Arbitration Bill [HL]

Lord Beith Excerpts

3rd reading
Wednesday 6th November 2024 Lords Chamber

[Lord Ponsonby of Shulbrede (Lab)]

My Lords, the Bill has now benefited from the scrutiny of two parliamentary Sessions, following its introduction in the last Parliament and examination by a Special Public Bill Committee. It has undergone further scrutiny since its reintroduction by this Government.

I take this opportunity to thank some of the noble Lords who have engaged with and supported the Bill over the past year. I begin by thanking the noble and learned Lord, Lord Thomas of Cwmgiedd, in chairing the former Special Public Bill Committee. He marshalled and managed truly expert feedback on these reforms from across the arbitration sector and the judiciary. The committee process resulted in several technical improvements to the Bill, introduced by the noble and learned Lord, Lord Bellamy. I also extend my thanks to the noble and learned Lord for his commitment to driving forward these reforms, while always recognising the importance of getting the details right.

The Bill has been improved during this Session’s Committee stage too, thanks in no small part to the considered and well-informed input from the noble Lords, Lord Wolfson and Lord Verdirame, and the noble and learned Lord, Lord Mance, who advised that the previous Clause 13 did not adequately reflect the case law on arbitral appeals that it sought to codify. We remedied this issue through my amendments in Committee, fixing a long-standing error in what is otherwise considered a supremely well-drafted framework. Based on sector feedback, the Government also made an improvement to Clause 1 ahead of introducing the Bill a second time, ensuring that its default rule on governing law did not apply inappropriately to certain investor-state arbitrations.

I am also grateful to my noble friend Lord Hacking for his contributions, both as a member of the former Special Public Bill Committee and as an active participant throughout the Bill’s passage. I appreciate his continued interest in full and proper arbitration law reform, after witnessing at first hand so much of its development over many years.

The legislative scrutiny provided by this House has served only to give optimal effect to the Law Commission’s recommendations, made after two extensive consultations. I record my thanks to Professor Sarah Green and her colleagues at the commission, Nathan Tamblyn and Laura Burgoyne, for their brilliant work. I also thank the Bill managers, Iona Bonaventura and Harry McNeill Adams, along with the government lawyer, Wan Fan, the parliamentary counsel, Helen Hall and Neil Shah, and my policy lead, Lee Pedder. I also thank my private secretary, Paul Young.

The measures within the Bill have been much sought after by our arbitral community. I am hugely grateful for its support and engagement with these reforms since the Law Commission’s first consultation.

I conclude by reminding noble Lords of the Bill’s benefits. By reforming and modernising our arbitral framework, it will make dispute resolution more efficient, attract international legal business and promote UK economic growth. We pass the Bill to the Commons in excellent condition, and I hope its passage can be completed swiftly. I beg to move.

[Lord Beith (LD)]

My Lords, the noble Lord, Lord Ponsonby, and I share the distinction of being the only people participating in the proceedings on the Bill who have neither presided over arbitration nor appeared before arbitrators. We have had a panoply of very expert noble Lords taking part in proceedings, none more so than the noble and learned Lord, Lord Thomas of Cwmgiedd, and the Public Bill Committee.

This is an important—although small—Bill, because it will effectively underpin an important export earner and an important opportunity for this country to assist in many issues across the world, because of the popularity of London as a centre for resolving disputes. It has had two Law Commission consultations, a very well-argued Law Commission report, excellent drafting and two processes through the full proceedings of this House. Not much legislation gets all that. As a consequence, we can be pleased about what has been achieved and wish it well in the Commons.

Criminal Justice System: Capacity

Lord Beith Excerpts

Tuesday 22nd October 2024 Lords Chamber

[Lord Keen of Elie (Con)]

My Lords, I begin by thanking the Minister for engaging with me in correspondence last week, in which he calmly set out his reasoning for the present policy proposal. I express my deep sympathy to him for having to respond to questions on a Statement from the other place that is heavy in hyperbole and very weak on reasoning.

What is particularly surprising is that by this morning, the Justice Secretary, who made the original Statement in the other place, was conceding in an interview that this is not a problem you can build yourself out of.

Where did this policy originate? The last Labour Government, while recognising the obvious link between sentencing and prison capacity, decided to advance a policy that relied on prison capacity being predicted and adjusted to accommodate sentencing policy, rather than sentencing policy taking account of prison capacity. The Centre for Criminology at the University of Oxford described this “predict and provide” policy as flawed. The then president of the Prison Governors Association described the then Labour Government’s policy as

“an out-of-control demand met by the provision of little more than penal warehousing”.

The noble Lord, Lord Dubs, then chair of the prison policy group, described the policy as “simplistic”.

What did the then Labour Government do? They announced plans for the building of three titan prisons with massive capacity. What did they do next? They announced the abandonment of plans for three titan prisons with massive capacity and announced plans for the building of five new prisons. If we could find them all, we might utilise their capacity, but the fundamental issue here is not prison cells but penal policy. It is not only obvious but well established that if you increase sentencing powers, sentences increase. Magistrates, like science, cannot resist a vacuum. They will fill it. Increasing sentencing in the magistrates’ court may well relieve some pressure on the Crown Court, but it is liable to increase pressure on reception prisons and category C prisons.

What will that impact be? We have no impact assessment, but the means to carry out such an assessment are potentially available. During the pandemic, the sentencing powers of magistrates were temporarily increased from six to 12 months. It should be possible to correlate this with the impact on reception prisons and category C prisons. Why has that not been done?

I note the Government’s most recent decision, which is to appoint the former Conservative Justice Secretary David Gauke to carry out a review. I applaud their decision to call on his expertise and ability to properly inform them as to what they should do next.

I come on to the question of early release, which is connected to this proposal over sentencing. If the Government are to release more prisoners in the next few days, will they please try to release the right ones? Last time, they released dozens of prisoners who did not qualify for release and dozens of prisoners who had breached restraining orders and should never have qualified for early release. Of those who did qualify for early release, some were let out on licence without an electronic tag, which might have made it a little difficult to work out where they had gone.

In coming to a conclusion, I observe that the marrying up of social policy, penal policy, sentencing policy and prison capacity in the context of recidivism, extensive substance abuse, mental health issues and the requirements for care in the community and family support raises complex issues, particularly when the Treasury will rarely, if ever, invite the Ministry of Justice to the front of the spending queue. Those issues have to be addressed as a whole and, in my respectful view, they are not well served by a simplistic statement of blame, which was essentially what was delivered in the other place.

I conclude by thanking the Minister once again for his reasoned and calm engagement on this topic and I look forward to his response.

[Lord Beith (LD)]

My Lords, the noble and learned Lord, Lord Keen, gave us some interesting historical context, but I had expected an apology—or at least a guilty plea, with the plea in mitigation that he chose to leave the previous Government before the ceiling really started to fall in. They left an appalling situation: overflowing prisons, a huge backlog of untried cases, record numbers of remand prisoners, and victims seeing no outcome or closure to what they had suffered. This Government now have to deal with that, and they are running out of their few options to do so. I welcome their decision to have a fundamental review of sentencing policy and to invite David Gauke to carry it out. I very much agree with the noble and learned Lord on that; he is a good choice and I wish him well in the task.

Why are we filling prisons with more offenders than any other western European country? Why are we failing to recognise that we are putting resources into a prison system that is institutionally ill equipped to do the kind of rehabilitative work that is clearly necessary? Unless we see a significant reduction in prisoner numbers, what hope is there that rehabilitation programmes can work in prisons?

With so few options available to them, it seems logical and sensible for the Government to make use of the available time of magistrates who are willing to sit on more serious cases, freeing up time in Crown Courts. However, last time, this was not found to be very effective; it led to an increase in the demand for prison places. The Lord Chancellor conceded in the Commons:

“That is what happened and what I expect to happen again”.—[Official Report, Commons, 17/10/24; col. 1011.]


It is not even a temporary solution. Do these plans overlook the possibility that some defendants will opt for a jury trial when they no longer have the incentive that magistrates can sentence them only to six months? That means longer sentences and larger prisoner numbers. Will special training be provided to magistrates to try to ensure that good use is made of them in cases dealing with more serious offences that require a longer sentence, but that the new powers do not simply inflate sentences that would otherwise have been given to potentially shorter-sentence prisoners?

The Lord Chancellor has said, and I agree with her, that

“people have to know and believe there are consequences to breaking our laws”.

This is not achieved when prisoners are released without completing their sentences or any serious regard to why they were imprisoned for a long period. Neither is it achieved by using a significant part of our resources in a prison system which is ill equipped, ill resourced and ill prepared to rehabilitate offenders. If this announcement buys the Government some time, can we have some reassurance that it will be used for fundamental change?

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

I thank both noble Lords for their questions. I will first address some of the points made by the noble Lord, Lord Beith, and then turn to the noble and learned Lord, Lord Keen.

On the noble Lord’s final point about buying time, that is the Government’s objective with SDS40; the standard determinate sentencing going from 50% down to 40% is indeed to buy time. As he will know, there was a Statement in the House of Commons today on a sentencing review, which we are very grateful that David Gauke has agreed to chair. That Statement will be repeated in this House in due course, so we can debate the issues raised in it.

The noble Lord, Lord Beith, asked some specific questions, including whether increasing magistrates’ sentencing powers from six to 12 months will incentivise defendants to opt for jury trial. In the brief interlude when that happened before, there was no statistical data to say that might be the case, so on that particular example we are confident that there will not be any appreciable increase in the number of defendants opting for a jury trial.

As far as training goes, there will be refresher training available to magistrates. When I was in opposition, I personally did the training for the increase in sentences. It was not that long ago, but if some magistrates feel they want the refresher training then it will be available to them.

The central point that the noble Lord made was about filling up prisons. As my noble friend Lord Timpson often reminds me, if you do nothing then the prison population will go up by 80 a week. That is the reason we are initiating this review of sentencing, which will get under way very quickly.

The closing remarks of the noble and learned Lord, Lord Keen, were much more acceptable than his opening remarks. In his closing remarks, he acknowledged the complexity of the situation, that there are many interacting factors in the situation we have arrived at today, and that there needs to be a multifaceted approach to try to turn the tide on the ever-increasing number of people we find in our prisons. I agree with the point he made in his closing remarks.

I think the noble and learned Lord might have been tweaking my nose with his other point. He said that magistrates cannot resist a vacuum, but he knows that that is absolutely not true. Magistrates sentence within the sentencing guidelines, as do district judges. The problem with magistrates and district judges is that they sentence quicker than Crown Courts, not that they sentence more harshly. I see that the noble Baroness, Lady Sater, is nodding her head, because she knows that what I have said is correct.

The overall objective of this announcement is to increase magistrates’ sentencing powers back from six to 12 months. I look forward to answering more questions from other noble Lords on that matter.

Arbitration Bill [HL]

Lord Beith Excerpts

Committee stage
Wednesday 11th September 2024 Lords Chamber

[Lord Thomas of Cwmgiedd (CB)]

My Lords, I agree with both the noble and learned Lords, Lord Hope and Lord Hoffmann, that this amendment ought not to be accepted. However, it seems to me, as the noble and learned Lord, Lord Hoffmann, said, that everyone agrees with the sentiment behind what the noble Lord, Lord Hacking, has proposed.

I had thought that we had agreed how to deal with this matter when the then Minister dealt with it at a hearing of the Special Public Bill Committee. I raised this point by way of an amendment to the old Arbitration Act. The Minister agreed, in response to that, that he would write to the arbitral institutions and we would see what the best practice was. I had assumed that all that would be made public, and I am entirely at a loss to understand why the letters that were written and the responses have not been made public. It would be extremely helpful to have all this information put into the public domain to show, for the benefit of London, what was being done to address this point. As I understand it, these were documents written by the Minister in his capacity of trying to deal with a problem that had arisen and was discussed in this House. It would be very helpful to have a discussion and look into the matter in detail. If something needs to be done—more than is being done—we can return to it. Certainly, we ought not to delay the Bill by this amendment.

[Lord Beith (LD)]

My Lords, in our Second Reading debate on 30 July, I asked the Minister to respond about these consultations that had taken place, which he did in a letter on, I think, 15 August. He set out in some detail the various ways in which the existing system deals with corruption.

It would be beneficial, as the noble and learned Lord has just pointed out, if the documents which the Minister was summarising were themselves made public, with the consent of the relevant organisations, because there is a lot of detail here that needs to be discussed. Indeed, the remarks of the noble and learned Lord, Lord Hoffmann, illustrate that we cannot proceed on the matter of this amendment without some pretty extensive discussion about how it could work and how it affects the role of the arbitrator. Although I am very sympathetic to the amendment, to try to introduce it at this stage would be an unnecessary delay to a Bill that has had quite a lot of delays already, not least because of the general election. That would be an unfortunate consequence.

The most reassuring thing in the Minister’s letter is the reminder that the case to which the noble and learned Lord, Lord Hoffmann, referred, and in which he was directly involved, was of course dealt with in the High Court. The High Court set aside the results of the arbitration, having discovered the corruption that had occurred. This is a demonstration that, even without new statutory provision, our system can deal with corruption of this kind. It is still there, however. There is a lot of corruption about and it is quite likely that it will emerge or be present in matters that are the subject of arbitration, particularly between states and very large commercial undertakings.

I therefore do not think that we should be content simply to set aside the amendment that the noble Lord, Lord Hacking, has introduced, but I do not think that we should attempt to insert it into the Bill at this stage. We should seek to establish whether both the substance of the law and our ability to enforce it would be improved by new statutory provision, and I am not yet persuaded that that is so. We strongly support the Bill and do not want to see its progress delayed.

Arbitration Bill [HL]

Lord Beith Excerpts

Committee stage
Wednesday 11th September 2024 Lords Chamber

[Lord Ponsonby of Shulbrede (Lab)]

My Lords, in this group I will speak to Amendments 3 and 4, tabled in my name.

It has come to light that Clause 13 does not adequately codify the case law on appeals under Part 1 of the Arbitration Act 1996. I have tabled Amendment 3 to replace Clause 13 and correct the root cause of this issue: a drafting error in the 1996 Act that provided for an incorrect approach to appeals under Part 1 of the Act. Allow me to explain both the underlying issue and the approach I am taking to resolve it.

Clause 13 of this Bill as introduced seeks to codify case law regarding leave to appeal decisions on staying legal proceedings under Section 9 of the 1996 Act, namely the House of Lords decision from 2000 in Inco and First Choice Distribution. As such, the current Clause 13 inserts into Section 9 provision that

“the leave of the court is required for any appeal from a decision of the court under this section”.

During the passage of this Bill, certain noble and learned Lords raised the point that Clause 13 as drafted would permit leave for appeal to be sought only from the High Court—the High Court being what is meant by “the court” in the provision. However, the current situation established by case law provides that leave to appeal can be sought directly also from the Court of Appeal. It seems that Clause 13 as drafted would have the effect of inadvertently narrowing the existing position, which was never the intention.

The root cause of this issue is that the 1996 Act made an incorrect consequential amendment to Section 18(1) of the Senior Courts Act 1981 and Section 35(2) of the Judicature (Northern Ireland) Act 1978. In Inco and First Choice Distribution, the late Lord Nicholls of Birkenhead identified that this provision in the Senior Courts Act was originally meant to give effect to restrictions on the right to appeal contained in Sections 1 and 2 of the Arbitration Act 1979. The Senior Courts Act then needed updating to reflect additional appeal restrictions in the 1996 Act. But, as Lord Nicholls put it,

“for once, the draftsmen slipped up”.

The provision in the Senior Courts Act, when read literally, suggests that no appeals against decisions under Part 1 of the 1996 Act are allowed, except where expressly provided for in the 1996 Act. However, the intended and correct position is that appeals are indeed permitted unless expressly restricted by the 1996 Act. Due to this misunderstanding, Clause 13, in inserting its express language on appeals into Section 9 of the 1996 Act, establishes restrictions on those appeals. Accordingly, the provision that

“the leave of the court is required for any appeal from a decision of the court under this section”,

as used in other sections of the 1996 Act, is intended as a restriction providing that leave under those sections can be sought only from the High Court. As it was not the intention of the Law Commission or the Government to add such a restriction on Section 9 appeals, we must correct it.

Simply amending Clause 13 to permit direct appeals to the Court of Appeal under Section 9 could raise questions about other sections of the 1996 Act and whether similar provision should also be made elsewhere. Deleting Clause 13 would maintain the current appeal process but miss the opportunity to fix the issue properly. This seems remiss, given that the clear objective of this Bill is to refine and clarify our arbitral framework.

Amendment 3 therefore rectifies the underlying issue. It replaces the current Clause 13 with amendments to the Senior Courts Act 1981 and the Judicature (Northern Ireland) Act 1978. These clarify that appeals against High Court decisions under Part 1 of the 1996 Act, including under Section 9, may, subject to provision in that part, be made to the Court of Appeal. This will establish beyond doubt the current position on appeals.

Amendment 3 also necessitates a change to the Bill’s Long Title, which is currently:

“A Bill to amend the Arbitration Act 1996”.


However, under Amendment 3, it will now also amend the Senior Courts Act 1981 and the Judicature (Northern Ireland) Act 1978. This will not practically widen the scope of the Bill, given that it modifies that other legislation only to the extent that it relates to the 1996 Act. Nevertheless, Amendment 4 is required and updates the Long Title, adding “and for connected purposes”. I beg to move.

[Lord Beith (LD)]

My Lords, we support this amendment and are grateful to the Government for bringing it forward. The Minister’s remarks could usefully be framed and provided as an object lesson in the fact that drafting really does matter and that, when it goes wrong, the consequences mount up in subsequent legislation. He illustrated that well.

[Lord Wolfson of Tredegar (Con)]

My Lords, I am personally grateful to the Minister for engaging with me and others on this. These are technical matters, but it is important to get them right. I acknowledge the assistance I have had from my colleague Toby Landau KC, who, as the noble Lord, Lord Hacking, said on the previous group, did a lot of work on the original DAC report. I also acknowledge members of the Law Commission team with whom the Minister and I have both engaged, especially Nathan Tamblyn.

As the Minister said in moving his amendment, in Inco Europe, Lord Nicholls of Birkenhead, with whom the rest of the Appellate Committee agreed, said:

“I am left in no doubt that, for once, the draftsman slipped up”.


He put it in those terms because, again, as the noble Lord, Lord Hacking, said on the previous group, this is an extremely well-drafted Act. It is probably one of the best-drafted Acts on our on our statute book. To pick up the other phrase that Lord Nicholls used in that case, for once, Homer had nodded. This amendment rectifies the position—I am not sure what the opposite of nodding is, but, whatever it is, it puts Homer’s head back upright. I am grateful to the Minister for bringing forward this amendment, which we support.

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.

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.

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.