Victims and Prisoners Bill

Baroness Chakrabarti Excerpts

2nd reading
Monday 18th December 2023 Lords Chamber

[Baroness Chakrabarti (Lab)]

My Lords, it is an absolute privilege to follow that outstanding speech from the noble Lord, Lord Moylan. I hope he will forgive me for associating myself with every single word of it. I declare my non-pecuniary interest as a council member of both Justice and the Howard League for Penal Reform.

I am also grateful for the opportunity to speak in advance of the forthcoming maiden speech of the noble Lord, Lord Carter of Haslemere, who I had the pleasure of working for as a government lawyer in the late 1990s. He may not forgive me for saying it—and please, do not hold it against him—but I learned so much from him in those days, as a young lawyer, about law, good government and policy-making. I found him to be almost the personification of qualities in the subsequently much maligned Civil Service: independence, integrity, intellect and humanity. In a year when we have lost the noble and learned Lords, Lord Brown of Eaton-under-Heywood and Lord Judge, I think the arrival of the noble Lord, Lord Carter, on the Cross Benches must be particularly welcomed.

I now come to the Victims and Prisoners Bill, and I welcome the way that this debate has been opened by all the major groups in your Lordships’ House. In a December that will feel not quite like Christmas for too many struggling families, including those blighted by crime in this country, the Government bring us a not quite Christmas tree Bill. While I welcome its much delayed arrival, and the much delayed arrival of any Bill supposedly aimed at enhancing victims’ rights, I query, like the noble Baroness, Lady Brinton, whether it would not have benefited from a tighter focus in some places, or at least some pre-legislative scrutiny.

However, my greatest concern, perhaps, lies in the way the contradictions at the heart of the Bill represent those at the heart of the Government. I have no doubt that the Bill has been much improved by the arrival of the new Lord Chancellor—rightly, one of the more liberal and more pro rule of law members of the Cabinet. We see that reflected in the removal of what would have been a Secretary of State’s direct veto over Parole Board release decisions. I am very glad to see that that has been removed. Similarly, there has been some movement, as referred to by the noble Lord, Lord Moylan, in relation to some IPP prisoners, but not all. On the IPP point, I look forward to listening to the noble Lord’s partner in crime, if I may call him that, my noble friend Lord Blunkett.

However, one need not be the greatest Kremlinologist to divine that, just days before the publication of the Rwanda Bill, the Lord Chancellor appears to have lost a battle with No. 10 over the disapplication of Section 3 of the Human Rights Act—which of course requires legislation to be read compatibly with rights and freedoms, so far as is possible—from the parole provisions of the Bill. I am very sad about that. I am also sad about the proposals mentioned by the noble and learned Lord, Lord Thomas of Cwmgiedd, that would allow the Secretary of State to interfere with the independence and the composition of the Parole Board. I think that will be another provision that will require noble Lords’ attention in due course.

In the always affable and open spirit in which the noble and learned Lord the Minister opens these debates, I ask him to explain why this disapplication of Section 3 of the Human Rights Act was thought necessary in the case of this Bill. I ask him how it squares with his Section 19 statement—it is not quite a certificate; it is a statement of compatibility. Is it not just political signalling that if the Human Rights Act is not immediately to be repealed wholesale, it will instead suffer death by a thousand cuts, as a sop to those so-called “five families” who want their party to leave the European convention and, accordingly, the Council of Europe at next year’s general election? A little explanation of the thinking for the disapplication of human rights would be incredibly welcome.

In my experience, the convention on human rights has done more for victims’ rights in this country than, with respect, the common law ever did, and indeed more than party politics probably every did. One only needs to look at the case law to see that borne out, particularly in relation to the rights for the most vulnerable victims, including children and women, and victims of sexual crime. By contrast, the victims’ rights in this Bill, while well intended, are, to a large extent, toothless. I agree with the noble Baroness, Lady Brinton, about that. They are too much a dead letter in a sealed book, without the means to make them real or enforce them. I look forward to hearing from the noble Baroness, Lady Newlove, about whether she thinks the Bill goes far enough, because I would like to see the victims’ code in the Bill and very clear methods of accessible enforcement. Otherwise, we are in danger of letting down victims yet again, by suggesting a promised land that just is not coming. That would be a terrible mistake after the lengthy wait for this kind of legislation.

Similarly, victims of major incidents are too narrowly defined and their protections are too weak. They should have more ready access to independent advice and representation. I have seen that in other inquiries and compensation schemes, not least Windrush and Leveson—on which I served—and so on.

There seems to be a lot of common ground between different groups in this House and a very receptive Minister, so I hope that we can all work together to improve the Bill in Committee and beyond.

--- Later in debate ---

[Lord Bellamy (Con)]

My Lords, my noble friend makes a perfectly fair debating point—and we are debating, so it is perfectly fair that he makes a debating point—but it is a debating point at the end of the day. The point is: are you prepared to take the risk of 1,200 dangerous people being released from prison? The Government are not prepared to take that risk. We can of course discuss it further, but I am just explaining what the Government’s position is: it is better to work with those prisoners to ensure that they are safe to release eventually.

That probably takes me on to the issue of public protection and related issues. First, perhaps I may clarify what seems to be a muddle that has arisen about the statement in the Bill that it is compatible with convention rights. The Bill is perfectly compatible with convention rights: it does not take away any convention rights at all. Section 3 of the Human Rights Act is a procedural provision only, which gives the court an—to use a neutral word—unusual power to reinterpret what Parliament has said in a manner that may not have been and probably was not Parliament’s original intention so as to render a particular provision compatible with the convention.

On the provision in the Bill disapplying Section 3, which at least one member of Sir Peter Gross’s commission thought we should get rid of, and on other parts of Section 3, Sir Peter himself recommended a rather complicated hierarchy of different ways of applying the section. It has been quite a difficult section to apply. Case law has gone all over the place over the years, although it has settled down more recently. It introduces uncertainty where the Government want to have certainty in this area: that this is the test for public protection for these prisoners, that is what Parliament has said, and that is the end of the matter.

If that was found to be incompatible with the convention in any case, hypothetically, the court would have to make a declaration of inapplicability, and Parliament would have to deal with it. But the underlying issue is the constitutional balance between the courts and Parliament. That is quite an issue, and it has not gone away, but that is how the Government understand this particular point.

As regards the question of the Parole Board and all the various provisions affecting it, it is worth making the point that when these very high-risk offenders are released, they live in the community. Who speaks for the people in the community who have to live with them? Are they represented at all in this system? The only person who can represent the interests of the community with whom released prisoners have to live is the Secretary of State. All we are doing is saying that if there is some doubt about the application of the public protection test, it is wise from the point of view of the system—

[Baroness Chakrabarti (Lab)]

I am sure that the noble and learned Lord understands the irony of that statement, set against his statement that victims’ rights should not be put on a statutory, enforceable footing.

[Lord Bellamy (Con)]

I am not sure that I entirely understood the noble Baroness’s point, but it is perfectly true that I am thinking—rather, the Government are thinking; I should not put it in personal terms—about the potential victims of people who have been released and the actual families of those who have suffered at the hands of the offender. We are simply saying that there might be some very high-profile cases where it is sensible for there to be a second judicial look. That is a very much modified position from the position originally in the Bill, but it is, I hope, a sensible one.

I have used up my time, but I hope that I have covered most things. I apologise to noble Lords whose specific points I have not met. Anyone is fully entitled to write to me or ask me questions and I will, of course, answer them. If I may just finish with the words of the right reverend Prelate the Bishop of Manchester, who was kind enough to say he was going to be kind to the Bill. Let us be kind to the Bill and—