of each House of Parliament.”Member’s explanatory statement
This amendment provides for the first regulations about the infected blood compensation scheme to be subject to the made affirmative procedure, and subsequent regulations to be subject to the affirmative procedure.
“(2A) A statutory instrument containing (alone or with other provision) regulations made by the Secretary of State or the Minister for the Cabinet Office under section (Payments to personal representatives of qualifying infected persons)(10) (unless it is a statutory instrument to which subsection (2A) applies) may not be made unless a draft of the instrument has been laid before and approved by a resolution of each House of Parliament.”Member’s explanatory statement
This amendment provides for regulations under subsection (10) of my new clause about payments to personal representatives of qualifying infected person to be subject to affirmative procedure, unless subject to made affirmative procedure under the subsection (2A) inserted by my amendment to clause 59, page 59, line 8 inserting subsections (2A) to (2E).
“(2A) A statutory instrument containing (alone or with other provision) regulations made by the Secretary of State under section (Disclosures by victims that cannot be precluded by agreement) may not be made unless a draft of the instrument has been laid before and approved by a resolution of each House of Parliament.”Member’s explanatory statement
This amendment replaces my amendment 157 with revised provision to enable a statutory instrument containing regulations under Clause (Disclosures by victims that cannot be precluded by agreement), which are subject to the affirmative Parliamentary procedure, to include consequential provision.
Member’s explanatory statement
This amendment enables a statutory instrument containing regulations under Clause 58 that amend, repeal or revoke primary legislation, which are subject to the affirmative Parliamentary procedure, to also contain the regulations on which they are consequential.
Member’s explanatory statement
This amendment provides for regulations made under clause 58(1A) (inserted by my amendment to clause 58, page 58, line 31) to be subject to affirmative procedure if they amend primary legislation.
Member’s explanatory statement
This amendment disapplies affirmative procedure to regulations which amend primary legislation if they are subject to the made affirmative procedure under the subsection (2A) inserted by my amendment to clause 59, page 59, line 8 inserting subsections (2A) to (2E).
Member’s explanatory statement
This amendment is consequential on the regulation making powers conferred by my amendments to Part 3 and to clause 58, page 58, line 31.
“(4A) A statutory instrument containing regulations made by the Treasury under paragraph 21 of Schedule (Infected blood compensation scheme) is subject to annulment in pursuance of a resolution of the House of Commons.(4B) A statutory instrument made by the Welsh Ministers containing regulations under section 58(1A) that amend, repeal or revoke primary legislation (within the meaning of section 58) may not be made unless a draft of the instrument has been laid before, and approved by a resolution of, Senedd Cymru.(4C) Any other statutory instrument made by the Welsh Ministers under section 58(1A) is subject to annulment in pursuance of a resolution of Senedd Cymru.(4D) Regulations made by the Scottish Ministers under section 58(1A) that amend, repeal or revoke primary legislation (within the meaning of section 58) are subject to the affirmative procedure (see section 29 of the Interpretation and Legislative Reform (Scotland) Act 2010 (asp 10)).(4E) Any other regulations made by the Scottish Ministers under section 58(1A) are subject to the negative procedure (see section 28 of the Interpretation and Legislative Reform (Scotland) Act 2010 (asp 10)).(4F) Regulations made by a Northern Ireland department under section 58(1A) that amend, repeal or revoke primary legislation (within the meaning of section 58) may not be made unless a draft of the regulations has been laid before, and approved by a resolution of, the Northern Ireland Assembly.(4G) Any other regulations made by a Northern Ireland department under section 58(1A) are subject to negative resolution within the meaning given by section 41(6) of the Interpretation Act (Northern Ireland) 1954 (c. 33 (N.I.)).” Member’s explanatory statement
This amendment specifies the procedures for regulations made by the Treasury under paragraph 21 of my new Schedule and regulations made by the Welsh Ministers, Scottish Ministers or a Northern Ireland department under clause 58(1A) (inserted by my amendment to clause 58, page 58, line 31).
Lord Bellamy
“(da) Part 3;”Member's explanatory statement
This amendment provides for Part 3 of the Bill, dealing with infected blood compensation, to have UK extent.
“(5) His Majesty may by Order in Council provide for any of the provisions of Part 3 to extend, with or without modifications, to—(a) any of the Channel Islands;(b) the Isle of Man;(c) Gibraltar;(d) the Falkland Islands.”Member's explanatory statement
This amendment confers power to extend Part 3 to the Channel Islands, Isle of Man, Gibraltar or the Falkland Islands by Order in Council.
Lord Bellamy
Member's explanatory statement
This amendment and my other amendments of Clause 61, page 59, line 27, provide for the provisions of the Bill specified in those amendments to come into force on Royal Assent
Lord Bellamy
“(a) section 53(1) and (2);”Member's explanatory statement
This amendment provides for the amendment to the Criminal Justice Act 2003 (which allows Parole Board Rules to provide for functions of the Board to be exercised by employees of the Board) made by my amendment of Clause 53, page 54, line 21 to come into force on Royal Assent.
“(a) Part 3;(b) this Part.” Member's explanatory statement
This amendment provides for all of Part 3 (infected blood) to come into force on Royal Assent. It replaces my amendments 162 and 165, which provided for certain provisions of Part 3 to come into force on Royal Assent and the rest to be brought into force by regulations.
The Deputy Speaker (Lord Beith) (LD)
If Amendment 162B is agreed to, I cannot call Amendment 163 in the name of the noble Baroness, Lady Brinton, by reason of pre-emption.
Amendment 162B
Lord Bellamy
Member's explanatory statement
This amendment is consequential on my amendment of Clause 61, page 59, line 27 that provides for provisions about the Parole Board rules to come into force on Royal Assent.
Lord Bellamy
Member's explanatory statement
This amendment is consequential on my amendment to Clause 61, page 59, line 29.
Lord Bellamy
“(a) Parts 1, 2 or 4, or(b) this Part.”Member's explanatory statement
This amendment is consequential on my other amendment to clause 61, page 59, line 31.
“(3A) The Secretary of State or the Minister for the Cabinet Office may by regulations make transitional or saving provision in connection with the coming into force of any provision of Part 3.”Member's explanatory statement
This amendment provides that the Secretary of State or the Minister for the Cabinet Office may by regulations make transitional or saving provision in connection with the coming into force of any provision of Part 3.
Lord Bellamy
Member's explanatory statement
This amendment adds a reference to the infected blood compensation scheme to the long title.