Police, Crime, Sentencing and Courts Bill

Baroness Scott of Bybrook Excerpts

Lords Hansard - part one & Committee stage
Monday 22nd November 2021 Lords Chamber

[Baroness Scott of Bybrook (Con)]

My Lords, we will do one more group before the dinner break. I remind noble Lords that we have to get through 14 groups today. That means that we have nine more. Can we try to be a little briefer so that we can get on? We have only one more day on this Bill, so we need to get as far as possible tonight.

Amendment 280

Moved by

Queen’s Speech

Baroness Scott of Bybrook Excerpts

Thursday 13th May 2021 Lords Chamber

[Lord Anderson of Swansea (Lab)]

My Lords, I follow the diversity theme of the right reverend Prelate and join in welcoming and congratulating our two maiden speakers.

A week ago—it seems a long time ago now—we had elections in Great Britain. I personally sought solace in turning again and again to the Welsh results. But, in retrospect, the big story from the elections may not be the performance of the parties but what the polls revealed about the deepening diversity in our country. Of course, the polls were influenced by the pandemic, and the incumbency factor played a role, but it does only continue a trend. The polls in Scotland and the north-east dominated the headlines; by contrast, Wales was relatively neglected. Obviously, the pressure for independence in Wales is much less than it is in Scotland, but it has doubled to just about one-third over the past seven years. However, the different national and regional responses are not reflected in this Queen’s Speech.

The Prime Minister promised a levelling-up process. The so-called red-wall seats were addressed, with more public money and more decentralised government departments. New assurances were given, and it is hoped by the Government that the same tactics will now succeed in Scotland. However, they ignore the problem of identity, which in my judgment goes much deeper. It is not just about increasing the flow of public money from the south to the north; it is not even about looking for greater flows from the south to the west, although that is of course important.

In that context, I invite your Lordships to examine the indices of poverty and deprivation in the nations and regions as a whole. In that examination, your Lordships will see that Wales is worse off than the north-east and certainly far worse off than Scotland. The facts speak for themselves. Wales has a lower GDP per head than any other country or region of the UK, the lowest growth rate of any region in the UK, the lowest proportion of taxpayers in the additional and higher rates, and the joint-highest proportion of low-income households. It is also the poorest region in terms of gross household disposable income per head. So much for levelling up. Should we shout louder? Should we have more marginal seats to be addressed? It is not just about the money side of things. Wales deserves better. It should not be taken for granted by a Prime Minister who plays for time in Scotland and has increased centralisation by taking to Whitehall powers and money that were repatriated from Brussels.

However, resources are not everything. The Prime Minister, an English nationalist to the core, ignores the problems of identity. Wales has clearly taken up the mantle of Welsh identity and the SNP dominates in Scotland, as the noble Lord, Lord Kerr, emphasised. Are we in the UK now sleep-walking into a quasi-federal state without the constitutional institutions and safeguards that support it? Today’s debate has been set aside for the question of our constitution and the union, but in fact says little of relevance about either. The Minister mentioned only electoral reform and judicial review.

Her Majesty said:

“My Government will strengthen and renew democracy”


and

“promote the strength and integrity of the union.”

That was wholly vacuous and without specific proposals. If the Prime Minister wishes to save the union, he must adopt a more imaginative and sensitive approach. He should let the former European Union money flow directly to the devolved Administrations. He should consider new powers of devolution, such as those in the Welsh Labour manifesto. He should open the debate on the nature and composition of your Lordships’ House. He should seek to be more responsive to the nations and regions, perhaps through direct or indirect elections, and take note of what the latest Lord Speaker’s committee said about his ignoring the Burns report. Most importantly, beyond calling a meeting of the leaders to discuss the results of the pandemic, which is in itself welcome—

[Baroness Scott of Bybrook (Con)]

Can I ask the noble Lord to wind up, please?

[Lord Anderson of Swansea (Lab)]

The Prime Minister should convene a meeting of all the leaders on the constitutional problem. He should respond to what the polls have revealed, which reflects the reality of the UK today.

--- Later in debate ---

[Lord Norton of Louth (Con) [V]]

My Lords, today’s debate is billed as being on “The Constitution and the Union”. That should be “The Constitution, including the Union”. We should not see the union as some discrete issue. Part of the problem of the past century has been treating parts of the United Kingdom as somehow separate, of treating Northern Ireland as a quasi-state and leaving it to its own devices. We need to be looking more holistically at our constitution. The way to promote the union and to ensure that we remain a union is not to promise more funding or devolution of powers. That is to play into the hands of those who favour independence. We should not be in response mode, nor should we misinterpret why people wish to stay in the union.

In 2014, when an opinion poll suggested that there might be a majority in the referendum for Scotland becoming independent, all three party leaders went to Scotland and promised a greater devolution of powers if electors voted to stay in the union. When there was a majority to stay in the union, the Government delivered on that promise. Then, as now, the Government appeared to assume a causal relationship. There is no evidence that there was one. Survey data revealed that those who voted for Scotland to remain in the union did so for several different reasons; that of wanting more devolution hardly registered.

If we are to maintain the union, we need to be on the front foot, making the case for the union, not on the back foot, making promises in response to demands from those who want independence. I remind the House of the Constitution Committee’s excellent report The Union and Devolution, published in 2016. It noted the ad hoc way in which power has been devolved. As it reported:

“This haphazard approach to the UK’s constitution, in which power has been devolved without any counter-balancing steps to protect the Union, recently culminated in an existential threat in the form of a referendum on Scottish independence. An inattentive approach to the integrity of the Union cannot continue.”


We need to be making the case for the union in all parts of the United Kingdom. The attempts to keep Scotland in the union have exacerbated the English question. The Government should be to the fore in trumpeting the benefits of the union—one constitutional entity under the Crown. As my noble and learned friend Lord Stewart was saying, the whole is far greater than the sum of the parts. The case also needs to be made for moving away from what has been characterised as a grace-and-favour approach to the devolved nations and adopting one of mutual esteem and participation. I welcome especially the report of my noble friend Lord Dunlop. We need not more legislation but an attitude shift on the part of government.

In the short time available, I cannot cover all the constitutional measures in the gracious Speech, but I want to make one point about the constitution. As we have heard, there will be a Bill to replace the Fixed-term Parliaments Act. That Act is generally unloved and was the product of a rushed attempt to deal with a particular problem. It was agreed by negotiators who were not necessarily experts in constitutional matters. As the Constitution Committee noted, the policy behind it

“shows little sign of being developed with constitutional principles in mind.”

Both the Government and Opposition are committed to replacing the Act. As we have seen with the discussion on the Government’s draft Bill and as the noble Baroness, Lady Taylor, indicated, putting the situation back to what it was before September 2011 is not a straightforward task.

The 2011 Act was one of several constitutional measures over recent decades. They have been notable for their number as well as for being disparate and discrete. We need to be wary of rushing in with more. I have made the case before that we need to stand back and make sense of where we are before we embark on further constitutional change. We should not be talking of restoring balances without being clear as to what the existing balance is and should be. Change should be the result of considered reflection and, for a Conservative Government, grounded in a Conservative narrative for democracy. We need to avoid repeating the mistakes of those responsible for the Fixed-term Parliaments Act.

We need to stand back and understand the nature and value of our constitutional arrangements and make the case for those arrangements. We need to ensure that we do not lose the value of what we have. Once lost, it is difficult, if not impossible, to recreate.

[Baroness Scott of Bybrook (Con)]

My Lords, perhaps I may suggest that we try and keep to the five minutes advisory time. If not, we are going to run extremely late in this debate.

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[The Duke of Montrose (Con) [V]]

My Lords, it is a great pleasure to follow the noble and learned Lord, Lord Morris, with his authority and perspective from a devolved part of the United Kingdom. The topics that we are asked to address today, from the gracious Speech, need our urgent consideration. I listened with much interest to the noble and learned Lord, Lord Judge, picking apart some of the suggestions, and I hope that the Minister will be able to fill in a little more about what rebalancing the Executive, legislature and judiciary might entail.

I am grateful to my noble friend Lord Strathclyde for introducing the question of the purpose of the House of Lords. Once again we are entering a period where our concept of what purpose the House of Lords is meant to serve will be vital. We have always had in the other place a House of the people. My understanding is that the original criteria for membership of this House meant that it was to be composed of those with experience of administration. I hope the noble and learned Lord will forgive me if I sum it up as a gathering of the bishops, the barons and the beaks.

There is also a desire for continuity. As the Senior Deputy Speaker reminded us today, this is important when we consider the innovations in our experience of a virtual Parliament and whether they are worth preserving and, not so far in the future, the changes that will be brought about during the restoration and renewal programme.

The noble Lord, Lord Kerr, referred to the Act of Union 1707. My ancestor then was president of the council of the Scottish Parliament, which promoted the Bill which became the Act of Union. This, as we have learned, prompted the Scottish Lord Chancellor of the day to wind up the proceedings with the words “Aye, there’s ane end of ane auld sang”. As it is, history has not proved him correct, and since the establishment of the devolved Scottish Parliament the song is coming back again. For better or for worse, my family has been involved in various renderings of that song from the Declaration of Arbroath in 1320, which was resisting the depredations of Edward I, the Battle of Flodden, the signing of the Scottish National Covenant in 1638, which was resisting the insistence of Charles I, and so on. Even more recently, my grandfather was involved in bringing together two strands of Scottish nationalism to form what has now become the Scottish National Party.

The presence of hereditary Peers in this House can be traced back to this early history. In those days, the need to own property meant that Members had a connection to and could represent all parts of the country. They were required to provide military support to the Crown. Not only that, in the absence of any civic structure, they provided the planning and direction of construction and development, rudimentary concern for the needs of the local population and, in the early days, the dispensing of justice. Their presence gave an element of continuity. Whatever offices of state or other monetary income they received could be seen to have some bearing on all these responsibilities. The weakness of this system, which some noble Lords may like to remind me of, is that some tended to go for self-aggrandisement first. We have only to look at the speech of the noble Baroness, Lady Hayter, to see how rigorously we now police the safeguards in this regard and see that they are maintained. Fortunately nowadays many of these functions have been taken over by institutions that are answerable to some portion of the public at large and can be judged for their effectiveness.

The noble Lord, Lord Grocott, is concerned first and foremost with the excessive numbers in our House. What is not settled is what elements of the historical attributes should be reflected in the second phase of the reform. That is what I, as one of the elected hereditaries, am waiting to hear. Perhaps the ex-politicians like to feel that they can provide this. That may be true for ex-Ministers, but the recent role of many who come in from that source has been largely as observers and commentators from the sidelines. I, of course, realise that the position of hereditary Peers on their own may not be a great priority for my noble friend—

[Baroness Scott of Bybrook (Con)]

Could my noble friend wind up, please?

[The Duke of Montrose (Con) [V]]

—but, as we go into other constitutional questions, it may well come into play and some discussion of the purpose of this House will be essential.

Fatal Accidents Act 1976 (Remedial) Order 2020

Baroness Scott of Bybrook Excerpts

Thursday 3rd September 2020 Grand Committee

[Baroness Scott of Bybrook]

That the Grand Committee do consider the Fatal Accidents Act 1976 (Remedial) Order 2020.

Relevant document: 4th Report from the Joint Committee on Human Rights

[Baroness Scott of Bybrook (Con)]

My Lords, I am afraid that the noble and learned Lord, Lord Keen of Elie, is unable to be here so I am taking this order through on his behalf.

This draft order seeks to rectify an incompatibility with the European Convention on Human Rights identified by the Court of Appeal in the 2017 case of Jacqueline Smith v Lancashire Teaching Hospitals NHS Trust and others. This relates to limits on the categories of person eligible to receive an award of bereavement damages under Section 1A of the Fatal Accidents Act 1976, which excludes a person who has cohabited with the deceased person for a period of at least two years immediately prior to the death.

The draft order was laid in Parliament on 12 February 2020 and was approved by the House of Commons on 15 June, so this debate represents the final stage in the parliamentary process, after which it will become law. As noble Lords will be aware, the terms of the Human Rights Act 1998 in relation to remedial orders require the order to be strictly focused on rectifying the incompatibility that has been identified; it cannot extend to addressing wider issues.

The bereavement damages award is set by the Lord Chancellor and is a fixed payment in acknowledgment of the grief caused by a wrongful death. The level of the award is currently £15,120, having recently been increased in line with inflation. The award is currently available to a limited number of people, including the wife, husband or civil partner of the deceased person.

Unlike civil damages generally, which are intended to compensate fully for the loss suffered, the bereavement damages award is, and was only ever intended to be, a token award payable to a limited category of people. When the award was first introduced in the Administration of Justice Act 1982, it was acknowledged by Parliament that it is impossible to quantify or provide adequate financial compensation for the grief felt at the loss of a loved one. Similarly, the limits on the categories of people able to claim are not intended to imply that people outside those groups would not be severely emotionally affected by the death in question.

The draft remedial order provides that a claimant who cohabited with the deceased person for a period of at least two years immediately prior to the death will be eligible to receive the bereavement damages award. In view of the fact that this is a fixed, token award, it is desirable for the system governing it to be as simple and straightforward as possible to avoid unnecessary complexity that would add to the cost of litigation and the potential for disputes.

In that context, we consider that it is reasonable to set a limit that objectively evidences a relationship of permanence and commitment and avoids the need for intrusive inquiries into the quality and durability of the relationship in individual cases. We believe that two years is an appropriate qualifying period. This period is already applied under Section 1 of the 1976 Act in relation to claims by cohabitants for dependency damages, and unnecessary complexity would arise in a claim involving both types of damages if different definitions were used.

In the very rare instances in which both a qualifying cohabitant and a spouse will be eligible—that is, in circumstances where the deceased was still married and not yet divorced or separated but had been in a cohabiting relationship for at least two years—the draft order provides for the award to be divided equally between the two eligible claimants. We consider that this is the fairest approach to adopt, given that it is desirable to avoid the potential for intrusive inquiries into the quality and durability of an eligible relationship or, in this particular situation, into the respective merits of the two claimants.

I am grateful to the Joint Committee on Human Rights for its scrutiny of this draft order. A remedial order is seldom used to correct incompatibilities in primary legislation with the European Convention on Human Rights. It is therefore right that each order be scrutinised carefully both to ensure compliance with the procedure laid down in the Human Rights Act 1998 and to ensure that the incompatibilities found by the courts are addressed.

The Government welcome the committee’s recommendation that Parliament approves the order and I hope that my comments have addressed the main points on which it has expressed concern in relation to the contents of the draft order. It remains our position that some of the issues raised by the committee go beyond the Court of Appeal’s ruling on incompatibility and are therefore beyond the scope of the order. I beg to move.

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[Baroness Scott of Bybrook (Con)]

My Lords, I am grateful for this informed and constructive debate. A number of important points were made, which I would like to respond to. If I miss anything, I am more than happy to answer in writing; I will certainly check Hansard for that tomorrow.

First, the noble Lord, Lord Hain, spoke about the provision for couples that may be together but not sharing a home. We can go into lots of complexity on this. We have tried to make this as simple as possible for a number of reasons, mainly because complexity at the time of grief does not help.

A number of noble Lords, including the noble and learned Lord, Lord Falconer, mentioned that no provision is made for couples who have lived together for less than two years. The period of two years already applies in other cases; certainly, under Section 1(3)(b) of the 1976 Act, the Court of Appeal did not question the validity of the two-year period. Again, if there are different definitions of eligibility at the time, unnecessary complexities can arise in a claim that involves both types of damages. We are trying to keep this as simple as possible because this money is a way of trying to help people through a very difficult period; it is not like other damages that would come through the courts.

Several noble Lords brought up the fact that the law is not the same in England as in Scotland. The civil and legal systems in Scotland and Northern Ireland are separate from those in England and Wales, so it is inevitable that the law has evolved differently in many respects. There is no inherent reason for the same approach to be taken in the different jurisdictions. The level of bereavement awards available in Scotland would lead to greater costs for not only insurance purposes but the NHS; again, it would also bring complexity into the proceedings for those people who are eligible to receive this money.

In England, there is a fixed-level award with clear eligibility criteria that avoids the need for detailed consideration of the evidence relating to degrees of grief and the potential for disputes which, I would argue, people do not need at such a point in their lives. Bereavement damages are, and always were only ever intended to be, a fixed token payment to a limited group of people. When the award was introduced into law, it was generally acknowledged that it is impossible to quantify or provide adequate financial compensation for the grief felt at the loss of a loved one. An award should not be regarded in any sense as a measure of the worth of the life that has been lost.

The noble Lord, Lord Hain, also asked why this measure is not in primary legislation. I must admit that the current pressure on the legislative timetable means that there is little prospect of using primary legislation to make such a change. Moreover, we consider that the nature of the incompatibility contributes to where there are compelling reasons as required under Section 10(2) of the Human Rights Act 1998 for making the necessary legislative changes quickly and promptly, and this was the way to do that. However, it does of course mean that the order is narrow in scope.

We have talked about the Scottish system and primary legislation, which was brought up by the noble Lord, Lord Thomas of Gresford.

The noble and learned Lord, Lord Falconer, wanted to raise three issues. I have talked about the two-year period, but obviously I will take it back to the department and we will talk more about the interesting view that marriages and civil partnerships get the award from day one while there is a two-year period for cohabitees. Another point I will take back is the issue about a father and the loss of a child. I am not a lawyer but I do not think that that is covered within this remedial order.

That brings me to my final point. There has been a lot of talk from noble Lords about the Act itself, including how old it is and the fact that some of it uses inappropriate language, as we heard from the noble Baroness, Lady Jones of Moulsecoomb. I will take that back and make sure that I reflect noble Lords’ views in the department. As we well know, plenty of legislation is going through so I do not know what sort of response I will get, but I will make sure that noble Lords get an answer on that point. If I have not answered anything specifically, I will look in Hansard tomorrow.

In conclusion, I believe that this order accurately and effectively addresses the incompatibilities identified by the Court of Appeal, and I think noble Lords have agreed with that, particularly in relation to eligibility for bereavement damages. Subject to the Committee’s approval, it will be brought into effect as swiftly as possible following this debate. I welcome the support for the order from the Joint Committee on Human Rights and from noble Lords generally. I commend the draft order to the Committee.

Motion agreed.

Human Rights Act 1998 (Remedial) Order 2019

Baroness Scott of Bybrook Excerpts

Thursday 3rd September 2020 Grand Committee

[Baroness Scott of Bybrook]

That the Grand Committee do consider the Human Rights Act 1998 (Remedial) Order 2019.

Relevant document: 2nd Report from the Joint Committee on Human Rights

[Baroness Scott of Bybrook (Con)]

My Lords, this draft remedial order was laid before both Houses on 15 October 2019 in the last Session of Parliament. It was laid to implement the decision of the European Court of Human Rights in the case of Hammerton v the United Kingdom. The draft order amends Section 9(3) of the Human Rights Act 1998 to enable damages to be awarded under the Human Rights Act in respect of a judicial act done in good faith that is incompatible with Article 6—the right to a fair trial—of the European Convention on Human Rights. It provides the power to award damages where a person is detained and would not have been detained for so long, or at all, were it not for the incompatibility.

The Government consider this limited amendment to be an appropriate balance that implements the judgment of the European Court of Human Rights and takes into account the views of the Joint Committee on Human Rights, while also respecting the important constitutional principle of judicial immunity and the constraints provided by Section 9(3) of the Human Rights Act.

The particulars of the case are that in 2005, Mr Hammerton was committed to prison for three months for contempt of court after breaching an injunction and undertaking during child contact proceedings. However, he was not legally represented at the committal proceedings due to procedural errors. The Court of Appeal quashed the finding of contempt and the sentence, finding that he had spent extra time in prison as a result of procedural errors during his committal proceedings, which were such that his rights under Article 6—the right to a fair trial—were breached.

In 2009, Mr Hammerton lodged a claim for damages in respect of his detention. The High Court held that the lack of legal representation had led to Mr Hammerton spending around an extra four weeks in prison. However, he was unable to obtain damages to compensate for the breach of Article 6 in the domestic courts, because Section 9(3) of the Human Rights Act does not allow damages to be awarded in proceedings under the Act in respect of a judicial act done in good faith, except to compensate a person to the extent required by Article 5(5) of the convention—that is, where someone has been the victim of arrest or detention in contravention of the right to liberty and security.

In 2016, the European Court of Human Rights considered this case and found a breach of Article 6. The court also found that the applicant’s inability to receive damages in the domestic courts in the particular circumstances of his case led to a violation of Article 13— the right to an effective remedy—and awarded a sum in damages, which has been paid. We are obliged, as a matter of international law, to implement the judgment of the European Court of Human Rights which, in this case, means taking steps in respect of the violation of Article 13 to ensure that similar violations will not arise in the future.

To set the draft order in context, the Human Rights Act gives individuals the ability to bring proceedings to enforce their convention rights or to rely on those rights in other proceedings, and gives courts and tribunals the ability to grant any relief or remedy within their powers as they consider just and appropriate.

The award of damages is often not necessary to afford just satisfaction for breaches of convention rights. In the majority of cases in which a judicial act done in good faith leads to a violation of an individual’s convention rights, it can readily be remedied by an appeal and other forms of relief, such as release from custody. Therefore, it would be only on rare occasions that the existing statutory bar in Section 9(3) of the Act would constitute a barrier to a victim receiving an effective remedy as required by Article 13 of the convention.

The bar on paying damages in cases such as this one is in primary legislation. To implement the judgment, it is necessary to amend the relevant primary legislation —in this case, the Human Rights Act 1998, which sets out the procedure for making remedial orders such as the ones we are discussing today.

In 2018, the Government laid a proposal for a draft remedial order to make a narrow amendment to Section 9 of the Human Rights Act. That amendment provided for damages to be payable in respect of a judicial act done in good faith where, in proceedings for contempt of court, a person does not have legal representation in breach of Article 6, that person is committed to prison and the breach of Article 6 results in the person being detained for longer than he or she would have been otherwise. The Government considered that that addressed the specific findings of the court, while at the same time taking into account the need to preserve the important principle of judicial immunity—a constitutional principle that should rightly be preserved.

In November 2018, the Joint Committee on Human Rights reported on the draft remedial order and was of the view that that proposed amendment was too narrow and did not fully remove the incompatibility of Section 9(3) of the Human Rights Act with Article 13. It recommended that we consider redrafting the order to make damages available for any breach of human rights caused by a judicial act where otherwise there would be a breach of Article 13, whether or not that leads to a deprivation of liberty. In other words, the committee said that we were not extending it enough and should go broader than the specific facts of the case.

In response, the Government accepted that other situations could arise outside proceedings for contempt of court where a judicial act done in good faith could potentially amount to a breach of Article 6, where that breach could result in the victim spending time in detention or longer in detention than they would otherwise have done, and where damages would be unavailable, contrary to Article 13. The order before the Committee today is therefore slightly wider in scope than the 2018 draft order, taking into account the need to balance addressing the incompatibility identified by the European Court of Human Rights with the need to protect the principle of judicial immunity.

I am grateful to the Joint Committee on Human Rights for its scrutiny of the proposal for a draft order and its careful consideration of the more recent draft order that has been laid. We welcome the Joint Committee’s recommendation that Parliament approve the order.

Noble Lords will have heard me mention just now the need to protect the principle of judicial immunity. Judicial independence and the principle of judicial immunity must be protected; any intrusion needs to be stringently justified. That is why we engaged with the judiciary to ensure that it was fully sighted on the judgment and our plans for the remedial order.

Finally, given that the Human Rights Act 1998 applies to the whole of the United Kingdom, this order would apply UK-wide. Our officials have worked closely with the devolved Administrations during this process.

The order ensures that, in certain limited additional circumstances, where our domestic courts find that a judicial act done in good faith has breached an individual’s Article 6 right to a fair trial and led to them spending longer in detention than they should, the courts are able to determine and properly consider whether an award of damages should be made for any such breach.

I beg to move.

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[Lord Falconer of Thoroton (Lab)]

I strongly agree with the noble Lord, Lord Marks, that this a very clear example of it being for the UK legislature to decide, where there is an incompatibility, whether to change the law. It is not something that comes because of the European Court of Human Rights reaching that conclusion; it is because Parliament decides. I strongly endorse what he said in relation to that.

I strongly agree with the noble and learned Lord, Lord Mackay of Clashfern, the noble Lord, Lord Marks of Henley-on-Thames, and the Government that Section 10(1)(b) and Section 10(2) of the Human Rights Act, which refers to legislation that is incompatible, do not contain any reservation for the Human Rights Act itself and therefore, as a matter of construction of Section 10, it is possible to use the Section 10(2) power in order to amend the Human Rights Act itself. I too have read Professor Ekins’s suggestion that that is wrong. Honestly, I do not think there was anything at all in the points he was making, and I agree with everybody else’s point in relation to that.

I have two concerns. I was very glad to hear the noble Baroness say that the Government were very concerned about judicial immunity. If you are a judge and think that you might be sued because of a decision you make in good faith—we are dealing here only with decisions made in good faith—that might inhibit the decision you reach. The noble Lord, Lord Thomas of Gresford, made it pretty clear that a judge could, himself or herself—or themselves, if it is the Court of Appeal or the Supreme Court—be sued in relation to this. I would be very grateful to hear what reassurance the noble Baroness can give. She said that judges would be “properly protected” and so it would be very difficult to sue them in their own names, and that there would be no question but that—assuming that they had acted in good faith, because that is the only circumstance in which this applies—they would be indemnified if they were sued in person. Any reassurance the noble Baroness can give in that respect is very important.

The second issue I would like to raise is this. My understanding is that the reason judgment was found against the United Kingdom in Hammerton v United Kingdom is that the consequence of the judge not according Mr Hammerton legal representation was, as the High Court of England and Wales found, that he spent more time in jail for contempt than he otherwise would have. No appeal putting it right can compensate someone for spending time in jail when they should not have.

The one area where I would be interested to know what the Government say is what happens when a court order leads to the disclosure of information that might be in breach of Article 8—where information that should be kept private as a matter of Article 8 is then made public as a result of a court order, but, if we assume that the court order is then reversed in the Court of Appeal, the information has been made public as the result of a judicial act. What do the Government say is the position in relation to that? Assuming that the judge of the court has acted in good faith in the circumstances I posit, is that something in respect of which there would be no remedy at the moment? Is that something the Government are looking at, or is there some effective remedy under Article 13, and therefore one would not need to worry about it?

[Baroness Scott of Bybrook (Con)]

My Lords, I am very grateful to noble Lords for their contributions to this debate. I will try to answer as many questions as I can and if I have missed anything, we will look through Hansard tomorrow and make sure that noble Lords get a written response, a copy of which I will put in the Library.

A number of themes came out of this debate, the first of which was using primary legislation rather than a remedial order. A number of noble Lords, including the noble and learned Lord, Lord Falconer, and the noble Lord, Lord Marks, said that this is exactly the type of situation that the Section 10 power was created for: where very narrow and targeted amendments are being made to address incompatibilities that have been identified by the courts. I would also say that the JCHR has scrutinised the draft SI and agrees that it is an appropriate use of the power to make a remedial order. It is for Parliament, of course, to decide whether or not to approve it. While I am talking about this, I thank the noble Baroness, Lady Massey, and others who were on the JCHR and who had to look at these orders twice: the Government appreciate their work and we thank them for their recommendations.

The second theme that came up, and related to that, was the power of the Secretary of State. My noble and learned friend Lord Mackay brought up the Secretary of State having vires to amend the HRA itself via remedial order. The Government have considered this question very carefully and are confident that this is an appropriate use of the remedial order-making powers.

The power is unusual in that it requires a court decision and it is intended for, and limited to, removing an incompatibility identified either by a domestic court or by a Minister having regard to a finding of the European Court of Human Rights. I hope that helps my noble and learned friend Lord Mackay of Clashfern to understand that, as I am sure he does.

The scope of the remedial order came up a number of times. The noble Baronesses, Lady Ludford and Lady Massey, asked whether it was too narrow. The JCHR’s first report recommended the Government consider redrafting the order to make the damages available for any breach of human rights caused by a judicial act where otherwise there would be a breach of Article 13, whether or not that leads to detention. This is why the Government redrafted the remedial order with a slightly wider scope; we accepted that other situations could arise outside the committal proceedings, where a judicial act made in good faith could amount to a breach of Article 6, where that breach could result in the victim spending longer in detention than they should have done, and where damages would be unavailable, contrary to Article 13.

Any widening of those circumstances in which a remedy in damages is available in respect of a judicial act done in good faith should, we consider, be approached with caution because of the risk of the erosion of the principle of judicial immunity, which the noble and learned Lord, Lord Falconer, and the noble Lord, Lord Marks, brought up very strongly, as did my noble and learned friend Lord Mackay of Clashfern.

In the report on the redrafting of the remedial order, the committee welcomed our acceptance of its recommendations and it has recommended that it should go through Parliament. This was very welcome.

The noble Lord, Lord Thomas, had a question on the violation of convention rights by judges and hoped that this would not happen again, as in Hammerton v United Kingdom. I assure the noble Lord that training and guidance are available to the judiciary; the Judicial College has published an Equal Treatment Bench Book, which builds on judges’ understanding of fair treatment. That should put the noble Lord’s mind at rest that we are doing something.

The noble Lord, Lord Blunkett, brought up again the question of whether this should be in primary legislation or an approved remedial order. I hope noble Lords will accept that this is exactly the type of situation that the Section 10 power was created for: making an order to address incompatibilities.

There was quite a lot of debate about judicial independence and immunity, particularly, and understandably, from the noble and learned Lord, Lord Falconer of Thoroton. Judicial immunity is a key aspect of our judicial independence. He is quite right: an independent and impartial judiciary is one of the cornerstones of our—or any—democracy. One of the practical ways in which this is given effect is by giving judges immunity from prosecution or civil proceedings for any acts they carry out in performance of their judicial function. If he would like me to, I am very happy to write from the department about exactly what effect this will have and to put his mind at rest. We can do that after this Committee.

I think that is all that I had to specifically respond to. I reiterate that this order is the right way to implement the judgment; it reflects a pragmatic approach. I think that the noble and learned Lords, Lord Falconer of Thoroton and Lord Mackay of Clashfern, and the noble Lord, Lord Marks of Henley-on-Thames, and others, agreed that this reflects a pragmatic approach and ensures that we meet our international legal obligations—which we have to do—while still upholding the principle of judicial immunity. I therefore commend the order to the Grand Committee.

Motion agreed.

Prisoners (Disclosure of Information About Victims) Bill

Baroness Scott of Bybrook Excerpts

Committee stage & Committee: 1st sitting (Hansard) & Committee: 1st sitting (Hansard): House of Lords
Wednesday 20th May 2020 Lords Chamber

Clause 2 agreed.

[Baroness Scott of Bybrook (Con)]

My Lords, due to the necessity of a few short adjournments earlier this afternoon, I suggest that we continue without any further adjournments this evening.

[The Deputy Chairman of Committees]

My Lords, we now move on to the group consisting of Amendment 19. I remind noble Lords that anyone wishing to speak after the Minister should email the clerk during the debate. It would be helpful if anyone intending to say “Not content” if the question is put could make that clear in the debate. It takes unanimity to amend the Bill in this Committee. The Committee cannot divide.

Private International Law (Implementation of Agreements) Bill [HL]

Baroness Scott of Bybrook Excerpts

Committee stage & Committee: 1st sitting (Hansard) & Committee: 1st sitting (Hansard): House of Lords
Wednesday 13th May 2020 Lords Chamber

Amendment 2 withdrawn.

[Baroness Scott of Bybrook (Con)]

My Lords, I think it timely that we should now adjourn until 5.15 pm. That means that broadcasting will stop. Noble Lords may leave their device and turn off their microphone and camera, but please do not close the call or shut down. We will resume proceedings and broadcast at 5.15 pm.

--- Later in debate ---

Clause 3 agreed.

[Baroness Scott of Bybrook (Con)]

My Lords, this may be a convenient moment for the Virtual Committee to adjourn.

[The Deputy Chairman of Committees]

My Lords, the Virtual Committee stands adjourned.

Offender Management: Checkpoint Programme

Baroness Scott of Bybrook Excerpts

Thursday 27th February 2020 Lords Chamber

[Baroness Scott of Bybrook (Con)]

My Lords, since today’s list was issued, the noble and learned Lords, Lord Judge and Lord Mackay of Clashfern, have withdrawn from this debate. Therefore, the time limit for Back-Benchers speaking will now be three minutes, not two minutes.

[Lord Bates (Con)]

My Lords, the Checkpoint programme is a multi-agency pre-court diversion scheme used by Durham Constabulary for adult offenders who have committed what is termed “low-level crime”. It was introduced in 2015 and initially funded by the Home Office innovation fund. It is a four-month programme which aims to tackle underlying causes of offending behaviour such as drug and alcohol misuse and mental health issues. It takes the form of a contract which has several conditions—the most obvious being not to reoffend—but it also has a restorative justice element, should the victim require it, and a community service condition for the offender to recognise the wider impact of their behaviour. Completion of the programme under close supervision of a designated navigator normally results in no conviction. A key strength of the programme is that it requires no plea or admission of guilt, so treatment and rehabilitation can begin immediately, rather than being subject to long delays before the case comes to court.

Early indications show that over 90% of those who agree to the four-month scheme complete it successfully. Initial analysis by Cambridge University, published in the journal Policing, found that those who took part in the scheme had lower reoffending rates—13.3% less in a sample cohort of offenders. Further analysis and results are due to be published in May. The initial findings of Checkpoint are consistent with a similar scheme, Operation Turning Point, run by West Midlands Police between 2011 and 2014. The results are also consistent with the reduction in reoffending rates observed as a result of the four-hour national speed awareness course that over a million offenders take each year as an alternative to a fine and points on their licence. The costs of operating the scheme are estimated at £480,000 per year and internal estimates suggest that, for every 1,000 offenders, it saves at least £2 million in reduced crime. So far, 2,660 offenders have taken part in the scheme in Durham and Darlington. I am grateful to Stephanie Kilili, policy officer in the office of the Durham police, crime and victims’ commissioner, for her helpful briefing on the operation of the scheme.

There are, rightly, several questions which need to be addressed about how any programme of this nature might work. Chief among these is: “How does it impact the victim?” A key function of our criminal justice system is to maintain public confidence by justice being seen to be done and wrongdoing being seen to be punished. Included in the excellent House of Lords briefing for this debate is a quote from Professor Lawrence Sherman of the Institute of Criminology at Cambridge University, which points out that victim satisfaction increased from 50% to 75% within the programme cohort because

“the focus was on preventing reoffending rather than vengeance”.

Another survey, undertaken by the Centre for Justice Innovation, saw victim satisfaction increase by 43%.

The basic mission of the police service has not changed since 1829, when Sir Robert Peel declared it to be

“to prevent crime and disorder”.

Speaking to police chiefs yesterday, the Home Secretary said that the task of the police service was to produce

“less crime, safer streets and no excuses”.

I agree. Less crime means fewer victims of crime, and fewer criminals means less cost. If schemes such as Checkpoint reduce crime, increase victim satisfaction and reduce costs, why are they not operating in all 43 constabularies in England and Wales? It may be because they require an up-front cost from police budgets, funded through the Home Office, with many of the interventions being from the health and social care budget, while the major benefits of cases not going to trial and potentially resulting in custodial sentences will be found in the budgets of the CPS, courts and Prison and Probation Service, funded by the Ministry of Justice.

I have a number of questions for my noble and learned friend Lord Keen, who I am delighted to see is responding to this debate. First, while I recognise and welcome the increase in budgets announced for the Home Office and the Ministry of Justice, how might such costs and complex benefits be recognised across multiple departmental budgets? Secondly, would he be willing to facilitate a briefing by officials from the Home Office, Ministry of Justice and Department of Health and Social Care for interested Peers, on how they evaluate the effectiveness of such schemes and allocate resources to them? Thirdly, if pre-court diversion schemes such as Checkpoint and out-of-court disposals are, on this evidence, the most effective ways of reducing reoffending, does he accept that all the available evidence also shows that short-term custodial sentences of less than six months are the worst, especially in the case of female offenders? Finally, would he be open to extending the reach of such schemes to young offenders? Will these matters be within scope of the remit of the forthcoming royal commission on the efficiency and effectiveness of the criminal justice process?

Such schemes have a wider societal benefit which goes beyond calculations of cost and benefit analysis. Through an offender’s facing up to their wrongdoing and the harm caused to their victim, and showing remorse, society is offering them a second chance—a chance to mend their ways and avoid a criminal record, a possible custodial sentence and all that it incurs. I am inspired by those victims who, despite their suffering, found their satisfaction increased, not diminished, by a focus on preventing reoffending rather than vengeance. I believe in a criminal justice system which is tempered by mercy, and which holds out the possibility of redemption. I believe that justice and society are not weakened but strengthened by mercy for, in showing mercy, we also acknowledge with humility the very thin line of chance and circumstance which often separates us from those whom we might otherwise harshly judge. In the words of Shakespeare:

“The quality of mercy … is twice blest:


It blesseth him that gives and him that takes.”

In that spirit, I gladly put what is left of my remaining allotted time at the disposal of the wealth of knowledge and expertise among noble Lords who are about to follow, and I beg to move.

Victims Strategy

Baroness Scott of Bybrook Excerpts

Monday 10th September 2018 Lords Chamber

[Lord Keen of Elie]

I thank the right reverend Prelate for his observation. It is of course difficult in this situation, because if we simply proceed with the term “complainer”, people have certain perceptions about that, and that in itself appears to inhibit them from coming forward. They are perceived to be merely complainers rather than, as they are in reality, victims. Terminology is therefore important here, but it is also difficult. However, I entirely endorse the right reverend Prelate’s observation that those who are falsely accused of crime are also victims. Of that there can be no doubt whatever, and we should always remember that.

[Baroness Scott of Bybrook (Con)]

My Lords, I also welcome this strategy from the Government. I will ask the Minister about major incidents and their victims: places such as Grenfell, of which I have some knowledge, but also Manchester and even Salisbury. I hope that in the strategy the Government acknowledge the role of local government in supporting the victims but I also hope that they challenge local government and look to support it in its role as supporting victims of these major incidents.

[Lord Keen of Elie]

I thank my noble friend for that. Indeed, the noble Lord, Lord Beecham, raised this very same point about the need to ensure that all agencies which may be involved in these matters should be properly engaged and consulted. I certainly acknowledge the role of local government in dealing with disasters such as Grenfell, the Manchester bombing or Salisbury. There have to be clear lines of engagement between central government and local government to ensure that that can be achieved, and I anticipate that that matter will be addressed in the course of the consultation process.