Sentencing Guidelines (Pre-sentence Reports) Bill

Lord Bach Excerpts

Report stage
Wednesday 4th June 2025 Lords Chamber

[Lord Sandhurst (Con)]

My Lords, I may be brief, having made my general observations in respect of the previous group. So far as this amendment is concerned, in appropriate cases, pre-sentence reports are of course necessary—but not in all cases. The probation officer is usually the best person to alert the court to the possible benefit of obtaining a report, or not obtaining one, in a given case. In some cases, the sentencer will also want a report, whether or not the probation officer has indicated that a report might assist. We on this side are of the view that we do not need this amendment.

[Lord Bach (Lab)]

My Lords, I agree entirely with what the noble Lord, Lord Marks, said about pre-sentence reports. A long time ago, I had much experience of defending in the Crown Court, so I know that such reports are of extreme and important value. However, I have to say—for the first time, really—that I agree with the noble Lord on the Front Bench opposite, who just said that he does not see the need for this amendment. With great respect to the noble Lord, Lord Marks, I do not see it, either, I am afraid. I know that the noble Lord needs to be satisfied by the Minister, who will no doubt follow what I have to say, but, in my view, the Government’s policy on pre-sentence reports is clear: they are in favour of them, and we need to improve them because they have been allowed to go downhill in the past number of years. I agree with that. My view is that this amendment is not something that should divide the House.

[Lord Timpson (Lab)]

Amendment 5 in the name of the noble Lord, Lord Marks, would require sentencing guidelines about pre-sentence reports to encourage their greater use, particularly in cases where a sentencing decision is likely to involve a choice between a community or custodial sentence. I am grateful to the noble Lord for moving this amendment. He was right to ask how we can encourage greater use of pre-sentence reports and ensure that we have sufficient probation resource to do so, and he made exactly the right points in speaking about the importance of pre-sentence reports. I am grateful to him for the discussions that we have had since Committee; I would welcome continued engagement with him on this issue.

I hope that the noble Lord will not mind me giving quite a full answer to his question. Although he asked the right question, I would argue that there are other levers beyond sentencing guidelines that are the better place to solve the problem. We must ensure that we have a Probation Service that is properly funded and staffed, and which has the tools it needs to deliver. We must also balance the need for sufficient and thorough pre-sentence reports with the other crucial roles that the Probation Service plays. We want more, and better-quality, PSRs.

I am mindful that the noble Lord tabled a similar amendment in Committee, where I took the opportunity to set out the steps that the Lord Chancellor and I are taking to improve the Probation Service’s capacity to deliver timely and high-quality reports. I would like to reassure noble Lords further on the steps that we are taking to support our Probation Service; if they will permit me, I will endeavour to give a thorough answer as to what the Government are doing.

First, we are increasing staffing levels. We recruited more than 1,000 new trainee probation officers last year and we aim to recruit a further 1,300 this year.

Secondly, I am delighted that we have announced a significant increase to the budget for the Probation Service and other community services for offenders. It will rise by up to £700 million by 2028-29, representing an increase of around 45% by the final year of the spending review period. This is a very significant investment and demonstrates the Government’s commitment to this vital service. I am sure that the noble Viscount, Lord Hailsham, will agree that this is needed to fund probation in a way that ensures that our probation officers can do the job they came into the service to do.

Thirdly, I am convinced that a significant part of the answer sits with new technology. The Lord Chancellor and I recently hosted a tech round table with industry experts to make sure that we are asking the right questions and working collaboratively on the best solutions. Let me give noble Lords a sense of some of the transformative impact that we are already exploring in terms of technology.

I am passionate about ensuring that probation officers are able to do the job they came in to do. For probation, as with every other public service, new technology has the potential to be really transformative. We are exploring the benefits of AI in a number of areas. We are piloting the use of transcription and summarisation tools to reduce administrative load. We are developing algorithms to support decision-making, risk assessment, case prioritisation and operational planning. AI-powered search is being explored to better support the information gathering needed for report writing. All these have the potential to save significant practitioner administration time and to improve quality, allowing probation officers to focus on face-to-face time with offenders, to support them to change, rather than on administrative tasks.

Technology can also transform how probation staff can bring the right information together to assess and manage offenders. For staff writing pre-sentence reports, we are rolling out a new service called “Prepare a case for sentence”, which links probation systems with the court’s common platform and gives probation staff in the courts the earliest possible notice of cases that are being listed, as well as new templates so that reports are timely and give the courts what they need.

We are also investing in the complete redesign of the approach to the assessment of risks, needs and the strengths of the people on probation and in prison. The resulting sentence and risk management plans will combine a new assessment and planning approach that incorporates the latest desistance research, supported by a new digital service. This new service will reduce the resource burden on front-line staff and ensure that assessment and planning practice better supports individuals, thereby achieving better rehabilitation and public protection outcomes.

Noble Lords will recognise that, although investment in staff numbers and technology are vital foundations, it is nothing without also supporting staff to have the right skills to spot risks and needs and to communicate those to the court. Our staff have access to a wide range of learning and development, including modules relating to court-specific roles and skills, ensuring that they are well equipped to work in this setting. The better trained they are, the better PSRs they will present.

The Probation Service has a dedicated court case assessment tool for line managers to quality assure pre-sentence reports. His Majesty’s Inspectorate of Probation also completes regular inspections of probation regions, with an assessment of court work included as a key component of this. Furthermore, the Probation Service seeks detailed feedback from sentencers on the quality of reports through an annual judicial survey. Through all this investment and improvement, our aim is that, whenever a court orders a pre-sentence report, it can be confident that it is based on the fullest information and a thorough analysis of risks and needs; and that it answers the right questions the court is wanting to understand.

I recognise that the noble Lord’s amendment now specifically refers to scenarios where a sentencer will likely need to decide between imposing a community or a custodial sentence. I completely agree with the noble Lord that pre-sentence reports can be particularly helpful in these kinds of cases. These reports provide sentencers with an effective assessment of risk and targeted assessments of the individual’s needs. This then confidently articulates suitable sentencing proposals that balance public protection, punishment and rehabilitation. In doing so, they will consider a range of disposal options, setting out the best use of credible community sentences where appropriate.

I hope that it will offer some reassurance to the noble Lord that the revised imposition guideline already includes relevant texts in this spirit, which the Bill does not impact. Specifically, it states:

“A pre-sentence report can be pivotal in helping the court decide whether to impose a custodial or community order and, where relevant, what particular requirements or combination of requirements are most suitable for an individual offender on either a community order or a suspended custodial sentence”.


Of course, it is for the sentencer to decide whether to order a pre-sentence report, and there is an existing obligation on courts to obtain a pre-sentence report unless they consider it unnecessary. The Bill does not change that.

I reiterate my thanks to the noble Lord, Lord Marks, for raising the importance of pre-sentence reports and increasing their use. As I have set out, the Government are committed to ensuring greater funding, capacity and efficiency for the Probation Service. I therefore urge the noble Lord to withdraw his amendment.

Independent Sentencing Review

Lord Bach Excerpts

Monday 2nd June 2025 Lords Chamber

[Lord Timpson (Lab)]

The amount of prison places that we will be building will mean that there are even more people in prison than ever before. We will build 14,000 places by 2031, which will mean that there is a large amount more space for offenders to go in. On the day I arrived in the Ministry of Justice, I had thought that it would be a day of celebration and that I would be home within an hour, but I was there for about six hours, meeting officials who were clearly concerned that we were about to run out of space, again. That is why I am delighted that David Gauke’s review has been presented to Parliament. We need to make sure that it works together with the review that Brian Leveson is carrying out, which I hope will be published soon. It is not one or the other; both are needed, as well as the investment in building new prison places to resolve the crisis that we have. It is really important to me that this is the last time we have a crisis. We need to make sure that we have a long-term and sustainable prison system.

[Lord Bach (Lab)]

From these Benches, first, I congratulate the Minister in particular for the difference that he has made in his time at the Ministry of Justice. It has been a breath of fresh air, and it is about time that a Government of either party or all parties have the courage to take on this issue. Of course, the danger for a party in taking on this issue is that the other party or parties will immediately seize on it and use it for populist effect. That has to stop—it has gone on for too long and it ruins the system.

What I am particularly concerned about is the Probation Service, because how it has been treated in the past few years is, frankly, scandalous. It has been run down and has not been able to do the very difficult and vital job that it is there to do. Can the Minister ensure, please, that the Probation Service, which is at the heart of this change if it is to be successful, is properly funded and given every support—all the support that it has lacked for so many years?

[Lord Timpson (Lab)]

I thank my noble friend for his comments. It has been the biggest privilege of my life to be given this role, and to be in your Lordships’ House to debate these crucial reforms to sentencing. I have been involved in and around the sector for most of my working life, and I have seen too many great ideas get ignored, too many wither on the vine and too many go unfunded.

I counted up the number of Prison Ministers I had met before being handed the keys to what was once their office, and it was 14, over just 20 years. I am not sure whether that happened because they enjoyed the role so much that they wanted to move on to another one or because it was too challenging and they wanted to find an easier role elsewhere, but, for me, this is the job that I have come in to do, and I am absolutely delighted that David Gauke and the panel have come up with the ideas that they have.

My noble friend is 100% right about the Probation Service. That is where the heavy lifting is done, and it is at the heart of the system. If you do not get probation funded and operating properly, the rest does not work either. I have met so many amazing probation staff who know exactly what they need to do but feel that they have not been supported enough over the years and that they spend too much time on administration and not enough time face to face with offenders, helping them turn their lives around—and that is the job that they signed up to do.

Sentencing Guidelines (Pre-sentence Reports) Bill

Lord Bach Excerpts

2nd reading
Wednesday 7th May 2025 Lords Chamber

[Lord Bach (Lab)]

My Lords, it is an honour as well as a pleasure to be the first to congratulate my noble friend on her outstanding and, if I may say so, very moving maiden speech. She brings to this House deep experience and wisdom. She and her loving family have met challenges and setbacks that many in this House will not have experienced. She has faced adversity and knows as well as anyone what it is like to be brought up, to work and to live in a world where people do not always enjoy the good things that many of us in this House take, and have always taken, for granted.

It was clear in her speech that she understands deeply how people experience life. Her brilliant reputation, from her union work with NUPE and then with UNISON, shows that absolutely clearly. There will be many in Selby and beyond who owe a huge amount to her hard work and commitment. She told us in her speech that her values are community, resilience and public service. Whether in working for her constituents when she was a councillor, working for North Yorkshire Council for many years, her work for UNISON and her fellow workers, or performing her important and invaluable—I mean invaluable; many on this side will know exactly what I am saying—political work, she has truly lived up to her values. All of us who have had the honour of listening to her speech today look forward to hearing her many times in this House.

On the debate, I should declare some interests: first as chair of the Leicester Community Advice and Law Centre; secondly, as joint chair of the All-Party Group on Access to Justice; and, thirdly, as a member of this House’s Justice and Home Affairs Committee. Before making the few points that I intend to make, I want to stress—and I think it needs to be stressed—how the Ministry of Justice under this Government already has a record to be proud of. It is not only in the quality of its Ministers, particularly in this House, but in what, against crushing obstacles, it has already achieved, given the ridiculous, unsatisfactory budget it has to work with.

For me, the small but important increases in the legal aid area, and particularly the setting up of the Gauke and Leveson reviews, are among the MoJ’s most significant achievements. However, I cannot say that I am equally delighted to see the Bill before the House this afternoon, taking up precious parliamentary time that could be spent legislating, or at least debating, other more vital justice issues. Frankly, I find it hard to accept that we could not have resolved this impasse without the need for legislation, let alone fast-tracked legislation.

After all, there is an overwhelming consensus as to the value and necessity of pre-sentence reports. In addition, there is surely widespread agreement that the Gauke review, due out later this month, and the legislation that follows it, will be of much greater significance than the Bill as far as sentencing is concerned. It will also, of course, be relevant to the issues we are discussing this afternoon at Second Reading. The danger, it seems to me, is one of overlegislating. By not allowing something as broad as personal characteristics to be taken into account in sentencing, we may, almost by accident, be excluding other factors that are highly relevant to any sentencing decision.

This takes me to an amendment moved but not voted on in the other place. It was in the name of the right honourable Member, Jeremy Wright, a distinguished Attorney-General in the coalition and succeeding Tory Governments. He argued, cogently, that if anything that comes within the broad category of the term “personal characteristics” is forbidden from being considered by the Sentencing Council when setting out its guidelines, this could well cover other personal characteristics—he mentioned physical or learning difficulties, or severe injuries—which is surely not the intention of the Bill and could make the difficult task of the sentencer even more difficult. Jeremy Wright suggested a change in wording to “demographic cohort”, thus giving Ministers their point but not making the result confused or unintelligible. I am attracted by this approach and hope that the Government, following this Second Reading, will carefully consider Mr Wright’s proposition, if not using his actual words.

I want to make two final points. Both the current chair of the Commons Justice Committee, Andy Slaughter MP, and his predecessor, Sir Bob Neill, have expressed regret that the Bill, and particularly the events leading up to it, have been used by some to undermine judicial independence and to allow ad hominem attacks on judges under the guise of belated objections to these guidelines. I agree entirely with the two chairs of the Commons Justice Committee. Alas, today we see in other countries around the world, including, surprisingly, the United States of America, how easy it is for Governments, and Oppositions, to attack the judges. As a matter of course, we do not do that in this country, I hope, and I find it more than sad that—indeed, I am angry that—it has happened here.

Independence of the judiciary is of course a fundamental part of the rule of law. Attacking judges undermines that independence, and all of us should resist the temptation, however irresistible some politicians seem to find it. We should know better.

What unites us, and what makes this legislation quite hard to understand, is that all of us believe in the importance of pre-sentence reports, which play a vital part in sentencing. I practised criminal law for over 25 years, defending more than prosecuting. That was some time ago, of course, but in those days, it was inconceivable that a first-time offender—or any offender, really—who might face a first custodial sentence would be sentenced without a properly prepared pre-sentence report. By properly prepared, I do not mean a 10-minute interview in the cells and then back into court; I mean a well prepared and thorough report, with a probation officer being given the time and space to do their job.

We were all surely shocked to learn that the number of pre-sentence reports has fallen by 42% between 2015 and 2023, from 160,000 to 90,000. I am afraid that one has to ask the question: how many of these reports are having to be prepared much too quickly?

I hope we can all agree that pre-sentence reports are an essential part of our system and cannot be allowed to be compromised for financial reasons. That is why the future of the Probation Service is so vital to this debate, and why, in my view, it would have been better, if possible, to have waited until the Gauke review and the legislation that follows it.

Legal Aid: Social Welfare and Family Law

Lord Bach Excerpts

Monday 18th November 2024 Lords Chamber

Asked by

[Lord Bach]

To ask His Majesty’s Government what steps they are taking to increase the amount of legal aid available for early advice in the areas of (1) social welfare, and (2) family, law.

[Lord Bach (Lab)]

My Lords, I beg leave to ask the Question standing in my name on the Order Paper and I refer the House to my declared interest.

[The Parliamentary Under-Secretary of State, Ministry of Justice (Lord Ponsonby of Shulbrede) (Lab)]

My Lords, legal aid is a vital part of the justice system. It underpins our plans to build a justice system that works for victims, supports access to justice and ultimately upholds the rule of law. The previous Government left the legal system facing significant challenges. This Government are committed to ensuring an effective, efficient and sustainable legal aid system, and we have already begun to stabilise the sector and explore ways in which we can rebuild our justice system.

[Lord Bach (Lab)]

My Lords, I thank my noble friend the Minister for his reply. I know that he, like me, believes that the virtual decimation of early legal advice as a direct consequence of the LASPO Act remains an affront to access to justice. Is he aware that every report published on this issue strongly agrees that early legal advice saves the state money by avoiding court and time spent? Of course, we know how sparse resources are, but does he not agree that common sense dictates that restoring early legal advice urgently by an increase in legal aid is a necessary, humane and financially sensible thing to do?

[Lord Ponsonby of Shulbrede (Lab)]

I thank my noble friend for that question, and I agree with the sentiment behind it. The Government are committed to ensuring there is an effective, efficient and sustainable legal aid system and are working toward that end. Our response to the Crime Lower consultation was published on 14 November and confirmed that we will be uplifting the lowest police station fees, introducing a new youth court fee scheme and paying for travel time in certain circumstances. Together, these changes will provide a £24 million boost for criminal aid providers.

Victims and Prisoners Bill

Lord Bach Excerpts

Report stage
Tuesday 21st May 2024 Lords Chamber

[Lord Carter of Haslemere (CB)]

It was Winston Churchill; I am corrected—both great names.

If we have progressed at all from the way prisoners were treated in the past, we should be enabling whole-life prisoners to find some meaning and purpose in a life that is certain to end in prison. This includes providing opportunities for them to have some social interaction and build relationships, even though they can never expect to be released—in fact, especially because they can never expect to be released. This reflects the long-standing legal position. It is trite law now that prisoners enjoy basic human rights, such as respect for their private and family life, their religion, freedom of expression and access to a lawyer etc. Under Article 12, prisoners have the right to marry and form a civil partnership.

My noble friend Lord Pannick has already referred to the case of Frasik. I will quote again that passage from the court’s judgement, because it is so powerful. Imprisonment, the court said, does not mean that those detained

“cannot, or can only very exceptionally, exercise their right to marry”.

Yet is that not exactly what Clauses 55 and 56 say? The ECHR memorandum conveniently sidesteps that by saying that marriage by whole-lifers

“undermines public confidence in the Criminal Justice System”.

We have just heard from my noble friend Lord Pannick on that one; it is, in effect, code for “offends public opinion”. But the Frasik judgment, as my noble friend said, says that the Bill cannot do that—it cannot automatically prevent prisoners forming marital relationships.

It is not all about the law either. Compelling legal points, such as those we have mentioned, often arise from a rotten policy, which is what we have here. The Government’s justification seems to be the case of Levi Bellfield. Awful as that is as an example of the right to marry being abused, it is one case of about 70 whole-lifers in the system. They have all committed terrible crimes, but their whole-life tariffs are the punishment for that. Even Ministers have recognised that we send people to prison as punishment, not for punishment. Automatically denying prisoners, even whole-life prisoners, the right to marry or enter a civil partnership amounts to nothing more than the state imposing additional, entirely gratuitous punishment on this cohort of prisoners for no reason other than to show the public that it is tough on crime.

The noble Lord, Lord Ponsonby, expressing his personal views at Second Reading, put it well when he described it as a “petty measure”. The noble Lord, Lord German, who unfortunately cannot be with us tonight, rightly called it cruel. It also punishes prisoners’ partners, who are entirely innocent in all this. It punishes them emotionally, of course, but it may also affect their entitlement to, for example, a widow’s pension on the death of a whole-life prisoner or a spouse’s exemption from inheritance tax. Has any consideration been given to the effects of this policy on partners? I would be most grateful to know the answer to that.

There is a simple solution to the Government’s wholly justified concern about the Levi Bellfield case, which would deal with all the legal and policy objections that have been mentioned. The existing law entitles a prison governor to refuse an application to marry or form a civil partnership only if it would create a security risk to the prison. Why not ditch Clauses 55 and 56 and legislate to widen the basis for refusing such applications to include cases where there are reasonable grounds for believing that the application is not made in good faith but from some improper motive? This could easily be made legally watertight to minimise the possibility of unfounded legal challenges.

In conclusion, and at this late hour, in the dying breaths of the Bill, I urge the Minister to ignore the word “reject”, which is in his briefing notes in capital letters, underlined, in bold type. Why not surprise everybody, not least his officials, by agreeing now to remove Clauses 55 and 56 and adopt the more proportionate, but no less effective, solution that I have just proposed?

[Lord Bach (Lab)]

My Lords, I do not intend to say much, for the very good reason that I do not have to. The arguments put forward by the noble Lord, Lord Carter of Haslemere, and particularly by the noble Lord, Lord Pannick, are overwhelming. I do not want to put the Minister, for whom I have huge respect, on the spot, but I have a suspicion that he has more than a bit of sympathy for the arguments that have been put.

The only point I want to make is this: commentators have said that, when the Minister and the Secretary of State came to their positions, there was likely to be a different attitude towards issues of this kind than there was under some predecessors. The evidence is that that is true, and we have seen examples tonight and this afternoon of the Minister no doubt using his influence in persuading the Secretary of State to have sensible views and change the Bill where it needed to be changed.

This is exactly a case of a clause that is both against the European legislation we have adopted and against all common sense; it should be removed. It would be a real shame if this Bill, which contains some really excellent stuff on both prisoners and victims, has at the tail end of it, as the noble Lord said, this rather ridiculous and very anti-British way of dealing with this issue—so I do ask the Minister to please think again.

[Lord Meston (CB)]

My Lords, I raised questions about Clause 55 and how it might operate in practice at Second Reading that were really not answered. I make no criticism; the Minister had a lot to deal with. I regret not being able to participate in Committee. But I have devoted quite a lot of my professional life to the formation and validity of marriage, and therefore in the context of this Bill I would like to point out that the question of whether and to what extent certain marriages should be restricted or governed by statute faces two underlying problems.

First, it is generally not necessary for anybody otherwise qualified to marry to have any good or creditable reason to do so. I mention that in the context of my noble friend Lord Carter’s suggestion that possibly in these circumstances prison governors should question the motives and have the ability to do so, and that that may be the way through this problem. I have to say that research suggests that the decision to marry is rarely reached on rational grounds—and indeed the same research revealed that 3% of those surveyed did not know why they were getting married at all.

Secondly, and altogether more seriously, there is the fundamental right to marry, stated in Article 12 of the ECHR. That is a right that long predated that convention in this country. However, it was Article 12 that underpinned the Marriage Act 1983, which allowed for marriages of those detained in prison, for essentially pragmatic reasons. It was legislation that did not attract criticism—indeed, only newspaper headlines such as “Get Me to the Jail on Time”. Article 12 also led to the extension of the Marriage (Prohibited Degrees of Relationship) Act 1986, which I had a part in, believe it or not, and which set mankind free to marry their mothers-in-law.

The restrictions proposed in this Bill on specific marriages were understandably prompted by the attention-seeking attempts by particular convicted prisoners to marry—something that many people, no doubt including their victims and their victims’ families, will have found grossly offensive. Nevertheless, the underlying points emphasised by all noble Lords who have spoken so far simply cannot be ignored.

If Article 12 rights are to be curtailed and qualified simply by reference to the nature of the sentence being served or by vague concepts of public interest, the Government really should spell out more clearly the justification for the proposed restrictions and should clearly indicate the circumstances likely to satisfy the Secretary of State that they are “exceptional circumstances”. At Second Reading, I suggested that they might include terminal illness, but I can see that it ought probably to go wider than that. Otherwise, we are simply going to be storing up problems and litigation for the future.

Victims and Prisoners Bill

Lord Bach Excerpts

Report stage
Tuesday 23rd April 2024 Lords Chamber

Moved by

[Lord Bach]

35: Clause 6, page 5, line 25, at end insert—
“(4A) Regulations under subsection (2) must require information about compliance with the victims’ code to be linked to a consistent victim identifier that is used across the agencies of the criminal justice system.”Member's explanatory statement
This amendment would allow for the creation of a unique identifier for victims in the criminal justice system which would be linked to information on compliance to the victims’ code.

[Lord Bach (Lab)]

My Lords, Amendment 35 would require information on compliance with the victims’ code to be linked to a consistent victim identifier. I thank the noble Baroness, Lady Brinton, and my noble friend Lord Ponsonby for supporting this amendment. Members may recall the helpful discussion on this issue in Committee. I am grateful to colleagues and to the Minister for their engagement on this topic.

I have been moved to reintroduce this amendment because I remain convinced that, without this change, the Government’s ambition to harness the Bill to put victims at the heart of the justice system and increase accountability may well fail; it is that serious. I thank Natalie Byrom, whose article in the Financial Times in January 2024 kicked off this important debate.

I begin by being extremely clear about what is being proposed. Put simply, this amendment contemplates the creation of a unique identifier allocated to victims at the point at which they first report a crime to the police, to which all subsequent crime numbers and case updates can be linked. Compliance with the measures in the victims’ code must also be recorded against this identifier. Information about the victim’s demographic and protected characteristics can also be added to the victim identifier, provided that the victim consents to provide this. In the absence of the introduction of this identifier, it will continue to be impossible to routinely link information on victims’ code compliance to the demographic characteristics of victims or criminal justice outcomes. This makes it impossible to tell what measures are working and for whom. Information will remain partial, piecemeal and costly to collect.

--- Later in debate ---

On the tragic case cited by the noble Lord, Lord Bach, I say that there is considerable work on information sharing and what we can and hope to do better, which we will discuss in future groups not concerned with victim identifiers. While future approaches to understanding and improving the victim experience may include a new system of unique victim identifiers, I do not agree that primary legislation would be the appropriate way to establish it at this point. I therefore respectfully ask that the noble Lord withdraws this amendment.

[Lord Bach (Lab)]

My Lords, I thank the Minister very much for his response. I also thank noble Lords around the House who have been sympathetic to the amendment that I moved.

Because it is such common sense, this will happen in time. The sooner it happens, the better for victims and the justice system. I am realistic, so I understand that there are complications, as my noble friend Lord Ponsonby said, that will have to be worked through before we get to the stage—which I hope will happen sooner rather than later—where something like this comes into being.

For the moment, I am delighted to hear that the Government understand the problem and are working hard to solve it. There is a real issue as to whether the BOLD development is the answer to the issue that I have tried to raise today. I ask the Government to look very carefully at whether that is a better alternative to the proposal I made today. It seems to me that it would not be sensible to divide the House on the issue, however much I might be tempted to do so, because there is more work to be done. However, I go away with the feeling that the Government are sympathetic to the idea that this whole system should be very much simplified. On that basis, I beg leave to withdraw my amendment.

Amendment 35 withdrawn.

Victims and Prisoners Bill

Lord Bach Excerpts

Tuesday 12th March 2024 Lords Chamber

[Lord Garnier (Con)]

My Lords, I am grateful to my former neighbour, the noble Lord, Lord Bach, for permitting me to jump the queue. I want to make some equally brief points to the points made by the noble and learned Lord just now. I will start with Amendment 171. This makes as much sense as requiring the Lord Chief Justice, as head of the judiciary, not to be able to sit in individual cases, either at first instance or at appeal; to deny the Master of the Rolls, who I believe is the head of the civil appellate system, the ability to sit on cases; to deny the chancellor of the Chancery Division the ability to sit on cases; and to deny the president of the Family Division the ability to sit on cases.

These are judicial functions which may have an administrative function as well. If we were really to go down a road whereby the shadow of Dominic Raab is to spring forward into the enlightened era of Alex Chalk, I think we would be making a mistake. That is enough about that.

None of the judicial officers to which I have just referred is removable on the say-so of the Secretary of State. Equally, the constitution should not suffer the embarrassment of having the head of the Parole Board, who is a judicial officer, being removed on the say-so of the Secretary of State. I have a suspicion that if Alex Chalk had written this Bill it would not have contained these clauses.

Amendment 169

“seeks to ensure that the decision as to the composition of the Board is an independent judicial decision made by the Parole Board”.

Again, to go back to my references to the senior judiciary, it is the Lord Chief Justice who deploys the judges within the court system, it is the Master of the Rolls who decides which judges in the appellate court should sit on which particular case, it is the Chancellor of the Chancery Division who decides which of the Chancery Division judges should do what, and it is the President of the Family Division who does the same in relation to Family Division cases. It strikes me as being a perfectly normal and respectable constitutional arrangement. It would be a pity for Mr Raab, who has now moved on, to be able to continue to control the system. He is gone; these should go as well.

[Lord Bach (Lab)]

My Lords, it is a pleasure to support all three of these amendments. They were tabled by the penultimate Lord Chief Justice, and are supported by the most recent Lord Chief Justice and a distinguished recent Solicitor-General, who spoke just now. I am afraid I can only claim to have been shadow Attorney-General in what was, to use a cliché, a bad year, for a shortish time to make up the numbers. I cannot add to the arguments that have been so persuasively put.

It is wonderful to see the noble Earl the Minister in his place; I did not expect him to take this particular group. I invite him to talk to his noble friend from the Ministry of Justice, who I suspect—I hope the noble Earl does as well—privately has a lot of sympathy for these amendments, because they are commonsensical. I ask the noble Earl to ask the noble and learned Lord, Lord Bellamy, to speak to the Justice Secretary patiently and persuasively about these matters.

I start from the position that the Executive should interfere in individual sentencing as little as possible—preferably not at all. Under our constitutional arrangements, it is not the Executive’s responsibility, nor part of their functions. That is why the independence of the Parole Board is so important, as the noble and learned Lord just said. It is hard not to believe, I am afraid, that these proposals would actually have the effect of reducing that independence.

I have down on the amendment paper that I will oppose Clauses 53 and 54 standing part of the Bill. I will not press that at all tonight, but in this short speech I will talk about why I gave that notice; it may save a bit of time later on. It is really because I have two questions for the noble Earl. I asked the noble and learned Lord, Lord Bellamy, at Second Reading, but quite understandably he was so overwhelmed with the matters that he had to reply to in the minutes that he was allowed that he was unable to answer them at the time. I absolutely appreciate that.

The first question is to ask why, under the Bill, the Justice Secretary will send some cases where he has found the Parole Board has got it wrong to whichever body it is that he eventually sends them to, but not others. It was argued in this House in Committee, I think last week or the week before, that that should be not the Upper Tribunal but another body altogether. If he sends some cases where he thinks the Parole Board has got it wrong but not others, that will not make any sense at all. Surely he must send all of the case that he finds to be wrong to this judicial body or none of them. If he sends some then surely the position is not satisfactory. There may one day be a Lord Chancellor—certainly not the current one—who is less generous and would not send any that he felt was wrong to a court. If that position may develop, why on earth is this part of the Bill being proposed?

My second question is this, and the Committee deserves an answer to it: will the Justice Secretary himself make these decisions, or will they be passed down to junior Ministers or to senior civil servants? I have no objection at all to senior civil servants taking important decisions but it is not appropriate that they—or, in fact, junior Ministers in the department—should take these decisions. What is the answer: will they or will they not? If they will, the problems associated with the Executive interfering in sentencing become much more acute. Does the Minister agree? I would be grateful for an answer to both those questions.

[Lord Pannick (CB)]

My Lords, I agree with all three of the amendments in this group, and I do so for the reasons that have been powerfully explained by the other speakers. It seems that the issue here is very simple indeed. These clauses are designed to reduce the independence and authority of the Parole Board. New sub-paragraph (2C), in Clause 54(5), refers to the necessity of maintaining public confidence in the Parole Board. In my view, public confidence in the criminal justice system depends vitally on the independence and the authority of the Parole Board. I much regret that the Government should apparently think otherwise.

Victims and Prisoners Bill

Lord Bach Excerpts

2nd reading
Monday 18th December 2023 Lords Chamber

[Lord Bach (Lab)]

My Lords, it is a particular pleasure for me to follow the noble Baroness, Lady Prashar, whom I admire hugely and with whose speech I agree 100%. She has seen everything in her very distinguished career, and the Government should take considerable notice of what she had to say about Part 4 of the Bill.

We can see from reading the debates in the other place that this is not particularly a politically controversial Bill, unlike many we have seen recently and, alas, may see again before very long. However, there are important arguments, very well put by the many experts in this House, that, as far as victims are concerned, while improving the position—the Bill does that—this may yet turn out to be a wasted opportunity.

I speak as the only Member of either House—so far, and perhaps not for long—who has served as an elected police and crime commissioner. I have therefore consulted opinion, to some extent at least, regarding the role of the police and crime commissioners, their offices and their responsibilities under the Bill. They are clearly being asked to do more than before. If the House will indulge me, I will briefly explain how they feel about the Bill at this stage. I tend to share their view.

Their general view is to welcome the proposals as they affect police and crime commissioners, but of course there is concern about effective implementation—the real question being: are there the facilities of leverage and resourcing that are needed for them to fulfil their roles? In particular, there is a view that the local criminal justice boards should be on a statutory footing. These are local fora where police and crime commissioners will seek assurances from criminal justice partners around code compliance—one of the responsibilities they are given—and shared accountability. The Home Office review on police and crime commissioners recommended that these local criminal justice boards should be statutory. That is not in the Bill. Have the Government changed their mind about that, or might we see this in the other criminal justice legislation that we will hear of in the months ahead?

Secondly, police and crime commissioners would generally welcome further levers to encourage code compliance, which is a duty imposed on them and others. Will they be given the power to demand and set expectations locally for other agencies? There is a welcome focus on good data and robust metrics, including feedback from victims, of course, and there are two new senior data analysts for each office of a police and crime commissioner. They are welcome too, but why the silence about long-term funding for those rather important posts?

Equally, as to the resourcing of the vital and welcome duty to collaborate, there are many similar duties in recent legislation that have gone through this House. In practice—that is the important point—these place a significant resourcing challenge to the parties involved, which, it is felt, are not always appreciated by the Government. Will the Minister please look at that issue again?

Finally, and more generally, where gaps in local services are found, there is no provision in the Bill for funding services. Will the Government step up to meet unmet victims’ needs?

Those, in short, are the views of police and crime commissioners. I cannot speak for them all, but I hope the Minister will take note of those views.

As for the code itself, I commend the noble Baroness, Lady Coussins, on what she had to say about the need to strengthen the code and tighten it up in regard to victims who have English as a second language. It is an important point, and I hope we do that at a later stage of the Bill.

The Minister will not be surprised to hear me ask about legal aid for Part 2 of the Bill. I would like more clarity as to where legal aid will come in and whether it will be means tested. If victims of an appalling incident want—as they may well—to instruct their own lawyers in the circumstances, what will the legal aid position be? Is that yet clear?

Finally, I want to express the widely shared view concerning the Bill’s proposals for the future of the Parole Board. Of course, the change of heart in giving the Lord Chancellor the option to direct the Parole Board and then to refer the case to the Upper Tribunal is to be welcomed, but some questions arise and I would like to put them quickly.

First, as the noble and learned Lord, Lord Thomas, asked, why was the Upper Tribunal chosen? Secondly, on the point that the Lord Chancellor will send some cases where he thinks the Parole Board has got it wrong up to the Upper Tribunal, but not others, why must he not send them all up to whatever the judicial body is? How will he pick and choose? A less generous Lord Chancellor than we have at the moment may well take a completely different view and not send anything up to the Upper Tribunal, which will of course make the effect of this alteration negligible.

Thirdly—I have some experience of how busy Cabinet Ministers are, from having been a junior Minister in the Ministry of Justice, albeit a very long time ago—will the Lord Chancellor himself decide these issues by reading the papers? Will it be a junior Minister or a senior civil servant, on behalf of the Executive, who will make the decision that will affect the lives of individual prisoners?

In principle, the Executive should have no—or a minimal—part in the area of sentencing and the disposal of individual criminals. That actually breaches the rule of law in a fundamental way. The strength of the Parole Board, as the noble Baroness said, has been its independence, but that independence is being compromised by the proposals in the Bill. Allowing the Executive any greater role needs to be scrutinised with great care and permitted only when the necessity is proven. In my view, that case is not proven here.

Illegal Migration Bill

Lord Bach Excerpts

Report stage
Monday 3rd July 2023 Lords Chamber

[The Parliamentary Under-Secretary of State, Ministry of Justice (Lord Bellamy) (Con)]

My Lords, Clause 55 will ensure that individuals who receive a removal notice under the Bill have access to free legal advice. The clause at present applies only to England and Wales. In Committee, the noble Lord, Lord Ponsonby, properly asked what the position is regarding Scotland and Northern Ireland. The Scottish Government advise that legislative provision is not required to ensure persons issued with a removal notice can access free legal advice in Scotland. Legislative changes are required, however, in Northern Ireland. Amendment 154 ensures analogous provision in Northern Ireland to that already applicable to those seeking legal advice in England and Wales. It is simply an extension to Northern Ireland of the provisions of the Bill. That is the content of government Amendment 154. The noble Lord, Lord Bach, has an amendment in this group and I defer to him at this point. I beg to move.

[Lord Bach (Lab)]

My Lords, I will speak to my Amendment 155, which is in the same terms as it was in Committee. I am extremely grateful to the noble Baronesses, Lady Ludford and Lady Prashar, and of course to the noble Lord, Lord Carlile of Berriew, for putting their names to this amendment and adding some lustre to it. I am also grateful for a superb briefing note from Bail for Immigration Detainees, ILPA and the Public Law Project.

In my view, ensuring that those who are detained have legal advice at an early stage is of fundamental importance. Obviously and above all, it is important to the detainees themselves, but it is also important to the reputation of our much-vaunted legal system. I ask the House to think about it for a moment: the proposition that, in our country, any person, whether adult, child, pregnant woman or victim of trafficking, can be deprived of their liberty and, at the same time, of proper legal advice is horrific, unconscionable and unconstitutional.

Clause 55 provides for insufficient access to civil legal services. It is concerned with free legal advice and representation only in relation to removal notices. It makes access contingent upon receipt of a removal notice and does not ensure that the necessary services will be made available shortly after a person has been detained. I remind the House that there is no set timeframe in the Bill for the Home Secretary to serve a removal notice under Clause 7. It is therefore not unrealistic to suggest that an individual could be left to linger in detention for days and even weeks before a removal notice is served by the Home Secretary and thus before they are able to access legal aid under Clause 55. Accordingly, the Bill does not provide for people trapped in its provisions assurance of access to free civil legal services before a removal notice has been served on them.

Clause 55 also does nothing to address the reality that it is practically impossible for many people to access legal aid under existing entitlements. There are, as I think the House knows, vast numbers of unrepresented individuals seeking asylum and in detention due to the current unsustainability of and lack of capacity within the immigration and asylum legal aid sector.

Our Amendment 155 introduces a new clause—a duty to make legal aid available to detained persons, which would address this issue in England and Wales by supplementing what the Government intend to achieve in their Clause 55. It would place a duty on the Lord Chancellor to make civil legal aid available to detained persons in relation to already in-scope judicial review and immigration matters, and suspensive claims, within 48 hours of their detention. This is crucial, given that the Bill gives the Home Secretary wide powers to detain families indefinitely, to detain children who are alone and to detain vulnerable people such as pregnant women, while also placing a duty on the Home Secretary to remove them, with short timeframes to make suspensive claims with compelling evidence to prevent such removal.

I hardly need to remind this House of Parliament that the provision of legal aid is a key component of ensuring the constitutional right of access to justice—itself inherent in the rule of law. The courts have repeatedly upheld the principle that a failure to provide legal aid can amount to a breach of fundamental rights. Legal aid is essential to ensure that people without means can secure effective access to justice and redress.

So why is this amendment needed? As I think the House knows, legal aid was, in effect, decimated in this area of law by the legal aid cuts of 2013. Most non-asylum immigration matters are excluded, which has damaged the entire immigration and legal aid sector and the ability of everyone, including individuals seeking asylum and those in detention, to access reliable, quality legal aid immigration advice. Immigration law is highly complex and extremely difficult, if not impossible, to navigate without a lawyer.

It is unrealistic to believe that individuals seeking asylum, who have just arrived in the UK and who may be traumatised or vulnerable and who may speak little or no English, can understand our complex laws and make effective representations without professional legal assistance. As stated by Lord Justice Underhill in last week’s decision on the Rwanda scheme, cases where decisions are fair and where there has been no access to legal assistance are “likely to be exceptional”. I pray that in aid of this amendment. Amendment 155 would help to secure timely access to legal assistance, which is crucial to the fairness of decision-making.

--- Later in debate ---

Tabled by

[Lord Bach]

155: After Clause 55, insert the following new Clause—
“Duty to make legal aid available to certain detained persons(1) The Lord Chancellor must secure that civil legal services in relation to—(a) a suspensive claim within the meaning of section 37(2) of this Act, and(b) any of the matters set out in paragraphs 19, 20, 21, 22, 24, 25, 26, 27, 28, 29, 30, 31, 31A, 31C, 32 or 32A of Schedule 1 to the Legal Aid, Sentencing and Punishment of Offenders Act 2012are made available to any person who is detained under a relevant detention power within 48 hours of the day on which they are first detained under that power.(2) The Lord Chancellor may make such arrangements as they consider necessary for the performance of their duty under subsection (1).(3) The duty under subsection (1) is subject to—(a) section 11 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (qualifying for civil legal aid) and any regulations made under that section, and(b) section 21 of that Act (financial resources) and any regulations made under that section.(4) In this section—“civil legal services” has the same meaning as in section 8 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012;“relevant detention power” means a power to detain under—(a) paragraph 16(2) or (2C) of Schedule 2 to the Immigration Act 1971 (detention of persons liable to examination or removal),(b) paragraph 2(1), (2) or (3) of Schedule 3 to that Act (detention pending deportation),(c) section 62 of the Nationality, Immigration and Asylum Act 2002 (detention by Secretary of State), or(d) section 36(1) of the UK Borders Act 2007 (detention pending deportation).”Member's explanatory statement
This amendment places a duty on the Lord Chancellor to make civil legal aid available to certain detained persons in relation to judicial review and immigration matters within 48 hours of their detention.

--- Later in debate ---

[Lord Bach (Lab)]

My Lords, as far as Amendment 155 is concerned, I thank all noble Lords who have spoken in this fairly short debate. The person who took much the longest was me, and I am not going to make any apology for that because this is an important subject in the context of the Bill.

Still, I thank everyone for their comments, not least the Minister himself, who I personally believe is quite sympathetic to the ideas put forward in this debate. I do not want to embarrass him unduly by going on, but he has been very helpful in discussions outside the Chamber. His contribution today was a little harsher than I had hoped, but we will see what the consultation does. I must say that much more active work will be needed by the department, perhaps over a period of time, before we get to a satisfactory position.

On parallels with other, existing schemes, it is important to realise that, as I understand it, many of them involve half-hour telephone conversations. It will not surprise the House to hear that half-hour telephone conversations are not satisfactory for people who do not speak good English and are perhaps extremely vulnerable at the time. Such conversations are not really enough and, as I say, many of them are on the phone rather than face to face.

Something the Government will have to think about is that the new establishments that we hear will house many of those who are detained, if and when the Bill becomes law, will be quite strange places, such as barges and places like Scampton. Getting legal advice into those places—and face to face is pretty important here —will cause quite a lot of problems for the Government. It will involve extra resource, as I think the Minister understands.

Tempted as I would normally be to test the opinion of the House, I appreciate that we are here pretty late after a full day, and I do not think the House would thank me for dividing it at this stage. That is not to say for a moment that the issues we have been debating for the last few minutes are not crucial to what sort of country we are. Detaining individuals—the state depriving people of their liberty—is an issue that this House has always taken incredibly seriously. Even though I am not going to press the amendment, and while I will not say that I am warning the Minister, he will not be surprised to hear me say that we will be coming back to this issue and watching very closely over the next few months to see how it develops.

Consideration on Report adjourned.

Illegal Migration Bill

Lord Bach Excerpts

Committee stage
Wednesday 7th June 2023 Lords Chamber

[Baroness Jones of Moulsecoomb (GP)]

My Lords, this Bill is about removing rights and making life as miserable as possible for some of the most vulnerable and desperate people in the world. I find it impossible to understand how we have ever come to this point. Part of this process is removing human rights with regard to access to the courts—removing the courts’ ability to intervene when the Government act unlawfully. How can that happen? How can this come to us in any sort of legislation? Detaining and deporting people without providing them with any legal advice, or even any information about how to obtain legal advice, all contribute to this denial of human rights.

I was in Belgium for a few days last week. I speak decent French and some German and there were times when I could not understand a word anyone was saying. The idea that we might not help people in a language they can understand and communicate in astonishes me.

We are in an absurd situation where murderers and paedophiles could be more kindly treated by the law than, for example, a desperate family who arrive in a small boat from across the channel.

Then there is the outrageous Clause 7. This is bonkers. When I first read it, I had to laugh—it sounds like something a two year-old might come up with. It says that the Secretary of State can commandeer

“any ship, aircraft, train or vehicle”.

So the border patrol—or whoever it is—can stuff people into somebody’s car and say, “Right, you are responsible for them. You get them out of the country”. It is astonishing. Who wrote this? How does this come from a Government whom we sort of hope might be able to tough it out for the next few months—actually I do not want them to tough it out; I want them to go. Presumably, this Government do want to tough it out, so why bring this sort of rubbish to this House? It is actually quite offensive.

In Clause 7, they are asking ordinary citizens—the British public—to act as border enforcement agents. I do not think any of us would want to do this, even the most rabid ERG member you could possibly think of. This is part of the problem with the Bill. It is not going to help the situation in any way at all. Is it designed to pander to the extreme right wing of the Government, so that they can say they are doing something and perhaps retain those votes? I have no idea. The thought processes are beyond understanding. Clause 7 is unbelievably bonkers.

It shows how this Government are trying to exploit Just Stop Oil, asylum seekers or people such as that to make the public think they are actually doing something about the problems these people are facing. I really hope that we defeat quite a lot of this Bill before it gets much further.

[Lord Bach (Lab)]

My Lords, what rights people have when they come into this country—unlawfully, the Government claim, although some of us would disagree—is surely an essential part of this Committee’s consideration of the Bill. I know the Minister is a member of the Bar and has practised in criminal courts and elsewhere, so he will understand instinctively how important the question of rights is for people who have just come into this country, often in a destitute state.

We know that later in Committee we will debate legal aid and the Lord Chancellor’s duties. Those are important matters to be considered then but I wonder, given the speeches that have been made on this group, whether he has something to say about the Government’s attitude towards the rights of people whom he or others may not like, but who do have rights when they arrive in this country. Do we just say that there are no such rights—no right to any advice or legal aid, if that is necessary, because they deserve what comes to them—or do we take the more sensible and British attitude that anybody who ends up on our shores and is in trouble should be entitled to some advice?

[Lord Balfe (Con)]

My Lords, broadly speaking, I support this Bill, but there are many things in it which give me cause for concern and we have now hit one of them. The noble Lord, Lord Davies, mentioned it—the extent to which the state can co-opt unwilling people to implement its legislation. Regarding those who happen to be the driver of a train or pilot of an aircraft that has on board what we are now going to determine is an illegal immigrant, how can we force such people to act as agents of the state in detaining them?

The noble Lord, Lord Davies, mentioned that this will come up in the next group but it is an important, fundamental point. I am not talking about the refugees but the many trade unionists who will be horrified at the thought of being co-opted as almost part of the police. This is not on. Before the Bill moves to the next stage, I hope the Government can come forward with some proposals which will exempt ordinary workers from becoming its policemen.