Police, Crime, Sentencing and Courts Bill

Lord Beith Excerpts

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

[Lord Mackay of Clashfern (Con)]

My Lords, some time ago when the Hillsborough matter was before this House, the noble Lord, Lord Rooker, I think, and I put forward a suggestion that the coroner in an inquest should have power to allow a public authority, or an authority with resources, to put forward a defence using lawyers for that purpose, and that a condition of granting such permission should be that the authority is responsible for providing the necessary funding for the relatives of the deceased to be represented. The choice of who they would use, of course, would be for the relatives, but the provision of the necessary money would be a matter for the authority—at the level at which the authority wanted to do it—so that there would be obvious equality of arms.

I think it is a much better solution than legal aid. Needless to say, I have had, some time ago, some experience of dealing with legal aid. I had the authority as Lord Chancellor to grant legal aid in specific cases that I thought required it, but I think it is much better, fairer and less burdensome to the public, that this should be the rule. It seems to me this is quite easy to systematise when you have more than one of these authorities. Hillsborough is a good example of what happened when there was no proper representation for some of the relatives. This is a suggestion that goes along with the spirit of the first amendment the noble and learned Lord has put forward, and I venture to think that it is an effective point of view.

I am glad to see that the noble Lord, I referred to has returned because I think he will probably remember that he and I were pretty well agreed about what should be done. Needless to say, the Home Office said it would be reviewed when the details of Hillsborough, the prosecutions and so on, were finished. Of course, that happened some time ago, but I see no sign of any kind of innovation from the Home Office, until it agrees with this amendment in spirit.

[Lord Beith (LD)]

We have always been able to rely on the noble and learned Lord, Lord Mackay, for ingenuity when difficult problems have to be resolved. This one seems to have got lost in the Home Office somewhere. That is a pity because the problem that these amendments raise is long-running and serious. It is open to discussion, whether the amendments are the best way of dealing it, but I do not think we can go on ignoring it or failing to deal with it in any adequate way.

Crown Courts: Outstanding Cases

Lord Beith Excerpts

Thursday 15th April 2021 Lords Chamber

Tabled by

[Lord Beith]

To ask Her Majesty’s Government what steps they are taking to reduce the backlog of outstanding cases in the Crown Courts.

[Lord Thomas of Gresford (LD) [V]]

My Lords, I beg leave to ask the Question standing in the name of my noble friend Lord Beith, who is regrettably attending a family funeral. Given that physical accommodation has at last been made available for Nightingale courts—

European Union (Withdrawal) Act 2018 (Relevant Court) (Retained EU Case Law) Regulations 2020

Lord Beith Excerpts

Wednesday 25th November 2020 Grand Committee

[Lord Beith (LD) [V]]

My Lords, when the EU withdrawal agreement Bill was being considered in the House, the Constitution Committee had serious concerns about the provisions under which this statutory instrument is being made. We were concerned that the Bill left it to Ministers to decide which courts could depart from previous European case law on retained European law and what test they should apply when doing so. That has quite serious rule of law implications that were neatly illustrated by the Minister when he described the possibility of a range of factors being specified when courts are considering such matters, an option that helpfully, the Government in the end did not take. That is one of the good features of this statutory instrument.

These are not powers that we were content to leave in the hands of Ministers. There is the added problem that the powers could be extended to the lower courts whose judgments could not bind other courts—even to magistrates’ courts. This would lead to legal confusion. In a powerful debate in the House at Report, I moved an amendment drafted by the noble Lord, Lord Pannick, that we would return to the matter. The noble and learned Lord, Lord Keen of Elie, offered to table a compromise government amendment very much along the lines of this instrument, restricting the extension so that it would cover only the Appeal Court or its equivalents, and specifying that the test to be applied when deviating from previous case law was the same test that the Supreme Court would apply. But he was embarrassingly overruled by a higher authority in No. 10, apparently because the Prime Minister wanted no amendments to the Bill at all, presumably for broader political reasons.

The noble and learned Lord, Lord Mackay of Clashfern, indicated in a speech in that debate that the Prime Minister had in fact committed himself in the election to every court in the land being able to deviate from retained EU law. Anyway, we won the vote, but it was overturned by the Commons, so we were left with Ministers holding the power to choose the courts to which this would be extended and to choose the test that would be applied. Everything would depend on the regulations. As the Minister has pointed out, there was a consultation that revealed differences of view. The results were open to different interpretation depending on how you count those respondents who wanted no deviation from previous case law. That is not my view. While based on precedent, law has to evolve over time. For my part, the statutory instrument brings us to the outcome that I sought in my amendment, albeit by a very long way round.

I accept that these provisions may have avoided what could have been a bottleneck in the Supreme Court, as the noble and learned Lord, Lord Thomas of Cwmgiedd, warned. However, I am bound to question some curiously chosen words in Paragraph 7.5 of the Explanatory Memorandum:

“Extending the power to this limited list of additional courts will help to achieve our aim of enabling appropriate and timely departure from retained EU case law.”


Is that phrase in place to please the Brexiteers? Is it meant to be a signal to the courts that they should deviate as much and as soon as possible?

If so, I think that it creates false expectations, because I do not think that that is what the courts will actually do. The scale of activity will depend on how much litigation is brought forward and the courts can be expected to abide to apply the test of the Supreme Court with due regard to the facts, to precedent, and to the need to keep the law up to date with changing circumstances. I do not believe that the courts will be drawn into a rush to get rid of as much European case law as possible as quickly as possible. However, all in all, I think that the instrument is what is needed.

Integrated Communities Strategy

Lord Beith Excerpts

Tuesday 17th November 2020 Lords Chamber

[Lord Stewart of Dirleton (Con) [V]]

My Lords, the Government invited the Law Commission to make recommendations about how marriage by humanist and other non-religious belief organisations could be incorporated into a revised or new scheme for all marriages that is simple, fair and consistent. The Government will decide on provision on the basis of those recommendations. The Law Commission published a consultation paper on 3 September as part of its review, and welcomes responses from all.

[Lord Beith (LD) [V]]

My Lords, does the Minister appreciate that the right to a legally recognised marriage in their own place of worship was secured after a long struggle by non-conformists in England and Wales, and that nothing should be done to diminish that right or, indeed, to prevent us extending it to other groups? But what constitutes a legally valid religious wedding, and what rights, protections and obligations in law it confers, also needs to be clear. Nobody should be tricked, misled or pressured into a form of marriage that is not valid in law.

[Lord Stewart of Dirleton (Con) [V]]

My Lords, I wholeheartedly endorse the noble Lord’s observation that nobody should be tricked or compelled into a marriage that is not recognised by law. To continue the theme of my earlier answers, the Government are very concerned that, as well as being an opportunity for legal reform, these matters are socially and educationally important, and the Government continue to investigate the social and educational reasons why people enter into marriages that are not valid.

Offender Management: Checkpoint Programme

Lord Beith Excerpts

Thursday 27th February 2020 Lords Chamber

[Lord Beith (LD)]

My Lords, this is a short and compressed debate, but I congratulate the noble Lord, Lord Bates, on introducing such an important topic. I thank Durham Constabulary for having been a pioneer in this field. It is not one of our largest police forces but it has really achieved something. As the current chief constable Jo Farrell said, we are talking about a cohort of people for whom this cycle—the cycle of repetitive convictions and, in many cases, repetitive trips to prison—will never end unless we do something different. Prison does not work for these people. It consumes massive resources; every decision to send someone to prison commits massive resources that could be used in more effective ways.

The Checkpoint programme is a managed form of out-of-court disposal that is contract-based. As the academic literature says, all the indications and evidence are that it works. I think that we should continue this process of evaluation and then learn from it what we can do with schemes of this kind, such as those that some other forces are pursuing.

Mention has been made of victims. My experience when talking to victims is that what they want most of all is for what happened never to happen to them—or anybody else—again. If they can be engaged in a situation where they see some prospect of the offender changing, so that he recognises what he has done and does not do anything like that again, they are very much attracted to that. I have observed this kind of restorative justice in practice in Durham jail, indicating that quite a lot of experimentation in this field takes place in Durham.

On wider public perceptions, we hear a lot from leading figures in some parties about prison working and locking more people up for longer, as well as all the newspaper headlines that follow that kind of rhetoric. But when you confront people with the facts of what led people to commit offences, which methods of dealing with them had any chance of success and which very little chance, the public are much shrewder about these things than we give them credit for.

This project has been properly conducted and is being properly evaluated. It is, as the noble Lord, Lord Blair, pointed out, an example of evidence-based policing and evidence-based policy. As the noble and learned Lord, Lord Woolf, said, when something is evaluated as being successful, it should be embedded and used more widely. We on these Benches would like to hear less of the empty rhetoric and more about practical schemes such as this.

Terrorist Offenders (Restriction of Early Release) Bill

Lord Beith Excerpts

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

[Lord Beith (LD)]

My Lords, it is a pleasure to follow the noble and learned Lord in his powerful speech, and I will return to his key point. But I first want to indicate that the Constitution Committee was concerned about and very much regrets that this is a fast-tracked Bill whose scrutiny is therefore curtailed. The committee points out that scrutiny of the second terrorism Bill, which we are expecting later in this Session, must take account of the provisions of this Bill, which will be revisited at that point. Indeed, the Government’s Explanatory Notes almost imply that that is an alternative to the post-legislative scrutiny that they are not providing for. My noble friend Lord Marks has tabled an amendment for Committee—and I have added my name to it—requiring a one-year review. Even though many of the effects of this Bill will take time to show, the way in which it has been rushed through as fast-tracked legislation requires it to be reviewed early.

There is fairly widespread agreement on requiring all offenders covered by this Bill to be subject to Parole Board assessment as a condition of early release. That is a necessary response to the threat posed by ideologically driven terrorists who may have been convicted of lower-level offences but show no clear sign that they are likely to desist from terrorist activity when released. It is right and not an egregious form of retrospection that existing prisoners should now face a Parole Board assessment, but I question whether that could not better be done and would not better address the more serious retrospectivity concerns at the halfway stage, when they currently expect to be released, rather than at the two-thirds point.

At either point, the power of the Parole Board not to release is, in my view and in all the circumstances, a reasonable variation of the way in which the total sentence is to be served. It is not clear to me that much if anything is gained for public safety from denying that assessment until a later point in the custody of existing prisoners—a later point that either they or the sentencing judge would expect to be the one when they would be released. The sentence is the whole of the sentence, not just the custody part: the assumption that custody is the only significant part of the sentence is wrong, and it bedevils much discussion of criminal justice policy more widely. However, I see no justification for the move from half to two-thirds for the point at which the Parole Board makes the assessment in respect of existing prisoners.

That brings me to the reality of the threat. These people will be released—fairly soon in many cases. A year or two added to the period of custody solves nothing. It does not of itself turn terrorists into peace-loving, law-abiding members of the community. Moreover, it is a fallacy to say that committed terrorists are a danger only when they are released. Some of them could pose more harm through their activities in prison than they might do outside. Prison presents them with a ready supply of vulnerable, resentment-filled potential recruits and with the time and opportunity to groom and train those people to do massive damage when they are released.

A transformation of the prison system is required, so that it has the means, the people and the skills to engage in a serious deradicalisation programme. I simply do not recognise as the present reality of the prison system the description that the Minister gave us of the measures that the Government either are undertaking or believe they will be able to undertake in that respect. It will require effective separation of radical recruiters from those whom they seek to draw into their evil activities and structures. It will be impossible to do these things while our prison system is hopelessly and increasingly overcrowded, understaffed and underresourced. We need to take some of the other pressures off the prison system, including from longer sentences, to enable this to be achieved at all. As the noble Baroness said earlier, it also requires a substantial commitment to the probation service and other relevant agencies such as the police and the security services.

We also have to consider the warning from Jonathan Hall, the independent reviewer, that the Bill creates a situation in which standard determinate-sentence offenders will be released without ever having been subject to licensing conditions, even though they have been judged as high risk and therefore not released until the full term has expired. This, he points out, creates a cliff edge at release, when it might have been more effective to have at least a period of release under strict licence conditions as a prelude to unconditional release at the end of the sentence.

We will look into these issues at Committee stage later tonight, but we need to remind ourselves that the potential of this Bill to reduce or eliminate future terrorist activity is small. It will affect relatively few terrorists or potential terrorists—mainly those it has been possible only to convict of lower-level offences—and it relies on a prison system that does not have the capacity, skills, resources or even space to prevent terrorists from posing almost as great a danger from inside prison as they will pose when, inevitably, they are released.

Terrorist Offenders (Restriction of Early Release) Bill

Lord Beith Excerpts

Committee stage & Report stage & Committee: 1st sitting (Hansard) & Committee: 1st sitting (Hansard): House of Lords & Report stage (Hansard) & Report stage (Hansard): House of Lords
Monday 24th February 2020 Lords Chamber

[Lord Garnier (Con)]

My Lords, there was never any possibility of my becoming a member of the Court of Appeal, but had I been a member, the job I would most like to have had is that of the third member of the court who says, “I have read the judgment of my learned friend. I agree and I have nothing further to add.” I have heard what my friend the noble Lord, Lord Anderson, has said both at Second Reading and just now and I have nothing further to add save one point.

During the course of the Second Reading debate, instead of saying “two-thirds” I said “three-quarters”. I do not suppose that that made much difference to the way in which the House considered the matter, and the noble Lord, Lord Anderson, has made the points that need to be made. The one thing I have learned in politics is that it is possible to win the argument and to lose the vote, and it is possible to make winning arguments and sensibly to avoid a vote. For my part, I think that the noble Lord, Lord Anderson, has made and won the arguments, but whether he moves this issue to a vote is another matter. However, he has certainly won the moral victory.

[Lord Beith (LD)]

My Lords, I do not dissent at all from that assessment that a moral victory has been won, but that is only the beginning of the story. I simply want to address the Government’s distinctly lacking arguments against the amendment as advanced so far in a context where there was such widespread agreement on the efficacy of bringing the Parole Board into all cases but no very clear defence by the Government as to why the two-thirds provision has to be imposed on those who would otherwise have been released without the Parole Board’s involvement half way through their sentence.

The arguments produced by the Government have been very strange. One was that it would create greater confusion. It is in the essence—in the nature—of this provision that there will be confusion, because nobody can know what assessment the Parole Board is going to make of their case. The avoidance of confusion is not a primary objective of this: quite the contrary, we invite the Parole Board to make a very serious consideration of each case and only to allow release at either the halfway or two-thirds point if it is satisfied that there is not a danger to the public from doing so. The confusion argument does not really make any sense at all.

Then there is the argument that this will increase public confidence. Of all the things that might increase public confidence, I cannot see someone rushing into the pub saying, “Have you heard? Do you know that some of these offenders might spend up to another year in jail, but then they will be released?” That is not what public confidence is built on, and it is the wrong argument to use for something that involves issues of liberty.

Then I want to challenge the argument about the further period of incapacitation, because terrorists in prison are not incapacitated. They engage in grooming and recruitment activities and, as I said in the Second Reading debate, in some cases might be able to achieve more by their work among other prisoners—including prisoners who are not there for terrorist offences—than they might be able to achieve on the outside. They might recruit a larger number of people, so I do not accept the incapacitation argument.

The only argument that would be persuasive would be that it was impossible, with this amendment as drafted, to avoid the situation in which the Parole Board could not cope in a reasonable period of time with the cases at the half-time stage, but that probably could be overcome by alternative drafting if the drafting presented tonight has that problem. That would be the only argument that would persuade me: that we were letting people out without the Parole Board assessment, when the whole purpose of this is to make sure that they have that assessment.

Therefore, unless the Government produce a better argument, I do not think that they have made the case.

[Lord Carlile of Berriew (CB)]

My Lords, my name is the fourth name on these amendments, and I am not going to add anything, save to say this: I wish it had not been necessary to table these amendments. They represent what I would have considered a reasonable Bill to tackle the difficult problems we are dealing with tonight. I support strongly my noble friend Lord Anderson and others who have signed these amendments.

Streatham Incident

Lord Beith Excerpts

Monday 3rd February 2020 Lords Chamber

[Baroness Chakrabarti (Lab)]

My Lords, I am grateful to the Minister for repeating that Statement—a difficult duty in very difficult times. I join him in his tribute to our emergency and health services, and in his sympathies with those recovering from this terrible incident.

I hope the Minister will be able to acknowledge the pre-eminence of resources to deal with the threat that we face. He mentioned a number of responses that the Government are considering and/or planning, but resources are required to do anything significant in this area, whether in relation to the prison system, which is under strain, as has been discussed in your Lordships’ House over many years, in relation to the probation service, which is designated with engaging with people who have been convicted, or in relation to precursor terrorism offences or other offences. This also applies, of course, to policing and to our agencies. Nothing that any Government of any persuasion may legislate for can be achieved to “keep our people safe” without putting significant resources into a system that has been under pressure for some time.

In relation to the privatisation of prisons and probation, the issue is not just about resources but about accountability and the importance of those elected to govern—who have, of late, been given a significant mandate—taking ultimate responsibility for that primary duty. I am sure that Members of your Lordships’ House noticed, as I did, the Minister’s comments on sentencing. Few could have a principled difficulty with the idea that those sentenced for terrorist offences should not be released automatically without the input of a decision-maker such as the Parole Board. That, of course, involves significant resources, not just for the Parole Board itself but for those who must engage—by not just isolation but engagement—within the prison system, to make rehabilitation a real possibility; currently, too many of our prisoners are radicalised not on the streets of this country but in the prison system itself.

I also noticed in the Statement more than a hint that the sentencing legislation to come, perhaps on an emergency basis, might well be retrospective in its effect. I hope that the Minister will be prepared to comment a little further on the legal dangers of embarking upon extending the incarceration, or changing the sentence, of people who have already been sentenced. This a very serious principle, under not only human rights law but the common law of this country. Can the Minister give us some comfort, or at least some further explanation, as to why it is necessary to prioritise retrospective legislation—if I have that right—or to extend the sentences of people already convicted, sentenced and incarcerated?

There was also a hint in the Statement—understandably so—about people who will come to the end of their sentence one day or, indeed, as those of us who have dealt with these matters before will know, about people who have never actually been convicted of anything. I would sound a note of caution about a well-trodden and dangerous road that has been embarked upon in the past, in this jurisdiction and elsewhere, of restrictions on liberty, or punishment, or preventative measures, without charge or trial. Such measures bring dangers not just to the rule of law but to counterterror efforts themselves. I ask noble Lords who are just as experienced as I am—or more so—in these matters to consider the dangers of such a path. Have we not learned the dangers of injustices and perceived injustices that recruit and radicalise more people than they ever deter?

The Minister was quite right to express caution about commenting too much on this individual case, which must of course still be subject to intense examination and review. I hope that, in time, your Lordships’ House will be provided with a fuller and more thoughtful review and consideration of what happened in this case, so that there might be some learning in relation to all the matters we have discussed, including how this young man went down the path he did, and how he was engaged with in his younger life, including within the prison system. This is not to detract from the heroic efforts and courage shown by those who put their lives on the line over the weekend, or members of the public who, as always in this great capital of this great country, responded with stoicism, courage and unity.

[Lord Beith (LD)]

My Lords, I thank the Minister for repeating the Statement. This was a very serious incident; our thoughts are with the victims. It could have been much worse but for the rapid action of police officers. We should also recognise, as the noble Baroness, Lady Chakrabarti, did, the contribution of members of the public who came to the aid of the injured.

This terrorist was released by an automatic process which falls short of what we need to do to protect the public. We agree that, in future, release of those convicted of terrorist offences before the end of their sentence should require an assessment by the Parole Board, which will need the resources to do this. The Government have given some indication that they may give these. However, that is necessarily quite a limited thing, which will not in the end make a fundamental difference to the fact that most of these people will eventually come out of prison—a point which I will come to in a moment. If, for example, we have a terrorist conviction for possessing or distributing literature, the amount by which the sentence would be extended, from half to two-thirds, would be small as a proportion of a shorter sentence. In presenting this matter to the public, we should be clear about its limits. Is the Minister telling us—this is the point about retrospection that the noble Baroness referred to—that existing sentenced prisoners currently able to get release on licence at the halfway point will have their custody extended to two-thirds even if they are given a positive review in the Parole Board assessment? That seems to be not only retrospection but punishing prisoners for what others have done while they are inside.

The key point is that most of those we sentence for terrorist offences will eventually be released, so we have to deal with the risks. We need more resources to go into deradicalisation programmes in prisons, using any available expertise from other countries which have also been on this path. We need far more staff in our prisons, trained to deal with these prisoners. I do not think many people in the prison system would recognise the rosy picture tucked away in the Statement of life in our prisons. They house far more prisoners than they are built or staffed to hold, mainly because of longer sentences for a range of non-terrorist offences, which make prisons virtually unmanageable. We need rigorous management of terrorist prisoners, who all too often become members of a radical subculture in prison, which provides recruitment and training for terrorism and inspires the worst kind of fanaticism. When these prisoners are released, we need to be sure that they are supervised by properly financed probation services, police monitoring and, where justified, close surveillance and the involvement of the security services. We look forward to the Jonathan Hall review of multiagency co-operation, which is essential to dealing with this problem.

Finally, this House will want to look carefully at the legislation referred to in the Statement, because it touches on some important civil liberties issues. We must not let the terrorists destroy liberties which we all prize.

[Lord Keen of Elie]

My Lords, I am most obliged for the contributions from the noble Baroness, Lady Chakrabarti, and the noble Lord, Lord Beith. They touched on a very significant point, namely retrospection. I will elaborate a little on that.

There will be a retrospective element in the proposed legislation. It will not increase the sentence of those who have already been sentenced by the court. However, it will address the custodial period of the given sentence, which would be consistent with convention law and the common law. Therefore, we may have a situation in which someone has already been sentenced to a period of, say, nine years and might anticipate release without further consideration by the Parole Board after four and a half years. He would then face the prospect that the custodial element of the given sentence would increase to six years and he would also be subject to consideration by the Parole Board before he could be released even at that point. To that extent, as I say, there is an element of retrospection. We consider that to be proportionate and appropriate in the circumstances. As I say, it is consistent with convention jurisprudence and the common law that we should be able to address the custodial period of a sentence without altering the sentence itself. That is what we have in mind.

Noble Lords also raised the matter of resources. As I sought to indicate when repeating the Statement, we are seeking to address it. We are also addressing the need for clear licensing conditions to be imposed on those who are ultimately released having been sentenced for terrorist offences. Indeed, in this instance, there were conditions clearly attached. I cannot go into the detail, because that will be the subject of the police investigation, but I can say that there was a condition with regard to the place of residence of the individual who is believed to have been involved in this incident, for example. That would be common.

In addition, we have introduced the desistance and disengagement programme to try to mentor persons who have become involved in this sort of activity. That is an ongoing programme which operates both within and without prison.

I hope I can give some reassurance to noble Lords that we are concerned with the seriousness of this issue. I note with relief that noble Lords agree that we should address very quickly the question of automatic release of prisoners when they have committed terrorist offences of this kind.

Release of Prisoners (Alteration of Relevant Proportion of Sentence) Order 2019

Lord Beith Excerpts

Wednesday 22nd January 2020 Lords Chamber

[Lord Thomas of Cwmgiedd (CB)]

My Lords, I will make one brief point. It is clear from what has been said, both in the impact statement and from the many points made by noble Lords, that what will be required is a very significant amount of further money for the prisons. My noble friend Lord Thomas of Gresford has described Berwyn; it is clear that much more money is needed, but that is one example.

The question I ask the Minister is: where is this money coming from? This is a critical question. The rule of law depends upon the proper provision of courts and of legal aid—legal aid not merely in criminal matters but in family matters, where it is denied to a huge number of people; in civil matters; and for really important things such as disputes relating to social services entitlements and to employment. It is not generally available there at all. Can the Minister assure us that what happens will be through new Treasury money and not, as has happened over the last few years, through gradually denuding the other parts of the Ministry of Justice, particularly the courts and legal aid, to prop up the Prison and Probation Service? The two are plainly interlinked because there is emerging evidence to show that if you do not deal with people’s legal problems, you often set them off on the road to criminality. I hope the Minister can assure us that this is new money, because that is not what has happened in the past.

[Lord Beith (LD)]

My Lords, perhaps I may follow the noble and learned Lord on the resources point. Prison is an extremely heavy user of resources. It is not possible to have a political argument about the stance a party wants to take on the use of prison while ignoring those substantial resource implications. Those resources are denied to other things which will stop people committing crimes or make it less likely. Here, we are confronted with one piece of a quite large jigsaw puzzle. It is one measure which will go alongside the sentencing Bill and the rhetoric which effectively urges judges and magistrates to pass longer sentences. All these things act together to create sentence inflation. Not merely will we then have the 2,000 extra places by 2030, which the Government’s own impact assessment says is the central estimate of the effect of this statutory instrument; we will have all those other increases as well. All of that claims money which is effectively denied to probation and to local authority services, which are necessary if we are to steer young people away from crime. Therefore, it is money diverted contrary to the interests of public safety.

The impact assessment refers to “crowding”. This is Ministry of Justice code for what the rest of us call overcrowding, but we are apparently not allowed to use “over” any more. Overcrowding is not simply prisoners living in uncomfortable conditions because there are three to a cell; it is having more prisoners than one has the staff or facilities to rehabilitate. That is the consequence of prisons having more people in them than they are supposed to have. You do not rehabilitate your prisoners because you cannot do the courses, and you do not have the custodial staff to take people to the courses they are supposed to be taking. You even sometimes have instructors unable to do their job because the prisoners cannot safely be brought to carry out the courses. We will increase overcrowding by this series of measures.

There is no claim in the impact assessment that there will be a valuable deterrent effect. We all know that there will no such effect; people carrying out the offences that we are talking about do not calculate whether they will be released at half or two-thirds of the custodial part of their sentence, so that is not even claimed. However, there is of course the admission that shorter periods on licence could affect reintegration. The points that a number of noble Lords have made add up to a pretty strong case against a measure for which a serious positive case is difficult to put forward.

[Lord Judd (Lab)]

My Lords, this has been a very reassuring debate because the experience and wisdom that have been brought to bear are a wonderful antidote to much of the ill-informed commentary in the popular press.

I want to make a couple of brief points. First, a lot of imaginative, dedicated work goes on within the Prison Service, but the pressures, accentuated by repeated cuts over recent years, have made that work difficult to pursue, not least in the sphere of education. Do we see as fundamental to our penal system the challenge of rehabilitation or do we not? In my view, rehabilitation makes utter sense economically because it is the only way of ensuring that the amount of reoffending is reduced; but, of course, in a civilised society it makes sense in terms of winning people back to a decent role in society and an ability to contribute to its well-being. This suggests that a priority in the penal system must be for the whole culture and purpose of prison officers and prison staff to be ultimately and directly the challenge of rehabilitation. It is not a warehouse function; it is about enabling people to become better people, positive people.

European Union (Withdrawal Agreement) Bill

Lord Beith Excerpts

Committee: 2nd sitting (Hansard) & Committee stage & Committee: 2nd sitting (Hansard): House of Lords
Wednesday 15th January 2020 Lords Chamber

Moved by

[Lord Beith]

21: Clause 26, page 30, line 13, leave out paragraph (b)
Member’s explanatory statement
This amendment would remove the power of Ministers by delegated legislation to decide which courts and tribunals should have power to depart from judgments of the Court of Justice of the European Union and by reference to what test.

[Lord Beith (LD)]

My Lords, I am moving Amendment 21 on behalf of the noble Lord, Lord Pannick, who apologises that he is in court. I look forward to the contributions of the noble Lord, Lord Anderson of Ipswich, and the noble Baroness, Lady Taylor, who has chaired our Constitution Committee’s proceedings on this issue. As the committee has pointed out, the clause that we are seeking to amend raises substantial constitutional concerns. I note that two former Lord Chief Justices are in the Chamber as well, so I look forward to an interesting debate.

After the end of the implementation period, the United Kingdom courts will still have to interpret a large body of retained European law. This necessarily will involve reference to the case law created by the Court of Justice of the European Union. This case law will continue to apply in our courts alongside any relevant domestic case law. However, in Section 6(5) of the European Union (Withdrawal) Act 2018—as noble Lords will remember all too well—we have already legislated to give the Supreme Court and the High Court of Justiciary in Scotland the power to depart from retained EU case law, having applied the same test as they would have applied if they were departing from their own case law. The Government now want to give themselves the power by regulations to extend that ability to depart from established case law to other unspecified courts—which could under the terms of the Bill be any court in the land—to specify the extent to which, or the circumstances in which, the court is not to be bound by EU case law, and to substitute the Government’s view of what test should be applied by the court after consultation for the Supreme Court’s existing and well-established test.

--- Later in debate ---

The noble and learned Lord, Lord Judge, alluded to the issue of precedent and the certainty it brings to the law of the United Kingdom, and he cited the case of Rylands v Fletcher. I recall that as long ago as 1985, in the case of RHM Bakeries v Strathclyde Regional Council, the late Lord Fraser of Tullybelton pointed out that Rylands v Fletcher was not the law of Scotland and he went on to express a judgment that said that it was not the law of England. The point is that with diverse jurisdictions and legal systems within the United Kingdom, there is already room for different sets of precedent and different applications of the law, and we simply have to take account of that. Precedent is a very important aspect of the common law, but it does not bring about uniformity. We have a flexible legal system in Scotland, England and Wales and indeed in Northern Ireland, and we can accommodate the sort of proposal that is being brought forward here in the context of this regulation-making power.

[Lord Beith]

Can the noble and learned Lord tell us at what level of court he thinks it would be inappropriate to extend these powers, and would that level embrace all those courts which do not have a precedent-creating capacity?

[Lord Keen of Elie]

As the noble Lord is aware, there is a level of courts, for example the Sheriff’s Court in Scotland, which is not bound by each other’s judgments, and therefore at that level one could arrive at inconsistency of decision-making, and we are conscious of that. The question is where we should best place the determination, and the whole point of this clause is to allow for the flexibility that is required, upon consultation with the appropriate parties, to determine how we can best achieve the outcome that everyone seeks. I am not in a position to say that it will be just the Supreme Court, as it is under Section 6, or to say that it will be just the Supreme Court and the Court of Appeal. However, one can see a rationale behind the approaches, both of which have been supported by various noble and learned Lords in the course of this debate. What we want to be able to do is to resolve that debate and achieve a consensus that will bring about the best result for the law of the United Kingdom, given its different legal systems. What we are seeking in the end is certainty for those who seek to litigate in our courts, and we would achieve that by coming to a consensus on how we should look at EU case law going forward.

I cannot accept the amendment and at this time I would urge the noble Lord to withdraw it.

--- Later in debate ---

[Lord Beith]

My Lords, I found that a very disappointing response from the Minister, for whom I have great respect. It did not answer the question of which courts would now be part of the process and added to the list; it did not answer the question of what test the Government envisage being introduced through the process; and it did not answer the question of why this is not included in the Bill. The attempt to use the regulation process as an ex post facto defence of the fact that the Government have not come up with a policy yet, but would quite like to talk to some of us about what it might be in the future so that it can be put in regulations, is wholly unconvincing.

As the noble and learned Lord, Lord Thomas of Cwmgiedd, pointed out, he was talking to the Government about this 20 months ago. There has been plenty of time to come up with a policy in the interim and not leave us in this situation where we are told, “It’ll be alright, we will bring in some regulations and discuss them with you all; all your concerns will be accommodated”. I do not think that they have been accommodated at all.

I welcome the intervention from the noble and learned Lord, Lord Mackay of Clashfern. As so often on these occasions, he pointed out that with a bit more work, maybe we could get somewhere and achieve something that is consistent with the Government’s intentions but meets people’s concerns.

There are times when Ministers have to recognise the level of feeling and concern which has arisen from significant quarters in the course of Committee proceedings. This has been a remarkable debate and, in the proceedings so far on the Bill, no other debate has brought out such intensity of feeling and concern, particularly from people with significant experience to contribute to the discussion. Ministers have to recognise this. We talk about consultation, and I think that some consultation is required between now and Report.

Certainly, we will want to reflect on what the Minister said on the possibilities—I was encouraged by the intervention of the noble and learned Lord, Lord Mackay —and how we can reconcile what the Government are talking about with the need for some degree of certainty around how the law is to be administered in future. We are certainly not there yet. I beg leave to withdraw the amendment.

Amendment 21 withdrawn.