Employment Tribunals and Employment Appeal Tribunal (Composition of Tribunal) Regulations 2023

Lord Bellamy Excerpts

Tuesday 16th January 2024 Lords Chamber

Moved by

[Lord Bellamy]

That the draft Regulations laid before the House on 14 November 2023 be approved. Considered in Grand Committee on 10 January.

Motion agreed.

Imprisonment for Public Protection

Lord Bellamy Excerpts

Tuesday 16th January 2024 Lords Chamber

[Lord Moylan]

To ask His Majesty’s Government what plans they have to reply to the letter addressed to them on 17 August 2023 by the United Nations Special Rapporteur on Torture and other Cruel, Inhuman or Degrading Treatment or Punishment and others, concerning imprisonment for public protection.

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

My Lords, the Government are grateful for the UN special rapporteur’s interest in this important matter and have considered her letter carefully. A response was sent on 19 December 2023 and published on the Office of the United Nations High Commissioner for Human Rights website at www.ohchr.org. The IPP action plan aims to promote sentence progression for all those serving IPP sentences, and provisions in the Victims and Prisoners Bill will reduce the number subject to that sentence over time.

[Lord Moylan (Con)]

My Lords, I thank my noble and learned friend and apologise that my Question was tabled, quite by coincidence, on the day that the Government issued their response to the letter. Does he accept the evidence submitted to the Justice Select Committee in the other place, and referred to by the special rapporteur—that the mental health problems caused by the IPP sentence itself multiply the difficulties that the prisoners face in obtaining release, and that therefore the Government would be wholly justified in considering any legislation in treating them as a special case with particular needs and trying to assist them to obtain discharge of the sentence?

[Lord Bellamy (Con)]

My Lords, the Government accept that there are certain special mental health issues for a number of these prisoners. They are being tackled, as far as we can do so, within the existing system. The action plan to which I referred contains provisions in that regard, particularly on improving psychological services and providing better support for prisoners on licence to avoid later recall. I do not accept the second part of my noble friend’s question that it follows that we need special legislation to deal with this.

[Baroness Chakrabarti (Lab)]

My Lords, we must all be so grateful to the noble Lord, Lord Moylan, for his continued campaigning on this issue, and we are grateful to the Government for responding at such length to the rapporteur. If everything in the IPP garden is so rosy in relation to indeterminately detained people, some of whom would have got a sentence of only months for their actual crime, why did the Government abolish this sentence in the first place, and why did the noble Lord, Lord Clarke, as late as 2016 call the threshold that prisoners have to meet to secure their release both ridiculous and absurd?

[Lord Bellamy (Con)]

I do not assert that everything in the garden is rosy. This area is one of the acute—perhaps the most acute—dilemmas faced by the Ministry of Justice. Your Lordships will be aware that the subject of IPP prisoners is being addressed in Part 4 of the Victims and Prisoners Bill currently before Parliament, which we will shortly discuss in detail in Committee, and I am meeting noble Lords on Thursday to take that discussion further.

[Lord Clarke of Nottingham (Con)]

My Lords, this is not just a major problem in the system; it is a major disgrace to the British justice system that these thousands of people are being kept in this way. When I persuaded my then Cabinet colleagues to abolish the IPP system because it was working so badly, unfortunately I was unable to persuade them to change the application of the licensing system in the ordinary way to these prisoners. I am glad that the Government are now contemplating action. I look forward to the legislation, but it has taken years. Will they consider something drastic, such as that, when prisoners are released on licence, the licence period should be for a much shorter period than usual, because at the moment people are being returned for quite minor breaches of licence, to the disproportionate consequence of an indeterminate sentence that may keep them in prison for life? Why cannot they be released on licence for 12 months and thereafter be subject to the usual criminal law for the protection of the public? Will the Minister consider that, and every other suggestion flowing to him from the campaigners?

[Lord Bellamy (Con)]

My Lords, the House will be aware that the Victims and Prisoners Bill reduces the qualifying licence period from 10 years to three, with the presumption of termination at that point, and automatic termination two years thereafter if there is no recall in the meantime. A recent report by His Majesty’s Inspectorate of Probation found that in none of the cases examined was the recall inappropriate but that, in some cases, further additional support in the community might have avoided the need for recall. That has led to a number of recommendations, all of which the Government have accepted.

[Lord Purvis of Tweed (LD)]

My Lords, when I served on the Justice Committee in the Scottish Parliament, I recall that Scotland chose a different path from England and Wales when the sentences were introduced by the Labour Government in 2005, and it was right that they were abolished in 2012. The UN rapporteur’s figures make very sobering reading, stating that 97% of those still imprisoned are now two years beyond the tariff and 46% are 10 years beyond the tariff, with rehabilitation having been designed as an integral part of the sentencing. What are the obstacles for the Government in implementing the recommendations of the Justice Committee in the Commons, endorsed by the UN rapporteur, for resentencing and rehabilitation now being put forward? What are the obstacles to this happening, so we can finally put to bed what has been a very sorry exercise?

[Lord Bellamy (Con)]

My Lords, I think I have explained this matter several times before to your Lordships but, in brief, the situation is this. We have 1,200 prisoners who have never been released. Almost all of those have come several times before the Parole Board, which each time has decided that they are not safe to release. Any resentencing exercise would inevitably either aim at or result in possibly a thousand persons being released who are not safe to release. The cohort includes many violent and sexual offenders, who are particularly difficult to manage in the community. The Government feel that they cannot take that risk and should not raise expectations but manage the situation by preparing the remaining prisoners for safe release.

[Lord Ponsonby of Shulbrede (Lab)]

My Lords, when IPP sentences were in place, the offender received a minimum tariff. When the offender went to prison, an offender manager, who is a probation officer, wrote a sentence plan. That same probation officer would also review that plan. Can the Minister say with confidence that all the elements of the sentence plans which are currently in place can be completed, and in a reasonable time?

[Lord Bellamy (Con)]

My Lords, it is a very good question. A strengthened action plan—a strengthened sentence plan for each IPP prisoner—is an essential part of the wider IPP action plan. That is currently being worked on so that each IPP prisoner still in custody will have a personalised, updated and—we hope—effective sentence plan eventually leading to their release if that is at all possible. The newly established IPP progression board dealing with this matter now includes stakeholder representatives, who met in September and just before Christmas and will meet again in March, when we will report a full update on how the action plan is progressing.

[Viscount Hailsham (Con)]

My Lords, I reinforce the suggestion made by my noble friend Lord Clarke. Has the time not come to provide a presumption that all IPP prisoners who have served the tariff should be released unless there is robust evidence tendered to the Parole Board that they are unsafe to be released?

[Lord Bellamy (Con)]

My Lords, that is, in effect, the present position. The Government have no interest in holding these prisoners, especially given the pressure on the prison system generally. The Government’s fear, worry and concern is public protection, for the reasons I have given.

[Lord Woodley (Lab)]

My Lords, the special rapporteur, Dr Alice Edwards, whom I had the pleasure and privilege of meeting last month with the Justice Unions Parliamentary Group, stated forcefully that:

“The UK, as a society with a strong rule of law tradition, has measures in place to protect the community after individuals are released”.


Why then does the Minister think that these measures will be ineffective in the case of IPP prisoners?

[Lord Bellamy (Con)]

The Government replied in detail to the learned special rapporteur with a letter of over 13 pages on 23 December, to which I refer your Lordships. I look forward to further debate and discussion on this matter when we are dealing with the Victims and Prisoners Bill.

Judicial Pensions (Remediable Service etc.) (Amendment) Regulations 2023

Lord Bellamy Excerpts

Thursday 11th January 2024 Lords Chamber

Moved by

[Lord Roborough]

That the draft Regulations laid before the House on 13 November 2023 be approved. Considered in Grand Committee on 10 January.

[Lord Roborough (Con)]

My Lords, on behalf of my noble and learned friend Lord Bellamy, I beg to move the Motion standing in his name on the Order Paper.

Employment Tribunals and Employment Appeal Tribunal (Composition of Tribunal) Regulations 2023

Lord Bellamy Excerpts

Wednesday 10th January 2024 Grand Committee

Moved by

[Lord Bellamy]

That the Grand Committee do consider the Employment Tribunals and Employment Appeal Tribunal (Composition of Tribunal) Regulations 2023.

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

My Lords, this draft instrument will delegate the power to determine the composition of employment tribunals and the Employment Appeal Tribunal to the Senior President of Tribunals. The regulations form part of a wider ongoing policy on the part of the Government to create a single judiciary in which all parts of the judicial system form a seamless whole, whether courts or tribunals, and to further the work of ensuring consistency of operation within the tribunal system.

Your Lordships may recall that, in the very old days —I am not completely sure but this may even predate the noble Lord, Lord McNally—tribunals were, in effect, almost a part of the department to which they were associated. Down the end of the corridor in the Ministry of Health or the Ministry of Social Security, there would be a tribunal that was supposed to review the decisions of the department. Over the years, however, it has been the Government’s policy, pursued particularly by the Labour Government and later by the coalition, to create a proper, independent, separately administered tribunal system.

From mid-2007 onwards, we have had a formalised, unified tribunal structure, in which all the various tribunals form the first tier. We have First-tier Tribunals, which consist of a series of tribunals dealing with social security, educational special needs, immigration and asylum, and various other things, with an appeal to the Upper Tribunal. The whole is presided over by a Senior President of Tribunals, who is currently the right honourable Sir Keith Lindblom. The Senior President of Tribunals decides on the composition of those various tribunals, across the board.

For historical reasons, employment tribunals have been an exception to this system. As your Lordships will recall, employment tribunals have a rather special history: they were originally called industrial tribunals and were set up at a time when, to gain public confidence, it was thought—rightly so—that those tribunals should have a particular statutory set-up shared jointly by what are now the Department for Business and Trade and the Ministry of Justice. The composition of employment tribunals was set out separately under the Employment Tribunals Act 1996. As your Lordships know, the original idea, dating from the 1970s, was that there would always be someone representing the workers, someone representing the bosses and a legal chairman of that composition.

Times have moved on a lot since. The Judicial Review and Courts Act 2022 set out a new framework, which provides that the Lord Chancellor has the power to determine the panel composition of employment tribunals, which he can delegate to the Senior President of Tribunals. These regulations implement that provision and allow the Lord Chancellor to delegate to the Senior President of Tribunals powers to determine the panel composition of employment tribunals, thus bringing them more fully within the unified system of tribunals and making the panel composition the same as all other tribunals.

The Senior President would be able to issue practice directions of the types of cases that can, for example, be heard by a judge alone, but he has to consult the Lord Chancellor about any practice direction that he is minded to make. The idea is to update the system, to create a more flexible process and to bring arrangements for employment tribunals and employment appeal tribunals in line with those that apply across the unified tribunal system.

Your Lordships will know that, particularly following the Covid pandemic, the tribunal system has been under great pressure. There is a need to be as flexible as possible to tackle these backlogs and to implement processes that are as efficient as possible. I take this opportunity to say that tribunals, particularly employment tribunals, have recovered well from the pandemic; the outstanding case load is falling and is below the pandemic peak. Members of employment tribunals and the judges in this sphere have done great work to tackle the backlog.

There is a matter that relates to what the noble Lord, Lord McNally, asked about on the previous statutory instrument: the status of non-lawyers who work in the judicial system. I will not call them lay members, as that phrase is not particularly appealing to them. It is not the Government’s intention that this should be a kind of backdoor to reduce the role of non-lawyers in our legal system. The Government’s view is that, from time immemorial, non-lawyers—citizens—have played an essential part in our legal system as a whole. That might have been as magistrates—the noble Lord, Lord Ponsonby, is a notable example—in a jury, or as members of tribunals.

We feel that this “lay participation” brings an extra texture, adds extra confidence, brings extra insights and greatly enhances the system as a whole—particularly from the point of view of diversity, which was the point made by the noble Lord, Lord McNally. You are drawing on a wide pool of potential appointments to tribunals and, generally speaking, that is an avenue in which you can enhance diversity in the wider judicial system. The regulations are not intended to undermine that in any way. I have had the great privilege of sitting as a judge in the Employment Appeal Tribunal, where the effect of the lay members was particularly striking. I will follow the noble Lord, Lord McNally, with a moment of personal reminiscence. In those days, the Employment Appeal Tribunal had some very distinguished trade union members: I think of George Wright of the Transport and General Workers’ Union; Norman Willis, the former secretary-general of the TUC; and others— I think I just missed Jack Jones, but only by a short margin. They brought enormous skill, wisdom and common sense to the operation of the appeal tribunal, and one would not wish to jeopardise that.

I thought that I would take the opportunity to make the Government’s position on that point clear. This statutory instrument is designed to bring employment tribunals in line with the rest of the system and to enable us to be as flexible as possible without in any way undermining the principle of lay participation, which I have just emphasised. On that basis, I beg to move.

[Lord McNally (LD)]

My Lords, it is perhaps one of the wonders of our system that the noble and learned Lord, Lord Bellamy, and I should both have had the same job in government. I am not a lawyer, whereas he is a very distinguished lawyer and indeed a very distinguished judge. I used to be—if you are going to invite people of my age to speak at these gatherings, you are going to get some reminiscences—very nervous of that. At any meeting, I would say, “I have to explain that I am not a lawyer”. Then I entertained a distinguished jurist from the United States and explained that I was not a lawyer, and he said—very slowly—“Then I will speak very slowly”, so I stopped doing that.

I should also say that, in background and upbringing, I belong to a generation that was—and is—supportive of dialogue rather than confrontation in industrial relations. The Employment Tribunals Act and the setting up of the tribunals certainly underpinned and strengthened that approach to industrial relations. Of course, we will probably give a nod to it today.

--- Later in debate ---

[Lord Ponsonby of Shulbrede (Lab)]

My Lords, in his opening remarks, the noble and learned Lord said that this is not a backdoor to reduce the lay members within the judicial system. He went some way to say how much judges appreciate working with lay members, who are sometimes experts in other fields. The two noble Lords who spoke before me raised concerns on exactly this issue.

Although my brief is to accept the proposals of the Government without reservation—which I do, of course —I have reflected on my own experience. A number of magistrates sit on a number of tribunals; I can think of about 10 colleagues who do this, as it is quite common. Some sit on employment tribunals and some on other tribunals. Sometimes they are experts and sometimes they are lay people in other contexts. I remember a couple of separate discussions, with a magistrate who was a trade unionist and with magistrates who were employers, all of whom sat on these employment tribunals and were sceptical about the changes foreseen by these regulations. That scepticism was about money-saving and about trying to get consistency within the system when there is no merit beyond that consistency itself. There needs to be more of a reason than just consistency to make a change such as this. The noble and learned Lord gave us some reassurances in his opening, but there is scepticism out there nevertheless.

The question that both the noble Lords asked is: after these regulations go through, what criteria will the Lord Chancellor look at, if and when proposals come for more tribunals to be determined by single judges sitting alone, rather than by a panel of three? Will there be a process to review this? We heard from the TUC and I gave my personal anecdotes about colleagues with whom I have sat, and it seems to me that the justification of consistency alone is not sufficient. There needs to be a more profound justification to make this change. I look forward to the noble and learned Lord’s response.

[Lord Bellamy (Con)]

I thank noble Lords for their comments. On the mechanics of this—I will be corrected by those sitting behind me if I get this wrong—if your Lordships approve these regulations, that in itself delegates to the Senior President of Tribunals the power to decide on composition. There is no further step by the Secretary of State; he simply delegates it, as he is empowered to do under the 2002 Act.

It is then for the Senior President of Tribunals to issue a practice direction setting out how he proposes to exercise those powers. There have already been some consultations in relation to that, which are possibly those referred to by the Trades Union Congress. The Senior President has intimated that, until he has the power to make the practice direction, it is not appropriate for him to make the result of the consultation public. I am sure we will know that in due course, but it is not too difficult to speculate, as a lot of reservation has been expressed about the very point that your Lordships are making. This point is not new; it is in the public domain. In effect, it is: “Don’t tinker with the well-established working relationships of employment tribunals”. That is thoroughly understood.

The Senior President of Tribunals does this job with all tribunals across the piece. Employment tribunals are special up to a point, but this is a job that he does and, if I may say so, we have to acknowledge that we have a wise and experienced president, as I am sure we will in the future. I am equally sure that he will exercise those powers responsibly.

Judicial Pensions (Remediable Service etc.) (Amendment) Regulations 2023

Lord Bellamy Excerpts

Wednesday 10th January 2024 Grand Committee

Moved by

[Lord Bellamy]

That the Grand Committee do consider the Judicial Pensions (Remediable Service etc.) (Amendment) Regulations 2023.

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

My Lords, your Lordships last considered matters relating to judicial pensions following the McCloud judgment on 15 June, when the Judicial Pensions (Remediable Service etc.) Regulations 2023 were before them. On that occasion, in answer to a question from the noble Lord, Lord Ponsonby, I said that I hoped your Lordships would not be troubled by this matter again. Unfortunately, a small technical point has arisen on those 2023 regulations that we were then considering; these amendment regulations address that point. Perhaps I could briefly explain.

As your Lordships may recall, in 2015 the Government introduced new pension arrangements across the public sector following a report from the Public Services Pensions Commission. As far as judges were concerned, the new arrangements were set up in the Judicial Pensions Regulations 2015, which I will refer to as the 2015 scheme. Those aged over 55—that is, those approaching retirement —were allowed to remain in their previous legacy schemes and were not required to join the 2015 scheme, as every other judge was required to do.

Those judicial arrangements were then challenged by younger judges who said that they were victims of age discrimination in being required to join the 2015 scheme without the option to remain in their previous legacy schemes, which were supposedly more favourable. The challenge succeeded in the McCloud case in 2018 so, after various consultations and actions, Parliament passed the Public Service Pensions and Judicial Offices Act in 2022; in effect, it remedied the McCloud judgment by giving everyone the option to choose between their previous legacy scheme and the 2015 scheme. I understand that around 3,000 judges were affected by the McCloud judgment and that the process of allowing them the option to choose is currently in train and is so far proceeding according to plan. However, a group that apparently numbers between 30 and 50 judges has a particular situation: largely prior to the McCloud judgment, they made payments into the 2015 scheme. Typically, it was top-up payments, pension transfer payments or other supplementary payments.

However, as it turns out, through the effect of the McCloud judgment and what is thought to be the effect of Section 61 of the Equality Act, they were never technically in the 2015 scheme. In law, they always remained in their legacy schemes, so what is the status of the payments that were made into the 2015 scheme to which these judges did not, in law, belong? It is simply to correct that issue that these regulations are being put before your Lordships.

Effectively, the regulations simply say—one sees it in particular on page 2 of the regulations in the new Regulation 38A, which is introduced into the 2023 regulations—that the value payments made into the scheme are referred to as purported value payments and are to be treated as having been received by the scheme. Although there was doubt about whether they could be received by the scheme, this now deems them to be treated as having been received by the scheme. There are similar parallel provisions in relation to the various kinds of transfer payments that we are referring to.

That is, as I understand it, the essential purpose of these regulations: simply to tidy up a point. I have to say that it is not a particularly clear point, but the Government feel they should make assurance doubly sure by putting that matter beyond argument.

Finally, another group of judges numbering no more than three, I gather, benefit from an earlier judgment—the O’Brien judgment—which said that fee-paid judges were actually entitled to a pension. Those judges similarly made some payments into the 2015 scheme and the question is about the exact status of those payments. These regulations again provide that those payments are deemed to be in the 2015 scheme. I know there is a famous phrase that we have too much damned deeming going on in the legal system, but this is simply there to clarify the position.

Unless I have omitted some fundamental point or made any misstatement, that is the essential purpose of the regulations and I beg to move.

[Lord McNally (LD)]

My Lords, it is a great pleasure to follow the noble and learned Lord, Lord Bellamy. I held his position in the Government between 2010 and 2013. I became Minister of State at Justice with the now noble Lord, Lord Clarke—Ken Clarke—as Lord Chancellor. One of our first visits was to go across Parliament Square to pay a courtesy call on the Supreme Court. He was, of course, in his element as a QC and a former Home Secretary, but I was filled with trepidation when soon after we arrived three Supreme Court judges bore down on me, clearly to seek some discussion on some high point of law—some difficult and abstruse point. I need not have worried: what they wanted to press me on was judicial pensions. There was some passion in that. I remember one of the first stages in the coalition Government, which probably ended up in the 2015 Act, was to try to address the various anomalies and uncertainties in judicial pensions, so it is with a sense of closure that I come this afternoon to support what the noble and learned Lord memorably described at an earlier stage as

“44 pages of the densest technical complexity one could imagine”.—[Official Report, 15/6/23; col. GC 375.]

Why am I not surprised that that should be the legislation dealing with judges’ pensions?

I am sure that we share with the Minister the hope that this is the final tweak to the regulations. In voicing our support from these Benches, I ask him how the regulations fit in with the more general objectives of judicial reform. Will we see a judiciary—particularly a senior judiciary—more diverse in social, gender, ethnic and educational background than hitherto has been the case? Does the Minister agree that it is important that our legal system should as much as possible reflect the society it serves? There is much to admire in the intellectual quality, integrity and independence of our judiciary. Its members are most certainly not “enemies of the people”, but they must not be seen as a Brahmin caste, separate from society as a whole.

The direction of travel in recent years has been slow but steady. I hope that a sensible and secure pension scheme will underpin the flexibility and social mobility necessary to retain confidence in and respect for our judiciary.

--- Later in debate ---

[Lord Ponsonby of Shulbrede (Lab)]

Well, one of my roles is to be a lot of trouble—although I will not be a lot of trouble in this particular debate.

The noble Lord spoke about the Supreme Court judges talking with passion about judicial pensions. As a lowly magistrate, I have sat in magistrates’ retiring rooms with district judges, and I can say that they talk with equal passion about judicial pensions—I have heard about it for a number of years. A number of them are of course part-time district judges, and the matter is of great importance to them.

The noble Lord said that he approaches this debate with “a sense of closure”. I think that everybody hopes for a sense of closure on this issue, so the first question that I put to the Minister is: are we right to think that this is the last time that we will hear about this issue? It would be interesting to hear his reflection on that.

Previously when I have taken part in these debates, I have had sitting behind me my noble friend Lord Davies of Brixton, who is an actuary and an expert on these matters. The particularly interesting question that the noble Lord, Lord McNally, raised was on how these pension reforms will fit in with the wider objectives for the judiciary as a whole in building diversity and flexibility and other desirable objectives, which will affect pension entitlements, one way or another. If the Minister could say something about this in the wider context, that would also be of interest.

I have a further question about the likely timetable for implementing this remedy. Is it already under way and when might it be complete? A final question is on whether any judges would need independent advice on whether they should accept these proposals. Is it their responsibility to get their own independent advice? I do not know how that works. Is there an expectation that judges should take independent advice before receiving these pensions?

Other than that, we clearly support the measures as far as they go. I look forward to the Minister’s response.

[Lord Bellamy (Con)]

My Lords, I thank noble Lords for those remarks. I respectfully tiptoe in the distinguished shoes of the noble Lord, Lord McNally—let me make it absolutely clear: he was one of the most astounding Ministers in the ministry for many a long year. The Government entirely accept and support the sentiments he expressed that the judiciary should reflect as fully as possible the society it serves. There is still a way to go on that, and we may well touch on it in the debate on the next statutory instrument, where I have some observations to make on that very point.

All I can say from a pensions perspective is that it is important to be able to attract very good people into our judiciary. We increasingly call on them to do very difficult and demanding work. The judicial pension scheme is aimed at being a secure and attractive scheme sufficient to ensure that we attract a competent, robust and diverse judiciary. It is difficult for the Government to go beyond that but, clearly, this has to be a part of the general move to make sure that we have a sufficiently diverse and competent judiciary. As far as that general point is concerned, it is indeed a matter of ongoing concern to the judges that that should be the case, as both noble Lords said.

In relation to the points raised by the noble Lord, Lord Ponsonby, I hope—again—that we will now see the end of these processes and that we have now got it right. As your Lordships will appreciate, it is a fiendishly complicated area. It has been complicated by some quite intense litigation in the background. Judges may well want to take independent advice, but the judiciary has shown no lack of either independence or knowledge about the pension arrangements in the various fora in which that has been debated. It is partly because of the detail into which the Government have had to go that these statutory instruments have been introduced. I understand that the timetable for implementation is in the next few months. It is rolling forward and there should be no further difficulty; we very much hope that the end is in sight.

I hope that I have answered your Lordships’ questions and points. I see that the noble Lord, Lord Ponsonby, is quickly refreshing his notes. I commend these regulations to the Committee.

Motion agreed.

Arbitration Bill [HL]

Lord Bellamy Excerpts

Second reading committee
Tuesday 19th December 2023 Grand Committee

Moved by

[Lord Bellamy]

That the Committee do consider the Bill.

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

My Lords, as our learned Chairman has just indicated, the procedure is, as I understand it, that we will formally move a Motion for Second Reading on the Floor of the Chamber after this debate and then I will move a Motion that the Bill be referred to a Special Public Bill Committee for further consideration. It is a kind of hybrid Bill procedure because this is a Law Commission Bill following the Law Commission report of 5 September 2023, which contained a draft Bill.

I should say at the outset that there are two changes to the draft Bill presented by the Law Commission. First, Clause 1(3) of the Law Commission version provided that the Bill would not apply to any existing arbitration agreement. That caused a certain amount of concern because there are many thousands of existing arbitration agreements going back many years and, if that situation had prevailed, we would have had a dual system for a very long time, as old arbitration agreements became subject to arbitration. The Bill now provides that its changes do not apply to arbitrations that have already commenced, as distinct from existing arbitration agreements. I have taken the precaution of checking with the law officers that that is regarded as satisfactory and that it is in line with earlier precedent in relation to the Arbitration Act 1996, which this Bill amends. That is the first point.

The second point is that the Bill now extends to Northern Ireland, which is thought to be consistent with policy. It does not extend to Scotland, as the noble and learned Lord, Lord Hope of Craighead, well knows. Scotland has its own regime under the Arbitration (Scotland) Act 2010.

Following those introductory comments, I will briefly take your Lordships through the Bill, conscious as I am that almost everyone in the Room knows much more about it than I do. I have a certain sense of déjà vu, as this is not unlike appearing once again in front of the Supreme Court, or the House of Lords as it was, considering the galaxy of knowledge and experience that we have before us this afternoon. Your Lordships well know that the arbitral process is of great importance and value, particularly to the commercial community of this country, which is a most important centre for international arbitration. Arbitration is a method of resolving disputes to which the parties willingly submit and, in the Government’s view, it should be promoted and kept up to date.

The background to this Bill is the decision by the Lord Chancellor in 2021 to ask the Law Commission to review the Arbitration Act 1996, which contains the present law—I know that certain noble Lords, notably the noble Lord, Lord Hacking, go back well before that and have lived this development over many years. The 1996 Act contains a thorough code of the principles and practice of arbitration in this country. This Bill is intended to bring that structure and framework up to date and ensure that we remain abreast of international developments and that London and these jurisdictions remain competitive on the international scene. Arbitrations in England and Wales generate some £2.5 billion annually in arbitral and legal aid fees alone and in 2021, according to the Law Commission, London was the world’s most popular seat for international commercial arbitration, notably in banking, insurance, trade and other businesses.

Your Lordships will be very familiar with the provisions of the Bill, but I will briefly summarise them. Clause 1 provides that the law governing the arbitration will, unless the parties agree otherwise, be the law of the seat of arbitration. As noble Lords know—I will try to get this completely right—in contractual disputes, the contractual liability will normally be determined by the proper law of the contract, but the contract may provide that the arbitration be elsewhere. A contract may be governed by Russian law but have arbitration in London. In that event, what is known as the curial or supervisory jurisdiction is governed by English law; for example, whether an arbitrator should be removed or to which court some challenge to the arbitral award may be made will be the subject of the law of the seat—in that example, English law.

However, suppose the question is whether the dispute is within the agreement to arbitrate in the first place. In my example, would it be governed by the Russian law of the contract or the English law of the seat? This question has exercised the courts over many years and there have been different views and decisions. In Enka v Chubb in 2020, the Supreme Court, in a split 3:2 decision, arrived at a somewhat complex test for deciding exactly which law governed the agreement to arbitrate. That gave rise, among other things, to a desire for certainty and a clear and simple rule. That simple rule is now provided in Clause 1, which provides that it would normally be the law of the seat unless the parties agree otherwise.

My understanding is that that is already in line with certain standard arbitration agreements and the rules of bodies that provide arbitration services. That is the essential provision of Clause 1. As I am sure the noble and learned Lord, Lord Hope of Craighead, is well aware, England, Wales and Northern Ireland will thereby align with Scotland, so we will have a common position across the four jurisdictions.

Clause 2 provides a statutory duty on arbitrators to disclose circumstances that might reasonably give rise to justifiable doubts as to their impartiality, to maintain the integrity of arbitration in this country. There have been some well-publicised incidents, as a result of which it should be put beyond doubt that arbitrators have a full duty to disclose anything that may reasonably give rise to justifiable doubts as to their impartiality.

Clauses 2 and 3 support arbitrators in making impartial and proper decisions without fear that they might incur some personal liability. In the case of an application for the removal of an arbitrator, Clause 3 provides that the arbitrator will not be liable personally for costs unless they have acted in bad faith. Clause 4 provides that an arbitrator will not be liable for resigning unless the resignation is shown by a complainant to be unreasonable. Those provisions effectively support the independence of arbitrators.

Clauses 5 and 6 deal with jurisdiction. Under Clause 5, if there is a challenge to the tribunal’s jurisdiction on which the tribunal has already ruled, the losing party cannot go directly to the court on a preliminary point to challenge that; it must await the final arbitral award and then make that challenge under Section 67. That in effect rules out earlier challenges to the court on jurisdiction.

Clause 6 clears up something of a mystery: when an arbitral tribunal decides that it has no jurisdiction, does it none the less have jurisdiction to award costs? Clause 6 provides that it does; there is a power to award costs even if the arbitral tribunal has found that it has no jurisdiction over the dispute in question. Clause 7 effectively replicates the summary judgment procedures available in the court and empowers arbitrators to make an award on a summary basis if a particular issue has no real prospect of success.

Clauses 8 and 9 pertain to the powers of the court. Clause 8 empowers it to make court orders reinforcing the orders of emergency arbitrators. These powers already exist in relation to normal arbitrators, but on occasion emergency arbitrators are appointed, so this makes sure that the existing powers to issue court orders apply equally where there is an emergency arbitrator. Clause 9—again, similarly to normal court proceedings—entitles arbitrators to make orders in support of arbitral proceedings against third parties, most likely banks that may be holding relevant funds. That provision resolves a certain conflict in the case law and aligns the position of arbitral proceedings with that in court proceedings.

Clause 10 is essentially a tidying-up measure. There are various bases for challenging an arbitral award in the 1996 Act: Section 67 for lack of jurisdiction, Section 68 for serious irregularity or Section 69 for a point of law. Clause 10 ensures that, where there is a challenge under Section 67 for lack of jurisdiction, the remedies available to the court are the same as they would be were the challenge under Sections 68 or 69, to bring a certain degree of consistency across the three main ways of challenging arbitral awards.

Under Clause 11, if an arbitral party applies to the court to challenge an arbitral award on the basis that the tribunal had no jurisdiction under Section 67, that challenge should not be a full rehearing with new evidence and arguments—it should, in effect, be decided on the existing record so that the court does not have to restart or do the whole thing afresh on the basis of the challenge to the jurisdiction of the tribunal. That will streamline and simplify the operation of such challenges.

There are then some quite short, technical provisions. Clause 12 clarifies certain time limits. Clause 13 codifies the law in relation to the staying of legal proceedings and Clause 14 streamlines the process of applying to the court under the 1996 Act for certain preliminary rulings on jurisdiction and points of law. Clause 15 repeals certain sections that have never been brought into force and are therefore redundant.

That is a very brief outline. I am not sure whether it was a fast trot or a slow canter. Your Lordships are much more familiar with this area than I am. The Bill is intended to increase the competitiveness of England, Wales and Northern Ireland, and primarily London, as a seat of international arbitration, to foster growth in both domestic and international arbitration, to introduce a fairer and more efficient process and to reduce reliance on resort to the court. I beg to move.

--- Later in debate ---

[Lord Bellamy (Con)]

My Lords, I thank all noble Lords and noble and learned Lords for their contributions to this debate, in particular for the broad welcome that the Bill has received from the Committee. I take it on myself—authorised, if I may, on behalf of this Committee —to pass on our warm thanks to the Law Commission and its team, one of whose representatives are here, for the extraordinary work that has been done on the Bill, and indeed to all those who participated in the consultation. As has been said, it is a model of its kind. All legislation should aspire to reach this kind of standard. That is the first thing I need to say.

Secondly, I also warmly congratulate the noble Lord, Lord Hacking, on his tour de force, going back to 1698—almost as if he was there in 1698, though not quite perhaps—and thank Mr Landau for coming today and blazing an earlier trail, in which we follow with diffidence as the years go by. We are well aware of the points he made on the importance of achieving a good balance between the courts and arbitration on the one hand, and promoting arbitration in this country and pursuing that objective, as the Law Society has today underlined.

With those introductory comments, perhaps I could deal briefly with at least some of the points that have been made, bearing in mind that we still have the Public Bill Committee to come; further points can, of course, be raised then. The equality point, raised by the noble and learned Lord, Lord Etherton, and commented on by the noble Lord, Lord Verdirame, is a difficult one. The Law Commission decided not to proceed to do anything about it but it is something that we can, of course, keep under review. When the Equality Act next comes up for consideration, I anticipate that this point would need to be addressed.

The noble Lord, Lord Faulks, raised the Nigeria case and the tension inherent in arbitration between privacy and transparency. I will make two points about that case. First, in a sense, it established that London is capable of dealing with this kind of fraud, because there was a judge who was able to expose it, and a procedure and, in the end, it was demonstrated that the supervisory jurisdiction in England and Wales works very well.

Secondly, I agree with the noble and learned Lord, Lord Thomas of Cwmgiedd, that it was almost certainly a one-off—a quite extraordinary exception to the general rule. However, the Government ought to take under advisement whether we should do anything to further establish or reinforce what is undoubtedly the case—that London is clean, to use the word of the noble and learned Lord. With the co-operation of the professions, we ought to quietly establish whether anything further should be done to ensure that that is indeed the case. However, it was a disturbing case and, as the noble and learned Lord, Lord Thomas, observed, question marks remain in some cases, over some aspects of the legal profession in relation to SLAPPS, transparency and so forth. In some areas, further consideration may be necessary in due course.

I am glad that the issue with the words “of itself” in new Section 6A(2) has been drawn to the Government’s attention. Again, we should reflect on that. I think that I understand what the draftsman is driving at, but perhaps we should embark on further amendment to that section and whether it is necessary—perhaps we should consider that further.

The noble and learned Lord, Lord Mance, raised the issue of the review under Clause 11 and the whole question of what the rules of court should do and how far they should go. That may link back to our earlier discussion about the Nigeria case, because this is the court taking a very active review role. No doubt there will be a consultation in due course on the rules of court, and it will be important to bear in mind the points made today.

Those were the main points raised. The noble Lord, Lord Ponsonby, asked whether we planned to have an assessment in a year or two. That is a little far ahead for the Government to be looking at the moment.

[Noble Lords]

Oh!

[Lord Bellamy (Con)]

However, this is an area where Governments, the profession and practitioners are constantly aware of the need for London to be competitive, fair, open and transparent and to prosper. As the years pass, this will be reviewed over time to ensure that London remains competitive by the natural play of market forces.

I think I have covered the main points raised. I thank all noble Lords for their contributions.

[Lord Hacking (Lab)]

Could I draw the Minister’s attention to Section 61 of the 1996 Act, which the Law Commission has not pronounced upon? This is the section on the power of the arbitrators to award costs, and how they should do so. Section 61(2) says that

“the tribunal shall award costs on the general principle that costs should follow the event”.

That is the regular jargon used in cases conducted before our law courts. At the very end of the case, the winning party gets up and asks the judge to award costs following the event—namely, that that party has won and therefore the other party should pay all the costs. That goes to the point that I was making that this should be a promotional Act, attractive to those from overseas—and how are those overseas persons meant to know or understand what

“costs should follow the event”

means?

It is more complicated than that. This came out in two cases, both under the jurisdiction of the wonderful Law Lord, Tom Bingham. When he was a mere Mr Justice, he did the case of “Catherine” in 1982—and then, when he was the Lord Justice of Appeal, he presided on the Norwegian Cruise case of April 1988. In both those cases, he did not follow the normal rule of costs following the event, because in both those cases the winning party had taken up excessive time on matters that it lost in the dispute. Therefore, it is not so simple as costs following the event and the loser paying.

What I suggest concerning this clause is that we take the opportunity during the passage of the Bill to remove that phrase and leave it as a simple judgment of the arbitrator or arbitrators—what is the fair order on costs that that they should make.

[Lord Bellamy (Con)]

My Lords, I thank the noble Lord, Lord Hacking, for that intervention. As far as I know, the Law Commission did not consider that specific question, so I am not entirely sure, as of now when I am on my feet, to what extent we should widen the debate in the context of this particular Bill. But I shall take his point back and further consider it, and see whether the Government have a position on the point that he very strongly makes.

Motion agreed.

Victims and Prisoners Bill

Lord Bellamy Excerpts

2nd reading
Monday 18th December 2023 Lords Chamber

Moved by

[Lord Bellamy]

That the Bill be now read a second time.

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

My Lords, in opening this important debate, I first express the Government’s warm thanks to all those who have contributed to this Bill’s engender, notably the many organisations and individuals who have responded to consultations or made representations, successive Lord Chancellors—not least the right honourable Sir Robert Buckland KC MP and the right honourable Dominic Raab MP—and many honourable Members on both sides in the other place who have worked to improve this Bill in its passage through Parliament.

I venture to suggest that most of the issues before us are not in essence party political. I trust and hope that the general direction of this Bill, which aims to enhance and protect the position of victims in the justice system in its widest sense, will command broad support across the House. We will, I anticipate, be mainly considering the means rather than the ends. I would like to say at the outset that my door is always open to any noble Lord who would like to discuss these issues in more detail as our debates proceed. In anticipating a full and constructive debate, I particularly congratulate the noble Baroness, Lady Newlove, on her re-appointment as the Victims’ Commissioner, and much look forward to her contribution to our work.

I turn then to substance and will take the main highlights of the Bill in sequence. Part 1 further enhances the positions of victims of criminal conduct—widely defined under Clause 1—in two main respects. One is the victims’ code and the other is victim support services. First, there are important improvements to the effectiveness of the existing victims’ code, which sets out what victims are entitled to expect from the criminal justice system, as last updated and improved by this Government in 2021. The principles underlying the victims’ code are now set in statute for the first time—that is in Clause 2. Clause 6 requires the police, the CPS and other criminal justice bodies to promote awareness of the code and to keep under review how victims’ services are provided. Clause 7 requires police and crime commissioners to oversee those victims’ services and to report their findings to the Secretary of State, who in turn must publish compliance information, so that all may see how their local area is performing. This combination of enhanced statutory duties on the one hand and significantly increased transparency on the other hand will secure that victims are aware of their rights and that the victims’ code is even more effective.

Secondly, on the important question of victims’ support services, Clauses 12 and 13 require the local police, local integrated care boards—namely, the National Health Service—and local authorities to collaborate to prepare and publish a strategy for delivering victims’ support services in their area as regards criminal conduct consisting of domestic abuse, sexual conduct or serious violence. They must assess the needs of their area and indicate whether they are met. Again, those strategies must be published.

In essence, this is an anti-silo provision. Experience shows that a number of agencies operating locally do not always join up sufficiently, and they certainly do not, on the whole, develop joint strategies. The provisions are designed to break down silos and to foster join-up and transparency. They should lead to better planning, better provision of vital services and the identifying and filling of any gaps.

On a related point, victims are sometimes discouraged from coming forward for fear of intrusive investigation of their personal lives. Clauses 24 and 25 now limit requests by the police to obtain information about victims from other authorities—for example, information relating to the victim’s health, notes of therapies, et cetera—which might be used to discredit the victim in court. Those requests must now be limited to what is necessary and proportionate. This aims to curtail what has sometimes been an intrusive investigative overreach in the past.

The measures on victims in general in Part 1 are underpinned by the enhanced role of the Victims’ Commissioner, whose reports must be laid before Parliament and whose recommendations relevant authorities must publicly respond to. Further powers of joint inspection by His Majesty’s Chief Inspector of Constabulary, Chief Inspector of the CPS and Chief Inspector of Probation will further ensure that these measures take effect. In addition, there is the right of victims to go directly to the parliamentary ombudsman, rather than through their MP, as is the case at present.

All that reinforces what I hope your Lordships will see as a comprehensive effort to improve the position of victims, which is entirely in line with, and takes forward, this Government’s related work in recent years. That includes the Domestic Abuse Act 2021; the creation of the office of the domestic abuse commissioner, who, in the respected person of Nicole Jacobs, is already making a substantial mark; measures such as allowing pre-recorded cross-examinations so that the victim does not have to face the offender in court; the introduction of independent domestic violence and sexual violence advisers, about which the Bill provides further guidance in Clause 15; an increase in the money for victims’ support, which is now £140 million by 2024-25; and several other measures. No one who watched the dignified statements made by the family of Sarah Everard can be in any doubt of the importance of placing victims at the heart of our justice system.

That in essence covers Part 1 on victims. Taking the Bill in sequence, I move to a very specific victim situation: where one parent has killed the other. In response to calls for what has been called Jade’s law, Clauses 16 and 17 broadly provide that, where one parent is convicted of the murder of the other, the criminal court must, in most circumstances, make a prohibited steps order removing parental responsibility from the surviving, offending parent. The local authority, in whose area the child resides, must apply within 14 days to the family court to review that order. In other words, the last word will lie with the family court, which is bound to consider the welfare of the child as the paramount consideration.

I have spoken so far of provisions that typically affect a single victim or a small number of victims. Part 2 of the Bill moves to the situation where we have multiple victims, where there has been a major incident, and noble Lords will of course have well in mind Manchester Arena, Grenfell, Hillsborough and similar cases. Part 2 creates what has become known as an independent public advocate, or IPA, appointed where groups, very often large groups, of victims are affected by a major incident. It has become only too apparent that in the aftermath of such incidents, victims have nowhere to turn, no one to give them information and no one to deal with their needs or answer their questions. These provisions fill that gap.

Following government amendments during the passage of the Bill, the Government will appoint a standing advocate to advise the Secretary of State on the interests of victims of major incidents and their treatment by public authorities and submit and publish annual reports. These functions include advising the Secretary of State on what sort of inquiry should be held. Where there is a major incident, the Secretary of State may further appoint the standing advocate or another appointed advocate to carry out the functions indicated in Clause 33, which are: to support victims in the aftermath of that incident, in particular in relation to any subsequent inquest or inquiry; to help them understand the actions of the public authorities; to ensure victims’ views may be taken into account; and to provide support or advice to them, communicate with public authorities on their behalf, and assist them to obtain access to documents.

The broad idea is that the advocate will not themselves carry on a legal activity but can help and guide victims as to their immediate needs, how to get advice and/or legal aid and what sort of processes to expect. They can answer their questions and help them get answers to their questions from the relevant public authority, as well as advise as to what questions need to be addressed or raised before any inquest or inquiry.

An important aspect of this is that in advising the Secretary of State on the treatment of victims by public authorities, the standing advocate will be able to hold public authorities to account in relation to the Hillsborough charter, which, as your Lordships know, was signed by the Government on 6 December as part of the Government’s response to Bishop Jones’ Hillsborough report. On that day, the Lord Chancellor made a Statement in the other place setting out the Government’s response, which I repeated in this House that evening. The charter sets out in detail how public authorities are to behave, in particular putting the public interest ahead of the interests of their own organisation. I pay tribute to the noble Lord, Lord Wills, and many others in pressing for this reform—in particular, of course, the Hillsborough families, who have endured so much and whom I trust we all salute.

I come to Part 3 and Clause 40, inserted in the other place on Report, which provides for the setting up of a public body to administer compensation to yet another group of victims: those affected by the infected blood scandal. I understand that a Statement is being made in the other place at this very moment by my right honourable friend the Minister for the Cabinet Office and Paymaster-General, and I further understand that that Statement will be repeated in this House tomorrow by my noble friend Lady Neville-Rolfe. I think that in those circumstances, I should leave that matter there for the moment. I am sure we will return to it in Committee. I am also glad to tell the House that my noble friend Lord Howe will be assisting us on this aspect of the Bill.

I turn finally to the “prisoners” part of the Bill, Part 4, although I suggest respectfully that this part of the Bill is as much about victims as it is about prisoners. We should approach this part of the Bill from a victim’s perspective. This part has the following aspects. First, there is the public protection test, to be applied where the Parole Board is considering the release of a prisoner eligible to be released on licence. Under the existing law, which is in the Crime (Sentences) Act 1997, the Parole Board must be satisfied that

“it is no longer necessary for the protection of the public that the prisoner should be confined”.

Clauses 41 and 42 of this Bill strengthen that principle by providing that the public protection test is met only if there is

“no more than a minimal risk”

that, if released,

“the prisoner would commit a further offence … which would cause serious harm”.

Serious harm is defined as the commission of one of the serious offences listed in Schedule 18B to the Criminal Justice Act 2003. This approach effectively tightens up the public protection test to be applied both to recognise public concern and, as importantly, to protect future victims.

Secondly, Clause 44 introduces a new procedure for the release by the Parole Board of prisoners convicted of murder, unlawful child death, terrorism, rape or rape of a child. If the Parole Board directs the release of such a prisoner, and the Secretary of State considers that such a release

“would be likely to undermine public confidence”

and that the Upper Tribunal might consider that the release test was not satisfied, the Secretary of State may refer the case to the Upper Tribunal for a further judicial consideration of whether the release test is, in fact, met. We saw only three days ago that a double murderer, Lawrence Bierton, was released again and then killed for a third time, having been released on licence. This new mechanism is aimed at that kind of case to protect victims—notably future victims—and ensure public confidence in the system.

Other provisions affecting the Parole Board include the inclusion of persons with law enforcement experience on Parole Board panels and provisions that the chair of the Parole Board should not sit on individual decisions and that the latter is removable by the Secretary of State in the event of a loss of public confidence.

I turn now to IPP prisoners, dealt with in Clause 48. Noble Lords will know of the difficulties arising from those imprisoned under IPP sentences, which were abolished in December 2012. They were described by the present Lord Chancellor as

“a stain on the justice system”.

At the same time, this issue poses an acute conflict between, on the one hand, the situation of the individual prisoner and, on the other hand, the protection of the public.

Any Government have to focus on the risk to public safety and the risk to future victims. In broad terms, the total number of IPP sentences ever imposed was just over 8,000. The present situation is that approximately 1,270 prisoners have never been released, and almost all have now served their original tariff. The only reason they have not been released is that the Parole Board has determined, often on several occasions, that they are not safe to be released. However, if an IPP prisoner is released on licence, under the existing law 10 years must elapse before they can apply to the Parole Board to determine that licence. There are about 3,100 prisoners on licence in the community and a further 2,920 have been recalled to prison. Sadly, there are 23 prisoners in secure hospitals.

The effect of Clause 48 is fourfold. First, the period before which an offender may be considered for licence termination is reduced from 10 years to three years from first release. Secondly, that three-year period does not reset in the event of a recall, so even if recalled a prisoner may, as it were, bank those three years from the date of first release. Thirdly, after those three years there is a presumption that the licence should be terminated. Fourthly, even if the Parole Board rebuts that presumption and maintains the licence, it automatically terminates after a further two-year period if the offender can do a further two years in the community without being recalled.

I know that this sounds rather complex but, in broad terms, the result is expected to be that over the next couple of years or so, the licences of the majority of those who are currently in the community will terminate. Many will terminate as soon as this Bill becomes law. For many if not most of the recalled population, when they are next released by the Parole Board, their licence will terminate after two years if there is no intervening recall. For those still in prison who have never been released—admittedly, a most difficult group but one that includes many violent and sexual offenders—there is now a detailed action plan by HMPPS that is much more specific to each prisoner, overseen by a specific IPP progression board and involving an external challenge group. The latter consists of representatives of the families, some of whom I have met together with the right honourable Damian Hinds, the Prisons Minister at the time. The relevant prison authorities will work on a bespoke sentence plan for each remaining prisoner as well as supporting those on licence in the community. I hope that your Lordships will see this twin-track approach—additional support for the unreleased and a substantial relaxation of the licence arrangements for those in the community—as marked progress in this difficult area.

Finally on prisoners, Clauses 55 and 56 prevent whole-life prisoners marrying or entering into a civil partnership unless exceptional circumstances exist. This is in response to a recent case in which surviving families of the victim of a most serious murder were openly mocked by the convicted offender, who trumpeted his right to marry, causing distress to many.

In conclusion, I hope your Lordships will accept that this is a balanced Bill that substantially enhances the position of victims in our system. After all, any one of us may have been, or may one day be, a victim. I commend this Bill to your Lordships, and I beg to move.

--- Later in debate ---

[Lord Bellamy (Con)]

My Lords, I thank all noble Lords for their contributions. I congratulate the noble Lord, Lord Carter of Haslemere, on his magnificent maiden speech. I hope your Lordships will forgive me but, following a five and half hour debate at a relatively high level, I do not wish to close my door now, having previously said it will remain open, by being too definitive on the various points we have discussed.

I will take briefly three points. First, I will have to come back to the issue of legislative consent, and we will need to explore it further, given the inter-relationship between the various authorities and responsibilities. I acknowledge the existence of that issue. Secondly, on the impact assessment, about which certain comments have been made, I have gathered during the debate that it probably needs to be looked at again and perhaps revised and expanded. That is another task to be completed. Thirdly, I gather that at Report stage in the Commons the Government gave an undertaking that restorative justice would form part of further guidance to the relevant authorities when commissioning various services. At the moment, that is as far as I can take the issue of restorative justice, important though it is.

Having made those preliminary points, I also add a brief word on scope. The Bill does not deal with what could be described as purely operational decisions by the police, such as the failure to make an arrest or not turning up to a domestic burglary or something of that kind. That is for another way of complaint, through the police complaints systems. The Bill does not address the difficult problems victims experience simply because there is a backlog in the criminal justice system. That is for another day. It also does not address—and I do not think it would be in scope to address—certain points made in this debate about sentencing and how we come to sentence offenders.

The first group of points made is about Part 1 and victims, with the essential point being that the Bill does not go far enough. In the Government’s view, the Bill goes a very long way. It is not just a gentle nudge, as has been suggested; it is a tremendous shove in favour of victims. It combines real efforts to change culture, greatly improve transparency and give proper statutory duties to various bodies, including police and crime commissioners and others, to get this organised. It requires cross co-operation and involves further resources.

As I think I said in opening, we have quadrupled the money available to victim services over the last few years. I take entirely the points made by, for example, the noble Lord, Lord Bach, that further clarification and development of these ideas could be very helpful. Others have said that bodies such as the Metropolitan Police, for example, would welcome further guidance, clarity and work on exactly how we can make this structure effective.

I think we all agree that we want to make an effective structure; the question is how to get there. At the moment, at least, to bring in a rather blunt statutory duty—in effect, a law giving victims further rights to sue and to bring in more lawyers, more legal proceedings and so forth—is not the right way to go, in the Government’s view. We do not want more satellite litigation. The real issue is how we effect cultural change.

How do we get there? The Government’s position at the moment is that this structure provides a very positive basis for effecting that much-needed cultural change, not least through the existence of transparency and, for example, the power of the Secretary of State to publish where local areas are on all these things and the powers of local police and crime commissioners to invigorate their local communities in all these respects. In the Government’s view, that is the way to go.

In relation to victims, there have clearly been many—perfectly understandable—references to particular kinds of victims, notably children. I briefly point out that child victims of crime and exploitation are encompassed within the Bill’s definition of a victim, and child criminal exploitation is in fact defined in statutory guidance for front-line practitioners in publications such as Keeping Children Safe in Education and Working Together to Safeguard Children. However, the point that we need to think very hard about is how we protect child victims, and it is certainly a point we should jointly further reflect on and consider.

Indeed, in relation more generally to women and girls in the justice system, victims of domestic violence, stalking, grooming and anti-social behaviour, and persons whose first language is not English, those are all examples of particular victims that we need to make sure are encompassed within our remit. Proper attention should be given to those particular kinds of victims. Those points are well made and, if I may briefly use an Americanism, will be taken under advisement.

In broad outline, that is the victims part of the Bill. As far as the IPA is concerned, the Government’s position is that this is a major advance, particularly the creation of a standing advocate who can advise the Secretary of State and, when appointed on a major incident, “look after” the victims. At the moment the Government do not think that it is useful to give this standing advocate a sort of roving power to conduct their own inquiries or demand their own documents and so forth, because of the risk—among other things—of real duplication in major inquiries such as Manchester Arena, Hillsborough or Grenfell. We already have very effective procedures. Bishop Jones’s inquiry was very effective; it was a non-statutory inquiry set up by the Government, and it got to the bottom of things. The Government are not convinced that we need yet another operator operating in this area.

I think that my noble friend Lady Sanderson asked about smaller incidents. Let us take an incident such as the Shoreham air disaster, where 11 people were killed. Leaving to one side the question of whether that was a major incident, in that example there was the Air Accidents Investigation Branch, a criminal case and an inquest. Do we really need yet another body investigating, demanding documents and imposing more costs on the whole system? The Government are not yet convinced, certainly at this stage, that we should go any further than we have gone in the Bill, which is already a very long way. That is the general position of the Government at the moment.

I listened very carefully to noble Lords, particularly the noble Lord, Lord Meston, on the issue of parental responsibility and whether we should go further and include other cases. There are already procedures for effectively taking away, or at least hollowing out, parental responsibility that exist in family law in the family courts and the Government do not feel that we should go any further at the moment.

On infected blood, noble Lords will be able to ask questions of my noble friend Lady Neville-Rolfe tomorrow when she updates the House on the Government’s position. I have no doubt that we will come back to that in the fullness of time in Committee.

On IPP prisoners, the present proposals, I hope and trust, will deal quite effectively with prisoners who are currently in the community and who have a prospect of being released—I think they will deal with that. I think that we all recognise that our real problem is the hard core of about 1,200 prisoners who have not been released. It is very important to say that the Government have not given up on those prisoners. In the last two years, 400 prisoners who had not previously been released have been released. There is very detailed work going on in the Prison Service; I am very happy to share with noble Lords more detail about that, if it is of use. It relates to particular sentencing plans for particular prisoners, so that they have an individual sentencing plan for further support in the community when they are released, and for a much more active IPP progression programme. So we are still working towards the release of these prisoners when it is safe to do so. The Government currently see that as a much more sensible and justifiable approach than the alternative of the re-sentencing exercise.

As noble Lords know, the basic problem with the re-sentencing exercise is that you are raising expectations that people will be released. But the people we are dealing with have been found not to be safe to be released, so how are we going to tackle that? Are we going to take the view, “We’ll just release them”? As in the case of Mr Bierton that I mentioned in my opening speech, do we say “We don’t care whether further offences are committed by these highly dangerous people, we’re just going to release them because that is what justice demands”? The Government ask: what about future victims? What risks are you taking; is it worth the risk; can you take the risk? The Government are not prepared to take that risk. But they are prepared to work very hard for these prisoners, to give them at least some hope of an eventual release. That is the Government’s present position on these issues.

[Lord Moylan (Con)]

My Lords, it is with the greatest respect that I intervene on my noble and learned friend. I genuinely congratulate him and welcome his personal and very human engagement with this problem, which I know he has wrestled with the whole time he has been a Minister—I think it is fair to say that it has always been on his agenda. But I add, in fairness, that the Prison Service releases daily people into the community who would be assessed as dangerous if the Government had the option of retaining them in custody. That is because they have reached the end of a definitive sentence.

It is a risk that we have learned to manage. It does indeed occasionally go wrong—of course it does—and there are future victims; the point made by my noble and learned friend is not empty. However, we manage it. The fact is that of these people we are discussing, very few committed crimes that were egregiously heinous or violent, compared to many others who have, before and since, being given determinate sentences that see them released into the community at the end of that sentence, if not earlier.

[Lord Bellamy (Con)]

My Lords, my noble friend makes a perfectly fair debating point—and we are debating, so it is perfectly fair that he makes a debating point—but it is a debating point at the end of the day. The point is: are you prepared to take the risk of 1,200 dangerous people being released from prison? The Government are not prepared to take that risk. We can of course discuss it further, but I am just explaining what the Government’s position is: it is better to work with those prisoners to ensure that they are safe to release eventually.

That probably takes me on to the issue of public protection and related issues. First, perhaps I may clarify what seems to be a muddle that has arisen about the statement in the Bill that it is compatible with convention rights. The Bill is perfectly compatible with convention rights: it does not take away any convention rights at all. Section 3 of the Human Rights Act is a procedural provision only, which gives the court an—to use a neutral word—unusual power to reinterpret what Parliament has said in a manner that may not have been and probably was not Parliament’s original intention so as to render a particular provision compatible with the convention.

On the provision in the Bill disapplying Section 3, which at least one member of Sir Peter Gross’s commission thought we should get rid of, and on other parts of Section 3, Sir Peter himself recommended a rather complicated hierarchy of different ways of applying the section. It has been quite a difficult section to apply. Case law has gone all over the place over the years, although it has settled down more recently. It introduces uncertainty where the Government want to have certainty in this area: that this is the test for public protection for these prisoners, that is what Parliament has said, and that is the end of the matter.

If that was found to be incompatible with the convention in any case, hypothetically, the court would have to make a declaration of inapplicability, and Parliament would have to deal with it. But the underlying issue is the constitutional balance between the courts and Parliament. That is quite an issue, and it has not gone away, but that is how the Government understand this particular point.

As regards the question of the Parole Board and all the various provisions affecting it, it is worth making the point that when these very high-risk offenders are released, they live in the community. Who speaks for the people in the community who have to live with them? Are they represented at all in this system? The only person who can represent the interests of the community with whom released prisoners have to live is the Secretary of State. All we are doing is saying that if there is some doubt about the application of the public protection test, it is wise from the point of view of the system—

[Baroness Chakrabarti (Lab)]

I am sure that the noble and learned Lord understands the irony of that statement, set against his statement that victims’ rights should not be put on a statutory, enforceable footing.

[Lord Bellamy (Con)]

I am not sure that I entirely understood the noble Baroness’s point, but it is perfectly true that I am thinking—rather, the Government are thinking; I should not put it in personal terms—about the potential victims of people who have been released and the actual families of those who have suffered at the hands of the offender. We are simply saying that there might be some very high-profile cases where it is sensible for there to be a second judicial look. That is a very much modified position from the position originally in the Bill, but it is, I hope, a sensible one.

I have used up my time, but I hope that I have covered most things. I apologise to noble Lords whose specific points I have not met. Anyone is fully entitled to write to me or ask me questions and I will, of course, answer them. If I may just finish with the words of the right reverend Prelate the Bishop of Manchester, who was kind enough to say he was going to be kind to the Bill. Let us be kind to the Bill and—

[Baroness Brinton (LD)]

It is very generous of the Minister to say, as he has done with other Bills, that we should write to him with concerns, but given that he said at the start of his response that he was going to take a high-level approach, it might be helpful if he were to write to all of us about the issues we have raised. There might then be a subsequent correspondence. However, if we are thinking about tabling amendments, rather than waiting for us to write and say, I think he has most of our questions.

[Lord Bellamy (Con)]

I warmly thank the noble Baroness for that intervention. I will ask my officials to go through this debate, identify at least the principal questions and see whether we can write to the House on the various points that have been made.

On that note, given the season of the year in which we find ourselves, we may not quite have reached

“Peace on earth, and mercy mild, God and sinners reconciled”,

but I hope we have taken the matter forward. I beg to move.

Bill read a second time.

Moved by

[Lord Bellamy]

That the bill be committed to a Committee of the Whole House, and that it be an instruction to the Committee of the Whole House that they consider the bill in the following order:

Clauses 1 to 42, The Schedule, Clauses 43 to 62, Title.

Motion agreed.

Legal Services Act 2007 (Approved Regulator) Order 2023

Lord Bellamy Excerpts

Monday 18th December 2023 Lords Chamber

Moved by

[Lord Bellamy]

That the draft Order and Regulations laid before the House on 23 October be approved.

Relevant document: 1st Report from the Secondary Legislation Scrutiny Committee. Considered in Grand Committee on 12 December.

Motions agreed.

Legal Services Act 2007 (Approved Regulator) Order 2023

Lord Bellamy Excerpts

Tuesday 12th December 2023 Grand Committee

Moved by

[Lord Bellamy]

That the Grand Committee do consider the Legal Services Act 2007 (Approved Regulator) Order 2023.

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

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

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

[Lord Beith (LD)]

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

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

--- Later in debate ---

[Lord Ponsonby of Shulbrede (Lab)]

My Lords, the noble Lord, Lord Beith, has done much better than me, because I could not find anything of interest to say, so I will say nothing.

[Lord Bellamy (Con)]

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

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

[Lord Beith (LD)]

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

[Lord Bellamy (Con)]

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

Motion agreed.

Sentencing Act 2020 (Amendment of Schedule 21) Regulations 2023

Lord Bellamy Excerpts

Tuesday 12th December 2023 Grand Committee

Moved by

[Lord Bellamy]

That the Grand Committee do consider the Sentencing Act 2020 (Amendment of Schedule 21) Regulations 2023.

Relevant document: 1st Report from the Secondary Legislation Scrutiny Committee

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

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

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

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

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

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

[Lord Beith (LD)]

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

[Lord Bellamy (Con)]

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

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

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

[Lord Beith (LD)]

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

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

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

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

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

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

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

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

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

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

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

--- Later in debate ---

In conclusion, I will talk about sentence inflation. In fact, just before this session, I listened to the Lord Chancellor addressing the All-Party Parliamentary Group on Penal Affairs about his general approach. I think it is fair to say that everyone in the room thought it was a breath of fresh air compared to some recent previous Lords Chancellor. There are some very real and substantial problems within the wider prison estate, and there is a problem with overcrowding, of which we are well aware. I was comforted by the fact that the Lord Chancellor understands these problems very well. As I said, the Labour Party is happy to support these changes which we are talking about in this SI because it is right that the overwhelming importance of domestic violence should be acknowledged and properly reflected in sentencing guidelines. As the Minister said in opening—I will just repeat the stat he gave—one-quarter of all homicides in this country are domestic-related. That is a terrible fact, but I suspect it has not changed for many, many years, although it has been acknowledged more only in recent years.

[Lord Bellamy (Con)]

My Lords, I thank noble Lords for their important contributions. I venture to suggest that we all in many ways share an analysis of the nature of the problem and that we are working, I hope collaboratively, to arrive at solutions on very difficult issues.

I will deal in so far as I can with the various points made. I can tell your Lordships that there was a very full exchange with the Sentencing Council. As I understand, it was concerned among other things with exactly how “overkill” is defined, or that sort of point. The question is: how far should you go into all that in the Explanatory Memorandum? Maybe it was a bit skimpy; if so, the Government will take that very much into account. However, the Sentencing Council’s views have been fully taken into account and they are reflected in the instrument. I do not anticipate any disagreement from the Sentencing Council’s point of view with this statutory instrument.

Secondly, as both noble Lords have rightly said, these regulations do not in any way cut down the discretion of the judge in a particular case to consider all the circumstances that he thinks fit. They will always take into account all relevant circumstances, but they provide important statutory reinforcement of the approach that should be made in domestic homicide cases. As the noble Lord, Lord Ponsonby, rightly said, and as I think is common knowledge, we have had domestic violence cases as a substantial proportion of all murder cases for years and years—probably for centuries. However, we have become much better informed. I nearly said we have also become much better equipped, but I do not quite mean that; we have become much more able to understand the situation—I will put it like that—and draw appropriate conclusions than perhaps has been the case in the past.

As I think I said in opening, this is still work in progress. We are still working on aspects of this—on sentencing and, in due course, we will be working on aspects of the law of murder itself, whether we should have just one law for murder, or ways of distinguishing better between different circumstances. That, I think, is a question for another day.

On the general question of sentencing, I want to say, respectfully, that I acknowledge the force of the careful remarks made by the noble Lord, Lord Beith, on this issue. I think, respectfully, that today is not the day for a general debate on sentencing policy, but we have very difficult issues in this area. There are always the questions of public safety, deterrence and rehabilitation, but there are also questions of public outrage and anguish. How do we deal with those?

From a personal point of view, it is very nearly impossible to disregard public outrage and anguish as factors in the circumstances when the court comes to consider what it should do. That is a fact. We are certainly in a situation where, for some time now, sentences have been growing longer. That has produced pressures on the prison estate, which have been further complicated by Covid and by the increased numbers of police officers, who are arresting more people than they were before. We have all sorts of things to deal with. These are difficult matters, which will merit full debate on another occasion. I have endeavoured to deal as far as I can—otherwise, I hope your Lordships will forgive me—with the points made this afternoon. I commend this instrument to the Committee.

Motion agreed.