Royal Commission on Criminal Justice

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Wednesday 15th July 2020 Lords Chamber

[Lord Keen of Elie]

My Lords, as I said, the terms of reference have not yet been finalised but, clearly, the royal commission will be addressing some of the more fundamental issues with regard to the delivery of criminal justice in England and Wales.

[Lord Balfe (Con) [V]]

My Lords, there is clearly a large degree of skill in the House of Lords which could contribute to these terms of reference. Since the Minister has said several times that they have not yet been finalised, is he willing to convene a ministerial meeting of interested persons in the House of Lords to discuss the detail of the terms of reference and what they could—and should not—cover, so that when the terms are announced they have broad support in the House?

[Lord Keen of Elie]

My Lords, given the stage we have reached in this process, I cannot undertake to carry out such an exercise, which, I suspect, would result in considerable delay. We are in a position where we can finalise the terms of reference and make them public in the very foreseeable future. As I said, we are hopeful that the royal commission will commence its work in the autumn.

Prisoners (Disclosure of Information About Victims) Bill

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Report stage & Report stage (Hansard) & Report stage (Hansard): House of Lords
Wednesday 1st July 2020 Lords Chamber

[Lord Thomas of Cwmgiedd (CB) [V]]

My Lords, I agree with the noble and learned Lord, Lord Garnier: the Bill is best left as it is. Although it is a limited purpose Bill and to be welcomed, there is plainly a need for a proper review of the Parole Board in due course. That is the occasion on which we should look at matters in the round.

In my experience, the Parole Board approaches the exercise of its discretion with the greatest possible care and, in cases where there are issues of mental capacity, takes infinite care to ensure that it has available all the necessary information, including reports from the prisoner. Occasionally, mistakes are made. However, there is always the remedy of judicial review, and it seems to me that it would be much better to leave the Bill as it is, allowing any errors on matters as obvious as mental capacity or findings of the trial judge to be taken into account. The Bill should be left alone; we should not amend it.

Earlier this week, we considered the state into which the law of sentencing has got by a piecemeal approach. It is not something we should do in criminal justice. Although I shall have something to say in detail about Amendment 3, I accept entirely the analysis of the noble Baroness, Lady Bull, and that of the noble and learned Lord, Lord Hope of Craighead. However, my acceptance of their analysis of the proper approach does not persuade me that it is necessary to amend the Bill. The issues can be safely left to the discretion of the Parole Board, and there is a remedy if it fails to do that.

[Lord Balfe (Con) [V]]

My Lords, I spoke in Committee and, subsequent to that, I had an exchange of correspondence with Marie McCourt. I would not like anything said today, and I do not think that any noble Lord would mean it, to take away from the need to right the hurt that she, and those dear to her, have felt.

I said on the last occasion that the Parole Board itself needed a thorough overhaul and the Minister, if I remember correctly, agreed with me. My concern here, as it is in many places, is that any law brought in to right a specific wrong can often be wrong itself—you need a much more generalist approach.

None the less, I welcome the Bill. My point is that, when you deal with mental capacity, you also have to remember human frailty. The fact of the matter is that people can just forget. There is at least an element of possibility that someone could just forget what they had done. It is also possible that they could just forget who photographs were of. I know that that may not be a popular thing to say but, going back many years to when I was in the Territorial Army, we used to have exercises where we dropped people and they then had to find their way to places. I was always amazed at how people could not recognise things. There is a genuine defence that someone has just forgotten.

Secondly, I hope that the Minister can assure us that we are not passing a law that will go to Strasbourg to be interpreted. When I look at this, I wonder whether it will pretty quickly end up in the European Court of Human Rights, where it will not be us doing the legislating but the judges in Strasbourg. I welcome the Minister’s assurance that he really does think that it is proof against even a reasonable prospect of a challenge in the court.

Finally, I agree with the noble and learned Lord, Lord Hope, that wording matters. It can matter quite strongly in the case of a Bill such as this one.

[Lord Carlile of Berriew (CB) [V]]

My Lords, I share the sympathy that has been expressed for the families of the victims who are behind the motivation for the Bill.

I looked carefully at the background to this issue to see what effect—[Inaudible]—stage had on the Bill to see if there is a necessity for the amendments that are proposed today. I examined paragraphs 32 and 33 of the Explanatory Notes, which say, among other things:

“The proposed change is to put Parole Board practice on a statutory footing … the Bill will not result in any change to current Parole Board practice and it is not anticipated that there will be any impact on the prison population”.


I also listened carefully to the Minister, who, in effect, repeated that analysis in relation to today’s proceedings.

I share the view of the noble and learned Lords, Lord Garnier and Lord Thomas of Cwmgiedd, that we should not interfere with sound parole practice if Parole Board practice is—[Inaudible]—the Parole Board would be much more transparent—[Inaudible]—subject to closed hearings, national security and certain views of—[Inaudible]—confidentiality could be heard in public. What have the Government done to obtain the views, on both this Bill and the amendments that were passed earlier, of the current deputy chair of the Parole Board, His Honour Peter Rook QC—a very experienced and admired judge—and his predecessor, the former High Court judge, Sir John Saunders? I have a suspicion that, if consulted, they would say, “Well, first of all, we would prefer Parole Board procedure to be kept flexible and not to be circumscribed in any way by this Bill”, which—[Inaudible]—any changes to Parole Board practice.

Secondly, I would expect them to say that attitudes to cases change over the years, and that the Parole Board must be a living instrument, dealing with applications—[Inaudible]—released from prison, often many years after the event. I think that I once prosecuted a defendant who was sentenced to a whole-life tariff, remains in prison on that tariff and has taken his case to the European Court of Human Rights at least once. He happens to be the person who—[Inaudible]—which was just mischief-making. That is another example of the flexibility that the Parole Board needs in order to take account of the activities and attitudes of people who have committed dreadful offences such as these.

My main point is that the Parole Board should retain its flexibility to deal with all these issues as part of the larger picture in each case. On balance, I feel that the Bill in its original form does that more successfully than the Bill would do with the amendments added.

Sentencing Bill [HL]

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2nd reading & 2nd reading (Hansard) & 2nd reading (Hansard): House of Lords
Thursday 25th June 2020 Lords Chamber

[Lord Balfe (Con) [V]]

My Lords, I would like to make three points. First, we have heard it reflected many times in this debate that, in the survey, 36% of the sentences were found to be unlawful. What has not been said, unless I have missed it, is how many of that 36% were under-sentenced and how many over-sentenced; in other words, how many people should have been let out, and how many were not given the right sentence and should have been there for longer? But the question that arises, for me, is: what about the rest? Will there be a review of all the sentences to see whether people have been sentenced correctly? If not, will it be open to prisoners to have their own sentences reviewed? The figure of 36% is very high. We cannot just pass on and say, “It will all be all right when we get this new Bill on the statute book.” People will still be in prison. So, my first question to the Minister is: will all sentences now be reviewed in the light of the discovery of this sample?

My second point is that any future changes in sentencing must be made by changing the terms of the Sentencing Code, and not in a new document. If it becomes a new document, the whole thing will start to fall to pieces. I would like the agreement of the Minister to the effect that this will be the template for the future, and there will not be new sentences added on.

The third thing to which I draw the House’s attention is that, as we all know, whenever anything goes wrong there is a great tendency to reach for a press release and demand a tougher sentence. I noticed that, when the statue of Winston Churchill in Parliament Square was quite disgracefully daubed, instead of the correct response—saying that prosecution should be made under the law as it exists, because it was an offence—there was an immediate call for a minimum 10-year sentence for defacing a statue. Frankly, that is quite ridiculous and out of proportion. I ask that we are careful not to carry on passing sentences for offences that already exist. There is a tendency to say that we will have a sentence for this or that, without acknowledging that the matters under consideration are already offences.

As the noble Lord, Lord Harris, and a couple of others have mentioned, we have a huge and growing prison population. When I was first in the European Parliament, Turkey was well ahead of Great Britain in the number of people that it had in prison. At the end of Mrs Thatcher’s premiership, there were 40,000 people in British prisons—slightly fewer than in Turkish prisons. Today, the total is projected to grow to 85,800 by 2022 and is still heading up. I am told that the 100,000 mark will be reached around 2030.

I am not against prison sentences. In any society you need prisons and to sentence people to prison, but you also need to make prisons places that people do not want to go back to. I suspect that, in many cases, people are so hopelessly damaged when they come out of prison that they drift back into reoffending. I acknowledge that this is not part of this Bill, but in the context of our criminal justice system we need to look at a proper way of building rehabilitation and retraining into our system.

Prisoners (Disclosure of Information About Victims) Bill

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2nd reading & 2nd reading (Hansard) & 2nd reading (Hansard): House of Lords
Tuesday 28th April 2020 Lords Chamber

[Lord Balfe (Con)]

My Lords, I would not imagine that there is anyone in this House who does not support this Bill; we extend our sympathy to those who sadly gave rise to it and our congratulations to those in the other House who have brought it this far. I fully support the Bill, but I have some questions, which I will address to the Minister and the House.

The briefing note says that the Bill puts into statute already established guidance for the Parole Board. The delegated powers memorandum says that where

“the offender has not disclosed the location of the victim’s remains, the Parole Board must take that into account in determining that prisoner’s suitability for release.”

I do not think that anyone could disagree with that, but it leads to the question: why is this necessary? Why do we need to guide the Parole Board—unless we believe that maybe it has lost its way?

If we are going to have greater transparency for the Parole Board, which I think is a good thing, we also need to know—from the Minister, I hope—when the review that was indicated in the Conservative Party manifesto is expected to report and to lead to some changes. It could be argued that part of the problem is, first, the personnel on the Parole Board, and, secondly, the omerta that surrounds much of its proceedings. Both of these things I have no answer for, but they need to be looked at.

I note that the Bill does not extend to Scotland and Northern Ireland. Is it envisaged that within the devolved Administrations settlement it will be discussed with them, with a view to then bringing matters into line?

The provisions for reviewing convictions also probably need to be looked at. As has been mentioned, some people in prison maintain very rigidly that they are innocent. They may be guilty but have convinced themselves that they are innocent, or they may think that they have been wronged. I am not against a tough system on release, but there has to be an adequate system for reviewing the convictions of those who maintain their innocence—at least the evidence should be looked at again. It is in no way a comparable series of offences, but one thinks of Guildford and Birmingham and the way in which miscarriages of justice were carried through in the past. It is possible, in a very febrile atmosphere, that a conviction might be upheld; the Parole Board may meet in secret but trials are conducted in public, and it is possible for people to be carried away.

The noble and learned Lord, Lord Garnier, mentioned wilful non-disclosure. There is a certain amount of wilful non-disclosure, but we also need to be careful of what I think of as “mind-blanking”: in other words, the psychiatric condition where people just cannot face the fact that they have done something, or their mind goes completely blank. There is a condition where you just forget everything that has happened.

I have often thought that Ian Brady, who led the police and the judicial authorities a merry dance for many years over the location of the Moors murders bodies, had probably forgotten where they were. But it was an excuse for him to get a day out from time to time, and maybe he realised that he was never going to be released. I have never been convinced that he actually knew where the bodies were. I may well be wrong, and I am certainly not suggesting that he should ever have been released, but it is possible for people to completely blank out things in their lives.

I also have a slight reservation about the child abuse provisions. Is it possible that people could name the wrong children? I think it is, particularly if the crime was some time ago. The offender is presented with a list of children who may have been in that nursery. He then thinks, “Well, if I name some, it will help me to get out, but I can’t really remember whether it was X or Y. I think it was X, so I’ll name X”—but if they are wrong, that also has a very severe impact on the child who is wrongly named. I do not have the solution, but I think the question needs looking at.

My final point is that there is a need for the Parole Board to see some psychiatric evidence and to have some independent people before it. I am certainly not advocating a legal aid bonanza of prisoners being able to hire QCs and have full hearings, but I think provision should be made for the Parole Board to call independent expert witnesses, particularly in areas such as mind blanking and the like, to advise it. We probably need also to look at the membership of the Parole Board and the degree of secrecy within which it is able to work.

Can the Minister say when it is envisaged that this law will come into force? I note that the decision is left to the department. Does he have any idea when the department will aim to bring it in?

Covid-19: Prisons and Offender Rehabilitation

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Thursday 23rd April 2020 Lords Chamber

[Lord Balfe (Con)]

Thank you. I thought that my microphone was being unmuted centrally.

I thank the noble Lord, Lord German, for initiating this debate. I want to say a few words on behalf of what I consider to be the forgotten public service. The Prison Officers’ Association is the trade union that covers prison officers. It has some 37,500 members, of whom 7,000—roughly one in five of the membership—are self-isolating. Four of its members have died of coronavirus and 231 have tested positive for the virus.

Noble Lords will remember that I have argued in the past that it is quite legitimate to have a tough prison regime, but we have to remember the people who look after the prisoners, and we have to make sure that everyone who is in prison has a decent standard of life. There is nothing wrong with locking people up but there is a lot wrong with not giving them a decent standard of life. I want to ask the Minister to consider three issues which the Prison Officers’ Association regards as a high priority.

First, testing should be made available for all prison officers. Apart from anything else, a number of those 7,000 who are self-isolating would be found not to be carrying the disease and could be back at work, which would help the service.

Secondly, there is a great lack of PPE equipment. Most officers in most prisons do not have access to a full range of equipment; much of it is inadequate and much of what is supposed to be there is missing. Can the Minister assure us that the same priority that is being given to NHS outlets will be given to prison outlets, so that prison officers can be properly protected?

The third issue is recognition of key workers. A number of supermarkets, for instance, have refused to recognise prison officers as key workers. Can the Government make it very clear that they are key workers?

Terrorist Offenders (Restriction of Early Release) Bill

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2nd reading & 2nd reading (Hansard) & 2nd reading (Hansard): House of Lords
Monday 24th February 2020 Lords Chamber

[Lord Balfe (Con)]

My Lords, I am not a lawyer, but I have listened with great interest to those lawyers who have spoken today. I start from the position that many people in Britain do not understand why this law is necessary, because the common belief is that if people are sentenced to a prison sentence, they serve it. It is only here that we learn of all the nuances and the way in which sentences are two-thirds, one-third or a quarter or dependent on the Parole Board. The fundamental belief of people in Britain is that, if you are sentenced to a term in prison, you should serve it. There may be a reason for having an early release, supervised by the Parole Board, on clear grounds of good behaviour or by being eligible for release for other reasons, but the idea among most of the general public is that, when people are sentenced to a period such as in the headline “X gets five years”, that should mean five years.

My starting point is that I strongly support what the Government are doing, and I am sorry that it was necessary in the first place. I spent two and a half years as chair of the Council of Europe committee on the implementation of judgments of the European Court of Human Rights. In Britain, we had the matter of prisoners voting, and we got ourselves into a dreadful mess. The court came down with a fairly reasoned decision that was totally misunderstood by the Government, and it was David Lidington—who I still think was the best Justice Minister we had—who went to Strasbourg and unravelled the thing and sorted it out.

However, the point that I want to make goes a bit further than that. I am not well known on these Benches for asking the Government to spend money, but I reflect on the remarks of my noble friend Lord Howard, when he spoke about locking up the prisoners and throwing away the key. He says that he did not say that, but that was how it was reported, and it certainly had a great degree of public support. However, what has not had a great degree of public support is the deplorable state of the prisons themselves; we have heard about Whitemoor, and we have heard from my noble friend Lady Buscombe and the noble Lords, Lord Beith and Lord Carlile, about the conditions in prisons.

I would like to draw attention to a problem frequently brought to the fore by the Prison Officers’ Association, which is the trade union that represents prison officers. It is on the front line in prisons; it is its members who are assaulted. One of its members in Whitemoor was threatened with beheading. The fact of the matter is that, if there is one area in which privatisation has not worked, it is the Prison and Probation Service. It is a lot worse off now than in the past, and in the past it was not fit for purpose.

The problem we have is that politicians of all parties have been chronically unwilling to stand up to the press. The fact of the matter is that it is a cheap and easy headline to talk about prisoners living in luxury. I have been to Whitemoor prison at the invitation of the Prison Officers’ Association; it is not a nice place to be. It is overcrowded and dirty. The crucial thing about our Prison Service is that it is hidden; it is underground. People never look at it. They do not look at the prison officers and they regard a person put in prison as out of sight, out of mind. But they are still human beings, and the way in which our prison estate works can only encourage more recidivism. It is not in any way fit for purpose.

We not only need to look carefully at ways in which we can improve the Prison Service; we need more prisons. We cannot keep cramming people into the space we have. The population is expanding. The desire for prison sentences is expanding. In a democracy you have to reflect what the people want, but you cannot do it unless you have a proper service to do it. That means we have to up the status of the prison officers and the probation service. We have to talk to the unions—the Prison Officers’ Association and the probation unions—and take them into our confidence in building a Prison and Probation Service, and a deradicalisation service, that actually works.

We spend a lot of time talking about what happened in Streatham. Incidentally, my son has a bike shop in Streatham, not far from where this incident took place. It is a very ordinary suburb of London. We have to look at ways in which we can improve the Prison and Probation Service and make it fit for purpose, because recidivism is encouraged by these bad conditions. Bad conditions in prisons, and in particular the feeling among prison officers that they are unwanted, unloved and basically just kicked around and used for public relations purposes, are not the way forward. We have to value the prison officers and the probation service if we want to make the Prison Service work in the interests of what we have set forward as its tasks.

Brexit: Withdrawal Agreement and Political Declaration

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Monday 14th January 2019 Lords Chamber

[Lord Balfe (Con)]

My Lords, it is always a pleasure to follow my good friend the noble Lord, Lord Inglewood. I would like to begin by drawing attention to my entries in the register and reminding Members, if they needed reminding, that I am a strong advocate of remaining fully involved in the EU.

During this debate, a number of people have said that this is a great turning point, as though this has never happened before. I will start with some history, and draw attention to the fact that it has happened before. In the early 1930s, we had the Peace Ballot. That destroyed politics in Britain, right up to the Second World War. It shaped our attitude to the League of Nations; it made us cowards in the Rhineland; it distorted our policy in Abyssinia, which led Italy into its adventures there; and, overall, it was a disaster, compounded by regular voting against the Defence Estimates by the Labour Party and a failure of the Conservative Party to face up to its international duties. We face doing that again. This Government are in danger of being complicit in an act of monumental moral cowardice, which is where we are today.

There was never a possibility that we would get away without paying our bills. The £39 billion, which is being talked about as though it were some donation, is in fact the sum total of the liabilities we have contracted by sitting round the table in Brussels over many years. It contains all of the decisions that we have been complicit in taking. We cannot get away without paying it, unless we want to be international debt welchers, who will be taken through every court in Europe. We would also be distrusted by any international civil servants, because they will say that if we can abandon our contribution to the European Union, we could abandon it to the UN, UNESCO or any one of the international bodies we belong to. We would become international pariahs, and that is not on.

It was also inevitable that the final deal would be fashioned in such a way that no other country would be tempted to follow us. For the EU 27, the terms had to be substantially bad enough for others to decide not to leave. Allied to this, it has enabled a few outstanding grudges to be sorted out. Britain has blocked European defence for years, and now Germany and France can go ahead. We have been excluded from projects such as Galileo, and as the able former Minister, Sam Gyimah, said, we have “no voice, no vote, no veto”. We are told we will be consulted to the degree necessary. We might be, but our voice will only count if it suits the people who are listening to it. We will not be in the room. We will not have the voice, the vote or the veto. We will be outside the room.

On the practical details, when we, as Conservative Members, met Gavin Barwell, he drew attention to the non-regression clause on workers’ rights. When I challenged him, he said, “Oh, no, I am sorry, it isn’t enforceable”. I want to ask the Minister not to reply tonight, because it is too complex for his time in summing up, but to place in the Library a letter detailing what he intends to do about protecting employment rights within that non-regression commitment, particularly those covering paid holidays, rights for part-time workers, time off for working mothers and fathers, equal pay for women and limits on working hours, including a commitment to maintain the protection afforded by the working time directive. The noble Lord, Lord Mandelson, wrote me many letters when I was a Euro MP, asking me not to endorse the working time directive. I feel I am entitled to ask this Government whether they will endorse the working time directive.

If I could finish, and possibly upset a few more people on the way, I would counsel the Government not to do the politics of fear. It is not playing in the galleries. I live in Cambridge, and over the Christmas holiday I talked to many people. Their general reaction was, “We heard all this before. You said this in the run-up to the referendum, and nothing happened, so come off it, Richard, get real”. The argument for Europe is not about the price of carrots; it is about the future of this country as a player on the world stage and as a country which gives leadership and example by the values it believes in and projects. The amount of money we send to Brussels, which people carry on about, is frankly the price of a packet of peanuts compared to what we can do to make this world a better place. Please, stop the Brussels bashing and start realising where our future can lie. And do not make the mistake of the 1930s again.

Brexit: Negotiations

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Tuesday 20th November 2018 Lords Chamber

[Lord Balfe (Con)]

My Lords, I draw attention to my entries in the register and my, I think, fairly well known position as a very strong remainer. The key thing about this deal has been mentioned on many occasions, including by me. It is that you are never better off outside a club than you are inside a club. I happen to think that our civil servants who have been negotiating in Brussels have probably done as good a job as they could do. In the end you might have got a slightly different this and a slightly different that, but it has not been an easy negotiation.

The first thing I would say is that we are facing a second Suez. We have totally misjudged our place in the world. We have totally misjudged our importance to the European Union, and we are going to regret leaving the European Union every year we are out. I have no doubt about that at all. The fact of the matter is—and this document proves it—that we have got to live with Europe. You can change politics, but you cannot change geography, and Europe and Britain are inextricably linked. This document confirms us as the rule takers, not the rule makers. We will no longer be at that table, although we will be consulted. As one of my colleagues in Brussels said, “You will be consulted but you are no longer part of qualified majority voting and you will no longer be part of the strategy that shapes the decision”.

What do we get back from this? I heard that we get back control of immigration. That is useful, isn’t it? But we have always had control over half the immigration into this country, and government cuts to the coastguard service have meant that there is a fair bit of immigration going on at the moment in boats being brought across the channel, so I am not sure about that. And most of the immigration from the EU has helped to make Britain a fairly prosperous place economically. I find it difficult to believe that taking back control of immigration has been a great achievement.

Technically we leave the jurisdiction of the European Court of Justice—but only technically, because if we are going to export into and deal with Europe then we are going to have to obey its rules, and its rules are set down by the Court of Justice of the European Union. So we do not really have that. I am told we can negotiate trade agreements. The EU is busy negotiating a trade agreement with Vietnam, and when I happened to be in Vietnam recently I said to one of its Ministers, “Would you negotiate a trade agreement with Britain?” He said, “Of course we would”, but he went on, “Of course it would have to fit in with our obligations to Europe. We could not negotiate something with you that Europe objected to”—for instance, exporting a product such as rice to Britain and us then sending it across the channel under our agreements. So even the trade agreements do not work that much.

I saw our friends the Spaniards coming in at the last minute today, as they always do. Josep Borrell, former President of the European Parliament and Foreign Minister of Spain, has said the agreement has to be amended to take account of Spain and Gibraltar. You will find that the bill will go up. I have never known a Spanish Government who have not been susceptible to financial inducements, and they will certainly be presenting the bill here.

I say this to colleagues: this is probably the best deal we can get, but it is a sad day that we are even seeking it.