Mortgage Prisoners Inquiry Bill [HL]
Lord Sharkey (LD)
My Lords, I would like to take this opportunity to thank all those who have supported the Bill and the wider effort to bring justice to mortgage prisoners. In particular, I thank the noble Earl, Lord Lytton, the noble Baroness, Lady Bennett of Manor Castle, the noble Lord, Lord Altrincham, and the right reverend Prelate the Bishop of Chelmsford for their contributions at Second Reading. I also thank my invaluable colleague Dominic Lindley. The Bill may be leaving us now, but the campaign for relief for the mortgage prisoners will continue.
The Earl of Effingham (Con)
My Lords, I thank the noble Lord, Lord Sharkey, for his tireless work on proactively raising awareness of this issue and continuing to maintain that dialogue. The nearly 200,000 individuals trapped as mortgage prisoners will be thanking him as he keeps up the momentum. People who are unable to secure better mortgage terms for a whole range of reasons often suffer challenging financial hardship and its detrimental knock-on effects, particularly in a world of heightened interest rates as a result of the many geopolitical risks of the past few years. This issue is a well-documented problem that has its roots largely in the 2008 financial crisis.
His Majesty’s Official Opposition understand the frustration of mortgage prisoners across the country, and we support the noble Lord, Lord Sharkey, in his efforts to bring the challenges mortgage prisoners face to the attention of His Majesty’s Government, with a view to finding a resolution to this long-standing problem. These challenges are ruining lives:
“It’s a constant, daily battle to get up and get on with the day knowing that at the end of it there’s nothing to show for it other than being able to maintain the roof over my head”.
It is only right that your Lordships’ House continues its work to raise the profile of this issue.
When we debated the Bill at Second Reading, we raised concerns about the lengthy nature of inquiries, and we hope that the Government will seek resolution as swiftly as possible. We should not risk delaying that process.
Lord in Waiting/Government Whip (Lord Leong) (Lab)
My Lords, I thank the noble Lord, Lord Sharkey, for his continued commitment to this important issue, and all noble Lords who have contributed their perspectives to the debate. As discussed at Second Reading, the origins and treatment of mortgage prisoners have been subject to close consideration by Parliament, the Treasury Committee and the Financial Conduct Authority. The circumstances of mortgage prisoners are not a matter the Government take lightly.
However, the Government consider that the Bill is not necessary. It would divert resources and focus on to issues that have already been extensively scrutinised, and our assessment continues to be that the correct process was followed when these mortgages were sold back to the private sector in the years after the financial crisis. Since then, the Financial Conduct Authority has introduced further protections, including a modified affordability assessment and, more recently, the consumer duty, which places clear obligations on all mortgage lenders to ensure fair treatment for their customers.
Nevertheless, the Government remain committed to ongoing engagement with both industry and regulators to ensure that the needs of affected borrowers continue to receive careful and thorough consideration. Although the Government maintain their reservations about the Bill, I again thank the noble Lord, Lord Sharkey, for bringing this matter before the House and for his continued engagement on behalf of those affected.
UK Constitution: Oversight and Responsibility (Report from the Constitution Committee)
(1 day, 15 hours ago)
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Lord Beith
That this House takes note of the Report from the Constitution Committee Executive oversight and responsibility for the UK constitution (6th Report, HL Paper 72).
Lord Beith (LD)
My Lords, I will speak to the Constitution Committee’s report, published in January, on Executive Oversight and Responsibility for the UK Constitution. I speak in place of the noble Baroness, Lady Drake, who was chair of the committee during this inquiry but is unfortunately unable to be here today. I pay tribute to her excellent chairmanship, which was fair, firm, fruitful and always friendly.
The UK constitution requires active stewardship. Its flexibility is a strength that allows for pragmatism and evolution, but it also leaves our constitution vulnerable to erosion and challenge. There is a key distinction between lawfulness and constitutionality. As we said in the report, paraphrasing the noble Lord, Lord Sedwill,
“if the Attorney General had advised that a course of action was unlawful and the Prime Minister chose to pursue it nonetheless, then he, as Cabinet Secretary, would advise that the civil service would not be able to support it because doing so would be in contravention of the Civil Service Code. By contrast, if the Cabinet Secretary advised that an action was unconstitutional, for example, in violation of a clear convention, then, so long as it was lawful, the civil service would be able to support its delivery if the Prime Minister chose to go ahead”.
Obviously, there are some constitutional issues which get resolved in the courts, Prorogation being perhaps the most dramatic recent example. However, the existence of an area of constitutional issues which cannot be tested in the courts but which could lead to the Government acting unconstitutionally underlines the importance of the various methods for safeguarding the constitution. There is a complex network of guardians on whom we rely to safeguard the constitution. Parliament itself is a significant guardian and the Constitution Committee has a vital role to play, scrutinising all legislation for its constitutional implications and drawing them where necessary to the attention of the House, as well as holding the Government to account on constitutional matters.
The focus of this inquiry was on the role of the Executive as constitutional guardian. We also took an early look at the Council of the Nations and Regions, to which I will refer later. I will begin with the very centre of government. The Prime Minister is ultimately responsible for safeguarding the constitution within government. This is a significant responsibility which ought to be taken seriously but, in reality, the Prime Minister is much more likely to be held to account for failure to deliver on policy objectives than on constitutional responsibilities, and may find that the latter get in the way of the former.
Increasingly, Prime Ministers are tested on whether they deliver on their policy promises. Two recent Prime Ministers did not really consider themselves inhibited by constitutional principles and norms. That was bad news, but most Prime Ministers sincerely believe in the constitution and their role in defending it, in theory if not always in practice. We have to recognise how much pressure they are under to deliver on their promises rather than worrying about the constitution. This happens, for example, when Governments seek to achieve their policy objectives via secondary legislation, thereby greatly enhancing the power of the Executive relative to Parliament. An interesting comparison is President Trump’s use of the executive order to bypass Congress and state legislatures.
The Prime Minister is supported by a number of close advisers. Significant among them is the Cabinet Secretary, who plays a vital role in advising on constitutional matters. Given its significance, it was disappointing to see that this responsibility was not explicitly included in the job description during the recent recruitment for that post and that our recommendation to include it going forward was not accepted by the Government. Yet the Cabinet Secretary can also be affected by the priority given to delivery and be expected to ensure that the Civil Service is fully committed to securing the Government’s policy objectives. Warnings of constitutional impropriety can be made to look like obstruction and delay.
Supporting the Cabinet Secretary, as well as Ministers, officials and special advisers, is the Propriety and Constitution Group in the Cabinet Office. It provides advice on constitutional issues, devolution, standards and the relationship with the monarch. However, it has been shuffled around between departments, in particular the Cabinet Office and the Department for Levelling Up, Housing and Communities, several times in recent years. We recommend in our report that it be made a permanent fixture within the Cabinet Office, enabling it to become a true centre of excellence.
Institutional memory is another concern. Constitutional precedent must be consistently recorded. Without this, Ministers and officials are left navigating complex issues as they arise without the benefit of deep institutional knowledge. This weakens the quality of advice and risks undermining constitutional norms.
I turn to the role of other Ministers. We recognise that constitutional responsibility is not confined to the Prime Minister. The Lord Chancellor has a statutory duty to defend the rule of law and judicial independence. The law officers, particularly the Attorney-General, are the definitive source of legal advice for the Prime Minister. We were pleased to see the new Attorney-General swear a new version of the oath that included a commitment to the rule of law. This is a welcome affirmation of this element of his role. In the current Government, there is a Minister for the Constitution, but his constitutional responsibilities appear to be limited and sit alongside very different issues such as EU engagement and the Infected Blood Inquiry.
We recommended the appointment of a senior Minister with broader responsibility for advising the Prime Minister on constitutional matters—a role which used to be filled by the Lord Chancellor when they were a Member of this House. This individual should be senior and authoritative and someone whose advice cannot be lightly disregarded—preferably somebody at a senior stage in their career rather than looking for their next job. The Government did not accept this recommendation. We urge them to give further thought to the issue.
It is important that all Ministers, particularly the Prime Minister, take their constitutional responsibilities seriously. Otherwise, given that in most matters the only sanctions are political, there is a risk that constitutional norms are gradually eroded. This risk means that it is particularly important for there to be effective constitutional safeguards. We recommend that the Government should review and strengthen the status of advisory bodies such as the House of Lords Appointments Commission and consider whether it would be desirable to place them on a statutory footing.
We welcome the creation of the Union and Constitution Cabinet committee as a positive step towards raising the profile of constitutional issues within government. We said in our report that we would welcome an annual meeting between the deputy chair of this new Cabinet committee, the Constitution Committee and the Cabinet Secretary to discuss outcomes. The Government told us that they would be unable to disclose specific details of the Cabinet committee’s work because of the convention of collective Cabinet responsibility. Nevertheless, we would be happy to find ways to make such a discussion possible while respecting the convention of confidentiality. I hope the Minister will take us up on this request.
I turn to the Council of the Nations and Regions. We chose to take an early look at the council both as a follow-up to our recent report on the governance of the union and because it now forms part of the institutional safeguards around intergovernmental relations within the UK. Transparency and clarity of ownership around the council are important. We need clarity about its management, which was notably absent when the noble Baroness, Lady Gray, was briefly appointed as the Prime Minister’s envoy to the nations and regions but did not take up the job. Has someone since been appointed or was the role never needed?
We were disappointed that information about the second meeting of the council is not yet available, and we urge the Government to publish the communiqué without further delay. It is important that the council effectively complements the existing intergovernmental structures and does not leave anyone unrepresented, particularly those in much of England who do not have a metro mayor. The Government told us that these areas will be represented on the council if they choose to join with others to create a metro mayor. It is very odd to make a central part of the intergovernmental machinery contingent on a political decision to opt for a mayoral system of local government. We are concerned about their representation in the meantime and would welcome clarity from the Government on how the council will ensure that the interests of much of England are heard.
To be successful, the council requires serious and sustained engagement by the UK Government and the other Governments and regions in the United Kingdom. We look forward to reviewing the utility and success of the council in due course; I think the jury is still out on whether the council is going to become a really significant element in our constitutional structure.
The fact that we have a constitution which is not to be found in a single document and large parts of which are not enforceable in the courts provides, particularly for overseas observers, a mixture of puzzlement and admiration—but very definitely both. Essentially, it works because we have a culture of constitutional government, and general acceptance that we should observe constitutional conventions and that long-established practices have merit; they can be changed, but they need to be changed on the basis of consensus. We have tried to look at the machinery by which, within the Executive, these things are examined and, where necessary, enforced. We urge wider interest in the issues we have raised. On that basis, I beg to move.
Viscount Stansgate (Lab)
My Lords, it is a pleasure to follow the noble Lord. I congratulate all the members of the committee and the chair for the report they have produced and their success in getting this debated. It is always a good idea to debate our constitution, and I regard today’s debate as a welcome chance to take the temperature of the health of our democracy.
Mind you, it is not the only debate on the constitution this week; Members present on Wednesday will have heard the noble Lord, Lord Roberts of Belgravia, tell us that the word “historic”—much overused—nevertheless applied to the Bill under consideration on Wednesday. I say Wednesday but, actually, as I was on the Woolsack until well past midnight, I regard it as yesterday’s debate. But many interesting speeches were made then, some of which touch on today’s issues. Of course, this is the type of debate where I would rather like to see Walter Bagehot sitting in the Gallery or, if not, then perhaps a more modern equivalent: my noble friend Lord Hennessy of Nympsfield.
The Select Committee on the Constitution is one of the House’s most important committees. If that looks to the Whips like an application to join it, then I am afraid it probably is. As the House knows, over the centuries we have been engaged in a constant struggle between the Executive and the legislature. The powers of the King have gradually been replaced by the powers of the Prime Minister, and it is the position of the Prime Minister which is at the centre of this report. It is important that whatever arrangements we make for safeguarding our constitution are robust and flexible, just like the constitution itself. The report rightly states that the Prime Minister remains the monarch’s principal advisor and has
“ultimate responsibility within government for safeguarding the constitution”.
I sometimes think that we forget the role that oaths of office play in our political life. After all, each of us as a Member has to swear or affirm an oath of office before we are allowed to take our seat. The current Oath of Allegiance—not so much feudal—dates back to the 15th to 17th centuries. At one stage, Members of Parliament had to take three oaths: of supremacy, of allegiance and of abjuration. At various stages, oaths took on political and religious characteristics which were tailor-made for the political circumstances of the time. It was only in 1858 with the oaths of allegiance Act and in 1866 with the Parliamentary Oaths Act that the modern parliamentary oath crystallised into the form it exists today. There have been several updates and consolidations, the most recent of which I think was in 1978.
The point of my digression is this: I am one of those who think that there is a case for requiring the Prime Minister to take a special oath of office that would incorporate a requirement to uphold the constitution of the country. I make this suggestion because as the Prime Minister has replaced the King as the fount of political power and it is, in practice, the Prime Minister who has the ultimate responsibility for the constitution, a special oath might be appropriate.
I was interested in the evidence the noble Lord, Lord Gove, gave to the committee, when he said that he was
“very conscious of having sworn an oath”
in his role as Lord Chancellor. I think this indicates that there is merit in considering the role of an oath for the Prime Minister. If it weighed on the noble Lord’s mind then, all the more would an oath of office weigh upon a Prime Minister’s, especially when considering action that would have a constitutional significance. I hardly need add that it would cost virtually nothing.
The position of the Cabinet Secretary is the modern “buckle” that connects the Civil Service to the Prime Minister, and it is a crucial role. Again, I was interested to read the evidence submitted by the noble Lord, Lord Gove, where he said that the Cabinet Secretary’s capacity to “constrain” the actions of a Prime Minister was “pretty significant”. I am bound to say that I did not see this reflected in the events of 2019 and the attempted Prorogation of six weeks. We all know what happened as a result.
On the increasing importance of the law officers, which the noble Lord, Lord Beith, referred to, we know that an oath applies to them. Although the Lord Chancellor is required to take one, we heard earlier this week that the Attorney-General has chosen to take one voluntarily, which is a good thing.
Turning to some of the other elements of the committee’s report, I think it asks some pertinent questions. First, how active is the Union and Constitution Cabinet Committee? I am not convinced that it meets very often. The suggestion is made for it to have an annual meeting with the Chancellor of the Duchy of Lancaster. For all I know, it might be the only time that committee meets at all.
Secondly, how often does the Parliamentary Business and Legislation Committee really reject skeleton Bills or Bills with excessive delegated powers? I do not claim to know but there is no doubt that over the past few years we have seen far too many examples of both; indeed, we had a debate a few years ago on skeleton Bills.
Thirdly, there is the suggestion that there is a role for statute in consolidating the protection of our constitution. When it comes to HOLAC, there is a case for putting it on a statutory basis, and I supported the case made by the noble Lord, Lord Norton of Louth, in his Bill, although I do not believe that its advice to the Prime Minister, however important, should be binding.
Fourthly, I come to the committee’s conclusion that a Minister should be allocated specific responsibility for the constitution. Here I part company with the committee. I am not sure that a role as important as that of being responsible for the constitution can or should be formally devolved to another Minister. It would fetter the discretion of the Prime Minister and I am not sure that any Prime Minister would wish to be constrained in this way. I do not really think that would work.
I have one final point to make. When about 15 years ago the then Prime Minister Gordon Brown authorised the publication of the Cabinet Manual, it immediately made its mark. It was described as
“a guide to the laws, conventions and rules on the operation of government”.
In my view, its very existence helped us to understand better the way in which in our system of government works—or did then. It shed light on the mixture of things that make up our unwritten constitution and hence made it easier for us to understand how its conventions, customs and practices could and should be protected.
The Cabinet Manual owed its existence to the support of the Prime Minister and the genius of the noble Lords, Lord O’Donnell and Lord Hennessy of Nympsfield, but where is it now? My noble friend the Minister said in reply to my most recent Parliamentary Question on the subject:
“The Government takes the function of the Cabinet Manual seriously and we will keep it under review”.
Is there anything more that my noble friend can tell us? I hope that the whole House would be interested to know whether there has been any progress.
For my part, I remain to be convinced that there is neither an appetite for nor an interest in No. 10 in tackling it at the moment. Mind you, the previous Government originally promised to produce an updated version by Christmas 2023 and nothing came of that. But there are obviously several major areas where it needs updating, such as the impact of Brexit and leaving the EU, the Supreme Court decision of 2019, the development of devolution, and the modern operation of a peacetime coalition Government. It would be in the spirit of the Constitution Committee’s report if a valuable document such as this was redrafted for the current age. If I succeed in being selected for the committee, I shall bring my suggestion with me.
Lord Waldegrave of North Hill (Con)
My Lords, it is a pleasure to follow the noble Viscount, Lord Stansgate, whose wisdom on many subjects is welcome in this House and I hope may be welcome for much longer.
I was not a member of the Constitution Committee at the time of the writing of this important report, as I am now, but I would have endorsed its conclusions with pleasure—with one exception, and it is the same exception mentioned by the noble Viscount, Lord Stansgate. I think that responsibility has to rest with the Prime Minister but that it is also the duty of all Ministers—more widely than simply the law officers or others—in charge of departments to ensure that they act constitutionally. I will say a little more about that in a moment.
I have spoken previously in this House of my admiration for the behaviour of the noble Lord, Lord Sedwill, then Cabinet Secretary, and Helen MacNamara as Deputy Cabinet Secretary, on the occasion described in paragraph 17 of the report. Their behaviour in defence of the constitutional principle that the Government must obey the law was a fine example of the system working even at a moment of great stress, and when advocacy of potentially unconstitutional behaviour apparently emanated from the Prime Minister and those around him.
In the report, it is clear and—in my experience—accurate that attention is focused on the responsibility of the Cabinet Secretary and his or her vital role. I would add only that it is my belief, having observed various models in action, that it is best if the Cabinet Secretary is also head of the Civil Service: he or she then speaks not only for themselves but as the voice of the Civil Service as a profession.
There is one matter which leaves a residual anxiety from the famous story dealt with in paragraph 17. Helen MacNamara is alleged by various memoir writers to have stood her ground by saying to a political adviser, “We do not work for you. We work for the Queen”. That is exactly what I would have said in her place, if I had been brave enough. Of course, under our constitution, the monarch only acts on the advice of the Prime Minister, so the standing ground becomes a little shaky. It may need to be made clearer in law that a civil servant may refuse an illegal or unconstitutional order and that if the crisis persists, some procedure akin to the accounting officer’s report to the Public Accounts Committee should be available to put the dispute before Parliament.
My own belief is that the relationship between the Prime Minister and Cabinet Secretary should be replicated in every department by means of an exactly parallel relationship between the Permanent Secretary and the departmental Secretary of State. The Permanent Secretary should have the right to challenge his or her Secretary of State on what is perceived as an unconstitutional action. In cases of dispute, the matter would obviously be elevated to the Prime Minister and Cabinet Secretary to judge.
My final point takes me into very dangerous territory into which experts in the political trivia of the past will remember I once before stumbled, to the delight of the media. All action in politics is covered by ordinary morality. To my mind, there is no such thing as a separate ethical realm of “reason of state”. Any constitution depends on those working within it acting morally, as the noble Lord, Lord Beith, said eloquently in his introductory speech. The dilemmas we find when moral imperatives clash with each other exist just as much in politics as in ordinary life. Is there always a categorial imperative in ordinary life to tell the truth, for example? I believe not; sometimes it is right not to tell the homicidal maniac that you know where the axe is hidden.
In this country we are extremely proud of our capacity to deceive our enemies in wartime. Massive and successful strategies were deployed to mislead the Germans as to where and when the D-Day landings were coming. No one doubts that those lies were necessary and admirable. On the other hand, truth-telling to Parliament is a constitutional principle in the United Kingdom, and rightly so. Deliberate deception of either House is a resigning matter: without true facts laid before them, proper constitutional democratic debate cannot take place. However, there are difficulties about constant candour in public, as in private. Well-established conventions allow Ministers to refuse to answer questions on, for example, secret security matters, but what if a clever questioner traps you on a matter when telling the truth is impossible? I irritated a former Prime Minister—whom I greatly admired—because I said long ago that of course he could not give a candid answer when asked whether he was contemplating devaluing the pound. He thought I was saying that he was dishonest, which was the last thing I intended. But he could not fulfil his duty as Chancellor of Exchequer at the same time as properly telling the whole truth on that matter.
But 99% of the time, my friend Peter Oborne is right to deprecate what he sees as a radical increase in political lying. Telling the truth is a vital condition for democratic debate. How on earth are we to decide when a lack of candour—or even a lie—is justified? Some good steps have been taken since the date of my media fracas; for example, the establishment of the Office for National Statistics, which calls out misuse of statistics by Ministers or anybody else. But what about straightforward factual lies? In retrospect, the lies told at the heart of government at the time of Suez surely crossed the line—I take that example because all the protagonists are safely dead. There have been other incidents since, the protagonists of which are not safely dead, so I will not specify them now, but others can do so to their own satisfaction.
I will make one modest suggestion that might help in certain situations—though not all—the seeds of which are already sown. I believe that in those past cases, it was a failing of the very top members of the Civil Service not to protest on ethical grounds. I also think that in a democracy, the elected Ministers, if backed by the Prime Minister, should prevail and answer in the end to the political process of Parliament and the electorate. However, the constitution would be well served if the Cabinet Secretary or Permanent Secretary had the right to record their objection publicly if they felt they had to surrender their professional ethics to the ultimate power of democracy, just as they do to the PAC when overruled on value for money. Like all good deterrents, such a procedure would most likely never be required. However, this, or something like it, more formal than we have now, would strengthen one vital part of the constitutional balance so well described in the report under debate.
Lord Neuberger of Abbotsbury (CB)
My Lords, I apologise for turning up a few minutes late; I am afraid I was misinformed about the starting time of the debate. It is a pleasure to follow the noble Lord, Lord Waldegrave of North Hill, whose many achievements, both in and out of government, make him a fitting recent member of the Constitution Committee.
This country is almost unique in having no formal written constitution. We have the bedrock of parliamentary sovereignty, superimposed on which is a mishmash of repealable and amendable statutory provisions and conventions. This make-it-up-as-you-go-along constitution has served us pretty well over the past centuries, and it has the attraction of flexibility, a particular virtue in a fast-changing world. But the danger of a flexible system is that it transmogrifies into an arbitrary system. The fast-changing world to which I refer means that the challenge we now face is ensuring a degree of restraint and propriety in a political culture that increasingly rewards speed, dominance and spectacle.
The extent of that challenge is illustrated by a number of worrying developments over the past few years. They include the excessive use of skeleton Bills and over-broad delegated powers, Bills which shamelessly have proposed breaches of international obligations, inappropriate government influence over independent regulators, the spread of ouster clauses, and questionable private sector retirement posts being taken on by former Ministers and civil servants. Particularly in the case of a constitution so much based on convention, the most serious and dangerous constitutional erosions are often cumulative minor breaches rather than sudden major ones: a by-passed Select Committee, an ignored code of conduct, an appointment made without the requisite scrutiny, a Henry VIII clause in a Bill—each individually minor, but as they seep into the culture they gradually undermine the system.
Without wanting to seem alarmist, we have thus seen a real erosion of constitutional propriety over the past quarter century. In particular, the lack of even elementary constitutional awareness at all levels of government was demonstrated during the Covid-19 pandemic, and I am afraid that that accords with my experience of dealing with Ministers and civil servants when I was senior judge. It is only fair to add that, in the past year and to some extent the past three years, things have got somewhat better, but there is real cause of concern. Institutional memory, perhaps particularly important in a system in which convention plays such a large part, has been eroded over the past couple of decades due to ministerial turnover, civil service job rotation and ad hoc government.
There are various Ministers who can be said to be responsible for aspects of the constitution, but save where the courts get involved—and they rarely get involved in matters of convention or what goes in Parliament—the Prime Minister can fairly be characterised as the ultimate guardian of constitutional propriety. It has become apparent that many aspects of our constitution can be abused with impunity if the Prime Minister wishes, or does not care enough. In its excellent report, to which I pay tribute, the committee mentions that the Prime Minister was described by a serving Minister as “a very busy person”. The pressing demands of the office must mean that his role in safeguarding the constitution will not be uppermost in his mind, save perhaps in times of constitutional crisis. The remedies for prime ministerial failures in this connection are vague and often impractical.
In any event, there is an inherent paradox in the head, or indeed any part, of the Executive arm of government being the ultimate guardian of the constitution. After all, a very major purpose of the constitution is to control and limit the powers of the Executive, so there is force in the notion that the Government, or any member of the Government, cannot simultaneously be the custodian of the constitution and the principal risk to its integrity. Self-regulation is generally deprecated these days when it comes to other institutions.
Both the experience of the past few years and principle suggest that there is a need for increased support for constitutional propriety and that it should not simply come from Ministers or civil servants in their departments. For this reason, I must confess to some doubts about the report’s recommendation that there be a new post of a Minister responsible for advising the Prime Minister on constitutional matters. If there is to be such a post, I say—echoing the noble Lord, Lord Beith—that it should be held by a very senior politician with considerable experience of law and politics and who has no political ambitions.
We can draw considerable experience from the change in the role of the old style Lord Chancellor. Maybe that was inevitable, as was the creation of a Secretary of State for Justice, but the consequences for the rule of law of replacing a very experienced, respected lawyer with no political ambitions, who could be relied on to speak up for the rule of law, by a career politician, at best a middle-ranking member of the Government, normally with little if any experience of the law, suggests that the new Minister with a constitutional advisory role will be of no real value unless he or she is somebody with considerable authority and experience.
Having said that, I support another of the report’s suggestions: putting bodies such as HOLAC on a statutory footing with a view to providing a hard-edged framework in which the Prime Minister could exercise his current powers. I would include among these bodies not only HOLAC but ACOBA, the Advisory Committee on Business Appointments, and a body to supervise the Ministerial Code. This was one of the recommendations made in January 2024 in a paper by a UK governance commission chaired by Dominic Grieve, of which I was a member. As we pointed out, such a course would not entail any major expenditure, and it could be expected to help to re-establish some degree of public faith in our democratic processes. The extent, if any, to which the Prime Minister should delegate his powers to the relevant body, or what should happen if he did not do that but did not follow its advice, should obviously be a matter for detailed discussion.
The report we are considering also refers to the Government’s intention to introduce an ethics and integrity commission, which would, I agree, add coherence to the range of what the report refers to as “ancillary structures”, including the Civil Service Commission and HOLAC. This is a manifesto commitment of the Government, and I agree that its discharge—hopefully imminent—represents an opportunity to give both teeth and coherence to quite a wide range of important constitutional watchdogs. Again, details of how this might most effectively be done were given in the paper produced by the UK governance commission to which I have referred. These details include proposals as to how the Committee on Standards in Public Life would feature in a newly coherent structure. Again, implementation of these proposals would be a contribution—
Baroness in Waiting/Government Whip (Baroness Twycross) (Lab)
If the noble and learned Lord were able to wind up shortly—
Lord Neuberger of Abbotsbury (CB)
I have just finished—thank you. I am sorry to have overrun.
Lord Garnier (Con)
My Lords, I thank the noble Lord, Lord Beith, for initiating this debate and the Constitution Committee for its thought-provoking report. It is also a great pleasure to follow the noble and learned Lord, Lord Neuberger, as well as the other noble Lords who have contributed so far to this debate. There is much thought in what they have said, and I hope that others will have a chance to read it.
In the time available to me, I want to touch on one of the subjects the report deals with, the role of the law officers. I was Solicitor-General in the early part of the Cameron coalition, and I was shadow Attorney-General under his leadership in the year before the 2010 general election. Before that, I was also shadow Attorney-General under the leadership of my noble friend Lord Hague of Richmond.
The committee said that the law officers were
“the definitive source of advice on legality for the Prime Minister”,
and therefore had a significant constitutional role. It reiterated the recommendations it had made in an earlier report on the law officers that the Attorney-General must
“place their duty to the rule of law above party political considerations”.
I agree.
Giving evidence on 6 July 2022 to the committee in that earlier inquiry on the role of the law officers, I referred to the experience of the late Lord Peter Rawlinson, a former law officer under the Governments of Macmillan, Douglas-Home and Heath. As I told the committee, he explained in his autobiography that:
“When he was appointed Solicitor-General after the night of the long knives in 1962, he was given a half-hour seminar by Harold Macmillan about the role and history of the law officers. Macmillan told him that his first priority was to uphold the rule of law, his second was to be responsible and accountable to Parliament, and his third—very much his third—duty and loyalty was to Macmillan’s Administration”.
My noble friend Lord Cameron appointed me in a three-minute telephone call, but I expect he had rather more important things to get on with.
I suspect there are no more misunderstood posts in government than those occupied by the Attorney-General and Solicitor-General. Being a law officer is not like being a political Minister in other departments. If, for example, you are the Secretary of State for Health, you have an intensely political and economic role. Every minute of your day is concerned with designing and implementing policy and working out how to pay for it. Then you tell everyone else how well you have done it. The law officer’s department is not traditionally a policy-making department; it is largely reactive. It only rarely introduces legislation. I used to describe our role as being like the lawyer in the cupboard. The Prime Minister or Secretary of State for a Whitehall department opens the cupboard and says, “What’s the answer to this problem?”. You tell them the answer, then they put you back in the cupboard and shut the door. Occasionally they might say thank you, but that was not guaranteed.
I have also described the law officers as submarines. Submarines are most effective when unseen, unheard and operating without drawing attention to themselves. I came up with this rather laboured naval metaphor in October 2010 when HMS “Astute”, then a new submarine conducting sea trials, had just run aground off the Isle of Skye. If a law officer surfaces or runs aground, either the Government are in trouble or he is in trouble—or sometimes both. The knowledge that they are patrolling somewhere in the depths of Whitehall and Westminster ought to be sufficient to persuade Government Ministers to behave by the rule of law, and to comply with the Ministerial Code and the other rules and conventions that govern government behaviour.
As the late Lord Mayhew said, the Attorney-General
“has a duty to ensure that the Queen’s ministers, who act in her name, or purport to act in her name, do act lawfully because it is his duty to help to secure the rule of law, the principal requirement of which is that the Government itself … acts lawfully”.
It will not be forgotten that when he was Solicitor-General, he threatened to ask the police to raid No. 10 to find out who had unlawfully leaked his confidential opinion on the Westland affair.
I was grateful to the noble Viscount, Lord Stansgate, for referring to the noble Lord, Lord Hennessy, because I am very fond of his “good chaps” principle. Call it something else if you like, but good government requires leadership, example from the top and mutual trust and understanding. The law officers cannot work or advise in isolation. They cannot just talk to themselves. It is essential that they are seen to be part of the government team, albeit a semi-detached part of that team. They should not ignore what their duties are, and nor should other members of the Government take them for granted.
One of the things I have worried about over the last several years is that the fellowship of lawyers and Members of Parliament, between the judiciary and government, and between the judiciary and Parliament, has gone. We no longer speak the same language. When I took a Lord Chancellor to dinner in my inn, she appeared to feel that she was going into a foreign country, whereas not so very long ago the Lord Chancellor would not only have known most of the people there but would have appointed many of the judges in that room. There would have been a shared constitutional understanding about their separate roles, about the role of Parliament, the role of the Executive and the role of lawyers and the judiciary, and the Lord Chancellor would have defended the judges against the press and Parliament had any of them been attacked as enemies of the people.
That has gone. It is a great pity, and it discourages practising members of the Bar and solicitors from coming into Parliament. Why give up a good practice? Why swap all that for the public obloquy that goes with being a Member of Parliament in an era of social media? I know plenty of people younger and much younger than me who would have made excellent Members of Parliament, excellent Ministers and, more particularly, excellent law officers, but they will not come anywhere near Parliament because, to them, it is poison.
I am not the first to resort to the metaphor of the sea when referring to the law officers. David Mallet’s The Life of Francis Bacon portrays the offices of Attorney-General and Solicitor-General as
“rocks upon which many aspiring lawyers have made shipwreck of their virtue and human nature”.
Sadly, we have, in the relatively recent past, had law officers who strayed way outside their remit or gave questionable legal advice. They were not the first, and perhaps they will not be the last to do so, but I hope that properly informed public opinion, and thus government and Parliament, will continue to see the benefit of the current system with our law officers being Members of your Lordships’ House or the other place.
As an institution, we need to encourage many more really good lawyers, from all political parties and none, to play an active role in politics, but for them also not to lose sight of their legal roots and heritage. We see a number of them in the Chamber most days of the week, but we need—they are not among us today, but I apologise if I cause them embarrassment —more young Wolfsons, Faulkses, Andersons, Pannicks and Banners. I could name others, but it is their younger equivalents who we need to get into the Commons. The other place no longer attracts such people, and our constitution is less well served as a consequence, because that fellowship of which I spoke has largely vanished.
Baroness Coffey (Con)
My Lords, it is a pleasure to contribute to today’s debate on the constitution. I have been in government more recently than some of the people speaking today, although perhaps I am not the most recent.
It is fair to say that our constitution continues to evolve. That is why it should not be codified and why we should not set in stone a number of the recommendations before us today. One of the most important things that happens in this country is that the Prime Minister meets our monarch every week. It is a private conversation, but the Prime Minister having that direct interaction is one of the biggest safeguards on our constitutional life, and that should not be underrated.
In terms of thinking through, the Prime Minister has to be ultimately responsible. To be candid, it would be quite odd to involve another Minister with a separate responsibility and who may not even be privy to a lot that goes on when you are a very senior Cabinet Minister. People on the National Security Council and all sorts of bodies have information that many other people in this country simply will never know about and have to keep secret. That is also an important part of how they consider how they are responsible for the country as a whole. So when we consider having a separate Minister—unless it was, in effect, the Deputy Prime Minister or equivalent—we must remember that nobody else would ever have the same amount of information that the Prime Minister has when they are making the decisions of the day.
The noble and learned Lord, Lord Neuberger, referred to Covid. It was a big discussion in Cabinet that we could have used the Civil Contingencies Act to manage Covid, but it was decided, out of respect for Parliament, that we would introduce legislation—because we had some time—to get on and to get that view of both Houses of Parliament. That was respect for the constitution of this country and the important role of Parliament.
In terms of other aspects of how things have evolved, reference was made to the Council of the Nations and Regions and moving around who was in charge of intergovernmental relationships. When devolution first started, the Secretary of State for Scotland was the direct link to the First Minister of Scotland. That has evolved in terms of expectations. It is almost seen as a snub if the Prime Minster of the day is not the person having the calls with the First Minister—that has changed. If we start to codify a number of these things, we will not actually keep up with what is needed. That then gives some justification to Governments and the Executive to try to put as many Henry VIII clauses into legislation as possible. I would not say that they are not useful, but we just need to be careful about how they are used.
I spent three years in charge of a department that was Great Britain-wide. I was also in charge of a department where my responsibility was principally England but also international—that was a very different dynamic. One thing that has somewhat shaken the constitution, despite having good intentions, was the United Kingdom Internal Market Act. That in itself needs a revision, or thinking through how that helps the balance that we have.
I was one of the Secretaries of State who really pushed our law officers to take the Scottish Government to court when they were stepping over the line. I was also involved in two very important rulings that came ultimately from the Supreme Court—under the presidency of Supreme Court justice the noble and learned Lord, Lord Reed—about making sure that the UK Parliament was the primary Parliament and, frankly, that NGOs should stop trying to use the courts and case law to overturn policy or, more importantly, legislation that had been passed by a democratically elected Parliament.
In terms of the role of the law officers, I think they are exceptionally important—of course they are. It was interesting to me that—without question—we had a lot of legal cases in Defra and DWP. There was one case where I wanted to test the patience of the courts, because it was to do with what we were doing around the changes in EU law. Our lawyers wanted me to concede, but I was not prepared to do that. Working with the amazing Sir James Eadie and others, I learned that one thing that is not written down in the Ministerial Code is that, if you go to a law officer for a decision, their decision is final. That is what I wanted: I wanted the Attorney-General at the time to make that decision, and I would have abided by it. Interestingly, however, there was so much pushback that I had already left office by the time that was concluded. This example unveils the curtain, as it were, to show that government actually does work, and it shows that it is usually Ministers, rather than the Civil Service, who are very mindful of aspects of the parliamentary relationship. It is also important that the Ministerial Code includes all the aspects of the law that we have to be mindful of and that we of course have to respect.
One thing the committee could have considered is the role of the Civil Service Code. There were several occasions when I was advised by civil servants to knowingly break the law. They may have been only minor infringements, but I challenged them on how it was possible, under the Civil Service Code, “that you are in your advice and in your inaction advising me to knowingly break the law”. I was not prepared to do that. I would encourage the committee—I am not suggesting that we have even more reports—to genuinely think about that.
I will give another weird example—it is not exactly breaking the law. Quite early on in office, I learned through Twitter that my shadow Secretary of State had written to me—I only knew it because he also published my response to him on Twitter. I had never seen the letter from the shadow Secretary of State; I had never seen the letter written in my name, but there it was: my response and my signature. Unfortunately, with these sorts of things, in the Civil Service Code, it should have been more serious than it was. Noble Lords may think that I am trying to deflect from where we are going to, but the one thing I agree on is that moving civil servants around from department to department, just following a Minister, does not work—the group should absolutely stay in the Cabinet Office.
Sometimes people try to suggest that it is just politicians trying to do this, that and the other. I am not accusing the Civil Service, but its job is to try to manage. Ultimately, I could go on about another legal case where I was named as the defendant; I did not know until the ruling had come against me formally. I am afraid that these things happen, so it is important that, when we consider the role of Ministers and how we potentially try to bind their hands, we also try to make sure that we keep the focus on the civil servants who give advice to Ministers. Sometimes it can be difficult and demanding; nevertheless, next time, have a think about how the Civil Service Code really works in practice.
Lord Pitkeathley of Camden Town (Lab)
My Lords, I was once told that the constitution was best left to the lawyers, the historians and the former Cabinet Ministers. So naturally, here I am, a musician turned town centre advocate, about to offer my thoughts, very much aware of the esteemed company in which I do so. I thank the noble Lord, Lord Beith, for introducing this important debate and for, I am sure, skilfully participating in the committee that brought it to us.
I come to this not even as a constitutional theorist, but as someone who has spent much of his life trying to make things work on the ground: in communities, town centres and within local partnerships. Much of today’s discussion will rightly centre on the risks to our constitution, such as executive overreach, erosion of convention and the creeping use of powers that bypass proper scrutiny. I share those concerns, but I speak in cautious praise of the constitution as it currently stands. Yes, it is uncodified, untidy and sometimes obscure, but its flexibility is, in many ways, its quiet genius.
As we have already heard alluded to today, we have weathered recent constitutional storms—Brexit, Prorogation, Covid emergency powers—without paralysis or collapse. That is no small thing. It shows that our system, for all its flaws, still rests on something more than law. It rests on values, precedent and a shared expectation that power must answer to principle.
The so-called good chaps theory of government, as already referred to by the noble and learned Lord, Lord Garnier, has taken a few knocks of late, let us be honest, but it has not collapsed entirely. Perhaps it is time we updated the idea to be less about “chaps” and more about a culture of stewardship that reflects modern governance and today’s public.
How do we safeguard this quiet genius without fixing it in stone? Perhaps inevitably, as we have already heard, one of the committee’s recommendations is the appointment of a senior Minister for constitutional responsibility. The answer to many a problem in Whitehall has been to appoint a Minister for something. We have to acknowledge the Government’s response to that point and the difficulties with it, as we have already heard alluded to. Perhaps the answer lies not in centralising that responsibility, but in sharing it. Perhaps the committee could undertake an annual constitutional audit across both Houses, which could help embed a longer-term sense of constitutional care, one that is not so easily swept aside in reshuffles or by headlines. In my experience, including in my daily work, for which I refer the House to my register of interests, the most effective accountability often comes not from central control, but from shared, distributed responsibility, as indeed we may experience in this very place.
I do not for a moment suggest that we rest easy, nor should we rush to codify or concrete a system that, for all its quirks, has helped us adapt, absorb shocks and correct course where necessary. In a world where constitutions are increasingly polarised or ignored, ours, unwritten though it may be, has so far held. Perhaps this report shows us how to hold it better—not by rewriting the rules, but by renewing the responsibility. For that, it deserves our thanks.
Lord Harper (Con)
My Lords, it is a great pleasure to follow the noble Lord, and I think he rather did himself an injustice in the humble way he introduced his speech. I think he will see when I develop my remarks that I largely agree with what he said, and I think the whole House will have heard the wisdom that he brought as a practitioner at local level on implementing these things. It is a very good lesson that the point of the constitution and the point of all these principles is to make sure that we are better governed for the people we are entrusted with. Of course, that is the purpose, and I think he set it out very well.
I was very pleased that the noble Viscount, Lord Stansgate, referred to the Cabinet Manual. He was right in saying that one chapter was developed and published under Gordon Brown, and that proved to be very helpful in the process of forming the coalition Government. It fell to that Government to develop the rest of the Cabinet Manual, and he referred to the noble Lord, Lord O’Donnell, who was then the Cabinet Secretary, who led the official team putting it together. I was the junior Minister responsible at ministerial level for the Cabinet Manual. The noble Viscount is quite right that the first edition, the version we produced in October 2011, remains the only edition and has not yet been updated. That is partly because we did a reasonably good job in the first place, which is largely to the credit of the noble Lord, Lord O’Donnell, and his team, but it needs updating, and there would be some merit in that. It does not cover the whole constitution; it was deliberately supposed to be about central government’s responsibilities; but I think that having all that in one place and having some clarity about what the rules are would be very helpful in ensuring that they were followed. I was pleased that he raised it before I did. When you are the co-author of something, it is almost slightly embarrassing to be the first person to raise it in a debate in a complimentary way, so I am glad he beat me to it.
I strongly agree with the committee’s first and second conclusions and its third and fourth recommendations about the central position of the Prime Minister on these matters, but also the importance of the civil servants, not just across the Civil Service as a whole but those specifically tasked with looking after this. My noble friend Lord Waldegrave referred to the importance of the Cabinet Secretary’s role in this. When I was in the constitutional role, I felt very well supported by the noble Lord, Lord O’Donnell, and his entire team. If it is not inappropriate to point out, I note that one of the former officials who gave evidence to the Constitution Committee, Alex Thomas, who is now the programme director at the Institute for Government, was one of my key officials at the time. He exemplified the quality of the officials that we benefit from and gave very sound advice. In the end the decisions were mine, but I felt very well supported by the team. The recommendation to keep that team together in the Cabinet Office is a very sensible one that the Government should follow.
I also agree with my noble and learned friend Lord Garnier about the importance of the law officers. Recommendation 6 here is a very important one. From my experience in government, it is still the case, notwithstanding all the changes with the role of the Lord Chancellor, that the law officers, active politicians though they are, still have an important role in government when they set out their authoritative position about what the law is for Ministers. The more we can strengthen their authority within government and take them slightly out of that day-to-day political fight, the better. That would be welcome and I strongly support what the noble and learned Lord, Lord Garnier, said and the recommendation by the committee.
I understand the point of recommendation 7, referred to by a number of noble Lords, on appointing a weighty figure to support the Prime Minister on the constitution. It is a worthy idea, but I think that fundamentally, it will not work. In the end, in our system, particularly on constitutional matters, the buck stops with the Prime Minister. It is not just the day-to-day work. The evidence that the Chancellor of the Duchy of Lancaster gave about the Prime Minister being a very busy man is true, but a lot of the way the constitution is followed in government is not about whether the Prime Minister spends a lot of time thinking about it or looking at lots of papers about it, but about the tone that the Prime Minister sets for how his or her Government are conducted, the standards and the expectations that they have for others and—and this is where the word integrity is important—the standards they set and expect of themselves.
Integrity is an important word. It is about what you do when you do not think anybody is looking. That is very important, and it is something we should all think about when we are thinking about who the right people are to be Prime Minister. It is that tone and culture that they set in Government. Whatever we say about other people, in the end, the buck stops with them. They are the King’s first Minister and adviser on the constitution. Yes, they can take advice from the Cabinet Secretary—all of these functions are valuable—but in the end, it is the Prime Minister who sets that tone.
My final point is about recommendation 14 to put various things in statute. This is where I strongly agree with the noble Lord, Lord Pitkeathley: the genius of our constitution is that it is flexible and can respond to the political situation. I will give just one brief example. I had the pleasure—pleasure is maybe not quite the right word—of giving evidence to the Constitution Committee back in 2010, in a session chaired by my noble friend Lord Norton. It was a very gruelling experience, with high-calibre people on the committee, and it was about the Fixed-term Parliaments Act, which I had to take through Parliament. That was a very good example of trying to put things into statute which were probably best left not. The reason why it did not work was that a set of circumstances evolved after the Brexit referendum which we could not possibly have foreseen, and therefore the system was not capable of responding. I strongly agree with the noble Lord, Lord Pitkeathley, that we should leave things flexible. In the end, the political system has to deal with these matters, and our flexible constitution is therefore best placed to do so.
Baroness Bennett of Manor Castle (GP)
My Lords, I thank the noble Lord, Lord Beith, for the committee’s work and for his clear and comprehensive introduction today. I thank the committee for taking on the difficult—indeed, impossible—task of trying to find ways, within the limits of its mandate, to prop up a tottering, failing system. I declare my position as a vice-president of the Local Government Association, for reasons I will come back to later.
If we start where the committee starts, paragraph 3 of the report says that the system is “uncodified and flexible”, and cites the Supreme Court from 2019: our system
“remains sufficiently flexible to be capable of further development”.
I am afraid that there is a tone there of protesting too much. The vehemency is a measure of desperation. We are stuck, rather visibly, somewhere between the 16th and the 19th centuries. That is rather acknowledged in paragraph 5, where the committee says that the constitution is
“vulnerable to erosion and challenge, and relies to a considerable extent upon individuals respecting and complying with constitutional norms”.
The noble Lord, Lord Neuberger of Abbotsbury, very clearly set out how much that is not happening.
I begin with a practical example. This week marks the 10th anniversary of the slaughter of Cecil the lion by a vile American trophy hunter in Zimbabwe. That reminds me of a disgraceful evening in your Lordships’ House, on 12 September 2023. A Bill had gone through the elected House with the support of all sides. We saw in this House 12 former public schoolboys drive a cart and horses through what we have always been told are the respected traditions of the House—the unwritten, uncodified rules—to filibuster the Hunting Trophies (Importation Prohibition) Bill. The unwritten rules demonstrably were not worth the paper that they were not written on.
The committee’s report refers to the
“primacy of the Prime Minister in safeguarding the constitution”.
There is an obvious, glaring weakness there if our constitution relies on one person. That is not the way for a constitution to organise a structure. More than that, I point out the position of the Prime Minister. Our current Prime Minister and his party, after a landslide election, have the support of 34% of people who voted in the general election last year. If we look at eligible voters, we find that the Prime Minister has the support of 20% of them. Of course, we do not elect the Prime Minister; we elect MPs. If we look at who elected our current Prime Minister, of the people of Holborn and St Pancras who voted, less than half of them voted for Sir Keir Starmer. We are putting all the weight of our constitution on this one person, on those incredibly fragile foundations.
Is it any wonder—a lot of Members of your Lordship’s House commented on this—that, at the start of this year, there was a Channel 4 poll in which 52% of 13 to 27 year-olds said that the UK would be in a better place with a strong leader who does not have to bother with Parliament and elections. I remind your Lordships that that is where we are today. As the noble and learned Lord, Lord Garnier, said, a wide range of people now regard the idea of coming into Parliament as poison. That is a measure of the problems with where we are.
How about, instead, we start to think much more broadly? I absolutely do not fault the committee for not doing this—I am sure it did not regard this as within its mandate. How about we think about having a proper, modern, democratic, functional constitution? That is where we have to go, because it is not what we have now. We can see the impact of this in the state of the nation—we could even say in the state of this building. It is easy to blame individuals—and I do, very often—but why do we keep having failing Government after failing Government after failing Government? We have to look at the constitutional and institutional structures.
I come to a more specific point. In chapter 5 of the report, about the Council of the Nations and Regions, the committee says:
“The Government should set out who within the UK Government is responsible for the Council of the Nations and Regions”.
It is clear that this is being taken so seriously that we have no idea who is responsible for something that will meet every six months and bring together elected mayors who represent some parts of the country. Again, we are going to see first past the post elections, with elected mayors who may well be elected with 25% to 30% of the vote. That is who is going to be speaking for their regions. These are devolution plans imposed from Westminster.
I come to a very specific point here. It is interesting that this entire report makes no mention of local councils, which are at least rather more representative local organisations. They are not included in the Council of the Nations and Regions. I point to a ministerial Statement in June, when the Government declared that councils must have a leader and cabinet model. This is Westminster directing how local councils should work. This is supposed to ensure that local communities will have the right mechanism to engage with their council. I have a question for the Minister directly. The people of Bristol in 2022 and the people of Sheffield in 2021, through a grass-roots campaign and a referendum of the whole city, decided that they want committee structures in their councils. Are the Government really going to overrule that basic piece of democracy?
Baroness Bennett of Manor Castle (GP)
I hear “probably” from the Liberal Democrat Front Bench, and I fear that that may be right.
Having just been at the Local Government Association conference in Liverpool, I warn the Minister and the Government that there will be resistance to the plans to abolish district councils—the form of government closest to the people. People are going to fight.
I come to my concluding sentence. We cannot rely on good chaps suddenly discovering a sense of responsibility and honesty. Institutional structures do not support “good chap” behaviour. The Select Committee is trying valiantly to shore up something that is not working. We need to think about getting a modern, functional, democratic constitution for the UK.
Lord Bates (Con)
My Lords, I join others in paying tribute to the noble Lord, Lord Beith, for introducing this debate and for the work of the Constitution Committee in another excellent report. I will focus my remarks on chapter 4, paragraph 46, and the role of the Parliamentary Business and Legislation Committee—PBL for short.
My argument is that we legislate too much and scrutinise too little. This is not a new problem. We have been legislating in this place for almost 800 years. The Statute of Marlborough of 1267, which addressed the misuse of power by feudal landlords—a kind of medieval renters’ rights Bill—is still on the statute book. When Halsbury’s Statutes was first published in 1920, it had 20 volumes. It captured all the laws still on the statute book from the previous 700 years applying to England and Wales. The current fifth edition published comprises 105 volumes. In the last century, we have added 85 volumes of law to the 20 volumes of the previous seven centuries. In 1921, we added 220 pages to the statute book. In 2005, we added 12,933 pages. In 1931, there were 51 Acts passed by Parliament, but their total number of pages was 322. This year, the Employment Rights Bill alone runs to 309 pages and requires another 191 pages of Explanatory Notes.
However, this is not just the Government’s fault—it is Parliament’s fault, too. The Institute for Government has said that the parliamentary process typically adds 40% to the length of a Bill. Rather than applying the brake to the legislative instincts of the Executive, we are applying the accelerator.
The main cause of the legislative burden on Britain comes from secondary legislation. Around 1,361 statutory instruments—around 10,000 pages of statues—went through Parliament last year. Despite the valiant efforts of the Secondary Legislation Scrutiny Committee, the vast majority of those went through, in effect, on the nod. In 1949, Sir Winston Churchill, in this very Chamber, said:
“If you have 10,000 regulations, you destroy all respect for the law”.
Since then, we have had more than 100,000 statutory instruments presented to Parliament, of which only 17 were rejected. The last time your Lordships rejected an SI was 25 years ago; the last time the House of Commons did so was 46 years ago.
The two departments that legislate the most are the Treasury and the Home Office. I have been privileged to serve as a Minister in both, and spent my fair share of time before PBL. In the case of the Treasury, we can clearly see the effects of its legislative instincts in the length of the Tolley’s yellow and orange tax handbooks. In 1976, the handbooks ran to 1,626 pages. By 2024, they had increased to 23,185 pages—an increase of 1,325% in the tax code in 50 years. Every regulation imposes a cost, and those costs are ultimately borne by consumers and taxpayers. Legislation can also stifle innovation, creativity and risk-taking, which are the very lifeblood of economic growth. In a global economy, it also erodes our competitiveness.
I turn to the Home Office. Between 1983 and 2009, the Home Office published 100 criminal justice Bills and more than 4,000 new criminal offences were created. However, those 4,000 new offences were added to how many existing ones? Being a diligent researcher, I of course turned to ChatGPT. The answer that came was:
“It is impossible to determine the exact number of statutory offences in England and Wales”.
To me, that seems quite an important constitutional point. If the law is made for the people and not people for the law, one presumes that, between the Law Commission and the Cabinet Office, someone should know exactly how many laws there are, and informed citizens should know why they are necessary.
By definition, each new law impedes some freedom of the individual or the market. Laws are corrective of human, market or societal failings. Yet there is a balance in a good society between keeping people safe and secure and keeping people free and prosperous. It is not possible to eliminate all risk through legislation without eliminating all freedom too. Individual liberty is a core value of the British constitution; it is a cornerstone of our democracy.
In 2013, the Office of the Parliamentary Counsel in the Cabinet Office published an excellent review into the causes of complex legislation. The foreword states:
“Excessive complexity hinders economic activity, creating burdens for individuals, businesses and communities. It obstructs good government. It undermines the rule of law”.
I agree. We need government behavioural change to recognise that government is about leading, not just legislating; delegating powers, not just centralising them; protecting individual liberty, not inhibiting it; freeing enterprise, not binding it; and recognising that we best uphold the constitution not by strengthening the law but by strengthening the people under the law.
I need to insert a couple of caveats. First, for the record, I am not saying that all legislation is bad—far from it. Secondly, the statistics I have used are from a vast range of sources and, despite the great help of the House of Lords Library, we have not managed to corroborate them all. However, I think that people have the right to have a definitive list of all the rules and the laws by which they are governed; it is then our duty to ensure that they are all absolutely necessary.
Finally, today is Independence Day. We wish all our American friends and cousins—and, in my case, two wonderful grandsons—a happy Independence Day. On this day in 1776, the Declaration of Independence listed grievances against the King, the first of which was:
“He has refused his Assent to Laws, the most wholesome and necessary for the public good”.
That seems a noble test for our work here: to ensure that all our current laws are most wholesome, absolutely necessary and essential for the public good.
Baroness Alexander of Cleveden (Lab)
My Lords, like my noble friend Lord Pitkeathley, I rise to speak not as a lawyer, a judge or a senior Whitehall insider—I cannot bring the insider wisdom that we have heard so much of this morning—but as a constitutional reformer whose experience has largely been of operating outside, at least until I entered this place.
Way back in 1997, I worked on the White Paper on devolution and what became the Scotland Act. I subsequently served in Holyrood. In 2010, I chaired a Scotland Bill Committee transferring substantive fiscal powers to the Scottish Parliament. All those years ago, I learned that bold constitutional reform can both embed and endure. My remarks today will be about, in essence, recovering some of that constitutional reform ambition.
I need to declare an interest. My brother is a Minister of State in the Cabinet Office. For the record, everything that follows is mine and mine alone.
As befits a Friday in July debating a cross-party report, I want to range beyond party lines and speak directly to my noble friends on the committee, encouraging them to return to how our constitution needs to evolve. On today’s specifics, I welcome the Government’s commitment to a centre of excellence in the Cabinet Office, to a dedicated Cabinet committee and to strengthening the standards landscape, albeit that, like others, I think that advisory bodies should be put on a statutory footing.
Like many noble Lords and the Government, I share the scepticism about the Prime Minister having one specific support around the constitution vested in the Lord Chancellor—although my objection is on a slightly different basis because, of course, the Lord Chancellor is an English law officer running an English territorial department. Notwithstanding the admirable stewardship of Lord Mackay of Clashfern, the noble and learned Lords, Lord Irvine and Lord Falconer, and the recently ennobled noble Lord, Lord Gove, all of whom instinctively grasped the four-nation character of the UK, we self-evidently cannot rely on the occupant always being a Scot.
I turn to my noble friends on the committee. I appreciate that the context of this report was the strains of the previous Parliament. Yet I also encourage the committee to continue to look forward to tomorrow’s constitutional challenges, to dig deeper, to be bolder and to be braver on how constitutional reform can contribute to national progress. This report comes at a time when the established political order is under attack across the democratic world. Given that precarity, do constitutional niceties matter at a time of so many other challenges? I believe that two major constitutional issues demand our attention because they are holding Britain back. The chief culprits are executive dominance and corrosive centralisation.
I turn first to executive dominance. As the committee recognises, the increasing use of delegated powers, accelerated by Covid, has shifted power from Parliament to the Executive. We need to address the power of the Executive, its control of the parliamentary agenda, the creep of performative legislation and the ordering of the centre of government. All of these things commend themselves for further scrutiny.
Next up is corrosive centralisation. The UK is the most centralised large country in the developed world. Let that sink in. Notwithstanding the welcome development of the Council of the Nations and Regions, the corrosive centralisation is most acute in England, as the most recent English devolution White Paper recognises. Yet I say to all noble Lords that it will take a cross-party consensus to drive power out of this place and back to where it belongs. I firmly believe that tackling these constitutional realities of executive dominance and corrosive centralisation could make a real difference, by unlocking the possibility of better governance and the opportunity to tackle the inequality that scars our nation.
That is a bold claim, so let me, in my time remaining, try to justify it. Decentralisation can deliver better governance, because getting Parliament out of the legislative weeds is a prerequisite for better and more strategic policy-making, of the kind that we have just heard about. Without wishing to lower the tone of the debate, I simply say that it cannot be right that here in the upper House of a nation of 60 million people we are discussing south Cambridge car parking arrangements or highly localised statutory instruments. We are drowning in detail that needs devolving back to town halls, as my noble friend said.
When it comes to inequality, the UK is the world’s most geographically unbalanced developed economy. Our north/south divide has become so normalised that we barely see the depth of its destructive impact. Thankfully, driving decentralisation and tackling the north/south divide are priorities for this Government, yet history suggests that constitutional reform and regional renaissance require cross-party support to secure legitimacy and longevity.
Many of the issues that I have raised today, and that have been echoed across the Chamber, are about improving the functioning of the state—functions in which many of our citizens have lost faith recently. Here, I echo the remarks of the noble and learned Lord, Lord Neuberger, and the noble Lord, Lord Bates. These issues straddle the constitution, the mechanics of government, Civil Service reform, regulation, judicial review and public service reform. Yet our current committee structure typically addresses these issues in isolation, while the public simply see a collective failure of governance. I commend to my noble friends that they consider nominating, for a House special inquiry in the next Session, a more holistic consideration of the crisis of governance that ails our politics. In so doing, this venerable Chamber would be getting ahead of the constitutional agenda and not merely looking in the rearview mirror.
Lord Bellamy (Con)
My Lords, it is a great pleasure to follow the wise words of the noble Baroness, Lady Alexander. I declare my present membership of the Constitution Committee, although not when the committee produced this report.
It is true that there is no single document in this country called the constitution, as there is in the United States and other countries, but it is not entirely correct to say that our constitution is unwritten. On the contrary, almost all our myriad laws, powers, judicial decisions, conventions and practices are written down somewhere, often in great detail. It is just that they are not written down in one place, in an accessible form. In consequence, much of our constitution remains a mystery as far as the general public are concerned.
With that in mind, and mindful of the powerful speech of my noble friend Lord Bates, I make three points. First, a constitution that is not fully understood, or that is partially inaccessible, may be a particular weakness in an age of political discontent. If established constitutional norms can come under challenge even in countries such as the United States, then we, with an uncodified constitution and depending also on constitutional convention, may find ourselves vulnerable. In those circumstances, it has never been more important for the general public to understand at least the basics of our constitution—parliamentary sovereignty, the rule of law, separation of powers and the devolution settlements, to name but a few. In that context, I warmly commend the publication by the Library of the other place on 23 June, Monday last week, of a most impressive briefing paper, The United Kingdom Constitution—A Mapping Exercise, which sets out over 300 pages many of the basic elements of our constitution.
But that is only a start. There should henceforth be an accepted constitutional responsibility that it is the active duty of the Executive to explain and demystify the constitution for the general public. Among many possibilities, there is a role for GOV.UK to bring together in one place, with appropriate links, an accessible source of important constitutional materials, to give one example. An active approach, led by the Government, to full openness and transparency about how the constitution works, perhaps even an updated Cabinet Office manual—as several noble Lords have already suggested and as recommended by a previous Constitution Committee—should be combined with increased civic education in schools and universities on the basic principles of our constitution.
I do not suggest that our constitution should be reduced to a single document or codified, but it should not be kept in a cupboard and brought out only in times of crisis. It should be actively woven, by education and awareness, deep into our national DNA, so that every citizen understands and can access the basic principles. I hope that the Minister will indicate whether the Government are prepared to undertake such an active project.
Secondly, on whether we need a second senior and authoritative Minister to support the Prime Minister, as the committee suggests, my respectful answer is no, for the reasons that other noble Lords have given. I simply add that many constitutional issues will arise in one way or another in relation to the rule of law, the role of the courts and access to the courts. In that respect, we already have a guardian of the constitution. Admittedly, it is only in England and Wales, but de facto it spreads out across the United Kingdom in the shape of the Lord Chancellor.
In the previous Government, I had the honour of being answerable to your Lordships for the affairs of the Ministry of Justice on behalf of the Lord Chancellor. I was given, as one is at the start of one’s duties, a list of responsibilities. Nestling among such matters as powers of attorney and the affairs of the Legal Aid Agency, I saw the awesome words, “the constitution”. I asked, “What is my responsibility for the constitution?”. I was told, “You’ve no need to worry; it’s only there just in case”. I relaxed, but only for a short while because, unfortunately, “just in case” happened almost immediately. We had the constitutional issue arising from the Horizon scandal and whether it was constitutionally appropriate for Parliament to pass legislation to quash convictions duly made by the criminal courts. In those circumstances, I suggest that only the Lord Chancellor—a senior and respected Lord Chancellor I had the great pleasure to serve under—had the authority to deal with such an issue, which he did. Whether you think the decision was right or wrong, at least the constitutional proprieties were fully observed. My conclusion is that we do not need any more formal mechanisms to safeguard our constitution. It has survived, intact, serious upheavals over the last few years.
Lastly, on a completely different point, I somewhat squirmed to read in the report that when the then Prime Minister caught Covid and became very seriously ill, the Cabinet Secretary found himself consulting constitutional academics on what he should do if the worst should happen. Surely there should be in place, as in the United States, a settled constitutional procedure to determine who is to take over ad interim immediately and automatically if, heaven forfend, the Prime Minister suddenly dies or is incapacitated. That lacuna in our present arrangements should be filled as soon as possible.
Lord Griffiths of Burry Port (Lab)
My Lords, I rise with a mixture of intimidation and emboldenment to make my remarks. I have no experience in the law at all, and I have very little direct experience of the world of politics. But I am part of the general public about whom the noble and learned Lord, Lord Bellamy, just adduced his concerns as to their ability to understand our constitution; therefore, I am heartened by the presence in the Gallery of members of the public. I would love there to be some kind of an assessment as they leave as to how much of our debate they have understood.
I am now a member of the Constitution Committee, which is a great honour. I see three members here, and each has spoken; that adds to my sense of intimidation. But when I was appointed, I took the report now before us just to see what I was getting into—and a very good preparation it has proved to be for this debate.
I was interested in a remark that appears right at the beginning of the report. It is hinted at—it is half-referred to—and, in this debate, has been mentioned only once, by the noble and learned Lord, Lord Neuberger. That is the desire stated in the manifesto of the Government to put forward a commission for ethics and integrity. Since I claim a little bit of experience in the realm of ethics, I feel now a bit more emboldened to launch forth on a discussion of this paper.
I was interested by a distinction that was made under the heading, “Safeguarding the constitution: stewardship and policy”; that is, the distinction between stewardship of the constitution and the policy outworkings —how bits and pieces of policy impact on the constitution, are affected by it, or threaten it, or whatever. I was interested in the stewardship aspect and felt that a commission for ethics and integrity could snuggle in quite nicely as a duty of the commission appointed to safeguard the constitution.
It reminds me of a debate we are currently having in our Constitution Committee about the rule of law. Noble Lords might have thought we all knew what that was; speaking just for myself, I thought I knew what it was. But the more we get experts to come and tell us about it, the more we realise that the big distinction is between a thin understanding of the rule of law and a thick understanding. It is the thin understanding—the procedural aspects of what the rule of law is—that most people are in agreement with and where there is not much to argue about. I think there is the same distinction between the stewardship of the constitution and the policies that emanate from it.
However, I read that events have overtaken that declaration, that commitment that was made to have such a commission. The Prime Minister has now repackaged the whole idea. The idea of a commission has been abandoned. The noble and learned Lord, Lord Garnier, had a nautical metaphor. The metaphor called to do the work here is that the concerns for those who want to steward the constitution should be gathered under an umbrella, and so one is bound to ask: what would that pick up? What would that do? What bits and pieces would be gathered under that umbrella? The Advisory Committee on Business Appointments would be one, the Committee on Standards in Public Life another; the Parliamentary Commissioner for Standards; the Civil Service Commission; the Independent Complaints and Grievance Scheme; the House of Lords Appointments Commission; the Electoral Commission; the Independent Parliamentary Standards Authority, IPSA; the UK Statistics Authority; and the Registrar of Consultant Lobbyists—well, what an umbrella.
I would prefer to change the metaphor and say that anybody wanting to take an overview of that bunch of previously quasi- or semi-independent bodies would be offering us a bucket of eels. They have their own intrinsic codes, and we are being asked to believe that a commission could somehow magic an overview of the combined work of all those different bodies, and I say that is impossible.
On ethics, this is a post-modern age where what is called a metanarrative no longer exists, where people make up their own ethical standards as they go along. A Welsh pop band, the Manic Street Preachers—I wheel this one out every now and again to prove to my children that I am relevant—had an album titled, “This Is My Truth Tell Me Yours”. I believe that the idea of the constitution, and the stewardship of the constitution, in that thin sense, is incumbent upon us all, because that is a counterintuitive stance in an age where breaking things up, looking at things in a piecemeal way, is more the order of the day.
I have made my remarks; I am glad that I have done it. I am looking forward to my lunch, and I hope that the general public will be more and more aware of what our constitution is. If not, we should ask ourselves: what are we going to do about that?
Lord Hannan of Kingsclere (Con)
My Lords, it is always a great pleasure to follow the fresh and humane takes of the noble Lord, Lord Griffiths of Burry Port.
The public see a collective political failure: that was the phrase used by the noble Baroness, Lady Alexander of Cleveden, in her excellent—indeed, outstanding—contribution. As she correctly says, that anger of the public, that sense of disillusionment, are exaggerated by the uniquely centralised nature of our polity. We have weaker local government here than in any European country except Malta, which in some ways is governed as a kind of continuous conurbation. When we have failures at the centre here, they are felt far more strongly elsewhere.
Here is the extraordinary thing: that sense of anger and alienation, that rage against a failing political system, have happened before we have got to a recession. I say “before” because I can read the numbers of Labour’s spending just like anyone else can. Let me put that more neutrally and say “without a recession”; we have been flatlining for a bit. It is not a response to bread lines and mass unemployment; it is simply a sense that things are not working. It is a very understandable sense. Taxes keep going up and public services are not improving. The state seems unable to discharge its most basic core functions, such as policing its borders.
What I think people do not understand until they have been close to politics, until they have seen the system in operation, is the extent to which this is not a failure of will on the part of the elected Ministers so much as a systemic failure, because the Minister newly arrived finds himself encased in an inert machine—a broken state machine. He is tugging at levers that have worked loose; he is pressing at buttons that are disconnected; he is giving instructions, and nothing seems to work.
Let us take as an example, because it was going on for a long time, the case of the Afghan hijackers who arrived at Stansted after diverting their flight at gunpoint in 2000. Six successive Home Secretaries, five Labour and one Conservative, including the noble Lords, Lord Reid and Lord Blunkett, tried to remove them. They had public opinion on their side, they had parliamentary support, and they were unable to do it. They were unable to do it because they were jabbing at that disconnected button. It is the same whether it is planning or energy policy. Ministers come in with all sorts of ideas, having sincerely made promises, and find that the machine does not let them deliver those promises.
Until we sort that problem out, the anger and disillusion of the public will increase to the point where, I fear, they may feel, in an irrational rage—like the man who takes a cudgel to his computer because it is malfunctioning—that they need to get something out of their system even though the net result will be worse.
We underestimate the extent to which this has happened in our lifetimes, specifically since 1997. There was a new juridical system created, both by international treaty and by national law, which has massively tilted the balance against the elected representative and in favour of the standing functionary. Any incoming Government who want to restore honour, purpose and meaning to the act of casting a ballot will need to begin by repealing a great many things, and not just the international treaties that prevent us delivering manifesto promises but a lot of the national legislation—the Equality Act, the Human Rights Act, the Climate Change Act and all the things that constrain Governments’ freedom to act—and a lot of the internal mechanisms of the Civil Service.
In a way, I find it shocking that we were not more shocked by what my noble friend Lady Coffey said about finding letters in her name on Twitter for the first time, because they were being written by officials on her behalf, without her knowledge. That we are so unshocked by that, that we take it so for granted, tells us a great deal about the feebleness of a Minister within this system.
The people who politically approve of all the things that were put in place are much more relaxed about the lack of democracy in the system than those who disapprove. I understand that; it is why the noble Baroness, Lady Chakrabarti, is giving me a funny look. Of course, she does not like the idea of repealing the Human Rights Act and all the rest of it. I get that, but is that not an argument we ought to be having democratically, in allowing people to make a decision? Win the case on its merits; do not try to constrain future Governments through judicial activism and judicial review.
When we were talking the day before yesterday about not allowing people to come here unless they have been approved by HOLAC, I made the point that this was enshrining the system of getting an ideological committee—if you like—to vet who is a proper person to be in government. This is a symbol for what has been happening since 1997, which is that certain points of view are disallowed regardless of their popularity in the country at large. In responding, the noble Lord, Lord Wallace of Saltaire, said that “That is the difference between popular democracy, which is what Hannan wants, and liberal democracy”. I want to interrogate that distinction a little.
Of course, we do not have absolute majoritarianism. Nobody is in favour of a system where, with a majority of 50% plus one, you could expropriate people or incarcerate them without trial. There are some basic defences of human rights that this country has recognised since the Bill of Rights and before. But I do not see how liberal democracy in that sense—a bunch of good chaps in HOLAC determining who is fit to be here—is any different from saying that democracy by Liberal Democrats or people acceptable to Liberal Democrats, or a certain kind of perspective, whatever its popular reach, is just not proper in these Chambers.
That has a great deal to do with what looks like the looming collapse of the two-party system we have had for the better part of a century, a commensurate feeling that the entire system has failed, and the sense one detects now in focus groups: this rather scary thing of people saying that we may need some kind of autocratic government to sort it out, just to get things to work, to make things happen, to get the public services and to make sure our borders are secure. That is the smashing-up of the malfunctioning computer and, unless we anticipate it, unless we restore power to elected representatives nationally and locally, I fear that the cudgel will descend.
Lord Norton of Louth (Con)
My Lords, I very much welcome this report from the Constitution Committee. I have a particular interest in that I was the first chair of the committee and was responsible for the report Reviewing the Constitution, on which this report draws and builds. I fear, though, that the gist of my speech can be summarised as: here we go again.
We have an excellent report from the committee—I agree with everything in it—and we have a response from the Government in essence saying, “Thanks, but we aren’t going to do anything. Responsibilities for the constitution are spread across government and work; there are no grounds for vesting responsibility for the constitution in a senior Minister”. Some noble Lords have endorsed that view.
We have been here before. In July 2023, we debated in Grand Committee a report from the Constitution Committee on the roles of the Lord Chancellor and the law officers. The committee advanced similar recommendations to those made in this report, and the Government’s response was essentially the same as the one before us. Rereading my speech on that occasion, I realised that I could repeat it basically word for word today.
The current Government are making the mistake of the last one in not grasping the dangers of leaving responsibility for the constitution spread among Ministers and civil servants, with no imperative to engage with it. This Government, like the last one, remind us that the Prime Minister has ultimate responsibility for the constitution. However, as Pat McFadden told the committee, in the real world, the Prime Minister is a very busy person. Prime Ministers may not have the time to think seriously about the constitution as a constitution, and they may not have an interest or understanding. The last to give serious thought to it were John Major and Gordon Brown.
Under Tony Blair, there were major constitutional changes, but they were disparate and discrete. They were not grounded in any intellectually coherent approach to constitutional change, and the Prime Minister lacked any interest in it. I recall Charles Kennedy telling me that, whenever he tried to talk to the Prime Minister about parliamentary reform, his eyes glazed over. Boris Johnson clearly believed that, as Prime Minister, he was above the constitution rather than the other way round. He was thwarted by what the noble Lord, Lord Hennessy, has termed the “good chaps” theory of government, but that term, as we have heard in this debate, diminishes the fundamental culture of constitutionalism that characterises British polity. As the noble Lord, Lord Beith, said, and as the noble Lord, Lord Pitkeathley, eloquently argued, it is not the form of the constitution that is crucial but the culture within which it is embedded.
Spreading responsibilities among Ministers means that there is no one with the capacity to oversee how our constitution is working as a constitution. The Prime Minister does not have the time and may lack the inclination to exercise constitutional stewardship, and the same applies to those who advise him. As the report draws out, components of the teams in the Cabinet Office who deal with constitutional issues have, particularly in recent years, moved between departments. There is also significant churn not only in these teams but in the senior Civil Service.
I moved an amendment to the Constitutional Reform and Governance Bill in 2010, which the Justice Secretary, Jack Straw, accepted, to his credit. It formed Section 3(6) of CRaG, requiring that
“the Minister for the Civil Service shall have regard to the need to ensure that civil servants who advise Ministers are aware of the constitutional significance of Parliament and of the conventions governing the relationship between Parliament and … Government”.
This, as the report mentions, is embodied in the Civil Service Code. I variously sought to test how effectively it is being applied, not least given the turnover of senior civil servants. It is not clear how well grounded even the most senior civil servants are in the constitutional position of Parliament and the Executive. As one former Permanent Secretary confided to me, they tend to see Parliament as an inconvenience.
I noticed that the noble Lord, Lord Sedwill, told the committee that, when he was Cabinet Secretary and Boris Johnson went into intensive care, he consulted constitutional historians on what the implications would be if the Prime Minister died. My noble and learned friend Lord Bellamy referred to this. The noble Lord, Lord Sedwill, appeared unaware of recent scholarship and that one of his predecessors had commissioned research on the subject. I also noticed that, in his evidence to the committee, he said that the last Prime Minister to die in office was Spencer Perceval. The last Prime Minister to die in office was Palmerston in 1865.
We need to embed—I stress “embed”—within government, among both Ministers and civil servants, an understanding of our constitution, both its key components as laid out in the committee’s 2001 report and how it operates, not least the nature of conventions of the constitution. There needs to be a systematic means of inculcating that understanding, in effect generating the culture, and, crucially, as recommended by the committee at paragraph 38, a senior Minister with responsibility for advising the Prime Minister on discharging his constitutional responsibilities. We need the equivalent of a William Whitelaw.
The current situation remains, as it did under the previous Government, unsatisfactory and, given the need to embed constitutional stewardship, action needs to be taken quickly. I look forward to hearing from the Minister precisely what action the Government will now take in response to the committee’s report. I encourage her to respond substantively to the recommendation made by my noble and learned friend Lord Bellamy. There is a powerful case for ensuring that citizenship is taught effectively in our schools. They need the resources to teach it effectively. Active citizenship is crucial to the health of the British polity.
Lord Wallace of Saltaire (LD)
My Lord, the UK is a constitutional democracy without a written constitution. It is a very odd constitution. The integrity of our system of government therefore depends on the willingness of those in power to accept the constraints of constitutional conventions: to behave like gentlemen. This report states in its opening paragraph,
“the actions of Ministers and Prime Ministers”
in the last decade have placed “strains” on our constitution —that is a very modest way of putting something about the behaviour of Boris Johnson and Liz Truss. However, that sets the context for the report’s recommendations. Furthermore, evidence from opinion surveys that shows that public distrust of Westminster, Whitehall, Parliament and government is at an all-time high makes it even more important to re-examine the mechanisms for maintaining appropriate and ethical behaviour and the “ancillary structures”, as the report puts it, that provide the constitutional guardrails against inappropriate behaviour.
I found the Government’s response to this report flabby and complacent. It ignores the acute strains that Johnson and Truss placed on our constitutional conventions, and so draws no lessons from them. What we read is a defence of the current messy distribution of tasks across Whitehall with no indication of concern that improvements might be needed. Ten days ago, I listened to a speech by the current “Minister for the Constitution”, Nick Thomas-Symonds, at a Constitution Unit conference. His message was that better delivery of public services would be enough to
“restore the public’s faith in our constitution”,
although he added in passing that we should always be looking at the adequacy of checks and balances.
Some noble Lords will have seen today’s Times cartoon, which depicts President Trump declaring 4 July the day of independence from checks and balances and of getting away from constitutional constraints—I am sure that the noble Lord, Lord Hannan, is extremely happy that Trump is behaving in such a fashion.
Reading this report on Wednesday morning and then going into the debate on Report on the hereditary Peers Bill, I was also reminded of the parallels between this and that debate. The noble Lord, Lord Hannan, and the noble Baroness, Lady Fox of Buckley, argued that a popular democracy should not create bodies of unelected people to hold back an elected Prime Minister, and the noble Lord, Lord Jackson of Peterborough, warned against an “activist judiciary” of unelected judges constraining prime ministerial power. The noble Lord, Lord Hannan, has just repeated that we should not try to constrain future Governments. The whole point of constitutions is indeed to constrain future Governments. I have read much of the many writings of the noble Lord, Lord Hannan, including that wonderful but entirely inaccurate book on how the Anglo-Saxons invented freedom. Actually, the history of the United States in its relationship to Britain is about the invention of constitutional democracy with all the constraints that President Washington, The Federalist Papers and others put on that, which President Trump is now doing his utmost to tear away. The difference between popular democracy and constitutional democracy is important. I stand on one side of it; the noble Lord very clearly stands with President Trump, Viktor Orban and others, apparently, on the other side.
Our unwritten constitution has executive dominance, within context which it is hoped the Prime Minister will observe, and a number of parliamentary, judicial and advisory checks and balances that are intended to strengthen those constraints. Some of those present may already have registered for the Policy Exchange meeting on 16 July entitled “Is Populism the Future of the Right?” I hope that most of us here will say, “We hope not”.
This report refers to the complex framework of institutional guardians that safeguard the UK constitution. It nevertheless notes that since the abolition of the Lord Chancellor’s office, the various bodies within Whitehall have been shuffled around from the Department for Constitutional Affairs into the Cabinet Office on to the ministry for local government and so on without really having the importance which they have.
In their manifesto last year, the Government promised a number of things on which they have not yet begun to deliver. Where is the ethics and integrity commission that we were promised? What is happening to the revision of the Cabinet Manual? It is particularly important that the Cabinet Manual is revised because it was sparked by Gordon Brown in 2008-09, partly because he believed that we might not have a single-party majority in the 2010 election. It was not completed for that, but it was a useful help. It now looks highly likely that in the 2029 election we will have a non-majoritarian outcome. At the moment, we have five parties in England effectively competing, six in Scotland, Wales and Northern Ireland and today we have had the announcement of a seventh. That might well lead us to a messy outcome. When I look at politics in Yorkshire, I can see the party that Zarah Sultana has spoken of winning several seats in Yorkshire under current conditions. We will need an updated Cabinet Manual to guide the negotiations that may then have to follow. I hope the Minister will be able to say something about progress with the Cabinet Manual, which in an unwritten constitutional situation becomes all the more important.
I was interested in the number of Peers who spoke about oaths. As I swear at the beginning of each Parliament to be loyal to the King, his heirs and successors, I wonder whether I should not actually be swearing to obey the constitution and the laws of this country instead. I think that when a Prime Minister comes into office, it would be appropriate for them to swear an oath, perhaps in front of the House of Commons, that he or she will respect the laws of this country. It would be a very good idea for the Constitution Committee to look at the oaths Act 1868—rather a long time ago—and consider how the taking of office of one sort or another in the various parts of the British constitutional machinery should perhaps now be updated.
On the Council of the Nations and Regions, I am one of the very small number of people who have actually read the Gordon Brown report—I see that the noble Baroness, Lady Alexander, has also read her way through it—which put forward the idea of an alternative second Chamber. It would indeed have created a very different, and I think much more constructive, second Chamber than we currently have. It had some relevance to the 2011 proposals that the coalition Government put forward, which I as a then Minister struggled to persuade this House, unsuccessfully, were a good idea.
What we have now in the Council of the Nations and Regions is really almost nothing. It has met twice. We are not quite sure who goes to it nor where the secretariat is. I strongly agree with those who have said that the problem of local democracy in England in particular is a real problem, and it is a constitutional problem. I encourage the Constitution Committee to look again at what is meant by devolution and why we are losing so much of our local democracy within the English part of this country in particular.
Lastly, I want to touch on the role of the monarchy. Over the last few months, watching Trump in the United States, I have for the first time begun to appreciate the usefulness of the ambiguous relationship between the monarch and the Prime Minister. There is no one to say to President Trump, when he wishes to behave without any constraints whatsoever, “Are you sure you’re doing the right thing?”, or, “I’m very sorry but you cannot see me at the moment—perhaps in two or three days’ time”. I well remember that when there was an attempted military coup in Spain, it was the King’s refusal to agree that prevented it. For the first time, in a sense, I see that the role of the monarch and his advisers, as well as of the Prime Minister and his advisers, perhaps forms one of the few backstops we might need in an emergency.
Our constitutional issues are, as we can see from the thinly attended Benches, dry and not of interest most of the time to most people. However, British politics is in a very confused situation. The public mistrust Westminster and Whitehall, and after the next election we are likely to face considerable constitutional confusion. For that reason, the Government need to take constitutional issues much more seriously in order to fulfil some of the promises in their manifesto, which they have not yet done, and to produce, in consultation with the appropriate committees in the Commons and the Lords, a revised Cabinet Manual.
Baroness Finn (Con)
My Lords, I thank the noble Lord, Lord Beith, for so eloquently introducing the debate on the report today. I also take the opportunity to thank the noble Baroness, Lady Drake, who unfortunately cannot be here today, for her excellent leadership as chair of the Constitution Committee. It was a real privilege to sit on the committee at the time of the report’s preparation and publication, and I welcome the opportunity to reflect on its findings and the Government’s response today. I pay tribute to the brilliant clerks for their hard work and dedication. I am always unfailingly impressed by their ability to make sense of our sometimes lengthy and arcane discussions.
The report raises fundamental questions about how we govern ourselves and how we safeguard the integrity of the United Kingdom’s constitution. It is a reminder that the strength of our constitutional arrangement lies not only in its traditional flexibility but in the checks and balances that uphold it. The responsibility for different parts of the constitution is split across several government departments, and the Prime Minister holds ultimate responsibility through his allocation of ministerial responsibilities and ability to transferred functions between departments.
I welcome the Government’s recognition of the need to safeguard and uphold the constitution and their acknowledgement that further work is required to reinforce and protect the democratic foundations of our nation. While the strengths of the UK constitutional arrangements lie in the flexibility of the uncodified system, it is important to recognise that strains have been placed on the constitution, and it is imperative that we make meaningful reforms to ensure its continued resilience and integrity.
On the centre of government, the Government’s response recognises the importance of constitutional safeguarding within government, and that the Prime Minister is ultimately responsible for overseeing the constitutional arrangements. The Government also recognise the role of the Cabinet Secretary in supporting the Prime Minister in safeguarding the constitution. This was pointed out by the report, but the Government have rejected recommendations for setting out the Cabinet Secretary’s official responsibilities. There are potential risks in not formalising that responsibility, so can the Minister explain why the Government have chosen not to adopt this recommendation and why they have refrained from formally clarifying the Cabinet Secretary’s constitutional duties?
Without clarity, there is little hope of strengthening foundations. From my own experience in government, I know that the Civil Service often struggles with preserving institutional memory. Proper record-keeping and the retention of constitutional knowledge are essential. For example, when I was working in the Cabinet Office during the coalition Government, the Minister there, much to his astonishment, discovered during the course of an inquiry that there existed a rather chaotic room which housed the Cabinet Secretary’s so-called personal files. At the time there was no registry of these files; they were just thrown into the room. As a result, officials kept finding extra files after the initial request had gone out. The inquiry had been assured that it had been given all the documents—and then more files would come up, much to the exasperation of my noble friend Lady May, who was the then Home Secretary.
Over time, there has definitely been some longer-term institutional memory loss. The systematic documentation of precedent is crucial not only to maintain institutional memory but to enhance the quality of advice to Ministers. We saw an example of precedent not being followed this week with the ratification process in respect of the UK’s treaty with Mauritius. As my noble friend Lord Callanan pointed out on Monday, the Government have failed to follow a convention that, under the Ponsonby rule, requires that a substantive debate in the House of Commons on a treaty be granted when requested through the usual channels. This is the first time the Government have had to deal with the ratification process, and it is for the Civil Service to advise Ministers correctly on the constitutional precedent. Both my noble and learned friend Lord Bellamy and my noble friend Lord Norton of Louth referred to the need for clearer understanding of what happens if the Prime Minister becomes incapacitated or dies in office.
So, while I welcome the Government’s recognition of a need for a centre of expertise on constitutional matters, setting out the propriety and constitution group in the Cabinet Office to undertake that role, there is a case to go further. For the entire time I was in government, the propriety and constitution group did not always draw on the available precedent; there was a search for, or more of a scramble in search of, principles. My noble and learned friend Lord Bellamy made a powerful case for the need to hold those principles and all that information in one place.
As it stands, the propriety and constitution group does not have the institutional memory, and it is not clear to which Minister it is accountable. This is not a peripheral issue; it is central to the resilience of our constitutional framework. How, therefore, do the Government intend to safeguard the UK’s constitutional integrity across further Administrations if they fail to preserve such vital institutional knowledge within the Civil Service?
I take this opportunity to reflect on the role of the propriety and constitution group more broadly. I caution the Government to be careful about giving the group even more power. In its propriety role, it already controls all constitutional advice given to the Prime Minister. It manages the Honours Secretariat. It exercises day-to-day oversight of every major standards body in government, which includes the independent adviser on ministerial interests, the Commissioner for Public Appointments, the House of Lords Appointments Commission, the Civil Service Commission, the Advisory Committee on Business Appointments and the Committee on Standards in Public Life. Each of those bodies was intended to serve as a check on executive power, but instead they are line-managed by the Cabinet Office directorate.
The group’s remit extends to many areas, including public inquiries, major state events, the Privy Council and the Royal Household. It controls the freedom of information process at the heart of government and decides what the public are allowed to know and when they are allowed to know it. Indeed, its officials interpret the Cabinet Manual, to which many noble Lords have referred today, including the noble Viscount, Lord Stansgate, and my noble friend Lord Harper.
The point is that it is unclear to which Minister the group reports on all these areas. That is not really how a democratic constitution is meant to function. Civil servants are supposed to advise and to challenge, as my noble friend Lord Waldegrave pointed out. But Ministers are supposed to decide and then answer for those decisions. My noble friends Lady Coffey and Lord Hannan made some key observations in this regard. This has been a quiet but fundamental shift in the role of the propriety and ethics part of the Propriety and Constitution Group, which Ministers should watch with care.
There is obviously a need for a centre for constitutional affairs which functions effectively and is able to provide accurate advice to Ministers, but there would also appear to be a bit of a question mark over whether the centre should sit in the same group which has responsibility for propriety in government. Can the Minister confirm whether the Government have considered establishing a constitution unit which is separate from the propriety work of the Propriety and Constitution Group? As other noble Lords have rightly noted, the new Council of the Nations and Regions has made a strong start. However, it should serve to complement, rather than replace or compete with, the direct and formal meetings between the Prime Minister and the heads of the devolved Governments.
On the role of other Ministers, while I accept that constitutional oversight rests ultimately with the Prime Minister—I am absolutely mindful of the reservation expressed today by many noble Lords, including my noble and learned friend Lord Bellamy and my noble friend Lady Coffey—I think there is a case to assign some clear ministerial responsibility in this area. We talk about the centre of expertise: to whom would that be specifically accountable? The Prime Minister already carries an extensive portfolio of demanding responsibilities. Appointing a senior Minister to advise on constitutional matters and be accountable to Parliament for the work of the centre would not only alleviate some of that burden but potentially strengthen democratic accountability and transparency. I would be interested to hear the Minister’s views on the value of appointing such a senior and authoritative figure to carry out this role.
Finally, I turn to the critical matter of constitutional decision-making. When constitutional considerations are woven into policy development, tensions can arise. These are too often left unexamined. As noble Lords will know, the revised Ministerial Code, published by the Prime Minister in November 2024, expanded the powers of the Independent Adviser on Ministers’ Interests, granting enhanced authority to investigate ministerial conduct.
The Committee on Standards in Public Life has gone further and recommended that the independent adviser and other key regulators such as the Advisory Committee on Business Appointments should have a statutory basis. Here I concur fully with my noble friend Lord Harper and the noble Lord, Lord Pitkeathley of Camden Town, that the constitution is best when it remains flexible and allows the political system to respond. In my view, the Government must be extremely wary of any proposal to put these powers in statute.
In the case of the independent adviser, it would elevate the role in a way that may come to challenge the authority of the Prime Minister, who is the sovereign’s chief adviser. The independent adviser was established to provide independent advice to the Prime Minister, not to act independently of the Prime Minister. This shift potentially undermines the intended balance, and I strongly urge the Government to keep it under close review.
To conclude, while I welcome aspects of the Government’s response, it is clear that further steps are needed to ensure that our constitutional framework remains robust, transparent and resilient. Safeguarding the constitution is central to our democracy and we must not shy away from the architecture that upholds our democracy. It is our duty to ensure that our processes are legitimate and accountable, so that citizens hold trust in our institutions. I thank the Government for their response and urge the Minister to consider the points raised. I look forward to hearing from her.
Baroness in Waiting/Government Whip (Baroness Anderson of Stoke-on-Trent) (Lab)
My Lords, I thank my noble friend Lady Drake for securing this excellent and informative debate, and for her time spent chairing the Constitution Committee, during which it produced the report we are debating. I thank the noble Lord, Lord Beith, for leading the debate and making sure that we were well structured before we started. I thank all noble Lords for their contributions to what I think has been a rich, interesting and, as always, challenging debate.
The Government’s commitment to upholding the UK’s constitutional arrangements is one we take very seriously. Since the election, the Government have worked to return to a politics of service. This extends from our commitment to maintain high standards in public life and the rule of law to the delivery of the reform agenda set out in the manifesto—including the reform of the House of Lords, which we debated extensively, again, this week—and resetting the UK Government’s relations with the devolved Governments in Scotland, Wales, and Northern Ireland.
As noble Lords have referenced throughout the debate, the UK does not have a codified constitution. Instead, the UK’s wide-ranging and complex constitutional arrangements have evolved over time and continue to do so. They consist of various institutions, statutes, conventions, judicial decisions, principles and practices. As several noble Lords, including the noble Baroness, Lady Coffey, my noble friend Lord Pitkeathley and the noble Lord, Lord Harper, reminded us, there are significant benefits to having this level of flexibility. The Government believe that this characteristic is not merely a feature of our constitutional arrangements but a fundamental advantage that allows us to respond flexibly to meet the complex challenges that are a feature of the modern world.
The Government are of course committed to ensuring that Parliament is able to play its crucial role in scrutinising the work of government. Allowing Parliament the time it needs to properly scrutinise and debate legislation is at the core of maintaining a high quality of legislation. The Government greatly value the work of your Lordships’ House and the revising function it performs. The other place, as the democratically elected Chamber, has a vital role to play in representing the interests of its constituents and holding the Government to account.
The Government are also committed to ensuring that other constitutional safeguards are able to work effectively. This is why the Prime Minister has given the independent adviser on ministerial standards the power to initiate investigations without needing the Prime Minister’s approval. I will return to that role in response to the question from the noble Baroness, Lady Finn.
Regarding the role of Ministers, which was an important theme of today’s debate, the report suggests that constitutional oversight be given to one senior member of the Cabinet. This has sparked an interesting debate, with varying views. The Government, unsurprisingly, agree with the noble Viscount, Lord Stansgate, the noble Lord, Lord Waldegrave, and many others, when we suggest that this role is better fulfilled by all members of His Majesty’s Government in carrying out their duties. Noble Lords are aware that, as the sovereign’s principal adviser and the most senior member of the Government, the Prime Minister is ultimately responsible for overseeing the UK’s constitutional arrangements. In addition, the Prime Minister has a specific constitutional role in advising the sovereign on the exercise of the royal prerogative in relation to the appointment, dismissal, and acceptance of resignations of other Ministers. He is supported in this role by the Cabinet Secretary.
At this point I want to reference the point made by several noble Lords, including the noble Lord, Lord Beith, and the noble Baroness, Lady Finn, regarding the role of the Cabinet Secretary. I appreciate the point raised in the report. In evidence to the Public Administration and Constitutional Affairs Committee in the other place, the Cabinet Secretary himself in February stated:
“The Cabinet Secretary’s job is to bring together all those sources of constitutional thought and give the Prime Minister some advice on which they can then properly and well-informedly make their decision”.
While it is not explicitly stated in the job description, as pointed out by noble Lords on the committee, I believe that both the current occupant and all previous Cabinet Secretaries believed upholding the constitution to be implied in the very definition of their role.
Going back to Ministers, certain Ministers will naturally have a portfolio that places constitutional matters at the centre of their decision-making. The Cabinet Office serves as the home of policy relating to the UK constitution and devolution, working closely with the Secretaries of State for Scotland, Wales, and Northern Ireland. The Chancellor of the Duchy of Lancaster has oversight for all Cabinet Office policy. He is supported by the Minister for the Cabinet Office, who is also the Minister for the Constitution, and by the Minister of State who supports on intergovernmental relations—otherwise known as the brother of my noble friend Lady Alexander.
The machinery of government change that took place following the election, moving union and devolution policy from the Ministry of Housing, Communities and Local Government back to the Cabinet Office, further strengthens the Cabinet Office’s role as the centre of expertise on the constitution within government. The Government believe that the current arrangement, in which constitutional consideration is incumbent on all Ministers, is preferable to one where responsibility sits with a single Minister.
I do not think any of us would want Government Ministers to think that matters of the constitution and the strength of the union are someone else’s responsibility and will be dealt with by them, particularly as what could be considered constitutional goes much further than the roles I have listed so far—something the Constitution Committee has recognised in its descriptions of the five key tenets of the constitution.
For instance, the Lord Chancellor, as we have discussed, has a specific responsibility to protect the independence of the judiciary. Likewise, the law officers, as chief legal advisers to the Crown, have an important constitutional role in advising Ministers on their legal obligations and promoting the rule of law at home and abroad. In fact, the importance that this Government place on Ministers performing their constitutional duties is demonstrated in the oath sworn by the Attorney-General on taking office, which commits them to respecting the rule of law and serving the King in its first line.
The Leader of your Lordships’ House and the Leader of the other place act as the Government’s representatives in the legislature and the representatives of either House in the Government. The Leaders are responsible for representing the interests of both Houses and ensuring that the customs and principles that make Parliament unique are properly represented. Considering the wide range of subjects that a single Minister responsible for constitutional matters would be expected to cover, the Government believe that it is appropriate to maintain the current approach.
Moving on temporarily to intergovernmental relations, the Government’s manifesto commitment to reset the relationship with devolved Governments and to ensure that the structures and institutions of intergovernmental working improve relationships and collaboration on policy is key. That is why, almost a year ago today, the Prime Minister spoke to the heads of the devolved Governments within hours of taking office. The Government have continued in that vein. We have spent the last year working across all levels of government to deliver for every part of the United Kingdom and are using, and will continue to use, the intergovernmental structures to collaborate with the devolved Governments.
We have recommitted to the IGR structures, as has been evidenced in recent weeks. At the end of May, we held the second Council of the Nations and Regions in London. This brought together the Prime Minister, the Deputy Prime Minister, the Chancellor of the Duchy of Lancaster, the heads of the devolved Governments and the regional mayors from across England for the second meeting since we took office. Alongside the council, the Prime Minister and the Chancellor of the Duchy of Lancaster met multilaterally with the heads of the devolved Governments. This was in addition to the bilateral meetings the Prime Minister held with them on the same day.
On the question from the noble Lord, Lord Beith, on a communiqué related to this meeting of the Council of the Nations and Regions, the Government have published the current terms of reference for the council and value the scrutiny of both Houses of Parliament of the worth of the governance of the council through inquiries, Parliamentary Questions and regular engagement with departments as part of the scrutiny of government activity—I have responded to much of this in my role. So, although a communiqué was not published on this occasion, Ministers will continue to update both Houses through the regular scrutiny mechanisms.
The noble Lord, Lord Beith, raised how other organisations that are not part of the Council of the Nations and Regions get to engage. Minister Alexander has been appointed as Minister of State to support cross-government co-ordination and engagement with the devolved Governments. This appointment shows how serious the Prime Minister and this Government are about working with the devolved Governments to deliver for citizens across the UK.
The English Devolution White Paper sets out that the mayors of strategic and established mayoral authorities will be able to be members of the CNR, as we have referenced. The Government want to see all of England benefit from devolution, with full devolution coverage across the country, with an ambition for all areas to have a mayor. We are committed to working productively with local government, and the Government have established the Leaders’ Council to bring together other local leaders and Ministers to identify and tackle strategic challenges facing local government.
The Chancellor of the Duchy of Lancaster has travelled, alongside the Secretary of State for Northern Ireland, to Belfast, where they chaired the first east-west council under this Government. They then attended the 43rd summit of the British-Irish Council in Newcastle, County Down, where the Chancellor of the Duchy of Lancaster met bilaterally with the heads of the devolved Governments. A fortnight later, the Chancellor of the Duchy of Lancaster and other UK Ministers met with the Ministers responsible for intergovernmental relations from the devolved Governments at the Interministerial Standing Committee.
We are genuinely seeking to engage using the current structures and the new Council of the Nations and Regions structures to make sure that engagement in formal intergovernmental forums and informal everyday contact at official level works better than it has historically done. Through this, we are ensuring that there is genuine respect and collaboration across the different Governments who make up the United Kingdom and are focusing on a future built on partnership and recognition.
The noble Lord, Lord Beith, raised the representation of English regions and counties without a mayor. As is always the case with our diverse intergovernmental structures, there are other mechanisms for engagement and we will continue to ensure that we progress with them.
I turn to some of the specific points raised by noble Lords. The noble Lord, Lord Waldegrave, made an interesting suggestion about the right for the Cabinet Secretary and others to record public dissent. The very suggestion of that might also suggest that some changes would happen in government, but I look forward to reflecting on that in the department and will report back in due course.
Noble Lords will be aware that I am an honorary captain in the Royal Navy, so I am ever so sorry to other participants but the analogy from the noble and learned Lord, Lord Garnier, was my favourite, not least because HMS “Astute” was in the bay at my wedding in Gibraltar in recent months. I would like to gently remind the noble and learned Lord of something. I appreciate his concerns, but I remind him that the Prime Minister and my noble friends the Attorney-General and the Scottish Advocate-General have had distinguished careers at the Bar. This may be one point where it is clear that those at the top of our Government have complete respect for the role of the judiciary and some respect for the legal profession, given that they are all from it.
Lord Garnier (Con)
No doubt the noble Baroness will have noticed that I was not referring to any of those three people.
Baroness Anderson of Stoke-on-Trent (Lab)
I absolutely did, but I think on this occasion we can suggest that this Government are very clear in their commitment to the rule of law and the people who are in post.
There was a great deal of discussion about good chaps—I like to think chaps and chapesses—at the heart of which, as touched on by my noble friend Lord Pitkeathley, was the culture of stewardship that we have a collective responsibility to deliver with regard to our constitution. We all have an extraordinarily privileged position in sitting in your Lordships’ House and being part of our constitution. Therefore, the onus is on us to make sure that we work as members of the Government and as Members of Parliament to deliver on it.
I will write to the noble Baroness, Lady Bennett, about Bristol City Council. I went to school in Bristol, so I have a particular interest there. The noble Lord, Lord Bates, gave us a masterclass; I loved his historical comparisons and imaginative use of ChatGPT. I speak in your Lordships’ House on many different issues, and AI always manages to get into the debate. I did not think it would do so today, but I appreciate the ingenuity.
My noble friend Lady Alexander made a fascinating and very important point on the devolution settlement and the role of the Lord Chancellor. It is a position we have discussed in great detail in recent days and which I will reflect on, given the responsibilities we place on it. I am proud of the work that our party has done to drive the devolution agenda to deliver for people. We will continue to do so through the English devolution settlement and by making sure that devolution continues to work.
The noble and learned Lord, Lord Bellamy, raised a very interesting point about ensuring deeper public understanding of our constitution. As I said, there is an onus on all of us to do that; it is incredibly important for all citizens and lots of parliamentarians do extraordinary work to support public understanding. I will take away his suggestion, but I am not sure that a single programme led by government on promoting the constitution would be effective.
Having said that, the noble Lord, Lord Norton, touched on active citizenship. Citizenship is on the national curriculum. We are currently undertaking a review of the national curriculum and I hope that when we get the outcome of the review, we will be able reflect on this and other issues related to citizenship.
The noble Lord, Lord Hannan, knows that I genuinely enjoy his oratory in your Lordships’ House, not least because it forces me to question my own opinions every time to make sure that my views are in line with my values as much as his align. It will not surprise him, therefore, that although his speech was fascinating as ever, I still believe in the role of the Human Rights Act in ensuring that there are safeguards for the operation of government and the other safeguards that were touched upon by the noble Lord, Lord Wallace.
Returning to the noble Lord, Lord Norton, I thank him for his decades of work on constitutional protections. The Government have well-established parliamentary and devolution capability programmes for civil servants, but there is always more to be done. I will go back and look at exactly what we need to do and the suggestions we need to follow.
I can reassure the noble Lord, Lord Wallace, about the current political environment. I remind noble Lords there are four years until the next general election, and we will see how many political parties we will be facing in four years’ time, but I do reflect upon the seven that are now in existence. Noble Lords who are aware of my own personal travails will be aware of what I think of the establishment of the most recent of those political parties. His suggestion regarding the 1868 oaths Act is an interesting one, and I will have a conversation about it in the department. I also thank him for reminding us of the important role the monarch plays within our constitution, but also the subtle way that conversations can be had that give a level of importance to the Prime Minister.
To the noble Baroness, Lady Finn, I say that the Cabinet Secretary’s filing system sounds all too familiar and similar to my own. All members of the Government should reflect on our own filing systems, in both our emails and on paper. She had interesting thoughts on the Propriety and Constitution Group, and I would welcome a further conversation with her outside your Lordships’ House to consider what next steps we might need to take and possible areas of reform. I reassure all noble Lords that members of the Propriety and Constitution Group are accountable to the relevant Ministers, as is normal for all civil servants. For a moment during the noble Baroness’s speech, I thought she was about to suggest that we need another arms-length body, and I was amazed, but absolutely not—she did clarify that that was not something she would welcome.
The noble Lord, Lord Beith, also raised a point about the Propriety and Constitution Group. I reassure him that while the union and devolution teams have moved from and back to the Cabinet Office, the Propriety and Constitution Group has consistently been in the Cabinet Office. This gives us the opportunity to preserve institutional memory, as was touched upon by the noble and learned Lord, Lord Neuberger.
On the Cabinet Manual, the Government are focused on delivering the commitments outlined in our manifesto. We know the importance of the Cabinet Manual and while we do not currently have plans to update it, we are keeping it under review.
Lord Wallace of Saltaire (LD)
I ask for an assurance that when the Cabinet Manual is renewed, there will be consultation with the appropriate committees in both Houses before it is published.
Baroness Anderson of Stoke-on-Trent (Lab)
I am going to say yes, and we will see how much trouble I have just got myself in.
Lord Harper (Con)
On that point, it is quite important that the Minister commits to consulting Parliament, but it was very clear that the Cabinet Manual remains an executive document and it should not be approved by either House of Parliament; it should remain owned by Ministers. I think that distinction is worth getting on the record.
Baroness Anderson of Stoke-on-Trent (Lab)
The noble Lord is absolutely right and probably just saved me from myself—I would have got in trouble. This is very clearly an executive document, as he was party to, but this Government will want to consult as widely as possible, which is why I also want to meet the noble Baroness on other issues, because wider consultation is important. The noble Lord did nearly get me in trouble.
The noble Baroness, Lady Coffey, touched on the UK internal market. We are going through the statutory review process. Although we are ahead of time, we have just finished the consultation, and we are currently reflecting on it. She made an important point.
There were many other points raised that I realise I am not going to get to, but that just shows quite how important and wide ranging the debate has been. I will come back to noble Lords on their point that I have not been able to touch on. I thank noble Lords for their participation in today’s debate, and for, as ever, ensuring that I learn something in your Lordships’ House.
Lord Beith (LD)
My Lords, I thank the House for a truly excellent debate. I know it is conventional to say what a good debate we have had, but I genuinely think that the committee’s work has been greatly helped by the way its report has been considered, including the detailed way in which the Minister has responded, even though I am disappointed by some of the things that she has not committed herself to—perhaps I was not as good as my noble friend at getting her into trouble.
One of things that became quite clear in the debate is that there is an appreciation that, although most people want the Prime Minister to retain the responsibility for adherence to constitutionality, the pressures on the Prime Minister are considerable, and some other ways have to be found of making sure that this is not an unrealistic way of dealing with the matter. There are some differences of view as to whether we create a senior Minister with this role or simply make sure that all Ministers at every level are more firmly committed to dealing with constitutional matters and providing appropriate advice to the Prime Minister.
There is a very good degree of acceptance in the House of almost all the other recommendations made by the committee. We will reflect on what the debate has brought forward and what the Minister has said, which will be relevant to the committee’s current and future inquiries. I also assure the House that the committee will continue, week by week, its work of examining all the legislation that comes before the House to see whether it has constitutional implications and, when it does, to make them clear to the House.
I am sure the House will agree that it has taken note of the committee’s report.
Still-Birth (Definition) Bill [HL]
Baroness Benjamin (LD)
My Lords, I am overjoyed to introduce this important Bill to your Lordships’ House. I thank the Government Chief Whip, the noble Lord, Lord Kennedy, for ensuring that there was time for the debate today; I am most grateful to him. I also thank the noble Baroness, Lady Merron, for her support and commitment to improving care for those who have suffered baby loss, and all noble Lords who have offered their support too. I know that the thousands of people who are hoping for change in the definition of stillbirth are most grateful. This debate means more than words can convey.
Let me begin by asking a deeply personal and profoundly painful question: how many among us have experienced the heartbreak of losing a baby during pregnancy? I have. My husband and I have been blessed with two wonderful children, but we also endured multiple pregnancy losses. Each one left a permanent mark. For nearly four decades we grieved privately, our pain unspoken and our babies unacknowledged. This was the same for millions of families, but it changed last year with the introduction of the certificate of loss, a formal and enduring recognition of the lives we lost. We felt so uplifted when we applied for our certificate of loss, which is proudly displayed on the wall alongside our family photos. To date, tens of thousands of certificates of loss have been issued, and I thank both the current Government and previous Governments for their leadership in making this become a reality, as well as the Saying Goodbye charity for its extraordinary work campaigning tirelessly for a decade for the creation of a certificate of loss for those who have suffered baby loss. I worked with the charity to introduce a Private Member’s Bill to see this brought in, and commend the pregnancy loss review led by Zoe Clark-Coates MBE, founder of Saying Goodbye, and Samantha Collinge. Their recommendations made these certificates become a reality.
Today I bring before noble Lords the next necessary step: to amend the legal definition of stillbirth in UK law. Currently, a stillbirth is defined as the loss of a baby occurring from the 24th week of gestation until birth. This definition, established by the Still-Birth (Definition) Act 1992, was a step forward, lowering the threshold from 28 weeks, in line with updated viability guidance, and granting grieving parents access to bereavement leave, maternity and paternity benefits and legal recognition of their loss. However, more than three decades on, this definition no longer reflects the medical realities, nor the profound emotional impact of baby loss.
Each year, up to 10,000 families in the UK lose their babies between 20 and 24 weeks of pregnancy. These parents are excluded from maternity protections, bereavement leave and statutory recognition of their loss as a stillbirth. Although the new certificates of loss offer deeply symbolic recognition, these families still face the trauma of returning to work within days —sometimes even hours—of delivering their deceased child. They lose pregnancy-related medical exemptions immediately. Many are left without paid leave or time to heal, emotionally or physically.
I want to tell your Lordships about the experience of a lady I call “Carla” to protect her privacy. She says:
“I lost my son at 23 weeks pregnant, a ‘late miscarriage’. When I found out that my son would likely pass away, all I wanted was to make it to 24 weeks. To have him acknowledged legally as a person, to feel like my miscarriage and the trauma associated with my 48-hour labour acknowledged for how horrifying it actually was. To have a bit of extra space to breathe by having maternity pay and benefits rather than returning to work. However, I missed it by 6 days. I was fortunate that my employer was understanding and I had 2 months off at full pay. However, I still had to return well before I was ready, still feeling very traumatised and recovering physically as I went back to a busy job. I had to return to work the week after my son’s funeral as it took that long to have his body released after the post mortem examination. My de-brief meeting was quick by NHS standards at 3 months, however, I was back to work full time and I had to go into work before and after the meeting, where they told me why my son died”.
To compound this tragic experience, Carla would not have been eligible to receive support from the children’s funeral fund, which was set up to cover burial costs for children under the age of 18 or stillborn after 24 weeks of pregnancy. A change in the definition would have had an impact: it would benefit bereaved parents and give some solace to those enduring the trauma of stillbirth after 24 weeks. As the ruling currently stands, we are asking grieving parents to carry on as though nothing happened. This is not compassion; it is a legislative blind spot, which we now have the opportunity, and indeed the obligation, to address.
I warmly welcome the Government’s recent commitment to explore the introduction of paid bereavement leave for parents who have experienced the devastating loss of a baby before 24 weeks’ gestation. This measure, which was among the 73 recommendations of the pregnancy loss review and highlighted in the Women and Equalities Committee report, would represent a meaningful and long-overdue step forward in recognising and supporting families through pre-24-week pregnancy loss.
It was also good to hear, during the Employment Rights Bill’s Report stage in the other place, the Minister for Employment Rights state that the Government
“fully accept the principle of bereavement leave for”
those who have experienced
“pregnancy loss … We look forward to further discussions … as the Bill moves on”—[Official Report, Commons, 11/3/25; col. 861.]
to other stages. This is most reassuring. But while the introduction of some paid leave would go a long way to help the hundreds of thousands of people who experience baby loss, my Bill seeks to go much further and extend all rights and benefits that currently exist to losses after 24 weeks’ gestation to include losses from 20 to 24 weeks.
Internationally, the UK is falling behind most developed nations. The World Health Organization defines stillbirth as a loss from 22 weeks’ gestation, and countries such as France, Sweden and the Netherlands follow that definition. Others, including our closest allies such as Australia, New Zealand, Canada and the United States, have gone even further and recognised stillbirths from 20 weeks.
Importantly, I point out that none of these changes relates to viability, which remains medically distinct; rather, they reflect a growing consensus that we must respond to the human experience of loss, not just clinical thresholds. I am not asking us to redefine viability; I am asking us to redefine compassion, to recognise humanity for every baby lost from 20 weeks onwards and to extend to their parents the dignity, support and legal recognition that what they go through desperately needs.
Let us be clear: this Bill proposes to change the definition of stillbirth to include losses from 20 weeks’ gestation until birth. This would enable thousands of grieving families each year to access protection already afforded to those whose loss occurs after 24 weeks, including bereavement leave, maternity and paternity pay, eligibility for funeral funds and the formal recognition of their baby’s stillbirth. This is not only just but well overdue. The law should not distinguish between the heartbreak of a 23-week loss and a 24-week loss; the pain is the same, the baby is the same and the need for support is the same.
I am mindful that some may express concern that this proposal could affect the rights and privacy of those who undergo a lawful termination of pregnancy between 20 and 24 weeks, whether for elective reasons or out of medical necessity. It is important to note that reducing the gestational threshold for stillbirth registration to 20 weeks could, under the current legal framework, result in approximately 3,000 terminations falling within the scope of the mandatory registration each year. This would mean that individuals’ personal details would be formally recorded and, potentially, made disclosable under the Births and Deaths Registration Act 1953 via the Registrar-General. For many, this could represent a significant and distressing intrusion, with implications for their physical and mental well-being.
With this in mind, in a survey conducted by Saying Goodbye, of the 194 people who had undergone a termination for medical reasons—known as a TFMR—more than 87% of the people who terminated between 20 and 24 weeks stated that they would welcome mandatory registration if it meant that their baby would be classed as stillborn. To avoid any unintended consequences, and following the precedent set in other Acts, I propose that any legislative amendment in this area should include a clear and specific exemption—namely, to exclude cases where an elective, non-medical termination was chosen but to include terminations for medical reasons. This would ensure that elective terminations between 20 and 24 weeks would not be subject to stillbirth registration, would not require certification by a clinic, would not impose any legal duty to register the loss with a registrar, and would exclude these losses from statutory benefits. This safeguard would uphold the integrity of the proposed changes while protecting the privacy and dignity of those affected by complex and often heartbreaking decisions.
My Bill is about fairness and consideration. It is about modernising outdated legislation in line with global best practice. Above all, it is about honouring the lives of those who were lost too soon and standing alongside the parents who carry that loss for the rest of their lives. This is why I am an ambassador for Saying Goodbye, a charity that is at the forefront of support and walks alongside tens of thousands of bereaved parents each month. I urge your Lordships to join me in supporting this Bill. Let us ensure that no grieving parent is left without support, recognition or dignity simply because of a date on a medical chart. Let this House be remembered not only for debating this issue but for acting on it. I look forward to listening to the other speakers and to what the Minister has to say. I beg to move.
The Lord Bishop of Guildford
My Lords, I will speak in support of the principles of this Bill, and I am very grateful to the noble Baroness, Lady Benjamin, for having brought it to the House. One of the best traits in human nature is using the difficult experiences that we ourselves encounter to speak up for others facing similar situations. I applaud the noble Baroness for using her experience and her voice in this way, and especially for the achievement of the introduction of certificates of loss last year.
During my time as a vicar in south-west London, another inspiring woman from within my then congregation came to me with the idea of starting a listening service for women who had miscarried or were facing difficult or unintended pregnancies. This was partly born out of her own experience and partly out of the fact that she lived around the corner from a large BPAS abortion clinic, where a constant trickle of women, sometimes accompanied by their partners or their mums and sometimes quite alone, would make their way to the front door, often in considerable distress, with very little time or opportunity to think through what was for some a desperately difficult decision. It was not long before my congregation member had assembled a small group of other people—about six in all—who were enthused by the vision. They undertook substantial training, not least given the extreme sensitivity of what they would be doing and the need to ensure that they were both professional and non-directive in their approach.
I visited the BPAS clinic shortly afterwards to let it know what we were doing and was met with considerable suspicion, bordering on hostility. This was understandable, as their previous experience of Christians had been of small groups of people who would occasionally stand outside waving placards. We pressed on regardless, and formally opened our pregnancy centre in 1999, advertising its services through the local press and a few sympathetic doctor’s surgeries. After a very slow start, a journalist from one of the national dailies made use of the service and bravely wrote about the very positive experience of the support that she had received. Similar stories began to circulate, so that the number of those seeking help each year grew into double and then treble figures, with the BPAS clinic itself slowly warming to the idea and eventually advertising it on its notice board. The service continues to this day as an organisational member of the British Association for Counselling and Psychotherapy, and now has eight part-time staff and 27 volunteers serving those facing an unintended pregnancy or pregnancy loss through termination, miscarriage, ectopic pregnancy, preterm loss or stillbirth.
One consequence of our new initiative was that, from time to time, someone would want to see a priest to organise a small-scale funeral, or at least some simple prayers, to acknowledge the life that had been lost. Here, I was much helped by the liturgical resources provided by the Church of England, which themselves draw on the considerable experience of our hospital chaplaincy teams. That experience taught me the sheer extent of the trauma of pregnancy loss for many mothers, and often for their partners too, most especially where that loss occurs in the second half of a pregnancy. This very simple Bill, which reduces the legal definition of a stillbirth from 24 weeks to 20, so opening the way for a wider group of people to benefit from the care given to the bereaved, seems both compassionate and sensible, bringing us into line with other western nations and comfortably within the 22-week term set by the World Health Organization.
The only thing that has given me pause here has been well answered by the noble Baroness, and that was the major reservation expressed in the critique of these proposals, especially the need to register stillbirths at a registry office. This, as was pointed out, would place additional burdens on mothers, including those who, for elective reasons, chose to terminate their pregnancies. Before hearing the opening speech of the noble Baroness, Lady Benjamin, I was going to suggest that a light-touch registration could be devised in hospitals and clinics, where appropriate, without the need for a further visit to a registry office—not too difficult a task to achieve or monitor, especially in an age when so many transactions are carried out online. The noble Baroness has come up with an alternative solution based on research from the organisation Saying Goodbye. Whatever approach were to be adopted, I am sure that a way could be found around the pastoral concerns expressed. I commend this Bill to the House.
Baroness Featherstone (LD)
My Lords, I am so very glad that my noble friend Lady Benjamin has brought this issue to the Floor of the House. Two things in particular drove me to speak in this debate. Not long ago, I was listening to a programme on the radio about early stillbirth and listening to mothers talking about their feelings of loss and how emotionally debilitating it was to find that there was nothing—nothing to support you emotionally or financially, and nothing to legally mark that loss, except, as has been mentioned, the recent change which enabled one to get a certificate of loss acknowledging your baby’s existence. The loss of a baby is profound at any stage of a pregnancy. Women with this experience were saying things on the radio such as, “It felt like the world moved on in seconds, but I was frozen in grief. Everyone thought it was early, but to me, it was absolutely everything”.
The second thing was that it made me remember my first pregnancy. I started bleeding at about eight weeks and had to take to my bed to rest. I was terrified that I would lose my baby. I did not. I was fortunate, and that baby is now 41. The feeling of potential loss and the fear was absolutely shattering and affected me for the whole of the rest of my pregnancy. That was at just eight weeks.
This much-needed move to 20 weeks will be hugely significant in helping to reduce some of the horror and sadness and in acknowledging and marking the time needed for healing. Many parents experience profound grief after a loss before the current 24 weeks. Current legal or financial definitions can invalidate that experience. The mother who loses her baby at 20 weeks will often endure the same medical processes as one who delivers at 24 weeks. She may labour, she may require surgery and she will certainly require care. Yet the moment she leaves hospital, she finds that there is no recognition of her child—and until recently there was no certificate. There is no access to statutory bereavement leave or financial support. Her grief, while intensely personal, is made all the more isolating by its lack of societal acknowledgement. It is time that we changed that.
Advances in medical imaging mean that many anomalies and most pregnancy complications are now identified at, or shortly after, the 20-week scan. The clinical, emotional and psychological experience of loss at this stage often mirrors that of stillbirth, yet the law continues to draw this sharp line at 24 weeks—a line that was originally based on neonatal viability in the 20th century, not bereavement realities of the 21st.
There is no statutory acknowledgement of the grief that many women and their partners feel at such a loss. That sense is profound. I say again a big thank you to my noble friend Lady Benjamin. Recognising losses from 20 weeks onwards emotionally acknowledges the reality that attachment, planning and love will begin well before viability. Offering support at 20 weeks helps to remove arbitrary emotional hierarchies of grief. Also, many people feel isolated and abandoned because their losses “don’t count” legally. Changing this threshold, as well as mitigating some of the financial stress and enabling some time to recover, also signals that all loss matters, regardless of length of gestation.
By April this year, over 100,000 baby loss certificates had been issued. Miscarriages and losses at 20 to 24 weeks are often treated similarly to stillbirths in clinical practice, so it is totally appropriate that legal recognition and support aligns with what is happening on the ground. Many hospitals and care providers already offer bereavement care, memorials and leave paperwork for losses around 20 weeks. Aligning state support with current clinical norms will create consistency and reduce confusion. Most importantly, parents who lose a baby between 20 and 24 weeks may need time off work, counselling or funeral support, and they are not always eligible for paid leave or benefits. Offering that support at 20 weeks helps avoid financial hardship during what is already a hugely traumatic time.
This touches thousands of families each year yet remains too often hidden. Extending state support from 20 to 24 weeks is not an act of extravagance. It is a modest, meaningful gesture that says, “We see you, and loss matters”. The noble Baroness and the right reverend Prelate have already raised the issues around termination, whether medical or by choice. I will not go there, but it is covered and it is an important point. I would not support any Bill that made life worse for people who are faced with that decision.
So this is a compassionate Bill targeted to an existing framework and designed to bring equity. I urge this House to consider the emotional truth and the practical necessity of this change and to stand on the side of parents who are simply asking to have their grief recognised, their child acknowledged and their dignity preserved.
Baroness Barker (LD)
My Lords, I will speak very briefly in the gap, just to make one point. I have always been very supportive of the work of my noble friend on baby loss certificates. I have supported, for many years, the rights of people who have suffered baby loss, and supported adoptive parents to have better provision in employment rights. Our employment rights on these subjects are way out of date.
My concern is solely about the mandatory nature of the recording and about those people who, for whatever reason, between 20 to 24 weeks, have to make the always difficult choice to have a termination. It is never a decision made lightly. It is often very difficult.
I listened with great care to what my noble friend said, and I was very moved by her understanding that some people who undergo termination late in a pregnancy wish to be included in the recognition she is talking about. I just have a concern that there are some quite vulnerable people who end up in that position for whom the public declaration that they have had to make that decision and go through that might not be advisable, or indeed might be quite dangerous. Therefore, I would like us to be absolutely sure that we are not going to force people for whom it is not the right decision to have to make that public declaration. I take the right reverend Prelate’s point; it does not matter where it happens, it is about the nature of the declaration and the support which follows from it.
I have no doubt that we are moving towards being a much more compassionate and understanding society in this regard. That is partly to do with the fact that medical care for women at that stage of pregnancy is advancing. I do not want to put anything in the way of women or doctors which would in any way inhibit their right to choose the right path as or for an individual woman in that case. So I suggest that we hold back on making this a mandatory scheme until we are absolutely sure that we are not jeopardising those women.
Baroness Bottomley of Nettlestone (Con)
My Lords, I also speak in the gap, and I apologise for not having been able to put my name down earlier.
I most warmly congratulate my friend—we have worked together for about 30 years—the noble Baroness, Lady Benjamin, on her powerful, evocative and sensitive presentation of her Bill. I quickly declare my interest as a mother of a consultant gynaecologist, so I am all too aware that a gynaecologist is constantly dealing with the most difficult situations of women having babies they really cannot bring up. Therefore, they look for a termination. Other women are in the most acute heartbreak because they are desperate to have a baby that they do not seem able to produce. So I was struck by the right reverend Prelate’s—he is my Bishop—earlier experience south London, where I also used to work. This is extraordinarily difficult.
I was also the Secretary of State who handled the Human Fertilisation and Embryology Act. This was such complex and emotional legislation in 1990. It marked the time limit of 24 weeks at the time for the Abortion Act and when it was thought by consensus that a foetus was viable. I am extremely concerned about opening up that debate again. While I certainly support a Second Reading, I feel that in Committee there needs to be careful scrutiny about how the Bill would lie alongside our present arrangements concerning termination.
That was a very important Act. It opened the door to the extraordinary number of IVF babies. They are now saying: every classroom has an IVF baby. Some one in 31 babies is now IVF, which is remarkable. Those babies are desperately wanted, so those involved in a stillbirth have all the greater agony.
I was also involved with the Rosie Barnes Bill, which became the Still-Birth (Definition) Act, although a junior Minister handled it, where Lord Kilmarnock spoke very powerfully in this House.
My particular debt is to a former colleague of this House, Baroness Cumberlege, who did so much on maternal health, infant well-being and infant viability. She was a supporter of midwives and nurses, and her lasting impact on the improvement of services is absolutely one I recognise.
To look at this debate, we have to look at the context. As women we are very aware that generations ago, we would have lost any number of children in childbirth. We would have lost our own lives in childbirth; so many would have experienced the loss of a child. Now the situation is very different. A hundred years ago, for every 10,000 births, there were 800 deaths: now, for every 10,000 births, only 40 deaths. So, the loss of an infant by stillbirth is ever more unusual and all the more painful.
The other thing we see is the changing age at which women are having babies. Whereas many women used to have their babies in their late teens and 20s, now 31% are over 40 when having their children. Therefore, a lot of complications and comorbidities, like diabetes, are more likely to be present. I am certainly one of those who says to young women: get on with it while you can, while you are young and healthy. But many do not have that opportunity. Something like 11% of IVF births are for people between 40 and 45—a remarkable achievement.
I applaud the noble Baroness. I applaud the efforts that have gone in by others, such as, in the last Government, Tim Loughton, the MP for East Worthing and Shoreham— next door to my husband. I want to ask the Minister what she is going to do about implementing the criteria for coroners to become involved. This is really important. This was Part 2 of the Bill.
I must finish quickly—I did not know the rules—by saying I support the Bill, but it needs careful scrutiny before it becomes legislation.
Baroness Finn (Con)
My Lords, I commend the noble Baroness, Lady Benjamin, for securing this Private Member’s Bill and setting out its purpose so clearly. It was very hard to listen to the noble Baroness’s heartbreaking personal experience. She is to be applauded, as my noble friend Lady Bottomley said, for seeking to introduce compassion for other grieving parents and to speak up for and support them.
There are truly no words that can capture the heartbreak of losing a baby, no matter when it happens. In our lifetime, most of us will have come across friends or family who have had to experience the devastating loss of a baby. It is deeply personal, and I speak with sincere sympathy and respect for all families and parents who have had to endure such heartbreak, as the noble Baroness, Lady Featherstone, set out so beautifully in her own very moving speech. It was really very heartening to listen to the account of the organisation that the right reverend Prelate the Bishop of Guildford has set up to support vulnerable pregnant women in his own parish.
The proposal set out in today’s Bill would amend the definition of stillbirth to apply from 20 weeks into a pregnancy, rather than the current 24 weeks. Although, obviously, it is terribly difficult, and I am wholly in favour of supporting parents who have to undergo the terrible grief of a stillborn baby, if we look more closely at the implications of the proposed change, it could lead to difficult challenges for our healthcare system. It is a difficult area. The British Pregnancy Advisory Service has said that changing the stillbirth definition would present complex challenges for both patients and medical professionals. We must recognise that for patients, changing the definition of a stillbirth would result in leaving women accessing abortion care in an even more vulnerable position. Women accessing abortion care after 20 weeks, but before the 20-week abortion limit, would be required to register the termination as a stillbirth with the registry office. Here, I very much share the concerns of the noble Baroness, Lady Barker.
Although we must recognise the intentions behind today’s proposal, the complex impacts of the change mean that it is probably not right for it to be delivered through a Private Member’s Bill. If we look more closely at the impact on patients—women and girls who, through lack of understanding, fear of disclosure of their termination, or inability to attend a registry for this purpose without putting themselves at risk of domestic or honour-based abuse—they may find themselves inadvertently committing a criminal offence. We must be alive to the realities faced by these women. Some of the most vulnerable women in our society access abortion services, and it would be wrong to put them at risk in this way.
Under the Births and Deaths Registration Act 1953, there are legal implications for parents, as the Registrar-General may consent to the disclosure of the contents of the stillbirth register. This would mean that confidential records of legal abortion could be disclosed to third parties without their consent, as a matter of public record. For many women, the thought that such personal and private information could be exposed in this way would be profoundly distressing and could have lasting emotional social consequences, beyond the devastating grief they are left to live with.
Parents who have to suffer this inconsolable loss have my deepest sympathy, but given the complexities, any proposed changes must be carefully weighed to ensure that they balance compassion with practical, legal and ethical considerations. The practicality of these implications presents unrealistic complications for these women. For these reasons, there needs to be very careful consideration before we upset the balance that exists, as my noble friend Lady Bottomley explained from her experience as Secretary of State.
So while we remain deeply sympathetic to the parents and families who endure the profound grief of losing a stillborn baby, there remain concerns about the wider practical impact of the Bill’s proposals on the wider healthcare system and on vulnerable women. There would therefore need to be further consideration of such impacts before we could support the Bill.
Captain of the King’s Bodyguard of the Yeomen of the Guard and Deputy Chief Whip (Baroness Wheeler) (Lab)
My Lords, I thank the noble Baroness, Lady Benjamin, for introducing the Bill, and I know the importance this House places on ensuring that bereaved parents, regardless of the baby’s gestation, get the support and care they need.
I pay tribute to the noble Baroness for the huge amount she has done in the service of a very personal cause. She has raised awareness of pregnancy loss and campaigned for baby loss certificates, helping women and families to receive better support. I know what strength and courage is needed to speak about issues so near to one’s heart, and I thank all today’s speakers for their contributions about their own and friends’ experiences of treatment and care.
I also congratulate my honourable friend in the other place, Sarah Owen, and the Women and Equalities Committee, for highlighting the gap in current support for those who experience a pregnancy loss before 24 weeks. Bereaved people need time to recover and grieve, and it is important that they are supported at work as they do so.
We also recognise, as was underlined by the noble Baroness, Lady Benjamin, the vital role played by the many charities supporting families who have experienced loss—including Sands, the Miscarriage Association, Birthrights, Mariposa International, Tommy’s and Bliss—in raising awareness and campaigning for the additional care and support that is needed.
Overall, good and steady progress is being made to address the treatment, care and support for women and their families experiencing the trauma of pregnancy loss. I thank noble Lords for recognising this, as well as for highlighting the considerable amount of work that is in progress and still needs to be done. For example, the importance of bereavement leave has been stressed by a number of speakers. This Government have made it clear that we fully accept the principle of bereavement leave for those who have experienced pregnancy loss, in supporting women and families during such a distressing time. Under our flagship Employment Rights Bill, currently in this House, parliamentarians from both sides have spoken strongly on these issues. We look forward to further discussions on the matter as the Bill moves into its later stages. The noble Baroness, Lady Benjamin, again acknowledged this movement forward.
However, I must address the Government’s reservations about this Bill in relation to the proposed definition of stillbirth. The current definition is based on the gestation at which a foetus is considered viable—24 weeks. Sadly, babies born at 20 weeks do not survive: in 2022, 98% of the 305 babies born alive before 22 weeks in England and Wales died in their first week; and in 2020-21, only 5% of babies born at 22 weeks survived.
Changing the definition of stillbirth to 20 weeks would, therefore, remove the link to foetal survival, moving us away from a clinically evidenced position. There is no medical consensus that the age of foetal viability is reduced below 24 weeks. Therefore, this proposal would create an inconsistency with the Abortion Act 1967.
I understand the sentiments and force of the arguments and principles put forward by noble Lords, but I am afraid we cannot support the definition in the Bill. However, as I have stressed, I very much welcome the focus of the debate on the other important ways to support women who experience miscarriage, which is what baby loss before 20 weeks is treated as. In this context, I thank the noble Baroness, Lady Benjamin, for highlighting that changing the definition would also allow bereaved parents access to support such as maternity pay and leave.
The care that families receive after the death of their baby can have long-lasting effects. We cannot remove the pain, but we know that poor care can make things worse. Loss matters, as the noble Baroness, Lady Featherstone, emphasised. That is why the baby loss certificate is so important and why the Government extended eligibility for the scheme, allowing parents to officially recognise their loss, regardless of how long ago it occurred. The feedback has been incredibly positive and part of the healing process for many women experiencing loss, as noble Baronesses have said, with over 100,000 certificates issued to date, as a lasting memory of their babies. We are also improving bereavement services and making them available seven days a week. We will look closely at the outcomes of Tommy’s graded model of care for miscarriages pilot, which is due to report later this year.
Noble Baronesses have particularly referred to the trauma of pregnancy loss leading to or worsening mental health issues, which is why we have introduced maternal mental health services in all parts of England to provide care for women with mental health difficulties arising from baby loss. As I have stressed, we accept that there is much more to do to improve care for women and families who have experienced loss.
I now turn to address some of the points raised. I will endeavour to answer these, but I hope that the noble Baronesses will forgive me if I have to write to them. First, the noble Baroness, Lady Benjamin, said that, if her Bill were implemented, those having terminations between 20 and 24 weeks would be exempted from registering them as stillbirths. But changing the definition is likely to have other unintended consequences for abortion services and wider impacts; for example, around the disposal of the foetal remains and other issues. The noble Baroness, Lady Finn, pointed to a number of the potential consequences that would occur.
The noble Baroness, Lady Benjamin, and other noble Baronesses mentioned that there is a variation among other nations. We recognise that there is such variation in the definition of a stillbirth and that the UK’s position is not aligned with the World Health Organization. Countries may take a different approach to defining terms such as “stillbirth” and “miscarriage”. Reasons for variation include legal and administrative difficulties and approaches to collecting data.
The noble Baroness, Lady Barker, raised support for LGBTQ people. We recognise the complexities of baby loss for people from LGBT and other communities. Personalised care and support plans should be offered to all those accessing maternity services to ensure that care is tailored.
The noble Baroness raised the concerns about the mandatory nature of declarations of abortions and the impact on the most vulnerable individuals, and I certainly understand that concern. She raised an important point about the recording of stillbirths, and I recognise the impact that this can have on the most vulnerable and on their decisions to have an abortion. We very much have regard to this.
In closing, I thank the noble Baronesses—
Baroness Bottomley of Nettlestone (Con)
I would be particularly grateful if the noble Baroness could come back to me on Part 2 of the 2019 Act, which authorises coroners to become involved in stillbirths.
Baroness Wheeler (Lab)
I will certainly write to the noble Baroness on that.
I thank the noble Baroness for bringing the Bill, and all who participated in this important and moving debate. We must continue to deliver services that acknowledge and support the heartbreak of losing a baby. The Government will work with the noble Baroness and others, endeavouring to support this and to consider how to offer families the care and support they need in all areas of their lives.
Baroness Benjamin (LD)
My Lords, I thank all noble Lords who have spoken on this important issue. I also thank the Public Bill Office and the Library for their support and guidance; I am most grateful to them.
I commend the right reverend Prelate the Bishop of Guildford for sharing his personal experiences of working with those suffering from baby loss and showing empathy for those parents. That is what we are asking for.
I thank my noble friend Lady Featherstone for her support; I felt we were kindred spirits as she told the House of her personal experiences and empathy to those who suffered a stillbirth before 24 weeks. It is heartbreaking.
I thank my noble friends Lady Barker and Lady Bottomley for their brief contributions. My noble friend Lady Barker raised an important point, which I have taken to heart. As I said, however, my Bill is not asking for changes to the age of viability or changes to abortion law. By adding a specific exemption within the Bill, we will exclude termination between 20 and 24 weeks from the requirement of the Bill. I reassure my noble friend that we are going to make sure that people who have elective terminations do not have to register. We understand that some might be vulnerable, so we want to show compassion to their predicament. That is what this Bill is about: showing compassion and consideration.
I hear the concerns of the noble Baroness, Lady Finn. However, I repeat that precedent has been set by other Acts that there will be exemptions for those who suffer elective termination. I keep repeating that because it is really important. I do not want us to blindly go ahead and forget about other people’s feelings, because we are talking about those physical and mental emotions that need to be considered. Therefore, they will not be cast aside or not thought about in this Bill.
I am deeply grateful to the Minister. I thank her for laying out the Government’s position and vision for making a difference to the care and consideration given to women who have suffered baby loss—in this instance, stillbirth—and for articulating so strongly the Government’s promise and commitment to make a difference to those who suffer baby loss.
It is estimated that between 2% and 4% of baby losses occur between 20 and 24 weeks of pregnancy. The World Health Organization and many leading nations already recognise stillbirth from 20 to 22 weeks, paving the way for change for us in the United Kingdom. My Bill is not calling for something that has not already been adopted by nations around the world. My Bill will be there to help those who have experienced one of the most traumatic experiences anyone could ever go through: the loss of a child. It simply wishes to extend support by a mere four weeks. Those who elect termination will be protected.
This Bill is asking government to show true compassion to bereaved parents and families across the country. I was pleased to hear that the Minister is happy to work closely with me and the Saying Goodbye charity on the issue to bring solace and consideration into the lives of those who need it. I am more than happy to work together to make changes. I will accept a compromise; that is what I am here for. I passionately commend this Bill to the House.
Imprisonment for Public Protection (Re-sentencing) Bill [HL]
(1 day, 15 hours ago)
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Lord Woodley
Member’s explanatory statement
This amendment would ensure the establishment of an expert advisory committee without the requirement on the Secretary of State to carry out a resentencing exercise.
Lord Woodley (Lab)
With noble Lords’ indulgence, I wish to open this debate by saying that IPP—imprisonment for public protection—is as big a scandal as the Post Office and the infected blood scandal, as bad as they are. Almost 100 prisoners have taken their own lives, and hundreds more are being driven to insanity by this no hope, never-ending sentence. The only difference with IPP is that not enough people know about it, and that has to change.
Now, speaking directly to everyone serving an IPP sentence, my message, quite simply, is: do not give up hope. You have more supporters here than you realise, and there are many Members in this House and the other place who will not rest until we have justice for everyone suffering these appalling torture sentences, but please understand that it is the Government who ultimately have the power to end this injustice. Sadly, my Bill by itself will not bring you justice, but it can help to build pressure on the Government to do the right thing and to build public awareness of this industrial-scale miscarriage of justice. Please, do not have false hope about this Bill. Have hope, but not false hope. That is my aim here today.
By debating these amendments today, especially this first group of amendments, which probe the Government’s position, we can hold Ministers to account and expose the lack of logic behind their refusal to consider resentencing seriously and creatively. Each of these amendments restricts resentencing to a particular cohort or, in the case of one in my name, restricts resentencing entirely by committing the Government to establishing an expert committee to advise on resentencing. To be clear, this is not because I do not want to see resentencing happen at all. Of course I do. That is what the whole Bill is about but, with the Government resisting resentencing, these amendments allow us to focus on the specific objections. Why are they against forming an expert committee? Why are they against resentencing those who have suffered the greatest injustice?
I put my name to all the amendments in this group because I genuinely believe that each asks legitimate and reasonable questions of the Government. Amendment 2 is also in my name. It would restrict resentencing to those already released by the Parole Board and living on licence in the community. Did I table this amendment because I believe they are the only ones who should be resentenced? Of course not. I did so, as I said, to probe the Government’s position and to test the faulty logic. If fears around public protection are all that stands in the way of full resentencing, what could be the objection to starting with those already released? This group, who have, by definition, been deemed safe for release by the Parole Board and the Government are still living the nightmare of unexpected and immediate recall, often for a minor breach of licence, or sometimes merely on allegation of an offence, and the Minister knows this.
I have received so many examples from prisoners who have been recalled after a malicious allegation with no further action taken by the police, yet back inside they go to serve another indeterminate prison term along with those established sentences that they had. Even when no further action has been taken, people still face a year or more in jail, waiting for their next Parole Board hearing—if they are lucky. This is clearly not justice. There is no credible reason not to resentence these people already cleared by the Parole Board.
Lord Moylan (Con)
My Lords, I congratulate the noble Lord, Lord Woodley, on the tenacity he has shown in continuing the fight against the injustice of the IPP sentence. I hope the Minister will understand that the amendments in this group are intended to be helpful, in that they offer the Government a range of possibilities and flexibilities in the application of resentencing in the event that they cannot bring themselves—and it is clear that they cannot—to endorse the recommendation of the Select Committee in the other place in 2022 that all prisoners subject to this sentence should be resentenced and that the solution to the problem lies in that.
That is certainly the character of Amendments 11 and 12 in my name. They make a point that was often made by the late Lord Brown of Eaton-under-Heywood, who was so passionate about this injustice—namely, that in July 2008 there were significant reforms, as the noble Lord, Lord Woodley, has said, to the IPP regime in England and Wales through the Criminal Justice and Immigration Act 2008, and those changes aimed to address the growing concerns about the sentence. The changes were that a seriousness threshold was introduced, and from that date an offender could receive an IPP sentence only if the offence they were being sentenced for was serious enough to justify a determinate sentence of at least four years. Before that change, there had been occasions, some referred to in Parliament—some are anecdotal because the names are not always known—of people with implied determinate sentences as low as 28 days who had been given IPP sentences. From this point on, four years was the seriousness test, and that was a major shift.
The reforms also gave greater discretion to judges, allowing them to do their job properly—that is, sentencing somebody according to their individual deserts, which is the purpose of the sentencing regime. The Criminal Justice Act 2003, the original Act, had not given judges that discretion; it said that in the cases of those qualifying for IPP sentencing they must assume that there is a risk unless the court considered that it would be unreasonable to conclude that there was not a risk. Those are very strong words. “Must” and “unreasonable” set a very high bar, effectively removing judicial discretion in determining the sentence. Defendants sentenced under that provision were denied what should have been their right to an individually appropriate sentence.
The key point, as the noble Lord, Lord Woodley, has said, is that the changes made in 2005 came into effect only in July 2008 and there was no attempt to make them retrospective to those who had been sentenced between 2005 and 2008. Many of those people are still subject to the sentence. Many of them are in prison and many have never been released. They are among the 1,000 or so IPP prisoners who have never been released to date. They continue to suffer from an injustice of exceptional gravity. They are serving a sentence that, as recognised in 2008, was passed pursuant to too wide a seriousness threshold by a judiciary whose discretion Parliament had so fettered as to prevent it saving defendants from unjustifiable severity.
There are two amendments, Amendments 11 and 12, because one is required for IPP sentences and the other for DPP sentences—the sentences imposed on those under 18, as the noble Lord explained—because that is the way in which the legislation is drafted.
Lord Thomas of Cwmgiedd (CB)
My Lords, I too pay tribute to the noble Lord, Lord Woodley, for all that he has done, is doing and, I am sure, will continue to do to try to remedy the kind of injustice that he has outlined.
Before I turn to the options put before us, I would like to say something about that injustice. It is largely common ground, I think, that the imposition of this sentence in the Criminal Justice Act 2003 was a mistake. I pay tribute to the noble Lord, Lord Blunkett, for acknowledging that mistake. However, what we have failed to do—herein lies the real perpetuation of the injustice—is deal with those who are still subject to that sentence. I am sure it is that which caused Members of your Lordships’ House, in particular the late Lord Judge, the late Lord Lloyd of Berwick and the late Lord Brown of Eaton-under-Heywood, to describe this as a stain on the character of British justice—which it is. It is a very serious matter that we are not taking practical steps to deal with injustice. As the noble Lord, Lord Woodley, said, we did it in respect of the Post Office, but, in my view, there are a lot of hang-ups and misconceptions that are preventing the doing of justice in this case.
Lord Garnier (Con)
My Lords, I commend the noble Lord, Lord Woodley, for his continued campaign in this area. I also thank the noble and learned Lord, Lord Thomas, and my noble friend Lord Moylan for their remarks in support of the campaign and the general thrust of what the noble Lord, Lord Woodley, discussed.
It is very tempting in Committee on a short Bill such as this to want to rehearse the Second Reading debate. Unlike the noble and learned Lord, who analysed the problems before us with a forensic stiletto, I tend to come from the blunderbuss school of argument. I would prefer to give this piece of injustice a thorough whacking, but, unfortunately, that would not be helpful; it would be repetitive and would probably not move the Government.
Because I am familiar with the Justice Ministers on the Front Bench, I know that they both find themselves in a position in which they would rather not be. They did not invent the IPP and are not responsible for its progress since 2003. I suspect that they heartily wish they were dealing with something else—but they are not, and they have to deal with this, so here we all are.
I will make one or two brief points. You could not put a cigarette paper between me and the noble and learned Lord in relation to the remarks he just made. The IPP sentence is uncontroversially unjust. It is also uncontroversial to say that, within the sentence as a whole, there are elements that aggravate that injustice. As the noble and learned Lord pointed out, the absurdities of the recall regime—the monstrous consequence of a slight breach in a recall or the terms of a licence—can lead to a recall in relation to something that has nothing whatever to do with the initial offence. In addition, there is the inability of the state properly to police the return of people to imprisonment without a separate and new trial in relation to wholly different allegations.
All those things ought to stick in our craws, and I think they probably do. However, we feel bound up in the bureaucracy and the sheer inability to move things along, because there are so many other moving parts in the world of public policy. One is never able to clear a path through to achieve what we all want to do: to end every consequence of the IPP regime, consequences which were to some extent ameliorated by the 2008 changes and by the abolition of the sentence in 2012. None the less, we are still here having these debates—wringing our hands and having anguished discussions—when we all know what we need to do.
I will do my best to return to the amendments and then I will stop talking. An expert committee is fine, but we have several hundred experts—they are called judges. It seems to me that by sitting either singly or in batches of two or three, they could form lots of expert committees to break the back of this problem.
Lord Hastings of Scarisbrick (CB)
My Lords, I will add just a line or two to all the statements so far. I immensely commend the noble Lord, Lord Woodley, for having the guts and fearsomeness of argument, the persistence and, thank goodness, the irritation to keep going and pushing this as far as we reasonably and possibly can—and must.
We will hear, as we have already, essentially Second Reading re-runs, because we are all just fed up and angry. We know, as the Minister knows, that in his file sit rather wishy-washy arguments about public protection which just do not stack up. One of the reasons they do not is that any assessment of those still languishing in prison will show that, of the 1,000 plus on IPP sentences, looking at their original time of sentence, 80% of them were for non-violent offences. In which case, based on accurate judicial knowledge of those individuals, we cannot say that they pose a public risk. Because they have never been let out, we have no evidence to prove that they will behave otherwise. When they did go to courts for sentencing, they were not there for violent actions; in which case, let them out, for goodness’ sake.
Do not continue to use the argument that there is a public protection issue; that is nonsense. It is simply a very nice Civil Service and Secretary of State way to say that we do not want to deal with it, because it keeps the public smiling. Ministers know that what they are really doing is perpetuating a gross, unacceptable injustice and acts of torture that are destroying individuals’ lives and sending them to suicide and desecration, and which are a gross stain on what we call justice or anything to do with it. I beg Ministers to take those pages out, hand them back to civil servants and say, “Meet some real prisoners”.
I continue to receive information—three times in the last month—directly from prisoners who are on IPP sentences who have heard nothing of the provisions of last year’s legislation. This is even though all sorts of messages went out from the Ministry of Justice last year and this year to inform governors that they should make sure prisoners know about the changes in the regulations and legislation, and that reconsideration of their position is possible. They have heard nothing. Why? Some say that frankly, the system does not believe it is going to work. There is also too much bureaucracy in it.
When we look at the range of amendments before us, both the probing ones but also, if necessary, the voting ones, what we are really seeing is all of us finding ways to hedge around this untidy mess. It is an untidy mess because the simplicity of accepting that a wrong has been consistently done means that there is a more straightforward way for a right to be consistently done. Give dignity to the individuals involved, accepting, as in the group meeting the Minister mentioned, that there may well be a few hundred who are simply so mentally distressed that they cannot participate in the process, they have lost hope altogether, they feel there is no point to their reassessment and they almost want to hang back on it all. That is a tragedy; it is a loss of human dignity and a destruction of their souls.
For those few hundred, we need to find a different way to support their mental recovery, as one of the amendments does, but when it comes to the majority, we are begging the Minister not to swallow the argument that this is all about public protection. Those of us who work in prisons week in, week out, know very well that it is not.
Baroness Ludford (LD)
My Lords, I want to contribute to this debate as I did at Second Reading, not that I have the expertise on the justice system that other participants have. I thank the noble Lord, Lord Woodley, for championing the Bill. I agree, as the noble Lord, Lord Hastings, just said, that this is an injustice amounting to torture. The ball is being kicked down the road in a completely unacceptable fashion. There is a way out—there are several ways out, actually—and I will come later to the Howard League proposals that the noble and learned Lord, Lord Thomas of Cwmgiedd, mentioned.
I principally think that insofar as there is risk, it may be no more than would be taken in the release of prisoners under a normal regime. It has, however, become a great concern of the Government that they could get blamed if people are released from IPP sentences and go on to commit other offences. Blame already attaches when other prisoners are released, but there is a particular fixation on this and I think we have to give the Government the courage, on a cross-party basis, to tackle this.
The noble and learned Lord, Lord Thomas, talked about the guts of the noble Lord, Lord Blunkett, who, having been the instigator of the original regime, has had the guts to admit that it was the wrong thing to do. We had the report from the Justice Select Committee in the other place, which was cross party. The former Lord Chancellor Alex Chalk repeated the conclusion of our late colleague and former Supreme Court justice Lord Brown of Eaton-under-Heywood about the IPP system being a stain on our justice system. In one of her first speeches in the other place last July, during a debate about IPP, the present Lord Chancellor said,
“The situation with IPP prisoners is of great concern … We want to make progress with that cohort of prisoners”.”.—[Official Report, Commons, 18/7/24; col. 180.]
Well, that was already almost a year ago.
Concern has been expressed across the political spectrum; the Government should take that into account and be ready to grasp the nettle. It has taken decades for there to be recognition of injustice in other sectors. The noble Lord, Lord Woodley, talked about the Post Office Horizon scandal, and we had the infected blood scandal and several others. In this country, we seem to be very bad at righting wrongs with dispatch.
In the words of the noble and learned Lord, Lord Garnier, I would like to give the IPP system a huge whack, because it is a scandal and an outrage. I refer to the report that was published a couple of weeks ago by the Howard League for Penal Reform. The league had an expert committee—very expert, not least because it was chaired by the noble and learned Lord, Lord Thomas. In his foreword to the report, he said:
“History shows that governments invariably find it difficult to remedy state wrongs; this is even more so when those subject to the injustice have broken the law. Successive governments have now recognised that the IPP sentence was a mistake. It is long overdue for those whose lives continue to be blighted by this sentence to be released from its clutches”.
There are six recommendations in the report. I hope and believe that the Minister has read it. I am glad to see that he is nodding. On these Benches and others, we place great hopes in the sense and experience of the Minister in this area.
The Bill is about resentencing. The amendments tabled today are modifications to the original proposals, but the Howard League is proposing another way. I do not want to detract from resentencing. We all wanted to see resentencing, but for reasons which passeth all understanding, this Government are apparently no more willing—unless the Minister is going to surprise us out of our skins—to accept resentencing. I hope that he can give us some encouragement that he is willing to look at another scheme, such as that put forward by the Howard League, which is to have what it calls a two-year conditional release. This would modify the current approach of the Parole Board, which requires the board to decide whether it is necessary for the protection of the public for the individual to be detained.
The proposal in the report is that in IPP cases, the Parole Board should be asked to set a date for when the person will be released, within a two-year window, and what is required to achieve that safely. This would give the certainty of a release date, alleviating the significant mental distress of those serving the sentence, increase the likelihood of re-engagement for those who have lost confidence in the system, for reasons we can all understand, and facilitate the safe and speedy release of those who are stuck in prison on IPP sentences. There are other suggestions in the report which I do not wish to take up time talking about, but the main one is a reform to the recall system, the operation of which is very bad.
I do hope that if the Minister cannot help us on resentencing today, he can give us a chink of light to end this scandalous, outrageous injustice and is willing to say that within a short time the Government will seize this issue and give hope to people, their families and friends, and all of us who hate to see this injustice and the hopelessness that goes with it. I am preaching to the converted with these sentiments, I believe: what we need now is a practical scheme to get out of this terrible situation.
Lord Balfe (Con)
My Lords, I thank the noble Lord, Lord Woodley, for giving us the opportunity to debate this injustice. We both serve on a committee with the justice unions, as they are called. I recently succeeded the noble Earl, Lord Attlee, as the Conservative vice-president of this APPG, because the noble Earl is being cast into outer darkness and has decided to go quietly and hand over to me, rather than wait to be sacked.
I thank the noble Lord, Lord Woodley, because one notices in this APPG that no one is really interested if the justice unions can be kept down and kept quiet—that is it. One looks at the unions in the justice industry—prison officers, for instance—and sees enormous problems that the Government are not addressing seriously. I wish they would.
As for the Bill, one of the weaknesses in this country is that you can get swept away, and nothing sounds quite as good as imprisonment for public protection: “Yes, we’ll lock them up and throw away the key”. That really was how this came in; the Government wished to show that they were prepared to be tough with people, without much mention of why. I accept, as one of the Ministers said to me, that some of the people who are detained for public protection probably should not be let out, but that decision should be made by a tribunal or group of people who can judge the mental state of the people in prison for public protection. It should not be allowed just to drift on and on.
There are lots of amendments to the Bill, and I noticed that the noble Lord, Lord Woodley, has signed them all. I can see that he is trying to find a solution and he accepts that there may be problems in finding a precise way forward, but I would like to hear from the Minister that the Government are prepared to give this a fair wind. The most important thing is that they acknowledge that there has been a severe miscarriage of justice that needs putting right. That would be an extremely good start.
I will mention another word that has not been mentioned: class. These people are not middle-class people. When I was in the European Parliament, I was one of the founders of its human rights sub-committee and we went all over the place. We went to places such as the Czech Republic, as it then was, and to unfashionable places where the British Government were very concerned about human rights, such as Nicaragua. I had a very enjoyable time in Nicaragua visiting its prisons. But the key thing I noticed was that, certainly in eastern Europe, most prisoners were forgotten because they were ordinary people. They had no universities behind them nor people campaigning for them. They were basically working-class people who had fallen foul of the system.
Under the very authoritarian regimes that existed, particularly in eastern Europe, many of these people were locked up, and for many of them it was an indeterminate sentence. The gulag was an indeterminate sentence. Most of the people in the gulag were working-class. They were not intellectuals. The few that were, such as Sharansky and Daniel, had big campaigns mounted for them. I helped with those campaigns, but the fact of the matter is that many of the prisoners, as Gorbachev found when he came to power and started overhauling the system, were there by accident. They should not have been there at all. They had no advocates, they had no people behind them—maybe a partner 1,000 miles away across Russia, but no organised campaigns. That is the case with many of these people. I wonder how many of the 1,000 know each other, talk to each other and are able to swap notes and see how they might get out of the situation that they are in.
I am not going to deal with individual amendments, but they all point in the same direction. They are a genuine attempt by the noble Lord, Lord Woodley, and the colleagues who have tabled them to move the matter forward. This House is unique, in a way. I do not think you would have a debate like this in the Commons because there are more vested interests down there, but here we can be dispassionate. One of the things I am saying we need to be dispassionate about is the fact that there has been a massive miscarriage of justice and that now has to be put right. It is up to this Government, just as it was to the previous Government. I fully support what Alex Chalk was trying to do. He was my son’s MP. My son was one of the few people who voted for him, but he did not hold his seat. He was a good Justice Minister, as was as the noble Lord, Lord Clarke, who I knew when he was in that job. We have to move things forward. Somehow Ministers have to get hold of the Civil Service and say, “This is a blot on the British record for human rights”.
Of course, some people should not be released, but their cases should be reviewed, and there should be some form of appeal and some form of sentence. If they are not to be released, the sentence should be subject to review. I suspect a number of them have become institutionalised, and that a number of them were mentally ill before they ended up in prison, but our job as a public body is to make it possible for the justice system to be seen to be fair. My concern is that of these 1,000 people in prison today, probably 700 or 800 of them have no family, friends or social network, and that when they are let out they are going to need a lot of support to adjust back into the community.
This is the beginning of a big challenge. I hope our Ministers will be able to take it on board and solve this blot on our justice system.
Lord Carter of Haslemere (CB)
My Lords, many of the points that I was going to make today have already been made far more eloquently than I could have made them, so I will not detain the Committee for very long. I have just two short points.
First, I have always been quite impressed with the Government’s argument that they are responsible for public protection, that they therefore cannot release people who are assessed to be a risk to the public and that any resentencing exercise would just take us around in circles because it would have to incorporate a safety assessment and we would end up back where we are today. But I was very struck by what the noble Lord, Lord Hastings, said and the statistic that 80% of IPPs in prison are there when their index offence was non-violent—I think I heard that correctly. That is an astonishing thing. I have learned something. If that is the case, how does the public protection argument stack up? Surely there is some answer to it if these people were originally convicted of non-violent offences.
Secondly, if the Government are nevertheless resolute that they do not want a resentencing exercise, I strongly commend the Bill of the noble Lord, Lord Woodley, because the Bill and the amendments show how diverse the IPP population is. That is important, because this should affect the way the Parole Board assesses risk and the way that the Probation Service considers whether to recall.
To take just three categories illustrated by the amendments, first, there are those who have been previously released, who, as the noble and learned Lord, Lord Thomas, said, are in a completely different category from those who have not. They have been assessed on a previous occasion to be safe to release. If they have been recalled, the fact that they have been previously released, and therefore considered safe, means that the burden and standard of proof on the Prison and Probation Service should be very high to show that they are still dangerous at their next review.
The second category is those who were juveniles when they committed their offences. The courts have been clear that young people are far more likely to rehabilitate quickly and are more open to it. For example, in the case of tariffs and detention during His Majesty’s pleasure, the courts have said that in the case of juveniles, their tariffs need to be reviewed much more regularly.
Thirdly and finally, there is the category of those who are mentally ill. We know from expert psychological evidence—in the third report to the Justice Committee—that the effect of the IPP sentence itself is a major factor in the mental health of IPP prisoners. The report said that
“someone may be deemed too high risk to be released based on their current mental health presentation, rather than based on their original offence.”
If that is the case, consideration should be given to transferring these prisoners to a more suitable environment than prison for treating them appropriately.
Whatever the Government’s decision on the Bill of the noble Lord, Lord Woodley, I very much hope that it will lead to further progress in reducing the IPP and DPP prison population.
Lord Berkeley of Knighton (CB)
My Lords, looking around the Committee at the legal expertise present, I feel rather underqualified. However, I worked as a trustee for the Koestler Arts trust for some years, and that leads me to pick up the point made by my noble friend Lord Hastings that what people in prison need to achieve rehabilitation—which I know that the Government want—is hope. What has happened as a result of IPP is that hope has been replaced by uncertainty and inequality. We clearly have to put that right.
The other reason that I wanted to speak today was that the late and learned Lord Brown of Eaton-under-Heywood, Simon, was a close friend of mine. He made such an impassioned speech from these Benches that it made me feel that I too had to take up this cause because IPP, as we have heard, has resulted in enormous injustice. I return to the point made by the noble Lord, Lord Hastings, as did the noble Lord, Lord Carter, that that figure—that 80% are non-violent—is terrifying. I say to noble Lords on the Front Bench, who are distinguished in the law themselves, that if they could—and I really imagine that they will want to—shed some light on this, to seek by some way light at the end of the tunnel, that would be welcomed across the House.
I will not go on, because it has all been said and this is not the time to do so, but I say to noble Lords: please try to find a way forward here.
Lord Wolfson of Tredegar (Con)
My Lords, I too begin by thanking the noble Lord, Lord Woodley, for his determination on and commitment to this matter, both today and on several previous occasions.
The injustice of the IPP sentence, and its effects, which continue, are not in dispute. As my noble friend Lord Balfe said, it is a miscarriage of justice, and we are dealing here with an injustice. I will just take a moment to recognise the work that he did to try to rectify another injustice: that of the refuseniks in the former Soviet Union. A number of noble Lords have paid tribute to the former Lord Chancellor, Alex Chalk, who, indeed, as the noble and learned Lord, Lord Thomas of Cwmgiedd, said, showed guts in the work he did. The changes that he put in place, to an extent, ameliorated the situation.
Perhaps unlike some Members of the Committee, I note that this is not Second Reading, so perhaps I will be forgiven for not repeating all the points I made then. The Committee should be under no illusion about my position on IPP, which I hope I have made clear on a number of occasions. As my noble and learned friend Lord Garnier said, it is up to us on the Front Benches, so to speak, to try to sort it out, although the Minister has a singular advantage over me, in that he is in government and I am not. But he can take it from me that we will work constructively with him on this issue and we will continue to discuss it, as we have on previous occasions. To paraphrase a famous rabbinic phrase, even if we cannot finish the work, we none the less have an obligation to do what we can to progress it and make things better.
The Minister of State, Ministry of Justice (Lord Timpson) (Lab)
My Lords, I am grateful to my noble friend Lord Woodley and to every Peer who has brought such sustained focus to the imprisonment for public protection sentence. Their passion and the compassion of the families, campaigners and practitioners have quite rightly kept this complex issue at the top of our agenda. I welcome that scrutiny and the positive intent behind this Private Member’s Bill, even though I cannot support the specific remedy it proposes.
I also welcome the noble Lord, Lord Balfe, who takes over the responsibilities from the noble Earl, Lord Attlee. I hear the mood of the Committee in wanting to move forward, and quickly. I share this sentiment, but we do not think that resentencing is the right way to move this forward.
Today I want to be absolutely clear. My priority is to address the IPP legacy safely, fairly and in a way that endures. Since taking office, I have met many IPP prisoners and their families. I have listened to victims and front-line staff, chaired round tables and campaign groups and walked the landings with governors and probation leaders. Every conversation has strengthened my resolve to pull hard on every available operational lever. Even yesterday I met an IPP prisoner at HMP Eastwood Park who has her parole hearing today.
I completely agree with the noble Lord, Lord Hastings, on communication. It is absolutely vital that IPP prisoners and their families are aware of the changes that have been made. Yesterday I was pleased to see multiple copies of Inside Time around the prison, but I will take that back to the department and consider how we can do more.
We are already seeing what determined practical action we can achieve. The Victims and Prisoners Act 2024 automatically ended the licence for 1,742 people, with hundreds more cases now moving through the Parole Board on an accelerated timetable. That is real progress: people rebuilding their lives, victims protected and the public kept safe.
Let us stand back and look at the wider trajectory. The total IPP prison population has fallen from 5,040 in 2015 to 2,544 today, with the unreleased cohort down to 1,012. Meanwhile, rigorous supervision keeps risks low. Fewer than 0.5% of all offenders under statutory supervision were convicted of a serious further offence last year. Those figures show we can shrink the cohort while maintaining the confidence and safety of victims.
We are not stopping there. This summer I will lay before Parliament the second annual report on the IPP sentence, alongside a refreshed action plan. It sets tougher targets: 90% of IPP prisoners in the right prison for their needs by December, for example, and sharper deadlines for parole and termination reports. It hard-wires accountability at every level. I know that Peers and campaign groups will be looking closely at how we perform and that the Prison Reform Trust and the Howard League for Penal Reform have serious reservations about the Bill and wish to focus on what can be achieved without pursuing what is proposed in the Bill.
We have a plan, and it is working. Early results from that plan are encouraging. In 2024, 602 recalled IPP prisoners were safely re-released—the highest figure ever recorded. While recalls fell from 658 in 2023 to 619 in 2024, clearly there is more work to do. Even with a more complex residual population, the Parole Board continues to release around 45% of applicants at their first oral hearing. That balance, firm on risk and ambitious on progression, is exactly what victims and the public expect. My commitment is to drive that plan shoulder to shoulder with colleagues across both Houses, with campaign groups and, crucially, with victims and their advocates. Together we can press down on every control, treatment and resettlement lever until each individual who can be safely released is safely released and then supported to stay out.
In response to the noble Baroness, Lady Ludford, we are carefully considering the recommendations in the Howard League report. We are exploring in particular the ways to improve recall decisions and speed up post-recall review processes.
While I cannot back a resentencing exercise that would short-circuit the Parole Board’s vital public protection role, I will champion relentless evidence-based progress. Let us channel the energy of the Bill into the concrete measures that are already delivering change and will, with the House’s continued challenge and support, allow many more IPP offenders to complete their sentence and move on with their lives.
I thank my noble friend Lord Woodley for Amendment 1 on the creation of an expert advisory committee, which would advise the Lord Chancellor on a resentencing exercise that she may, rather than must, carry out. I understand the desire to provide the Lord Chancellor with advice on this matter.
However, as raised at Second Reading, my concern remains that the creation of an expert advisory committee risks giving false hope to those serving the IPP sentence, even if the Secretary of State was not obliged to implement its recommendations. This is only confirmed in my regular meetings with IPP prisoners. The Justice Select Committee in the other House and a wide range of respected organisations have considered the issue of resentencing, yet there has been no solution to undertaking a full resentencing exercise in a way that would not involve releasing offenders the Parole Board has determined pose too great a risk to the public.
I recognise the attempt by the noble Lord, Lord Woodley, to address this issue by limiting a resentencing exercise to those currently in the community in Amendment 2. This would avoid the issue of prisoners being released without the Parole Board’s direction that the release test is met.
I respectfully suggest that those on licence in the community are already benefiting from the significant changes to the IPP licence period in the Victims and Prisoners Act 2024, which means they will have their licence considered for termination by the Parole Board three years after their first release, or two for those sentenced when under 18, rather than 10. They also know that even if their licence is not terminated at this point, it will be terminated automatically if they are not recalled in the subsequent two-year period. Those in the community have, of course, met the Parole Board’s release test, but only on the basis that they would be released with the support, oversight and controls in place in the form of licence conditions.
This amendment would remove those licence conditions much earlier—potentially immediately. It is right that someone who has been in prison for a significant period of time should have the resettlement support from the Probation Service, and that there are appropriate control measures in place to protect the public, manage risk and provide a soft landing for those leaving prison. I agree with the noble and learned Lords, Lord Thomas and Lord Garnier, that licence conditions need to be necessary and proportionate, but it is also right that those conditions are set by the independent Parole Board.
Amendment 3 would restrict the resentencing exercise to IPP offenders who are 10 years over their tariff, both in custody and in the community. I thank the noble Baroness, Lady Burt of Solihull, for this amendment. I share her concern about those still serving their sentence years after their tariff has expired.
Resentencing IPP prisoners who have served 10 years over their tariff would result in them being released irrespective of their remaining risk. For this cohort in particular, the independent Parole Board will have repeatedly determined—at least every two years since the offender reached the end of their tariff—that they are too dangerous to be released. They have not met the statutory release test. For that reason, all those serving the IPP sentence in prison must satisfy this test before they are safely released. For those in the community, they would have been recently released either for the first time or after being recalled. They need continued oversight to manage their risk and support from the Probation Service to progress them towards licence termination.
Amendment 10 would restrict a resentencing exercise to those serving a detention for public protection—DPP—sentence. I thank my noble friend Lord Blunkett for this amendment and recognise that he remains a constant force for change on this topic. We recognise the specific challenges faced by those serving a DPP sentence. That is why those in the community now have their licence considered for termination by the Parole Board two years after their initial release and will therefore also have their licence terminated automatically a year earlier than those on the IPP sentence, if the Parole Board does not terminate it at the end of the qualifying period. There are now fewer than 30 individuals serving DPP sentences in the community and currently fewer than 100 in custody.
The IPP action plan includes a specific focus on DPP offenders, and I hope the noble Lord, Lord Carter, will be comforted that there are more frequent reviews by psychology services and that the Parole Board prioritises listing these cases for consideration. However, our position remains that, as with those serving an IPP, those serving a DPP sentence should be released only once they have satisfied the statutory release test. This is the only way we can ensure that the public and victims are best protected.
Finally in this group, Amendments 11 and 12 tabled by the noble Lord, Lord Moylan, whom I thank for these amendments and for his thoughtful contributions to our IPP round tables, relate to those who received an IPP sentence before 14 July 2008. The sentence was amended to give judges greater discretion over its use and to limit it to offenders who received at least a two-year tariff. Again, I recognise the purpose behind the amendments, but as most IPP prisoners have served beyond their minimum tariff, it would lead to the release of the pre-2008 cohort irrespective of the Parole Board’s assessment of their risk. Our view remains that IPP prisoners should be released only once they have satisfied the statutory release test. The Government therefore cannot support these amendments, or any that would involve the resentencing of IPP offenders, for the reasons I have set out.
These amendments would lead to the partial resentencing of specific cohorts of individuals serving the IPP sentence. Unfortunately, they do not address the Government’s public protection concerns and would put both the public and victims at risk. They remove the vital role of the Parole Board in considering release and, with the provisions in the Victims and Prisoners Act, there is already a path to the end of the sentence in a safe and sustainable way.
The changes implemented are expected to reduce the number of people serving IPP sentences in the community by around two-thirds. I remain committed to supporting those serving their sentence in prison and, as I have set out, I believe the IPP action is the best way to achieve this.
To conclude, I should like to give two final examples of the progress made to support the IPP population. First, the approved premises pilot, which has recently concluded, extended the time for which IPP offenders could remain in an AP from 12 to 16 weeks. This was tested in four APs. At one, 23 out of 26 men moved on successfully after their placement ended. We also saw a 7% decrease in recalls at that AP. Although this is a small sample, it demonstrates that pre-release work, combined with training for staff and extra support, has had a direct impact on successful reintegration into the community. If we can successfully replicate this across the approved premises estate, the impact could be significant.
Secondly, we are taking action to enable swift re-release following recall where it is safe and appropriate to do so. This summer, we will see the publication of the progression panel policy framework, which will ensure that a multidisciplinary meeting is convened within 28 days for any offender who is recalled. The detail gathered from this panel informs consideration for the Risk Assessed Recall Review process, which, in appropriate circumstances, can lead to early re-release. These panels also help prisoners prepare for release, which aids their resettlement into the community. Measures such as these will help individuals progress through their sentence towards having it terminated.
I hope noble Lords are reassured by some of the updates that I have provided today. I will continue to work closely with noble Lords on this very important issue. I am pulling every operational lever I can, as hard as I can, to support IPP prisoners so that they can get out of prison and stay out.
Lord Woodley (Lab)
I thank the Minister for his response. I was very pleased to forewarn him of my speech, to give him more than a fair opportunity to review and reflect on such a very serious matter, especially bearing in mind the hundreds, if not thousands, of individuals watching, listening and hoping that something positive can come out of this debate.
I am disappointed, but not surprised, by the Minister’s answer, because it is very much more of the same that he has given us on two other occasions: he does not wish resentencing to be part of the move forward. I still really struggle to turn around and understand how the Minister cannot convince himself that it is the right thing to do for those groups of individuals that I have pointed out today—colleagues have supported me—who really do not create any sort of risk to the public. Those people who are already out on probation and have been released by the Parole Board are a perfect example, never mind the kids and others.
Nevertheless, all we can do is our best to encourage a man for whom I have an awful lot of respect. This Minister is genuine, he is honest and he is doing as much as he feels he can to give hope and support to this victimised group of more than 3,000 individuals. I sincerely hope his words will lead to even more actions than have been done today as he moves away from the Chamber.
But it is a bit of a struggle when, only a week ago, we saw an individual who was finally released out into the community but was arrested within 24 hours and sent back into prison again—and released again and sent back into prison again. Or we might end up with a guy who is now mentally unstable, created by the system, and who has been trying to get out of prison. With your help and support, he gets out of prison and goes into a mental institution, only to find that not long thereafter he is sent straight back into the same prison, which creates the same mental instability. It does not work and, no matter what the Minister says, it certainly has not given us the answers to the hundreds of problems associated with IPP sentences.
I take this opportunity to thank all my colleagues for their contributions. I am proud of each and every one of them. Their contributions were fantastic, from the heart, genuine and well informed, and I thank them on behalf of all those prisoners for what they have said and what they are trying to do. There is no doubt that we have got our message across but, in the spirit of moving the process along, I beg leave to withdraw the amendment.
Lord Woodley
“(5) A Crown Court designated by the Lord Chancellor must re-sentence the person serving the IPP sentence in relation to the original offence or offences, and any associated offences.(6) The re-sentencing court must not impose a sentence more severe than the notional determinate sentence upon the basis of which the tariff was specified as needing to be served before an application for early release might be made.”Member's explanatory statement
This amendment would ensure those serving IPP cannot be resentenced more severely than the notional determinate sentence upon which the minimum term was based. Confirmation of IPP is preserved for those falling into the category specified in subsection (6A), added by another amendment in the name of Lord Woodley, to ensure public safety.
Lord Woodley (Lab)
My Lords, this is quite challenging because this group of amendments was designed as a voting group, but I have been informed that there are not enough people in the House, so we will not be taking a vote on them. That is what I was informed of a few minutes ago, which somewhat cuts the legs from under me, to be quite honest. I do not want to waffle on about all the things that we have been talking about with the hope, belief and view that we were going to vote on them, so, with that in mind, and with the greatest reluctance—and I really mean that—I will be withdrawing this amendment.
Baroness Fox of Buckley (Non-Afl)
My Lords, I apologise that I was unable to be with your Lordships at Second Reading, but I read the excellent contributions in Hansard. That, as well as listening today, confirmed that, like everyone else, I want to commend the noble Lord, Lord Woodley, for this Private Member’s Bill. It has done a huge amount, yet once more, to raise the issue. The noble Lord is one of those thorn-in-the-side type of people—you know, the awkward squad—and that is the greatest compliment I can give him, because I think that is how things change.
Important issues have already been raised. I did not speak on the first group for time purposes, so I will bring some of it forward. The noble Lord’s approach to this resentencing exercise is refreshing, because he has offered to do whatever he can to ensure that it is not turned into, as it is too often caricatured, some chaotic mess with inadequate oversight. Instead, through all these amendments, we are looking to use whatever mechanisms we can to convert these never-ending IPP sentences into regular, normal, determinate sentences with an end in sight. That means we are prepared to make compromises and look at all options—nothing is off the table. In that spirit, rather than treating all IPP prisoners as an undifferentiated blob, I am glad to see that today’s amendments try to tackle the different cohorts within the IPP population and work out how best to deal with each group reasonably, and maybe differently, to edge towards justice.
The focus of my Amendment 7 is IPP prisoners suffering mental illness, giving the resentencing court the power to continue incarceration if someone still presents a risk to the public, as, due to mental disorder, they may be dangerous. This would, in effect, replace an IPP sentence with a secure hospital order, and would be a backstop safeguard for the Government to use in dealing with one difficult group of IPP-ers.
One key aspect of the context here—we have heard this again and again from the Front Benches on both sides of the House—is that, in explaining his resistance to resentencing, the Minister, the noble Lord, Lord Timpson, stressed that
“the first priority and responsibility of any Government is to protect the public”—[Official Report, 15/11/24; col. 2044.]
and that, therefore, the focus will always continue to be on public safety. I am not convinced that that is not too crude a measure of the Government’s main priority—always to protect the public—but, regardless, it seems that the MoJ is fixated on and perhaps even paralysed by the notion of dangerousness and IPPs. I have never been convinced by the argument that IPPs are en masse a distinct group of offenders who are especially dangerous—much more so than other prisoners on determinate sentences for far more heinous crimes, who are often released into the community at their sentence end or are let out on early release to solve the state’s prison crisis.
I want to take this chance to cite a letter that I received from one IPP prisoner, in which he talked of his frustration at seeing early-release prisoners walking out every day, laughing and joking having told prison officers to shove their sentence plan, boasting about how they are going to earn 100 times more than prison officers by selling class-A drugs, and having had adjudications for offences relating to alcohol, phones, drugs, violence and cell destruction all wiped clean—yet they still get an early release. My correspondent pointed out that IPPs are almost choirboys in comparison, but they are left to rot.
However, I concede that one risk factor makes hundreds of IPP prisoners not choirboys: the very nature of the IPP sentence is so psychologically toxic that it has itself damaged prisoners’ mental health and cause problematic behaviour. This theme has been well rehearsed in all our debates in this Chamber and is evidenced in all the literature. As we know, the despair and sense of hopelessness associated with this sentence contributes to making some IPP prisoners ill; we know about the appalling self-harm and suicide numbers. What is more, ill IPP prisoners have a double whammy: they are often wary of disclosing a decline in their mental health to prison staff in case it could knock back a parole hearing. So the IPP regime contributes to untreated illness, with no intervention to stop deterioration, and that creates even more risky behaviour.
The irony is that the prisoners are arguably becoming less safe to release precisely because they are being held indefinitely, which creates so much pent up anger and frustration, and loss of agency, with no hope. That potent mix is leading to instability, people lashing out and disengagement, all of which are barriers to progressing release. It also means that, in the context of this Bill, a percentage of IPP prisoners could be too ill to be considered for resentencing.
This is partly because prisons are not the right location to deal with mental illness. As the Minister knows, the Government have agreed that prison is not the right setting for prisoners who are ill; he knows this because it was an important element of the Mental Health Bill that passed through the Lords, declaring that prisons should not be treated as places of safety. I moved amendments on that issue, with a focus on IPP prisoners, in Committee and on Report.
My amendment today follows up on that discussion. It acknowledges that, given that the punishment part of the sentence of an IPP-er has long since been discharged, where there are still concerns about risk and dangerousness because of mental health challenges, a mental health setting is more appropriate than prison. This would allow the Sentencing Council to use hospital orders to ensure that the public protection aspect of such concerns is dealt with appropriately, while also making sure that the prisoner is in the right setting. Where someone has apparently become not safe enough to release because of an illness that the state has helped to induce, this seems to me to be a reasonable and elegant solution.
In this way, IPP-sentenced individuals can access targeted help for their distress and have their deterioration and behaviour clinically managed. This can allow progression via specially designed therapeutic and pharmacological in-patient care, in a psychiatric setting that can, we hope, build up and help the recovery of ill individuals with dignity.
Baroness in Waiting/Government Whip (Baroness Taylor of Stevenage) (Lab)
I remind the noble Baroness that the advisory speaking limit for this debate is 10 minutes.
Baroness Fox of Buckley (Non-Afl)
I am sorry. The status quo position is that, when Mr Thomas becomes well and stable in hospital, he will be returned to the prison as an IPP-er. That seems unconscionable. All this amendment does is suggest that people are referred when they are mentally ill to a hospital and that the hospital then uses a clinical assessment to decide when they are well. When they are well, they are not dangerous and can be released. That can be part of the resentencing procedure.
Lord Moylan (Con)
My Lords, I am conscious of the time. The noble Baroness, Lady Fox, has put her finger on a problem that the Government have not properly faced but which they will have to face soon: the commendable action plan they have been pursuing with vigour will not reach a large number of prisoners who have not been released before, because, for the action plan to work at the individual level, the individual has to engage successfully with the processes of the Parole Board. We know now that, of the 1,000 or so prisoners who have never been released, a significant number no longer have the mental capacity to do that. Those are the people to whom the noble Baroness draws attention.
I wish to add to that group a further, possibly overlapping, group of prisoners, who may have mental capacity but refuse to engage with the process because of understandable disillusionment arising from their experience of the process in the past. These people will not be addressed by an action plan that requires that successful engagement. The Government have to come up with something else, because at the moment they have nothing for them; the alternative is that they simply stay in prison until they die. If not today, because we are coming to a close, then on an occasion not too far in the future, I think the House would like to hear what the Government propose to do for these people.
Lord Davies of Brixton (Lab)
I wanted to participate in this debate principally to congratulate my noble friend on his excellent introduction. Throughout the stages of the Bill, he has been clear and concise about the need for this legislation, and his contribution today was magnificent.
All the speeches have been clear about the total injustice of the situation in which we find ourselves. I have little doubt that the views are shared by the Members on the Front Bench. The two issues that I wanted to raise—first, the mental health aspects of the problem and, secondly, the fact that we can no longer rely on people to manoeuvre through this system under their own power—have been powerfully addressed by the noble Baroness, Lady Fox of Buckley, and the noble Lord, Lord Moylan, so I will not repeat them. I hope that my noble friend the Minister will address them in his reply.
I emphasise to my noble friend the Minister that he has, in effect, said—he will perhaps tell me if I am wrong—that we do not need resentencing, as set out in this Bill, because the action plan will deal with the problem. Because of his particular position, he was brought into this House and into the Government to address this issue with the prison system alongside the other issues that we have. I stress—not in a very friendly way, although he is my noble friend—that it is really on his shoulders to get this sorted out. By rejecting the resentencing approach, the approach pursued by the Government has to work. It is on my noble friend the Minister’s shoulders to get this sorted out and to address the problems of mental health and the fact that large proportions of those remaining in prison are incapable of manoeuvring through the system by themselves. The Government have to provide them with support, either through the department or by funding some external agency that will give those suffering from this injustice a way out of the maze.
Lord Wolfson of Tredegar (Con)
My Lords, given the way the debate on these amendments has gone—and with no disrespect to the noble Lord, Lord Woodley—I propose to say only a few words about Amendment 7, which is, as I understand it, the only live amendment, so to speak. It is in the name of the noble Baroness, Lady Fox of Buckley, who, as is always the case, has given us a lot of food for thought.
There is no doubt that the mental health aspect of the IPP issue is very real, not least because, as I said at Second Reading, my concern is that there will be prisoners who have developed mental health problems while in prison and indeed because of the sentence itself. I think I said that that was a stain on the British state and, if so, I was right to do so.
My noble friend Lord Moylan is therefore right to highlight the issue of mental health. That said, it is not immediately clear to me, looking at the words of the amendment, that the conditions in (6B) and (6C) are necessarily the right conditions to be imposed in this context. Of course, I appreciate that this amendment was tabled to raise the issue rather than to focus on the particular words. I therefore look forward to what the Minister has to say about Amendment 7.
Lord Timpson (Lab)
My Lords, the second group of amendments clarify the Bill’s clauses and make important changes to the wording. However, the Government maintain reservations about the risk to public protection that the Bill presents. I will respond to all the amendments in turn as I want to set out the Government’s position.
My noble friend Lord Woodley’s Amendment 4 sets out that an offender could not receive a harsher sentence under the resentencing exercise. We accept this principle, but it is already established by Article 7 of the European Convention on Human Rights. We therefore do not believe that this amendment is required.
My noble friend’s Amendment 5 would allow a resentencing court to retain the IPP sentence where the offender might properly have received a life sentence and where, at the time of resentencing, they constitute a substantial risk of causing serious harm if released. Crucially, this would not prevent the resentencing of those who do not fall within these parameters and whom the Parole Board have previously assessed as not safe to be released. This is because the test being applied by a resentencing court would be less stringent than the Parole Board’s statutory test.
My noble friend’s Amendment 6 would provide the resentencing court with the option to issue an extended licence on release, if it deemed it necessary. Noble Lords are aware of the provisions in the Victims and Prisoners Act that allow for licence termination. This amendment would still involve the release of IPP prisoners who have previously been assessed as not safe to be released under the statutory release test. It would therefore not address our fundamental public protection concerns about undertaking a resentencing exercise.
I thank the noble Baroness, Lady Fox of Buckley, for Amendment 7, and acknowledge her empathetic consideration for the individuals serving IPP sentences who require additional support for their mental health, especially the 233 individuals in secure hospitals. The amendment would allow a resentencing exercise to substitute an IPP sentence with a hospital order. A hospital order requires evidence of a mental disorder at the time of the offence being committed, whereas this amendment would lead to a hospital order being substituted when an offender currently has a mental disorder. As with earlier amendments, this amendment would remove the IPP sentence irrespective of the Parole Board’s assessment of an individual’s risk. Instead, the individual could be released by a mental health review tribunal. This process may not fully consider the risk posed to victims and the public.
IPP prisoners, like any prisoner, can require additional support for their mental health. They can already be transferred to secure mental health hospitals if this care is required, and I am currently working with HMPPS to explore how they can best be supported towards release when that care is no longer required. I completely agree with the noble Lord, Lord Moylan, about disengaged IPP-ers, as I refer to them, and hospital returnees. It concerns me that, for example, they may be returned to a category B local prison, which is not always the most appropriate place for them in their recovery. I am very keen to have further engagement with the noble Lord and others on that matter.
I thank the right reverend Prelate the Bishop of Gloucester for Amendment 8. Although the Government do not support the Bill, I understand the intention behind her amendment to assess the impact on services if the Bill were to become law. There is, however, already a requirement in the Victims and Prisoners Act for the Secretary of State to lay an annual report before Parliament about the steps taken to support the rehabilitation of IPP and DPP offenders. The annual report is expected to be published by Summer Recess and will show the progress that has been made.
Since the publication of the refreshed IPP action plan on 26 April 2023, there has been a 22% decrease in the number of those prisoners who have never been released. Additionally, when I became a Minister, 70% of IPP prisoners were in the correct prison for their needs. This has now increased to around 80% and HMPPS continues to make improvements in this area. This will help more of these individuals progress towards a release because they will be better able to access the support they need.
The second amendment tabled by the noble Lord, Lord Blunkett, Amendment 9, would reduce the licence period of one year for those who were subject to an invalid recall before the changes made by the Victims and Prisoners Act. The amendment does not define what would constitute an invalid recall, and my noble friend is perhaps referring to an unlawful recall, which would likely be the legal interpretation. If, however, he is suggesting scenarios where further information comes to light and the reasons for recall should be reconsidered, there is the risk-assessed recall review—RARR—process.
Baroness Fox of Buckley (Non-Afl)
My Lords, I was slightly confused in the summation. The implication, if you were just listening in and did not know about this subject, is that, largely, people were given IPP sentences originally because of sexual and violent acts. That is not accurate. Maybe the Minister could clarify what he meant by that. One of the arguments that I was putting forward—maybe the Minister could reflect on this—is that the dangerousness we keep hearing about from different Governments’ versions of the MoJ is often associated with a deterioration of behaviour because of poor mental health created by the sentence. The Minister says that the Parole Board are the only people who can assess whether the behaviour is dangerous or not but, in the instances of mental illness, would it not be better for a clinical assessment? Hospitals have to make decisions all the time about releasing people based on whether they are dangerous or not. They are in a much stronger position, surely, than the Parole Board, which does not necessarily understand mental ill health.
Lord Timpson (Lab)
HMIP did a report into recalls of IPP prisoners and said that they are being used proportionately. I believe that the Parole Board has the right skills and experience to make these often very difficult and complex decisions. On the make-up of the cohort of IPP prisoners, I will write with the exact percentages as I have them for confirmation.
Lord Woodley (Lab)
My Lords, this Committee has not materialised in the way that I would have preferred. Not least, it has not led towards what I hoped was going to be a vote or, maybe more importantly, the Minister finally agreeing to move forward on resentencing for each and every part of the cohort that we have highlighted so carefully and fairly.
While I have that disappointment, I think it is fair to say that we have done one thing that IPP prisoners will be grateful for. We have yet again raised awareness of this disgraceful set of circumstances here and among the wider public. There is therefore no way to say, “We will do something”, and then do nothing. There is no escape for us in this House to ignore the injustices that we are watching each and every day.
Once again, I thank my colleagues, the noble Lord, Lord Moylan, the noble Baroness, Lady Fox, and my noble friend Lord Davies. The expertise that they have brought to this debate has been a privilege for me to listen to, never mind anyone else, and their support is, as always, very much appreciated.
I shall finish where my noble friend Lord Davies finished, and the Minister has just said it: it is in your hands now, sir. It is no good being a nice man with a good heart whose will is there to try to make these changes if we then find that we are back in 12 months or two years and nothing has moved and the number of people who have committed suicide has gone from 100 to 110. It is now on the Minister’s shoulders, and I look forward to working with him and others to see what we can do to alleviate this catastrophe that has been with us for many decades now.
Baroness Fox of Buckley
“(6A) A court carrying out a review of a sentence of IPP may substitute a hospital order, with or without a restriction on release, for a sentence of IPP.(6B) A court may not make a hospital order under subsection (6A) unless—(a) it has received evidence from two registered medical practitioners that the defendant is suffering from a mental disorder of a nature or degree which makes it appropriate for them to be detained in hospital for treatment, and(b) those medical professionals have recommended what treatment would be appropriate.(6C) A court may not add a restriction on release to a hospital order unless—(a) it is satisfied that the subject of that hospital order poses a significant risk to the public if not detained in a hospital, (b) one registered medical practitioner who has given oral evidence in court supports the making of a restriction order, and(c) it is satisfied that appropriate in-patient treatment is available for the defendant concerned.”Member’s explanatory statement
This amendment would ensure those serving IPP and suffering from a mental disorder who present a significant risk are detained in a secure mental hospital until discharged by the Mental Health Review Tribunal, the Mental Health Review Tribunal for Wales or a Secretary of State.
Baroness Fox of Buckley (Non-Afl)
I want to say one thing. When people say that we do not want to give people false hope, the obvious thing is to do something real so that they have real hope. We do not have to give them false hope, we can change things, but I shall not move the amendment.