Legal Aid, Sentencing and Punishment of Offenders Act 2012 (Legal Aid: Domestic Abuse) (Amendment) Order 2024

Debate between Baroness Hamwee and Lord Bellamy

Tuesday 7th May 2024 Grand Committee

[Lord Bellamy (Con)]

My Lords, I thank the noble Lord, Lord Ponsonby, for those comments. I think that I can reply briefly. I recall that on 23 January 2023—because I reminded myself of the passage in Hansard—the noble Lord raised the example of the teacher, and I am interested that there has been a follow-up, that the noble Lord, Lord Sharpe, has advised on this and that it is complicated. The point that the noble Lord, Lord Ponsonby, is making is that, the more we make these orders, and the more we create these procedures, the more complex it becomes. That is a fair point, and it is one that I hope the Government take account of as we go along, because there are unintended consequences to some of these things.

The underlying thought is that the existing procedures, such as they are, in the magistrates’ court and with the non-molestation orders in the family courts, needed a more overall approach. The family courts needed additional powers to order tagging and various other powers that, for the moment, are reserved to the criminal courts—so we have a comprehensive scheme, but exactly how it works is still to be worked through. In that connection, my understanding is that there will be a more detailed pilot, which apparently includes Croydon, Greater Manchester and the London Boroughs of Sutton and Bromley, as well as—for some reason—the British Transport Police, to work through some of those issues and the best way to deliver the legal support that is so important in these areas.

I entirely welcome and support the noble Lord’s comment that legal advice for all parties here is very important. I am not completely sure that the teacher in the example given would have qualified for legal aid, but at least there is now a structure there that should enable people to have legal advice on a wider scale than has hitherto been the case, now that we have plugged that gap.

That is probably as far as I can take it at the moment—save again to say that, as we create all these different procedures, processes and possibilities, up to a point we risk bogging the system down in all kinds of other complexities. That is, I am afraid, the cost of proceeding down this road.

[Baroness Hamwee (LD)]

I had expected to be able to continue doing what I was doing while the debate on this order took place but I was fascinated by the example that the noble Lord, Lord Ponsonby, gave. I would just make the rather obvious point about the importance of wide consultation when arrangements are being brought in, in order to avoid the unintended consequences to which the noble and learned Lord referred. Nobody can have enough imagination to anticipate all the intended consequences or consequences that might be less desirable than others but I have noticed recently that, for a number of SIs, the Explanatory Memorandum has said that there has not been any consultation because it has not been necessary.

[Lord Bellamy (Con)]

I am sure that the noble Baroness’s point is well taken. I very much hope that the pilots I mentioned will sort out the unintended consequences, or at least minimise them.

Victims and Prisoners Bill

Debate between Baroness Hamwee and Lord Bellamy

Report stage
Tuesday 16th April 2024 Lords Chamber

[Lord Bellamy (Con)]

I am quite happy to accept the noble Lord’s invitation to have a conversation with the Domestic Abuse Commissioner to explore her experience and see whether it is transferable to what we are discussing here.

[Baroness Hamwee (LD)]

My Lords, I hesitated to intervene in this debate, but with the leave of the House I will add a thought for the Minister. Keeping training up to date is important because the understanding of the issues is developing quite dramatically. Nobody would have identified the acronym VAWG not that long ago and our understanding of what comprises violence against women and girls, for instance, is developing very fast.

[Lord Bellamy (Con)]

The noble Baroness, Lady Hamwee, as always, made a very pertinent point: we must have up-to-date training. Both learning and knowledge in this area are developing very quickly. That is quite a challenge for the authorities, but we should meet it— I fully accept that. Of course, under the compliance framework, there are powers to issue non-compliance notices and to understand why agencies are falling down. Almost certainly, a lack of training will be an explanatory factor in underperformance, so that will be overseen by Ministers, the criminal justice agencies and the Victims’ Commissioner.

Victims and Prisoners Bill

Debate between Baroness Hamwee and Lord Bellamy

Committee stage
Monday 26th February 2024 Lords Chamber

[Lord Ponsonby of Shulbrede (Lab)]

My Lords, we also support this group of amendments. I want to reiterate the points made by my noble friend Lord Bach. You could not have had two more eminent Members of this Committee to table these amendments. The noble and learned Lords, Lord Burnett and Lord Thomas, are familiar with these types of decisions. I do not think I can add to the weight of the arguments put forward by the noble and learned Lord, Lord Burnett.

The only point I will make is about process. If the Minister says that he wants to think about this—I do not know what he is going to say—then it would be very helpful to know his thoughts before Report. From what I have heard of the argument, it seems that the Government have an uphill battle trying to defend the current position. If the Government are minded to think about this again, we really need to know what that is before Report.

[Lord Bellamy (Con)]

My Lords, the amendments proposed by the noble and learned Lords, Lord Burnett and Lord Thomas of Cwmgiedd, would mean that parole referrals under the new power in the Bill would be sent to the Divisional Court of the King’s Bench Division, which is part of the High Court, instead of the Upper Tribunal, which is currently used for most cases—although not for national security cases.

Noble Lords know that the Bill introduces a new power to allow the Secretary of State to refer a top-tier case—that is a case where the index offence was murder, rape, causing or allowing the death of a child, or serious terrorism—for a second check by an independent court if the Parole Board has directed release. The question is which court that should be. Noble Lords may recall that at one stage it was suggested—I think by a Select Committee—that it should be the Court of Appeal Criminal Division. The Government consulted the Judicial Office in June 2023. The result of that consultation was that a preference was expressed for the Upper Tribunal to hear those cases. The Upper Tribunal has wide-ranging powers under Section 25 of the Tribunals, Courts and Enforcement Act 2007, facilitated by the Upper Tribunal rules, which essentially gives it the same powers as the High Court. It has experience of hearing oral evidence. The Government’s view, in the light of the consultation with the Judicial Office, was that the Upper Tribunal was the appropriate court.

None the less, the Government feel that it is obviously desirable to sort this issue out in a sensible way and I am very happy to consider it further. I am even happier to say that the Government’s reflections will be shared before Report, so that everybody can consider their position. There should not be any particular controversy on this kind of point; it is a rather specialised point, if I may put it like that.

I turn to the amendments tabled by the noble Baroness, Lady Hamwee, and spoken to on her behalf by noble Lord, Lord Marks. The Government entirely agree with her that the processes ahead of us and how we are going to manage it should be very fully understood by all actors. I will briefly explain how the Government see things at the moment. First, the procedural elements of the new process may require amendments to the Parole Board rules and the tribunal rules—or the rules of whatever court we determine. That must be scrutinised by Parliament and go through a period of consultation. There will have to be a period of training of judges. We know that the referral process will need to be transparent and speedy. Work is currently in train as to how far this will be operationalised from the point of view, first, of maintaining public confidence and, secondly, on what basis the Secretary of State refers things to the relevant court—to use a neutral phrase for the time being.

Currently, the Government are working through exactly how the relevant tests would be applied. The Government propose to publish their policy on how the legislation will be applied, outlining how cases will be selected for referral and ensuring that prisoners, and importantly victims, are fully informed of who will be in scope. I envisage a transparent and open process by which the details of the new regime are sorted out.

[Baroness Hamwee (LD)]

Could I follow that up before the Minister goes on to the next point? Does he anticipate that there will be consultation with the sector—it is a very big sector of course—on the various points that he has quite rightly referred to? That would go down rather better and be much more useful than producing a policy in its final form and saying, “Here we are”. A draft policy or ideas for consultation would be welcomed.

[Lord Bellamy (Con)]

My Lords, I hear what the noble Baroness says, and it sounds entirely reasonable. I cannot, at the Dispatch Box, go any further than I have already gone, but the point is well made.

On that basis, I hope the Committee will be satisfied that the Government intend to be fully transparent and work co-operatively with the development of this new process.

Victims and Prisoners Bill

Debate between Baroness Hamwee and Lord Bellamy

Committee stage
Wednesday 31st January 2024 Lords Chamber

[Lord Bellamy (Con)]

If I may say so, sometimes one is in the middle of the flow of one’s argument and people jump up and down when one has not quite finished explaining the overall framework. The essential problem here is not the code itself, as the noble Baroness, Lady Chakrabarti, kindly said—it is not a bad document, I venture to suggest—but a lack of awareness, police not doing their job and nobody knowing quite what should be done if that were to happen. The idea behind the basic framework of this legislation is to force the relevant bodies to take steps to comply with the code. That is why Clause 6 says:

“Each criminal justice body which provides services … must … take … steps”


and “must … keep under review”. Clause 7 provides that they must provide various activities, et cetera, and must collect information, that a local policing body must do this, that and the other and that the various constabularies referred to later must do these things. The idea is that we have a code and a framework, and we must make sure that the bodies responsible for enabling victims’ rights do so.

In the Government’s view, you do not materially increase the likelihood of them doing so by putting the code into a schedule, any more than you increase that likelihood—to deal with another point—by converting a “should” into a “must”. That is another bit of fine tuning. The principles of the code are set out in Clause 2; for example, that you “should provide information”. You could say that you “must provide information”, but that does not really change the enforceability unless you have a whole statutory framework for what the information should be, who should provide it and how it is to be done. That is all in the code at the moment, where it should be.

I do not want to refer again to angels dancing on pins, but I think we are slightly at cross-purposes as to what we mean by things “in law”, “legal enforceability”, or “statutory codes”. That is the Government’s basic position on this.

[Baroness Hamwee (LD)]

I do not want to stop the Minister when he is in full flow. I understand how difficult it must be when people leap up because he has a comma in the middle of a sentence.

It seems to me the Minister has already conceded the next group of amendments, which are about compliance and data monitoring. Can he remind us why in Clause 2 it is “should”, not “must”, since he has just cited and relied on other clauses which use “must”? I do not know whether I have elevated myself to the status of an angel with that.

[Lord Bellamy (Con)]

I think the short answer is that the purposes of those later clauses is to impose a statutory duty on the relevant bodies. The purpose of Clause 2(3) is to set out the principles. In terms of these, the Government’s view is that “should” is a more appropriate word than “must”, because the principles are very broadly expressed. Noble Lords might argue that “should” and “must” are almost interchangeable. I think we are again drawing really fine distinctions.

Perhaps I could just deal with two or three other points that arise on this part of the Bill. One is the question of the affirmative procedure as against the negative procedure. If I may say so, at the moment the code is subject to the negative procedure. Noble Lords can pray a resolution against it—of course there is going to be a debate in Parliament. I would respectfully suggest that it is more flexible than our somewhat—on some occasions at least—torrid debates in the Moses Room on affirmative resolutions. Noble Lords cannot change anything, it is very formalistic, and I respectfully suggest that making it an affirmative resolution is not a material improvement.

To keep the whole structure flexible and adaptable—I have used various words beginning with “a”, and I think I could add “adaptable” to this cohort—the Government suggest that it is not a useful move to put the code without the accompanying description in the statute itself; that in itself has no material effect on the Government’s view.

Victims and Prisoners Bill

Debate between Baroness Hamwee and Lord Bellamy

Committee stage
Wednesday 31st January 2024 Lords Chamber

[Baroness Hamwee (LD)]

My Lords, I am quite a localist normally, but is this not the very point? A single point of contact that is not prescribing what is available locally but is “signposting”—to use the right reverend Prelate’s word—should be provided, so that any victim, anywhere, will know where to go. They might not necessarily take the step of taking advantage of it, but it seems to me pretty central to the way services are made known that something such as this should go into the Bill.

I should also say that my noble friend Lady Brinton was trying to email me something, but it has not come through, so she may have another point.

[Lord Bellamy (Con)]

I shall not be attempting to answer the email that has not yet come through until it does, but my general answer to the noble Baroness is that the whole thrust of the Bill is that each criminal justice body must take reasonable steps to promote awareness of the victims’ code among users of those services and other members of the public, et cetera. I cannot conceive how you could discharge that duty of raising awareness without informing people how to access or go to whatever services they need, so it is implicit in the operation that that sort of information will have to be provided. The way in which it is provided and the detail of it is not for the Bill but for the code and the guidance.

Victims and Prisoners Bill

Debate between Baroness Hamwee and Lord Bellamy

Committee stage
Wednesday 24th January 2024 Lords Chamber

[Baroness Hamwee (LD)]

My Lords, I did not quite catch what the Minister said when referring to Clause 1(2)(a). Was he saying that a child who is the child of a victim of modern slavery will fall within

“seen, heard, or otherwise directly experienced”?

I am not sure what “directly experienced” extends to. Is his argument that the child of a victim of this particular crime would fall under Clause 1(2)(a)? I am sorry; the Minister talked about it but I did not quite hear.

[Lord Bellamy (Con)]

My Lords, I think that is the Government’s position. In most cases the child will experience the effect of criminal conduct, that being the effect on the mother. That is a sufficiently direct nexus, as it were, to bring it within the scope of the clause.

Non-custodial Sentences: Public Confidence

Debate between Baroness Hamwee and Lord Bellamy

Monday 22nd January 2024 Lords Chamber

[Lord Bellamy (Con)]

My Lords, on behalf of the Government, I entirely accept the value of the various outcomes that the noble Lord just mentioned. We should celebrate success stories, particularly in relation to female offenders—mentioned by the right reverend Prelate a moment ago—and youth offenders. As the noble Lord just indicated, there are far more options for community sentences available now than there used to be. There is tagging, alcohol tagging, alcohol treatment and drug treatment. Quite a range of possibilities are therefore open to the court, combined with the national drug strategy being run by the Department of Health to get people off drugs. I cannot promise to ensure increased capacity, but the Government are certainly working to that end.

[Baroness Hamwee (LD)]

My Lords, speaking not just from these Benches but as chair of the Justice and Home Affairs Select Committee, we found it persuasive that community sentences are followed by much lower rates of reoffending than custody. We know that prisons are “universities of crime”. Should this not be a message that the Government promulgate?

[Lord Bellamy (Con)]

My Lords, the actual message is, in essence, for the Sentencing Council to transmit. The Government and Parliament set the framework, the Sentencing Council sets the guidelines, and our independent judges impose the sentences. The Sentencing Council’s present guidelines emphasise that community orders can be highly positive, last longer than short custodial sentences and involve important restrictions on day-to-day liberty; and that breaching them can result in significant adverse consequences. We must entirely combat the idea that community sentences are a soft option, and that is the Government’s position.

Prison Capacity

Debate between Baroness Hamwee and Lord Bellamy

Tuesday 17th October 2023 Lords Chamber

[Lord Bellamy (Con)]

My Lords, I fully agree that there needs to be close interdepartmental co-operation in dealing with this difficult issue.

[Baroness Hamwee (LD)]

My Lords, there are many reasons why community sentences may be far preferable to custody, but they do not come without cost. They are more complex than

“cleaning up our neighbourhoods and scrubbing graffiti off walls”,

in the words of the Statement. I think the Minister agrees that services for treatments to address the mental health and addiction problems of many offenders, generally provided by the third sector, must be properly resourced, widely available and centred on each individual. The Justice and Home Affairs Committee of your Lordships’ House, which I chair, has heard evidence of their underfunding alongside the overloading of the Probation Service, which is very reliant on inexperienced staff. Can I urge the Minister and the MoJ to have consultation with the treatment providers? I commend to him the quite detailed written and oral evidence which has been given to our committee.

[Lord Bellamy (Con)]

My Lords, I am sure the evidence before and the conclusions of the committee will be borne well in mind.

Illegal Migration Bill

Debate between Baroness Hamwee and Lord Bellamy

Committee stage
Monday 5th June 2023 Lords Chamber

[Lord Bellamy (Con)]

My Lords, at this stage I do not think I can elaborate beyond the answers I have already given. This is going to be a matter for the judicial process—through the appeal process, the legal advice and the legal representation that these people have. If they can show serious and irreversible harm, then they will not be sent to these places.

[Baroness Hamwee (LD)]

My Lords, I thank the Minister for the care with which he has responded to these amendments. I do not know whether I am right, and I do not want to embarrass him, but I sensed a slight feeling of discomfort with the issues we are having to address. I applaud him for that.

It seems to me that noble Lords have been both practical and principled in this debate. I agree with the analysis about half an hour ago by the noble Baroness, Lady Chakrabarti, of the position, but the practicality has been by testing the reality of different circumstances. It was the noble Lord, Lord Coaker, who said that, when faced with the situation of somebody one knows well being in this precarious position, it all looks very different. I agree; it is rather similar to feelings about people who come from other cultures. We are suspicious of them—“But not So-and-so—no, she is fine”.

On Amendment 30, I will read the report of what the Minister has said. I was not challenging most of subsection (4). It was simply the discretion, and I take what has been said about the Secretary of State having to act reasonably and so on. Subsection (5), however, says that “exceptional circumstances include”. That, to me, raises questions about what might not be included on the face of the Bill.

The Minister is quite right that I was trying to read “prevent” as someone being put at risk, and I think the Bill should say so because a person is prevented from being removed only if, in his individual case, he falls within the exceptions. That is not the natural understanding of the term. I have to say that I remain very concerned about the issue of a part of a country. A conflict in one part of a country can spread very fast, and can the risk to an individual—if he is persona non grata in one part of the country, that can become known in another part of the country very easily—and we are talking about individuals.

I am still a bit confused about “in general”. I understand that the lists we have are an amalgam of previous lists. The Minister defends the position—I think I am right in saying—by referring to procedures that can be used to challenge a decision. We are going to get to some more of this later in the Bill, but noble Lords have already shown their concern about the very narrow circumstances in which challenges—if I can use the term broadly—can be made.

A couple of things have come up in the Minister’s response that have made me think again about these. I would have mentioned some in any event, but I sure that noble Lords will understand that I am, at this moment, speaking a little bit slowly for reasons of time. If there is to be a negotiation about a home country and whether to have a negotiation with that country, does that actually raise the risk of drawing the individual to the attention of the authorities in that country and putting that person in greater jeopardy than he may have been?

The notion of acceptance by the receiving country has also been raised. I do not know whether the Minister can answer this tonight; if he can take a couple of minutes to do so, it would be helpful. If the UK and other countries are going to say, “Will you accept this individual?”, does that not, again, put that individual in jeopardy, because the reason for his having sought asylum in the UK will become known? We are in Committee, so the Minister is free to reply if he can help at this point.

[Lord Bellamy (Con)]

My Lords, I expect that I am being asked to play a sort of night watchman role in continuing the batting until stumps are drawn. As far as I know, it is not the case that the Government intend to engage in negotiations in relation to particular individuals. The Government’s general policy is to engage in discussions with particular countries about reciprocal arrangements and migration partnerships. There are various reports of other countries that are currently engaged in discussions.

Subject to correction—I am sure my noble friend Lord Murray will put me right—I think it is very likely to be the case that a lot of what we have discussed tonight in relation to Ghana, Nigeria and Uganda is simply not going to arise. I know that the noble Lord, Lord Cashman, and others are sceptical about that and it may be that the Government need to provide some further reassurance to satisfy noble Lords. Perhaps the noble Baroness will forgive me for noticing the time.

[Baroness Hamwee (LD)]

I am grateful to the Minister. That has raised further issues in my mind about what information may be given—not necessarily about an individual—to a receiving country, whether the questions may be asked and how the UK responds.

I think stumps probably can be drawn, though it is not in my gift to say so. I beg leave to withdraw Amendment 30.

Domestic Abuse: Defence for Victims who Commit an Offence

Debate between Baroness Hamwee and Lord Bellamy

Tuesday 21st February 2023 Lords Chamber

[Lord Bellamy (Con)]

My Lords, I too am appalled and shocked by the existing situation. But I submit that we are making quite good progress with the 2021 Act, the Home Office review and much greater awareness among the police, the CPS and the judiciary. We are also working with women in prison on these various issues.

[Baroness Hamwee (LD)]

My Lords, as the Minister is unable to answer the question about the timetable for the appointment of the Victims’ Commissioner, could he at any rate take back the importance of a Victims’ Commissioner being in post, especially at a time when we are considering so much which should be considered from the point of view of victims?

[Lord Bellamy (Con)]

I will of course take that back.

Bill of Rights

Debate between Baroness Hamwee and Lord Bellamy

Thursday 23rd June 2022 Lords Chamber

[Lord Bellamy (Con)]

I thank the noble Lord for his comments, with which I respectfully and very largely agree. Freedom of speech is, of course, a keystone of our constitution. That is what the Act is intended to reinforce. On journalistic sources, the Bill’s wording is intended to make it plain that when a balance has to be struck, as it occasionally does, on revealing journalistic sources, then “great”—I think that is the word— but predominant weight is given to the protection of journalism, which is so essential to free speech in our society.

[Baroness Hamwee (LD)]

My Lords, I wonder whether the Minister, whom I too welcome to his position, can unpack a sentence in yesterday’s press release, issued at the time of the Bill’s publication. It says:

“The Bill will ensure courts cannot interpret laws in ways that were never intended by Parliament”.


That seems to be about something different from compatibility. It is not about ambiguity in legislation, where there might be a Pepper v Hart issue. Is this a suggestion that the courts should be reading parliamentarians’ minds if they have not managed to express themselves properly?

[Lord Bellamy (Con)]

It is always difficult to read parliamentarians’ minds; that is absolutely true. I think the noble Baroness is referring to Section 3 of the present Act, which specifically asks the court to rewrite legislation—to change what Parliament intended. That power is being repealed.