Arbitration Bill [HL]

Lord Beith Excerpts

2nd reading
Tuesday 30th July 2024 Lords Chamber

[Lord Beith (LD)]

My Lords, the noble Lord, Lord Hacking, has raised the corruption issue, and I will refer to it in a moment. First, I thank him for his contribution and for the insights he gave on Second Reading, in the life before the Arbitration Act 1996, which were illuminating.

The Bill is extremely important. Arbitration is important; it is a major earner for this country. We need to keep our arbitration system up to date, and its legal framework needs to be reliable and able to deal with circumstances that can arise. I am delighted that the noble Lord, Lord Ponsonby, has set out the Bill for us and will respond at the end, and I am grateful for his close interest in it. It is an amazing Bill in that it has been through so many processes that it seems almost inconceivable that improvements could still be made to it. They could, actually, but it might be contrary to the public good if we in any way delayed the Bill, which is now somewhat overdue.

The Law Commission did the work. There were consultations arising out of it. The Special Public Bill Committee did extremely good work on it under the able chairmanship of the noble and learned Lord, Lord Thomas of Cwmgiedd. The noble and learned Lord, Lord Bellamy, was much engaged with it and will no doubt refer to it in a moment. Since the original consideration of that Bill in the previous Parliament, Clause 1 has been amended to deal with the state party issue, which was referred to at the later stages of the Special Public Bill Committee. It was very disappointing that the Bill did not get dealt with in the wash-up, but I welcome the Government having moved quickly to bring it back again. I genuinely believe that we could proceed with it expeditiously. I do not usually argue for shortcutting parliamentary procedures, but the Bill has had a lot of parliamentary procedures and a lot of attention, and I think it is in a fit state to be made statute.

On the corruption issue, which was raised at a relatively late stage in the Public Bill Committee, the noble and learned Lord, Lord Bellamy, in responding, agreed to write to arbitral institutions to see what they were doing to ensure that the arbitration frameworks that we have are not used as a device for money laundering and other forms of corruption to be pursued. I would be interested to know what response he got while he was still in office. To the extent that responses came later, perhaps the Minister can assist us and tell us what indications were given that institutions and organisations were alive to this problem and were looking for ways to ensure that it did not feature largely in arbitrations that were conducted under the terms of the Bill.

We have a very good reputation for arbitration and some of those most experienced in it took part in the Bill’s proceedings. The work they put into it means that this worthwhile Bill deserves an expeditious passage.

Criminal Justice Act 2003 (Requisite and Minimum Custodial Periods) Order 2024

Lord Beith Excerpts

Monday 29th July 2024 Lords Chamber

Thirdly and finally, and slightly more vaguely, will the Minister, as he takes this statutory instrument through—and he mentioned the possibility of further legislation—consider whether there is scope for bringing IPP prisoners within this approach, and seeing that their release at greater pace, although not necessarily in every case, can contribute to the Government’s objective here, which is to relieve the pressure on the prison system? They should not be ruled out as a matter of course but should be looked at on a sympathetic basis where that can be done safely.

[Lord Beith (LD)]

We have all welcomed the Minister in three debates on three successive sitting days, so he has been thrown in at the deep end of parliamentary accountability. However, he has received some pretty sound advice from all the preceding speeches, including in the well-directed questions from the noble Lord, Lord Moylan.

Today what we are faced with from a parliamentary accountability point of view is not satisfactory. We know that the Government are caught in a difficulty whereby they have had to deploy a statutory instrument without it having gone to the Joint Committee on Statutory Instruments, on which I have served. That is a shame, because that committee and its excellent team of advisers go through statutory instruments in great detail and sometimes find mistakes. They occasionally find mistakes that throw into question the validity of the instrument and the ability to enforce it, so I hope that extreme and extra care has gone into the drafting of this instrument, which is quite complicated. For example, there are 54 excluded offences, and many other complications affecting various categories of prisoner. So we hope that it is looked at very carefully—and, in a defect is found, we hope that the Government will come back at a later stage with a revised instrument.

What we have today is not a policy but a response. The Minister gave some indications of how policy might be developed, but we are not there—we are not at that point. We are simply observing a government response to a desperate crisis, which any incoming Government would dread—well, it is happening. It is the result of underinvestment and delayed investment in prison building over a long period and the constant rise in the number and length of custodial sentences, as well as the large rise, to which the Minister referred, in the number of remand prisoners, which itself is largely the result of the huge backlog in serious cases coming to court, as part of the wider chaos that we find in our criminal justice system. I ask the Minister: is it in fact the case, as alleged in the press, that sentencing hearings for prisoners on bail have been deliberately delayed to avoid further sentences sending people into our already overcrowded jails?

We have a prison population that is three times the level it was when I became a Member of Parliament. The noble Lord, Lord Deben, has referred to how that contrasts with other European countries, and I share his concern about the fact that it has happened and that it is so out of line with how most countries view the same problems of crime that we face. The announced prison building programme cannot solve the problem, although it is needed. We have to remember that, when the prison building programme that we have now was announced, much of it was intended to replace unsuitable and inadequate prison accommodation—not to add to the total stock but to replace accommodation that should not continue to be used.

We have a prison system that cannot house its prisoners and cannot rehabilitate them, and we have as a result a completely unacceptable level of violence against prison staff as well as prisoner-on-prisoner violence.

Nothing we are doing today will change this. We have to review the trend of the ever-increasing use of custody. For that to happen—here I repeat what I said last week—we need to strengthen community sentencing and the services necessary to make it effective. We also need to establish a measure of crime and its seriousness which does not make custody the only means by which society can assert its abhorrence of serious and persistent crime. That is fundamental to the problem we have at the moment: the only way society knows how to recognise and deal with crime, as is reflected in the media and in ordinary conversation, is to say that we are not going to put up with these dreadful crimes and so we should put people in jail for longer, even if it is not relevant to the rehabilitation of the offender when they are eventually released. We have to face up to that problem, and that is going to require real leadership, rather than party-political leadership. The Minister has a background that makes him well suited for this; I hope he is given the scope to carry out that kind of leadership.

[Lord Hope of Craighead (CB)]

My Lords, I am intervening just to ask a question. The Minister used the word “stabilised” twice, I think, during his presentation of this instrument—he is looking forward to a stage when the Government can feel that the prison crisis has stabilised. Can the Minister explain a little more of what he means by the word “stabilised”? The point is this, as the noble Baroness, Lady Jones of Moulsecoomb, made clear: we are sending too many people to prison, and therefore one of the ways of stabilising the problem is by addressing rigorously the overuse of prison as a means of punishing crime. I am sure the Minister is well-equipped to carry out that campaign.

The other feature of our present treatment of offenders, particularly serious offenders, is the length of the prison term. I was Lord Justice General in Scotland some years ago, when I had the task of reviewing the tariffs to be imposed on discretionary life prisoners. These are people who, unlike murderers, were sentenced to life imprisonment because of the gravity of the crime they had committed. The average tariff I was imposing in line with what was the current practice then—this was about 20 or 30 years ago—was something like 11 years; now, it is way above that, at 17 or 18 years, or more, and lengths of sentences are going up into the 30s. In my time as Lord Justice General, such lengths of sentences were quite unimaginable, and I am not sure it is doing any good except to keep people in prison longer than ever before. That is why the crisis has grown. There is a fundamental problem that has to be addressed, and I urge the Minister to explain what he means by “stabilise”. Perhaps the Minister could also address more closely—not today, and not even in writing to me, but later, in discussion with officials—how the problem can be corrected, so that we do not find ourselves in two years’ time facing the same crisis we are facing today.

Beyond that, I commend the drafting of the regulation. I think a great deal of thought has gone into the measure. It has been carefully thought through and, as a means of dealing with the crisis, it is exemplary. However, it is the underlying problem that must be addressed, not the particular crisis itself.

Victims and Prisoners Bill

Lord Beith Excerpts

Report stage
Tuesday 21st May 2024 Lords Chamber

Amendments 162A and 162AA agreed.

[The Deputy Speaker (Lord Beith) (LD)]

If Amendment 162B is agreed to, I cannot call Amendment 163 in the name of the noble Baroness, Lady Brinton, by reason of pre-emption.

Amendment 162B

Moved by

Arbitration Bill [HL]

Lord Beith Excerpts

Second reading committee
Tuesday 19th December 2023 Grand Committee

[Lord Beith (LD)]

My Lords, it is a very good principle in the House of Lords to speak mainly on things of which you have a great deal of knowledge and experience. That principle has been followed in this debate admirably so far, and would have continued to be followed had my noble friend Lord Marks of Henley-on-Thames not been otherwise engaged today, leaving me with the task without that essential qualification.

What a fascinating debate it has been. We had the long sweep of history from the noble Lord, Lord Hacking, whose knowledge goes back even further than I had realised. The emphasis on the competitive market in arbitration, in which England is currently very successful, and its wider legal implications, which the noble and learned Lords, Lord Hope and Lord Thomas of Cwmgiedd, mentioned, means it is important to keep the laws and procedures up to date so we can continue to get that benefit. It is indeed competitive: was it last year or the year before when Singapore equalled the amount of arbitration that England had been able to achieve?

In the course of the debate, the noble and learned Lord, Lord Hope, initiated a discussion, in which others joined, of the additional subsection in Clause 6 of the 1996 Act. When I read it, I took it to mean that you could not automatically read across, from the contract being by English law, that the arbitration would necessarily be governed by the law of the seat unless it was expressly stated. It seems bizarre that you could conduct proceedings on a contract that was expressly stated to be of English law but you chose to do it by arbitration not under English law, but sometimes Bills have to prohibit bizarre things from happening. No doubt the Minister will be able to explain that to us.

I was helped by the noble Lord, Lord Faulks, who saved me the task of explaining the Nigerian case, the anxiety that it promotes about how corruption could be concealed within arbitration proceedings and what restraints there were on preventing that from happening by the clear, common-sense statement that if you discover serious corruption,  you should not allow it to be buttressed or assisted by the legal process that you are engaged in—that is, the process of arbitration. Arbitration takes place under commercial confidentiality, but it is not meant to be there as a means of allowing corrupt actions to be perpetrated. If the Minister could help us on what might be necessary to deal with that, I would certainly be very grateful. However, I recognise that amending the Bill at this stage, given the special procedure to which it is subject, is not necessarily an easy option even if we could agree on what that amendment should be.

The history of arbitration in England and Wales in recent years is a huge success. It is a major source of foreign earnings and, even more importantly, a great reputation support for our legal system in general and, consequently, for our commercial success. The 1996 Act has operated as a model of its kind and has worked extremely well. There are a huge number of commercial contracts, often nothing to do with England or English entities, that include English arbitration clauses, making England the seat of any arbitration and often subject to English law. A large number of such contracts make English law the law of the contract, not just the law of the arbitration. Undoubtedly significant in that success is the reputation of English arbitrators, including many well-known retired judges—some of them might be Members of this House—for legal incisiveness, incorruptibility, impartiality, courtesy and an unfussy and relatively informal style.

The Bill makes small changes to the Arbitration Act 1996 and introduces some reforms, all of which will be beneficial. It is a model of the Law Commission’s work and, welcome to say, a model of Parliament attending to the Law Commission’s work with due expedition, which has not always been the case. When I chaired the Justice Committee in the Commons, we were constantly complaining about the work that the Law Commission had done that was going nowhere because parliamentary opportunities had not been found to take it forward. This is a very good example of the Government taking it forward and using the fast track that is available. The work itself—two public consultations and thorough consideration of the responses —is also commendable.

The debate so far has identified most of the significant features of the Bill. Other things that I have not mentioned so far include the duty of disclosure, which may be important for parties from outside the UK who are not accustomed to the way in which normal practice would support disclosure in this country. Having an explicit provision may be helpful from that point of view.

Then there is the power to make awards on a summary basis, which reflects the power that courts have to make summary determinations where one party or the other has no real prospect of success. That does not have to be in relation to the whole claim but can relate to particular issues, and the benefit is to stop parties running hopeless points, often at the risk of running up costs for both sides that may not prove recoverable, and at further risk of delaying the proceedings.

Good case management by arbitrators, with the help of the parties in identifying and defining issues suitable for summary determination, could save time and costs. Importantly, it can encourage parties to settle proceedings where summary awards are given on particular issues.

Then we have in Clause 11 the streamlining of the procedure for determining challenges to the courts for awards on jurisdiction under Section 67. That, too, is a helpful improvement in the Bill.

This Bill has been carefully prepared. We spend a lot of time in this House looking at Bills which have been woefully or inadequately prepared, contain numerous unresolved issues or do not even give proper effect to their stated purposes. We cannot say that about this. It is a model of its kind, as is the way that it has been gone about, and I welcome it.

Legal Services Act 2007 (Approved Regulator) Order 2023

Lord Beith Excerpts

Tuesday 12th December 2023 Grand Committee

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

My Lords, I have to confess that I struggle to find anything interesting to say about this statutory instrument.

Under the Legal Services Act 2007, the Legal Services Board oversees various approved regulators for persons providing legal services. They are designated under Schedule 4 to the Act. In 2009, the Association of Chartered Certified Accountants—ACCA—was designated for the regulation of probate activities. It did not embark on any regulatory activities until 2018, when it found that the uptake was extremely low: it granted authorisations for probate to only 99 persons. At that point, the association discovered that the costs of regulating were very high and it therefore determined that it would withdraw from that activity. It applied to the Legal Services Board in October 2021 to cease to be designated as an approved regulator. The Legal Services Board approved that request on condition that the 99 persons already approved had either ceased to practise or been transferred to another regulator, mainly CILEx Regulation. That condition having been fulfilled, the Legal Services Board asked the Lord Chancellor to regulate the situation by removing the designation of the ACCA under the Act. This statutory instrument now rounds off that process and terminates its authorisation, which is to all intents and purposes redundant anyway. I beg to move.

[Lord Beith (LD)]

My Lords, it is indeed difficult to find many interesting things to say about this instrument, except perhaps that it has taken more than two years to get to this point after the ACCA decided that its members did not want to be either engaged in or regulated in respect of probate work. However, I have a question about CILEX that puzzles me.

The transitional arrangement is that some people will be or have been transferred to CILEx Regulation. CILEx Regulation is itself the subject of a consultation, which ended in November, because it has been proposed that it should be transferred to the Solicitors Regulation Authority—a much larger body. What will that mean? Will accountants, or staff of accountants’ offices, be transferred to CILEx Regulation by the Solicitors Regulation Authority, or will some other transitional arrangement be made for them? The Minister is studying his papers; I hope he has an answer to the question.

--- Later in debate ---

[Lord Bellamy (Con)]

My Lords, I think I have only one question to deal with, on the transitional arrangements for the 99 persons with whom we are concerned. My understanding—I will write to the noble Lord if my understanding is wrong—is that these persons have already been or are being transferred, so they are subject to an appropriate regulatory structure.

There is an issue in that there is some kind of dispute between CILEX and CILEx Regulation, which regulates it. That is an ongoing matter that will be resolved in due course by the Legal Services Board, or perhaps it will recommend a solution to the Minister. As I understand it, it is not appropriate for the Government to comment at this stage on how that will be sorted out. CILEX wants to be transferred to the Solicitors Regulation Authority, whereas CILEx Regulation is resisting that. It is an unresolved, ongoing dispute that is separate from the issue we are discussing, but the Government’s position is to stand away from it while the regulatory bodies sort it out between themselves. I do not know whether I have managed to approach the noble Lord’s question—

[Lord Beith (LD)]

I thank the Minister for his helpful answer. It would be helpful to have reassurance from the Government that, in so far as there are still people from this background engaged in probate work, they will continue to be regulated and know by whom they are regulated.

[Lord Bellamy (Con)]

As far as I am aware, I can reassure the noble Lord that they will continue to be regulated appropriately. If there is any further information that I need to convey, I will write to noble Lords accordingly.

Sentencing Act 2020 (Amendment of Schedule 21) Regulations 2023

Lord Beith Excerpts

Tuesday 12th December 2023 Grand Committee

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

My Lords, around a quarter of homicides in this country are domestic homicides, where one spouse or partner, or ex-spouse or ex-partner, is killed by the other. In recent years, there has rightly been a considerable focus on these tragic cases. We have had a number of particularly tragic instances, such as when Poppy Waterhouse and Ellie Gould were killed by their ex-boyfriends in 2018 and 2019 respectively, and that of Sally Challen, who killed her husband after years of domestic abuse and whose conviction for murder was replaced by a conviction for manslaughter in 2019.

The law of murder in such cases is currently being reviewed by the Law Commission at the request of the Lord Chancellor. Today, we are concerned not with the law itself but with sentencing. The statutory framework for sentencing in murder cases is to be found in Schedule 21 to the Sentencing Act 2020, replacing earlier legislation, as supplemented by guidelines of the Sentencing Council. However, hitherto, nothing in Schedule 21 has specifically addressed domestic homicide.

In the light of all this background, in 2021 the Government asked Clare Wade KC to conduct an independent review of domestic homicide sentencing. The Wade review was published in March 2023, and the Government’s final response was published in July 2023. Today’s instrument takes forward Clare Wade’s recommendations 5 and 8.

Regulation 3 of this statutory instrument deals with a murder that has occurred where there is coercive and controlling behaviour in a domestic context by the offender. It provides that such behaviour will be an aggravating factor for the purposes of paragraph 9 of Schedule 21, which sets out the statutory framework for dealing with aggravating factors. The instrument further provides that, where the situation is the other way round, and the coercive and controlling behaviour has been on the victim’s part—typically, where it is the woman who has killed the man—the fact that the woman has killed having been subject to coercive and controlling behaviour shall be a statutory mitigating factor for the offender subject to such behaviour for the purposes of paragraph 10 of Schedule 21.

In addition, regulation 3 of the draft instrument implements recommendation 8 of the Wade report, which deals with a situation known in shorthand—and, I must say, completely inadequately described—as “overkill”. This arises in cases, particularly at the end of a relationship, where the offender, typically the man, kills the woman in circumstances of extreme violence, defined in the instrument as “sustained and excessive violence”. That too will be a statutory aggravating factor. As I understand it, some 40% of domestic homicide cases occur at the end of a relationship, when the rage and anger are so intense that these very unfortunate and excessive situations arise.

[Lord Beith (LD)]

My Lords, I am sorry to interrupt the Minister while he is introducing the regulations. I am slightly worried that there is confusion over the ending of a relationship, which was a separate recommendation of the Wade report that is not dealt with in these instruments.

[Lord Bellamy (Con)]

My Lords, I thank the noble Lord, Lord Beith, for that intervention. There is a further aspect of information that I would like to share with the Committee to deal with the very point the noble Lord has raised, for which I thank him.

I have explained the statutory instrument before us, but I need to complete the picture for the Committee. In the Criminal Justice Bill, which is already before the other place, there is a provision that deals explicitly with murders committed at the end of a relationship, defining it as in itself an aggravating factor. Your Lordships may well ask whether it seems a little bit piecemeal that we have this statutory instrument and something in the forthcoming Bill. That point was quite understandably made by the Secondary Legislation Scrutiny Committee in its consideration of this instrument. What happened was that the two recommendations that we are dealing with were accepted in the Government’s interim report by the previous Lord Chancellor, and when the present Lord Chancellor succeeded to the post he thought that we should go further. Therefore, it is in the forthcoming Bill.

However, that is not quite the end of the story—this is a continuing story—so I tell your Lordships for information and by way of background that there is another aspect of the sentencing exercise called the starting point: the level of the “tariff” at which you start. For these kinds of domestic murders, the Government commenced a consultation in November to consider the possible reform of the provisions dealing with the starting point in Schedule 21 to the 2020 Act. I should say that these developments are in response to continuing concerns by stakeholders, particularly victims and their families, about the response of the law to these very difficult cases. The Government are listening to those concerns and continuing to address the issue. However, as I indicated, the statutory instrument before us adopts the two recommendations of the Wade report. I therefore commend the instrument to the Committee and beg to move.

[Lord Beith (LD)]

I am very grateful to the Minister for his introduction and his helpful and illuminating response on the matters that I raised in my intervention. As he said, these regulations carry out the intention to address murder related to domestic violence and coercion. The intention was expressed in Schedule 23 to the Sentencing Act 2020 and follows the Clare Wade report. We support these provisions, which take into account the context of controlling and coercive behaviour in relationships, treating them as an aggravating factor in sentencing for murder or, in the case of a murder by a victim of a controlling relationship, as a mitigating factor.

The regulations introduce the concept of overkill—a word which bothers me as much as it did the Minister as being inadequate to describe the use of violence in excess of what would have been required to kill the victim—as an aggravating factor, not least because of the deeply distressing impact of some of these horrific murders on victims’ families.

However, I have some concerns. I begin with those raised by the Secondary Legislation Scrutiny Committee, one of which has been referred to by the Minister. The reference to consultation with the Sentencing Council blandly and misleadingly fails to mention the council’s concerns, including about the wording of the overkill provision. The Explanatory Memorandum should explain using all the relevant facts. It should not obscure by omission. I presume the revised wording has met some of the council’s concerns, but I would be grateful for some clarification of that as it was raised quite forcefully by the scrutiny committee.

The scrutiny committee also questioned the failure to include other provisions proposed in the Government’s response to the Wade review. We had a helpful explanation from the Minister that things are moving on and that the new Lord Chancellor has indeed taken up the concerns and included them in draft legislation. Indeed, I was a bit surprised by the Government’s defence that the earlier omission of some of the recommendations was because these statutory instruments were an interim response, but I will not criticise further because there is obviously progress on that front. I rather agree with the committee that

“in general, it is better policymaking to make all related changes at the same time”.

More than that, I argue that it makes for more coherent legislation if you put things in the same piece of legislation.

In supporting these provisions, I must, however, make clear what they cannot do. In the first case, they cannot and should not remove the judge’s ability to take into account all the relevant circumstances of the case when passing sentence. Justice should not be blind or deaf to the many different issues that may emerge in evidence or in mitigation. The judge must justify deviation from the guidelines but must be free to do justice.

Secondly, we should not deceive ourselves or the public with the pretence that these provisions will have a powerful deterrent effect. Justice has many purposes, including punishment and rehabilitation, but deterrence is scarcely a major factor for this kind of crime. Someone who, having used enough violence to kill the victim, carries on to inflict more violence is not going to think, “Oh, I’ll get a slightly longer sentence, won’t I, because of that statutory instrument?” That is not the real world; it is not the mindset of those who would carry out such terrible and vengeful acts.

That brings me to my final point. For the murders we are talking about, the murderers need in many cases to be imprisoned for long periods for public safety, including the safety of other potential victims of the same kind of crime, but adding a few more years to the sentence may only marginally, if at all, add to public safety and will do nothing to protect safety when they are eventually released. The extra years are added to recognise the greater severity of the offence, and we add them because they are almost the only means we know of recognising that severity and marking it with a more severe penalty. It would appear ethically bland if we treated different murders in exactly the same way, but what we actually do is allocate significant resources to keeping somebody in prison for a bit longer in a hopelessly overcrowded prison system, in which resources are desperately needed for rehabilitation to reduce the risk of reoffending when offenders are released.

As a society, we need to look for more effective ways of recognising and challenging crimes of varying degree and asserting that they will not be tolerated, otherwise we are condemned to endless sentence inflation because sentences for one crime affect sentences for another. It will not be long before comparison is made between these crimes and some other crimes and an argument for longer sentences for them. We have a problem as a society in finding ways of recognising the greater severity of some crimes than others that do not simply commit resources in an ineffective way when those resources are needed to secure public safety.

As I said, we support these provisions, but room must be left for judicial discretion and there must be some recognition that we do not cure crimes simply by passing statutory instruments such as this.

[Lord Ponsonby of Shulbrede (Lab)]

My Lords, I, too, thank the Minister for introducing this statutory instrument. The Labour Party supports these regulations.

As we have just had explained to us, the instrument introduces two additional statutory aggravating factors and one additional statutory mitigating factor in the determination of the minimum term relating to the mandatory life sentence for murder. The new aggravating factors are the fact that the offender had repeatedly or continuously engaged in behaviour towards the victim that was controlling or coercive and the use of sustained and excessive violence towards the victim. The new mitigating factor is the fact that the victim had repeatedly or continuously engaged in behaviour towards the offender that was controlling or coercive.

King’s Speech

Lord Beith Excerpts

Wednesday 8th November 2023 Lords Chamber

[Lord Beith (LD)]

My Lords, today is a personal anniversary for me because it is 50 years since I entered Parliament—I did 42 years in the Commons and have done eight in the Lords—after I won a by-election in 1973. During that time, I have always tried to stand up for parliamentary scrutiny and the need to get legislation properly in order. However, my efforts pale into insignificance beside those of the late Lord Judge in his relatively shorter time in this House. He was so stalwart in ensuring that legislation was left open to parliamentary scrutiny and did not preclude it. We will have to continue that work in his memory.

I want to devote my time today to just two issues raised in the gracious Speech. The first is prisons and sentencing.

“A bill will be brought forward to ensure tougher sentences for the most serious offenders”,


but it does not work like that. Every time Ministers call for or legislate for tougher sentences, whatever specific offence is involved, they contribute to a ratcheting upwards of sentences for a wide range of other offences. It is a long-standing trend and the Government contribute to it on a regular basis—more or less every year. Often, it is applied to people who will not be improved by time in prison and really need a more appropriate sentence.

When I was elected in 1973, there were just short of 37,000 people in prison. There are now nearly 86,000 of them, with the possibility of that heading for 100,000. Promoting longer prison sentences is a huge commitment of resources to a system of punishment that does so little to advance rehabilitation and to change those involved. Even so, the resources are not sufficient to deal with a collapsing prison system that cannot cope with the number of people sent to it. Clearly, many offenders must be jailed for significant periods for the protection of the public. However, as anyone who visits prisons regularly will know, many imprisoned people suffer from mental health problems, are otherwise inadequate or lack basic education and could have been dealt with differently, in various ways, so that resources could have been used more effectively.

I support and commend the recent recommendation from the House of Commons Justice Committee, which I used to chair, that there should be an independent sentencing policy council to provide policy advice to Ministers. We might get some evidence-based policy then. I also look forward to the forthcoming report of this House’s Justice and Home Affairs Committee, which was mentioned by the noble Lord, Lord Blunkett. We have had witnesses in front of us complaining about the fact that community sentences are underused, partly because of lack of information and partly because the Probation Service is so badly understaffed. We must end the weaponising of sentencing policy. Claims that one party will lock up more people than another really do not contribute to sensible, evidence-based policy.

My second point is about migration. The gracious Speech skates over the chaos of policy and administration in this area. Thankfully, it does not repeat the Home Secretary’s inflammatory language about multiculturalism. We are simply told that the Government will deliver on the Illegal Migration Act and stop illegal channel crossings. That is a triumph of hope over experience, particularly the experience of the Home Office. I fear that we are in real danger of losing our values and sense of proportion in all this. I mention our sense of proportion because the small-boat people represent a tiny fraction of the half a million net inward migrants we currently accept. We have to go after the criminal gangs who exploit desperate people, but those who take risks in search of a new life should not be treated as criminals. Their asylum claims may well be valid—currently, about 82% of claims are found by the Home Office to be valid in that category—and those who are economic migrants are simply seeking a better life for themselves and their families. Why do we deny asylum seekers the opportunity to work while their claims are considered, so that they can contribute to the society they want to join? Why do the Government disapprove of and disparage economic migrants?

For poor and desperate people to seek opportunities in another country used to be seen as a sign of initiative and enterprise, not a disqualification from welcome to a new country. The Prime Minister ought to know that from his own family experience. Like most developed nations, we need migrants, because we will not have enough younger people to care for our elderly, maintain our public services or expand our economy. That is why we have quite a high rate of net immigration. It is why we invited the Windrush generation to come to Britain and accepted substantial inward migration from the Indian subcontinent. From Britain, we populated large parts of the United States, Canada, Australia and New Zealand.

Population movement is not new. It has been part of the human condition throughout history. It will continue to be. We should manage it as far as we can, in harmony with our basic values. If we want to reduce the growth in population movement, we must address the problems of poverty, warfare and oppression in the countries with the greatest outflow. If we fail to address the problem of climate change, we will see even greater pressures where countries disappear underwater or can no longer support food production because of the effects of climate change.

This has already been said by noble Lords: the gracious Speech and the legislative programme within it are really all about the election. The Conservative Party will not be judged on the slender legislative programme of this gracious Speech but by what has gone before—the chaos of years of dysfunctional government under a bitterly divided party. I think they know that.

Sentencing Act 2020 (Special Procedures for Community and Suspended Sentence Orders) Regulations 2023

Lord Beith Excerpts

Monday 26th June 2023 Grand Committee

Broadly speaking, my view is not a million miles away from that of the noble Lord. In many respects, this is a lost opportunity—it could have been better. Ministers might want to go back and look again, because this is potentially a good-news project that would reflect well on the Government. It is cross-party, and I think any future Labour Government would take it on and probably expand it. I support it, but we probably could have done a little better.

[Lord Beith (LD)]

My Lords, I am grateful to the noble Lord, Lord Ponsonby of Shulbrede, for initiating this debate. I welcome his contribution and that of the noble Lord, Lord Jackson. I am not a million miles from either of their views either, but I emphasise that I value the progress that we are making with the three courts on the aims of the White Paper. I want to give it a fair wind, because we need to carry out these experiments.

I share some of the reservations of the Secondary Legislation Scrutiny Committee about some of the problems: the inadequacy of the Explanatory Memorandum; the failure to identify the resources that are needed, which are spread across government, so this is a pretty important question; and the failure to set out a systematic means of evaluation. What is the point in an experiment if you do not evaluate it properly and independently? Those who operated the experiment should not be the judges of its success.

I have a long-term interest in the development of problem-solving courts as an alternative to periods of imprisonment for some offenders—periods of imprisonment that did nothing to change the lives of such offenders. When I was chair of the Justice Committee in the Commons, I had the opportunity to visit a number of such courts, including the North Liverpool Community Justice Centre. Why do we not have a proper evaluation of that yet? The noble Lord, Lord Jackson, mentioned that point. Reoffending rates alone do not explain why the full potential of that experiment was not realised. I could see certain things that were working well when I looked at it, including the access it gave offenders to services that they needed and that are physically located within the court complex. When a judge can send an offender off to someone who can provide an addiction service or help them with their housing problem, it facilitates progress towards an orderly life for people whose lives are chaotic. We need to know what was lacking or what more could have been done to make that experiment more successful.

I also observed the Red Hook court in New York and problem-solving courts in Seattle; Portland, Oregon; and Houston, Texas. Texas was really interesting, because Republicans and Democrats there both agreed that they were wasting the taxpayer’s dollar on periods of imprisonment for people whose lives were not being changed by that imprisonment. The political divide fell away as the two parties and the wings of those parties agreed that the taxpayer’s dollar should be used for something that might work better. Hence there was a real political investment in developing problem-solving courts.

In observing these various courts, I was struck by some general points that proved important. One I have already mentioned: access to services—such as addiction treatment, housing, education and employment—which offenders had found it difficult to access or had not even tried to access before they were convicted. That is crucial.

The second is a review process overseen by the same judge, who often became an important authority figure in offenders’ lives and had a capacity to hold them to account for the changes that they needed to make in their lives.

A feature that is not attempted in these proposals—I have some doubts about it, but it was interesting to observe it in Texas—is a court-room full of other offenders, who would applaud an offender who had got a clean bill of health, because he was clean of drugs and had not reoffended since the last time he came before the judge. All the people waiting for their cases to be heard would clap at that point and give him encouragement. Of course, if the reverse was true and the offender had failed, they might be sympathetic, but the Texas marshals were there to take the offender away for imprisonment, which was the consequence of not keeping up with requirements that the judge had set. The cultivation of a common feeling of “let’s try to make this work and change our lives” was really valuable.

Today, we are authorising more limited experiments in two courts for men and one for women. They will not deliver improvement unless there are adequate resources available from the Ministry of Justice through the Probation and Courts Services. Then, of course, there is the hope of an eventual shift in resources from prisons to probation, for example, but also from a wide range of other departments that will need to become involved in offenders’ lives if we are going to try to change them; that includes housing, education and health services.

All this is taking place against a background of declining confidence in the courts in community sentences. I sit on the House of Lords Justice and Home Affairs Committee, which, as the noble Lord, Lord Ponsonby, pointed out, is currently carrying out an inquiry. There has been a lot of public evidence already indicating that, as a proportion of sentences, there is a decline in the use of community sentences; this suggests a lack of judicial confidence in them. That must change; it needs to change for the system as a whole, but it certainly needs to change in the context of these three courts.

This is potentially an important and valuable experiment. As well as the resourcing and valuation issues that I have mentioned, it will need judicial continuity, with the same judge dealing with individuals over the period of their sentence. It will also need confidence to be built in the quality of community sentencing, addiction services and other services. The courts need to be better informed about what services are available and how good and reliable they are, as well as how appropriate they are to the kind of offender that they may want to attach to them. It will place considerable requirements on the Probation Service, which is seriously overstretched at the moment throughout the country, and will pose challenges for local authorities, the health service and other providers of services. However, we need to do it and I wish it well. We need an effective alternative to expensive, ineffective prison sentences for some offenders.

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

My Lords, I am extremely grateful to all noble Lords who have contributed to this debate in such a constructive and thoughtful way. I am particularly grateful to the noble Lord, Lord Ponsonby, whose Motion gave rise to it.

First, I will briefly address the concerns raised, notably by the noble Lord, Lord Beith, about the Explanatory Memorandum. I am happy to acknowledge that, in this case, the Explanatory Memorandum was somewhat thin and did not meet the required standard. My officials have, I think, been able to provide answers to the committee’s satisfaction. We are working to ensure that future memoranda do not encounter a similar problem. Internal training is being undertaken and we will shortly have a meeting with the clerk of the relevant committee to understand what its requirements are. I hope that these various measures will deal with the problem, but I apologise for the fact that the committee felt it necessary to draw the House’s attention to this statutory instrument.

Let me explain briefly some of the background to this instrument; I hope also to deal with the points that have been raised. We are piloting three ISCs: two are focused on offenders with substance misuse and one is focused on female offenders. I place particular importance on the female offender court, which is at magistrates’ level in Birmingham. To take one particular point, in the earlier sentencing White Paper of 2020, the Government committed to piloting up to five schemes; we did not commit to five or more, I think. It is partly a question of resource, but the view has been taken that we should try to do three properly now rather than risk spreading resource too thinly; of course, that leaves open the possibility of the programme being expanded later if it is successful, but I hope that this is a solid and important start. I am glad to hear that, in general, noble Lords welcome this step forward.

I mention, I hope relevantly, four particular features of the programme. The first is close judicial monitoring by the same judge. The noble Lord, Lord Ponsonby, my noble friend Lord Jackson and, I think, the noble Lord, Lord Beith, raised the importance of continuity from a judicial point of view; it is crucial. I am sure that the MoJ will take away that point—it was made very forcefully by your Lordships, who collectively represent a wealth of experience in this area—and ensure that it happens. That is indeed a mainstay of the proposal.

The second feature is a particular emphasis on continuity and personal probation supervision so that there is always that particular continuity. As has been explained to me—to my personal satisfaction, I must say—it is in this respect something of a return to the old system of probation, whereby you had one probation officer who looked after you, took you all the way through the court process and was in direct touch with the judge, rather than there being, as I understand has happened to some extent in recent times, a sort of split within the Probation Service between the court team that prepares the reports and the supervisors who are out in the community, with a certain lack of communication in that process. It is very important that there should be the continuity of a single probation officer. Of course, at the same time—this is one of the reasons why the experiment is perhaps not as expansive as it might be—you do need to fully involve local authorities, other support services and so forth. We need to be sure that agencies have, as it were, signed up to and bought into the whole process for it to work.

For the substance misuse course, we have a requirement for regular drug testing so that, if there is a risk of someone falling back into such misuse, it will be picked up early.

Fourthly, as the noble Lord, Lord Ponsonby, said, there is not exactly a mixture of carrot and stick but the possibility of imposing sanctions on offenders if they are clearly not observing the rules in a way that merits a sanction.

Your Lordships know the sequence of events. There was a sentencing White Paper in 2020, then there was the 2022 Act and now there are the pilots. The ministry did not exactly invite bids but sought to explore which areas of the country would be interested in undertaking this work. I have to say, the response was not exactly overwhelming because, at the time, the courts were preoccupied with the backlog and after-effects of Covid and all those issues. So we do not, from that point of view, start from a particularly propitious situation. None the less, on each site, a local level, multiagency team has worked together, including the judiciary, probation, the police, the police and crime commissioner, the local authority, third-sector organisations and, of course, MoJ officials.

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[Lord Bellamy (Con)]

My Lords, I was explaining the work with local multiagency teams to make sure that we are delivering a model and a system that will work with a ring-fenced probation resource and a judiciary that will engage in intensive supervision and provide the continuity that has been lacking so far. As I say, this resulted from the sentencing White Paper of 2020 and the 2022 Act.

Against that background, I will take up at least some of the main points raised in the debate by noble Lords. As I say, we have sought to concentrate on what is within our ability to deliver, which is why we have gone for three courts instead of five. There may well be further opportunities to expand that in the future.

It is certainly true that there is an international context, to which attention was rightly drawn. Over the years, it has been difficult to pinpoint exactly how successful some of those international experiments were or are. I regret to say that there was not a full follow-up to the Liverpool experiment of some years ago, so we do not have the data, which is why the evaluation process is so important. All noble Lords referred—and the noble Lord, Lord Ponsonby, and my noble friend Lord Jackson specifically referred—to the importance of evaluation.

There will be an interim process evaluation report next year—2024—a further evaluation report in 2025 and yet a further impact evaluation in 2027. The reason for the further impact evaluation in 2027 is to allow time to give an assessment of the reoffending rate because we want to be sure—or to have some information on—whether people have managed to stay on the straight and narrow for two or three years. That is why the 2027 date is in the evaluation.

There will be a continual process of assessment as we go along. There are governance boards across the three sites to enable local partners and the MoJ to review progress on an ongoing basis, so evaluation is critical to the success of this experiment. It is fair to add that one of the encouraging features in a parallel context, at least in some areas, is the relative success of the FDACs—family drug and alcohol courts. That parallel example is slowly catching on because, unlike this process, they involve very considerable dedication of resources by local authorities and it is has taken them a little while to buy in to the idea, particularly in some parts of the north of England.

[Lord Beith (LD)]

Will the Ministry of Justice be marking its own homework, or will we have some kind of independent basis for the evaluation?

[Lord Bellamy (Con)]

At the moment, the evaluation is an MoJ evaluation, as far as I know. I am sure that we can build in stakeholders. This is not exactly the MoJ’s homework, because the MoJ is not active in doing this; it is judges, the Probation Service, local authorities and so forth. I am sure that if your Lordships attach importance to some objective, third-party look at what we are doing—I can quite see why—that suggestion should be taken very seriously as we move forward.

European Court of Human Rights

Lord Beith Excerpts

Monday 5th September 2022 Lords Chamber

[Lord Bellamy (Con)]

While I am on my feet—in view of the political situation, I fully understand why noble Lords want to have a little bit of amusement at my expense—I take this opportunity to thank and congratulate the noble Lord, Lord Foulkes, who has posed this Question, for his work at the Parliamentary Assembly of the Council of Europe. That Assembly plays a very important role in the convention, and the UK plays a very important part in the Assembly. I particularly commend the noble Lord for his work on sport and human rights and his recent report looking at the protection of underage players against risks of abuse and other matters. I thank the noble Lord for his Question.

[Lord Beith (LD)]

Will the Minister confirm that the Government intend to use the Bill introduced in the other House to limit the ability of citizens to use the convention on human rights to safeguard their position against an over-mighty state? Does that not sit very oddly with the victor of the Conservative Party leadership contest quite often asserting her dislike of an over-mighty state? Is this not one of the main protections against it?

[Lord Bellamy (Con)]

It is a protection and will remain a protection. The rights in the convention will continue to be respected and enforced by the courts of the United Kingdom as before.

Judicial Review and Courts Bill

Lord Beith Excerpts

Committee stage
Thursday 24th February 2022 Lords Chamber

We think that these measures provide the opportunity to improve and enhance the magistracy and its leadership structures, which will now more closely align with the Crown Court. There will still be local training, but, where appropriate, we may have national training as well. But magistrates will be involved in the development of all these areas—

[Lord Beith (LD)]

I am grateful to the Minister. Does he think that he ought to consider the impact that would flow from removing local justice areas, when we already find that taking cases to the furthest point within a local justice area—because there is a particularly well-equipped courtroom there, say—means that magistrates are finding that most of the cases they will be asked to sit on are taking place 50 or 60 miles away? It is extremely difficult to recruit magistrates who are prepared to accept that distance, and it does not do much for local justice.

[Lord Wolfson of Tredegar (Con)]

Of course I accept that point as a matter of principle. That is why consultation is really at the heart of this. There has to be a balance. For example, there could be a case where you have a number of very disabled witnesses and a particular courthouse is more accessible for them than another one. There could be cases, as in the pandemic, for example, where some courthouses have been more easily adapted than others. But, as I hope I have made clear, we will make sure that there will be full consultation on this. But we want to build in the legislative flexibility to allow that to take place in cases where it is needed. If I may say—

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[Lord Thomas of Gresford (LD)]

My Lords, the office of the coroner has evolved over 1,000 years since William the Conqueror introduced it. There were too many dead Normans lying about attacked by Saxon villains. The coroner inflicted a fine called murdrum on a community where a dead body was found. The deceased was presumed to be Norman under the presumption of Normanry, unless the community, by the presentment of Englishry, could avoid the fine by showing that the deceased was English, in which case it did not matter.

The problem is that traces of these ancient procedures continue to dog the present and to provide cover to government not to recognise the realities of coroners’ proceedings today. Coroners today will tell you that their duties are confined to determining who the deceased was and how, when and where they came by their death. But it is not as simple as that. The thread that runs through this chapter on coroners in this Bill is the lack of concern for the interests of the bereaved, particularly the involvement of the family. The Commons Justice Committee reported last year, and Section 3 of its report is entitled:

“Putting bereaved people at the heart of the Coroner Service”.


This Bill does not even begin to do that.

The evidence given at an inquest and the decision of the coroner or a coroner’s jury has many consequences. When the family of the deceased arrive at the coroners’ court, they will frequently find that skilled advocates are representing a hospital, the police if there has been a death in custody, the insurers of a potential defendant in a road accident or insurers where there may be defects in a stadium, a block of flats or other structure. The evidence given on oath before the coroner may be crucial in determining an allegation of assault or negligence or, where the suggestion is suicide, whether life insurance will be paid out to the dependants. A finding in a coroners’ court frequently determines whether the dependants of the deceased can settle a claim for compensation quickly and without stress or whether they have to go through the agony of a court case.

I turn to Amendment 40. Currently, as the noble Baroness, Lady Chakrabarti, said, the coroner can discontinue an inquest only after the results of a post-mortem have been delivered to him unless he suspects a sudden and violent death or a death in the custody of an organ of the state, such as the police. Clause 38 of this Bill now extends his discretion to discontinue by the use of wide words: if the

“cause of death becomes clear”

before inquest. Under this Bill, all the family receive is a statement of reasons. The purpose of this amendment is to ensure that, before the coroner makes his decision to discontinue, he has made all proper inquiries, and ensured that there are no ongoing investigations into the death, such as a hospital inquiry, and crucially that the family have been given the opportunity to make representations and actually consent to the discontinuance.

I think the Explanatory Notes are disingenuous when they suggest that an inquest adds to the distress of the bereaved family. Certainly, there is distress, but a decision to discontinue, taken above their heads and without their participation and consent, may very well cause much greater distress.

I come to Amendment 41. We are all aware of the struggles of many families to obtain an inquest through the courts by way of the discretionary remedy of judicial review. Amendment 41 provides for rules to establish an appeals process for those who disagree with the decision to discontinue. To succeed in the Bill as currently drafted, they would have to establish that the cause of death is not clear. What does that mean? What may seem clear to the coroner may not be clear to the family at all. If Amendment 40 is carried, the need for appeal would be considerably lessened since all interested persons known to the coroner would have been notified of his intention to discontinue prior to the inquest and would have consented to it. Appeals could then be brought only by interested persons who had been overlooked. That is possible but very rare.

I turn to Clause 39 and Amendment 42, where the theme continues. The decision of a coroner to determine that a hearing is unnecessary and may be determined in writing should also involve the consent of the bereaved: put the bereaved at the heart of the coroners service. Proposed new subsection (2)(a), to be inserted by Clause 39(2), requires the coroner to invite representations from known interested parties before he makes his decision, while (2)(b) deals with situations where no representations have been made and (2)(c) deals with situations where there is a disagreement between interested parties. That is what the Bill talks about, but nothing is contained in the clause about the position where all the interested parties oppose the coroner’s notification of his intent to determine the issues in writing on the papers, much less a requirement that they all consent. Amendment 42 would deal with those omissions.

Amendment 43 to Clause 40 again seeks to involve the family in the decision to hold remote inquests. First, they should consent. Secondly, the coroner should be assured that such a hearing is in the interests of justice, in particular that the issues are not too complex and interested persons are able to use to technology involved. Thirdly, the coroner should give his reasons in writing. However, a remote hearing has this disadvantage: the family are not open to the support services that would be available at a live hearing. The Commons Justice Committee recommended at paragraph 66 of its report that

“local volunteers in the Coroners’ Courts Support Service”

use their skills to assist the bereaved and commented that that service is not centrally funded, nor available everywhere.

Amendments 44 and 45 emphasise the public interest in inquests. If held remotely, they should not be held simply by telephone and absent the public. The rules require that inquests be held in public, except for reasons of national security.

Amendment 50, after Clause 42, is an amendment in my name to delete Rule 27 of the 2013 rules, which states:

“No person may address the coroner or the jury as to the facts of who the deceased was and how, when and where the deceased came by his or her death.”


I have been present at a number of inquests and have always found this to be quite extraordinary. Deborah Coles, the director of Inquest, told the Justice Committee about her experience of a culture of “defensiveness” on the part of public bodies:

“Very often, those lawyers are working as a team to try to reduce the scope of the inquest, to try to limit the number of witnesses or argue against questions being left to a jury, if indeed there is one, or argue against a coroner making a prevention of future death report … There is much more concern for reputation management, rather than a meaningful search for the truth.”


In my experience, it is much the same with employers who seek to limit their liabilities. “Well,” you might say, “so much the better if they cannot address the coroner.” However, they often make submissions on facts dressed up as submissions on process. Where both sides are represented, the coroner should be helped by submissions made by both sides to clarify issues of fact and make points about the evidence that has been heard; those points may be crucial to the issue of liability. Whether both sides are represented and there is equality of arms is a matter that we shall come to in the debate on the next group.

[Lord Beith (LD)]

My Lords, I agree with many of the points my noble friend has made. He made a particularly forceful point about addressing the jury at an inquest. It seems an absurdity that the law is in that state; I will come back to the encrusted historical nature of the law on coroners in a second.

I will add to what my noble friend said, although it might seem a slightly conflicting point. It is simply that the circumstances can be very different in so many of these cases. From my experience of inquests and dealing with families going to inquests, I have often come across the circumstances so vividly described by the noble Baroness, Lady Chakrabarti, of those who do have any equality of arms and are dealing with a major public sector body or a private organisation with great resources. There are other families for whom an inquest is just another liability they do not want at a time of maximum grief. If there are no grounds for holding an inquest or drawing them into that procedure, we do not want to make life more difficult for them at a time of very real grief.

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The problem is that, unless the coroner undertakes a full investigation or an investigation is suspended, those deaths can be registered only if an informant qualified to do so by legislation provides the registrar with information relating to the deceased. The qualified informants are primarily family members. That is the problem. The death can be registered only after the coroner has considered whether a full investigation should be carried out or discontinued, by which time a funeral may already have taken place and family members may no longer be interested. As I said, I am not blaming anybody; it is just human nature: the funeral has taken place so they regard the matter as concluded.

[Lord Beith (LD)]

It is not just human nature; it is the practical difficulty of registering deaths and making appointments in coroners’ offices, because registrars’ and coroners’ offices have very limited not just opening hours but opening days. This has been particularly marked during the pandemic.

[Lord Wolfson of Tredegar (Con)]

I understand that, certainly from my postbag. I should say that coroners work extremely hard, but the pandemic has caused a real problem. I do not want to go back to the online discussion, but we hope that enabling people to do that sort of thing online will help. I certainly take the noble Lord’s point.

To solve this, the amendments in my name will enable a coroner to provide the registrar with the information required for the registration to take place on the basis of that information. I should make it clear that we are not introducing new duties on coroners or removing the duty on qualified informants to provide information. It is intended to be used in those exceptional circumstances where qualified informants are unable or unwilling—often for good reason, as the noble Lord, Lord Beith, said—to discharge their duties. The effect will therefore be that the death will not go unregistered. We think that about 200 of these cases happen a year. They affect the accuracy of records, but there is also the potential for fraudulent use of the identity of an unregistered deceased person, since the identity has not been closed by the death being registered. It is not quite Day of the Jackal territory, but there is potential for fraud there. We want to close that.

For those reasons, I invite noble Lords not to press their amendments and I will move mine when the time comes.