Parc Prison
Lord Bellamy Excerpts(6 months, 2 weeks ago)
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The Parliamentary Under-Secretary of State, Ministry of Justice (Lord Bellamy) (Con)
My Lords, with the leave of the House, I shall now repeat in the form of a Statement the Answer given by my right honourable friend Minister Argar to an Urgent Question in another place on the situation at HMP Parc. The Statement is as follows:
“Ensuring that our prisons are safe and secure for both prisoners and staff remains our priority. I extend my sincere condolences to the families and friends who have lost a loved one, and my gratitude to the staff at HMP/YOI Parc.
There have been nine adult deaths at HMP Parc since March 2024. It is important to note that these deaths are not all drug-related. However, four have so far been linked to substance misuse, with another potentially so. Any death in prison is thoroughly investigated by the Prisons and Probation Ombudsman and is subject to a coroner’s inquest. Until the results of these investigations are available, I must be a little careful not to pre-empt the detail of their findings or to comment on individual, identifiable cases, so there is a limit to what I can say with certainty.
I am able to say that we believe that the two deaths this month have not currently been linked to substance misuse. The deaths at HMP/YOI Parc should be considered in the wider context of the threat that synthetic opioids pose to His Majesty’s Prison and Probation Service, to those in our custody and, indeed, to the country more widely, recognising the broader societal issue.
Our work at the prison can provide vital learning as we respond to this challenge in custody and in the community, where I understand this challenge has also occurred. HMPPS and G4S, the prison operator, are working closely together, using the latest technologies, to gather intelligence on drug entry points and movements within the prison. There have been extensive searches of prisoners and staff, and any suspicious substances are tested on site with Rapiscan. Drug amnesties have been run to improve safety, and X-ray scanners are being used on entry to prison.
We have also expanded the use of naloxone at the prison, focusing on duty managers and night staff. In total, around 400 members of staff at HMP and YOI Parc are now trained to carry this drug during working hours. We also have specialist teams in HMPPS, including the substance misuse group and intelligence, supporting staff in the prison”.
Lord Ponsonby of Shulbrede (Lab)
My Lords, I thank the Minister for repeating that Answer to the Urgent Question. It was only yesterday that the Minister was answering an Urgent Question at that Dispatch Box about overcrowding in our prisons, and it was less than a week ago that Wandsworth prison received an urgent notification from the chief inspector about its unsatisfactory regime. Drug abuse and drug deaths form a common theme, from HMP Parc to HMP Wandsworth and across the prison estate. That is notwithstanding that, as the Minister said, not all the deaths at HMP Parc were drug related. Nevertheless, a majority of them were. Recently, the prisons ombudsman issued a stark warning telling prisoners at HMP Parc to throw away their drugs immediately due to the severe risk that they posed to their health.
The number of drugs found in our prisons has surged. There have been more than 90,000 drug finds over the past five years, according to the latest figures. Synthetic opioids are becoming a growing problem as part of the overall increase in drug use in our prisons. Prison staff are being targeted to smuggle drugs into our prisons. More than 1,000 officers and staff were investigated in 2023 alone. Can the Minister outline what further steps the Government are taking to crack down on this route of smuggling?
One way to stop drugs getting into our prisons is through physical security measures, yet reports in the Times newspaper found that body scanners to detect drugs in another prison were not being staffed, or were being staffed in an absolutely minimal way. Does the Minister believe that body scanners should be put to better use?
The problem with illegal drugs in our prisons is endemic and growing. It requires a systematic, wide-ranging response to drive drugs out of prisons. Can the Minister update the House on what the Government are doing about prison security, mental health support, working with third-party providers in education and health and getting prisoners out of their cells so they can be engaged in purposeful activity? Of course, underpinning all this is the key role that the Probation Service must have in preventing reoffending. What is the Government’s strategy to reduce this endemic problem?
Lord Bellamy (Con)
I thank the noble Lord for those questions, which are entirely relevant and reasonable. The Government and, indeed, the country must face the fact that we have a very considerable problem arising from the increased availability of synthetic opioids in the community. Noble Lords will be aware of how widespread this problem has been and still is in the United States, and we are now seeing that problem in this country. The difficulty is that such drugs are approximately 500 to 1,000 times stronger than heroin and it is particularly easy to overdose on them, so there is a very high risk of prisoners almost accidentally causing themselves great harm or even of giving rise to fatal incidents.
This is a very considerable challenge of which the Government are aware. We are redoubling our efforts to stop these drugs entering the prison, bearing in mind that, once the drugs are in the community—and they are in the local community in various areas around a number of prisons—that is not a very easy thing to do. Obviously, one must have searches—that must include staff searches, due to the risk that staff may be importuned to carry these drugs—as well as on-site drug testing. Handheld devices are particularly effective in this area and body scanners play an essential role. I agree with the noble Lord that body scanners should be fully manned. If they are not being fully manned, that must be addressed.
In addition to those measures, particularly at HMP Parc, drug amnesties have been used from time to time, especially recently, to persuade prisoners to surrender their drugs. There is a national operational response plan; I will not go into detail but it is supported by the national substance misuse delivery team. The use of intelligence in the local community to identify weak points—particularly, again, in relation to those who may be deliberately or inadvertently carrying drugs into prison—is also important.
I gather that HMP Parc is currently rated green/amber on the issue of security, which is not a bad rating in the circumstances. However, I fully agree with the noble Lord that we have to work as a society to combat this. I pay particular attribute to the Gwent Police, NHS Wales and the Welsh Government for their very close collaborative working on these tragic matters.
Lord Marks of Henley-on-Thames (LD)
My Lords, deaths in custody are always a tragedy, and we join with the noble and learned Minister in extending our deep sympathy to the families and friends of the deceased.
Such deaths represent a failure of the prison system to keep prisoners in its care safe, so we need to take them very seriously indeed. I am not saying that the Government are not taking this seriously—the Minister’s answers show that they are—but with nine deaths in 10 weeks at one prison, Parc, the failure can properly be described as catastrophic. No one wishes to pre-empt the outcome of the coroner’s inquests, but it seems abundantly clear that a number of these deaths—at least four—were caused by the use of drugs, notably Spice. As the Minister pointed out, this is a significantly dangerous drug and capable of causing harm accidentally to prisoners who use it.
In a supplementary question in the other place, Stephen Crabb MP, himself a former Secretary of State for Wales, pointed out that there was evidence—of which we are all well aware—that the largest source of drugs entering prisons was staff, who were bringing them in. He asked why it was that staff were not routinely scanned for drugs. In answering, the Minister of State, Edward Argar MP, pointed out that we have body scanners for visitors—as the Minister here pointed out—and for others coming into prisons, as well as handheld detectors for use in the cells, but he did not address the direct question about the routine scanning of staff on entry. The noble and learned Minister mentioned the use of body scanners for staff but did not address that question either.
In the light of the serious and increasing effects of drug importation into prisons, is it not time for the MoJ to consider the routine scanning of staff on entry to prisons? I accept that that may not be popular with everyone, or with prison officers, as it may be said to betoken a lack of trust. However, as the Minister pointed out, the vast majority of prison staff are law-abiding and careful, and do not bring drugs into prison. Such staff have nothing to fear. What consideration is the MoJ giving to the routine scanning of staff on entry? Of course, it would have to be carefully and tactfully considered, after a period of consultation. Nevertheless, it seems to me that the time is now right to give that consideration, given the really serious effects of the drugs that we are now seeing imported into prisons, of which these are nine terrible examples.
Lord Bellamy (Con)
My Lords, I again associate myself and the Government with the condolences we have already extended to the families of all those affected. We recognise that we are dealing with a very tragic situation.
On the noble Lord’s direct question about body scanners, the Government are considering all possible measures to reduce this problem. The issue of body scanners for all staff as a routine matter is clearly one that needs to be taken under advisement and given the most careful consideration. I think that is as far as I can go today.
I should add, in case your Lordships are wondering, that despite this very unusual situation at HMP Parc, the Government consider that the prison is fundamentally sound. It has more than 1,800 inmates. The youth offender institution, which is separate, is recognised as one of the best in the land. The prison has strengths in supporting, in particular, neurodiversity and autism; it has rehabilitation and resettlement functions, as well as a remand population. There are many positives, and I would not want to give the impression that everything at Parc is going wrong; it is not.
Legal Aid, Sentencing and Punishment of Offenders Act 2012 (Legal Aid: Domestic Abuse) (Amendment) Order 2024
Lord Bellamy Excerpts(6 months, 2 weeks ago)
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Lord Bellamy
That the draft Order laid before the House on 25 March be approved.
Considered in Grand Committee on 7 May.
End of Custody Supervised Licence Scheme: Extension
Lord Bellamy Excerpts(6 months, 2 weeks ago)
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The Parliamentary Under-Secretary of State, Ministry of Justice (Lord Bellamy) (Con)
My Lords, I shall now repeat in the form of a Statement the Answer given in the other place on 8 May by my right honourable friend Minister Argar, concerning an extension of the end of custody supervised licence scheme to a maximum of 70 days. The Statement is as follows:
“Protecting the public is our No. 1 priority, so it is right that we take tough and decisive action to keep putting the most serious offenders behind bars, and for longer, as the public rightly expect. We are carrying out the biggest prison expansion programme since the Victorian era, and we are ramping up removals of foreign national offenders.
We have a duty to ensure that the prison system continues to operate safely and effectively, with offenders held in safe and decent conditions. This means ensuring that no prison exceeds a safe maximum operating limit. ECSL allows lower-level offenders to be released before their automatic release date. In March, the Lord Chancellor stated that we will
‘work with the police, prisons and probation leaders to make further adjustments as required.’.—[Official Report, Commons, 12/3/24; col. 157.]
This extension is in line with what the Lord Chancellor said.
ECSL operates only when absolutely necessary and is kept under constant review. I know that many Members of this House will be concerned about the early release of offenders into the community, but I make it clear that only offenders who would soon be released anyway will be considered for ECSL.
We have put in place safeguards, including that the Prison Service retains the discretion to prevent the ECSL release of any offender where early release presents a higher risk than if they were released at their automatic release date. There are strict eligibility criteria, and anyone convicted of a sexual offence, a terrorist offence or a serious violence offence is ruled out. Public safety will always be our No. 1 priority, and all those released will be subject to probation supervision and stringent licence conditions”.
Lord Ponsonby of Shulbrede (Lab)
My Lords, the ECSL scheme was launched last October as a temporary response to the capacity crisis, which has seen the prison population soar to 88,000. At that time, it was for 35 days’ early release. The Government’s narrative was that this would relieve increasing pressure on prisons and allow probation staff to manage clients back into the community safely and effectively. That has not worked sufficiently, so they are increasing the early release to 70 days. Does the Minister agree with me that this shows that the Government have failed to properly manage the prison estate for capacity, safety and basic decency? Does he also agree with me that there needs to be a renaissance in our probation services so that we make more use of community orders and suspended sentences, rather than ever increasing the prison population?
Lord Bellamy (Con)
My Lords, I think the House is well aware of the pressures on the prison estate. We have had considerable difficulties in recent times, particularly with a highly increased remand population and the ongoing effect of Covid. The Government have embarked on the largest prison building programme since Victorian times. We have opened two new prisons, and there are two more on the way for which outline planning permission has now been achieved. We are working as well as we can to deal with the situation, but temporary measures are unavoidable, I am afraid, as the Labour Government found when they were in power some time ago. I agree with the noble Lord that sentencing, in terms of community orders and suspended sentences, is very much a subject that should continue to be considered fully.
Lord German (LD)
My Lords, the Government’s approach to this has been rather haphazard. We have moved from 18 to 70 days, and it does not look as if this is getting any better. Has the Minister any news on the Sentencing Bill and the Government’s proposals for people with sentences of 12 months or fewer generally not going to prison? Secondly, when does the Minister expect Dartmoor to be able to take its full quota of prisoners again, having been emptied of most of them?
Lord Bellamy (Con)
My Lords, I am not in a position to update the House at the moment on the Sentencing Bill, except to say I understand that it will indeed be progressing through the other place in early course. I will write to the noble Lord about the situation at Dartmoor, on which I am not at this moment informed.
Lord Garnier (Con)
My Lords, I declare my interest as a trustee of the Prison Reform Trust. Would my noble and learned friend accept that there is much of merit in the ECSL scheme, but there are not just prisoners who are going to be released early but also IPP prisoners who are still in prison 10 to 15 years after their tariff? Only last month or the month before, we heard how an IPP prisoner took his own life because he was beyond hope. There are far too many people in prison far too long. Could targeting that not be a way of reducing the prison population and emptying those cells that the Government seem so keen to fill up with other people at the other end?
Lord Bellamy (Con)
My Lords, the subject of the IPP prisoners will be fully discussed in the Report stage of the Victims and Prisoners Bill, now scheduled for next Tuesday. Noble Lords will be aware that extensive government amendments have been tabled with the clear intention of reducing the population of IPP prisoners.
Lord Falconer of Thoroton (Lab)
As somebody who has faced the dilemma that the current Lord Chancellor faces, I am not unsympathetic to the position of the Government. I understand they are doing it because the prisons are too full. Could the Minister explain what effect the fact that the prisons are too full is now having on the way the Government are dealing with the backlog in the Crown Court? There are 66,000 cases waiting to be tried in the Crown Court. I assume there is no desire to speed them up, because the prisons will get fuller and fuller.
Lord Bellamy (Con)
My Lords, the Government are working as closely as possible with the judiciary to reduce the backlog in the Crown Court as early as possible.
Lord Empey (UUP)
My Lords, more prisons are now in special measures than have been for some years, including flagship prisons such as Wandsworth. Reports on how they got into this position mention low morale, drug use, violence and some terrorist elements exercising control over prisons. While having sympathy with the Government in so far as they do not, in and of themselves, determine how many people are in prison, I ask: have we not reached the point where the system is in part broken? Therefore, we need a radical appraisal of how it is going to continue. With so many significant prisons now in special measures, it is perfectly clear that something is radically wrong with the whole system.
Lord Bellamy (Con)
My Lords, there are certainly problems in some prisons, but the overall picture is by no means as painted. We have had major refurbishments at sites including HMP Birmingham, HMP Liverpool and HMP Norwich. Your Lordships may have seen the picture of Liverpool the other day in the papers. It was a most impressive refurbishment. Constructions of new houseblocks at four prisons are going on; we have opened HMP Fosse Way and HMP Five Wells. I would encourage noble Lords to visit those very modern and effective prisons. We now have outline planning permission for two more.
The Lord Bishop of Manchester
My Lords, I declare that I am a trustee of the Clink Charity: we are involved with training people in prison for qualifications for restaurants, catering and the like. Those last few weeks in prison are often a crucial time for prisoners gaining the qualifications they need to get a decent job when they are released. I am sure every prisoner wants to go as soon as they can, but is the Minister aware, and will the Government take consideration, of the effect of prisoners not receiving their qualifications because they have not quite been completed by the time their advanced release date comes?
Lord Bellamy (Con)
My Lords, it is a priority of this Government to improve employment opportunities for persons in prison. I would like to pay particular tribute to the Clink Charity, which has done excellent work over the years. The rate of prisoners in employment six months after their release has significantly increased under this Government, and various steps, which I think I have outlined on previous occasions, have been taken to improve the qualifications of prisoners leaving prison.
Lord Jackson of Peterborough (Con)
My Lords, is it not incumbent on this and future Governments to focus on prolific offenders, those who have committed more than 16 offences, and hyper-prolific offenders, who have committed more than 45? In so doing, we could cumulatively redirect funding for less serious prisoners to rehabilitation and reducing recidivism to make sure that that group has a better chance of making good when they leave prison.
Lord Bellamy (Con)
My noble friend makes a very serious point, which has considerable force. The Government are well aware of it and will take it forward.
Lord Howell of Guildford (Con)
My Lords, 50 years ago, when the prison population was about 40,000, some of us proposed radically—and, it was thought at the time, dangerously—that non-state or semi-state organisations, institutions and enterprises should play their role in reorganising the Prison Service and that there should be a radical appraisal, as we heard called for a moment ago, of the nature of custody and penalties so that we could be more in line with other countries on the proportion of people in prison in relation to population. We are still miles ahead, except for America. Can my noble friend reassure us that, whichever party is in government, there will be a serious, organised effort to grip this custody issue and bring us into line with civilised patterns in other countries and away from the problems with overcrowding and drugs and the endless stories of difficulties to which we are at present subjected?
Lord Bellamy (Con)
My Lords, if my noble friend is suggesting that we need a radical and thorough debate on sentencing policy and the use of custody, I entirely agree with him. Any Government would need to take that very serious issue forward.
Lord Bailey of Paddington (Con)
My Lords, has any assessment been made of the impact of prisons being so full and there being such a long backlog in court? One of the biggest drivers of crime in the poorest communities in this country is the idea that you will get away with it. I have been speaking to a number of people at street level who are saying that the jails are too full to send anybody there, which they say is a driver for new criminals to get involved.
Lord Bellamy (Con)
My Lords, the purpose of this measure—the increase in the early release under licence scheme—is absolutely to make sure that there is always space in jail for offenders. People who commit offences can expect to go to jail if their offence merits it.
Legal Aid, Sentencing and Punishment of Offenders Act 2012 (Legal Aid: Domestic Abuse) (Amendment) Order 2024
Lord Bellamy Excerpts(6 months, 3 weeks ago)
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Lord Bellamy
That the Grand Committee do consider the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (Legal Aid: Domestic Abuse) (Amendment) Order 2024.
The Parliamentary Under-Secretary of State, Ministry of Justice (Lord Bellamy) (Con)
My Lords, this order is supplementary to what became Statutory Instrument No. 150 of 2023, which I had the honour of moving in this Room on 23 January 2023. That SI provided legal aid for the new procedures under the Domestic Abuse Act 2021, namely: domestic abuse protection notices, known as DAPNs, which provide immediate protection following a domestic abuse incident; and the new domestic abuse protection orders, known as DAPOs, which provide flexible, longer-term protection for victims.
Under that statutory instrument, legal aid was provided for a number of procedures in the family, county and criminal courts but, at the time, there was a small omission for advocacy in the magistrates’ court or on appeal from orders in the magistrates’ court to the Crown Court. This order simply fills that lacuna, which came to light in the course of working through both how this new regime was to operate and the complex provisions of Schedule 1 to what is known as LASPO to make sure that the legal aid regime covering these new orders was complete and comprehensive. We are simply filling a small gap in the regime that had not been spotted before.
This new statutory instrument before the Committee will ensure that legal aid is available for those proceedings. Let me go into more detail. The statutory instrument before your Lordships will make advocacy for those persons who are protected by a DAPO—or those who are subject, or potentially subject, to a DAPO—available under civil legal aid in magistrates’ courts. This form of civil legal aid will apply to DAPO cases where the application for the DAPO is made by the police in the magistrates’ courts. It will extend to appeals to the Crown Court and to applications to vary or discharge the DAPO in these courts. The respondent to an application for a DAPN will also be entitled to legal aid.
Your Lordships may recall that these procedures will for the first time enable these kinds of orders to be made by a range of courts, including magistrates’ courts, family courts, county courts and the Crown Court. In practical terms, they will make sure that the procedures and approaches to these orders mesh together, in view of the different courts that now have jurisdiction. This matter has been, and is being, worked through; as I understand it, a pilot scheme will be launched later this year to test the way in which these procedures will work. If your Lordships approve today’s statutory instrument, there will at least be a comprehensive legal aid scheme covering the procedures envisaged by the 2021 Act. I beg to move.
Lord Ponsonby of Shulbrede (Lab)
My Lords, I thank the Minister for introducing this welcome SI. We are happy that the lacuna has been addressed. I disclose to the Committee that I am a magistrate in family and criminal courts, and I occasionally have DAPO hearings, at which both the applicant and respondent are often unrepresented at the moment, so I welcome this situation being addressed.
The Minister mentioned a pilot starting, but I was not quite sure to which he was referring. Is it the one in Croydon, which I have been told about? As I said, I hear domestic abuse prevention orders when I sit at the moment, so is this a development in the existing orders I already hear? I am not quite sure to which pilot he refers.
I also make the point that family courts hear non-molestation orders now. These may be replaced by DAPOs, and we welcome the meshing together of the various civil orders across different jurisdictions.
I want to raise a separate issue, which I am afraid I did not have the foresight to give the Minister notice of. Last year, on 24 July, I wrote to the noble Lord, Lord Sharpe, about updating the information that must be disclosed on enhanced criminal record certificates. I gave the example of domestic violence prevention orders —not domestic abuse prevention orders—and what would happen if such an order were put in place. It is clearly not a criminal order but, if it is breached, it is a criminal offence and it would appear on a criminal record check. I will not go into the details of the case on which I wrote to the noble Lord, Lord Sharpe, but he gave me a very comprehensive answer on that issue, on 5 October. My point is that the answer was a complicated one—in fact, I will give the concrete example, because it is difficult to explain this without doing so.
I was hearing a domestic violence prevention order, and the applicant was a woman who wanted the order made against her former boyfriend. The applicant’s lawyer was a part-time judge and she was paying him privately. The applicant’s lawyer said to me that the best way to resolve this was with a no-facts finding, where an order is put in place, and that for a limited period the couple did not want to see each other any more. He said that it would be satisfactory to proceed in that way. The respondent heard the advice that I had received, and I explained that, if he were to breach the order, it would be a criminal offence. I asked what his attitude was to that course of action. The respondent said to me, “This is completely impossible for me because I am a primary school teacher. If I get this civil order, I will have to disclose it to my head teacher and I do not know what impact that would have on my career”. I gave him the advice to find a lawyer and fight the application. That is what actually happened, and that is the case that I raised with the noble Lord, Lord Sharpe.
Subsequent to that hearing, the legal adviser said to me that the primary school teacher would not have to disclose the matter to his head teacher because the legal adviser, as a solicitor, would not have to disclose an equivalent civil order to her professional body. It was therefore not necessary for the respondent to disclose this information. This was said after the hearing.
I was very cautious about accepting that advice, because different professional bodies will have different advice and, particularly when you are working with children, different and more stringent circumstances may pertain. I explained all this to the noble Lord, Lord Sharpe, and, as I said, he gave me a very full explanation of the situation in which that primary school teacher would find himself. In a nutshell, it is complicated. What that man has to disclose, as an obligation and what the order requires to be disclosed, is not straightforward.
Lord Bellamy (Con)
My Lords, I thank the noble Lord, Lord Ponsonby, for those comments. I think that I can reply briefly. I recall that on 23 January 2023—because I reminded myself of the passage in Hansard—the noble Lord raised the example of the teacher, and I am interested that there has been a follow-up, that the noble Lord, Lord Sharpe, has advised on this and that it is complicated. The point that the noble Lord, Lord Ponsonby, is making is that, the more we make these orders, and the more we create these procedures, the more complex it becomes. That is a fair point, and it is one that I hope the Government take account of as we go along, because there are unintended consequences to some of these things.
The underlying thought is that the existing procedures, such as they are, in the magistrates’ court and with the non-molestation orders in the family courts, needed a more overall approach. The family courts needed additional powers to order tagging and various other powers that, for the moment, are reserved to the criminal courts—so we have a comprehensive scheme, but exactly how it works is still to be worked through. In that connection, my understanding is that there will be a more detailed pilot, which apparently includes Croydon, Greater Manchester and the London Boroughs of Sutton and Bromley, as well as—for some reason—the British Transport Police, to work through some of those issues and the best way to deliver the legal support that is so important in these areas.
I entirely welcome and support the noble Lord’s comment that legal advice for all parties here is very important. I am not completely sure that the teacher in the example given would have qualified for legal aid, but at least there is now a structure there that should enable people to have legal advice on a wider scale than has hitherto been the case, now that we have plugged that gap.
That is probably as far as I can take it at the moment—save again to say that, as we create all these different procedures, processes and possibilities, up to a point we risk bogging the system down in all kinds of other complexities. That is, I am afraid, the cost of proceeding down this road.
Baroness Hamwee (LD)
I had expected to be able to continue doing what I was doing while the debate on this order took place but I was fascinated by the example that the noble Lord, Lord Ponsonby, gave. I would just make the rather obvious point about the importance of wide consultation when arrangements are being brought in, in order to avoid the unintended consequences to which the noble and learned Lord referred. Nobody can have enough imagination to anticipate all the intended consequences or consequences that might be less desirable than others but I have noticed recently that, for a number of SIs, the Explanatory Memorandum has said that there has not been any consultation because it has not been necessary.
Lord Bellamy (Con)
I am sure that the noble Baroness’s point is well taken. I very much hope that the pilots I mentioned will sort out the unintended consequences, or at least minimise them.
Prisons: Foreign National Offenders
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The Parliamentary Under-Secretary of State, Ministry of Justice (Lord Bellamy) (Con)
My Lords, I thank all noble Lords who participated in this debate, in particular my noble friend Lord Jackson of Peterborough for raising this most important issue. I am not sure that I shall be able to answer in detail all the questions that I have rightly been asked in this debate, but my officials will go through the transcript and I will write to everybody to make sure that the questions are properly answered.
Briefly, by way of background, noble Lords will see from the House of Lords report that there is a dip in the numbers and that they have started to climb again since the Covid crisis. I am told that, in effect, the dip is accounted for by various difficulties encountered by the Home Office at the time. They include quite a number of legal challenges. One that went to the Supreme Court was on something then called Section 94B, which operated the principle of “deport first, appeal later”; it was lost and, as a result, 700 cases had to be redone. Then, in 2019, there were legal proceedings that, as noble Lords may remember, challenged a lot of charter flights. In the meantime, the modern slavery law came into effect, which increased the number of modern slavery claims being made by prisoners. So a combination of factors led to that decline even before we had Covid, but Covid then had a further adverse effect.
Since then, we have climbed up again, to nearly 4,000 last year—a 27% increase on the year before. I just say that by way of background. I do not accept the stricture that the Government have been in a position of chaos and incompetence; I think those were the words used. The Government have been doing their best with a very difficult situation.
Against that background, briefly, there are, roughly speaking, about 10,000 or so prisoners who are foreign national offenders. About one-third of those are on remand. We cannot do anything about that, so we are talking about 6,500 people or something of that kind. Of course, there are also foreign nationals in the community —that is the number in prison—but we are doing our level best to improve performance in that respect. As I said, we returned nearly 4,000 FNOs from prison last year.
The Lord Chancellor has talked about the new measures that we are introducing; they include the early removal scheme, with which noble Lords are familiar. Between January and March this year, almost 400 foreign national offenders were removed—a 61% increase over the same period last year. Part of this is also due to the increasing use of prisoner transfer agreements. I shall say a word about that because it has, rightly, cropped up in the debate.
The Albanian agreement came into effect, or was improved, in May 2023 in order to speed up prison transfers, with greater numbers of the most serious offenders to be sent back to Albania. That is continuing but, even in the case of Albanian prisoners, there are still procedural difficulties that cause delays in the process. For example, each transfer has to be approved by the Albanian courts, which must sanction the Albanian authorities’ power to hold the prisoners, as it were, when they arrive back in Albania. It is a lengthy process; indeed, quite apart from prisoner transfer agreements, one is wrestling with some difficult issues in physically deporting a foreign national offender. Often, there will be very late appeals and all kinds of claims raised. In many cases, there will be absolutely no documentation, so you do not even know what country they come from; you then cannot prove where to send them or prove to the receiving state that they are indeed nationals of that state. These kinds of difficulties arise, quite apart from the physical problems of having an aircraft, escorting people and all those kinds of difficulties.
One should not underestimate the operational problems here but the Government are determinedly working on them. A better process has been introduced for dealing with foreign national offenders. There is a new task force across the Home Office and the Ministry of Justice, and we have recruited 400 additional case workers to prioritise these cases; they have been in place since last month and will streamline the end-to-end process. So the Government are tackling the problem in general terms.
With that broad background, I will see whether I can deal with at least some of the questions I was asked. I will write to noble Lords on the problem of derogations from the convention, which was one of the points raised on the ECHR.
I think the problem with Jamaica has been the difficulty of reaching a political agreement with the Jamaican Government—I think that that is the case, but I will confirm it in writing. The Albanian example is working quite well. We have agreements with many other countries, but they are not always effective, because prison conditions in other countries are not very satisfactory. Sometimes, the agreement is to enable British prisoners in the foreign prison to come back—a recent example was from the Philippines—rather than for us to send people there, so it is a complicated area.
I do not think I can comment on the specific case of Abdul Ezedi in a debate such as this.
We will work very hard to implement the recommendations of the chief inspector’s report. Points about that were well made. It is another aspect where there can be improvement, but, as I said, we are well up—I gave the figure of 61%—on the equivalent period last year in our success in deporting foreign nationals.
Lord Jackson of Peterborough (Con)
Incidentally, going back to the remarks of the noble Lord, Lord Ponsonby, I once visited the San Miguel prison in Santiago, Chile, with the fabulous penal reform campaign of the noble Baroness, Lady Stern. The month before, 81 inmates died in a fire. It was the grimmest prison I have ever been to, but talking about prisons we have known is by the by.
I will press the Minister on the issue of the chief inspector’s report. He know that one of the key issues raised was the routine and repetitive use of manually accessed spreadsheets. There was no IT system that was trustworthy, to the extent that virtually any management data could be easily accessed. Is that a key imperative for the department to work on, as it prepares its formal response to the chief inspector’s report?
Lord Bellamy (Con)
I thank the noble Lord for his intervention. Yes, that is extremely important. I will write with a further update on what can be done about it. It will be no secret to noble Lords that the problem of data across the criminal justice system and the prison system is ongoing, and we are working with various systems of various ages, including those of elderly status. A great deal needs to be improved.
I will press on, having one eye on the time. One of the various points raised by the noble Lord, Lord McNally, was about the deportation of people who came here as a child. As far as they are protected, those people have to rely on Article 8 of the European Convention on Human Rights on family life, which is often a successful defence, because they will have no connections with the country to which they are being sent.
On other countries, the one with which we are the furthest forward at the moment, as far as I know, is Italy. The Lord Chancellor hopes to reach an agreement with Italy in the next few weeks. I do not think that I can go further than that, but there have been encouraging negotiations with Italy, and I hope that that and the Albanian situation will help significantly.
I understand that consultation with victims is conducted through victim liaison units. In the case of an FNO facing deportation, I am told that, where victims have signed up to the victim contact scheme, that consultation takes place.
I fully agree with the points made by my noble friend Lord Farmer about rehabilitation and the importance of social visits. As noble Lords know, he conducted two important reviews not long ago, and I believe the ministry has accepted all his recommendations. An important part of that work was the social aspect of prisoners. I am not aware of any reduction in emphasis being placed on that, but I will investigate and write accordingly. Almost all prisons in England and Wales now have facilities for secure video calls, or in-cell telephony. I do not know whether that is the case in Minsk or Sarajevo, but it is a considerable improvement on what used to be the case. It certainly does not exist in the United States or, I would have thought, San Miguel prison.
There are important efforts to encourage peer-to-peer support. Pilots are in progress at the moment with a particular focus on FNOs, although there are facilities for long-range contact. FNOs with no visitors can get free phone credits for overseas calls and free video calls, which is considerably better than nothing. As I said, all prisons across England and Wales offer secure video calls.
Noble Lords have raised some important issues. I hope we are grappling with them; their importance is in no way neglected. The overall situation is that the Government are making progress in this area. Noble Lords have made very good points which, if I have not already answered, I will answer in more detail in writing. I close by thanking noble Lords, particularly my noble friend Lord Jackson, for raising these important issues.
Victims and Prisoners Bill
Lord Bellamy ExcerptsTuesday 23rd April 2024
(7 months ago)
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Lord Hampton (CB)
My Lords, I shall speak briefly to Amendment 61, in the name of the noble Lord, Lord Ponsonby of Shulbrede, and Amendments 62 and 71, in the names of the noble Lords, Lord Polak and Lord Russell of Liverpool, and the noble Baroness, Lady Benjamin. In this, as ever, I must declare my interest as a state secondary school teacher.
The great thing about following the noble Baroness, Lady Benjamin, and the noble and learned Baroness, Lady Butler-Sloss, is that it is like somebody doing your homework for you. All the way through this stage of the Bill, we have talked about children as being separate victims, and we got the “Uncle Tom Cobley and all” reason back—in that, if you have to mention one, you have to mention all in this. I think we have to be specific. The noble Lord, Lord Ponsonby, and I went to the Lighthouse child house and saw its model. We saw how, when victims are treated specifically, we can get higher levels of prosecution, better health for them in future and save money in the outcome. Why would you not do that?
The Parliamentary Under-Secretary of State, Ministry of Justice (Lord Bellamy) (Con)
My Lords, I thank all noble Lords for their contributions to this debate. I first bring forth the Government’s Amendment 75, which requires that Welsh Ministers be consulted on any guidance on victim support roles under Clause 15, so far as the content relates to devolved matters. Victim support roles may operate across criminal justice settings and include devolved health and local authority responsibilities. It is therefore right and entirely in line with the devolution settlement that Welsh Ministers are properly and fully consulted and that the Welsh context is properly reflected in the resulting guidance that will flow from that. I warmly thank the noble Lord, Lord Ponsonby, for his Amendments 72 and 73, which relate to this matter. It is the Government’s view that government Amendment 75 covers that ground and that it is no longer necessary for the noble Lord to press his amendment in this respect.
Amendment 61 is about consultation with providers who are under a duty to collaborate. It would create a mandatory requirement for relevant authorities to consult those providing support to child victims during the formulation of their strategy under Clause 13. We have just heard moving contributions on children. As I said last week during the debate, the Government have been clear throughout Part 1 that the distinct needs of children should indeed be taken into account. That is reflected in particular in Clauses 13(4) and 15(5), which specifically relate to children, now defined as individuals under the age of 18. Those clauses, among other things, require the commissioners to make reasonable efforts to obtain the views of relevant victims, which will expressly include children. The guidance will underpin that duty and set out best practice for consulting child victims and those who provide services to such victims.
We have fully discussed children. I do not think I need repeat anything that I have already said. The position of children is very widely recognised. Therefore, in the Government’s view, Amendment 61 is overtaken by the provisions that already exist in the Bill and what has already been said on behalf of the Government in this respect.
I come to Amendment 79 in the name of the noble Baroness, Lady Lister, which relates to support for victims with no recourse to public funds. I thank her for tabling that amendment. The code is clear that victims are entitled to access services, including support services, under the code regardless of their resident status. As has been mentioned, there is also access to funding and support through the migrant victims of domestic abuse concession. That mechanism was expanded last February to give victims who are here as the partner of a worker or student a short period of lawful status, financial stability and support while they consider their future options. That is a major extension of the concession that was first introduced in 2012.
Of course, the Government have heard the concerns raised about the need for a longer-term solution in this matter. Basically, two points arise. First, this is not that easy to address in the context of the wider immigration system and immigration policy. We cannot ignore the fact that there is a risk of creating a route that is attractive to some who seek to shortcut or abuse the immigration system, rather than the genuine victims of domestic abuse whom we all seek to support. That has to be worked through. However, if I may speak frankly, while the Government will of course continue to support this important matter, which has been raised many times in recent years, resources are not unlimited and this must now take its place in the next spending review. No doubt the Government will then come to a view as to how resources are allocated.
In the meantime, there is support under the migrant victims of domestic abuse concession. There is also the support for the migrant victim scheme, which provides wraparound support, including accommodation, subsistence and counselling to victims with no recourse to public funds. As I understand it, that has supported over 1,200 victims since April 2021. I would like to go further towards the noble Baroness and others who have supported this amendment, but I hope that what I have been able to say will at least persuade her not to press it further.
I come now to Amendments 60, 64, 66 and 67, which variously relate to guidance defining specialist community-based services for victims of domestic abuse, sexual violence and so on, as well as the funding gap, a requirement that sufficient funding is provided annually to the relevant authorities to commission the relevant victim support services, and the establishment of cross-government “by and for” funding services. It is quite a large group, but your Lordships will have the general picture.
First, I very much thank the right reverend Prelate and others for their engagement on these amendments, along with representatives from the sector. Of course, the duty to collaborate under the Bill will need to have regard to the joint needs assessments, and the local strategies, which will be published, should include evidence of how the relevant authorities have carried out their needs assessments, as well as how those assessments have informed commissioning decisions.
I can commit that noble Lords will see in the draft guidance, shortly to be available, that it will set a clear expectation for local commissioners to share both a self-contained joint needs assessment document and joint strategies with the Ministry of Justice to enable the Government to bring together local intelligence on need. I very much hope and expect that this will provide the national framework for addressing the problems raised in this debate.
Lord Bellamy
“(8A) The victims’ code may make different provision for different areas.”Member's explanatory statement
This amendment is a drafting change to reflect current practice not to treat provision for different areas as provision for different purposes.
Lord Bellamy
“(b) the Commissioner for Victims and Witnesses, and(c) the Welsh Ministers.”Member's explanatory statement
This amendment, together with my amendment of Clause 4, page 4, line 22, requires the Secretary of State to consult the Victims’ Commissioner and the Welsh Ministers when preparing or revising the victims’ code.
Lord Bellamy
Member's explanatory statement
This amendment, together with my amendment of Clause 3, page 3, line 28, requires the Secretary of State to consult the Victims’ Commissioner and the Welsh Ministers when preparing or revising the victims’ code.
Lord Bellamy
“(A1) Where the victims’ code makes provision about a service to be provided to victims by a person, the person must provide the service in accordance with the code unless the person has good reasons not to. (A2) Any person who is subject to the duty in subsection (A1) and is not an individual must ensure that procedures are in place by which other persons may complain about an alleged failure to comply with the duty.”Member's explanatory statement
This amendment requires persons specified in the victims’ code to provide services in accordance with it, unless they have good reasons not to, and to have procedures for dealing with complaints.
Lord Bellamy
Member's explanatory statement
This amendment is consequential on my amendment of Clause 5, page 4, line 27.
Lord Bellamy
Member's explanatory statement
This amendment requires the Secretary of State to consult the Victims’ Commissioner before making regulations under Clause 6.
Lord Bellamy
Member's explanatory statement
This amendment is consequential on my amendment of Clause 5, page 4, line 27.
Lord Bellamy
Member's explanatory statement
This amendment is consequential on my amendment of Clause 5, page 4, line 27.
Lord Bellamy
Member's explanatory statement
This amendment is consequential on my amendment of Clause 5, page 4, line 27.
Lord Bellamy
“(A1) The Secretary of State and the Attorney General, acting jointly, must—(a) keep under review the code compliance of the persons mentioned in subsection (1), and(b) annually, prepare and publish a report about the code compliance of those persons in the period to which the report relates.(A2) If the Secretary of State and the Attorney General agree that the code compliance of a person mentioned in subsection (1) is unsatisfactory they may—(a) if the person is the chief officer of police for a police area, give the elected local policing body for the area a notice setting out their reasons for being of that view;(b) in any other case, give the person a notice setting out their reasons for being of that view.(A3) If the Secretary of State and the Attorney General give a notice under subsection (A2) they must—(a) if the notice is given under paragraph (a) of that subsection, send a copy of the notice to the chief officer of police to whom the notice relates, and(b) in any case, publish the notice in such form and manner as they consider appropriate.(A4) The Secretary of State and the Attorney General must consult the Commissioner for Victims and Witnesses before—(a) publishing a report under subsection (A1)(b);(b) giving a notice under subsection (A2).(A5) The Secretary of State must publish such compliance information as the Secretary of State considers will enable members of the public to assess the code compliance of the persons mentioned in subsection (1) in the period to which the information relates.”Member's explanatory statement
This amendment gives the Secretary of State and the Attorney General joint functions in relation to reviewing compliance with the victims’ code by police forces and other criminal justice bodies. The Secretary of State must also publish certain information in relation to the code compliance of such bodies.
Lord Bellamy
Member's explanatory statement
This amendment is consequential on my amendment of Clause 10, page 8, line 26.
Lord Bellamy
Member's explanatory statement
This amendment replaces a reference to “children” with a reference to under-18s.
Lord Bellamy
Member's explanatory statement
This amendment requires the Secretary of State to consult the Victims’ Commissioner before issuing guidance under Clause 11 on raising awareness of, and reviewing compliance with, the victims’ code.
Lord Bellamy
Member’s explanatory statement
This amendment replaces a reference to “children” with a reference to under-18s.
Lord Bellamy
Member’s explanatory statement
This amendment replaces a reference to “children” with a reference to under-18s.
Lord Bellamy
“Disclosures by victims that cannot be precluded by agreement(1) A provision in an agreement is void in so far as it purports to preclude the making of a disclosure falling within subsection (2).(2) A disclosure falls within this subsection if it is a disclosure of information that is made by a victim or a person who reasonably believes they are a victim—(a) to any person who has law enforcement functions, for the purpose of those functions being exercised in relation to relevant conduct;(b) to a qualified lawyer, for the purpose of seeking legal advice about relevant conduct;(c) to any individual who is entitled to practise a regulated profession, for the purpose of obtaining professional support in relation to relevant conduct;(d) to any individual who provides a service to support victims, for the purpose of obtaining support from that service in relation to relevant conduct;(e) to a regulator of a regulated profession for the purpose of co-operating with the regulator in relation to relevant conduct;(f) to a person who is authorised to receive information on behalf of a person mentioned in paragraph (a), (b), (c), (d) or (e) for the purpose mentioned in that paragraph;(g) to a child, parent or partner of the person making the disclosure, for the purpose of obtaining support in relation to relevant conduct.(3) But a provision in an agreement is not void by virtue of subsection (1) so far as it purports to preclude a disclosure made for the primary purpose of releasing the information into the public domain.(4) The Secretary of State may by regulations amend this section—(a) to add, remove or modify a description of disclosure in relation to which subsection (1) applies (“a permitted disclosure”);(b) to extend the application of subsection (1) to a provision in an agreement which purports to impose an obligation or liability in connection with a permitted disclosure.(5) But regulations under subsection (4)(a) must not make any provision which would apply subsection (1) in relation to a disclosure—(a) made by a person other than a victim or a person who reasonably believes they are a victim, or(b) that does not relate to relevant conduct.(6) In this section—“entitled to practise” , in relation to a regulated profession, is to be read in accordance with section 19(2) of the Professional Qualifications Act 2022; “law enforcement functions” means functions for the purposes of the investigation or prosecution of criminal offences or the execution of criminal penalties;“partner” : a person is a “partner” of another person if they are married to each other, in a civil partnership with each other or in an intimate personal relationship with each other which is of significant duration;“qualified lawyer” means a person who is an authorised person in relation to a reserved legal activity for the purposes of the Legal Services Act 2007; “regulated profession” and“regulator” have the same meanings as in the Professional Qualifications Act 2022 (see section 19 of that Act);“relevant conduct” means conduct by virtue of which the person making the disclosure is or reasonably believes they are a victim (see section 1(1) and (2)).”Member’s explanatory statement
This new clause, to be inserted after Clause 15, would make a provision of an agreement void if it purports to preclude a victim from making certain types of disclosure, unless the disclosure was made in order to release the information into the public domain.
Lord Bellamy (Con)
My Lords, Amendment 76 has been tabled to clarify that victims of crime can get the support they need without fear of legal action under confidentiality clauses, also known as non-disclosure agreements or NDAs. NDAs can and do serve a valid purpose to protect commercially sensitive information and deliver a clean break where parties seek closure on an issue, but they have been misused to make victims fear repercussions if they seek access to justice or support services. Reporting a crime to the police is already protected under common law, but the legal position is not as clear as it could be. The Government wish to avoid a situation where NDAs might be used to prevent victims telling support services and close family about criminal conduct that has happened to them.
I am therefore pleased to bring forward this amendment, which makes it clear in primary legislation that confidentiality clauses cannot be legally enforced to the extent that they prevent victims reporting a crime or accessing confidential advice and much-needed support. It sets out who a victim can make disclosures to and for what purposes, which includes the police, regulatory bodies, lawyers, support services, and a victim’s partner, parent, or child. However, to protect legitimate uses of NDAs, subsection (3) of the proposed new clause makes it clear that disclosure to those permitted third parties must not be for the primary purpose of releasing information into the public domain, because we want to avoid a situation where somebody, for example, uses a lawyer to front up the disclosure of confidential information when that is not justified.
Baroness Thornton (Lab)
My Lords, it is really a pleasure to respond to this group from these Benches, because there is real progress. It is important to record thanks to everybody who has made this progress happen. I very much welcome the clarification that the Minister has made in Amendment 76. The noble Baroness, Lady Brinton, is quite right, though, that this is a first step. Indeed, today a useful brief was sent to me and possibly other noble Lords from the Bar Council, which makes the point that the issue of non-disclosure agreements is ripe for legislative change. The Bar Council welcomes the Government’s intention to implement legislative reform and recognises that some NDAs are abusive in nature. NDAs cannot cover criminal acts, and under existing common-law protections many are already unenforceable, but those who are asked to sign them are not always aware of the relevant legal principles. When you have the Bar Council and everybody else on your side, you know that this is an important first step.
On the Government’s amendments, I welcome Amendment 85, as the noble Baroness, Lady Newlove, welcomed it. I thank the Minister and his team for listening and for bringing forward this amendment, which was aired in Committee very powerfully indeed by the noble Baronesses, Lady Watkins and Lady Newlove. Then, of course, there is a suite of amendments in the name of the noble Baroness, Lady Bertin. I was very pleased to be able to support these in Committee. These Benches are absolutely in favour of them; they have the support of the whole House. I know from the very long time ago when I was a Minister how much work goes into getting to this place. I congratulate the noble Baroness and say how much we are in favour of these amendments.
The noble Baroness, Lady Morgan, is absolutely right to be disappointed about the Government not accepting Amendments 87A and 88A. It is probably clear that we have not come to the end of this. The noble Baroness is quite right in nodding to say, “We have definitely not come to the end of this discussion about what needs to happen to support victims with requests for dealing with digital and other information, and providing the right kind of safeguards for them”.
The noble Baroness, Lady Meacher, is right, and she has our Benches’ support for her amendment. If there were to be a Division on this then it would be next week. Between now and then we need to look at what the Minister has said to see if we can push him a bit further than he has gone, and then maybe we could avoid that, but the noble Baroness needs to know that she has these Benches’ support, and probably that of the Liberal Democrats, if we need to take the issue further. All in all, we have made great progress.
Lord Bellamy (Con)
I shall answer a couple of questions and make one clarification. I think it was the noble Baroness, Lady Lister, who said, “Come on now, when are the code and the protocol going to be available?” I am afraid that, at this point, I cannot advance matters further other than to say, according to my instructions, that the code will be available for parliamentary scrutiny this spring—I know that is not as precise as anyone would like—and that the protocol will be launched later this year. These matters are under the control of the Home Office, and we had a discussion earlier about the relationship between 102 Petty France and Marsham Street. That is as far as I can go at the moment, and I apologise to the noble Baroness that I cannot be more precise.
I am prepared, as always, to have a further exchange of views on Amendment 96. I am not sure we can take it much further but we are always ready to listen, since throughout the Bill we are dealing with the problem of striking a balance between effective immigration control and victim support, and unfortunately there are always trade-offs to be made.
To respond to my noble friend Lady Morgan about requests for relevant information, new Section 44A(6) requires that the request is proportionate. The authorised person must be satisfied that there is no other means of obtaining the information or, if there are such means, that they are not practicable. The decision to release the information ultimately lies with the third party, and that third party has their own obligation under the Data Protection Act and their own duties of confidentiality owed to the person concerned. Again, I respectfully suggest that, bearing in mind my noble friend Lady Bertin’s amendments, the balance between fair-trial rights and victim protection is effectively drawn in the result that we have arrived at. It is not perfect, I know, but it seems to be a practical solution to a very difficult problem.
Baroness Meacher (CB)
I hope the Minister will forgive me for interrupting him, but I want to thank him for suggesting that we might meet to discuss Amendment 96 before we come back next week. Obviously, I would be delighted to have a discussion about that.
Baroness Meacher (CB)
I just wanted to put on record that we have agreed that we will meet, and I welcome that.
Lord Ponsonby of Shulbrede (Lab)
My Lords, although this has been a relatively short debate, it has been quite comprehensive. All noble Lords have spoken with brevity about these sensitive issues.
I will highlight two points. First, I pick up the point of the noble Lord, Lord Meston, about how any order made by the Crown Court should automatically be reviewed by the family court. That was a useful addition to the amendment, although I suspect my noble friend may be pressing the amendments as they are. Nevertheless, I thought it was an insightful point.
My other point about Amendment 91, on psychologists and people with professional expertise, is that the problems extend beyond experts. In family courts, I see McKenzie friends who clearly have their own agendas, and it is an issue with which one has to deal—but that is a tangent to the main points in these amendments. If my noble friend chooses to press her amendment, we will of course support her.
Lord Bellamy (Con)
My Lords, we have before us various amendments that deal essentially with family justice. I will deal first with Amendment 91, which proposes that only experts regulated by the Health and Care Professions Council undertake certain psychological assessments. The Government entirely appreciate the aim of this amendment—something needs to be done. This problem probably extends to healthcare generally. In the Ministry of Justice, we have been in discussion with the Department of Health about the term “psychologist”, what it means, whether one should regulate it and so forth. The Government’s position is that only psychologists who are regulated should be undertaking psychological assessments in the family court.
The short point is that this is going to be better dealt with under the Family Procedure Rules than in primary legislation. In particular, in this Bill, for reasons of scope, you can deal with it only in relation to victims of criminal conduct. We need an across-the-board solution, worked out through the Family Procedure Rule Committee, to implement changes that would ensure that, where a psychologist undertakes any psychological assessment in private law children proceedings, they are suitably regulated and that that broader work encapsulates any other problems that arise in relation to unregulated experts. The position of the Lord Chancellor is that this matter should be undertaken now by the Family Procedure Rule Committee—which operates in very close collaboration with practitioners, judges and all those involved in the family law scene—to implement changes, rather than it being done through this primary legislation.
Lord Meston (CB)
I fully understand the point that the Minister is making. Can he indicate whether this problem has now been referred to the relevant Family Procedure Rule Committee? If it has, I would hope that it would get urgent and speedy consideration. If it has not, when will it be?
Lord Bellamy (Con)
There have been preliminary discussions with the committee but it has not formally started work. I cannot give the noble Lord a precise date, but I can say that there is a reserve power under Section 78A of the Courts Act 2003 which entitles the Lord Chancellor to require the Family Procedure Rule Committee to consider the point. In the Government’s submission, that is the way that this should be dealt with, rather than in this necessarily narrow Bill.
Lord Bellamy (Con)
It would be extremely regrettable if the Family Procedure Rule Committee were to refuse to embark on this exercise, particularly in the light of the comments made in the House today and in the other place. It is clearly something that should be done. That is as far as I can reasonably go at the Dispatch Box. That is essentially our position on Amendment 91: let us take it down the route of the Family Procedure Rule Committee.
Amendment 83 brings us to Jade’s law and Clause 16. This is where one parent murders the other. It is a very specific situation, because you have got only one parent left. In all other situations that we are discussing, you have two parents. Amendment 83 concerns where the parent who has committed the murder is a victim of domestic abuse. That is the purpose of this. The Government’s position—and I think the noble Lord, Lord Meston, came quite close to saying the same thing—is that this is effectively already dealt with in the existing Clause 16. It does not suspend parental responsibility for an offender convicted of voluntary manslaughter where it would not be in the interests of justice to do so.
We are talking here about a Sally Challen-type case, if I may use that expression. The “interest of justice” test is one with which Crown Court judges are familiar in the context of sentencing guidelines. Engaging the test is a matter for judicial discretion, but certainly in those cases where the victim has lashed out after years of abuse, they are very likely to fall within this exception, and that is why we have provided for voluntary manslaughter.
It does not seem to the Government that we need any more formal provision in the existing Clause 16 to take account of the situation where the murderer has suffered domestic abuse, because that is already implicit in the clause. If it were the case that, for some reason, Clause 16 was nonetheless to bite, it does, as has been pointed out, provide a pathway for review by the family court. The family court is not going to take away parental responsibility from a mother who has lashed out, if I may use that expression. The Government’s view is we do not need Amendment 83: it is already fairly well covered. I take these points quite shortly because I think it is important to keep this debate fairly short.
Lord Bellamy
Member's explanatory statement
This amendment clarifies the extent of the restrictions placed on an offender with respect to a child by a prohibited steps order made under new section 10A of the Children Act 1989.
Lord Bellamy
“Victim representations to mental health tribunals(1) Chapter 2 of Part 3 of the Domestic Violence, Crime and Victims Act 2004 (victims’ rights to make representations and receive information) is amended as follows.(2) In section 37(8)(c)(i), for “that area” substitute “that local probation board”.(3) After section 37 insert—“37ZA Victim impact statements where restriction order made(1) This section applies if, in a case where section 37 applies, an application or reference mentioned in subsection (5) of that section is made to the First-tier Tribunal or the Mental Health Review Tribunal for Wales.(2) The relevant probation body—(a) must take all reasonable steps to ascertain whether a person who appears to the body to be the victim of the offence or to act for the victim of the offence wishes to provide a victim impact statement to the body, and(b) if the person provides such a statement, must forward it to the tribunal.(3) Where a victim impact statement has been forwarded to the tribunal under subsection (2), the tribunal must—(a) allow the person who made the statement to request permission to read the statement to the tribunal at a relevant hearing, and(b) grant such permission unless the tribunal considers that there are good reasons not to.(4) The tribunal may have regard to the statement when determining a matter specified in section 36(5)(a) or (b) (but must not have regard to it for any other purpose).(5) In this section—“relevant hearing” means any hearing held by the tribunal before making a decision which disposes of proceedings on the application or reference mentioned in subsection (1);“the relevant probation body” has the meaning given in section 37(8);“victim impact statement” means a statement about the way in which, and degree to which, the offence has affected and (as the case may be) continues to affect the victim or any other person.””Member's explanatory statement
This amendment makes provision for victims of certain serious offences, where the offender is subject to a hospital order with a restriction order, to provide a "victim impact statement" to a tribunal which is considering certain matters in relation to the discharge of the offender.
Lord Bellamy
“(za) in subsection (1)(c), for “section 32” substitute “section 2 of the Victims and Prisoners Act 2024, including the extent to which the duty in section 5(A1) of that Act (duty to provide services in accordance with the code) is being complied with”;”Member's explanatory statement
This amendment requires the Victims’ Commissioner to keep under review compliance with the victims’ code (see my amendment of Clause 5, page 4, line 27).
Parents: Separation
Lord Bellamy Excerpts(7 months ago)
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The Parliamentary Under-Secretary of State, Ministry of Justice (Lord Bellamy) (Con)
My Lords, few subjects can be more important than the one we are discussing this evening, and I rather doubt my ability to do justice to everything that has been said in the 12 minutes allotted to me. I thank my noble friend Lord Farmer for his opening remarks and for securing this debate, and all noble Lords who have spoken. I think we are all agreed that family separation can be extremely stressful and very damaging to the children, particularly if there is a prolonged period of lack of contact, as my noble friend Lady Meyer pointed out. In those circumstances, the Government are actively supporting, and improving support, for parents considering separation, and are adopting a number of measures to promote early resolutions.
The best approach is probably if I update the House on what we are actually doing, following our response published on 26 January to our earlier consultation on early resolution of family disputes. What the Ministry of Justice is doing, of course, is in addition to other work across government, including the rollout of family hubs. Again, I pay tribute to my noble friend Lord Farmer in this respect. Family hubs are led by the Department for Education. There is also funding from the Department for Work and Pensions for local authorities to deliver the Reducing Parental Conflict programme.
The House will have heard in the recent Budget that the Ministry of Justice has been awarded a further investment of £55 million, specifically for the family courts. That comes, basically, in three buckets—if I may say so. The first is one that a number of noble Lords, including the noble Baroness, Lady Tyler, have mentioned. I pay tribute to her, not only for her distinguished past as a former chair of Cafcass and in other respects, but for the post-legislative scrutiny carried out in relation to the 2014 Act, from which we have all greatly profited. However, the three buckets are, first, greatly improved, facilitated, targeted online guidance and information, so parents know where to go and can find out, at a very early stage, all the sources of support out there. There are quite a lot of sources of support, but no one can find them or knows about them—they are not joined up. The first part of the funding will be for a new online resource that will serve as a trusted and accessible source of authoritative information, relevant to the needs of the family and the needs of the parents, providing options—which will include mediation, but not only that because there are other forms of dispute resolution away from court—with the support of guidance and expert organisations in the third sector.
To deal specifically with one of the points raised by my noble friend Lord Farmer, I say that I am quite sure that links between this programme and the family hubs will be an important aspect of it—family hubs among other means of support. Indeed, if the present process for online divorce does not refer people across to the appropriate support facilities, then it should. That is another very important area, and I am very grateful to noble Lords for drawing our attention to it. Specifically, just as we have been discussing in another context a child-friendly version of the victims’ code, I would have thought that a child-friendly part of this newly available information was a specific emphasis on how we keep children informed, not only about what is happening in their case, but the general availability of support for them. As the right reverend Prelate the Bishop of Derby suggested, I am sure that would also be important.
I am hoping that this will be a major step forward in how we intervene as early as we can in family disputes, combining it, as I say, with the DWP’s Reducing Parental Conflict programme, the family hubs and other programmes that a number of local authorities are already running to support separating couples—or, indeed, couples who have not yet separated but who are going through a difficult patch, which is to go back to an even earlier stage.
We are championing the family hubs that the noble Lord, Lord Farmer, has been such a keen advocate of. There is around £300 million to develop family hubs in 75 upper-tier local authorities. There are now around 400 family hubs altogether, and there is further support for opening further family hubs in another 13 local authorities. That is an ongoing programme, and I hope that it will come to full fruition, in collaboration with the kinds of things that I am trying to explain from the point of view of the Ministry of Justice.
In addition, the second bucket of our new funding is indeed to tackle this point about early legal advice, which is so important and was raised by the post-legislative scrutiny committee and a number of others. What we are doing is piloting; government being what it is, you have to pilot these things these days—you cannot go straight towards just doing it. It is important to learn from the pilot how to do things. I shall come back to that point in the pathfinder context.
The purpose at the moment is to expand, with the additional money that we now have, a pilot for early family legal advice, probably initially in six areas. As noble Lords probably remember, we have 43 areas across the country that have a designated family judge in charge. We can now go to six areas initially; the details are being worked out, but I am hoping that this will be up and running by the autumn. By September we should have something in place. It will be very important, among other things, to promote it and make sure that people know that it is there and that they can access it easily. We had a pilot in the ministry a couple of years ago with support in family housing, which did not work because nobody knew that it was there so nobody used it. It was in Middlesbrough, and possibly Manchester, but it was not successful, so I am very conscious that we have to sell this as well as establish it, and those details are being worked through at the moment.
That is early legal advice. Then there is the diversion when people have had early legal advice, which may lead to more referrals to mediation, or other forms of court dispute resolution. We are continuing to support the voucher scheme for mediation; that demand has been strong, with 27,000 families so far, and has cost £23 million or so. By March 2025, we think that 44,000 families will have used the scheme, so that will continue to support mediation—and, at the same time, we are working closely with the Family Procedure Rule Committee to make the mediation information and assessment meeting, which has been mentioned, more effective. The new rules come into force on 29 April, next Monday. I hope that that will prevent MIAM from being, as it had become in some areas, a tick-box exercise.
Ah, the lights have gone out; I must have said something very controversial. I still have enough light to carry on.
That provision is proceeding, as are pathfinder courts. We of course support Cafcass, but those courts focus on the voice of the child. We have an early child impact report, we have support from domestic abuse agencies, we have a case progression officer and we have other things. It has been notably successful in reducing strife and the Government’s intention now is no longer a pilot, it is a project, and we are going to roll it out across the country. We have done Dorset and north Wales, we are doing Birmingham and Cardiff, but I am pressing very hard for a plan so that we change it across the whole country over the next year or so. My Whip is telling me to sit down, although I am trying enthusiastically to carry on. I will write to those noble Lords whose questions I have not been able to answer in the very limited time I have.
The President of the Family Division describes the pathfinder as the most important change in private family law that we have had for a generation, and that is going to be a very good thing and the right note to end on.
Lord Roborough (Con)
My Lords, we will now adjourn again to wait for a message on the Rwanda Bill. We will resume at a time to be shown on the Annunciator.
Victims and Prisoners Bill
Lord Bellamy ExcerptsTuesday 16th April 2024
(7 months, 1 week ago)
Lords ChamberRead Full debate Victims and Prisoners Act 2024 View all Victims and Prisoners Act 2024 Debates Read Hansard Text Watch Debate Read Debate Ministerial Extracts Amendment Paper: HL Bill 57-I(b) Amendments for Report (Supplementary to the Marshalled List) - (16 Apr 2024)
Lord Ponsonby of Shulbrede (Lab)
My Lords, I too thank the Minister for his extensive consultation with me and colleagues on my side of the House, and with many other noble Lords who have taken an active interest in the Bill.
The noble Lord, Lord Russell, very adequately set out his amendment. It is not a matter for me, but my understanding is that he is unlikely to push it to a vote. If he were to do so, we would not support it, as I have explained to the noble Lord. Having said that, I acknowledge that there has been wide consultation and the Government are moving their own amendments in this group. I look forward to hearing the Minister's explanation of his amendments.
I will briefly touch on the personal testimony of the noble and learned Baroness, Lady Butler-Sloss, about her life as a family judge. I will also touch on what the noble Lord, Lord Russell, said about the meetings he went to with the victims, which I also attended. But I want to say something a little bit different. Of course, it was extremely upsetting, but I have to say that I was absolutely amazed by the resilience of the victims we spoke to and their keenness to help other child victims who still come forward today. I found that extremely admirable.
This is the first group, and we will be moving on to more contentious issues in subsequent groups. I look forward to hearing the Minister’s response.
The Parliamentary Under-Secretary of State, Ministry of Justice (Lord Bellamy) (Con)
My Lords, I thank the noble Lord, Lord Russell of Liverpool, for moving his amendment, and those who have spoken in support of it. In particular, I thank the noble and learned Baroness, Lady Butler-Sloss, for her sobering words. I also salute the courage of the children who have participated in discussions about the progress of the Bill. I say to them: you have achieved quite a lot by participating in this discussion.
As I hope to explain to the House, the Government are absolutely clear that victims who are children have particular experiences of criminality that are different from the adult experience. They have different needs from adult victims and they therefore require a different approach. That, as I hope to explain, is fully recognised.
That said, the amendment in itself is not one the Government can support, for the simple reason that children are already included as victims under Part 1 of the Bill. The Government’s view is that that is manifestly clear, as a matter of legal drafting, across the statute book. As the noble Lord, Lord Meston, has just pointed out, “person” includes “child” and that is beyond argument. That is the customary usage across the whole statute book, and the Government are not persuaded that we need to make an exception in this case.
On the technical matter of legal drafting, as I have just emphasised, children are in a very special position when it comes to the victims’ code. That is why the current code sets out specific provisions for child victims and others who are considered vulnerable or intimidated. Those are known at the moment as enhanced rights. That is also why we have committed—and I therefore recommit the Government—to ensuring that the new victims’ code, which will go out to consultation as soon as we have Royal Assent, fully addresses the needs of child victims in particular. We shall seek views on the proposals regarding children in that public consultation.
I come to the government amendments in this group. In particular, we have listened carefully to the arguments for greater assurances as to the Government’s intentions, which is why we are proposing government Amendment 21, mentioned by the noble Baroness, Lady Brinton, which will ensure that the Secretary of State must consider whether different provision is required in the code as a result of the particular needs of children, now defined as those under the age of 18, and those with protected characteristics, when the new code is prepared and during any future revisions to the code. Although this group is about children, I entirely take the point made by the noble Baroness, Lady Brinton, about other vulnerable persons, who are also covered by Amendment 21. That is a perfectly fair point, and one that the Government have well in mind.
The Government are delighted to have worked constructively with the Children’s Commissioner to consider how the victims’ code can better reflect the distinct needs and experiences of child victims. I am pleased that the noble Baroness expressed personally to me the other day her strong support for this amendment and her personal appreciation of the Government’s work in this area.
To move on through the Bill, in addition, Clause 11 requires the Secretary of State to issue guidance for agencies delivering code awareness and compliance duties, which will specifically include guidance on how sensitively and effectively to gather information on children. Clause 13 states that commissioners under the duty to collaborate must consider the specific needs of children when preparing their joint needs assessments and local strategy. Clause 15 requires the same when issuing guidance on support roles. I hope noble Lords might accept that we now have, in the Bill itself and prospectively in the revised code, very full provision for children.
The word “children” is a slightly colloquial term—it can mean a number of things to different people—so, for absolute clarity, we have tabled amendments to change the references to “children” in Clauses 11, 13 and 15 to
“individuals who are under the age of 18”
to make it clear that there is a very clear legal cut-off for the special requirements of children, which is those under the age of 18. Those are Amendments 54, 63 and 74.
Finally, I add also that we have heard the concerns about young victims not always being able to engage with the code or understand the sometimes overcomplicated documents that the Government produce. On behalf of the Government, I commit to developing an accessible version of the new code—a “child-friendly” version, if I may refer to it colloquially—which we also intend to consult on post Royal Assent, as we recognise that we can do more to improve the accessibility of these provisions for children themselves.
All that said, I think I have already explained that the Government do not, for what I must confess is a somewhat technical reason, but a real reason none the less, support the proposal to change the drafting as suggested in Amendment 1. But I hope that I have sufficiently explained the supreme importance of children, and the Government’s recognition of that importance.
Baroness Newlove (Con)
My Lords, apologies; I have a migraine and I think the medication has messed with my head. I meant to talk also to Amendments 3 and 6.
Although, again, I appreciate all the informal meetings and the meetings with my office, I still wish to make a point about the impact of anti-social behaviour. It is generally accepted that victims of persistent anti-social behaviour can suffer enormous anguish and harm. Indeed, that is the rhetoric that we hear, but people really do not grasp and do not see what is underneath. I say this because I have met many victims who are unable, sadly, to live in their own home: parents who tell me their teenage children have had to leave the family home sooner than otherwise to escape distress, and grandparents who are no longer able to look after grandchildren in their own home as they fear for their well-being. This is first hand from the very people who suffer on a daily basis. The intolerable strain this behaviour can have on personal relationships, the adverse effect it can have on children’s behaviour in school, the terrible difficulties for adults coping with this stress while holding down employment—all this is due to the trauma caused by persistent anti-social behaviour.
One of the recurring messages I hear from these victims is that they feel they are going through this nightmare entirely alone. All too often, police officers, housing officers and local government officials who are dealing with their complaints fail to recognise the level of harm being caused. In many cases, these officials even fail to acknowledge that the victims are being wronged. Some police officers are all too quick to tell the victim that it must be six of one and half a dozen of the other, no doubt in an attempt to avoid investigating the complaints. Let me tell noble Lords that that statement can have a devastating effect on the victim.
Yet, as was acknowledged by the Minister and officials when we met last week, the vast majority of these victims are victims of crime. As such, under the victims’ code, they are entitled to receive support from victims’ services. Yet I know that all too often, victims are not advised of this, nor is any referral made. Why not? Because the police do not want to tackle the issue through criminal action against the perpetrators. A victim’s entitlement to support does not depend on a decision by a police officer on what action, if any, they plan to take against the perpetrators. Once the action of the perpetrator reaches the criminal threshold, the victims’ code entitlements are automatically activated.
The amendment tabled by the noble Lord, Lord Russell, seeks to plug this gap. I recognise that there are many other ways in which we can achieve this objective. It is hugely reassuring that this amendment has prompted a discussion between Ministers and officials in the MoJ and the Home Office. I look forward to hearing my noble friend the Minister’s response to these discussions and hope that the measures which he sets out today provide reassurance, not only to this House but to the many victims of anti-social behaviour across this country, who have suffered alone and are sitting in silence as we speak about this behaviour today.
Lord Bellamy (Con)
My Lords, I thank all noble Lords who have contributed to this part of the debate, where we are discussing extending the definition of “victim” and providing mechanisms for dealing with four different areas: anti-social behaviour; child criminal exploitation; victims abroad; and carers of victims of serious sexual and violent crime. I thank noble Lords for their thanks and reciprocate to everyone in the House, on all sides, who has collaborated with the Government generally on trying to move this Bill forward.
It is not, as the noble Lord, Lord Ponsonby, said, that the Government lack sympathy for the various points that have been made—quite the contrary. For various reasons, some technical, some substantive, the Government do not feel that the statutory amendments in this group are the right way to go in changing the statute, as distinct from other means of addressing the issue.
I will deal first with anti-social behaviour, and pick up some of the most moving remarks that the noble Baroness, Lady Newlove, has just made, The Government have listened very carefully to these concerns. The impact of persistent anti-social behaviour, and the need to deal with it, is very firmly on the Government’s radar. However, the first point to make is that which the noble Baroness has just made: almost all cases of persistent anti-social behaviour of the kind that are causing real damage are already criminal conduct. In a most moving letter to me of 4 April, the noble Baroness, Lady Newlove, made exactly the same point, saying that this is already a crime, and so people are already entitled to the protection and services available under the code. The question is how we do this in practice. How do we join the dots, if I may put it like that, and overcome the widespread fallacy that because the police have not done anything one is no longer a victim? The police not having done anything does not mean that victim services should not be available. That is the practical problem that we are facing.
At the moment, the Government are not persuaded that this amendment would solve the practical problem. It has one significant disadvantage—possibly an inadvertent disadvantage—in that it would extend the code to non-criminal behaviour that falls within the context of anti-social behaviour. With cases of loud music and so forth, which really is a nuisance, such lesser kinds of anti-social behaviour would benefit from the victims’ code. In the Government’s view, that is not a good or desirable result, because it would mean extending victim services, which are already very stretched, away from the really serious problems and difficulties that victims are facing to lower levels of anti-social behaviour. That is perhaps an unintended consequence but not one that the Government particularly want to encourage via this amendment. Therefore, the amendment is too widely drawn.
To step back, rather than going down the route of this amendment the Government propose, in line with other improvements to the code in other areas, to update the anti-social guidance where necessary to ensure that, when a crime is identified, victims are informed of their entitlements under the victims’ code. The Government’s intention is to explore and consult on how best to make clear in the new victims’ code that its entitlements apply to persistent anti-social behaviour where the criminal threshold is met and that police are required to refer people to support services regardless of whether there is sufficient evidence to charge or whether they are going to pursue any particular action. If we get the code right on this point, it will help victims and service providers to recognise that failing to refer these victims to support services could be a breach of the new duty—which we will discuss in the next group—to act in accordance with the code.
On top of that, the code’s compliance mechanisms, at Clauses 6 to 11, will shine a light where non-compliance issues are found to be systemic. That will enable robust additional tools and steps to be brought to bear when agencies fall short. As we will explain in the next session, the Victims’ Commissioner will play a very central role in overseeing this new code, and be consulted on all its aspects and on ensuring that we join the dots and that this problem finally is tackled.
In addition, the Criminal Justice Bill, currently making its way through the other place, particularly in Clause 81, addresses some of the existing concerns and processes to tackle, among other things, persistent anti-social behaviour, including promoting awareness of the review process and setting out more consistently what local policing bodies have to do, so that victims can expect a more consistent service.
Rather than going down one particular way of dealing with this problem, which is the subject in the amendment, and which may have unintended and too wide consequences, the Government’s position is to tackle this through the code. We will continue, of course, to engage with the Victims’ Commissioner and seek her views on our work in this area. She is particularly well placed to help the code, the Government, the local police forces and so forth develop proper mechanisms for joining up these dots.
There are parts of the country where this is working quite well, so let us not throw the baby out with the bathwater. Because of the way in which the assessments will be made, and because of the oversight that is envisaged in the structure of the Bill, there will be ways of bringing the less well-performing police forces and local services up to the level of those that do it properly. That will ensure that victims know how to access these services.
Let us not forget that there is a wider anti-social behaviour action plan, which goes hand in hand with this. There has been £160 million of new funding to tackle anti-social behaviour. With these various routes and approaches, and determination to tackle the area, that is the Government’s position. We respectfully suggest that it is a more positive, sensible, broadly based and effective way of doing it than this amendment, well-intentioned though it is. That is the Government’s position on anti-social behaviour.
Baroness Brinton (LD)
I was trying to make the point that the noble and learned Lord has started to make: there are lots of different agencies involved, and they do not collect the same, consistent data. Something on the face of the Bill would ensure that the data was consistent and would help everybody.
Lord Bellamy (Con)
Again, that is going a little bit further than either the amendment or the Bill as it stands, because the collecting of data in this area is a very complicated task, and we know that collecting data in general is quite tricky. What I am saying is that I am not entirely convinced at the moment by the argument put forward by the noble Baroness. In all respects, the Government consider that the amendment would not really take things further. Extending the definition of a victim is unnecessary because the issue is already covered.
I should say a word about the county lines problem. A full county lines programme has been in operation now for some years. The figures I have are that we have had 16,000 arrests and 9,000 safeguarding referrals. The Government are working very hard on dealing with the county lines problem, and there is special support through the county lines programme for children involved in that. It is clearly a difficult area, but it is not that nobody is tackling it. Would the amendment take the issue forward particularly in the county lines situation? I respectfully suggest that that is doubtful. So that is the Government’s position on child criminal exploitation.
On homicides of British nationals abroad, again the Government are entirely sympathetic to the various points that have been made. On a point of detail, since we are talking about what the victims’ code should cover, if the perpetrator of the murder is another British national, then that can be an offence triable in this country and it would trigger the application of the victims’ code. But most of these cases will be where the perpetrator is not a British national, and it seems reasonably clear that, where the offence or murder or homicide is in Ecuador or Peru or South Africa or wherever it is, large parts of the victims’ code by their nature will not be applicable. The various rights to information, the various rights about prosecution decisions and the right to make a personal statement would all, by the nature of the situation, not apply. From a quick look at the victims’ code, rights 1 to 3 and 6 to 11, for example, just would not apply. I think that leaves, essentially, right 4, which is the right to victims services. At the moment, the support available is provided by the Homicide Service, which in the United Kingdom is provided by Victim Support, a most excellent organisation, to which the Foreign Office can refer victims.
So there is already, by proxy, support for victims of homicide abroad, but I think that the complaint is that it is not sufficient. Hearing that complaint, the Government, as we develop the new victims’ code, will review the information provided for bereaved families of victims of homicide abroad so we can be clear what the entitlements of families are. The NPCC, the FCDO and the MoJ have committed to working together to explore separate guidance, to be referenced within the code, specifying the roles and responsibilities of each department and their services. That would act as a public commitment on how they will work together to support bereaved families and, I think, provide the consistent protocol—to use the words that were being used some moments ago—to assist families in this very difficult position.
Finally, in relation to the amendment regarding carers—
Baroness Finlay of Llandaff (CB)
I am grateful to the Minister for his response. In the plan he has just outlined of the three departments working together, does he envisage establishing a checklist that FCDO staff in every embassy and consulate will have that will mean they will prospectively know about interpreters and appropriate lawyers who could be pulled in, in the event of there being a homicide in that jurisdiction, so that some of the problems that have arisen to date would be avoided by each consulate and embassy being adequately prepared? Will the education behind that become mandatory guidance, so we would know that, in practice, a clear system had been set up? I would be grateful if he clarified that, because simply the three departments working together here might not influence what happens on the ground elsewhere, learning from the experience of other places.
Lord Bellamy (Con)
My Lords, I do not think I can, at the Dispatch Box this evening, commit the Government to proposing such a checklist in that detail, because the details will have to be worked out. However, the Government hear what the noble Baroness says and it is an obvious matter to consider. That is as far as I can go this evening.
Finally, I hope the noble Baroness, Lady Brinton, will forgive me if I take the question of carers a little bit shortly. The central problem with the amendment is the extension of the code and the rather blurred boundaries that might lead to quite a lot of extra resource demands, extra entitlements and so forth, so the Government are not persuaded that we should go as far as that. However, this point is correctly raised as a social and quasi-legal issue, and I can commit that the Government are already working with the Children’s Commissioner specifically on children’s needs and looking afresh at the needs of vulnerable adults ahead of public consultation on the code. I can commit to considering the experience and needs of parents and carers as they support particular victims through the criminal justice system. As to whether that requires further provision, I can commit to carefully considering how the accompanying statutory guidance might best set out how criminal justice bodies can effectively engage with the very important group that the noble Baroness identifies, who are so key to the support of their loved one, the direct victim, but I think that is as far as I can go on this group.
Lord Russell of Liverpool (CB)
My Lords, I thank the Minister very much for summing up so comprehensively —in fact, going over the new Report stage time limit, for which I am grateful. The issues we are talking about, in particular murder abroad, anti-social behaviour and the definition of child criminal exploitation, are long standing and not new; they come back again and again. However, as the noble Baroness, Lady Newlove, said, in a situation such as in 2015, after the incident in Tunisia, the Government decided that they were going to do something about it, got their act together in short order and demonstrated what is possible if they really put their mind to something. In a sense, that is what we are challenging the Government to do, in separate ways, on each of these issues.
On anti-social behaviour, the Minister talked about joining the dots and getting the code right. He admitted that it is not as joined up as it should be. The problem that I think many of us have with the way the Government are responding to some of these issues is that they keep returning to saying what different agencies and individuals should be doing, but they seem very afraid to say what they must be doing. The common theme in all these areas is that we are challenging the Government. Indeed, what are a Government elected to do—albeit not by noble Lords, because we are not allowed to vote—if not to make things happen? That is really what we are looking for. In the case of anti-social behaviour, if the noble Lord, Lord Ponsonby, decides to test the opinion of the House I would fully endorse that.
On child criminal exploitation, the updated guidance is fine. The key, as ever, is consistency, and at the moment there is a lack of consistency. The Minister said, and I am quoting, that it should be “in the heads” of front-line practitioners. The fact is that it is not in their heads in the same way for all the key front-line practitioners. That is the complexity. The challenge for the Government is to try to get a degree of consistency in the way child criminal exploitation is understood and dealt with, which is clearly not the case at the moment, so there is more to be done.
I thank my noble friend Lady Finlay very much for what she said about homicides abroad. I take the point about what happens if the perpetrator is not a UK national but, again, if the Government really wanted to put their mind to this, I am sure they could find a way. We are talking about such a small group—60 to 80 individuals per annum. It is not beyond the wit of man, let alone a Government, to focus and try to find a way of ameliorating a situation that has been festering for years and really does need to be dealt with. We also have more to do on carers.
I reiterate that the challenge for the Government is that we are looking for guidance from them as to what must be happening, not simply what should be happening. That has been the case for the last 15 years, and what should be happening is not happening in so many areas. With that, I beg leave to withdraw my amendment.
Lord Bellamy
Member’s explanatory statement
This amendment clarifies that the victims’ code issued under Clause 2 is directed at persons exercising functions of a public nature relating to victims or any aspect of the criminal justice system.
Lord Bellamy (Con)
My Lords, in speaking to the relevant government amendments on the victims’ code and compliance, I will summarise the ways in which the Government have strengthened the code and the framework in which the various duties under the code arise.
There are essentially seven points to make quickly. There is a new statutory duty on agencies to act in accordance with the code and a statutory duty to have a complaints procedure. The amendments set out what is now required instead of what “should” happen. There is a duty on Ministers to review the code, and to publish an annual report on compliance and lay that before Parliament. There is a power to issue non-compliance notices, a most important enforcement mechanism. There is significant strengthening of the role of the Victims’ Commissioner, who is empowered to keep under review compliance with the code; has a right to be consulted on all the regulations and guidance, and the code itself; and will also be part of the ministerial task force to enforce the code and the statutory guidance under Clause 11. Those are the various amendments which I will move, but I summarise them as a package so that people can see the whole package as an important strengthening of the code. I hope we have arrived at a very considered position in relation to the status of this code.
I will go through the amendments in turn. Government Amendment 31 would place a statutory duty on relevant agencies to provide services in accordance with the victims’ code unless there is a good reason not to. This duty does not give agencies licence in any way to ignore the code. It allows for a bit of operational discretion to cope with circumstances where the agency is, for whatever reason, short of resources or cannot quite meet the timescale or whatever, but it places that statutory duty firmly on the agencies. In addition, Amendment 31 places a duty on relevant agencies to have complaints procedures for non-compliance with their duty to provide services in accordance with the code. That is a duty that has been elevated from the code into the statute, to demonstrate that complaints must be taken seriously and victims should receive the level of service they are entitled to and deserve. Government Amendments 33, 38, 40, 42, 98 and 99 are consequential on that.
There is a short amendment, Amendment 9, that makes it clear that the victims’ code is applicable only to
“persons exercising functions of a public nature”.
That is a small tidying-up amendment and is, I hope, not controversial.
Baroness Thornton (Lab)
My Lords, there is great consensus across the House to say thank you to the Minister and his team for the steps that have taken us forward. I went through all these amendments to look at what they contained. They reminded me of the debates that we had in Committee about the things we wanted to see strengthened in the Bill. We should be pleased that we have made such progress. The Minister has done a great service to the victims’ code and compliance. I am also with my noble friend, in that it is a good start but we would like to go further. I think the noble Baroness, Lady Newlove, echoed that.
We would be very pleased on these Benches to support the noble Baroness, Lady Gohir, in her amendment. I have been in the House for 26 years and have been in a similar position as a Back-Bencher on something I really cared about and thought should happen. It is possible that we may have a solution from the Liberal Democrat Benches, and that would be great, but there is always another Bill coming down the track. I can say from these Benches with some certainty that, if there is another Bill coming down the track and the noble Baroness goes for it again, we will support her. It sometimes takes a little while but, quite often, if you have an issue that you care about—I think this is a really important issue—you will get there. But perhaps the Minister will say yes to the noble Baroness —let us hope so.
The second issue is in the amendments about training, both of which are very important. We will certainly support the noble Lord, Lord Russell, in his amendment at the appropriate time, when it is dealt with. This is a very good example of how the House works best when we continue to talk to each other about all the things that we want to see happen. It is amazing how often you start a Bill and the Government Benches and the Bill team think that the Bill they have is perfect—of course they do—and should not be changed, but the iterative process of discussion and debate we go through in this House does improve legislation. This is a good example of that.
Lord Bellamy (Con)
My Lords, I thank all noble Lords for the sincerity with which their various points have been made. I will briefly reply to the amendments not proposed by the Government. Unfortunately, while understanding all the points that have been made, the Government are not in a position to accept the amendments as they are. Although noble Lords have been kind enough to say that this is good progress and to express their thanks, I make it absolutely clear that I work with my right honourable friend the Lord Chancellor Alex Chalk, and he is the boss, and my right honourable friend Minister Argar was responsible for this Bill in the other place. Although it is very kind of noble Lords to make compliments to me, they should please bear in mind that I am part of a wider team, supported by an excellent staff.
We are not in competition with Marsham Street—or at least, we do not see it that way—but under the present Lord Chancellor, progress on this Bill has reflected the current ethos of the Ministry of Justice. I fully welcome and support the plea from the noble Baroness, Lady Chakrabarti, for more financial resources for the Ministry of Justice; that would be wonderful. But we work with what we have and, of course, some of those constraints have provoked the Government’s inability to go quite as far as others would like.
Amendments 23 and 122, from the noble Baroness, Lady Chakrabarti, would place the victims’ code in a schedule to the Bill and make related changes. I hope I have reassured her on our strengthened approach, and that compliance with the code is not optional. It may have been seen as optional in the past, but this is quite a change. As an alternative to Amendment 32, which would promote enforcement through the courts, we have a different non-compliance notification process which I hope will be equally effective. We are very reluctant as a Government to go down a court-based route because that can take up more resources and be less effective and more counter-productive than other routes.
We are very much in favour of the other routes that we have developed, I hope comprehensively, in the Bill, including the need to have clear compliance procedures, bolstering the accountability framework to make sure that there is appropriate recourse and, in particular, relying heavily on the independent scrutiny of the Victims’ Commissioner. So those various mechanisms collectively should give us a good framework; let us give them a good try and see, as noble Lords have suggested. At some point we may need to go further, but this is a good start, is it not? That question is rhetorical, so noble Lords do not have to answer.
Amendments 24, 26, 27, 29 and 30 concern consulting the Victims’ Commissioner. We have effectively covered the same ground in the Government’s amendments, and I do not think I need say any more about that. We have not gone down the route of putting all this through the affirmative procedure. I am not entirely persuaded that the affirmative procedure is as good as it might be, in that you can only say yes or no, et cetera. But the procedures we have for bringing the code into force, reviewing it, issuing it and consulting on it are all good and should work quite well. I hope that, in the light of that, there is no need to pursue those amendments.
Similarly, Amendments 55, 68 and 69—the latter being one of the amendments proposed by the noble Lord, Lord Russell of Liverpool—concern consulting various commissioners and “by and for” services on the duty to collaborate. I am very grateful to all the commissioners who have collaborated with us on developing these measures. We will publish draft guidance on this part of the Bill, but the Government’s position is that the overall framework we have for consultation and publishing guidance is already sufficient and appropriate.
Of course, the department will continue to engage with all national commissioners. I am particularly grateful for the support of the Victims’ Commissioner. I mentioned earlier the Children’s Commissioner, and I work very closely with the Domestic Abuse Commissioner. They are all making a very significant contribution to a better system. Of course, we will continue to engage with a whole range of providers, including the “by and for” organisations. It is very much in the Government’s interests to consult and engage as widely as possible, so there is no reason not to.
Amendments 46 and 47 would require code compliance data to be shared with the Victims’ Commissioner. We have put forward a number of amendments to make the central role of the Victims’ Commissioner clear. I hope these are sufficient to place the Victims’ Commissioner at the heart and centre of the system, remembering that they already have existing and separate powers to issue reports and recommendations, and, under this Bill, the agencies have to respond to them.
This brings me to the important subject of code training in Amendments 34 and 58 from the noble Lord, Lord Russell. He is rightly concerned about this and has emphasised it throughout. I do not at all hide behind this fact, but if you believe in devolution—and we have 43 different police forces, different local authorities and 43 police and crime commissioners—you have to accept a certain degree of difference in the way those authorities operate. That is inherent in any devolved system. None the less, it is of fundamental importance that front-line staff are adequately trained to support victims of all crimes. That is why I can and do commit to using the statutory guidance to be issued under Clause 11 to set a clear expectation that agencies should have adequate training on the code so that staff know what the code is, can inform victims of their entitlements under it and do their job in a way that complies with it.
The Government are of the view that legislation is not the right place for such matters, given the level of operational detail required and the diverse requirements of the various organisations delivering the code. However, we appreciate that there needs to be a mechanism to ensure that training not only exists but is effective. I believe we can achieve the right balance by committing to prescribing in the regulations that bodies must collect and share information on the training they have in place to ensure that the code is delivered effectively as part of the delivery assessments within the compliance framework.
Lord Russell of Liverpool (CB)
The Minister mentioned that he works very closely with the Domestic Abuse Commissioner. Given what I said about her experience that, for training, the statutory guidance which is part of the Domestic Abuse Act is very inconsistent, despite being statutory guidance, will he undertake to go back to her and explore in more detail what she has experienced since the Act was passed and see whether any lessons can be learned that can be applied immediately to this Bill?
Lord Bellamy (Con)
I am quite happy to accept the noble Lord’s invitation to have a conversation with the Domestic Abuse Commissioner to explore her experience and see whether it is transferable to what we are discussing here.
Baroness Hamwee (LD)
My Lords, I hesitated to intervene in this debate, but with the leave of the House I will add a thought for the Minister. Keeping training up to date is important because the understanding of the issues is developing quite dramatically. Nobody would have identified the acronym VAWG not that long ago and our understanding of what comprises violence against women and girls, for instance, is developing very fast.
Lord Bellamy (Con)
The noble Baroness, Lady Hamwee, as always, made a very pertinent point: we must have up-to-date training. Both learning and knowledge in this area are developing very quickly. That is quite a challenge for the authorities, but we should meet it— I fully accept that. Of course, under the compliance framework, there are powers to issue non-compliance notices and to understand why agencies are falling down. Almost certainly, a lack of training will be an explanatory factor in underperformance, so that will be overseen by Ministers, the criminal justice agencies and the Victims’ Commissioner.
Lord Bellamy
Member’s explanatory statement
This amendment and my other amendments of subsection (3) of Clause 2 clarify the principles that must underpin the victims’ code issued under that clause.
Lord Ponsonby of Shulbrede (Lab)
My Lords, I join the noble Baroness, Lady Brinton, in paying tribute to the noble Baroness, Lady Coussins, who has pursued this matter doggedly. We have all received emails updating us on the discussions. I too look forward to what the Minister says. We all have our own horror stories of inappropriate translation and interpretation. I am sure that the Minister has from his career, too; it is a feature of life in courts and the wider criminal justice system. Nevertheless, I will listen with anticipation to what the Minister has to say.
Lord Bellamy (Con)
My Lords, talking of experiences, my abiding memory is of a case in the county court where the interpreter opened the proceedings by telling the judge that he was deaf. Matters deteriorated from there.
I thank the noble Baroness, Lady Coussins, very much for her Amendment 13. The Government recognise that victims must be confident that the criminal justice process will be accessible to them so that they can participate effectively, regardless of their first language. We think that details of the specialist support services are better in the code, but I am very grateful to the noble Baroness for her constructive engagement on this issue.
As she is aware, we have been drafting strengthening content for right 1 of the victims’ code, which is the right to understand and be understood, ahead of publicly consulting after this Bill has received Royal Assent. This strengthened wording makes it clear that victims are entitled to access interpreting and translation services from qualified professionals. “Qualified” and “professionals” are the decisive words that the noble Baroness referred to. I hope that I have reassured her that we have heard and considered her arguments carefully and are committed to addressing their intent through the victims’ code. On that basis, I invite her not to press her amendment.
Lord Bellamy
Member's explanatory statement
This amendment and my other amendments of subsection (3) of Clause 2 clarify the principles that must underpin the victims’ code issued under that clause.
Arbitration Bill [HL]
Lord Bellamy ExcerptsWednesday 27th March 2024
(8 months ago)
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Lord Bellamy
Member’s explanatory statement
This amendment does not change the effect of the provision, and follows comments from respondents to the Committee’s call for evidence that the omitted words are unnecessary and cause confusion.
The Parliamentary Under-Secretary of State, Ministry of Justice (Lord Bellamy) (Con)
My Lords, in moving Amendment 1 to Clause 1, I extend my thanks and appreciation first to the Law Commission for all the work that has gone into the preparation of this Bill and secondly to the many stakeholders who submitted evidence to the Special Public Bill Committee, as well as all those who have assisted us throughout this Committee process. Although the submissions have been most carefully considered, in the event the Bill is little changed from the version submitted and prepared by the Law Commission.
None the less, the process has been, in the Government’s view, most valuable. We have thoroughly reviewed the Arbitration Act 1996, which has provided our arbitral framework for some quarter of a century and has underpinned the foremost position that we enjoy as a destination for international arbitration. I hope that the Committee and all concerned will accept that we now have a thorough review of the 1996 Act, which is a most important advance in maintaining an up-to-date and effective procedure for arbitration, especially international arbitration, in this country.
Clause 1 provides certainty beyond doubt that the law governing the arbitration agreement will be the law of the seat, unless the parties expressly agree otherwise. By inserted Section 6A(2), any law chosen to govern the main contract does not count as an express choice of law to govern the arbitration agreement. In the Government’s view, that is a much clearer approach than that provided by the common law, notably through the Supreme Court’s decision in Enka v Chubb.
Members of the Committee will be aware that there has been thoughtful input from stakeholders to the Committee on whether the default rule in Clause 1 should be further improved on. Subject to one change, and having carefully considered those views, the Government’s position is that Clause 1 should not be further amended. The Law Commission’s policy was to reverse the decision in Enka v Chubb but not go further than that. The Law Commission’s draft, which was widely consulted on, seeks to balance the views of the sector while not being overly prescriptive.
The Government support preserving Clause 1 as it is, subject to one change, which is the subject of Amendment 1. Amendment 1 will remove the words “of itself” from new Section 6A(2), following observations that those words were likely to cause undue confusion, a point first raised at Second Reading by the noble and learned Lord, Lord Hope of Craighead, and other noble Lords and further supported by stakeholders’ evidence to the Committee. Amendment 1 deletes those words and, subject to that amendment, I hope noble Lords will agree that Clause 1, as amended, should stand part of the Bill. I beg to move.
Lord Thomas of Cwmgiedd (CB)
My Lords, I will briefly make a few observations. First, I thank the clerk of the Committee, who has been invaluable to us all and extremely diligent in the work that he has done. One will have the opportunity no doubt to thank him again at a further stage of the Bill, but I wanted to put that on record. I thank the Committee Members, some of whom are absolutely expert in the law and some who found this an amusing and, I hope, interesting excursion into an important part of our law. I am also deeply grateful to the Minister and his private office for the assistance that they have given us.
The people who deserve the most thanks, however, are those—I prefer not to use the modern term “stakeholders”, because I do not think that it is an accurate description—who came to give evidence to us, who are expert in this highly technical area of the law. They gave us of their wisdom and their experience—not only practitioners, but those who ran the important institutions of arbitration and those who used it. We are immensely grateful for their diligence.
As the Minister said, this is an important Bill for arbitration. Having seen the achievement of the 1996 Act, particularly the work of Lord Mustill, Lord Steyn and Lord Saville in producing a readable document for those whose first language is not English, we have not been complacent. We have grasped the need for change and faced up to the increasingly severe competition for this desirable legal and dispute resolution business. It has been particularly helpful to have had the input of the judges on at least one of the clauses in ensuring that we keep up with the tradition of expert judicial input into this highly technical area of the law. I also thank Professor Sarah Green and her team for their work. Although, as will become apparent, we have concentrated on one or two points, the vast bulk did not need any review by us or the experts who assisted us.
The first of those issues that we have to consider today relates to this amendment. Although other forms of wording were suggested, there cannot be any doubt as to the intention of Parliament. I hope that, if this matter is ever litigated in the future—and I hope that that never arises—there will not be the kind of misunderstanding that occurred in the course of the judgments in Enka about Parliament’s intention.
I want to raise one point. The Law Commission was not adverted to the issue in respect of arbitrations under treaties. This was raised with us at a time, unfortunately, when we had completed the taking of evidence. I still think that there is a difficult issue that needs to be confronted and I hope that, between now and Report, it can be. I am not persuaded at present that this is not an issue that needs addressing. However, as it came up at a late stage, and as the Bill needs to be progressed as soon as possible, it is something to which we can return on Report after those concerned in government have had a chance to take advice from experts in this area—they are simply not “stakeholders”, which is a term that I find discourteous, although I am sure that the Minister intended no discourtesy to people who spend their lives in this kind of business and who in this area are far more expert than the Law Commission itself.
Lord Bellamy (Con)
My Lords, I again associate myself and the Government with the thanks to everyone that have been enunciated this morning, particularly to the noble and learned Lord, Lord Thomas, for his chairmanship of the Committee. One point that arises from the remarks that have been made is the question that was raised by the noble and learned Lord, Lord Thomas, about the bilateral investment treaty. This was not raised during the Law Commission consultations, the written submissions that the Committee received or the oral evidence. It was raised after the 28-day period for taking evidence was completed. However, the Government are now seized of the point, are reflecting carefully on it and will provide an update as soon as they are in a position to take a view on what should happen next.
Lord Thomas of Cwmgiedd (CB)
My Lords, may I say how grateful I am to the Minister for his last remarks? It is a misfortune in the experience of those who are lawyers that sometimes someone only sees a point at the very last minute. It is not unusual and no one is to be criticised for it, but once a point is seen it must be put to rest. I look forward to what the Minister has to say, but I am deeply grateful for his further consideration of the matter.
Lord Mendelsohn (Lab)
My Lords, I am grateful for the opportunity to place this amendment before this Special Public Bill Committee. I am not highly experienced with such hybrid procedures and so, while I hope that your Lordships will guide me, you will be pleased to hear that I will also use brevity. I record my thanks and gratitude to the clerk and the noble Lord, Lord Ponsonby, for their help and guidance on this amendment.
This review of the Arbitration Act 1996 builds on its success. The UK has become a global centre of excellence and the proposed amendments to the existing arrangements are sensible and will help to strengthen this position. This amendment seeks to establish as an overarching statutory principle that the arbitral tribunals must confine themselves to resolving disputes that are proper subjects for arbitration and must not purport to make judgments or orders about other matters. It is enormously important that people who take an issue to arbitration do not find their rights affected by the system purporting to go outside the specific dispute between the parties and to resolve other legal rights or to interfere with the operation of statutes.
Even more importantly, arbitral tribunals must not purport to make orders that affect the rights of persons other than the parties to the dispute, such as family members. I will illustrate this point by means of an example. In certain parts of the Orthodox Jewish community there has developed a practice of parties to a divorce being encouraged, or even pressurised, by the religious court—or, as it is known, the Beth Din —handling the ritual side of the divorce to submit to the jurisdiction of the Beth Din by way of arbitration in relation to their financial affairs, and usually to vary a family court-agreed settlement. That in itself is questionable, as the Beth Din is not best placed to adjudicate on these matters, particularly because it has regularly been used as a way of allowing the delivery of the Jewish divorce, or “get”, as it is known, by the man to become a bargaining chip in the wider financial issues between the parties, and there is no provision in religious law for involvement in such issues during the ritual of divorce.
The process becomes particularly objectionable when issues such as access to children, which are not within the range of matters that an arbitral tribunal should be looking at in any event, are brought into consideration, leading to the parties asking the courts to agree to a consent order that risks allowing the children’s welfare, which should be the paramount consideration, being subordinated to the demands of the husband in relation to delivery of the get—in effect, allowing a recalcitrant husband to blackmail children out of their statutory protections.
This is just one example of ways in which religious or other arbitral tribunals may purport to exceed their jurisdiction. I hope the Minister will be able to confirm from the Dispatch Box today that it is a fundamental principle of the law of arbitration that arbitral tribunals should confine themselves strictly to the financial dispute between the parties and not make orders about, or allow themselves to be influenced by, other matters.
Lord Bellamy (Con)
My Lords, I thank the noble Lord for his amendment and his remarks. The Government are entirely clear that arbitration tribunals should confine themselves to their jurisdiction and to matters properly subject to that arbitration. That is clear from the Arbitration Act 1996 itself, which provides a regime for the court to control the exercise by the arbitration tribunal of its jurisdiction. I do not think I need to run through the various sections of the Act, but it is perfectly plain that it is a fundamental principle of the Arbitration Act that arbitral tribunals should not exceed their jurisdiction. The Government take that obligation extremely seriously.
I confirm at the Dispatch Box, as the noble Lord requested, that the Government’s view is that arbitration tribunals should confine themselves strictly to the matters subject to the arbitration. That is a most important and serious obligation that must be strictly observed. If there is evidence that that principle is not being observed, any such information should be drawn to public attention. I hope that, with those assurances, the noble Lord will not feel it necessary to press his amendment.
Lord Mendelsohn (Lab)
I thank the Minister for that assurance and beg leave to withdraw the amendment.
Lord Bellamy
Member's explanatory statement
This amendment provides that court rules within subsection (3C) restricting the raising of new grounds for objection, the consideration of new evidence or the rehearing of evidence must provide that the restriction is subject to the court ruling otherwise in the interests of justice.
Lord Bellamy (Con)
My Lords, I shall also speak to Amendments 4 to 7 to Clause 11, which, effectively, enables certain procedural reforms to take place in procedures under Section 67 of the Arbitration Act 1996, where a party challenges an arbitral award before the court on the basis that the tribunal had no jurisdiction. The current approach to these challenges, following the Supreme Court’s decision in Dallah v Pakistan, is that these challenges are by way of a full rehearing.
Clause 11 now amends Section 67 to confer a power for rules of court to allow the court to function in what may be described in a more proportionate way when it comes to consider cases under Section 67. In particular, rules of court will be able to provide that there should be no new grounds of objection and no new evidence before the court unless it was not reasonably possible to put these before the tribunal, and evidence should not be reheard by the court.
Regarding the amendments to Clause 11, as originally drafted, new subsection (3C)(c) was subject to the overriding “interests of justice”. The purpose of the amendments is essentially to provide that the concept of everything being subject to the interests of justice should be an overriding provision for all the paragraphs in new subsection (3C), not just the last one. Amendment 3 applies the saving, subject to the court ruling otherwise in the interests of justice, to all the court rules under new subsection (3C) which previously applied only to new subsection (3C)(c). Amendment 6 is consequential on that amendment.
Amendment 4 deals with a slightly different and technical point. It clarifies that the evidence mentioned in new subsection (3B)(b), on consideration of evidence not put before the tribunal, includes written evidence as well as oral evidence. The current drafting is not as clear as it should be because it uses the word “heard”, and it is not always clear that written evidence is evidence that is heard. This is a technical amendment that simply provides that the relevant provision applies to both written and oral evidence.
Amendment 7 adds language, in new subsection (3D), which makes clear that Clause 11 is not intended to and does not limit the generality of the power to make rules of court.
I hope those are relatively straightforward amendments that meet various points raised during the processes of the committee. I beg to move.
Lord Marks of Henley-on-Thames (LD)
My Lords, I agree with everything that the noble and learned Lord, Lord Thomas, has said. I have one or two small points to add. The first concerns his allusion to the need to be clear. We heard earlier from him and the noble Lord, Lord Ponsonby, about how important the Bill is to maintaining our competitive position in international circles in the field of arbitration. It is in that context that clarity is crucial.
When potential parties to arbitration determine where they are going to have the arbitration, which law will apply and all those questions, clarity is to be highly valued. In that context, it seemed to me, to the committee and to all the experts who gave evidence to us that it should be clear that the court would remain the ultimate arbiter of the arbitral tribunal’s jurisdiction. That was part of the need for these amendments.
To deal with the point about rules of court first, and slightly out of order, the potential problem with the Bill as drawn was that new subsections (3B) and (3C) of the new Section 67, which provided for rules of court, could have appeared too prescriptive. They could have made it look as though that is what the rules of court will say, and that would have two damaging effects. First, it could have been seen to limit the power of the rules committee to set up fair rules in the first place.
Another point that certainly seems important to me is that the rules committee has always had the power to change and adapt rules in the light of experience. If the statute governing the powers of the rules committee looks too prescriptive, that power to change and adapt could be threatened. An amendment along the lines of Minister’s Amendment 7, making it clear that the power of the rules committee would not be limited, is therefore very desirable.
The other point that the noble and learned Lord has made is that there should always be the power for, and indeed an obligation on, the court to act in accordance with the interest of justice. The committee felt, and I feel, that where the interests of justice were mentioned only in new subsection (3C)(c), that suggested that it would not be applicable to new subsection (3C)(a) and (b). The overriding provision in Amendment 3 that
“subject to the court ruling otherwise in the interests of justice”
applies to all three paragraphs was extremely desirable. It also seems important that that renders the clause as a whole entirely consistent with the overriding objective to deal with cases justly by making it clear that that applies consistently with the subsection as drafted and adds to the clarity for those coming to this legislation afresh and determining whether English law will retain its pre-eminent position in the world of arbitration.
Lord Bellamy (Con)
My Lords, I thank noble Lords for their support for these amendments, which I commend to the Committee.
Lord Bellamy
Member's explanatory statement
This amendment makes clear that the evidence mentioned in subsection (3C)(b) includes written evidence as well as oral evidence.
Lord Thomas of Cwmgiedd (CB)
This clause seeks to remove the special provisions in relation to domestic arbitration from the Act, and it is entirely right to do so. However, it gives rise to a question that needs to be addressed, particularly because the broad powers of the court are being removed in respect of domestic arbitration. It is therefore opportune to use this occasion to raise the issue that has come before us. It was raised at Second Reading in relation to the problems of fraud, corruption and other related issues in arbitration.
We were greatly assisted by the evidence that we received on this in the light of two recent decisions: that of Mr Justice Knowles in The Federal Republic of Nigeria v Process & Industrial Developments Ltd, which has won worldwide praise; and that of Mr Justice Butcher in Contax Partners Inc BVI v Kuwait Finance House, where he was asked to enforce an award that was completely fabricated.
My own experience means that I would be extremely surprised if this was an extensive problem, but there may be others who take the view that there is a little more to this. Whatever the view, this issue really has to be examined. We are particularly grateful to what Spotlight on Corruption told us in two submissions; they are valuable papers that deserve close scrutiny. The organisation highlighted the problems by reference to some other cases and put forward some solutions. What is important from the point of view of London, and indeed the rest of the UK, is that it drew attention to the position of other states, included information about important international arbitration centres such as Singapore and Sweden, and the work being done by the ICC task force.
We cannot afford to be complacent about this issue. Plainly, it was not examined by the Law Commission and cannot therefore be gone into in the Bill, but there are issues. How do we mitigate the risk that has been seen to arise? What, if any, duties ought to be imposed on arbitrators? These are extremely difficult questions and I hope this is a matter that His Majesty’s Government will consider.
My only suggestion is that this might be best done through the way in which arbitration law was originally brought up to date in this country: a departmental committee. That brings the practical expertise of people who really are involved in this, and the Government would have the benefit of it costing nothing because the private sector is always happy to help on such matters. I hope consideration will be given to this. That is merely a suggestion as to how it should be done, but it really is something that I believe should be.
The second issue that I want to raise is the way that the Special Public Bill Committee works. It has worked well in this Bill, and in another where I had the honour of chairing the committee, but there are three points that it would be useful to examine. The first is the period of time that the committee has to review the evidence. It is extremely discourteous when the Law Commission has taken, say, two years to review a subject if we tell all the people who want to say something that they have 14 days in which to do so. That does not seem an entirely fair balance. I am not saying we should veer away from 28 days, but we ought to be allowed to have a pause to give people time—not what the Government give people and are criticised for, which is six weeks, but, say, three weeks. We should be slightly more generous in our timetable. That would enable us to focus, see what people are concerned about and get witnesses to come without disrupting the lives of busy people.
Secondly, in these technical areas—some highly technical areas are coming along the road as we move to the greater use of digitalisation and artificial intelligence and the effect this has on legal matters—we have to get right the time at which detailed technical expertise is brought to bear. It is sometimes a mistake to see these areas of the law as being a bit like the rest of it. This Bill and the one relating to digital documentation are highly technical, and it is a question of getting expert help at the right stage before the Committee meets.
Thirdly, there ought to be greater clarity about what a Special Public Bill Committee can do by way of looking at the scope of a Bill, what is in it and what is and is not policy without in any way imperilling a procedure that enables us to get Bills on to the statute book quickly. We now have some experience of these Bills. Given the important question of getting our law right on adjustments that have to be made to face the age of digitalisation and artificial intelligence, it might be wise to have a rethink about the precise way in which this procedure works. It has not caused a problem due to the Minister’s helpful attitude towards this whole process, for which I am most grateful, but I foresee that there could be difficulties if we do not think of the problems that have arisen before more come down the line, which will be vital to the prosperity of the United Kingdom.
Having made those remarks, I do not wish to press my opposition to the incorporation of Clause 15 any further. In fact, I wholly welcome that clause as bringing about a much-needed improvement to the law.
Lord Bellamy (Con)
My Lords, in view of the noble and learned Lord’s indication that he is not pressing for the removal of these clauses—which, incidentally, have never been brought into effect—I will say a word or two about the important underlying issue that he raised about corruption. This was raised in the Nigeria and Kuwait cases that he referred to. Those cases revealed that there had been serious issues of corruption in the conduct of the arbitrations, and it is greatly to the credit of the Commercial Court of England and Wales that that was properly exposed and that, in the end, the system was seen to work well.
However, it is important that arbitrators navigating complex cross-border disputes are equipped and empowered to safeguard their process against any misuse or abuse and that everyone perceives our jurisdiction as one that facilitates clean and robust arbitration and is not tainted in any way by corruption. Certainly, it has been most important for the committee to have received evidence about that.
On that issue, I am aware that the ICC Commission on Arbitration and ADR has commissioned a task force
“to explore current approaches to allegations or signs of corruption in disputes and to articulate guidance for arbitral tribunals on how to deal with such occurrences”.
I have written to the principal arbitral institutions seeking their assistance in this matter: the Chartered Institute of Arbitrators, the International Chamber of Commerce, the London Court of International Arbitration, the London Maritime Arbitrators Association and the Grain and Feed Trade Association, as well as the Law Society and the Bar Council, many of whose members will be arbitrators or acting as counsel in arbitration. I have asked in particular what measures they have in place to mitigate the risk of corruption in arbitration, whether more should be done in the sector to mitigate corruption in arbitration, the best way to proceed and how the Ministry of Justice and the Government could support the sector’s efforts. Once we have received the responses, the Government will come to a view on what further action, if any, is needed.
Those matters are in train and this is an issue that the Government take seriously, because the reputation of London is crucial. I think that reputation is intact but we cannot be too careful in this important matter. I hope that that goes some way to reassure the noble and learned Lord that this matter has been properly raised, is on the radar and that action is being taken.
The noble and learned Lord also asked about the procedures of the Special Public Bill Committee, the timelines and the framework for dealing with that matter. Those points are well taken. I think it is a matter for the House authorities rather than the Government, so no doubt the House authorities will reflect on the points that have been made. The Government will support any sensible changes to the Special Public Bill Committee procedure in due course.
Criminal Justice Act 2003 (Suitability for Fixed Term Recall) Order 2024
Lord Bellamy Excerpts(8 months, 1 week ago)
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Lord Bellamy
That the draft Order laid before the House on 22 February be approved.
Relevant document: 16th Report from the Secondary Legislation Scrutiny Committee
The Parliamentary Under-Secretary of State, Ministry of Justice (Lord Bellamy) (Con)
My Lords, in October 2023, my right honourable and learned friend the Lord Chancellor said in the other place that the Government would review the use of recall to ensure that the prison system is working effectively and consider how to safely manage any risk posed by offenders, while not having people in prison any longer than necessary. That is the purpose of this statutory instrument.
Recall, as your Lordships know, is a preventive measure available to the Probation Service to bring an offender managed on licence in the community, following release from prison, back into custody. There are two kinds of recall. The first is known as fixed-term recall, which is for a period of 14 days if the offender’s sentence is less than 12 months, or of 28 days if they are serving a sentence of over 12 months. The other is standard recall, where offenders are recalled to prison and remain in custody until the end of their sentence, unless released earlier by the Parole Board.
Unfortunately, pressures on the Parole Board mean that it is sometimes quite a long time before a prisoner’s further release comes up for consideration. In the case of offenders already serving less than 12 months, the delays in the Parole Board might mean that it does not get round to considering their case before they are due for release anyway. This means that in the case of offenders serving less than 12 months, a recall is quite a severe consequence.
Between 2017 and 2023, the number of people in prison on recall rose by about 85%. In that period, there was a major decline in fixed-term recalls—20% in general and 27% for those offenders serving less than 12 months. The purpose of this statutory instrument is to rebalance that situation and mandate the use of fixed-term recall for lower-level offenders—those on less than 12 months, subject to certain exceptions that I will come to—so that they are automatically recalled for 14 days and then rereleased. Of course, they would then remain on licence until the end of their custodial period being served out in the community.
That is the essential purpose of the statutory instrument. I accept that it is against the general background of pressure on the prison estate at the moment but, in the Government’s view, this measure is fully justified in its own right, in fairness to offenders serving less than 12 months and as a way of rebalancing the system in the way I described.
As your Lordships know, probation can recall offenders if their risk while on licence increases because they fail to keep in touch, do not observe the curfew, have been under the influence of alcohol if the conditions forbid alcohol, et cetera. However, as I said, for those serving short sentences, the reality is that one recall might mean that they serve the rest of their sentence, are held in custody for too long, and when they come out they are not on licence as their licence has finished. It is much better, in general, for the short-sentence offenders to remain on licence when they are released back into the community for the balance of the sentence period.
The order will apply to lower-level offenders aged 18 and over serving custodial sentences of fewer than 12 months and assessed as requiring recall. It will not apply to the more serious offenders who are managed under what is known as MAPPA at levels 2 and 3, or those who have been charged with a further serious offence under Schedule 18 to the Sentencing Act 2020.
As my right honourable and learned friend the Lord Chancellor and the noble and learned Lord, Lord Stewart of Dirleton, updated the Houses the other day in their Statements on “Prisons and Probation: Foreign National Offenders”, we are preparing the Probation Service to be ready for increased demand, introducing changes to operating procedures that will allow front-line staff to maximise supervision of the most serious offenders and to deal with intervention and engagement at as early a stage as possible.
I take the opportunity to express our deep gratitude to all those working in the criminal justice system, including in prisons, probation and the police. They deserve enormous credit for their commitment. They are under heavy pressure and managing magnificently. I hope that this statutory instrument will further ease that burden and rebalance the system in the way I hope I have described. I beg to move.
Baroness Jones of Moulsecoomb (GP)
I can sort of see the rationale for this, but it is completely misguided. Every time the Government talk about tougher sentences and being tougher on crime and the causes of crime, they start packing out the prisons. Of course, there is now no capacity. This is a rather cynical move to clear out the prisoners so that we can pack other people in.
I have a much better idea, which I will come to in a moment, but I do not understand why the Government are wafting this statutory instrument through yet find it impossible to do something fairly fast for IPP prisoners. I would like an explanation from the Government.
Part of the problem is that we tend to send people who committed low-level drug abuse crimes to prison. I suggest a constructive way forward, which is that we automatically release anyone in prison for low-level drugs offences, because they are less dangerous to other people and really only dangerous to themselves. Please could we have some rationale about the prison system, which is crumbling with this Government and could be better?
Lord Bird (CB)
I want to make a few comments. The renaissance should actually start somewhere else. It should start—I have certain experience with this—with all the naughty boys who later become naughtier boys and men; they should be addressed and supported. The noble and learned Lord, Lord Bellamy, and I have talked about this. What we are largely doing with our young now, although there are some wonderful projects and initiatives, is warehousing them. When I was a young person in the custodial system, if I wanted to climb Mount Everest then, as long as I did not rob an old lady on the way, they were happy to help me. They were happy to help me to do O-levels and that kind of thing.
We have to stop just responding to the problem as it is. There will always be a need to respond to an emergency, but you have to back it up with prevention. That means dealing with our children, largely from the same class that I come from, who fail at school. When I go to Pentonville, the first thing I ask is, “How many people did well at school?”, and only a couple of people put up their hands. The rot starts early on. These children are inheritors of poverty.
Until we have some thinking, we cannot deal with the emergency just by dealing with the emergency. We have to grow up and start creating a system that, first of all, helps the children who come through it. At the same time, we have to look at the social engineering that is necessary to stop producing children who fail at school and whose only inheritance is poverty.
Lord Bellamy (Con)
My Lords, I compliment the noble Lord, Lord Bird, on his intervention. Personally, I think it is full of common sense. We know that a large number of people in prison, particularly in the male estate, are dyslexic. That almost tells you all you need to know about why they are in prison—they have fallen through the various protections. That is somewhat outside the scope of today’s debate, but it is a point well made that all Governments should be thinking about profoundly. We must consider how to tackle this problem as early as we can through a different way of approaching the social problems that lead to the situation that we are in. I thank the noble Lord for those comments.
I thank the noble Baroness, Lady Jones, for her comments too. I hope this is not a cynical move, although I entirely see the potential contradiction in some ways that we are involved in. The Government’s general policy, and probably that of most Governments, is to try to be tougher on the more serious offences but to think harder about how to tackle the less serious ones. Today, we are talking about the less serious offences.
We will come to IPP prisoners on Report of the Victims and Prisoners Bill—we discussed it the other night. Automatic release for low-level drug offenders is a very creative idea; it is some way away from the thinking of the present Government, but is another thing to put on our list of things to think about, if I may put it that way to the noble Baroness in thanking her for her intervention.
Finally, I thank the noble Lord, Lord McNally, who, with great distinction, discharged the office that I now hold, so I regard myself as his grandson in a way. His approach with my noble friend Lord Clarke of Nottingham was no doubt very sensible at the time but, as all Governments know, one has to deal with the political framework that one finds oneself in. In putting forward this order, the present Government are, I hope, producing a practical solution to a very pressing problem.
Of course, I agree with the noble Lord, Lord Ponsonby, that support for the Probation Service—perhaps even its renaissance—is something devoutly to be wished. We have to do what we can, as we can, with the resources we have, but the overall goal is, I think, one that most Members of this House share. So, unless there are any other points I have not dealt with, I now commend this order.