Victims and Prisoners Bill

Debate between Lord Bellamy and Lord Hope of Craighead

Tuesday 12th March 2024 Lords Chamber

[Lord Hope of Craighead (CB)]

Before the noble and learned Lord sits down, will he comment on the point I was making about the aim of having these reviews written into the statute? Subsection (2) in the new clause set out in Amendment 162 says that they are taking place

“with a view to ensuring that all possible steps are taken to enable their safe release at the earliest possible time”.

That flags up, at the outset, exactly what these reviews are dealing with. I do not know whether it is already in the action plan that the Minister has been referring to, but is there some way of getting that purpose clearly identified, and of course communicating that purpose to the DPP prisoners themselves who are subject to the system, so that they know that that is the purpose for which these reviews are being conducted?

[Lord Bellamy (Con)]

I thank the noble and learned Lord, Lord Hope of Craighead, for that point. It is certainly something I will take away when we come to consider the Government’s position.

Jurors: Mental Health Impact

Debate between Lord Bellamy and Lord Hope of Craighead

Tuesday 28th March 2023 Lords Chamber

[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.

National Security Bill

Debate between Lord Bellamy and Lord Hope of Craighead

Committee stage
Wednesday 18th January 2023 Lords Chamber

[Lord Faulks (Non-Afl)]

With respect to him, the Minister is quite right: the application of ex turpi is very uncertain. There is a great deal of authority, and it is difficult to predict in particular cases whether they are going to rely on it. However, if there is going to be a statutory scheme then I return to my point: it needs to be a lot clearer so judges know how they are supposed to apply it.

[Lord Hope of Craighead (CB)]

I wonder if I may add a thought. One of the words that strike me in Clause 83(5) is “must”. If I were a judge at first instance, I would have to explain my decision, so I would have to say that I had applied my mind to the various factors. Having looked at the factors, I am still left in the dark as to what principle I should apply. I can look at them and understand them, but why should they affect the award? I do not think a list of factors is needed if the Government can explain the principle that should be applied. Is it that a kind of quasi-immunity should be given because of these various factors—some sort of overriding principle in favour of the Government’s security measures and so on that should be applied? I cannot devise that myself, but a list of A, B, C and D is not going to be helpful. We already have the factors there; it is the trigger, what the principle is that leads to the decision that the damages must be reduced, that is important. Otherwise, a first-instance court might say, “I’ve considered the factors and I can’t see any reason why the damages should be reduced”, and an appeals court will say, “Well, that’s perfectly right”, and we are left without any significant advance in this legislation. I hope I have made my position clear. I do not like lists of factors very much, but I like to have guidance as to principle.

[Lord Bellamy (Con)]

I can say that the principle is certainly not for the judge to be asking himself, “Should I be protecting the Government or the security services from actions for damages?” I am not drafting the Bill, and I will further consider the matter, but I would imagine that it is something like how far the claimant brought the situation on himself. That would be an ex turpi causa or contributory negligence type of consideration. However, I do not want to pre-empt the discussion any further, standing on my feet thinking aloud, because I hear what is being said: we want further precision as to how the courts are to go about this.

--- Later in debate ---

[Lord Bellamy (Con)]

My Lords, on that last point, I would need some notice of that question. It is not a point that I have so far had to consider.

It is the case that the court would have to be satisfied on the civil standard that that the claimant had been involved in terrorist wrongdoing. In accordance with normal statutory principles of construction, there would have to be some nexus between the United Kingdom and the terrorist wrongdoing. It is hard to imagine a case in the UK courts where there was terrorist wrongdoing without any nexus to the UK. That is as far as I can go.

I will see if I can get a bit further, if your Lordships will permit me. As far as the general position is concerned, when I said the Government wanted to say that the UK was not a soft touch, I meant that the provision makes it clear that in civil proceedings against the security services of the United Kingdom one has to be aware that the judge will consider whether the damages should be reduced. That is all I meant by that. I did not mean to say, and I do not think I can reasonably have been construed as saying, that the intention was to protect the security services from unwarranted claims for damages. The underlying principle is, I think, that if a terrorist person has brought it on himself then that should be considered, but let me reflect further on the relevant questions that noble Lords have asked.

[Lord Hope of Craighead (CB)]

Would the Minister consider the wording in Clause 83(4)(a) that says there

“need not be a causal connection”?

You can find that there is a connection, but it need not be a causal connection. I can understand that if there were a causal connection then one might get around to thinking that the damages should be reduced but, if there is not a causal connection, why should you consider a reduction in damages at all? That is one of the reasons why I am looking for a principle that gets over the point that a causal connection is not necessary. What else is there?

[Lord Bellamy (Con)]

The causal connection point is to do with whether there are national security factors in the first place. As to general question of what the court is to do, and whether we should have further guidance or precision in statute, that is perhaps a matter that we will need to come back to on Report to see whether we can get any further clarity.

Remote Observation and Recording (Courts and Tribunals) Regulations 2022

Debate between Lord Bellamy and Lord Hope of Craighead

Tuesday 19th July 2022 Grand Committee

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

My Lords, the statutory instrument before us regulates the remote observation of court and tribunal proceedings across our justice system. Essentially, this instrument builds on the very positive experience of remote observation during the pandemic and extends and makes permanent powers that were originally contained in the emergency coronavirus legislation.

The instrument was made using the “made affirmative” procedure on 28 June 2022. It is fair to point out that the scrutiny committee of this House has been somewhat critical of the use of the “made affirmative” procedure in this case, as distinct from the normal draft affirmative procedure. My understanding of what has happened is that the enabling legislation, which is the Police, Crime, Sentencing and Courts Act 2022, was already delayed in Parliament. The department felt that we should move away from the emergency legislation as soon as possible. The emergency legislation then in force in any event did not cover certain tribunals, including employment tribunals, the Court of Protection and certain other jurisdictions, so the decision was made to press on using the “made affirmative” procedure. None the less, the comments of the scrutiny committee have been duly noted and I have reminded the department of the importance of ensuring full parliamentary scrutiny of all legislation, including legislation such as this.

The Committee will be aware that, at the outset of the pandemic, our courts and tribunals moved swiftly to holding hearings remotely using audio and video technology. I can take this opportunity to pay tribute to HMCTS for its work in enabling that to happen and the principle of open justice to be maintained.

The legislation permitting remote observation was very well received, especially by court reporters, legal bloggers and others who do valiant work in reporting what happens in our justice system. It allowed the courts to offer, in effect, the digital equivalent of the public gallery.

The Government have therefore taken the decision to make remote observation a permanent feature of our justice system and expand it to all our courts and tribunals, save for the Supreme Court and certain devolved courts and tribunals, and to any type of hearing, whether remote, in person or hybrid. The order is made, with the concurrence of the Lord Chief Justice and the Senior President of Tribunals, by the Lord Chancellor.

The overall aim is to strengthen the transparency, openness and accessibility of the justice system. It is hoped that it will also have the incidental effect of strengthening the sometimes struggling profession of court reporting by providing modern, digital solutions, although public galleries of course continue to be available.

Various safeguards are contained in the enabling legislation which prevent participants making unauthorised recordings or transmissions of the proceedings. It is important to note that at the heart of the provisions is the principle of judicial discretion. It will be for judges, magistrates, coroners and tribunal members to decide on a case-by-case basis whether to provide transmissions of proceedings to members of the press and public.

This does not enable indiscriminate broadcasting or live streaming of proceedings, although that occurs in certain jurisdictions, such as the Supreme Court and the Court of Appeal. It enables transmissions of proceedings to be made to individuals who have requested access and have identified themselves to the court or, in certain circumstances, to designated live-streaming premises. There is no obligation on judges to allow transmissions to be made to remote observers during a traditional in-person hearing, but it is hoped and assumed that this technology will greatly facilitate access to justice for many. Around 7,000 hearings a week now rely on audio and video technology. That is one of the reasons why this statutory instrument was brought forward as early as it was. The Government seek to strengthen and support the principle of open justice and to increase the accessibility and transparency of our justice system as part of our wider programme of modernising that system.

[Lord Hope of Craighead (CB)]

My Lords, I am sure this instrument will be widely welcomed. As the noble and learned Lord has explained, this builds on experience, which it is good to do, in two beneficial ways: it is making a temporary arrangement permanent and it is spreading the technological discretion right across the whole system, which is a very good idea. One does not want gaps in an exercise of this kind.

I have a point to raise on the detail of Regulations 3 and 4, simply to try to understand how this system will work. As the noble and learned Lord has explained, this will be an exercise of a discretion. Regulation 3 gives two very sensible matters on which the court must be satisfied, particularly sub-paragraph (b) on technological arrangements and so on, before the discretion is exercised. I have no problems with that, because it is very obvious that this needs to be done. I imagine that, if the court is being invited to exercise a discretion, it would be up to the advocate asking for it to provide the material the court needs to be satisfied with the points set out in Regulation 3.

Regulation 4 is trickier. It is a list of very sensible points which we are told the court must take into account. This is another example of something that has been happening over the years; in the Judicial Review and Courts Bill in particular, there was a list of things that the court must take into account, which caused some concern—some said the word “must” was wrong because it opened the door to criticism of the court if it perhaps failed to take something into account that it should have done. That problem lurks under Regulation 4. How will one be satisfied that the court has taken all these points into account without the court going through the entire list and saying that it has looked at sub-paragraphs (a) to (f)? Have the Government any thoughts on how this will work in practice? Is it simply to be assumed when the court exercises discretion that it has done this, or should it be transparent and laid out in some kind of understandable practice that these points will all be addressed and that the public will be told why and how the court has been satisfied on them?

I raise this not to tease the noble and learned Lord; it is just that somebody, somewhere, might start complaining that, let us say, sub-paragraph (a) has not been taken into account because the magistrate or the judge did not say so. One needs to be a bit careful with these lists to be sure how the thing will actually work in practice. I simply throw that out for the noble and learned Lord to consider. Maybe a definitive answer cannot be given today, but somebody needs to think about it, and maybe guidance needs to be given to those who are exercising the discretion so that they do not fall into a trap.

[Lord Ponsonby of Shulbrede (Lab)]

My Lords, we support these provisions. They will replace and extend the temporary emergency provisions included in the Coronavirus Act 2020 which allow for certain proceedings to be observed remotely and recorded. We believe in the principle of open justice and think this goes a step towards that and should be welcomed for that reason. However, we are aware that sometimes legal proceedings are very sensitive and painful, and attending a court or tribunal can be a difficult experience for people. For that reason, decisions regarding which types of proceedings should be broadcast or available to different people to observe should not be taken lightly. I am very aware that different jurisdictions will have different considerations in that respect.

Just for the record, I sit as a magistrate in the family, youth and adult jurisdictions, and I sat all the way through the coronavirus pandemic. I started off in the family jurisdiction doing court hearings by BT MeetMe and we graduated to MS Teams. We were making extremely difficult decisions which we felt we had no alternative but to make because of the circumstances which we found ourselves working in as a court.

Of course I agree with the objectives behind this statutory instrument, but I wanted to make one substantive point on the level of technology in these courts. It is highly variable between jurisdictions. When one is dealing with litigants in person, it is not unusual for them to be trying to do things on their mobile phones. Sometimes they have poor signal and all sorts of handicaps if they are trying to take part in court proceedings remotely. In my experience, when a court is 100% remote —that is, everybody is remote—it can be made to work. However, it is more difficult when it is hybrid—when some parties are in the room and others are not. Whether it is fair to go ahead with a hearing is ultimately a matter for judicial discretion, but certainly in my experience, hybrid hearings in various jurisdictions can be detrimental to people who are not physically in the room, and the court needs to be aware of that when it is deciding whether to go ahead with a case. Nevertheless, having said that, we welcome this statutory instrument and we will be happy to support it when it is put to a vote.