Rehabilitation of Offenders Act 1974 (Exceptions) (Amendment) (England and Wales) Order 2023

Lord Bellamy Excerpts

Tuesday 13th June 2023 Grand Committee

Moved by

[Lord Bellamy]

That the Grand Committee do consider the Rehabilitation of Offenders Act 1974 (Exceptions) (Amendment) (England and Wales) Order 2023.

Relevant document: 38th Report from the Secondary Legislation Scrutiny Committee

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

My Lords, I beg to move that the Committee has considered the statutory instrument to amend the Rehabilitation of Offenders Act 1974 (Exceptions) Order 1975 to add four occupations: chartered management accountants, fire and rescue authority employees, justice system intermediaries, as defined, and notaries public of England and Wales.

As your Lordships know, the Rehabilitation of Offenders Act 1974 governs the disclosure of cautions and convictions for most employment purposes. Under the Act, most convictions become spent following a specified period, which supports the rehabilitation of offenders, helping them to put their past behind them.

The exceptions order lists the categories of jobs where those protections are lifted so that individuals, if asked, are required to disclose spent convictions. There are certain jobs where more complete or relevant disclosure of an individual’s criminal record may be appropriate, particularly when we are dealing with financial matters, professional persons, vulnerable persons or young persons, among others. There is clearly a balance to be struck here between the rehabilitation of the offender and the protection of the public.

The order proposes to add four occupations to the exceptions order. First, it adds members of the Chartered Institute of Management Accountants—CIMA. This is related to the functions that they carry out, which are fundamentally based on trust and present a particular opportunity to cause harm to the public through abusing that trust. The order already includes most accountants but, for historical reasons, it does not yet include CIMA, whose members carry out very similar functions to those already carried out by chartered accountants. The addition has been requested by the institute itself and it already exists in Scotland, so in the Government’s view, it is entirely in line with the policy and intent behind the order in question.

The second category being added is employees of the fire and rescue service, where, in the Government’s view, there exists a clear case for change. The Independent Culture Review of London Fire Brigade contains some troubling findings, and recent reviews into fire and police culture have also revealed certain failings. That has been confirmed by a report by His Majesty’s Inspectorate of Constabulary and Fire & Rescue Services. It is important that we vet people we employ in our public services. Firefighters in particular come into contact with the public in certain circumstances, so it is right that they should be included.

The addition is particularly sought by the National Fire Chiefs Council, representatives of which, I gather, are present today. It asked that this change be made. In the Government’s view, this supports the ongoing reform of the fire and rescue service from a cultural and safety point of view, bearing in mind that firefighters in particular often attend schools or vulnerable persons’ homes and incidents or accidents as first responders, exercising statutory powers and helping to safeguard others. Therefore, it is only right that the fire and rescue service should be included. We hope that this will protect and enhance the reputation of our fire and rescue service employees, who are deeply trusted: we admire their courage and dedication to duty. In the Government’s view, this will enhance the trust that they must enjoy to carry out their roles effectively.

The third category being added is justice system intermediaries, whose role is essentially to enable communications with vulnerable witnesses and parties in police inquiries and court and tribunal proceedings, particularly those who assist the Ministry of Justice in the witness intermediary scheme or are appointed as intermediary advisers. Their participation is generally to help witnesses who are, for example, under 18 or suffering from some mental or physical disorder or impairment. These intermediaries are clearly in a position to have unsupervised access to vulnerable adults. In the context of their duties, they may have unsupervised access to children under the age of 18, and the role can involve discussions with vulnerable people concerning highly personal or sensitive matters, such as domestic or sexual abuse. The inclusion of such persons in this list will add to the safeguarding of the vulnerable people concerned and place the intermediary in a position of increased responsibility for the welfare of the vulnerable people. Again, that will increase trust in the system.

The fourth category being added is notaries. This is a quite different category. A notary—or notary public, to give the technical term—is a specialised lawyer who has undertaken further legal education and examination, and is typically responsible for certifying and authorising certain documents, particularly those relating to property deeds and other financial transactions, and to foreign court proceedings, foreign qualifications and the like. For those who enjoy the byways of history, notaries are still regulated by the Faculty Office of the Archbishop of Canterbury. Although most notaries are solicitors, they do not have to be. They attest the authenticity of documents, certify documents, take affidavits and swear oaths.

--- Later in debate ---

[Lord Ponsonby of Shulbrede (Lab)]

My Lords, the Opposition support this draft order. Supporting ex-offenders into employment is something that we must all endeavour to be better at, especially given the central role employment can play in preventing future offending. It is vital that our criminal records system does not unnecessarily trap people in the past when they are committed to reform and have stayed out of the offending cycle and rebuilt their career. However, the overriding concern when legislating in this area must always be the protection of the public.

The exemptions included in the 1975 order strike that proportionate balance because those areas of work, such as working with vulnerable individuals or potentially sensitive information, require a high degree of trust. We are satisfied that the proposed extensions to the 1975 order can be introduced while maintaining that vital proportionate balance. Given the culture that we have seen across some of our fire and rescue authorities, and the police, we must ensure that people are properly safeguarded. I am glad that representatives of the fire authorities are here today.

Justice system intermediaries have very high levels of responsibility for the vulnerable individuals they assist, including children, and they sometimes have unsupervised access to them. Notaries also frequently deal with vulnerable people and highly sensitive information, and it is right that individuals who undertake such work are subject to additional DBS scrutiny.

The relevant organisations are producing guidance to ensure that a proportionate approach is taken with regard to the disclosure of criminal records in these additional areas, to ensure that equality and individual privacy are upheld alongside public protection. What plans, if any, do the Government have to review this guidance to ensure that it is indeed proportionate, as the Minister emphasised, and drafted in line with the anticipated need of those professions, as recommended by the Secondary Legislation Scrutiny Committee?

Can the Minister share whether the draft order represents the extent of his department’s current intentions to change the criminal records system? Will he also inform us whether he has had any recent meetings with the organisation #FairChecks, or whether the Government have any plans further to reform in relation to its campaign about offences committed in childhood?

When preparing for this short debate, I reflected on my experience with the DBS system. As somebody who has worked all their life in private industry, I have never been checked in the DBS system. I have recruited many people and been recruited, I have been a company director and various other things, and I have never been checked. However, I have been checked by the DBS system as a magistrate and as a coach for my son’s sports clubs to make sure that I am a fit and proper person to carry out that coaching role. However, I have never had to jump that particular hurdle in my working life.

As the Minister said, this is a very live issue when one deals with youths, as I do as a magistrate. It is not unusual for me to have a youth in front of me who says that he aspires to being a football coach. Of course, if you are a football coach you will be coaching youths, which requires the highest level of DBS check. It is not necessarily a bar, but it is the highest level. When I sentence youths, I want to encourage them to go on to fulfil their ambition, if it is to be a football coach. While on the one hand we support these enhanced safeguards, I hope they will not be a bar on people fulfilling their ambitions. The fear is that these enhanced checks will act as a disincentive for people to go ahead and apply for certain types of roles, such as the example I gave.

I hope the Minister can expand a little further on what the Ministry of Justice is seeking to do with a wider review of the whole DBS system, and how it could be thorough on the one hand but on the other proportionate to the aspirations of people who seek to get a job as a firefighter, as in his example, or, as in my example, a youth who wants to be a football coach. The system is very cumbersome. The effect of that is that it discourages people checking and putting their names forward. I hope the Minister can expand a little further on the work the Ministry of Justice is doing to look at the whole criminal records review process.

[Lord Bellamy (Con)]

My Lords, I thank the noble Lord for his contribution and for the support he offers to this statutory instrument. I will respond to his two main questions. First, on the guidance, officials from the Ministry of Justice, with the help of officials from the Disclosure and Barring Service, are working closely with representatives from these professions to develop and update their guidance to ensure that it is proportionate and fair. As far as I know, that is an ongoing process and a matter for ongoing review to make sure this scheme works proportionately.

As far as other plans are concerned, as I understand it—having regard to the Police, Crime, Sentencing and Courts Act 2022 and a recent judgment of the Supreme Court—the intention is to remove the disclosure of certain youth cautions, warnings and reprimands from the system altogether so that there is less clutter, if I can use that shorthand, in the system. There is also something called the multiple conviction rule, which I think necessitated disclosure when there was more than a single conviction. This will, I hope, reduce the likelihood of protection of the public unduly interfering with the important objective of rehabilitation; that is the intention, at least.

We have to find a balance. We are doing our best, particularly in the youth area. I am conscious of the point made by the noble Lord, Lord Ponsonby, about those who aspire to be a football manager and so forth. We really do not want, if we can possibly avoid it, to put obstacles in their way from when they got into trouble at 15, 16 or 17 when they are now 27 and settled down. We do not want the earlier criminal record to be a blight on their lives. We have to strike the right balance.

Work on this is ongoing. My good friend in the other place, the right honourable Edward Argar, is meeting criminal justice charities on 13 June—tomorrow, I think. It may even be today; I have slightly lost track of what day it is at the moment. They will discuss further reform of the criminal records system to see whether we can simplify it and tip it a little more in favour of youth, in particular, to ensure that the rehabilitation objective is properly followed.

That is the most I am able to say this afternoon. I am sure that there are further instalments to come in this important story. Unless noble Lords have any other questions, I commend this instrument to the Committee.

Motion agreed.

Illegal Migration Bill

Lord Bellamy Excerpts

Committee stage
Wednesday 7th June 2023 Lords Chamber

At the heart of this, because there is no case-by-case assessment, under Clauses 5 and 6 and Schedule 1 we very much run the risk—if the situation is not inevitable —of individuals who have a quite legitimate case for the granting of asylum being returned to dangerous situations. As such, there are very real concerns across the Committee about that.

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

My Lords, with permission, I will first respond to the first point from the noble Lord, Lord Coaker, and confirm that the Government’s Front Bench was as surprised by the report in the Daily Telegraph as everybody else.

[Lord Coaker (Lab)]

Can I just confirm that the Minister means the Lords Front Bench?

[Lord Bellamy (Con)]

Yes, the Lords Front Bench—this Front Bench. I cannot speak for other colleagues, but I can assure the Committee that no one is attempting to intimidate this House. As I understand it, the Prime Minister is misreported in the Daily Telegraph—it is not the first time the press has misreported a politician—and the Government fully recognise the role that this House has to play in scrutinising the legislation. The Government’s duty, if I may say so, is to listen, reflect on what is said and respond as they think fit, depending on the strength of the points made and the Government’s general policy. I emphasise that there is no question but that this legislative process should be followed duly and properly throughout.

That said, and in relation to following established due process, as it were, we debated Clauses 5 and 6 in detail in Committee on Monday. With your Lordships’ permission, I will not repeat what I have already said in that respect and refer your Lordships to the record in Hansard. To the extent that some points have been repeated, I refer to what was said in the last debate.

If I may also respectfully say so, on various other points that have been raised—for example, in relation to Clause 2, to trafficking, to unaccompanied children and to agreements with third countries and so on— I will not go over the ground that has already been covered or is to be covered in debates on other clauses. These are matters that we are debating on another occasion—the legal rights and remedies, for example—so for today’s purposes I will concentrate on Clauses 5 and 6.

I should perhaps once again go over the ground of what Clauses 5 and 6 actually say. If I am right and your Lordships accept the analysis, I venture to suggest that at least a considerable part of your Lordships’ concerns may be reduced or laid to rest.

In simple terms, Clause 5 deals with two different groups. The first group are nationals, including persons holding an identity document, of the European countries listed in new Section 80AA of the 2002 Act, which are the EU member states plus Switzerland and Albania. If a national of one of those countries makes an asylum or human rights claim, they may none the less be removed unless there are exceptional circumstances. The exceptional circumstances, which again were referred to today by the noble Baroness, Lady Meacher, are defined in Clause 5(5). This part of the Bill is essentially the same as the structure that has stood for many years, including when we were part of the EU, with the addition of Switzerland and Albania. These are safe countries and, in the Government’s view, no reasonable objection can be made in relation to this group.

Now we have the second group, who are nationals of all other countries: those outside the European countries defined in new Section 80AA. What is the position in relation to those nationals? The first point to make is that if the migrant is a national of another country—with all respect to the Republic of Ghana, the Republic of Uganda or India, let us take Nigeria—and they make an asylum or human rights claim, for example because of a risk of persecution for their sexual orientation, they cannot be sent back to that country. That is clear from Clause 5(8), so a lot of the concerns expressed about persons being sent back to these countries will relate to nationals of those countries who do not want to be sent back to them. Unless others correct me, if they make a protection—that is to say, an asylum or human rights—claim, they cannot be sent back as nationals to those countries where they fear persecution. That is a very considerable safeguard.

Where can they be sent back to? They can be sent back only to another Schedule 1 country, but subject to very important conditions. The most important condition in this context is that set out in Clause 5(3)(d): only if there is reason to believe that they would be admitted to that country. In other words, it depends on whether we have an agreement with that country to take them back. That is not at present the case, except in relation to Rwanda, but it may in future be the case in relation to other countries.

To take a point raised by the noble Lord, Lord Kerr, or possibly the noble Lord, Lord Carlile, as to whether such future agreements would be—forgive me, it was the noble Lord, Lord Hannay—subject to parliamentary scrutiny, that is a matter for the future. I cannot commit the Government on that here at the Dispatch Box. However, I think your Lordships can be reassured that the availability of all kinds of remedies and the force of public opinion in this country would necessarily require a very full debate to take place before we made an agreement with another country. There is the constitutional safeguard of the constitution of public debate in that regard.

There is no indication that the countries mentioned in this debate—very understandably, Nigeria, Ghana, Uganda and even India—are likely to be, in any foreseeable future, places to which the relevant migrants could be sent. If we were ever to reach an agreement with another country, the Secretary of State has powers in Clause 6, in particular Clause 6(3), to exclude from that agreement persons of particular sexual orientations or with particular protected characteristics set out in that clause. That is a further protection against the fears noble Lords have expressed.

If all of that were to fail, it remains the case that the individual affected could make his suspensive harm application on the basis that he would suffer irreversible serious harm in that context. I think I can legitimately offer noble Lords reassurance that a great deal of the fears understandably expressed in your Lordships’ Committee rest on a particular view of the Bill that is not entirely correct.

I was asked by the noble Lord, Lord Paddick—it was implicit in most of the other comments—what Schedule 1 is for. I think the noble Lord, Lord Kerr, asked what the rationale of Schedule 1 is. The answer is that Schedule 1 is a reproduction, an amalgamation and a restatement of all the existing legislation from 2002 onwards, in which various countries over the years have been added as safe countries. For example, in 2005 the Labour Government added India on the basis that it was, in general, a safe country.

This also enables me to deal with the “in general” point, which has stood as a statutory point for the last 20 years at least. It might not be entirely within the active career of the noble Lords, Lord Hannay and Lord Kerr, but it has been on the statute book for 20 years. It has not so far given rise to any particular difficulties. That is the background to what we are considering.

In the future, it might be appropriate to keep Schedule 1 updated; it might be necessary to make changes from time to time. Let us cross those particular bridges when we get to them. At the moment, there is no practical possibility of Uganda, for example, accepting migrants who arrive in Dover into Uganda. It might be, to take a point raised by the noble Lord, Lord Carlile, that the existence of Schedule 1 or the failure to amend it, might be challenged in judicial review. If I may respectfully say so, it would be a somewhat adventurous case to compel a Minister to legislate or to amend primary legislation, but let us again cross those bridges when we get to them.

I hope that I have not taken up undue time and have covered most of the questions that I was asked. I am sure that I shall be reminded if I have not done so; I will do my best to answer them, if anyone reminds me.

[Baroness Whitaker (Lab)]

The Minister kindly said that, if he had not answered anything, he would do so. Would he please write to me about which countries practise female genital mutilation, criminalise homo- sexuality and criminalise humanism?

[Lord Bellamy (Con)]

I am grateful to the noble Baroness for her question, but I cannot answer it today at the Dispatch Box. My respectful reply is that this issue does not arise for the reasons I have given. The Bill does not envisage, at the moment, returning people to such countries. The general position is that we can continue discussing the provisions on legal requirements, trafficking, unaccompanied children and so forth, but this part of the Bill is an essential part of the Bill. I therefore beg to move—

[Lord Carlile of Berriew (CB)]

I am most grateful to the Minister and have great respect for his legal analysis. However, I will correct him on the point I made about judicial review. I was not saying that a judicial review could be taken in which the order would be for the Minister to amend the law. The Minister cannot amend the law; we in this Parliament amend the law. The application would be for a judicial review of the refusal of the Minister to take steps to amend the law. That is quite a different matter, and I do not apprehend any difficulty in making such an application for judicial review.

[Lord Bellamy (Con)]

My Lords, I apologise to the noble Lord, Lord Carlile, if I misunderstood his point. I respectfully continue to beg to differ as to both the likelihood of such judicial proceedings or the relevance of such judicial proceedings to today’s stand part debate. So, if your Lordships permit me, I beg to move—

[Lord Swire (Con)]

I draw attention to my entry in the register of interests. I ask, gently, whether my noble and learned friend the Minister would not agree that it is worth reminding ourselves that some of these countries—indeed, all those we talked about in the last hour—are Commonwealth countries, including Uganda, India and Ghana. It is worth remembering that Rwanda is not only a Commonwealth country but the current chair-in-office of the Commonwealth, so, surely, that must count for something.

[Lord Bellamy (Con)]

I entirely accept the point my noble friend makes and thank him for it.

[Lord Kerr of Kinlochard (CB)]

The noble and learned Lord is so reassuring, and his manner is so friendly, that one is tempted to believe that this might all be as good as he says. On the two-part process, he says that the list sets out possible destinations, but that the Secretary of State would make a judgment about the individual and whether the individual should not be sent to a particular country for reasons particular to the individual. If it were the noble and learned Lord making these decisions, I would be very reassured; unfortunately, it is the Home Secretary.

I am sorry to press the Minister but he has not really answered my question. He says that the list is based on history, but in the past we have not sent people compulsorily to go through an asylum process in another country—so there is something new here. Further, we have not been sending people to countries where there is no asylum process but we are insisting that they must seek asylum there. I do not think the noble and learned Lord has addressed that point.

I would also be grateful if the Minister would construe for us the language in the first paragraph of Clause 6, which addresses “in general” and “a part”. I have not heard his answer to my question as to why it is all right that a country should not in general contravene the human rights convention—implying that if in particular it does, we do not care—and, secondly, why it refers to part of a country or territory. I do not understand how we can get an international agreement with a counterpart. If I am a negotiator, how do I persuade him to accept that there are parts of his country that are unsafe and parts of his country that are safe? Surely the agreement has to be with the other country in respect of the full territory of the other country, not in respect of part of the territory.

[Lord Bellamy (Con)]

My Lords, in relation to the latter point, I repeat the point I made on Monday that this is precautionary. There is no reason to deprive oneself of the possibility of providing for “a part”. With an enormous country such as India, it may be that up in Nagaland or somewhere there are some disturbances, but that does not prevent us saying that India is a safe country. That is the Government’s answer to the first point.

Our answer to the second point is that the words “in general” have—I am open to correction and I will correct myself if I am wrong—stood for 20 years on the statute book without difficulty and do not preclude, in an individual case, an application being made to oppose removal on the grounds of irreparable harm. It is the combination of a general view that the country is safe with the possibility of individual protection. Those are essentially the answers I gave on Monday.

I entirely accept the noble Lord’s point that this is new, but, for the reasons I have tried to explain, it is a workable and, I submit, balanced approach to a very difficult problem which the Bill is trying to solve.

[Baroness Chakrabarti (Lab)]

As always, the Committee is very grateful to the Minister. I want to be absolutely certain that I have understood his case, because this is so important. My understanding is that he is reassuring the Committee on the basis that, first, nobody is going to be sent to the country that they fear in the first place—they are not going to be sent back directly to the country that they have escaped from and which they say was originally persecuting them—and, secondly, they can be sent only if there is a deal with a country. So maybe this is all going to be rhetoric in the end: we are going to tell the British people that we are stopping the boats, and we are going to warehouse more and more people under this whole edifice because there will be a duty under Clause 2 to remove people to places where they are irremovable to because there is no deal. Thirdly, the Minister points to the little chinks in the scheme whereby somebody might make some kind of exceptional non-suspensive claim. That is what I understand to be the three parts of his case.

On sending people to third countries that are unsafe because they are gay or because there is some other reason why that individual person would be at risk, it matters not that they would be unsafe in a third country or unsafe in a first country. In relation to the other little nudges and winks that he offers us—that this is perhaps fiction because in the end we do not have deals with a lot of these countries—that might be some comfort to people coming, and maybe even to those smuggling them, but it is certainly no comfort to the British people on the cost or on the toxicity of the debate we are having about stopping the boats, when actually the boats are not likely to be stopped.

[Lord Bellamy (Con)]

My Lords, it is a question of judgment. The Government’s judgment is that this legislation will go a long way towards reducing the terrible risks that people and unaccompanied children are facing in crossing the channel in difficult circumstances, and will destabilise the business model of the people smugglers. Those are surely legitimate objects for any Government to pursue.

The noble Baroness’s analysis is essentially correct: if I am a national of a particular state and I make an asylum claim or human rights claim then I cannot be sent back to that country; I could be sent back to a country with which—she puts it somewhat colloquially, and I would not quite use these words—we have a deal. The country with which we have a migration partnership at the moment is Rwanda, so that is still a possibility, subject to the individual in that case being able to make an application for either a factual suspensive application or an application based on imminent and foreseeable and serious harm. That is how it works, and that is how the Government see it.

While I am on my feet, I will address the points made by the noble Lord, Lord Coaker, about whether the threat of deterrents supersedes individual human rights. For the reasons I have given, our answer is that there is no question of superseding individual human rights due to the protections I have just explained. Refoulement is covered by the existing agreement with Rwanda, and I am sure it will be covered in future agreements.

[Baroness Kennedy of The Shaws (Lab)]

My Lords, I wonder if an answer could be given to the question from the Minister’s colleague on the Benches behind him, who asked about Commonwealth countries. Would the Minister agree that many of the Commonwealth countries have laws which criminalise homosexuality? Indeed, Uganda has just passed legislation which says that the death penalty can be used in relation to homosexuality, and in India there are currently a lot of issues and questions about the treatment of Muslims there. There might be very real issues even when it comes to Commonwealth countries.

[Lord Bellamy (Con)]

My Lords, as the noble Baroness says, there might indeed be issues. Their legislation is a matter for them. The fact that they are members of the Commonwealth which upholds, or seeks to uphold, barest basic standards is a relevant background consideration, as the noble Lord pointed out.

For the reasons I have given, as best I can, the protections in the Bill are adequate to deal with the problems that have been raised. I respectfully say that Clauses 5 and 6 and Schedule 1 should stand part of the Bill.

[Lord Purvis of Tweed (LD)]

I am grateful to the Minister for his thorough response, and to those who have spoken.

I looked at the reference to the Commonwealth when the Bill and the schedule were published. It is worth noting that 76% of Commonwealth countries are not considered by this Government to be safe, because 76% of the Commonwealth is not in the schedule. That is not us questioning it; that is the Government making their own decision.

The Minister, in his typically emollient way, suggested that we do not really understand these clauses and that if we did we should not be concerned because, as he put it, the legislation will have no practical operability. We are in a situation where the Home Office is doing the reverse of virtue signalling, which is to try to create, as my noble friend Lord Paddick indicated, the most punitive and threatening environment, of which the justice department will have to pick up the pieces. The Minister has been at pains to point out that there are many elements which would mean that there is no practical operability, but we are being asked to legislate for this, and on the basis of a lack of agreements.

On Monday, the Minister said to me:

“I suppose that the direct answer is that one would have to negotiate an appropriate agreement with the country concerned”.—[Official Report, 5/7/23; col. 1229.]


As the noble Lord, Lord Kerr, and others indicated, the Government have not done so, but they are still asking us to legislate. The Minister said that, when we are negotiating some of these agreements in the future, there would be a “force of public opinion” on the agreements and debate. But on the only one that we have, with Rwanda, there was no debate or consultation. We were surprised by it. It was not a treaty that was ratified by Parliament; it was an MoU. The International Agreements Committee forced a debate on the MoU in this House, in which noble Lords took part, and the committee raised the concern expressed by the noble Lord, Lord Coaker, about refoulement. Unfortunately, this is the pattern of the Government.

On Monday, the Minister was not even able to confirm to me—he said he would write to me and I am grateful for that—that there are child facilities in the Rwanda agreement, because it was not designed for that in the first place. That addresses the point that the noble and learned Baroness, Lady Butler-Sloss, indicated with regards to those who are children. I referenced 73 children, up to 2022, who would be in the situation of being referred to protection and then on their 18th birthday would receive, under the Bill, a third-country notice, and they would have no idea what that country would be.

European Court of Human Rights: Rule 39

Lord Bellamy Excerpts

Tuesday 6th June 2023 Lords Chamber

[Baroness Chakrabarti (Lab)]

In memory of my late noble and learned friend Lord Morris, I beg leave to ask the Question standing in my name on the Order Paper.

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

My Lords, if I may, I associate myself with the tribute to the late Lord Morris.

The Government recognise that interim measures can be an important mechanism for securing individuals’ convention rights in exceptional circumstances. Nevertheless, the Government want the interim measures process to achieve a better balance between transparency, fairness and the proper administration of justice. Ministers, including the Prime Minister, have had constructive discussions with the Strasbourg court about reform. The court’s regular internal review of procedures began to look at the interim measures procedures in November 2022.

[Baroness Chakrabarti (Lab)]

As always, I am grateful to the Minister for his Answer. Does he agree with me that the current group of interim measures against the Russian Federation precluding the execution of prisoners of war is very important, and that, notwithstanding Russia’s current status outside the Council of Europe, anyone who thinks about ignoring those interim measures should think again? In the spirit of reciprocity, notwithstanding the discussions about process, will the Minister also think again about legislating to allow British Ministers to ignore interim measures from the Court of Human Rights?

[Lord Bellamy (Con)]

My Lords, if I may take the last question first, that issue will be explored in more detail in Committee when we get to Clause 53 of the Illegal Migration Bill. I remind the House that the Rule 39 power is a very important power, particularly in relation to the circumstances affecting Russia. However, it raises at least five quite difficult legal questions. First, what is the basis of the legal power? Secondly, what is the procedure with which the power is exercised? Thirdly, what is the competence, in the civil sense of the term, of the single judge? Fourthly, what is the effect in domestic law of such an order? Fifthly, what constitutes a breach of the order? None the less, the Government’s focus is on constructive and helpful discussions with the Strasbourg court on improving the process.

[Viscount Hailsham (Con)]

My Lords, does my noble and learned friend agree that in principle, an interim order should be made only after a hearing at which both parties are present and can make their case? If, in exceptional cases, an interim order is made on an ex parte basis, does he agree that the return date should be a swift one and that both parties should then be able to make their representations to the judge?

[Lord Bellamy (Con)]

My Lords, I agree in principle with the comments made by my noble friend.

[Baroness Ludford (LD)]

My Lords, the Government play fast and loose with the European Convention on Human Rights and the Human Rights Act. This has not inhibited them in invoking Article 8 of the ECHR—the right to private and family life—in their application for judicial review against the Covid inquiry. Article 8, as well as judicial review, has been demonised by successive Tory Governments—I seem to recall something about a cat, from Theresa May when she was Home Secretary. Will the Government make it a hat-trick of hypocrisy by seeking interim measures under Rule 39 from the Strasbourg court if they do not get satisfaction domestically over that Covid inquiry JR?

[Lord Bellamy (Con)]

With respect to the noble Baroness, that question does not arise. The Government have no intention of going to Strasbourg on that issue. Article 8 is a very important part of the convention, which is also part of domestic law through the Human Rights Act. The subject of today’s question is the Rule 39 power, which is quite a difficult question.

[Lord Anderson of Swansea (Lab)]

My Lords, with his usual reasonableness, the Minister appears to accept that such emergency and interim measures are not uncommon in international legal matters. He confirmed that the difference this time is that a group of right-wing people, led by the Home Secretary, take issue with one decision by a judge seeking to protect the human rights of other individuals.

[Lord Bellamy (Con)]

My Lords, interim measures play a very important part in the international jurisdiction. I respectfully point out that as far as I know, the process by which the Strasbourg court grants interim measures is different from that of the International Court of Justice, the Inter-American Court of Human Rights and the African Court on Human and Peoples’ Rights, all of which provide for a proper hearing, a return date, and reasoned judgments—which are sadly lacking at the moment in the Strasbourg process in some cases.

[Lord Wolfson of Tredegar (Con)]

My Lords, the Minister is quite right to point out that there are important jurisdictional questions regarding the Rule 39 injunctions. However, focusing on the process, is it not a real problem that these orders are made by an unnamed judge? The state has little opportunity to make representations either before or after the order is made. As my noble friend Lord Hailsham said, the return date can be a long time in the future. The process surely needs reform. Does the Minister therefore agree that the Government are right to be engaging with the Strasbourg court to improve the processes of that court?

--- Later in debate ---

[Lord Bellamy (Con)]

My Lords, I entirely agree with my noble friend Lord Wolfson, particularly where the interim measures order, in the circumstances that he relates, overrides three reasoned judgments by the domestic court at first instance, the Court of Appeal and the Supreme Court. None the less, the Prime Minister is fully engaged and discussed this very question in Reykjavík recently with the president of the Strasbourg court.

[Baroness Kennedy of The Shaws (Lab)]

My Lords, I have asked the Minister about the difficulty that we lose credibility if we do not engage with the use of this particular interim measure order. It has been so useful, for example in relation to Russia, because interim measures have already got in under the wire and now, of course, Russia has been expelled from the Council of Europe. Does the Minister agree that, eventually, when people are brought before the International Criminal Court, the fact that Russia has failed to abide by those interim measures will be evidence of their culpability in war crimes?

[Lord Bellamy (Con)]

My Lords, I have already agreed on Russia. I emphasise that the Government’s approach to this is to engage very closely, respectfully and constructively with the Strasbourg authorities and the court’s working party, which is considering this very question.

[Lord Anderson of Ipswich (CB)]

My Lords, does the Minister agree that interpretation of a treaty is informed not just by the court that is set up to adjudicate on it, but by state practice? The member Governments of the Council of Europe, including our own, have repeatedly confirmed the binding nature of interim measures under Rule 39—in the Committee of Ministers, and in the Izmir and Brighton declarations. Is the Minister proud of the United Kingdom’s record of compliance with interim measures, particularly in comparison to some founding members of the European Union?

[Lord Bellamy (Con)]

On the latter point, I do not presume to cast any kind of judgment on or make any comparison between the United Kingdom and other contracting states. On the general point about acceptance in practice of the position of interim measures under the convention, there are two legal views.

[Lord Browne of Ladyton (Lab)]

My Lords, the context of this Question requires consideration of more than one case. Between 2020 and 2022, of the 161 applications for interim measures against the UK Government, only 12 were granted by the European Court of Human Rights. Secondly, the Minister’s responses thus far indicate that the Government no longer stand by Clause 24 of the Bill of Rights Bill, which, if enacted, requires courts to ignore interim measures. Until now, we have been told that that is an expression of the Government’s manifesto commitment to reform the Human Rights Act.

[Lord Bellamy (Con)]

My Lords, on the first aspect, if I may speak on behalf of the United Kingdom and all Governments, the Government have a commendable record on interim measures. I fully agree that you cannot judge the underlying legal and practical questions by just one case. On the issue of the Bill of Rights Bill, I think the focus should now be on Clause 53 of the Illegal Migration Bill, which I am sure we will discuss in great detail in Committee.

[Lord Faulks (Non-Afl)]

My Lords, it is most important that we maintain a good relationship with the European Court of Human Rights. The context of this Question follows the decision of the judges in this jurisdiction about the flights to Rwanda. An anonymous judge then gave a ruling that, on the face of it, was not entirely compliant with natural justice. However, is it not right to say that the Home Secretary entirely accepted that ruling? There was no question of ignoring it. The Government have proceeded by trying to improve the process in a way that is more satisfactory and complies with most people’s notions of how interim relief ought to be obtained.

[Lord Bellamy (Con)]

My Lords, I respectfully agree with the comments of the noble Lord, Lord Faulks.

Illegal Migration Bill

Lord Bellamy Excerpts

Committee stage
Monday 5th June 2023 Lords Chamber

[Lord Coaker (Lab)]

My Lords, this is another important group of amendments and we support all of them. I remind noble Lords of the importance of this. Since the Bill assumes that everybody arriving irregularly will be detained and automatically removed, where they are going to be removed to becomes important to us all, and for us to have some consideration about the criteria which the Government will use is of particular importance. Can the Minister confirm that deterrence does not trump human rights with respect to removals? That was the implication of what his noble friend Lord Murray said earlier—that deterrence is everything and something that has to be achieved irrespective of any other consequence.

Since the Government always say that they are on the side of the British people, let me be controversial for a moment. With regard to the issues that we have been discussing in this group of amendments, I do not believe that the British people believe that deterrence should trump human rights. Let us make this real. I have looked at this, as other Members have done, in relation to various LGBTQ rights in countries that the Government say will be safe to send failed asylum seekers to through the Bill. Let us take the case of Nigeria; as my noble friend Lord Cashman has said, you can be flogged for being gay there. In Malawi, it is up to 14 years’ imprisonment with or without corporal punishment. In Liberia, it is a maximum of three years in prison.

Can the Minister tell us, on behalf of His Majesty’s Government, whether a failed asylum seeker who is gay would be removed to those countries? In the end, that goes to the essence of what we are talking about. I want to know, and the British public and this Chamber want to know: will such an individual—or anyone in circumstances detailed in the helpful amendments tabled by the noble and learned Lord, Lord Etherton, the noble Lord, Lord Carlile, my noble friend Lord Cashman and the noble Baroness, Lady Bennett—be deported, or not? I do not think they should be deported in those circumstances. I do not see how those countries can be included in Schedule 1; I do not understand that at all. I do not believe that the Minister would want anyone —a female asylum seeker, for example, who has failed according to the terms of the Bill—to be returned to a country where they would be persecuted. Would such a country be included in Schedule 1? Rather than these general terms, let us see the specifics of what would happen.

Some noble Lords who have been Members of the other place will know that people will often say in general terms, “It’s an outrage”, or that “It’s about time those people were sent back” or “dealt with”. Then, the individual case—the individual family, the individual asylum seeker, the individual gay person—comes up and that very same community launches a campaign to stop them being deported. You can see it happening up and down the country because people are genuinely decent. When the human consequences of a piece of legislation are made clear, that general enthusiasm and support dissipates because they understand its consequences.

When the Minister answers the various questions of noble Lords, I want him to answer the specifics about an individual gay person who has failed as an asylum seeker under the terms of the Bill. Will they be returned to the sorts of countries and the sorts of persecution that other noble Lords and I have outlined?

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

My Lords, I am extremely grateful to all noble Lords who have put forward amendments in this group and contributed to this debate. The Government completely understand the sincerity and thought that has gone into these amendments and we are grateful for those observations but, for the reasons that I hope I will be able to explain, the Government do not feel that we should accept the amendments.

--- Later in debate ---

[Lord Purvis of Tweed (LD)]

I wish to probe a little more what the Minister said. I understand his points about certain parts of countries. As I understand it, the Government accept that, in certain parts of countries, the risk to the individual will be such that that person should not be returned or sent to them if they are part of what could otherwise be a safe country. What is our Government’s mechanism to secure a guarantee from that country’s Government that that person would not then be sent to that region?

[Lord Bellamy (Con)]

I suppose that the direct answer is that one would have to negotiate an appropriate agreement with the country concerned. I agree that that may not be enough, and the situation may well be such that it is not appropriate to designate a part of the country. All I am saying is that one should have this power; I am not necessarily saying the circumstances in which one should exercise it. It would still be open to an individual, in a suspensive claim, to say, “I’m still at risk because I might be transferred to the part of the country where it would be too dangerous for me to be sent”. That would be part of the analysis that the tribunal seized of the case would have to make.

[Lord Scriven (LD)]

I appreciate that the Minister said that, therefore, a negotiation may have to be done on not sending someone to part of a country. How would the British Government and the Home Office then monitor that to ensure that the host country kept to the agreement and that people were not moved to the part of the country that was deemed unsafe?

[Lord Bellamy (Con)]

The Government would have to monitor it as best one could, and, if it turns out that an arrangement is not satisfactory, it probably may not be a good idea to designate that part of the country as safe in the first place. All I am saying is let us not deprive ourselves of the opportunity to have this flexibility. We can work it out as we go forward.

What I should come to now are Amendments 35, 36, 41 to 52 and 54 in the name of the noble and learned Lord, Lord Etherton, so ably developed by the noble Lord, Lord Carlile, and spoken to by others. In essence, they seek to amend either Clause 5 or the references to various countries listed in the schedule on the basis that certain individuals would have a well-founded fear of persecution and that we should therefore now declare in statute which these countries are and on what basis people should not be sent back to them. In general terms, the Government’s view is that it is not desirable to enshrine in statute descriptions of which countries are safe or not, or of particular groups of individuals or those with protected characteristics. The route—

[Lord Scriven (LD)]

My Lords—

[Lord Bellamy (Con)]

I will finish my train of thought and then give way. The noble Lord, Lord Coaker, rightly asked about the route for the protection of the individual. If there is a removal notice to a country in question, and if they have a well-founded fear of persecution and would be at real risk of serious and irreversible harm if removed to that country, they have a right to make a suspensive claim—a claim of suspensive harm—and that claim is then appealed to the Upper Tribunal. That is their individual protection in which their individual circumstances are closely considered, including in a judicial process. That is the essential protection.

I also clarify that, if you read the Bill with care, you will see that people cannot be sent back to a country unless we are satisfied that the country is prepared to accept them. In practical terms, that will include Rwanda at the moment and other countries in the future, with which we might be able to form immigration partnerships. However, that is a precondition that does not necessarily apply to many of the countries listed in the schedule.

[Lord Scriven (LD)]

First, following on from what the Minister said at the beginning of the answer he has just given, when he said that the Government do not feel that it is appropriate to list characteristics of individuals in the Bill, I ask him: why in Schedule 1 are there, on eight occasions, a description of an individual in the list of countries for men only? They are deemed not safe for women; therefore, the Government have described certain groups of individuals by a characteristic.

Secondly, and very importantly, the point I raised—which the Minister may be coming to, based on his last answer—was that most people who claim asylum on LGBT, sexual orientation or gender identity grounds tend not to start with that. Therefore, it would be completely missed if there were not people supporting them to be able to go through a normal process. In some cases, it takes five or six attempts before that person will claim asylum on their own characteristic, because they do not trust authority, and so that trust has to be built.

[Lord Bellamy (Con)]

My Lords, in relation to the first part of the question asked by the noble Lord, it is true that there are certain countries designated for men only, and so forth, in the existing schedule. The Government do not consider that that is an appropriate precedent to extend at this stage. Circumstances change and countries change, so it is much better to deal with this on an individual basis. It is probably the case, one would have thought as a matter of common sense, that, if it arises, the Government’s travel advice to particular countries, to raise one particular point, is likely to be a highly material fact, when they come to consider the risk of serious and irreversible harm.

[Lord Carlile of Berriew (CB)]

I am grateful to the Minister for the answer he gave to a point I raised earlier. I ask him whether, before Report, he will talk to some of those organisations which have been the secondary referrals for people who have tried to make claims that they would be in danger in unspecified other countries. They face the extreme inconsistency of quality legal advice in different parts of the country, and they often obtain quality legal advice only when some well-meaning social worker or other person refers them to the Children’s Society or some other organisation, which has a proper team of lawyers, who are able to give informed advice. Around the country, where the people we are talking about tend to be dispersed, the knowledge of this part of the law is thin.

[Lord Bellamy (Con)]

My Lords, the Government are always prepared to talk to anybody who would like to put forward various ideas. We will come to the question of legal advice and legal protections and procedures in a later group, where I will be very happy to elaborate on the Government’s plans in that respect.

[Lord Coaker (Lab)]

The judge in an Upper Tribunal would no doubt be trying to determine the will of Parliament in deciding the issues before us. In what circumstances do the Minister or the Government believe a judge would send a gay individual going to the Upper Tribunal as the result of a suspensive claim back to Nigeria or a similar country?

[Lord Bellamy (Con)]

I am not sure I completely understood the question. It may well be that in practice there will be various countries to which people with certain characteristics will never be sent because it is well known either at the level of the case worker and the Home Office or at the level of the judiciary that such a claim would give rise to a risk of “serious and irreversible harm”.

[Lord Coaker (Lab)]

Let me try again for the Minister. It is often said in court that judges were uncertain as to the intention of Parliament and it was not clear in the legislation what Parliament actually meant and therefore there was ambiguity. For the sake of avoiding any ambiguity, let us say that a suspensive claim goes to the Upper Tribunal, where the judge will determine whether that claim is right and whether an individual should be sent back to a particular country. So that the judge in the Upper Tribunal is not in danger of misreading the will of Parliament, I do not think that Parliament would want a gay individual who had failed because of the terms of the Illegal Migration Bill to be sent back to a country such as Nigeria which flogs gay men. I am asking the Minister of the Crown to say what the Government’s attitude is towards gay men in those circumstances, so that a judge in an Upper Tribunal will know what the intention of Parliament was. I hope that was clear enough for the Minister.

[Lord Bellamy (Con)]

My Lords, the Government’s position is that no one should be sent back if to do so would lead them to face

“a real, imminent and foreseeable risk of serious and irreversible harm”.

If that is the position in relation to gay men in Nigeria, there should be no difficulty in them satisfying those conditions.

[Baroness Butler-Sloss (CB)]

I am sorry to trouble the Minister again, but I have been listening to this with great interest and have two questions. First, is the Minister able to say any country outside Europe where it would be safe to send a gay man or indeed woman back? Secondly, if there are any countries, would it be possible for the Government to put those on their website?

[Lord Bellamy (Con)]

It will remain a question of fact in each case and the examples of relevant harm are set out in Clause 38(4), which refers to

“death … persecution … torture … inhuman or degrading treatment or punishment”

and where onward removal would raise a risk of

“real, imminent and foreseeable risk of … harm”.

If that in practice amounts to a situation in which you could not send a gay person back to that country, that would be a decision for the tribunal.

[Baroness Chakrabarti (Lab)]

I am so grateful to the Minister for responding with his characteristic courtesy and patience. I think I can help him, because I think the problem here arises from the Government own cake-eating, if I can put it like that. The general proposition in the Bill is that we will now decide on a blanket basis that people are to be removed, regardless of their circumstances, because of the means of their arrival, not because of the circumstances of their past and their persecution. Fair enough; that is the thinking behind the Bill. Then the Government say, “Here is the schedule of safe countries”, again on a blanket basis. Then the Government say, “But only for men”—so they have already adopted the approach that there are some countries that are safe for men but not for women. But then when my noble friends and other noble Lords in the Committee say, “But gay people are a vulnerable group in many parts of the world, just as women are”, the Minister is, I think, forced into the Government’s position of saying, “But women are not a precedent”.

That logic is not standing up to scrutiny, in this Committee at least, so I hope that, after Committee and before Report, the Minister might just consider that issue of gay people, or LGBT+ people, in particular. We all know, in this Committee, that just as there are some countries that may be safe for men but not women, there are many countries that are not safe for queer people either. Rather than playing on this sticky wicket, which he, with his characteristic grace, handles with great aplomb, perhaps before Report, the Government could think again.

[Lord Bellamy (Con)]

My Lords, the Government will of course consider that, as we try to consider everything that is said in this House, before Report. I simply reiterate that under Clause 5(3)(d), it still has to be

“a country or territory to which there is reason to believe P will be admitted”—

and that is probably not very likely to be satisfied in the particular countries we are talking about, such as Ghana, for example. Having responded to the noble Baroness, Lady Chakrabarti, the Government will of course consider the position.

[Lord Purvis of Tweed (LD)]

On that very point, what is the point of having Ghana in that schedule? There is no agreement with Ghana at all, so how do the Government know that Ghana would be unlikely to accept someone who is not admissible under the UK scheme? The UK will presumably not necessarily divulge that that person is gay.

[Lord Bellamy (Con)]

My Lords, I sought to explain earlier that Schedule 1 is an amalgam of all the existing schedules that exist. Ghana was already on a list of countries to which people could be sent, and the present practice is not to send people back to places where they are at serious risk. That practice will continue under this Act when you make a suspensive harm application. It is a historical situation, but it has to be dealt with on a case-by-case basis. As I said to the noble Baroness a moment ago, the Government will reflect on what has been said in this debate.

That brings me to deal specifically with the question of Rwanda and the fact that there are currently proceedings pending in relation to Rwanda, as the noble Lord, Lord Cashman, pointed out. So far, the High Court has upheld the position on Rwanda: we will see what the Court of Appeal judgment says. If the case goes further, it will be a matter for judicial decision and we will see how that works out, but we will not take Rwanda out at this stage, while the matter is still pending. I think that is also the answer, if I may say so, in relation to Amendments 43A and 49A on Hungary and Poland. These are ongoing proceedings: let us see what the outcome is and then it can be properly determined whether Poland and Hungary are countries that should remain on the list. That is not clear yet and it depends on the outcome of those pending proceedings.

I think that I am nearly through, except for the very important points raised by the noble Lord, Lord Alton, and others, as to whether we should beef up Clause 6(4)(b), which at the moment places certain requirements on the Secretary of State, in deciding on possible new countries and territories. The thrust of the amendment suggested by the noble Lord and supported by others is that effectively there should be a more detailed list of conventions and other international instruments to which the Government should have regard, with a specific obligation of consultation. The noble Baroness, Lady Chakrabarti, and others wanted in particular to enshrine the obligation to follow the decisions of domestic courts and the Human Rights Act.

The Government’s position on this—and of course, as with other things, we will reflect on it—is that these are effectively de facto covered in the existing Clause 6(4)(a) and (b). They provide that the Secretary of State must—it is a positive duty—

“have regard to all the circumstances of the country”

and

“must have regard to information from any appropriate source (including member States and international organisations)”.

That, in the Government’s view, necessarily requires the Secretary of State to have regard to case law, whether it is domestic or European; to have regard to international conventions and obligations; and to have regard to what international organisations say—and they are not exactly bashful when coming forward in this kind of area. The Secretary of State would be seriously at risk of being found to have acted irrationally or found not to have taken into account relevant considerations, if there was a major international organisation, a major convention or a major decision that had somehow been overlooked. So the combination of the normal duties of rationality and duty to take into account all relevant considerations, plus the actual wording of Clause 6(4), in the Government’s present view, covers the situation adequately.

[Lord Alton of Liverpool (CB)]

I am grateful to the Minister. The hour is late, and I promise not to intervene again on his remarks. Before we get to group 19, which is also linked to this amendment, or indeed before we get to Report, could the Minister arrange for his officials or perhaps for himself or his noble friend to meet the Salvation Army and the other providers and stakeholders to which I referred in my remarks? It was they who raised these concerns—and, given that they have a contract with the Home Office, they are in a pretty good position to know the territory.

[Lord Bellamy (Con)]

My noble friend Lord Murray tells me that that is already in train—or, certainly, there is no objection from the Government’s point of view.

[Lord Cashman (Lab)]

My Lords, I too thank the Minister for his patience and graciousness. Given the amendments that I raised, which I co-signed with others, particularly with the noble and learned Lord, Lord Etherton, and given the notion that deterrent trumps all, I am still not reassured that a person would not be returned to somewhere like Uganda, where you face 14 years’ imprisonment or the death penalty for “aggravated homosexuality”. I am not reassured that a person will not be sent to those countries if they are at serious risk. Historically—and I shall close on this intervention—in the Home Office, people have been told that they will be returned to countries where they should not make their sexual orientation or gender identity known. I do not want us to return to those days.

[Lord Bellamy (Con)]

In taking full account of what the noble Lord, Lord Cashman, has just said, which was obviously a powerful comment, I simply reiterate, as I have said to the noble Baroness, Lady Chakrabarti, that the Government will consider the content of this debate. However, I reiterate first of all that this is a judicial and not a Home Office decision, and that those concerned will need to explain to the tribunal why they do not want to be sent back to these countries.

--- Later in debate ---

[Lord Scriven (LD)]

The equality impact assessment that the Government have done on this talks particularly about sexual orientation. The very point that the noble Lord, Lord Cashman, and others have made is that people will be returned. The Government more or less say that that will be the case unless something happens:

“Where individuals are from a country where their sexual orientation is criminalised, and their exploitation is linked to their sexual orientation, they may require additional support in order to trust and engage with law enforcement”.


That is the Government’s own equality impact assessment. Where in the Bill is that extra support in place? I cannot see it anywhere in the Bill to ensure that discrimination does not take place against people from the LGBT community. Therefore, subsequently, if this support is not put in place, people from the LGBT community will be sent to places where they are unsafe due to local LGBT laws.

[Lord Bellamy (Con)]

My Lords, at this stage I do not think I can elaborate beyond the answers I have already given. This is going to be a matter for the judicial process—through the appeal process, the legal advice and the legal representation that these people have. If they can show serious and irreversible harm, then they will not be sent to these places.

[Baroness Hamwee (LD)]

My Lords, I thank the Minister for the care with which he has responded to these amendments. I do not know whether I am right, and I do not want to embarrass him, but I sensed a slight feeling of discomfort with the issues we are having to address. I applaud him for that.

It seems to me that noble Lords have been both practical and principled in this debate. I agree with the analysis about half an hour ago by the noble Baroness, Lady Chakrabarti, of the position, but the practicality has been by testing the reality of different circumstances. It was the noble Lord, Lord Coaker, who said that, when faced with the situation of somebody one knows well being in this precarious position, it all looks very different. I agree; it is rather similar to feelings about people who come from other cultures. We are suspicious of them—“But not So-and-so—no, she is fine”.

On Amendment 30, I will read the report of what the Minister has said. I was not challenging most of subsection (4). It was simply the discretion, and I take what has been said about the Secretary of State having to act reasonably and so on. Subsection (5), however, says that “exceptional circumstances include”. That, to me, raises questions about what might not be included on the face of the Bill.

The Minister is quite right that I was trying to read “prevent” as someone being put at risk, and I think the Bill should say so because a person is prevented from being removed only if, in his individual case, he falls within the exceptions. That is not the natural understanding of the term. I have to say that I remain very concerned about the issue of a part of a country. A conflict in one part of a country can spread very fast, and can the risk to an individual—if he is persona non grata in one part of the country, that can become known in another part of the country very easily—and we are talking about individuals.

I am still a bit confused about “in general”. I understand that the lists we have are an amalgam of previous lists. The Minister defends the position—I think I am right in saying—by referring to procedures that can be used to challenge a decision. We are going to get to some more of this later in the Bill, but noble Lords have already shown their concern about the very narrow circumstances in which challenges—if I can use the term broadly—can be made.

A couple of things have come up in the Minister’s response that have made me think again about these. I would have mentioned some in any event, but I sure that noble Lords will understand that I am, at this moment, speaking a little bit slowly for reasons of time. If there is to be a negotiation about a home country and whether to have a negotiation with that country, does that actually raise the risk of drawing the individual to the attention of the authorities in that country and putting that person in greater jeopardy than he may have been?

The notion of acceptance by the receiving country has also been raised. I do not know whether the Minister can answer this tonight; if he can take a couple of minutes to do so, it would be helpful. If the UK and other countries are going to say, “Will you accept this individual?”, does that not, again, put that individual in jeopardy, because the reason for his having sought asylum in the UK will become known? We are in Committee, so the Minister is free to reply if he can help at this point.

[Lord Bellamy (Con)]

My Lords, I expect that I am being asked to play a sort of night watchman role in continuing the batting until stumps are drawn. As far as I know, it is not the case that the Government intend to engage in negotiations in relation to particular individuals. The Government’s general policy is to engage in discussions with particular countries about reciprocal arrangements and migration partnerships. There are various reports of other countries that are currently engaged in discussions.

Subject to correction—I am sure my noble friend Lord Murray will put me right—I think it is very likely to be the case that a lot of what we have discussed tonight in relation to Ghana, Nigeria and Uganda is simply not going to arise. I know that the noble Lord, Lord Cashman, and others are sceptical about that and it may be that the Government need to provide some further reassurance to satisfy noble Lords. Perhaps the noble Baroness will forgive me for noticing the time.

[Baroness Hamwee (LD)]

I am grateful to the Minister. That has raised further issues in my mind about what information may be given—not necessarily about an individual—to a receiving country, whether the questions may be asked and how the UK responds.

I think stumps probably can be drawn, though it is not in my gift to say so. I beg leave to withdraw Amendment 30.

Parole Board Recommendations: Open Conditions

Lord Bellamy Excerpts

Thursday 25th May 2023 Lords Chamber

[Baroness Burt of Solihull]

To ask His Majesty’s Government what proportion of Parole Board recommendations for prisoners to be transferred to open conditions were accepted by the Secretary of State for Justice from January to March; and on what grounds such recommendations can be rejected.

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

My Lords, the Question refers to the transfer of a life or other indeterminate sentence prisoner to an open prison. That is an operational decision for the Secretary of State. He is not obliged to follow the Parole Board’s advice but will take it into account. From January to March 2023, the Secretary of State considered 90 recommendations by the Parole Board for a prisoner to be moved to open prison. The Secretary of State accepted 14 recommendations and rejected 76.

[Baroness Burt of Solihull (LD)]

My Lords, it is an old saying in Parliament, “Never ask a question of a Minister unless you know the answer already”, and I read with interest the Minister’s response to the noble Lord, Lord Blunkett, on 27 April. The figure that the noble and learned Lord has quoted is less than one in six referrals from the Parole Board, and I cannot get my head around how small it is. The Minister outlines the criteria to be taken into consideration, but the Parole Board making the recommendation will surely know what criteria the Government are going on. What is the point in it keeping on making referrals if the Secretary of State is not going to listen?

[Lord Bellamy (Con)]

My Lords, I think I should clarify that this particular advisory function of the Parole Board has no statutory basis. It dates historically to the time when the Parole Board was part of the Home Office. The Parole Board has no operational responsibility for the safety and security of the open estate, nor for the rehabilitation of prisoners, nor for the categorisation of which prisoners are suitable for which prisons. In June 2022, the Secretary of State adopted new criteria for the transfer of prisoners to open prisons and unfortunately, in the Secretary of State’s view, those criteria have not been fully followed by the Parole Board’s advice. Those decisions by the Secretary of State can of course be challenged in the courts.

[Lord Blunkett (Lab)]

My Lords, in the first quarter of last year, 88 references were made from the Parole Board, and 80 were accepted. The change over the past year can have nothing to do with whether the Parole Board is following the Ministry of Justice criteria, which say

“the prisoner is assessed as low risk of abscond; and … a period in open conditions is considered essential to inform future decisions about release”.

The Parole Board is following the criteria laid down by the MoJ, but the MoJ is following a different route, and the question is: why?

[Lord Bellamy (Con)]

My Lords, with great respect to the noble Lord, Lord Blunkett, who has enormous experience and expertise in this area, the Secretary of State’s view is that the Parole Board is not entirely following the change in criteria that was adopted in June 2022, particularly in regard to the essential nature of the move to open conditions to inform future decisions about release. There is indeed a further condition that the

“transfer to open conditions would not undermine public confidence in the Criminal Justice System”.

That is a matter for the Secretary of State.

[Lord Pannick (CB)]

My Lords, in March, the High Court held that the previous Secretary of State, Dominic Raab, had acted unlawfully by instructing probation officers not to give the Parole Board their view of the risks of release of particular prisoners if that conflicted with his views. Can the Minister assure me that the new Secretary of State for Justice, Alex Chalk, who I warmly welcome to his post, has a better understanding of the importance of the independence of the Parole Board and its processes?

[Lord Bellamy (Con)]

The Secretary of State will of course abide by the recent decision of the High Court and will entirely respect the constitutional position of the Parole Board. I should add that what we are talking about today in relation to the 76 decisions is 32 prisoners serving a mandatory life sentence for murder, 11 serving a discretionary life sentence for rape and various other sexual offences, eight on an IPP sentence for serious sexual offences and another 25 for serious offences, all involving violence against the person.

[Lord Cormack (Con)]

Does my noble and learned friend share my concern that too many people are going to prison? Has a recent assessment been made of the effects of community restorative justice, which I saw in Northern Ireland when I was chairman of the Northern Ireland Affairs Committee in the other place and which was extremely effective?

[Lord Bellamy (Con)]

My noble friend makes a very fair point. That is a matter primarily for the Sentencing Council, but the Government will of course keep it under review.

[Lord Garnier (Con)]

My Lords, we long ago got rid of Home Office Ministers setting tariffs in life sentences because it permitted politics to become involved in the justice system. Can my noble and learned friend assure me that of the 76 decisions made by the Secretary of State rejecting a Parole Board recommendation, politics played no part whatever in any of them?

[Lord Bellamy (Con)]

My Lords, those decisions were all taken on the merits. I repeat that it is an operational matter which prison the prisoner should be in. That is quite distinct from the question of whether a prisoner should be released, which is the primary role of the Parole Board.

[Baroness Chapman of Darlington (Lab)]

My Lords, the principal reason that people are worried about this is because they believe that release straight from closed conditions and high security conditions increases the risk of reoffending and that a period in open conditions is very helpful in reducing that risk. Will the Minister return to the House at a future date to inform us of what has happened as a consequence of the decisions taken by the Secretary of State? Preventing a period in open conditions does not prevent release. All it does is prevent preparation for release.

[Lord Bellamy (Con)]

My Lords, I am entirely happy to give the House whatever information it requires at any time, and I fully accept that a move to an open prison is potentially one aspect of a prisoner’s progression towards release, but in modern thinking, it is not the only route. A number of closed prisons operate prisoner progression programmes towards release direct from closed prisons, and those relatively new programmes are enjoying results. Several hundred prisoners are released every year from those closed conditions without, as far as I know, any evidence that that poses a risk to the community.

[Baroness Meacher (CB)]

My Lords, following the question asked by the noble Lord, Lord Cormack, does the Minister accept that short-term prison sentences tend to lead to very high reoffending rates and that prisoners often come out more criminal than they went in. If we can ensure that community sentences really address the underlying causes of criminality—and the Justice and Home Affairs Select Committee is looking at that—will the Minister accept that short-term prison sentences really should be abandoned in favour of community sentences?

[Lord Bellamy (Con)]

My Lords, I cannot as of today accept that proposition. I entirely see the arguments, it is a very big question and I am sure we will discuss it on a future occasion.

[Lord Anderson of Swansea (Lab)]

My Lords, presumably the Secretary of State has access to all the information that the Parole Board has, and the Parole Board is well aware of all the relevant matters, so why the difference? Should the Secretary of State give reasons for rejecting the recommendations?

[Lord Bellamy (Con)]

The Secretary of State gives reasons in every individual case, and those cases can be challenged.

[Lord Moylan (Con)]

My Lords, has my noble and learned friend given consideration to what might be called the ripple effect of the change in criteria on Parole Board decisions, where the sentences are less than life sentences, where it is making other judgments about moving people from closed to open prison? I ask that because anecdotally one hears—and my noble and learned friend may be able to comment on this—that there are now spare places in open prisons that cannot be filled, while the closed prison estate comes under ever more pressure.

[Lord Bellamy (Con)]

My Lords, the Secretary of State, when introducing these new rules in January 2022, prioritised the precautionary principle and the protection of the public. Despite enormous pressure on the closed estate, he took the view—in my view rightly—that public protection was more important than the short-term expedient of transferring prisoners who are not suitable for open conditions to open conditions simply to reduce pressures on the closed estate.

[Lord Watts (Lab)]

My Lords, is it not the case that the Government’s policy is being driven by dogma again? They are not looking at the evidence. Reoffending rates are still far too high, jails are full and yet Ministers are claiming that they are going to have longer and tougher sentences. Do the Government not need to revisit this and come up with a coherent plan to deal with the matter?

[Lord Bellamy (Con)]

My Lords, as I have said on previous occasions, reoffending rates are slowly coming down, and I take this opportunity to pay tribute to the previous Secretary of State for his work on improved education in prison, employment opportunities, accommodation on release and other reforms which I am sure will bear good fruit in due time.

Imprisonment for Public Protection Action Plan

Lord Bellamy Excerpts

Thursday 25th May 2023 Grand Committee

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

My Lords, I very much thank my noble friend Lord Moylan for his opening remarks and for securing this debate, and all noble Lords who have spoken. As some of your Lordships know, I have met a number of you already and my friend, the right honourable Damian Hinds, the relevant Minister in the Commons, and I recently met the families and explained the Government’s reasons for proceeding with the action plan.

First, to restate the problem, IPP prisoners who have never been released have all, without exception, come before the Parole Board, which has been unable to say that they are safe to release. That is the essential stumbling block with which the Government and previous Governments have been struggling. The question is what to do about it.

As far as the resentencing exercise is concerned, as I think I have explained on a previous occasion, the Government’s position is that most of the relevant prisoners have already served a sentence, so on what basis exactly can one resentence such a person? What one is really doing is looking to find a way to release, or to improve the prospects of release for, the individuals concerned, and/or—as has been rightly pointed out—to address the problem of recall. Quite a lot of these prisoners have been released but found themselves being recalled for one reason or another.

With the greatest respect to the right reverend Prelate, there is no evidence that these recalls are arbitrary; they are for the breach of licence conditions. It may well be that there are some licence conditions that are difficult to comply with, or that the individuals themselves find it difficult to comply with; that, therefore, is something to be looked at. As the noble Lord, Lord Coaker, has just remarked, the Chief Inspector of Probation is about to investigate in detail the processes of recall to see whether this is being done properly and proportionately. That is a very important new element of the situation.

I respectfully suggest that the action plan is a very important step forward and another new element. The essential purpose of the action plan is exactly the purpose that the noble Baroness, Lady Burt, referred to, which is to break the Catch-22. How will we go about breaking the Catch-22? This is a shared problem. The Government are not trying to reserve the problem to themselves; it is a problem that every noble Lord and every member of the community can make an important contribution to. That is why, among other things, we have included an external stakeholder group in the arrangements, and why the Government have committed to publishing regularly information on its progress, so that everybody can see the data—data is a pretty important part of this—and the whole process can be put under the spotlight. That is what needs to happen: this issue needs to come up the agenda and be put under the spotlight.

Just for a moment, I shall record some aspects of the action plan, so that they are on the record. First, we have something we have never had before: a senior IPP progression board chaired by Mr Jennings, to whom reference has already been made, who is a most dedicated civil servant. That board is to drive forward measures in this area.

There are four basic principles set out in the plan; we have all read it, so I will not spend time reproducing them. There are success measures. There are six workstreams, two of which—I think workstreams 3 and 4—will in due course try to deal with the futility of the prisoners and the feelings of hopelessness that have been mentioned; to deal with the mental health issues, as there are quite a number of references to psychologists and so forth, and one is aware of the views of the Royal College in that respect; and to make a real, effective, tangible change.

The plan also extends, of course, to the community. Progression panels are being established in the community for each prisoner, in addition to their bespoke sentence plan, to give everybody a reasonable chance of getting through what is a very difficult situation.

As the noble Lord, Lord Coaker, rightly said, no responsible Government can ignore the need for public protection. That has to be borne in mind. I have to record—I make no apology for doing so—that this is yet another debate in your Lordships’ Committee where no one has used the word “victim”. Victims and potential victims have to be borne in mind as well, so one is struggling to find a balance in what is an intractable and difficult historical situation.

It is quite difficult at the moment to put flesh on the plan, as I think my noble friend Lord Moylan was asking us to do—has it taken account of this and has it taken account of that? Such points will of course be fed back. As the board takes control and drives this forward, I have every reason to hope and believe that all the points that have been made by your Lordships today will be taken into account. This is a very important advance. It will be driven by competent and experienced civil servants, and I would ask your Lordships to judge us by results. We do not have any results yet because it has only just started, but it is intended to respond to the very special situation where people have possibly lost faith in the system, are fragile and need special attention. I hope that will be delivered.

It is perfectly true that there have been staff shortages in the probation service. We have recruited some 4,000 new probation officers during the last three years—1,500 in the last full year. We have to make sure that the action plan adapts to those resources. There will be a review by the IPP progression panels, which we have directed largely to prisoners in the community.

I take very much to heart the opening comment from my noble friend Lord Moylan that it would be quite wrong to raise hopes only to see them dashed. However, I draw your Lordships’ attention to the fact that the Victims and Prisoners Bill will come before the House, so I anticipate that this is not the last debate that we will have on this subject. I would personally be very open, as I am sure would be the Government, to serious and concrete suggestions for a further look at, or even reform of, the structure that we have at the moment. That is something that any responsible Government should continue to consider. I hope that the forthcoming Bill will be an occasion for further debate. To touch on one point made by my noble friend Lord Moylan, in the Government’s view this is in part a moral issue, and I think the supervisory board will also have that well in mind under the action plan.

I am afraid that I cannot answer the question from the noble Baroness, Lady Burt, as to how long it will be before the last IPP prisoner is released, nor can I say at the moment, or quantify, what kind of additional finance in due course might be devoted to this problem. I can say—as I hope I have tried to illustrate—that the whole issue is very much on the radar. Obviously, from any Government’s point of view, nobody wants to keep anybody in prison unnecessarily—it is going to be expensive; no one wants to recall people unnecessarily. The strain on the probation service of dealing with all this is already pretty heavy, so if we can lighten that strain and reduce the general burden, and find ways in which people can break this Catch-22 and make their way successfully through the system, that is the Government’s objective.

I am conscious that I may have not responded to every point that has been made. I must say to the noble Baroness, Lady Burt, that I am afraid I cannot accept that the report is shoddy. Enormous effort has gone into this and will go into this. Your Lordships have my personal assurance that the Secretary of State and relevant Ministers will continue to drive this forward. Let us look forward. I would not say that this is the end of the story, and I am sure there will be opportunities for further reflection and debate when the forthcoming Victims and Prisoners Bill reaches this House.

Forgive me if I have not answered all questions; I shall write to anyone who would like a further answer than I have been able to give today. I thank noble Lords for their attention.

Sentencing Act 2020 (Magistrates’ Court Sentencing Powers) (Amendment) Regulations 2023

Lord Bellamy Excerpts

Tuesday 16th May 2023 Lords Chamber

[Lord Hacking (Lab)]

My Lords, the House is fortunate in having my colleague and noble friend Lord Ponsonby, and with some reason because he has sat for many years on the magistrates’ courts and has enormous experience of their functioning. We are also lucky to have the noble Lord, Lord Thomas, whose memory stretches back—I dare not ask him how many years—to his early days when embarking upon a career at the Bar, and to a certain magistrate whom he much respected in Wales. We are fortunate, too, to have the noble Baroness, Lady Sater, who is behind the Minister, and who also clearly has much experience as a magistrate, although I think she has ceased to be one.

In my experience, and this goes a long way back, magistrates are on the whole sensible people—after all, having been magistrates for 10, 15 or 20 years, they have become very experienced—and are not great senders to prison. Magistrates are actually reluctant to send people to prison, particularly for the reason that the noble Lord, Lord Thomas, presented. It does not do much good to have somebody in prison for three or six months to set a kind of an example. It does not work, or did not in my experience, for the normal kind of criminal offences involving theft and violence. But it was quite good for motoring offences, because it set a rather good example to all motorists. If the driver of a motor car who is otherwise without conviction misbehaves really badly in driving their car—these are normally citizens who have not had previous convictions —and they are sentenced to prison for a short time, that is a very big shock.

The central issue has been rightly raised by my noble friend Lord Ponsonby and by the noble Lord, Lord Thomas. There should be proper research on the figures to see whether the basis of this is right, because magistrates across the board do not have a record of imprisoning the people who appear in front of them. It seems to me that to change the sentencing policy down from 12 months, which is only a moderate period, to six months is complete nonsense. Magistrates should have that freedom. All that happens is that the appeals go up—in my day—from the magistrates’ sessions to quarter sessions, and, for many years now, to the Crown Court. One of the things that magistrates were able to do—I am sure this remains the position—was that, if they considered that they did not have sufficient powers to sentence the offender for a period of more than 12 months, they could send the case to the higher court and it could be dealt with there.

In summary, we are very spoilt by the presence of those who have experience in magistrates’ courts in this House. There should be proper research and I welcome all of those suggestions.

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

My Lords, I am very grateful to all noble Lords who have contributed to this debate, in particular the noble Lord, Lord Ponsonby, whose Motion this is. I also thank the noble Lord, Lord Hunt of Wirral, and his colleagues in the Secondary Legislation Scrutiny Committee for their report. Their comments are understandable; I will say more about the background to this in a moment.

I would first like to make one overarching point. I would like to reassure the House, and through the House the magistracy in general and the Magistrates’ Association, that this change is no reflection whatever on the magistracy or its use of the extended powers. The Government place immense value on the continuing and outstanding contribution of magistrates in the justice system. I believe everyone in this House is very aware of the exceptional work that magistrates do. This has already been mentioned by the noble Lords, Lord Thomas and Lord Hacking, and by other noble Lords.

--- Later in debate ---

[Lord Hacking (Lab)]

Before the Minister sits down, has he any figures for the occasions when the magistrates do not consider that they have sufficient powers under the current regime and therefore send the accused to the Crown Court for sentencing?

[Lord Bellamy (Con)]

I do not have that figure with me, but I will write to the noble Lord, Lord Hacking, with it.

[Lord Ponsonby of Shulbrede (Lab)]

I thank all noble Lords who took part in this interesting and short debate. I query one statistic that the Minister used: he spoke about a 35% increase in sentences between six and 12 months during the six-month period after the introduction of the increased sentencing powers for magistrates’ courts. That seems a high figure. The SLSC report projected an increase of perhaps 500 prisoners over a two-year period because of that increase in sentencing. To me, that sounds a lot less than 35%, but, nevertheless, I take the Minister’s broader point.

In the Minister’s conclusion, he described the Government’s course of action as the lesser of two evils, but there are many more than just two evils. A number of evils leading to the increase in the prison population have been identified in this debate. The whole point of the debate is that we do not know the proportion of those evils which are leading to the increase in the prison population by 4,000. The Minister has not given any extra information so that we can judge whether the course of action taken by the Government has addressed the more serious of the various evils leading to the increase in the prison population. The point of the SLSC report was that the Government used a cruder mechanism when using the sentencing powers of the magistrates’ courts as a sort of valve for regulating this, when so many other factors are leading to the increase in the prison population. Nevertheless, it has been an interesting debate, and I hope that the Government will look at the data in the round and review this decision again in the coming months. I beg leave to withdraw my Motion.

Nuptial Agreements

Lord Bellamy Excerpts

Tuesday 25th April 2023 Lords Chamber

[Baroness Shackleton of Belgravia]

To ask His Majesty’s Government what plans they have to introduce the draft Nuptial Agreements Bill, as drafted and recommended by the Law Commission in its Matrimonial Property, Needs and Agreements report, published on 26 February 2014 (HC 1089).

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

My Lords, it was announced on 4 April that the Law Commission will be conducting a review of the law on financial provision on divorce. While this review is taking place, the Government do not consider it the right time to legislate in respect of nuptial agreements. The Government favour a holistic rather than a piecemeal approach to any future legislative reform in this area.

[Baroness Shackleton of Belgravia (Con)]

My Lords, I am disappointed but not surprised by that response. I declare my interest as practising in this field. It is well known that this is stand-alone legislation which came about as a consequence of a House of Lords decision in Radmacher in 2010. During the coalition, the Law Commission set up a paper and, as a consequence, in 2014 there was a response which is oven-ready for putting on the statute book.

Instead of that happening, with almost indecent haste and despite the warnings, the no-fault divorce law has proceeded through these Houses. We have more people with pre-nuptial agreements and more people getting divorced, and there is no direction for the judges as to how the law has changed as a consequence of these agreements being enforceable. Please can the Minister explain why it is acceptable to delay this legislation, which would be quite simple to push through, in circumstances where the courts are over-burdened, the judges have no direction and lawyers practising in this field have lucrative groundhog days ahead?

[Lord Bellamy (Con)]

My Lords, I thank my noble friend Lady Shackleton for her question. The answer is twofold: first, the Government consider that the present root-and-branch review of financial provision is better than looking at a particular outcrop within that landscape. Secondly, any Government have to prioritise. In recent years, priority has been given, for example, to the Domestic Abuse Act 2021; the Divorce, Dissolution and Separation Act 2022, which introduced no-fault divorce; and the Marriage and Civil Partnership (Minimum Age) Act 2022, which made it illegal to marry under the age of 18. These are all fundamental reforms and I make no apology for prioritising those measures.

[Baroness Deech (CB)]

My Lords, may I start by wishing the Minister a happy birthday—and ask him whether there is any prospect of this Bill being enacted in his lifetime and mine? He has mentioned all these other statutes, which are not really relevant. The failure to enact this Bill undermines the no-fault divorce law, because the failure to have binding nuptial agreements leaves couples in as antagonistic and expensive a situation as before. Will he please get on with it?

[Lord Bellamy (Con)]

My Lords, I thank the noble Baroness for those birthday wishes. It is often said that life begins at 40 but experience shows that it is very much later than that. I very much hope that we will be able to legislate in her lifetime, if not my own. Prenups are undoubtedly an important issue. Since 2010, the law has been that there is a presumption in favour of enforcing prenuptial agreements unless it is unfair to do so. Secondly, although this is an important question, it affects a relatively small and privileged cohort, and it must take its place in the queue on that basis.

[Lord Thomas of Gresford (LD)]

The Minister refers to a small cohort. Has he any idea how many nuptial agreements exist as a percentage of those people who get married these days?

[Lord Bellamy (Con)]

My Lords, I do not have that information. I will see if I can find it and if I can, I will write to the noble Lord.

[Lord Watts (Lab)]

My Lords, this is a sensible move. It would make sense to introduce this legislation now, provided that it does not affect the overall review that is taking place. Why does the Minister not just act on this one piece of legislation now?

[Lord Bellamy (Con)]

My Lords, it is hard for me to add to my previous answer. The Government feel that we must look at the whole landscape and get the law on financial provision sorted out, and that gives us the context in which we can decide what to do about prenups.

[Lord Sandhurst (Con)]

My Lords, as others have said today, such a Bill can stand completely independently of the planned reform. The whole point is that those who embark on this do not want to litigate, in the unhappy event of a divorce, and do not want to expose themselves to all the uncertainties of the court’s discretion. Why on earth can the Government not do something about it now?

[Lord Bellamy (Con)]

My Lords, it is not a straight- forward issue; even the Law Commission’s report of 2014 made it clear that there had to be quite a number of exceptions in relation to financial need before one could legislate. As I say, the Government prefer to proceed on a broad front rather than deal with this issue specifically.

[Lord St John of Bletso (CB)]

My Lords, I have practised as a divorce lawyer in South Africa, where the prenuptial agreement is respected, and it should not be seen purely as a protection for high net worth individuals. Why is there so much resistance to respecting and introducing a prenuptial agreement?

[Lord Bellamy (Con)]

My Lords, the Government have confidence in the courts to apply the general law, which is that prenups should in general be respected unless it is unfair to do so. That is not far off what the Law Commission recommended in 2014.

[Lord Ponsonby of Shulbrede (Lab)]

My Lords, most couples going through a divorce do not have their financial arrangements made by judge. Some reach settlement with the assistance of lawyers, others through mediation and arbitration. Of course, many do not have access to lawyers because of the withdrawal of legal aid. When the holistic review looks at financial provision for divorce, will that include the increase in legal aid for divorcing couples?

[Lord Bellamy (Con)]

I think the answer to that question, for which I thank the noble Lord, Lord Ponsonby, is that this is not directly within the Law Commission’s terms of reference, but it is well within the review of civil legal aid upon which the Government are currently embarking.

[Baroness Butler-Sloss (CB)]

When are the Government going to get on with financial relief and produce some legislation?

--- Later in debate ---

[Lord Bellamy (Con)]

When the Law Commission’s report is available.

[Lord Wallace of Saltaire (LD)]

My Lords, it was very reassuring to hear the Minister say that we need to consider legislation very carefully before it is introduced and see how it fits in with other Acts and so on. Can he assure us that similar procedures have been applied to some of the legislation currently before the House with which we are struggling?

[Lord Bellamy (Con)]

The Government always do their best to ensure that the legislation is comprehensive and consistent.

Economic Crime and Corporate Transparency Bill

Lord Bellamy Excerpts

Committee stage
Tuesday 25th April 2023 Grand Committee

[Baroness Blake of Leeds (Lab)]

I thank everyone for the extraordinary debate that we have had on this issue today. I continue in the vein of looking for optimism in the outcomes of some of the discussions that we have had. I pay particular tribute to Members of this House who have joined Members of the other place in relentlessly pursuing this issue, to the extent that there is now a far greater understanding—not only in Parliament but in the wider country and the communities particularly affected—about the issue of SLAPPs, which perhaps a year or two ago was not understood at all.

To start by going back to the very basics, SLAPPs are, as we know, strategic lawsuits against public participation, abuses of the legal system, generally by the super-rich—and, it is important to remember, they are intended to harass, intimidate and financially and psychologically exhaust one’s opponent. I am not sure that that element has quite come through, although everyone is fully aware of it. We have talked today about this practice being embedded in the system and its close relationship to the scourge of economic crime. In other debates that we have had on the Bill so far, we have highlighted the real extent of economic crime facing this country. All of us have an obligation and commitment to come together to work out how we are going to deal with it.

As we have heard, the use of SLAPPs has been linked to Russian oligarchs. That is inevitable, given what has happened over the past year, particularly with regard to looking at ways to prevent journalists from reporting on their links to economic crime, with particular reference to the war in Ukraine. As we have seen, SLAPPs are not only used by those committing economic crime, but the amendments proposed here narrow the definition to those concerned with suppressing information on economic crime. The wider point which we need to take on board is about the serious concerns that SLAPPs are now being used to suppress democracy globally. It is important to put it as far as this.

I am sorry that the noble and learned Lord, Lord Garnier, has had to go, but I would like to say to him that his attempt to reassure us on the numbers has not had that effect at all. It has been clearly stated that the small numbers that reach court highlight and emphasise the problem that we have.

I shall go on to ask the Minister to comment on the view coming from the other place that SLAPPs are under a separate jurisdiction and therefore should be under a separate Bill. We have heard some great arguments as to why we should look at these amendments seriously and incorporate them into this Bill.

I thank all noble Lords who have spoken to their amendments and clearly given us a full understanding of the purpose behind them and how they will contribute to the overall objective. From our position on these Benches, we look forward to engaging in full and detailed conversations as to how, as I suspect will be necessary, we present further amendments on Report. We support the principle of the Government bringing forward effective legislation and will continue to call out this issue wherever it occurs, whether on this estate or elsewhere, when anyone in a position of influence puts undue pressure on someone to make sure that important matters do not see the light of day.

I want to highlight some of the reasons why feelings are running so high. We need to understand and remember the severe power imbalance between the claimant and the defendant. In this context, journalists and media outlets are put at a disadvantage from the outset, as we have heard today. Defending a legal case can, as we know, be prohibitively expensive and a huge drain on resource. As we need to emphasise every time we speak about this, SLAPPs can create significant financial jeopardy for journalists and media outlets, with legal costs starting to accrue long before cases get anywhere near reaching court.

Putting ourselves in the place of those who have been subjected to this, I think that the process of defending a legal case in this sphere can feel like punishment: a fear of devastating financial impact, potential loss of savings, their homes, pensions and livelihoods if a case goes to court. The effort in putting a case together involves massive distraction from the work that people are trying to do. As others have said—it is a serious charge but one we should take seriously—this is having the impact of undermining the basis of democracy.

We have talked about how libel laws in the UK are weighted, but we also need to emphasise the issue of libel tourism. It remains an issue in the UK. The bar to bring a case here is problematically low, and the use of privacy and data protection laws is increasing. We need to consider that SLAPPs in the UK are often pursued against individuals rather than the organisation they work for, which undermines the resources available to mount an adequate defence.

One of the themes running through all our discussions on the Bill is the reputational damage to London and, therefore, the country. London’s obvious position as a global hub for the super-rich has compounded the problem. We must make sure that clients cannot use threats of legal action to clean up their image and remove unfavourable information from the public domain. There has been insufficient recognition by the UK Government and official bodies of the connection between protecting media freedom and countering corruption.

Returning to the personal, I suggest that other factors include the psychological impact of intimidation and harassment on those subject to legal challenges. That has not been sufficiently recognised, and such things lead to a massive impact on mental health.

Will the amendments before us today tackle those issues? I think that is a subject for further discussion, but the main question that has been put repeatedly from across the Committee today is whether the Government are serious about measures to end these practices. We had some optimism in July last year when there seemed to be a commitment that legislative reform measures would come forward, but where are they? Are they being moved forward? Will the Government follow through by supporting the measures proposed in amendments to the Bill?

We have heard that this is a serious issue. It is urgent for so many reasons that we have discussed today. My last question for the Minister is: will the Government take this opportunity to act, recognising how urgent the situation is, and meet with us to discuss ways that we can move this important matter forward?

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

My Lords, I warmly thank all noble Lords who have spoken in this debate and who have spoken to me directly on this issue. I also thank noble Lords for the enormous amount of thought and consideration that has been put into this issue by those who have spoken. There is significant strength of feeling across the Committee on this important issue. I begin by providing an assurance that the Government share those concerns and that it is clear to the Government that we should take legislative action against SLAPPs. As the Government have set out, for many reasons that have been mentioned in this debate, we are firmly committed to legislating effectively, comprehensively and without undue delay on this issue.

Noble Lords will not necessarily be entirely happy when I say that we do not think this Bill is the correct vehicle for tackling this issue. There are essentially two reasons for that. One is that here we are dealing with economic crime. I take my noble and learned friend Lord Garnier’s technical point about the scope of the Bill, but the major issue here is that, even if we were to put in an amendment to this Bill, it would still be too narrow because we are not covering matters that are not economic crime, such as freedom of expression, political interference, national security and so forth. The Government’s preference would be to handle the entire landscape of SLAPPs in one place, and that is not this Bill.

[Lord Agnew of Oulton (Con)]

The Minister talks about introducing some SLAPPs legislation “without undue delay”, but there is no possibility of a timetable to introduce that. We are only 15 or so months away from a general election, and the legislative timetable is jammed solid already. There is no fixed slot for it to come in. I utterly reject the idea that the Government want the perfect to be the enemy of the good: “We are going to do everything in one Bill”. Why not do this bit now, which will take very little parliamentary time? As the noble Lord, Lord Cromwell, said, it will deal with probably 80% of the problem, because we know that shutting down debate on economic crime is probably our biggest problem. When in 10 or 15 years’ time—this point was made by the noble and learned Lord, Lord Thomas—the Government finally find the perfect moment, although some of us will be dead by then, they could then repeal the relevant clauses of this Bill and do it all in one bit. But I utterly reject the pathetic excuse that this is not the right moment. I ask my noble and learned friend to be a little more straightforward in his commitment.

[Lord Bellamy (Con)]

My Lords, I entirely understand the frustrations felt by my noble friend Lord Agnew and others. It is not to be ruled out that we could find an appropriate legislative vehicle for this matter before the next general election. That is not to be ruled out. However, I cannot today go further than to say that this issue will be brought forward by the Government when parliamentary time allows. That is normally a long-grass phrase—kicking it into the long grass. I regard it today, and say it today, as a short-grass phrase because I am not at the moment giving up on having legislation relatively soon, but I can give absolutely no commitment on that matter.

[Lord Thomas of Cwmgiedd (CB)]

I ask the noble and learned Lord, as a little test of this commitment, is there is a draft Bill? If there is one, his assurance is really wonderful but, without one, is it not just a phrase for the long grass?

[Lord Bellamy (Con)]

I can tell your Lordships that the Government have not been idle in preparing possible drafts to deal with this matter, and I am very happy to keep in close contact with noble Lords between now and Report on progress and to discuss as widely as we need to how we should approach this matter.

[Lord Cromwell (CB)]

What the Minister is saying is potentially helpful. His initial statement was almost verbatim what we got at Second Reading and in previous Bills. I could almost set it to music now, I have heard it so many times, but we seem to be getting somewhere. Will he clarify whether he is happy to continue discussions with us about these Bills, which, apparently, the non-idle Government have been working on or about a possible amendment to this Bill? Will he clarify which one we are addressing here?

[Lord Bellamy (Con)]

It is the former. The second point here is that the Government are not happy, for reasons that I shall now, I hope, go into a little detail about, about the actual amendments being proposed here. I preface that by saying that we should not overlook the fact that there is one enormous conceptual issue behind all this, which is the question of access to justice. This is probably the first time that anyone has ever legislated against someone bringing something to court, which is something that we need to stop and think about. Where is the balance? If I may say so, reference has been made to the rule of law, and it is somewhat ironic to say that we must uphold the rule of law by penalising someone who seeks access to justice. That is a very difficult area, and we need to find a balance. The Government would like to explore further how that balance is to be found because, in the Government’s respectful view, it is not yet found in the amendments before the Committee today.

[Lord Cromwell (CB)]

I think that we are actually in agreement on that, and I hope that I made it clear earlier that what we need to do is to work together to get this right with critical friends, including the noble and learned Lord, Lord Garnier, who will bring a forensic examination of whether the work is right, but I go back to an earlier comment that this is difficult. Yes it is, but it is not impossible.

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[Lord Bellamy (Con)]

I entirely accept that it is not impossible and, to take the phrase of a noble Lord earlier, that it is actually doable. I think that it was the noble Lord, Lord Cromwell, who used that phrase.

[Baroness Bennett of Manor Castle (GP)]

My Lords, I was hoping that someone with a great deal more legal knowledge than me would rise to speak, but I feel that I need to challenge the Minister’s comment that this proposal is unprecedented. Other noble Lords will be able to say more, but we have a process of law about vexatious litigants who are unable to bring cases. There is a whole set of rules there, and there are rules in the family courts that eventually stop cases being brought. So it is not the case that this is something that has been miraculously conjured out of the air that does not exist in any form whatever in the legal framework.

[Lord Bellamy (Con)]

My Lords, on that last point I had primarily in mind the amendments that seek to criminalise bringing cases before the courts, which is the subject of some of the amendments.

[Lord Fox (LD)]

I am sorry. I appreciate the access that the Minister is giving us. I am really following up the point that the noble and learned Lord, Lord Thomas, made. The Government are not being inactive. Can the Minister tell us how many people are in the dedicated team that is currently pursuing this issue? It is complicated, as he pointed out, and Government do want to get more depth on this, so how many people are now working on this, and when does he think they might actually come up with something that could then go into a draft Bill? In a sense, what is the timetable and what is the amount of horsepower that is going into that timetable?

[Lord Bellamy (Con)]

I am afraid I cannot give the noble Lord a timetable. I cannot tell him how many people are working on it, but I can tell him that important work is being done. I am not in a position, and I very much regret that, to go further than that today, but I am prepared to keep in close touch with your Lordships between now and Report to share progress and thoughts on whether there is a legislative vehicle that can conveniently—and soon—be introduced.

[Lord Cromwell (CB)]

I am sorry. I will press the Minister a little more on that. When will we first hear from him on that update on progress?

[Lord Bellamy (Con)]

Can I write to the noble Lord, Lord Cromwell, on that point?

[Lord Cromwell (CB)]

I eagerly anticipate it.

[Baroness Blake of Leeds (Lab)]

Can I ask that we are all included in the correspondence?

[Lord Bellamy (Con)]

Absolutely. I will write to everybody after this debate and try to elaborate a little on what I have said. I hope noble Lords understand that in terms of my boss, I recently had a change of personnel, and it takes a little while to allow the dust to settle, if I may put it like that.

The only other thing I would respectfully draw noble Lords’ attention to, and I fully accept there is a certain amount of controversy as to how big this problem is, is that the Solicitors Regulation Authority issued a warning notice on 28 November 2022, which led to that authority undertaking investigations in relation to SLAPP complaints, so we are not without a regulatory instrument to at least hold the line until we are able to legislate. That, as far as one can tell, has had a salutary effect on the practical consequences of SLAPPs. It is not the case that nothing has been done.

[Lord Thomas of Gresford (LD)]

My Lords, the Minister said that the amendment which I have put forward criminalises access to justice. It does not do that; it criminalises a threat of litigation that is unwarranted and known to be unwarranted without reasonable excuse. It is perfectly simple, but I would be very unhappy to leave this Room today with the thought that the Minister has in mind that my amendment is criminalising access to justice.

[Lord Bellamy (Con)]

My Lords, perhaps I expressed myself a little loosely. Let me put it like this: in the Government’s view, this is not an area where we should introduce the criminal law, whether it is in relation to pre-litigation or in any other respect in terms of litigation. One is faced with a very basic question of when is something that is a robust and justifiable approach to litigation in a pre-action letter a threat. That is not straightforward, in the Government’s view. The Government’s view is that this is not a matter where the criminal law should intrude.

[Baroness Stowell of Beeston (Con)]

My Lords, I am sorry to interrupt my noble and learned friend, but his reference to the Solicitors Regulation Authority prompts me to ask him a couple of questions. He makes reference to access to justice and to the Government being nervous about legislating in a way that would call that into question. As I said at the start, the amendments that I have tabled, Amendments 87, 88 and 89, are directed at the Solicitors Regulation Authority. As my noble and learned friend has already said, it issued a notice recently to reinforce the fact that this kind of activity is unacceptable.

My amendments seek to codify that yet further and give it the power, which it does not feel it has sufficiently clearly in law, to act when a solicitor is conducting themselves in a way that could be supporting somebody trying to prevent proper inquiry into what could be economic crime. I am struggling because I understand the argument my noble and learned friend is making about parliamentary time and the Government wanting to legislate for this in the round, but I also know as a former business manager that it is very difficult for any individual government department to be confident, even if it wants and hopes to be able to legislate in the way he is indicating that he and his department do, because the timetable is not in its control.

There is frustration in this context because we know that this is about only economic crime and that we are proposing amendments that would tackle only economic crime, as the noble Lord, Lord Cromwell, has said several times—maybe this is a bigger issue than even the SRA is telling me. This would make a difference none the less. In my humble view—I am not a lawyer—I do not think we are proposing anything that would limit people’s access to justice. When my noble and learned friend goes back to his department, even if he cannot make any kind of commitment at the Dispatch Box today, which I understand, could he at least have a conversation with others that is a bit more open-minded than his colleagues seem to have been on this matter up to this point?

[Lord Bellamy (Con)]

I thank my noble friend for that intervention. I can certainly have that conversation. I do not want to give the impression that the Government are close-minded. We are very prepared to legislate and have said that we are willing; the question is finding the right vehicle. I will deal with my noble friend’s amendments in a moment. When I said a moment ago that there are issues around access to justice, I meant no more than that. We have to be very careful in talking about approaching a court and whether that is in some way unprofessional, subject to sanctions or otherwise criticisable.

As far as the Government can see—if I may think aloud—there are probably two essential mechanisms to deal with this, one of which is in part reflected in some of these amendments, although the Government would not entirely agree with how it is put. One is an early disposal mechanism and the other, critically, is a cost protection measure so that people are not exposed to costs. As has been said many times, the risk of having to pay the costs is the real imbalance. Those are two general thoughts that, I hope, illustrate that the Government are not closing their mind to this. We are thinking about it and hope to come forward with a comprehensive, balanced solution, but today I cannot say exactly when.

With that background, I will deal with the specific amendments, which the Government are sympathetic to but cannot accept. On Amendment 80 from the noble Lord, Lord Thomas, as I have already said, new criminal offences should be created with care. That is especially true when targeting professionals with responsibility for assisting persons to achieve access to justice. There is a risk of inadvertently undermining access to justice in that way and the Government’s view, as I have said, is that a criminal approach in this area is not correct and would in any case create quite a lot of difficulties around proof beyond reasonable doubt, the concept of reasonable excuse, et cetera. Criminal offences need to be clear and we are very reluctant to see a new criminal offence created. That is our position on Amendment 80—it is too far-reaching. On that basis, I ask the noble Lord, Lord Thomas, in due course to withdraw it.

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[Baroness Stowell of Beeston (Con)]

Briefly, I urge my noble friend to look at the correspondence I have had with the SRA specifically about the Bill. The SRA makes it clear that what I am proposing by way of these amendments would give greater clarity to the fact that SLAPP cases which relate to economic crime would also not be subject to the current cap but would benefit from that cap being lifted, which the Government are seeking to do. To put it another way, my amendments are trying to make sure that the intention of what is already in the Bill is achieved in the way that the SRA is asking for.

[Lord Bellamy (Con)]

Indeed. I respectfully suggest to my noble friend that she may have copied the letter to which she refers to the Home Office and the Ministry of Justice recently.

[Baroness Stowell of Beeston (Con)]

It was also copied to the Minister’s office.

[Lord Bellamy (Con)]

Indeed. I suggest that I meet with my noble friend and we go through it with a fine-toothed comb. I am happy to meet with anybody else who wants to go through particular amendments with a fine-toothed comb and see where we are, because there is no point in arguing about things where we are ad idem.

The same point arises on Amendment 89, which relates to POCA—I pronounce it “poker”, but others pronounce it “pocker”—and Section 327 of that Act. Amendment 89 aims to stop corrupt claimants using their criminal property to pay their legal fees. Our view on Section 327 of POCA is that that is already effectively covered because it makes it a criminal offence for anyone to convert, conceal or transfer criminal property, so the payment for legal services using criminal property is already a crime. I am led to believe that the Solicitors Regulation Authority will shortly publish new guidance on the application of POCA in relation to solicitors’ responsibilities in that respect. So our position on our amendment is that it is already covered, but again, let us discuss this in detail so that we can get it right. Formally speaking, for those reasons I ask my noble friend in due course not to press her amendment today.

I am grateful to the noble Lord, Lord Cromwell, for his Amendments 105 and 106, and for the care and attention that he has devoted to this. Again, the Government’s position is that these amendments do not quite cut the mustard, if I may put it that way.

As drafted, Amendment 105, which seeks to create a new defence, would cut across several other areas of jurisprudence. There is a common law public interest defence for a breach of confidence, and a very careful balancing, in Section 4 of the Defamation Act 2013, as to when you can have a public interest defence in defamation cases. This kind of provision should not be rushed through without a careful examination of its side effects on other legislation and potential unintended consequences. Neither does the amendment quite attack what the Government would suggest is the main problem, which is not whether you have a defence but whether you have the money to fight it in the first place. You need some cost protection to be built into the SLAPPs framework.

The same point applies to Amendment 106 on the power to strike out. There are already powers to strike out, and the noble Lord makes it clear that we need to clarify those powers—but one cannot get away from the fact that, typically speaking, a strike-out application is very expensive and complicated, because you are trying to throttle a case at the beginning and the court is having to go through a great deal of work to get there. In the end, a strike-out will probably not be effective in achieving what the noble Lord seeks to achieve. We share the objective, but we are not sure that this is the right way to do it.

While we are sympathetic to the sentiment behind the amendments, from a technical point of view, the Government do not think that they are quite right. Unscrupulous claimants could exploit all this by ensuring that the process remains very complicated, long and burdensome. That is the Government’s position on these amendments. I repeat that I am very happy to engage so far as I can in a dialogue with noble Lords to see whether we can make further progress on the technicalities of this issue and look for a proper legislative vehicle in which to carry it forward.

[Baroness Bennett of Manor Castle (GP)]

I do not believe the Minister addressed the point that I and a number of other noble Lords raised about the international dimension of this, and the UK’s position in the international framework. Noble Lords may have seen that the noble Baroness, Lady Kennedy of The Shaws, was joined in this Committee by some guests, one of whom was Sebastien Lai, the son of Jimmy Lai, who was a victim of what has been labelled lawfare by the Chinese state in Hong Kong. We are also seeing British institutions being used as a weapon for that lawfare. Does the Minister acknowledge that there is a true international reputational issue and that the whole rule of law across the world is under attack?

Reflecting on what the Minister said, I think we heard something of a hint about the Government’s thinking that cost protection could be one way of addressing this issue. That fails to address the point made by the Labour Front Bench and others that, even if there is cost protection, an enormous amount of time, energy and stress goes into a case. Even if you are able to take away the financial threat, you are taken away from doing other journalism if you have to spend months engaging in a case.

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[Lord Bellamy (Con)]

I thank the noble Baroness. I am perfectly prepared to accept that there is an international aspect. The Solicitors Regulation Authority is on the case, it has issued its warning notice—fired its warning shot—and that is having an effect, so it is not as if the position is not being tackled. The question is about legislation, and the need to get it right from a rule of law and an access to justice point of view. There is a conflict here, as the noble Lord, Lord Vaux and the noble and learned Lord, Lord Garnier, pointed out. One has some misgivings about this because, as was also said earlier, journalists are not always right, and one must bear that in mind. If you have ever been on the receiving end of the tabloid press as a defendant, you will know that they still have not inconsiderable power if you have no money to defend yourself.

[Lord Cromwell (CB)]

If I may say so, one of the formative experiences of my childhood was being on the receiving end of tabloid journalism, and it is something I will never forget. That does not alter my commitment to getting this right.

I am encouraged by the Minister saying that my amendments do not quite cut the mustard—“do not quite” is a pretty good score in my book. I agree with him that early access will be a key feature of the right answer here, and cost protection, depending on what form it takes, is potentially helpful. He constantly prays in aid access to justice is a big issue, and I agree that the definitional issue of a SLAPP is very important. However, in the conversations he has promised to have, I would want him to make a distinction between harassment and denying the right to justice. Denying the right to justice, the ability to go to court if you wish, is not what I am about—I am about where people have no intention of going to court if they can possibly avoid it but are simply harassing people who want to bring economic crimes into the light. The Minister has given us a hint that there is a government Bill in draft here. I am taking that in good faith; I hope that faith will be well placed and that we will see it soon.

[Lord Bellamy (Con)]

Again, I thank the noble Lord for his remarks. The key problem is to distinguish access to justice from harassment. It is quite difficult, but it can be done. That is my answer to that question. On where the Government are, as I said before, we are working on drafts, but I cannot go any further than that until I know whether there is a legislative vehicle and which it can be. I am sorry not to be able to commit the Government at the Dispatch Box today any further than that but, as I said, I am hoping—and I can only express as a hope—that this is a short-grass and not a long-grass issue.

[Baroness Bennett of Manor Castle (GP)]

My Lords, I apologise to the Committee, I perhaps should have declared my position as co-chair of the All-Party Parliamentary Group on Hong Kong in my last intervention.

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This has been a very interesting debate. The essential point of my amendment is that I want to stop it before proceedings commence, and you can do that with criminal law and sanctions only by saying that someone who threatens litigation knows what he is doing and intends to stifle proper journalistic investigation, and he has no reasonable excuse for it. To my mind, that is within criminality. For the Minister to say, “We can’t have another criminal offence, we have too many”, is just a joke. This Bill is littered with new criminal offences —every day we debate new criminal offences in the Chamber. It is a joke to say that my simple amendment cannot be accepted because it creates a new criminal offence, as it is designed to—not to put people in prison but to stop them doing what they are doing today. It is intended to change the atmosphere and culture and prevent the use and internationally known abuse of SLAPPs in this country from going any further.

[Lord Bellamy (Con)]

Just to clarify, as I said, the Government’s position is that it is not appropriate to introduce a criminal offence in relation to access to justice. It is not a question of just having another offence. Access to justice is a very important area, and we are on a slippery and possibly Orwellian slope if we start saying that it is criminal for someone to go to the law on some point. It is a very difficult area—that was all I said.

[Lord Thomas of Gresford (LD)]

So, according to the Minister, it is not criminal for a person to threaten litigation, with all the expense and worry that that involves and the way that it crimps the investigation of crime. He is saying that it is not unlawful and should not be criminal. There are criminal offences that cover conduct far less morally bankrupt than that, which is what I hope we shall discuss with the Minister before Report. For the moment, I beg leave to withdraw my amendment.

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[Baroness Blake of Leeds (Lab)]

I do not have an enormous amount to add but I thank the noble and learned Lord, Lord Etherton, for his comments and for the full explanation of the amendments before us in this group.

I will add a concern about the removal of the schedule naming the offences. Perhaps we will need to have a better understanding of why that would be an advantage, but I remain to be convinced on that point. On Amendment 90, I do not have much to add to the comments made by the noble Lord, Lord Fox, which lead to a need for greater clarification before we can move on from this.

[Lord Bellamy (Con)]

Once again, I am grateful to noble Lords who have spoken in the debate. I will first take Amendments 81 to 84, tabled by the noble and learned Lord, Lord Etherton.

Whereas our lengthy debate earlier in the day was directed at expanding the Bill, this is directed at narrowing it. It may not be a total surprise if I say that the Government are not very happy about proposals to narrow the scope of the Bill. As was said, these amendments arise, apparently, with the support of the Law Society and the Bar Council. The Government met the Law Society and the Bar Council on a number of occasions and the question of the definition of economic crime was gone into in some detail, and one is a little surprised to see that this matter is being persisted in.

The list of the offences in Schedule 9 is very close to the list of offences in the Crime and Courts Act 2013, which applies to deferred prosecutions in various cases, which are often relevant in financial matters, and, although not exactly the same, they are based on that definition.

The other introductory comment that I would, if I may, make is that, while the overwhelming bulk of the legal profession upholds the highest standards, much of this Bill would have been unnecessary were that true of all legal professionals. It is against that background that the Government are reluctant to run the risk of introducing loopholes into the Bill by reducing the scope of Schedule 9.

The first point to note is that the definition of economic crime in Clause 180 and Schedule 9 applies right across the Bill and includes the information-sharing measures in Clauses 175 and 176. Those measures, for example, entitle bank A, when it receives from bank B a large sum of money, to ask bank B whether it is a proper transaction, so there is information-sharing between financial institutions. Clause 176 enables a financial institution to notify a platform, for example, that it has concerns about particular transactions or clients. These are pretty essential powers in the Bill, and the definition of economic crime applies to those powers as well. In the Government’s view, it would not be desirable to have two definitions of economic crime across the Bill as a whole.

The definition applies to other legal services measures in Part 5 of the Bill, which amend the Solicitors Regulation Authority fining limit and information provisions. So for consistency and ease of understanding, the Government’s position is that it is sensible to have a single definition of economic crime through the Bill, and not reduce that definition at this stage. Just to make an illustration, there was some suggestion that introducing the word “theft” would go a bit too far. It may in a certain situation be quite difficult to say whether something was fraud or theft—it might well be both—but it is not the sort of argument that the Government feel that one should get into. Having worked with the Law Society of England and Wales and the Bar Council on these matters, the Government have clarified in the Explanatory Notes which offences are likely to be most relevant to the financial sector. They have not excluded them, but they have indicated that fraud, money laundering, terrorist financing, bribery, and any offences under regulations made in relation to money laundering are likely to be the ones that the profession should concern itself with most in practice. But it is important that regulators should not be unduly constrained in the ambit of the definition of economic crime in this Bill.

I can reassure noble Lords that all the existing safeguards that apply to regulators under public law principles, including what is proportionate and fair, continue to apply. Section 3 of the Legal Services Act provides that the Legal Services Board must have regard to the principles of transparency, accountability, proportionate action and consistency and target only those cases where action is required. The new objective in relation to economic crime fits within that framework. One is to an extent tilting at windmills here to try to reduce the scope of this major piece of legislation designed to tackle the very serious problems that noble Lords have now debated at length. On that basis, I shall ask the noble Lord in due course to withdraw his Amendment 81 and not press his other amendments.

I turn to Amendment 90, which affects the regulatory objective. The essential aspect of the amendment is that the objective is too wide and that we should spell out that it is all subject to legal professional privilege. Those are the essential points that were made.

I will take the point about legal professional privilege first. The Government entirely accept and agree with the noble and learned Lord that legal professional privilege is a fundamental principle of English law. It protects the confidentiality of communication between a lawyer and client in terms of legal advice, and ensures complete fairness in legal proceedings in terms of litigation privilege, for example. However, the Government are not able to accept the amendment for the following reasons.

Offenders (Day of Release from Detention) Bill

Lord Bellamy Excerpts

2nd reading
Friday 21st April 2023 Lords Chamber

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

My Lords, first, I warmly thank the noble Lord, Lord Bird, for a characteristically compelling and very moving speech on this issue. I also thank him for the work he is doing—in particular, in encouraging his contacts in Brixton to work with prisoners to obtain jobs on their release, particularly from Brixton prison. This is a very positive development, and it has been a great pleasure to work with him on this issue. I am grateful for the very broad support the Bill has received, both in the other place and in this House, and to all those who have worked on it, particularly Simon Fell MP. I am also grateful for the input of Nacro and other interested parties. It is a great pleasure, for once, to be able to say that we are all more or less on the same page, working in the same direction.

As far as the Government are concerned, the direction of travel is indeed towards rejuvenation, to use the word of the noble Lord, Lord Bird, and rehabilitation generally. I was particularly pleased about and grateful to the noble Lord, Lord Thomas, for recounting the positive developments at Berwyn prison in particular, which seems to be setting a good example of the work that can be done and what can be achieved with targeted resettlement and rehabilitation efforts, particularly concentrating on employment—local possibilities with local employers—and accommodation and related matters. I take the opportunity to say that that was very much driven by my right honourable friend the late Secretary of State for Justice, who resigned today but who has very much led the direction of travel for rehabilitation and resettlement of prisoners.

The importance of the Bill is shown by the widespread and consistent support it has received. It is a simple measure, as has been said, but it is likely to have a strong and positive impact on the rehabilitation of offenders leaving custody and it is clear that it commands widespread public support. I am sure that it will particularly help the repeat offenders referred to by the noble Lord, Lord Hacking, and I hope that it will reduce that “very lonely place” to which the noble Lord, Lord McNally, rightly referred. It will be particularly important, as has been mentioned, for youth offenders, who were underlined by the noble Baroness, Lady Bakewell. Because we now have relatively fewer youth offenders in custody, youth offending establishments can be quite far away from home, so youth offenders who are released face enormous difficulties if they do not have a support system. This will enable much better support for that particular category of prisoners, including those who have been in the recently created secure 16 to 19 year-old schools, and will mean that they will experience no delay in contacting their youth justice worker and can be properly protected. I compliment and thank the Youth Justice Board for all its work in this general area.

I fully accept the comment of the noble Lord, Lord Ponsonby, that there is a great deal more to be done, but I venture to suggest that we are beginning to make progress in these areas with the various initiatives that have rightly been mentioned. In that connection, the noble Lord asked what has changed since the Government’s previous position. As I understand it, there was a consultation on the Prisons Strategy White Paper which produced a lot of responses. It enabled further discussion to be had, particularly with policy officials, prison staff and third parties in the community as to how we should manage all this. The Secretary of State will now delegate the decision to prison governors and the equivalent but will give some guidance as to how it is going to work, so that you give priority to certain people and make sure that, as it were, it is staged down through Wednesday and Thursday as well as Friday. There will still be some residual prisoners who are released on Friday; there is no particular reason why those who have homes to go to, such as the white collar offender, should have particular priority, but that enables you to give priority to the people who need it most.

The noble Lord, Lord McNally, asked why we need an Act of Parliament. We need one because—I think I am right about this; I will write to the noble Lord if I am wrong—if Parliament says you should serve a sentence of so much, you have to serve that sentence. Only Parliament can authorise people to be released just short—in this case, a couple of days short—of serving that sentence. Although it is only a couple of days, one needs legislative authority to do it. I think that is the answer, but I will check in case I have it wrong.

I hope I have covered the various points that were made. This is perhaps not the occasion to discuss sentencing policy. I entirely accept the points made by the noble Baroness, Lady Bakewell, and the noble Lord, Lord Ponsonby, that these matters, including whether we should use prison in a slightly different way and whether we should avoid shorter sentences, need to be reviewed continually. These are important issues but I venture to suggest that they are not for today.

I thank the right reverend Prelate the Bishop of Leeds for his contribution, in particular in relation to the female estate. I know that the right reverend Prelate the Bishop of Gloucester is particularly concerned about that. As has been pointed out, we have the same problem with the female estate because it has relatively few offenders so there are not that many female establishments, meaning that offenders are often far from home; they can also be very vulnerable when they are released. This problem needs particular planning; I hope this Bill will give us an opportunity to ameliorate it.

Following what the noble Lord, Lord Thomas, was kind enough to tell us, I can say that the Government have taken significant steps in improving prison leavers’ accommodation; in building stronger links with employers through dedicated prison employment leads, so that there are now people in the prisons who are responsible for finding employment and prison employment advisory boards through which, as the noble Lord illustrated, local business leaders can come into local prisons; in offering more work within prison; in delivering and improving a prisoner education service; in increasing access to drugs rehabilitation; and in other actions.

The reoffending rate is slowly coming down, from 31% in 2009-10 to 25.6% in 2019-20, and the Government are further investing in driving it down. These are important interventions. The Bill will be an important support for all the things that are going on and will ensure that the offenders most in need of help will be given a full opportunity to access support before a service is in effect closed for the weekend. We will develop policy guidelines to help heads of establishment or the appropriate officials in youth establishments to target exactly the offenders most in need and support them to make decisions that allow offenders who need it time to resettle and reintegrate into their community.

This is a simple and proportionate Bill. I think I have covered most of the points that were raised. I can only reiterate my thanks to the noble Lord, Lord Bird, and everyone who has helped to support the Bill. I commend it to the House.