Victims and Prisoners Bill

Debate between Baroness Lister of Burtersett and Lord Marks of Henley-on-Thames

Report stage
Tuesday 21st May 2024 Lords Chamber

[Lord Marks of Henley-on-Thames (LD)]

My Lords, the amendments in this group, Amendments 150 to 153, objecting to Clauses 49 to 52 standing part of the Bill, fall into two slightly different categories. The first three amendments, in my name and that of the noble Baroness, Lady Lister of Burtersett, who I am grateful to for her support, would remove the proposals in the Bill that Section 3 of the Human Rights Act be disapplied in relation to three pieces of legislation.

First, by Clause 49, the disapplication would apply to Part 2, Chapter 2 of the Crime (Sentences) Act 1997, which concerns life sentences and sentences of detention at His Majesty’s pleasure, release on licence for prisoners serving such sentences, and their release on licence, recall and removal from the UK, and will include all those amendments to be introduced by Clause 41 of this Bill. Secondly, Clause 50 would disapply Section 3 to Part 12, Chapter 6 of the Criminal Justice Act 2003, which concerns the release on licence, supervision and recall of certain fixed-term prisoners, and will include all those amendments to that Act to be introduced by Clause 42 of this Bill. Thirdly, Clause 51 would disapply Section 3 to Section 128 of the LASPO Act, or any order made under that section. That is the section which, as we have heard in debate at some length in Committee and earlier today, permits the Secretary of State to change the release test for certain prisoners, importantly including IPP prisoners, to shift the balance so that if conditions are met, an IPP prisoner must be released.

As will be familiar to the House, Section 3 of the Human Rights Act requires that:

“So far as it is possible to do so, primary legislation and subordinate legislation must be read and given effect in a way which is compatible with the Convention rights”.


The ECHR is fundamental to the protection of human rights in this country. That is and has long been an article of faith for my party and the Labour Party, which was responsible for enacting the convention as part of domestic law by the means of the Human Rights Act. Indeed, it is important for many but not all in the Conservative Party; we have all seen the fault-lines on this issue over the tenure of this Government. However, the present Secretary of State for Justice is a keen advocate for the convention.

The architecture of the Human Rights Act has been widely and, I suggest, rightly praised for striking the balance between the sovereignty of Parliament and the convention. That architecture has at its heart the combination of Section 3—the section I just read—which requires convention-compatible interpretation and application of legislation where possible, and Section 4, which provides for a court to make a “declaration of incompatibility” where a legislative provision is found to be irrevocably incompatible with the convention right. The making of such a declaration leaves it to Parliament to legislate so as to comply with the convention and remove the incompatibility.

It follows that the proposed disapplication of Section 3 represents an invitation, almost an instruction, to courts to disregard convention rights when interpreting or applying the legislation. This is not a purely academic point; in relation to IPPs, for example, the European Court of Human Rights found in the case of James, Wells and Lee v UK in 2012 that the applicants’ IPP sentences were a violation of their Article 5 rights to liberty and security because the unavailability of rehabilitative courses meant that their detention after the expiry of their tariff terms was “arbitrary”.

As the Prison Reform Trust put it, in its helpful briefing for this debate:

“The introduction of specific carve-outs from human rights for people given custodial sentences contradicts one of the fundamental principles underlying human rights—their universality and application to each and every person on the simple basis of their being human. Moreover, it is precisely in custodial institutions like prisons that human rights protections are most vital, because individuals are under the control of the state”.


These carve-outs represent an insidious threat to the effectiveness of the convention in this country and, I suggest, a stalking horse for future legislation, undermining the balance between parliamentary sovereignty and the convention that I spoke of. They should be resisted.

I am bound to say that I find it very disappointing that the Labour Party is not whipping Labour Peers to support these amendments. The Human Rights Act was one of the Labour Party’s finest achievements. For Labour Peers to be instructed to condone by abstention the disapplication of Section 3 to these provisions is a sad portent for the future.

Before closing, I turn to Amendment 153, which seeks to remove Clause 52 from the Bill. Clause 52 does not seek to disapply any part of the convention, but it seeks to skew the court’s decision-making process on the application of convention rights in a way that is underhand and unacceptable. It would provide that, in making a decision as to whether a person’s convention rights have been breached in relation to a release decision:

“The court must give the greatest possible weight to the importance of reducing the risk to the public from offenders who have”


been given prison sentences. In other words, risk reduction is to outweigh all other factors. But what does the instruction to give “the greatest possible weight” say to a judge? The answer is effectively that no other factor is to count. There is to be no careful judicial balancing exercise, because if the risk reduction factor can be outweighed in the balance, a judge cannot, by definition, give that factor “the greatest possible weight”. Judicial discretion is to be removed; judges are to be compelled to reach decisions that they would not otherwise make, because they may not judge for themselves what weight to give to competing factors. That is not acceptable.

I fully intended to divide the House on these amendments, but given the Labour Party’s decision not to support them but to abstain and the fact that it is now late, I have decided not to. Nevertheless these amendments raise an important point of principle for all those who believe in the convention.

[Baroness Lister of Burtersett (Lab)]

My Lords, I was very disappointed by the Minister’s response in Committee, so I felt that I ought to have another go in support of the noble Lord, Lord Marks of Henley-on-Thames, aided by the British Institute of Human Rights and Amnesty International, which were also very disappointed.

First, the Minister said that this clause is not about disapplying the Human Rights Act. Well, of course it is not about disapplying the whole Act—but not just Amnesty, the BIHR and the Howard League, but also the EHRC, the chair of the JCHR and the Law Society take the view that it is disapplying Section 3. It feels like one of those occasions when the Government is the only marcher in step.

The BIHR challenges a number of the Minister’s arguments—first, his reassurance that it is still possible to plead any breach of human rights in the usual way and to seek a declaration of incompatibility. It points out that the point of the Human Rights Act was to bring rights home and provide an accessible, practical and immediate remedy. The excision of Section 3 makes access to human rights harder. He said it was a “difficult section to apply”. The BIHR argues the opposite, pointing out that it is used by lay front-line workers who see it as having given them a clear legal framework for arguing for the protection of people’s rights.

Criminal Justice and Courts Bill

Debate between Baroness Lister of Burtersett and Lord Marks of Henley-on-Thames

Wednesday 30th July 2014 Lords Chamber

[Baroness Lister of Burtersett]

My Lords, I support the amendment and I also believe that the clause should not stand part of the Bill. I welcome the fact that the Government are in listening mode on this clause and that at its early stages the Minister has suggested that he is open to amending it, although I think that it would be better if it simply vanished. I put on the record that I welcome the Government’s climbdown on the question of standing. The Minister said that perhaps we had not given enough recognition to that, so I am doing so now. That was partly in response to points made by the Joint Committee on Human Rights—of which I am a member—which is very concerned about this clause. The committee said:

“Third party interventions are of great value in litigation because they enable the courts to hear arguments which are of wider import than the concerns of the particular parties to the case”;

and, as has been pointed out:

“Such interventions already require judicial permission, which may be given on terms which restrict the scope of the intervention. We are concerned that, as the Bill stands, it will introduce a significant deterrent to interventions in judicial review cases, because of the risk of liability for other parties’ costs, regardless of the outcome of the case and the contribution to that outcome made by the intervention”.

It went on to say that,

“it is not clear to us at what mischief this clause is aimed”,

a point made with regard to the previous group of amendments. The committee goes on to say:

“The Government has not produced evidence of abusive interventions or cases in which an intervention has significantly and unjustifiably increased the costs of the case for other parties”.

In contrast, the briefings that we have received include numerous examples where interventions have assisted the courts, as recognised by the senior judiciary; this point has already been made by a number of noble Lords. A number of us here attended an oral briefing recently, and I was struck by the presentation made by a representative from Just For Kids Law. It is very clear that the new rules can prevent it playing this role, thereby depriving the courts of very important specialist information about children in criminal law.

The organisation Justice regrets that the Government have made no attempt to assess the public interest of interventions. They have given no indication of the practical implications. Perhaps noble Lords will permit me to read a series of questions that Justice has asked, because I believe that they deserve an answer. It says:

“While cases of obvious time wasting by third party interveners are easily addressed under the rules currently in place, how will the court be able to determine whether additional costs are in fact attributable to an intervention? If an intervener acts within the bounds of his permission to intervene, with written and oral submissions made only as directed by the court, will they avoid costs? On the language of ‘exceptional circumstances’ proposed in the Bill, it would appear not. If an intervener provides clear, concise reasoning which clarifies the issues and saves everybody time, will saved costs be deducted from those otherwise payable by the intervener? The allocation of costs referable to an intervention is unlikely to be straightforward”.

I have already quoted from the joint briefing, in which civil society groups warn that there is a real risk that the court will lose the ability to hear from that part of civil society that represents the poor, the weak and the excluded, and to bring specialist expertise to bear. This clause will further tilt access to justice in favour of those with power and resources, who will be able to bear the costs, and against those without power and resources, who will not be able to bear the costs. This is in the context of legal aid cuts, which are already tilting this balance beyond what can possibly be deemed to be just.

[Lord Marks of Henley-on-Thames]

My Lords, as the noble Lord, Lord Pannick, pointed out, Clause 67 proposes, first, that an intervener cannot get its costs except in exceptional circumstances; and, secondly, that an intervener must pay the costs of all the parties occasioned by its intervention except in exceptional circumstances. Both of these propositions—but particularly the second—are extraordinary. They are plainly designed to deter interventions by making them possible only if the intervener can fund all parties’ costs occasioned by the intervention.

If an intervener finds evidence, all the other parties’ evidence in reply will be at the cost of the intervener. If an intervener’s counsel speaks for half a day and the other parties’ counsel reply for a day and a half, they do so at the intervener’s cost. All that is on a win-or-lose basis, so even if the intervener is proved right and the government department or departments are proved wrong, and even if the judge has been greatly assisted by the interveners, the interveners will still pay all the parties’ costs occasioned by the intervention. This is against the background that, far more often than not, interveners do indeed help the court. After judgments, one frequently sees judges expressing their gratitude for the assistance of interveners, who, as has been said, often bring a broader experience to a particular judicial review application than an individual applicant can bring. The Committee was greatly assisted by the first- hand evidence of the noble and learned Lord, Lord Carswell, as to how helpful interventions often are.

The arguments in favour of this clause appear to be based on the proposition that interveners are often campaigning organisations with an agenda that is—in the widest sense of the word, at least—political or quasi-political. So they are, but such campaigning organisations have considerable expertise in their fields, as noble Lords have pointed out, and noble Lords benefit regularly from briefings from such organisations. If those interventions lack merit, the courts already have discretion to make orders for costs accordingly. However, these provisions would threaten not only the right to intervene but also the ability of the organisations which currently intervene habitually in judicial review cases to raise funds for their activities. That is a threat, I suggest, to the functioning of civil society. I will not name particular organisations because a number have already been named in this debate. I believe that to inhibit the activities of those organisations would be profoundly wrong. I do not believe that any body of credible evidence has been advanced in support of this clause to support the proposition that interventions have caused a problem that needs correcting. Still less do I believe that the courts’ existing powers to make costs orders are inadequate.

Our Amendments 74A, 74C and 74D preserve the courts’ general discretion to order a party to pay an intervener’s costs if the courts consider it just to do so. Amendments 74H and 74K preserve the general discretion of the courts to order an intervener to pay another party’s costs. I can see no possible basis, in either justice or common sense, to interfere with the existing court process and to deter interventions in the way that Clause 67, as drafted, is bound to do.