Non-custodial Sentences: Public Confidence

Debate between Baroness Chapman of Darlington and Lord Bellamy

Monday 22nd January 2024 Lords Chamber

[Lord Bellamy (Con)]

My Lords, I am not aware that the Government are arguing for ever longer sentences. On the contrary, the sentencing Bill that your Lordships will shortly consider has a presumption to avoid prison sentences in certain circumstances—particularly short sentences. As far as murder is concerned, the statutory sentence is life imprisonment. That is not a matter for the Government. The time one serves as a sentence for murder is a matter for the Sentencing Council guidelines. I think I would accept—as the Justice Committee accepted—that it is true that public opinion in recent years seems to have moved towards heavier sentences for serious crime. But I do not accept that, as my noble friend suggests, that overrides rehabilitation in all circumstances.

[Baroness Chapman of Darlington (Lab)]

My Lords, pre-sentence reports are vital to improving the effectiveness of community sentences. They allow courts to tailor sentences, and give sentencers confidence that the interventions they are recommending are not only suitable but available in their area. Worryingly, according to the Justice and Home Affairs Committee, the number and quality of pre-sentence reports prepared by the Probation Service has been declining dramatically—thanks in no small part to the disruption caused by the Government’s ill-judged attempt to privatise the Probation Service. Given that good pre-sentence reports and good sentencing decisions go hand in hand, what are the Government doing to reverse this decline?

[Lord Bellamy (Con)]

My Lords, I agree entirely with the noble Baroness on the importance of pre-sentence reports. As I just said, the Government have put a great deal of investment into the Probation Service to, among other things, restore and improve pre-sentence reports. The Sentencing Council consultation—open now and completing in February—indicates that pre-sentence reports should be available in all cases except where the likely outcome is a fine or a conditional discharge. Once again, the Government are addressing the question the noble Baroness raises.

Parole Board Recommendations: Open Conditions

Debate between Baroness Chapman of Darlington and Lord Bellamy

Thursday 25th May 2023 Lords Chamber

[Lord Bellamy (Con)]

My Lords, those decisions were all taken on the merits. I repeat that it is an operational matter which prison the prisoner should be in. That is quite distinct from the question of whether a prisoner should be released, which is the primary role of the Parole Board.

[Baroness Chapman of Darlington (Lab)]

My Lords, the principal reason that people are worried about this is because they believe that release straight from closed conditions and high security conditions increases the risk of reoffending and that a period in open conditions is very helpful in reducing that risk. Will the Minister return to the House at a future date to inform us of what has happened as a consequence of the decisions taken by the Secretary of State? Preventing a period in open conditions does not prevent release. All it does is prevent preparation for release.

[Lord Bellamy (Con)]

My Lords, I am entirely happy to give the House whatever information it requires at any time, and I fully accept that a move to an open prison is potentially one aspect of a prisoner’s progression towards release, but in modern thinking, it is not the only route. A number of closed prisons operate prisoner progression programmes towards release direct from closed prisons, and those relatively new programmes are enjoying results. Several hundred prisoners are released every year from those closed conditions without, as far as I know, any evidence that that poses a risk to the community.

Retained EU Law (Revocation and Reform) Bill

Debate between Baroness Chapman of Darlington and Lord Bellamy

Committee stage
Monday 6th March 2023 Lords Chamber

[Lord Bellamy (Con)]

As far as I know, this is not intended to be prejudicial, but it presupposes a case where there is a tenable argument and it is put to the court that a retained EU law has that effect. Then the court will decide whether it does and what would be the proper development going forward. Taking that intervention on the hoof as it were, I am not sure at first sight that one is convinced that it would be better to change the wording. Let me reflect further.

[Baroness Chapman of Darlington (Lab)]

I am looking at the same clause as the noble Lord, Lord Kerr. He asked about new subsection (5) (c). I shall ask the Minister about new subsection (5ZA)(a), in which the courts are being asked to consider

“the extent to which the retained domestic case law is determined or influenced by retained EU case law from which the court has departed or would depart.”

If we are not encouraging courts to depart, why would we be asking them to consider the extent? That seems to raise a question, given what the Minister has just said.

[Lord Bellamy (Con)]

If I may say so to the noble Baroness, I think this is just a drafting point. The extent may well be nil. There is no particular reason to suppose that the retained EU case law in a particular case is restricting the proper development of domestic law. That was the situation, as it turned out, in the Warner music case, although at least one learned justice in that case very pointedly left open the possibility of further developments in a fast-moving technology.

[Baroness Chapman of Darlington (Lab)]

I was not referring to the proper development of domestic law on this occasion. At the top of page 6, we seem to be asking courts to consider the extent to which EU case law “determined or influenced” in and of itself rather than about the “proper development” which is in new subjection (5)(c). I wonder whether that is, to use the language used by the noble Lord, Lord Kerr, prejudicial or leading the court.

[Lord Bellamy (Con)]

I think I can take it not much further than the answer that I have just given—that the extent may well turn out to be nil.

[Baroness Chapman of Darlington (Lab)]

But why are we asking courts to ask themselves that question?

[Lord Bellamy (Con)]

The answer is that the courts will not raise these questions of their own motion. These points will be raised by a party to the proceedings. Then the party to the proceedings will argue that this retained domestic law is influenced by EU case law and is now having—or may have in five or 10 years’ time—a restrictive effect that is holding up the common law. Those are the kinds of circumstances that it envisages, I think.

[Baroness Chapman of Darlington (Lab)]

I think the Minister was about to sit down, but he kindly invited me to respond so I will. I think that is the problem. He must surely understand that we anticipate this leading to an enormous amount of uncertainty—if that alone is something a party in the court is able to point judges towards and say that, because the case law came from the EU, in and of itself that is a reason to ask for a decision to be made in a different way.

[Lord Bellamy (Con)]

Respectfully, as I said a moment ago, I do not accept that this will lead to a great deal of uncertainty. It is binding on the courts of first instance. No one is going to take this to appeal unless there is a real point to be argued. If there is a real point to be argued, it is right that that our courts of appeal and higher courts should consider that point.

Perhaps we have had sufficient exchanges on this topic and I ought to move on as best I can. Finding my place in the notes, I think I have not answered the concerns raised about what we mean by “changes of circumstances” and how we manage that. Again, this is a matter that the common-law courts are very well equipped to deal with and they can decide for themselves whether there has been any relevant change of circumstances or, in particular, whether the change of circumstance is relevant.

I would not have thought that a change of government or a change in the political wind is a relevant change of circumstance. What you need is some circumstance that makes it either difficult to operate, or less than ideal to be bound by, a particular judgment of the European Court of Justice that may have been made many years ago. It may now be completely out of date or may have failed to take account of various factors that the court feels should be taken account of. Very often in a common-law system, when you look at a case and at previous decisions, you see that the particular point had not in fact been decided and you are therefore free to decide it yourself. That is much more difficult to do in a European system, which purports to lay down perfectly general principles.

If I may trespass on your Lordships’ kindness for a moment, it is often quite interesting to look at the summary of a European Court judgment, which in English terms would be referred to as the “headnote” of the case. It extracts principles from the judgment. The equivalent headnote in an English case says: these are the facts, and this is what the decision was on these facts. That encapsulates a difference of approach, thought and philosophy as to how you develop the legal system.

As I said a moment ago, I am not saying that it is better or worse; it is just different. Historically, we in this country belong to a huge family across the world that uses this technique, whether in the United States, Canada, Australia, India—very prominently—or otherwise. The Government are simply saying that we should not forget that we have a great legal tradition and we do not have to, as it were, slavishly follow the latest emanation from those very hard-working, very able, but not necessarily relevant to us, judgments and judges in Luxembourg.

--- Later in debate ---

[Lord Bellamy (Con)]

That is quite all right.

This is the logic of the approach. It is a cross-UK approach and not a Scotland-specific approach. It does not seem appropriate that the previous functions of the Lord Advocate, so far as they have been retained, should change.

[Baroness Chapman of Darlington (Lab)]

Could the Minister speak louder?

[Lord Bellamy (Con)]

I am sorry. I was saying that this is a structure that gives the UK law officers power in relation to UK competence and the devolved Governments power in relation to their competence. That is the structure of it all.

Amendment 101, on the question of incompatibility orders, is described as a probing amendment. Again, this has precedence in other parts of the statute book. The Judicial Review and Courts Act 2022 has a similar power. If there is a point of incompatibility, the courts are given a power to manage that; it would probably mean deferring making an order for six months until the Government could fix it, as did the Court of Appeal in the Open Rights Group v The Secretary of State for the Home Department and the Secretary of State for Digital, Culture, Media and Sport: we have found a problem, and we are going to give you time to come up with solution, whether it is legislative or otherwise. In that particular case, the power was said by the Court of Appeal to derive from EU powers, but this is giving the court power under domestic legislation. I hope it is a sensible process for making the compatibility mechanisms work properly if incompatibility is found, which is likely to be a fairly rare event. I hope I have covered most points, if not all.