Prison Officers: Retirement

Lord Bellamy Excerpts

Thursday 30th March 2023 Grand Committee

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

My Lords, I thank the noble Earl, Lord Attlee, for tabling this Question and all noble Lords who have spoken this afternoon. I will try to explain the Government’s position but, before I do so, it is right for me to highlight and pay tribute to the vital role that prison officers play in keeping the public safe and rehabilitating offenders. Prison officers and probation staff are vital key workers; many go above and beyond the call of duty to keep safe the public, their colleagues and those committed to their care. One is hugely impressed by the commitment of prison staff, who work in the most challenging of circumstances.

I will first make a clarification regarding a phrase used in the Question and at times this afternoon: the “retirement age” of 68. This is the age at which the state pension is fully payable, so we are not talking about a retirement age; we are talking about the age at which a full pension is payable. Nothing prevents anyone retiring before 68; many in the prison service retire before that age and very often return part-time or do other jobs. We are talking about the state pension age and the fact that, in line with the rest of the Civil Service, prison officers at the moment qualify for the full pension at that age.

I should say to noble Lords, although I am not fully apprised of the details, that I think there is a Statement today about the fact that the Government are considering the point at which to introduce the age of 68. There is talk of deferring the introduction until after the next general election in 2026, having regard to changes in life expectancy following the pandemic and other factors. However, this afternoon, let us continue with the hypothesis that we are talking about a difference between the state pension age which applies to all prison officers and the whole of the Civil Service, as compared to the lower pension age that applies to police officers and firefighters. I think I can leave out of account the armed services because we are probably in general agreement that that is a different case, for fairly obvious reasons.

It is also worth recording that, as I understand it, as of today, about half the prison service in bands three to five, who joined before 1 April 2015, are on legacy pension arrangements of one kind or another. In those cases, their retirement age may well be 60 or 65, depending on the legacy arrangement in question. It is perfectly correct that the full pension age refers to recruits joining after 1 April 2015, and it is likely to be between 65 and 68, depending on the precise date of birth of the individual in question. As noble Lords have observed, that results from the reforms proposed by the noble Lord, Lord Hutton, in the Hutton report in 2011, subsequently enacted in the Public Service Pensions Act 2013.

The answer to the first part of the Question as tabled is that 68 is the full pension age because this is the age which applies to the Civil Service generally, which comprises hundreds of thousands of people, and reflects the recommendations of the noble Lord, Lord Hutton. It is quite true that his recommendation 14 proposed an exception for the uniformed services, but he defined uniformed services as the Armed Forces, police and firefighters. He suggested in those cases that the normal pension age should be 60, which was in fact an increase from 55. But he did not, as has been pointed out, include prison officers.

In effect, the thrust of this Question is whether prison officers’ retirement age should be reduced from that which applies across the public sector now to that of police and firefighters. For various reasons, the Government’s position is that such a reduction is not appropriate in the present circumstances—or, to put it another way, the Government are not yet persuaded that such a reduction is appropriate. I deliberately put it in that slightly softer way because I entirely accept the comments that have been made that the Government would wish to have a constructive relationship with the trade unions and, particularly, with the Prison Service. I will come back to the questions that have been asked in that regard.

The short answer to the Question that has been posed is that despite the very persuasive points that have been made by noble Lords today, the Government do not currently consider that the job of a prison officer, very demanding though it is, is sufficiently comparable with that of a firefighter or a policeman to justify a downward reduction in the qualifying age for full pension.

Firefighters have exceptional fitness requirements much more stringent than those for prison officers. They do life-threatening work. Similarly, the work of police officers, generally speaking, involves a higher degree of risk of fatality or serious injury. Since the noble Lord, Lord Hutton, did not include prison officers, it would not, in the Government’s view, be appropriate to reopen that issue.

Certain general points arise in this respect. The first is that in most western societies such as this one, the general trend is to raise the pension age. We know that that is happening as a result of longer life expectancy, ageing populations and falling birth rates. Looking at it for a moment in a global view, any responsible Government concerned with controlling public expenditure in the future would have to think very hard before reversing the trend—actually lowering a pension age. We have seen the opposite problem in France, where they are trying to raise a pension age. Fortunately, we have not had the same problem in this country. But, in current circumstances, to reduce the pension age would be going against the grain of wider economic trends and demands. That is a first point.

A second point, if I may make it—and I would be interested to know whether noble Lords agree—is that we are, as a society, moving away from the idea of a job for life, or that you start a career and continue in that career, like the distinguished examples given by the noble Lord, Lord Thomas, of his father and by the noble Lord, Lord Balfe, from his long career in the trade union movement: starting at 16 and remaining typically in that same occupation for many years. These days, people move around a great deal. The expectation that today someone of 18 would think of remaining with the Prison Service until he is 68 would be open to question, frankly, because modern youth, certainly the ones that one knows of anecdotally in one’s immediate circle, do not really think in those terms.

So the Government are cautious about acting on the basis that someone at the age of 20, deciding whether to join the Prison Service, is at all focused on whether their full pension would be payable in 2071, 2068 or 2063. In the Government’s view, that is not the kind of thing that affects recruitment or retention. So that is a further general point in relation to the impact—which is probably contestable—that this pension age has on the decision of a recruit to either join, or stay in, the Prison Service. These are rather detached points, and the cause and effect that has been raised is not entirely persuasive in the Government’s view, to put it as softly as that.

Thirdly, the issue of the contributions was raised. Under the standard Civil Service pension scheme, the employee rate is about 4.6%, and there is an employer contribution of 27%, which is pretty generous, compared to police and firefighter schemes, where the rate is between 12% and 14%. It is possibly the case that there is link between pay and pensions, and one has to look at them as package, as it were. In 2017, and on an earlier occasion in 2013, the Government considered, and negotiated with the prison officers, a package that would have involved a lower pension age but also had various points about pay and conditions. The POA voted on the package, and it was rejected.

So it is not as if the Government have not done anything in this respect; they have addressed questions of pay and pensions. The 2017 negotiations—they might be the Liz Truss negotiations to which the noble Lord, Lord Ponsonby, referred—did not reach agreement. The Government would say that that was not for lack of trying on the Government’s part, because a package was sufficiently agreed by the parties to be put to a ballot, but the ballot did not work. My noble friend Lord Attlee said that a retirement age of 65 had been “conceded” in the negotiations but, if I am correct, that would have been in the context of the wider package. I do not think that anything, as such, has been conceded separately as an appropriate retiring age for prison officers.

I will pick up the remaining points. I entirely accept my noble friend Lord Balfe’s suggestion that the Government desire a constructive relationship with the Prison Service. I am not in a position to commit the Prisons Minister to discuss this with the Prison Officers’ Association as a separate point, but the Minister is in constant touch with it, and I am sure that this, among other issues, will come up.

On this particular issue, there is a slight complication at the moment as a result of the McCloud judgment, which has thrown in some doubt the 2015 pension reforms as regards the younger members of the various pension schemes. There is a question about whether there is an age discrimination issue in those reforms. That is currently under consideration by the Cabinet Office, and, as I understand it, a remedy will be duly developed across the Civil Service to deal with that judgment. That may change the landscape a bit, but I think a detailed discussion of pensions should probably take place when that remedy is clear—or is announced or agreed, whatever the situation is—and would probably need to take place in relation to discussions about pay as well.

In relation to pay, the Minister for Prisons, my colleague Minister Hinds, has only today been giving evidence to the Prison Service Pay Review Body. Prison officers received a pay award last year, which has been welcomed. There are some signs of improved recruitment and retention. We have an extra 4,000 officers compared with 2017. Retention is still an issue in some prisons, but not in all prisons; some parts of the country have no trouble at all in recruiting and retaining prison officers. In general, the retention rate on average—I mean the rate of those not retained—is around 15% annually. Across both the public and private sectors, the national average is about 14% and in the Civil Service it is about 12.5%, so it is not completely out of line. But that is an average, and there is not a problem everywhere; it is only a problem in some cases. There are very focused efforts on trying to improve that situation, but the Government are not persuaded that there is a real link between the ultimate pension age at which the full pension is payable and the problems of retention and staffing in prisons. I think that they are due primarily to other factors and not the pension issue, although I accept that the pension issue has some symbolic value.

However, this is a difficult issue, and the Government would not wish to indicate that the position is for ever closed. It depends on what the remedy is that comes out of McCloud and further discussions. I would not presume for a moment to be able to replicate or follow the magnificent example of Viscount Monckton of Brenchley, who was mentioned earlier as a very fine Minister of Labour in the 1950s Conservative Government, but I hope that we find a way to move forward constructively with all parties on this question.

Committee adjourned at 4.47 pm.

Jurors: Mental Health Impact

Lord Bellamy Excerpts

Tuesday 28th March 2023 Lords Chamber

[Baroness Berridge]

To ask His Majesty’s Government what assessment they have made of the emotional, psychological and mental health impact on jurors of sitting in serious criminal trials.

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

My Lords, research into the impact of jury service has found that most people enjoy their service and find the experience interesting and informative. We know that some people can find it distressing. Anyone feeling this way is encouraged to contact their GP, who can put them in touch with the necessary support services. We are currently looking at options, including providing guidance to courts, to explore what more can be done.

[Baroness Berridge (Con)]

I am grateful to my noble and learned friend for that Answer but there are now increasing reports in the media of those having adverse reactions to the evidence that they are hearing, and the type of evidence they are having to hear is more graphic and often video footage. Will my noble and learned friend outline whether there are plans to have a proper systemic review of a court centre and talk to jurors before, and particularly after, their experience to see whether people are being adversely impacted by doing jury service?

[Lord Bellamy (Con)]

My Lords, the latest research was done by Professor Cheryl Thomas in 2020: 81% of those who had served on a jury said that they would be “happy to serve again”; 78% found it “interesting”. At the same time, it is quite true that 42% found the experience “stressful”. It is an issue, and the department is exploring options. What shape those options will take—whether there should be some sort of counselling service, whether it should be authorised by a judge and who would provide it—are all questions currently under consideration.

[Lord Pannick (CB)]

Does the Minister agree that everything depends on the nature of the trial? If you are asking jurors to hear a case involving graphic evidence of sex abuse, it really is not good enough to say that, if they are troubled, they can go to their GP. The same is surely true of the judges who have to hear such cases on a regular basis, it is true of the court staff and it is also true of the counsel and solicitors who specialise in this area. Really, something needs to be done about this.

[Lord Bellamy (Con)]

My Lords, as I say, the Government are exploring options. Sometimes a judge will warn jurors in advance that it is distressing and ask whether any of them wish to be discharged. There is a post-trial leaflet and an interesting video, which I watched yesterday, for jurors after the trial, which suggests what they should do if they feel stressed. Some courts of their own volition make references to local charities, and we are providing further guidance to courts on what to do in those circumstances.

[Baroness Kennedy of The Shaws (Lab)]

My Lords, I will come to the assistance of the Minister because he has been a practitioner in the courts, as I have. I know that the noble Lord, Lord Pannick, is not someone who practises in front of juries—

[Baroness Kennedy of The Shaws (Lab)]

—but it is commonplace now for judges to say to a jury that a case is of a sexual nature or involves homicide or murder where the facts are particularly troubling and gruesome, and to ask: “If any of you have any reason why you feel could not sit on such a case, then please come forward and tell me”. You can have a juror say, “I have had an experience in my past which will make this particularly difficult”. Judges will take the opportunity to say that the juror does not have to sit. That is commonplace in serious cases now. I ask the Minister: should it not be an obligation on the Crown to inform a court and the judge who is sitting that a case may be very disturbing for jurors, so that they can step forward and withdraw from sitting as a juror on that particular case?

[Lord Bellamy (Con)]

My Lords, I am entirely in agreement with the noble Baroness that in most cases of this kind judges will warn jurors in advance. That should generally be done, and I think it is for the judge to decide.

[Lord Marks of Henley-on-Thames (LD)]

My Lords, the noble Baroness, Lady Berridge, raises a very important issue. We ask citizens to perform this important public service and increasingly, as she said, it can be harrowing and traumatic. At present, as the Minister said, HM Courts & Tribunals Service tells jurors only that they can consult their GP or the Samaritans, who counsel potential suicides. The noble Baroness is right that professional counselling must be available where necessary. Will the Minister arrange such counselling and ensure that its availability is known to potential jurors at the time they are summoned so that they can see what the potential dangers are and consider their position, and have the information available throughout?

[Lord Bellamy (Con)]

My Lords, I do not think that I can add to my earlier Answer that the Government are currently considering all options. Roughly 100,000 people serve on a jury every year; most, as I have just said, find the experience interesting and informative, and the Government will keep this under close review.

[Lord Hope of Craighead (CB)]

My Lords, it is helpful to see what happens in Scotland. The Scottish Courts and Tribunals Service provides specialist assistance in cases of particularly violent and distressing crimes. It is available in the court. It is available to jurors, who may not realise, even given the warnings that have been referred to, that the scenes they are going to have to view repeatedly as a juror as the evidence goes on are particularly distressing. Will the Minister have a look at what happens in Scotland and perhaps follow its example?

[Lord Bellamy (Con)]

My Lords, I will gladly look at what happens in Scotland—I believe there is a service provided through NHS Lothian. I am not sure I can undertake to follow a Scottish example; Northern Ireland has a counselling association associated with its employee assistance programme. We are exploring a number of options.

[Lord Wolfson of Tredegar (Con)]

My Lords, is not the criminal justice system unusual among public services because it depends on volunteers, or at least non-professionals, for the vast majority of the work? Jurors are present in our most serious cases and magistrates hear the overwhelming number of criminal cases. Will my noble and learned friend the Minister therefore ensure that His Majesty’s Government look at both these groups of non-professionals and ensure that they are given the financial and non-financial support they need?

[Lord Bellamy (Con)]

My Lords, lay participation in justice, whether through the jury, the magistracy or, I would add, membership of tribunals, is at the heart of the common-law system and the Government will fully support that participation.

[Lord Ponsonby of Shulbrede (Lab)]

My Lords, judicial officeholders, their partners and their children are offered helpline support 24/7 for 365 days a year through the Ministry of Justice. There is no equivalent for jurors. Arguably, judicial officeholders are better placed to withstand the pressures of their role because they have the support of their peer group. When jurors leave the court, they are on their own. Does the Minister think that this should change and the Government should offer the same support to jurors as is offered to judicial officeholders?

--- Later in debate ---

[Lord Bellamy (Con)]

My Lords, the Government can accept that there is a case for offering further support for jurors who have been through very distressing cases. I should perhaps observe that jurors have been trying distressing cases now for hundreds of years so we are not in a new situation. A 24-hour helpline may be one of the options that we should explore.

[Baroness Butler-Sloss (CB)]

I ask the Minister that those who look at whether or not jurors should be helped are shown some of the sorts of photographs that jurors may have to see, because they would be pretty shocked.

[Lord Bellamy (Con)]

My Lords, I entirely accept that comment.

[Lord Mackenzie of Framwellgate (Non-Afl)]

My Lords, does the Minister share my concern and surprise that no one has mentioned the welfare of police officers who have to sit through hours of usually pornographic material involving children, which can have a tremendous effect on their stress levels?

[Lord Bellamy (Con)]

I entirely share the sentiment expressed by the noble Lord.

[Lord Foulkes of Cumnock (Lab Co-op)]

My Lords, the noble Lord, Lord Pannick, makes me think: if Boris Johnson is brought to trial, would it be possible to volunteer for the jury?

[Noble Lords]

Oh!

[Lord Bellamy (Con)]

My Lords, how on earth is one supposed to answer that question? Fortunately, as far as I know, that does not arise—or it certainly does not arise yet.

[Lord Kamall (Con)]

My Lords, following the question from the noble Lord opposite, would counselling also be offered?

[Lord Bellamy (Con)]

Would it be offered to jurors who served on a jury in relation to the late Prime Minister? I do not think I can answer that question.

[Lord West of Spithead (Lab)]

My Lords, many horrible things happen in life and have done so for decades and decades. Does the Minister believe that we need to think that people need to be a little more robust? I certainly found in the Navy when things had happened that if you asked people whether they had been affected, they would tell you they had been affected, but if you did not ask them, they just got on with their job.

[Lord Bellamy (Con)]

My Lords, it is unusual to have so many opportunities to agree with noble Lords opposite. I entirely agree with the noble Lord, Lord West. Although we have had a moment of levity in this Question, I respectfully remind your Lordships of what the late Lord Devlin famously said:

“Trial by jury is … the lamp that shows that freedom lives”.


The Government entirely agree with that and will support juries as much as is needed.

Prisons: Education

Lord Bellamy Excerpts

Thursday 23rd March 2023 Lords Chamber

[Baroness Blower]

To ask His Majesty’s Government what assessment they have made of the potential merits of bringing the delivery of prison education into the public sector.

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

My Lords, core education in prisons is delivered by four providers: three classified as public sector providers and one as a private sector provider. Wider, non-core prison education is delivered by a range of suppliers, including the third sector. We are engaging with the market to encourage new providers to work with us to deliver high-quality prison education. We do not currently envisage fundamental change to the present system of outsourcing core delivery to specialist education providers.

[Baroness Blower (Lab)]

Does the Minister agree with me, Charlie Taylor and the Education Select Committee that education is fundamental to rehabilitation, so the fact that current providers do not have teaching prisoners to read as their responsibility is staggering? Can the Minister agree to look, at least, at the launch of the prisoner education service as an opportunity to bring all prison education back into the public sector, with standardised curriculum and qualifications, which are so important when prisoners are moved, and standardised education staff contracts to assist with recruitment and retention?

[Lord Bellamy (Con)]

I thank the noble Baroness for her question. The Government entirely agree that prison education is vital for rehabilitation. In the Government’s view, it does not follow that education, particularly in relation to reading, should be brought back into what the noble Baroness describes as the public sector. Specifically on reading, I can report the Chief of Inspector of Prisons’ remarks of yesterday. Following his report last year, he considers that we are seeing some improvement in reading and that there are encouraging signs of good developing practice in relation to reading education in prisons.

[Baroness Meacher (CB)]

My Lords, as a member of the Justice and Home Affairs Committee, I know that the Minister has recognised the huge importance of prison education. Have His Majesty’s Government assessed the potential benefits of doubling the prison education budget, and, in particular, have they assessed the impact of such a policy shift on reoffending rates?

--- Later in debate ---

[Lord Bellamy (Con)]

My Lords, the Government currently spend about £125 million a year on the core programme and a further £30 million on special development strategies. In relation to the future, we are developing new contracts from 2025, and I am sure the question of the budget will arise in that context.

[Lord Cormack (Con)]

My Lords, the noble Baroness, Lady Blower, made the point about rehabilitation being so vital. Can my noble and learned friend publish statistics to show the variable reoffending rates between those who do not get qualifications and various other things from education in prison, and those who do? I think this could be very interesting and salutary information.

[Lord Bellamy (Con)]

My Lords, the Government are committed to improving the statistics in this area, and I will investigate whether we can publish that further information.

[Baroness Burt of Solihull (LD)]

My Lords, the best education in the world, public or private, is useless if there are not the staff there to enable prisoners to get out of their cells to receive it. But if they could, the education service has been carved up by just four main providers, and governors have little or no say in who delivers education in their prisons. The House of Commons Education Committee report has already been mentioned. What are the Government going to do about this issue?

[Lord Bellamy (Con)]

Staffing levels are a continuing problem, but full-time equivalent prison officers have increased by 3,677 between 2016 and December 2022; it now stands at 21,632. In the Government’s view, there is no problem with the quality of our existing providers. The challenges of prison education are evident to all, and the Government are doing their best to tackle them.

[Lord Harris of Haringey (Lab)]

My Lords, when I conducted the review into self-inflicted deaths in prison some years ago, a very substantial issue arose about the cancellation of education sessions simply because there were insufficient staff to transport prisoners to education venues within prisons or, alternatively, because prisons were locked down. What proportion of education sessions do not go ahead for the reasons I have described? If those statistics are not collected, could the Minister explain why this rather important performance indicator is not looked at?

[Lord Bellamy (Con)]

My Lords, I cannot give the noble Lord the information he rightly seeks, but I will see if I can. Attendance at classes is an ongoing issue. It is sometimes due to staff shortages. We have introduced new KPIs for prison governors which include attendance, among other things, so I hope to see improvement in this area.

[Lord Bellingham (Con)]

My Lords, would the Minister agree that a vital part of prison education is to help former offenders into gainful employment at the end of their sentence? A number of businesses such as Timpson, under the inimitable Sir John Timpson, have done pioneering work in this field to help prevent recidivism. What more can the Minister do with his department to encourage other firms to follow Timpson’s example?

[Lord Bellamy (Con)]

My Lords, I entirely agree with my noble friend in paying tribute to Timpson. There are many other employers with which we are in close touch. The Prison Service has recently introduced prison employment advisory boards in all prisons and an employment innovation fund, and heads of education, skills and work will be established across the prison estate. This is all to improve post-prison employment, which is, I am glad to say, on the increase.

[Lord Addington (LD)]

My Lords, would the Minister agree that prisoners have probably the highest density of special educational needs of any group in society? All these groups need different learning patterns compared to the norm to be successful. Is the prison education service equipped to, first, identify and, secondly, provide the extra different types of learning to this client base? If not, it is not going to succeed.

[Lord Bellamy (Con)]

I agree with the noble Lord that the Prison Service needs to be equipped, and I respectfully suggest that it is. There are a whole range of things here. There is the core curriculum, which is made up of English, maths and digital skills; vocational courses, such as construction; personal development courses; and digital personal learning plans. I assure the House that the Government are on the case and working hard to improve matters.

[Baroness Wilcox of Newport (Lab)]

My Lords, the Open University offers a range of introductory access modules funded by the Prisoners’ Education Trust, under the banner of “Steps to Success”. They have been specifically designed to help students find out what it is like to study with the OU, get a taste of a subject area, develop study skills and build confidence. As a former teacher, I can tell your Lordships that those things are vital. Does the prison estate have the facilities to offer such excellent distance learning, and who would meet the cost of these courses that are on offer?

[Lord Bellamy (Con)]

My Lords, there is a problem within the prison estate in relation to distance learning from external providers, because most prisons do not have external access to the internet. There is an intranet, and it may well be that in due course organisations like the Open University are encouraged to access that facility. But I take the noble Baroness’s question and will investigate further.

[Baroness Boycott (CB)]

My Lords, I am sure the noble and learned Lord knows about the Clink Charity, which sets up restaurants in prisons where prisoners are taught by chefs and then serve meals to the general public. If any noble Lords do not know about this, I urge them to go to the one in Brixton. These now have a 49.6% rate of lowering reoffending, because prisoners come out with a job and a skill and somewhere to sleep, which is arranged. This all depends on the good will of the governors. Can the Minister assure the House that he will encourage such projects? I think there are seven now, but there could be many more.

[Lord Bellamy (Con)]

My Lords, the answer is yes. Prison governors are now specifically required to have regard to developing employment opportunities for those in prison, attendance rates at courses and other matters. I pay tribute to Clink, which is a very well-known and respected organisation. Similar programmes are being offered by other employers, and this is all, I respectfully suggest, good progress.

[Baroness Fox of Buckley (Non-Afl)]

My Lords—

--- Later in debate ---

[Baroness Fox of Buckley (Non-Afl)]

My Lords, in my experience with broader education projects such as Debating Matters Beyond Bars, I have found that private sector prisons can be more flexible and less bureaucratic than some state-run prisons. Does the Minister agree that we should focus less on who provides prison education and that education should be given far more priority? Does he also agree that prison education should not be limited to literacy, as it often is, but should be far more imaginative?

[Lord Bellamy (Con)]

My Lords, the Government regard prison education with high priority and are working to improve its imaginative and innovative aspects all the time.

Judicial Pensions (Fee-Paid Judges) (Amendment) Regulations 2023

Lord Bellamy Excerpts

Tuesday 21st March 2023 Lords Chamber

Moved by

[Lord Bellamy]

That the draft Regulations and Order laid before the House on 23 January and 8 February be approved.

Relevant document: 30th Report from the Secondary Legislation Scrutiny Committee. Considered in Grand Committee on 20 March.

Motion agreed.

Criminal Justice Act 2003 (Home Detention Curfew) Order 2023

Lord Bellamy Excerpts

Monday 20th March 2023 Grand Committee

Moved by

[Lord Bellamy]

That the Grand Committee do consider the Criminal Justice Act 2003 (Home Detention Curfew) Order 2023.

Relevant document: 30th 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. As your Lordships will know, the home detention curfew—or HDC—scheme allows certain prisoners to be released from prison early and kept on an electronically-tagged curfew in their home. The scheme was first established some 20 years ago. The statutory instrument before us extends the permitted maximum HDC by 45 days—around six weeks—from 135 days to 180 days. I will say a little more about the effect of that in a moment.

In parallel with the statutory change, which extends the HDC period, the Government are at the same time introducing non-statutory policy changes to exclude certain kinds of offenders from the scope of HDC. As your Lordships know, in statutory terms, certain offenders are totally excluded from HDC—for example, when they are sentenced to more than four years or are registered sex offenders, terrorists, or others. Other kinds of offenders are presumed unsuitable under the relevant HMPPS policy framework, including, for example, foreign national offenders liable to deportation, those convicted of possession of an offensive weapon, possession of firearms, and so on.

Following the discussions that took place in connection with the passing of the Police, Crime, Sentencing and Courts Act 2022, to which the noble Baronesses, Lady Brinton and Lady Newlove, and the noble Lord, Lord Ponsonby, made important contributions, further offences are now being added to the “presumed unsuitable list” to coincide with the coming into force of the statutory instrument on 6 June. These are offences relating, for example, to stalking; harassment; the breach of a non-molestation or similar order; controlling or coercive behaviour in an intimate or family relationship contrary to the Domestic Abuse Act 2021; and non-fatal strangulation and suffocation. In other words, offenders guilty of those offences will be presumed not suitable for HDC, unless the prison governor concerned is persuaded of exceptional circumstances.

In addition, since April 2022, it has been mandatory for information to be gathered from police and children’s services about domestic abuse or safeguarding risks. It is only after that information has been gathered and a full risk assessment made that an offender may be released on HDC. While the HDC period is being extended, these parallel measures protect the public—in particular, from potential abusers.

The net effect of these measures, in parallel, is that fewer offenders are likely to be eligible for HDC, whereas those who are eligible may be on HDC for up to six weeks longer. In practice, the net increase of prisoners out on HDC is expected to be about 300 up from the current figure, which is about 1,850. I should add that, in practice, because of the requirement to serve a minimum of a quarter of any prison sentence, this statutory change affects those serving between 18 months and four years, with those serving between two and four years eligible for the maximum period of 180 days.

In addition to these developments, technology in this area continues to improve. GPS now allows the monitoring of offenders away from home, which also enables certain types of offender, such as those known as acquisitive offenders, to be targeted. If one is wandering away to do some shoplifting, the GPS can follow one, as it were. It also now permits alcohol monitoring, so alcohol monitoring tags have been rolled out across England and Wales. This technology development is supporting the policy.

HDC has been used successfully for 20 years to better manage the transition of eligible offenders from prison back into the community, and the changes I have outlined continue along that path. The other place has just approved the statutory instrument this afternoon, and I commend the instrument to the Committee.

[Lord Ponsonby of Shulbrede (Lab)]

I thank the Minister for that introduction, and we support the SI. As the Minister said, the current maximum period that an eligible offender may spend in the community on home detention curfew is 135 days, and this is being increased to 180 days through the order. He gave an example and talked about the improvement in the technology for those who are on HDC. Are all prisoners on home detention curfew on some form of electronic monitoring, or are some deemed to have no monitoring necessary?

The Minister also spoke about the greater use of GPS monitoring, rather than just home curfew monitoring, and alcohol monitoring. Would he care to speculate on what other forms of technological improvement we might see in the next few years? I have been involved, on and off, in giving tags to people on bail, and so on, and I have seen the technology used and abused over the years. It is interesting how the technology has developed and how the courts and prison system is learning to work with it appropriately. I should appreciate it if the Minister would speculate a little on how that might change in future.

The MoJ states that the purpose of running the home detention curfew is to ensure that offenders have a smooth transition back into the community from custody. We agree with that, and we support the scheme as a whole. However, we say that there is limited evidence to support the claim about reoffending statistics. The draft Explanatory Memorandum points to research published in 2011 that shows that offenders released on home detention curfew

“were no more likely to engage in criminal behaviour”.

That is a rather lukewarm endorsement of the policy—even though we do support it. The Ministry has said that it will publish internal evaluations on the expansion of the scheme in 2024. Given the lack of clear supportive evidence for the effectiveness of the scheme, despite the length of time it has been running, will the Government ensure that robust evaluations are made as soon as possible?

--- Later in debate ---

As the Minister said in his conclusion, the net effect of the scheme means that there will be fewer prisoners eligible for home detention curfew, but those who are eligible will be out for longer—and we support that broad principle. I look forward to the Minister’s answers to the questions I have raised.

[Lord Bellamy (Con)]

My Lords, I thank the noble Lord, Lord Ponsonby, for his remarks and questions, and I shall deal with them as far as I can.

I understand that all prisoners on HDC are on some form of electronic monitoring, and some have a kind of location monitoring in addition to help them, so that one knows more precisely where they are exactly and what they are up to, if I may put it like that.

I am reluctant to speculate today on exactly how far this scheme will develop, and I am sure that the Government will be very interested in drawing on the experience of the noble Lord himself and others on how it works out. He referred to the “use and abuse” of the systems. Of course, every time one invents new technology, someone tries to find some way around it or some way of defeating it, so we will need to work that through. However, the general direction of travel is that the technology is improving all the time and we will learn by experience how to use it in an appropriate way to achieve the mutual objectives of helping prisoners back into the community.

On the “no more likely” point of the general efficacy of home detention curfews, the Government’s position is that they work and that they help people to make the transition from prison to the community. It is certainly the Government’s position that the improvements in technology that I have mentioned—the location and alcohol monitoring—will reinforce it, so that is how it will evolve. We have committed to make an internal evaluation in 2024, and we probably have to wait a little bit of time until we see how it goes, so that we can properly evaluate the new extension we are talking about. We will certainly make that evaluation, which will be further information on which policy decisions can be taken.

On the noble Lord’s question about suitability criteria, if I did not mention stalking, I should have done so—it is at the top of the list. The scheme offers a very important protection for the public and for people particularly concerned with stalking and the stalking risk, as it were.

I have endeavoured to answer the questions of the noble Lord as best I can, and I therefore commend the instrument to the Grand Committee.

Motion agreed.

Judicial Pensions (Fee-Paid Judges) (Amendment) Regulations 2023

Lord Bellamy Excerpts

Monday 20th March 2023 Grand Committee

Moved by

[Lord Bellamy]

That the Grand Committee do consider the Judicial Pensions (Fee-Paid Judges) (Amendment) Regulations 2023.

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

My Lords, the statutory instrument before us today amends the Judicial Pensions (Fee-Paid Judges) Regulations 2017, which established the fee-paid judicial pension scheme 2017. The statutory instrument was approved in the other place on 21 February.

At present, the fee-paid judicial pension scheme provides only for eligible fee-paid judicial service on or after 7 April 2000. The main purpose of the statutory instrument is to provide pension benefits for certain eligible fee-paid service before 7 April 2000. The situation arises as a result of three cases.

The first was O’Brien 1 in 2013, when it was decided that fee-paid judges were workers and therefore eligible for pension benefits that mirrored those of salaried judges under the then judicial pension scheme. That was from 7 April 2000, the date when the relevant EU regulation was transposed into UK law. It led to the 2017 regulations.

In 2018, in O’Brien 2, the European Court of Justice found that eligible fee-paid judicial service prior to 7 April 2000 should also be taken into account for the purposes of calculating pension benefits. If one was already a judge on 7 April 2000, service before that date should count towards the pension.

In 2019, in the Miller case, the UK Supreme Court found that the time limit for fee-paid pension entitlement claims runs from the date on which the judge retired from judicial service rather than the date on which they left the fee-paid office concerned. You had until your ultimate retirement date to make the relevant claim.

Although we now have a new judicial pension scheme, these regulations ensure that the judgments I have just referred to are fully implemented and that the judges concerned get pension benefits in respect of their historical fee-paid judicial service.

The detail of the regulations is, if I may say so, impenetrably complex, as a result of different pension arrangements over the years. There was a different arrangement in force between 1981 and 1995, and then again between 1995 and a later date. These regulations deal with the pre-1995 provisions as well as the post-1995 situation. They make certain changes or additions to eligible offices and provide for a way of dealing with small amounts; one can commute to have a lump-sum payment, if there is just a small pension entitlement; they provide for the purchase of additional benefits; they apply to various techniques for reconciling various amounts outstanding; and they correct certain minor errors. These are very detailed matters indeed, but the essential purpose is to make sure that the pensions to which those judges are entitled are enshrined in the statutory instrument.

There was a consultation in 2020, and the responses received were broadly supportive. Officials have been in close touch with the devolved Administrations in Scotland, Northern Ireland and Wales, which have been kept apprised of developments, and, as I said, there has been close consultation with the judges affected.

In closing, I will make two points. Questions have been raised as to whether these regulations are affected by the retained EU law Bill currently before Parliament. On the assumption that the Bill becomes law, the regulations provide for already acquired pension rights, and I can confirm that they will not be sunsetted or otherwise adversely affected as a result of that Bill. Assuming that in due course it becomes an Act of Parliament, the relevant rights will be preserved.

Lastly, I point out, in case anyone has ever glanced at my CV, that I have no personal claim under any of these regulations.

[Lord Ponsonby of Shulbrede (Lab)]

My Lords, the cavalry has just arrived in the form of my noble friend Lord Davies of Brixton, who is a pensions expert. Unfortunately, he will not say anything on the SI, which I will take as a level of endorsement of it. He is nodding his head—jolly good.

As the Minister said, the SI amends the judicial pensions regulations 2017, which established the fee-paid judicial pension scheme and provide pension benefits for eligible fee-paid judicial service from 7 April 2000 to 31 March 2022. It mirrors the pension benefits for salaried judges under the Judicial Pensions and Retirement Act 1993.

As the Minister set out, the SI amends the 2017 regulations, as required by O’Brien 2 litigation. In several ways, it is very complex. The Labour Party supports the SI. In essence, its purpose is to ensure that the work of fee-paid and salaried judges is undertaken and remunerated in the same way, and that that is recognised in their pensions.

I thank the Minister in particular for being very clear about the retained EU law Bill. I was indeed going to ask about that, and he could not have been clearer in saying that the Government will not put any sunset clauses in and will expect to retain all the provisions under this SI after the retained EU law Bill is passed.

I will go no further than that, because the Minister has answered the questions I was going to ask. As I said, the Labour Party is happy to support this statutory instrument.

[Lord Bellamy (Con)]

My Lords, in those circumstances, I commend the instrument to the Committee.

Motion agreed.

Divorce: Financial Provision

Lord Bellamy Excerpts

Wednesday 8th March 2023 Lords Chamber

[Baroness Deech]

To ask His Majesty’s Government what progress they have made with their three-year review of the law governing financial provision on divorce since the commitment made by the then Advocate General for Scotland Lord Keen of Elie in his letter dated 16 March 2020 (DEP2020-0150) to gather evidence, consult and develop recommendations on this matter.

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

My Lords, the letter to which the noble Baroness refers was sent during the passage of the Divorce, Dissolution and Separation Act 2020. Since then, we have prioritised the implementation of that Act and the digital systems that go with it, the court recovery programme during and after the pandemic, the Domestic Abuse Act 2021, the Marriage and Civil Partnership (Minimum Age) Act 2022 and further work on the family courts. I hope to announce a review of financial provision very shortly.

[Baroness Deech (CB)]

My Lords, I fear that the noble Baroness, Lady Shackleton, and I were misled when, three years ago, we were guaranteed a review of the financial elements of divorce. Relying on that, we refrained from pressing amendments. The law that relates to splitting money on divorce is so antagonistic and unreformed that it undermines the alleged good points of the no-fault divorce law. We are lagging 50 years behind nearly every other country in the western world, including Australia. The amount of discretion in our law makes it very hard for unrepresented parties. Money that should go to the children is being spent on legal costs. Even judges have called this law “apocalyptic” —accessible only to the rich. When will the Government reform this very bad law?

[Lord Bellamy (Con)]

My Lords, I pay warm tribute to the noble Baroness, Lady Deech, my noble friend Lady Shackleton and many others for their work in this area. Respectfully, I do not accept the characterisation that the Government have misled everybody; we have had our hands somewhat full in recent times. The Matrimonial Causes Act 1973 reaches its 50th anniversary this year and a review of financial provision is indeed opportune. The Government are in close consultation with the Law Commission, which we consider the most appropriate body to carry out that review.

[Baroness Shackleton of Belgravia (Con)]

My Lords, I declare my interest as a practitioner in this field for 40 years. The law is hopelessly out of date: it relies entirely on finance and the discretion of judges. The judges have a fiefdom now in that, since 3 October 2017 you cannot go to the Court of Appeal if leave is refused, so their discretion is absolute. It is normally commercial judges who change the law, and arbitrators, mediators and judges need guidance. There is no use in having a divorce if the money is not sorted out; the house has to be sold and the children are caught in the conflict. Divorce practitioners like me make a fortune in arguing, because the guidelines are 50 years out of date. I know that this is not a vote winner and does not appeal to the masses, but many people in this country are touched by this and I would like an assurance that it will be included in the King’s Speech as vital business on the agenda, because responsible Governments do service to this.

[Lord Bellamy (Con)]

My Lords, these matters will be considered fully in a forthcoming review, hopefully by the Law Commission. That commission is completing important work on surrogacy at this moment. Subject to final agreement, I hope to make a further announcement very soon indeed.

[Lord Watts (Lab)]

My Lords, there are models around the world that the Government could adopt. Why do they not look to those models and introduce them now?

[Lord Bellamy (Con)]

The Government think that the Law Commission is best placed to investigate all these matters, establish what the existing law and practice is and where the problems lie, and make comparative studies of various other jurisdictions, including Australia and elsewhere, as has already been mentioned.

[Lord Hunt of Wirral (Con)]

My Lords, I declare my interest as a practising solicitor. I share the views of many around this House in applauding the work of the Law Commission, which is engaged in a number of important areas. Will my noble and learned friend the Minister undertake to ensure that the Law Commission is properly resourced, so that it can deal with this aspect, which needs urgent reform, as quickly as possible?

[Lord Bellamy (Con)]

My Lords, the Government will do their very best to make that the Law Commission has the resources it requires.

[Baroness McIntosh of Hudnall (Lab)]

My Lords, given that there is clearly some scepticism about whether the Law Commission is the right body to conduct this review, could the noble and learned Lord give the House some idea of how long he expects it to take to undertake it, and at what point he thinks it will be commissioned so to do?

[Lord Bellamy (Con)]

My Lords, I hope to make a further announcement immediately before or shortly after the Easter Recess. Matters are being finalised at the moment. Typically, Law Commission work takes place in two phases. There is an initial phase of the kind I have just outlined, where the problem is identified and comparative studies are made. That is typically followed by a consultation phase in which all stakeholders’ views are fully taken into account, which results in final recommendations and possibly draft legislation. That process will probably take at least two years.

[Baroness Berridge (Con)]

My Lords, not only is this law antiquated—it is 50 years old—but there is an out-of-date view, which I found even among those in their twenties and thirties, that if you are cohabiting you are in some sort of arrangement called common-law marriage, which does not exist, and that the court would have powers under the Matrimonial Causes Act. So without going to the Law Commission, can my noble and learned friend the Minister please raise awareness that actually, that is not the legal position and there is an even more complex situation if you are not in a legal relationship such as a marriage or civil partnership?

[Lord Bellamy (Con)]

My Lords, cohabitation is not envisaged as being within the review we have been talking about today. It does raise important issues and the Government keep them under review.

[Lord Ponsonby of Shulbrede (Lab)]

My Lords, the noble and learned Lord will be aware that the time taken to reach a financial settlement following a divorce is often far greater than that taken for the divorce itself. The noble and learned Lord will also be aware that children often suffer badly from family breakdown and its consequences, particularly when there is an acrimonious and protracted divorce. Legal aid is currently permitted only in limited circumstances, such as when there is evidence of domestic abuse. Will the Government reconsider the issue of legal aid for matrimonial matters, particularly where one party has insufficient resources to get the necessary advice?

[Lord Bellamy (Con)]

The Government have commissioned a review of civil legal aid, which includes legal aid in the family courts. The point the noble Lord raises will be included in that review.

[Baroness Janke (LD)]

My Lords, it is well known that women suffer tremendously in divorce settlements regarding pensions and that tactics are employed to make them really lose out on the pension they would potentially be entitled to from their marriage. Will the noble and learned Lord assure us that he will examine this aspect of divorce when he looks into updating the law?

[Lord Bellamy (Con)]

My Lords, I am sure the Law Commission will look very carefully into the points the noble Baroness raises.

Mental Capacity Act 2005: Small Payments Scheme

Lord Bellamy Excerpts

Thursday 2nd March 2023 Lords Chamber

[Lord Young of Cookham]

To ask His Majesty’s Government when they will respond to the findings of their consultation on the Mental Capacity Act 2005: Small Payments Scheme, which closed on 12 January 2022.

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

My Lords, the Government published their response to the small payments consultation on 28 February, and a copy of the response is in the Library. The Government consider that it is better to improve the processes of the Court of Protection than to legislate for a separate small payments scheme for adults lacking mental capacity.

[Lord Young of Cookham (Con)]

I am grateful for that reply. It is a happy coincidence that, after waiting 13 months for a response, one appeared 24 hours before this Question was reached. I very much regret that the Government are not proceeding with the small payments scheme. We now have the absurd position that a parent of an 18 year-old with a learning disability can receive tens of thousands of pounds, rightly, from the Department for Work and Pensions after a home visit to make sure that the money is being correctly applied, but the same parent of that same child cannot access the child trust fund—in which the average sum involved is £2,400—without going through a lengthy, bureaucratic and at times expensive process involving the Court of Protection, which deters many parents from going through it. If the Department for Work and Pensions is satisfied that the parent can act as an appointee, looking after tens of thousands of pounds of taxpayers’ money, why cannot the MoJ agree to a similar process, enabling that parent to access the child trust funds that have been provided by the family itself?

[Lord Bellamy (Con)]

My Lords, I recognise that there is a problem in this area, and I am grateful to the noble Lord for raising it. On his specific point about the DWP payments, the Government see an important distinction between public money being paid for the living expenses of a dependent adult lacking mental capacity on the one hand, and the way we deal with the private property and capital of an adult lacking mental capacity on the other hand. In relation to the latter point, the Government are extremely reluctant to undermine the general principle of the 2005 Act that anyone wishing to take decisions on behalf of an adult lacking mental capacity must be authorised by the Court of Protection.

[Lord Ponsonby of Shulbrede (Lab)]

My Lords, first, I pay tribute to the noble Lord, Lord Young, for his tenacity on this issue. Does the Minister agree with me that, while the vast majority of parents and carers will act in the best interests of their loved ones, proper processes still need to be in place to protect the assets of vulnerable people? The Government have said, and the Minister repeated just now, that they intend to improve the processes of going through the Court of Protection—specifically, improving processing times and simplifying court forms. Can the Minister say what progress has been made in this regard?

[Lord Bellamy (Con)]

My Lords, yes; I am able to fully agree with the noble Lord, Lord Ponsonby. We identified two problems. The first was the clunky—if I may use that expression—procedures of the Court of Protection, and the second was a general lack of awareness of the general law under the 2005 Act. On the first, the Court of Protection has in the meantime been digitalised. As from this month, anyone can apply online for the relevant authorisation, known as a “deputyship”. The relevant pilot reduced waiting times from 24 weeks to eight weeks, and the court forms are being worked on at the moment with a view to making them simpler and more user-friendly. So, there is good progress at the level of the Court of Protection. On the second problem, the general awareness of the need to observe the 2005 Act, we are in the process of a cross-government consultation to improve and raise public awareness.

[Baroness Brinton (LD)]

My Lords, some child trust providers such as OneFamily and Foresters Financial have developed a simplified process, working with families and using the DWP appointee scheme as a proxy to protect against fraud or abuse. In the recent MoJ consultation on this issue, 87% of respondents liked this way of working. Why have the Government rejected it?

[Lord Bellamy (Con)]

My Lords, essentially, there was general support for the idea of some sort of scheme, or at least some simplification of the process, but no consensus on what safeguards we should have. In particular, most banks and financial services companies expressed concerns about what they would have to do to carry out the relevant checks. There would be quite a small demand and it would be quite expensive for most institutions to provide the relevant service. In those circumstances, the Government decided that this was a case where we should avoid legislation and work to improve the present system.

[Lord Touhig (Lab)]

My Lords, do His Majesty’s Government know how many of the 6 million child trust fund holders lack capacity? If this is not known, how can fund providers be sure that it is right to release funds to third parties? I ask this question because there is concern that some fund providers are not as diligent as they ought to be in this regard.

[Lord Bellamy (Con)]

My Lords, I cannot comment on how fund providers operate their relevant systems. The number of adults holding child trust funds who have become adults and lack capacity is quite small—it is thought to be around 1% to 2% percent—but it is none the less significant and the risk of abuse is quite prominent.

[Baroness Berridge (Con)]

My Lords, I have recently been alongside someone who had tried to become an appointee. Can my noble friend the Minister please talk to the DWP about its system to become an appointee for somebody, because it is not simple? Is there not then a case for basically not duplicating the processes? Once you get through the appointee hoops, which are considerable, should you not automatically get a deputyship—so you just have to do it once?

[Lord Bellamy (Con)]

My Lords, the Government are extremely reluctant at the moment to confuse two things. One is the processes by which the DWP works, and the other is the legal process by which an adult lacking capacity can have somebody else act on their behalf. That is a job for the Court of Protection. It is not just a question of child trust funds, although that is an important issue. This can go on throughout a child’s life, and it is quite likely that a child lacking capacity who reaches the age of 18 will continue to lack capacity for many years to come, and there will be important decisions to take. That really should be supervised by the Court of Protection and not by the DWP.

[Lord Blunkett (Lab)]

My Lords, it has been a privilege to work with the noble Lord, Lord Young of Cookham, on this important issue. When I led on the implementation of the child trust fund prior to the 2005 Act, we never foresaw that this situation would arise. Is it not a scandal that the cost to the financial institutions should take priority over the cost to these young people, who cannot access their funds? We understand about the Mental Capacity Act and understand the dangers and the safeguards necessary. But, after what has happened with the magistrates’ courts over the issue of pre-payment meters, can anybody really believe that the court system should take precedence over personal support to parents and young people?

[Lord Bellamy (Con)]

My Lords, it is not simply a question of cost to financial institutions. There is a whole range of problems here and an essential tension between protection against abuse and simplicity of process. In this area, where it is possible to have very different views, the Government feel that the principle established in the 2005 Act, placing responsibility with the Court of Protection, is right.

[Lord Addington (LD)]

My Lords, when the noble Lord, Lord Young of Cookham, raised this, I said that he had put his finger on an absurdity, and it is quite clear that I was right on that one at least. Can the Government give us some undertaking of what they are doing to make sure that, when parents put money into funds for their children’s future, they are told all the things they have to do to make sure the child can access it properly? Saying that there should be greater awareness will not help; you need one place to go that says, “This is the legal process”.

--- Later in debate ---

[Lord Bellamy (Con)]

My Lords, the Government will do all they can to raise public awareness. If, for example, the DVLA can inform me regularly that my driving licence needs to be renewed when I get to 70, surely we can have some similar process when a child reaches the age of 18.

[Lord Foulkes of Cumnock (Lab Co-op)]

My Lords, I commend the Minister for actually answering the questions put to him, rather than reading from a brief before him. Is there any way he could pass that skill on to his colleagues?

[Lord Bellamy (Con)]

My Lords, my colleagues are already skilful enough.

Criminal Justice System: Translation and Interpreting Services

Lord Bellamy Excerpts

Thursday 2nd March 2023 Lords Chamber

[Baroness Coussins (CB)]

My Lords, I beg leave to ask the Question standing in my name on the Order Paper and in doing so declare an interest as vice-president of the Chartered Institute of Linguists.

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

My Lords, the right to a fair trial is fundamental to our criminal justice system. Translation and interpreting services play an important part in ensuring the fairness of proceedings for all parties, so their provision is a priority for the Government. As we consider the retained EU law for which the Ministry of Justice is responsible, we will make sure that there is no adverse impact on translation and interpreting services.

[Baroness Coussins (CB)]

My Lords, that is an encouraging reply but I would be grateful for further clarification. Although the Minister said that there is no intention to remove this right, a briefing I have had from the Library suggests that it is more complicated than it looks because the right to these services was transposed into domestic law via no fewer than 18 different measures, some of which are thought to fall within the scope of the Bill and some not, and apparently it is debatable whether others do or do not. Can the Minister please reassure the House that there is a process for review and scrutiny, across all relevant departments, to ensure that we do not end up with the unintended consequence of the right to translators remaining, for example, in police stations but not in courts, or in tribunals but not in prisons?

[Lord Bellamy (Con)]

My Lords, I can give the noble Baroness that assurance. Allow me to explain that the right to translation and interpretation services is a right at common law and integral to the right of a fair trial. It is enshrined in Article 5 of the ECHR, which deals with the police station, and Article 6, which deals with the fair trial point. Neither of those are affected by the present retained EU law Bill so the substance of the domestic provisions will continue.

[Lord Fox (LD)]

My Lords, in debate on the Bill, the Minister taking it through described most of our laws as a mishmash of UK-derived law and EU-derived law. This is another example. All these laws, once the Bill comes into force, will also lose the case law and interpretation that came with them. What is the MoJ’s assessment of the workload that the British legal system will have to take on in order to retest all the laws that will be revoked or assimilated into UK law?

[Lord Bellamy (Con)]

My Lords, with respect to the noble Lord, this is not the moment to debate the wider points of the retained EU law Bill. As for the Ministry of Justice, most retained EU law has already been removed. We are left with some 23 pieces of legislation out of 3,700. I am not best placed to describe or consider the wider implications of the Bill, and, with respect, I think that is for another occasion.

[Lord Ponsonby of Shulbrede (Lab)]

My Lords, the Minister is correct in saying that there are 23 identified Ministry of Justice items on the Government’s dashboard, and that was as of 28 February. Is the Minister satisfied that the Ministry of Justice review of the relevant legislation from the ministry’s point of view is complete and that that number of 23 will be the end of the story?

[Lord Bellamy (Con)]

My Lords, I am satisfied, as far as we can ever be satisfied in this exercise, that that is the correct figure. One cannot ever rule out something turning up, but as far as I know that is a correct working hypothesis.

Independent Public Advocate

Lord Bellamy Excerpts

Thursday 2nd March 2023 Lords Chamber

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

My Lords, with the leave of the House, I shall now repeat a Statement made yesterday in another place by my right honourable friend the Deputy Prime Minister. The Statement is as follows:

“Today I can announce that we intend to legislate as soon as possible to introduce an independent public advocate, to put victims and the bereaved at the heart of our response to large-scale public disasters; to make sure that they get the support they deserve through public inquests and inquiries; and to make sure that they get the answers they need to move forward in their lives.

I know the whole House will recall that fateful day of 15 April 1989, when thousands of fans prepared to watch the FA Cup semi-final between Liverpool and Nottingham Forest. Ninety-seven men, women and children lost their lives, unlawfully killed in our country’s worst ever sporting disaster. What happened at Hillsborough was a monumental and devastating tragedy.

Of course, for Hillsborough’s survivors and the bereaved, that terrible day was just the beginning of a 34-year ordeal. It was followed by an appalling injustice. Fans were blamed for their own injuries. Survivors and the bereaved were blocked at every turn in their search for answers. We must learn the lessons of Hillsborough and we must make sure that this never happens again.

In terms of the wider context, major disasters of that kind are mercifully quite rare in the United Kingdom. But, as Hillsborough, Grenfell and the Manchester bombings have shown, when they do happen, victims, families and the communities that are affected and represented have not received the answers to their questions, nor the support they need. We are duty bound, as a Government and as a House, to make sure that that never happens again and positively to ensure that those families and communities never again have to struggle in anguish against a system created to help them, in order to get the truth, and some measure of accountability.

The independent public advocate will go some way to making good on the Government’s long-standing promise to ensure that the pain and suffering of the Hillsborough victims, and other victims, is never repeated. It will be passed into law and be made up of a panel of experts to guide survivors and the bereaved in the aftermath of major disasters. It will deliver six important outcomes that I will outline for the House.

First, the IPA will provide practical support to the families of the deceased, and individuals, or their representatives, who have suffered a devastating or life-changing injury. That practical support will include helping them to understand their rights, such as their right to receive certain information at inquests or inquiries, and signposting them to support services; for example, financial or mental health support. The IPA will help victims every step of the way, from the immediate aftermath of a tragic event, right through to the conclusion of investigations, inquiries or inquests. We will make IPA support available to the closest next of kin relative, both parents where they are separated or divorced, or to a close friend if there is no close family. The IPA will also offer support to injured victims or their representatives.

Secondly, the IPA will give the victims a voice when they need it most. It will advocate on their behalf with public authorities and the Government; for example, where they have concerns about the engagement and responsiveness of public authorities such as the police or local authorities, or where the victims and bereaved want an investigation or inquiry set up more swiftly, to ensure maximum transparency.

Thirdly, the IPA will give a voice to the wider communities, not just the directly affected victims and bereaved, that have been most affected. We will set up a register of advocates from a range of different professions, backgrounds and geographical areas, including doctors, social workers, emergency workers, members of the clergy, people with media-handling experience—often that is another burden that victims will not have experienced—and others. Communities will be able to nominate an advocate to act on their behalf to express their concerns and ensure that their voice is heard as a community.

Fourthly, the IPA will be supported by full-time, permanent staff so that it can act swiftly when a tragedy occurs to make sure that the support is there for the victims and the families from day one. Critically in this regard, the IPA will be there to consult with and represent victims and their families before any inquiry is set up, so it will be able to make representations on the type of inquiry, whether it is statutory or non-statutory, and other important functional issues, such as the data controller powers available to any inquiry and the relationship it may have with the IPA in the exercise of such functions.

Fifthly, the scope of the IPA will be extended to cover events in England and Wales, but of course we are mindful of the devolved settlements, so we will work with all the devolved Administrations to ensure that our plans are co-ordinated with the support offered outside England and Wales.

Sixthly and finally, although the IPA is first and foremost about doing better by the victims and survivors, it will also be in the wider interests of the public. It will ensure that we achieve a better relationship between public bodies, the Government and the bereaved; that we get better, quicker answers; and that we can learn and act on the lessons from such tragedies more decisively.

The preparatory work is well under way to establish the IPA, and we will place it on a statutory footing as soon as possible. I will say more about the legislative vehicle shortly.

Of course, there have been other important reforms in recent years to support and empower victims and their families. We have made inquests more sympathetic to the bereaved, with a refreshed, accessible guide to coroner services. We have removed means testing for exceptional case funding for legal representation at an inquest. If families meet the exceptional case funding criteria, they will be entitled to legal aid whatever their means.

More broadly, we are putting victims at the heart of our justice system by quadrupling victims funding compared with 2010 and through the upcoming victims Bill. The creation of the independent public advocate to give greater voice to the victims and the bereaved of major tragedies is the next important step forward.

I know that Members across the House will join me in paying tribute to the Hillsborough families for their courage and determination despite every setback. They have always maintained that their struggle for truth and justice for the 97 was of national significance, and I agree entirely. I also pay tribute to the families of those who died in Grenfell Tower and the Manchester Arena bombing. Our hearts go out to them for their loss and I pay tribute to them for their dignified courage.

I also take the opportunity to pay tribute to honourable Members in this House and those in the other place who have campaigned tirelessly on the issue, including my right honourable friend the Member for Maidenhead (Mrs May), the right honourable Member for Garston and Halewood (Maria Eagle), the honourable Member for Liverpool, West Derby (Ian Byrne), Lord Wills, the Mayor of Liverpool and others, for their steadfast commitment to establishing an IPA. I will continue to work closely with parliamentarians, the Hillsborough families, the Grenfell groups and the families of the victims of the Manchester Arena bombing to ensure that their experiences are taken into account and we get the detail of the IPA right as we establish it.

I pay particular tribute to the right reverend James Jones KBE for his work on the Hillsborough disaster and his important report. I met him last week and the Government will respond to the wider report this spring. We know in our heads and hearts that there is still much more to do to heal the wounds from that horrendous and heartbreaking tragedy, but this is an important step forward. The IPA will make a real difference. I commend this Statement to the House.”

--- Later in debate ---

[Lord Addington (LD)]

My Lords, this is one piece of legislation that I am very glad to see but very sorry, of course, that it had to happen. We have here a response to things going very badly wrong. The three examples mentioned are things that we did not expect to go wrong but did, with horrible consequences. They all have in common that they happened quickly and on one day. I can think of a few other things. My noble friend Lady Brinton, who hoped to be here but has not been able to make it, gave the example of contaminated blood. Would this be caught by any definition as a case where independent public advocacy is required?

I am still not clear on whether one person or a panel is coming through here. That is probably my fault. When will the trigger point to get involved be? Will it be case law? Will it be a judgment? To add to that, my example was the accounting cock-up—I cannot think of any other way to put it, although that is putting it too mildly—with the Post Office system. That is a massive problem that has caused tremendous harm and, it is assumed, loss of life through suicide on numerous occasions. Where the trigger point will be is very important.

My noble friend Lady Brinton was also going to ask how much resource could be called on. It will probably have to vary because there will be differing circumstances and different bodies to call on. How will the Government have the resources to follow it through? Will they set a precedent of what is initially available and where to go, because in all three cases—here and in the two that I have just mentioned—there will be slightly different requirements to do stuff. A fixed panel will not to be able to do it—end of story. There needs to be a greater degree of flexibility than just having a panel. The capacity to call in expertise as one goes through will be needed.

I hope we will have further discussion on this before we get legislation. We will have to know, or we will have yet another long and brutal session in Committee and on Report to get this out. An issue such as this should not have that because we have had all the discussion already. We know what we are trying to get at. If we know that we will be removing a few cases from this which have to go somewhere else, then fair enough. There will have to be a line drawn somewhere, but there will be an argument about what the trigger point is.

My principal point is: what is the trigger point for having the body brought into action? That must be set. If the Government do not know now, can we know the process by which they will decide? The first time that we decide will be incredibly important for what follows. Will resources after that follow the individual case or will they remain in place? Let us ensure that we know exactly what is happening here, because I am afraid that without that, we are getting nowhere.

[Lord Bellamy (Con)]

My Lords, I thank the noble Lords for their comments and interventions. I begin by indicating and reiterating the willingness of the Government to work collaboratively across party with all these measures and to consider possible changes to the scheme that I have briefly outlined. Speaking for myself, in response to the noble Lord, Lord Addington, it seems very sensible to have those discussions in early course so that we do not get into a legislative battle when the Bill is already set in stone.

On the specific points raised, and subject to my renewed expression of willingness to discuss this, whether to give agency to the families is a very important point for further discussion. At the moment, it is envisaged that the Government should trigger the appointment or operation of the public advocate in particular circumstances, but the question of what power to give the families to trigger it is for further discussion.

Similarly, the power to establish a Hillsborough-type panel is something that we need to consider in some detail, not least with a view to avoiding duplication. We have had some expertly conducted inquiries—on Grenfell by Sir Martin Moore-Bick and on Manchester Arena by Sir John Saunders. One does not want to duplicate or overconfuse the issue; we need to work out the exact relationship between that kind of statutory inquiry and this kind of operation. Those are matters for further discussion.

The noble Lord, Lord Addington, raised the issue of scope. The concept at the moment is that of an event—a specific disaster like the three that we have been talking about: Hillsborough, Manchester and Grenfell. Whether contaminated blood, the Post Office and the NHS-type scandals that we have unfortunately experienced over the years fall within the definition is for further reflection. They are probably not events, as presently constituted, so we need to think about this further. Will this have a roving remit for everything that goes badly wrong somewhere in the system or is it directed specifically at major disasters? At the moment, the Government’s thinking is the latter but, again, I express my willingness to consider this further.

On resources, clearly this will not work unless sufficient resources are available. Exactly how that is done, where they come from and on whose budget they fall are all details that need to be refined.

We have taken a decision in principle. It is now for everyone to work collectively across the parties to sort out the details and make this work, in the interests of the families, whom we will consult fully to make sure that we have filled in the gaps, closed the loops and got a good working system to make sure that Hillsborough never happens again.

[Lord Ponsonby of Shulbrede (Lab)]

Before the noble Lord sits down, could he say when we might expect the victims Bill?

[Lord Bellamy (Con)]

I am sorry; I hope the victims Bill will be with the House shortly, in this Session.

[Lord Carlile of Berriew (CB)]

My Lords, as we speak about this broadly welcome announcement, the much-admired Sir John Saunders is literally in the process of delivering his final report on the Manchester Arena disaster. That is an inquiry that started life as an inquest. In the Statement, the noble Lord referred to the cost of inquests but not to the cost of inquiries. One of the most compelling conclusions one draws from the Manchester Arena inquiry—as I am sure Sir John Saunders would recognise—is the great skill and proper attention to detail of the solicitors and counsel who appeared for the families in that inquiry, some of whom had to be paid from funds raised by the families, not from public funds.

Can we be assured that the IPA will ensure that families remain properly and independently represented by solicitors and counsel at such inquiries as those into Manchester Arena or Grenfell? Is it recognised that what is being announced, far from being a cost-saving venture, may increase the costs of representation on the issues raised at such inquiries? It would be in the spirit of this announcement to recognise that as a proper inevitability of giving victims the correct voice.

[Lord Bellamy (Con)]

My Lords, the noble Lord, Lord Carlile, makes a very powerful point. I think it is related to all the issues we have in this particular area, in relation to legal aid, costs to the system, legal aid for inquests and other inquiries. The principle of proper representation is accepted, I am sure, on the part of the Government. How exactly we implement it and where the funding comes from is a matter for further discussion, I hope on a consensual and collaborative basis.

[Baroness Chakrabarti (Lab)]

In the same spirit as that question from the noble Lord, Lord Carlile of Berriew, I have a concern about equality of arms in terms of representation before inquests and inquiries across the piece. I understand concerns about spiralling costs in some of these matters, but it seems to me that often, particularly in inquests but also in inquiries, public bodies are heavily represented. It seems totally iniquitous that public money will be spent with no upper limit to represent those public bodies that may be in the frame for negligence or wrongdoing, but that there is only exceptional case funding and tighter caps on the victims and their families. Is this perhaps something that the Minister, in the collaborative tone that he has adopted, might think about? Might that potentially be within the scope of the Bill itself, or at least the package that should support this enterprise?

[Lord Bellamy (Con)]

I thank the noble Baroness, Lady Chakrabarti, for that question. The question of equality of arms is very much on the Government’s minds at the moment. The point has also been raised by Sir Bob Neill and the Justice Committee that there should be parity and equality of representation. We should do something to level up the ability of families who are up against what appears the be the apparatus or full panoply of the state, as part of levelling up in general. I think that the IPA is an important step in that direction; exactly how we ensure that kind of equality of arms, how it is funded and how we go about it, is something I look forward to having further discussion with all parties about.

[Lord Judge (CB)]

My Lords, that brings me to adopt the suggestion of the noble Lord, Lord Addington, that we really do need to know in statute what the trigger point should be. I ask that we now consider, when it is decided that we will have an IPA intervention, how that will relate to coroners and the inquest system, because these disasters almost invariably will involve deaths. One of the things during the quashing of the first Hillsborough inquest that struck the court was how many processes there had been—all perfectly legitimate and entirely in accordance with the statutes. But we do need to have one process, as the Minister said.

Finally, if this is going to be a government decision, I have two points. First, is it susceptible to judicial review? Secondly, how can we make sure that the Government respond quickly? One of the problems with this case and others is that there has been a sort of lassitude in government responses. If a disaster such as this happens, what is needed is a very urgent response.

[Lord Bellamy (Con)]

My Lords, I thank again the noble and learned Lord, Lord Judge, for those comments and questions. Again, I think that these are matters for further reflection; it is very important that the noble and learned Lord has put them on the record. The questions of judicial review and how quickly and so forth are for further consideration; it is certainly envisaged that the independent public advocate would be able to act very quickly.

I think, if I may say so, that the Hillsborough situation was, tragically and very regrettably, distorted by a cover-up that defeated even one of the noble and learned Lord’s predecessors, the Lord Chief Justice at the time, Sir Peter Taylor. Any system that you can devise will always have difficulty coping with that kind of situation. But, in terms of speed of process, not repeating the process, having one process and defining the trigger event, those are all very important issues that we need to reflect on further.

[Viscount Stansgate (Lab)]

My Lords, I welcome the Statement and am grateful to the noble and learned Lord for repeating it. In line with some of the questions that have just been put to him, can I press him slightly further on the phrase used in the Statement, “major disasters”? The Secretary of State would presumably decide on behalf of the Government that such and such an event is considered a major disaster that triggers the independent public advocate. Is that correct? Do the Government have any sense of what a major disaster is going to be defined as being?

[Lord Bellamy (Con)]

My Lords, I think the statute will have to make an attempt to define what it means by “major disaster”. As presently envisaged, one is thinking of what one can loosely describe as one-off disasters, such as the ones we have been discussing: perhaps the 7/7 bombings, the Paddington train crash of some years ago and those kinds of things. At least so far, government reflection has not extended to things such as the Post Office scandal, which arose over many years, or the contaminated blood scandal, which arose over many years, or the North Staffordshire NHS scandal that eventually came to light, because those were ongoing things going wrong. They were certainly in one sense disastrous, but it was not quite envisaged that they would be a disaster in terms of the statute. However, I say again that the exact scope of this new independent public advocate is a matter for close consideration.

[Lord Bach (Lab)]

My Lords, I welcome the Statement repeated by the Minister today, and we look forward to the legislation, of course. I go back to the inquest issue, because it is intimately connected with the Statement that has been made today. I was pleased to hear the Minister say in reply to my noble friend Lady Chakrabarti that the Government were looking very carefully at equality of arms. I put it to him that the only way of dealing with that issue—I cannot think of any other—is increasing legal aid at inquests for interested parties. Is there an alternative? If there is one, what is it?

[Lord Bellamy (Con)]

My Lords, the Government have already announced a review of civil legal aid, and inquests are within the scope of that review. We will therefore take the powerful point that the noble Lord has made under advisement in that context.

[Baroness Manzoor (Con)]

My Lords, I thank my noble and learned friend for the Statement in relation to the independent advocate. It is essential that we move forward with this as quickly as we can within the Bill. Thinking through the wider ramifications, particularly in relation to case law, what the scope is and what the trigger points are, are critical. My noble and learned friend mentioned that the staff would be permanent. For how long would those staff be permanent, and over what period? We almost look at not only the diversity in arms to call, so to speak, but also the diversity of skills and expertise, and that will change depending on what triggers those particular investigations. There will need to be an end-to-end process. I wonder whether the independent advocate is going to be someone who is going to be appointed and is going to be there for many years or whether it is a short-term appointment for a specific period, so that victims can be empowered to have confidence in the system.

[Lord Bellamy (Con)]

I thank my noble friend for those questions. It is not at present envisaged that a person will be permanently appointed as the independent public advocate and always there on the off-chance that a disaster happens. What is envisaged is that there should be a permanent secretariat, which I think would have to be provided by the Ministry of Justice. When a disaster happens, that secretariat would become engaged, make immediate contact with the families, the emergency services and everybody else involved in those tragic and difficult events, and very quickly—I really do mean very quickly—make a recommendation to the Secretary of State to appoint an independent public advocate.

Such a person would be appointed and, from that point onwards, would take over the job of making sure that the victims and their families are fully supported in the areas of mental health and other problems, and are prepared properly for inquests and so on. The gap that is identified at the moment—of who is looking after the victims, the families and the bereaved—would be filled by that function. Details need to be fleshed out, but that is the broad scope as envisaged, subject to further discussion.

[Baroness Sanderson of Welton (Con)]

My Lords, I too welcome this announcement and the Government’s willingness to have ongoing discussions to shape this. Can my noble and learned friend the Minister reconfirm that families, survivors and victims—those with first-hand experience who have not had a chance to feed into this process since the 2018 consultation—will be given a voice? As we have talked about, their voice needs to be heard now so that we can shape this correctly. Secondly, there is an assumption that there may be an inquiry. There might not always be an inquiry; it might just be that the independent public advocate and panel help people through said disaster. As part of the ongoing discussions, can we make sure that the question of whether they have the power to compel evidence will be raised? That was a big problem with Hillsborough. If there is not to be an inquiry, that may be an important part of their role.

[Lord Bellamy (Con)]

I thank my noble friend for those questions. I can confirm that the families will be involved in the discussion and creation of this new office. The question of the powers of the independent public advocate, particularly to compel the production of documents and so forth, also needs further discussion and elaboration.