Victims and Prisoners Bill

Debate between Lord Bellamy and Lord Marks of Henley-on-Thames

Report stage
Tuesday 21st May 2024 Lords Chamber

[Lord Bellamy (Con)]

My Lords, that is not by any means the Government’s position; nor can that inference be drawn. The Government’s position on this clause is, as I understand it, in effect, that which the noble Lord himself is reported as expressing to the independent review on human rights because Section 3 requires the judge to perform a remedial function which legislation does not on its proper construction conform to convention rights. Such a role is inappropriate under our constitution and unnecessary because Section 4 provides an effective means by which Ministers and Parliament can amend the legislation. That is the Government’s position on this provision.

So, totally hypothetically, if anything in the legislation from which Section 3 has been disapplied was found to be incompatible, it would be for the court to make a declaration of incompatibility under Section 4. It would then be up to Parliament to decide how to rectify it, rather than the intermediate rewriting process of the courts. It does not remove or limit convention rights. It is simply saying that in this case that is the right balance between Parliament and the courts. That is the Government’s position on that.

This group of amendments also seeks to remove Clause 52, which sets out that, when considering a challenge, the court must give the greatest possible weight to the importance of reducing risk to the public from the offender. Of course, the courts already consider risk to the public. This clause does not mean that public protection will be the exclusive or only factor to be considered. The matter will be up to the judges, who are very capable of doing their independent part in construing the legislation. What the clause does is to ensure that due weight is given to the important consideration of public protection.

So, on behalf of the Government, I beg to move that Clauses 49 to 52 stand part of the Bill.

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

My Lords, I beg leave to withdraw Amendment 150.

Parc Prison

Debate between Lord Bellamy and Lord Marks of Henley-on-Thames

Tuesday 14th May 2024 Lords Chamber

[Lord Bellamy (Con)]

I thank the noble Lord for those questions, which are entirely relevant and reasonable. The Government and, indeed, the country must face the fact that we have a very considerable problem arising from the increased availability of synthetic opioids in the community. Noble Lords will be aware of how widespread this problem has been and still is in the United States, and we are now seeing that problem in this country. The difficulty is that such drugs are approximately 500 to 1,000 times stronger than heroin and it is particularly easy to overdose on them, so there is a very high risk of prisoners almost accidentally causing themselves great harm or even of giving rise to fatal incidents.

This is a very considerable challenge of which the Government are aware. We are redoubling our efforts to stop these drugs entering the prison, bearing in mind that, once the drugs are in the community—and they are in the local community in various areas around a number of prisons—that is not a very easy thing to do. Obviously, one must have searches—that must include staff searches, due to the risk that staff may be importuned to carry these drugs—as well as on-site drug testing. Handheld devices are particularly effective in this area and body scanners play an essential role. I agree with the noble Lord that body scanners should be fully manned. If they are not being fully manned, that must be addressed.

In addition to those measures, particularly at HMP Parc, drug amnesties have been used from time to time, especially recently, to persuade prisoners to surrender their drugs. There is a national operational response plan; I will not go into detail but it is supported by the national substance misuse delivery team. The use of intelligence in the local community to identify weak points—particularly, again, in relation to those who may be deliberately or inadvertently carrying drugs into prison—is also important.

I gather that HMP Parc is currently rated green/amber on the issue of security, which is not a bad rating in the circumstances. However, I fully agree with the noble Lord that we have to work as a society to combat this. I pay particular attribute to the Gwent Police, NHS Wales and the Welsh Government for their very close collaborative working on these tragic matters.

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

My Lords, deaths in custody are always a tragedy, and we join with the noble and learned Minister in extending our deep sympathy to the families and friends of the deceased.

Such deaths represent a failure of the prison system to keep prisoners in its care safe, so we need to take them very seriously indeed. I am not saying that the Government are not taking this seriously—the Minister’s answers show that they are—but with nine deaths in 10 weeks at one prison, Parc, the failure can properly be described as catastrophic. No one wishes to pre-empt the outcome of the coroner’s inquests, but it seems abundantly clear that a number of these deaths—at least four—were caused by the use of drugs, notably Spice. As the Minister pointed out, this is a significantly dangerous drug and capable of causing harm accidentally to prisoners who use it.

In a supplementary question in the other place, Stephen Crabb MP, himself a former Secretary of State for Wales, pointed out that there was evidence—of which we are all well aware—that the largest source of drugs entering prisons was staff, who were bringing them in. He asked why it was that staff were not routinely scanned for drugs. In answering, the Minister of State, Edward Argar MP, pointed out that we have body scanners for visitors—as the Minister here pointed out—and for others coming into prisons, as well as handheld detectors for use in the cells, but he did not address the direct question about the routine scanning of staff on entry. The noble and learned Minister mentioned the use of body scanners for staff but did not address that question either.

In the light of the serious and increasing effects of drug importation into prisons, is it not time for the MoJ to consider the routine scanning of staff on entry to prisons? I accept that that may not be popular with everyone, or with prison officers, as it may be said to betoken a lack of trust. However, as the Minister pointed out, the vast majority of prison staff are law-abiding and careful, and do not bring drugs into prison. Such staff have nothing to fear. What consideration is the MoJ giving to the routine scanning of staff on entry? Of course, it would have to be carefully and tactfully considered, after a period of consultation. Nevertheless, it seems to me that the time is now right to give that consideration, given the really serious effects of the drugs that we are now seeing imported into prisons, of which these are nine terrible examples.

[Lord Bellamy (Con)]

My Lords, I again associate myself and the Government with the condolences we have already extended to the families of all those affected. We recognise that we are dealing with a very tragic situation.

On the noble Lord’s direct question about body scanners, the Government are considering all possible measures to reduce this problem. The issue of body scanners for all staff as a routine matter is clearly one that needs to be taken under advisement and given the most careful consideration. I think that is as far as I can go today.

I should add, in case your Lordships are wondering, that despite this very unusual situation at HMP Parc, the Government consider that the prison is fundamentally sound. It has more than 1,800 inmates. The youth offender institution, which is separate, is recognised as one of the best in the land. The prison has strengths in supporting, in particular, neurodiversity and autism; it has rehabilitation and resettlement functions, as well as a remand population. There are many positives, and I would not want to give the impression that everything at Parc is going wrong; it is not.

Arbitration Bill [HL]

Debate between Lord Bellamy and Lord Marks of Henley-on-Thames

Lords Special Public Bill Committee
Wednesday 27th March 2024 Other Business

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

My Lords, I agree with everything that the noble and learned Lord, Lord Thomas, has said. I have one or two small points to add. The first concerns his allusion to the need to be clear. We heard earlier from him and the noble Lord, Lord Ponsonby, about how important the Bill is to maintaining our competitive position in international circles in the field of arbitration. It is in that context that clarity is crucial.

When potential parties to arbitration determine where they are going to have the arbitration, which law will apply and all those questions, clarity is to be highly valued. In that context, it seemed to me, to the committee and to all the experts who gave evidence to us that it should be clear that the court would remain the ultimate arbiter of the arbitral tribunal’s jurisdiction. That was part of the need for these amendments.

To deal with the point about rules of court first, and slightly out of order, the potential problem with the Bill as drawn was that new subsections (3B) and (3C) of the new Section 67, which provided for rules of court, could have appeared too prescriptive. They could have made it look as though that is what the rules of court will say, and that would have two damaging effects. First, it could have been seen to limit the power of the rules committee to set up fair rules in the first place.

Another point that certainly seems important to me is that the rules committee has always had the power to change and adapt rules in the light of experience. If the statute governing the powers of the rules committee looks too prescriptive, that power to change and adapt could be threatened. An amendment along the lines of Minister’s Amendment 7, making it clear that the power of the rules committee would not be limited, is therefore very desirable.

The other point that the noble and learned Lord has made is that there should always be the power for, and indeed an obligation on, the court to act in accordance with the interest of justice. The committee felt, and I feel, that where the interests of justice were mentioned only in new subsection (3C)(c), that suggested that it would not be applicable to new subsection (3C)(a) and (b). The overriding provision in Amendment 3 that

“subject to the court ruling otherwise in the interests of justice”

applies to all three paragraphs was extremely desirable. It also seems important that that renders the clause as a whole entirely consistent with the overriding objective to deal with cases justly by making it clear that that applies consistently with the subsection as drafted and adds to the clarity for those coming to this legislation afresh and determining whether English law will retain its pre-eminent position in the world of arbitration.

[Lord Bellamy (Con)]

My Lords, I thank noble Lords for their support for these amendments, which I commend to the Committee.

Victims and Prisoners Bill

Debate between Lord Bellamy and Lord Marks of Henley-on-Thames

Committee stage
Wednesday 31st January 2024 Lords Chamber

[Baroness Newlove (Con)]

Unfortunately, there are no rooms available to do that. I would love that—and I welcome my noble and learned friend the Minister’s warm tone in hoping that there were—but there are not. I went past two rooms in the murder trial that were video-link rooms. There are no rooms in our court buildings for families, witnesses or anyone else to watch privately and be taken care of. That is why it is so important that we try to assist them by giving them these scripts, so they can reflect on the proceedings whenever they want to.

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

That would be enormously helpful in many civil and family cases as well, and it simply is not available.

[Lord Bellamy (Con)]

I am very grateful for those interventions. I have personally seen this in operation in Manchester, but it may have been that the court had particular availability of rooms that is not generally the case.

King’s Speech

Debate between Lord Bellamy and Lord Marks of Henley-on-Thames

Wednesday 8th November 2023 Lords Chamber

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

My Lords, I too express my sorrow at hearing of the death of the noble and learned Lord, Lord Judge. He was a great lawyer, a wonderful judge, a brilliant parliamentarian and defender of liberty, and, quite simply, the kindest of men.

I will address the Government’s justice proposals in the King’s Speech and the lack of other proposals for which we see a crying need, and which are unaddressed in the Government’s programme. Others among my noble friends will address the Government’s home affairs and devolution proposals later in this debate.

I will start positively by welcoming the arbitration Bill. I declare an interest as a barrister who often appears as an advocate in arbitrations; although not sitting as an arbitrator, I am qualified to do so. England, particularly London, holds a pre-eminent position as an arbitration seat for heavy international commercial arbitrations, and it is a tribute to our arbitrators that our arbitration services are so widely respected.

London is a top choice for arbitrations, and English law is the governing law for many international contracts. Substantial foreign earnings and the enhancement of our commercial reputation follow. But our arbitration law must be kept up to date, and these targeted reforms follow extensive consultation and careful consideration by the Law Commission over the last two years. We will support that Bill’s speedy passage. However, it is a shame that other proposals from the Law Commission are not implemented as quickly. The Government often quail at the slightest prospect of controversy. I mention my Cohabitation Rights Bill, which would implement the Law Commission’s reports from 2007 and 2011, on which the Government have long deferred any action. However, now that the Labour Party is committed to such reforms, I hope for its support and have resubmitted the Bill.

The Victims and Prisoners Bill, expected from the Commons soon, could have been so much better. Giving the victims’ code the force of law would be excellent if the proposal had teeth. My noble friend Lady Brinton has been at the forefront of a long campaign for such a measure. But the Bill is insufficiently robust. There are, for example, no protections for victims of stalkers. The victims’ code is liable to be revised by the Secretary of State, and there is no redress for victims in the event of non-compliance with the code.

On Part 2, it is right that we should have independent public advocates for victims of major incidents but, again, this proposal is not tough enough. Truly independent advocates must be able to hold the Government to account. That may be uncomfortable for government, but it is all the more misguided then that the appointment of advocates by the Secretary of State is purely voluntary—and how can it be right that the Secretary of State can dismiss independent advocates at will?

Part 3 of the Bill weakens the role of the Parole Board in releasing offenders serving life and longer-term sentences and gives powers to the Secretary of State to overrule Parole Board decisions. Strangely, it also permits the board itself to refer decisions to the Secretary of State. Then there is a right of appeal from the Secretary of State to the Upper Tribunal, which is hardly a body suitably equipped to take this kind of decision. Indeed, that right of appeal appears to have been inserted to avoid the decision-making power of the Secretary of State being found in breach of Article 5 of the European Convention on Human Rights—the right to liberty and security, and in particular the right to have the lawfulness of detention determined by a court and not by a Minister. Then, disgracefully, it is proposed to disapply Section 3 of the Human Rights Act in respect of release on licence, so that there would no requirement to construe the legislation compatibly with the convention where possible. That would undermine one of the fundamental protections of the convention in our domestic law.

I turn to the centrepieces of the proposed legislation—the criminal justice Bill and the sentencing Bill, which the noble and learned Lord, Lord Bellamy, called sentencing and offender management. In both Bills, we have what Christopher Grayling, when Secretary of State and Lord Chancellor, used to call “throwing red meat” to the Conservative Party conference. The Prime Minister’s introduction to the briefing for the King’s Speech said:

“We are keeping people safe by making sure the police and security services have the powers they need and that criminals receive proper punishment”.


Frankly, that is just the Grayling formula in slightly more restrained language.

The briefing on the sentencing Bill puts it more starkly:

“This Government will make sure that the prison estate is used to lock up dangerous criminals for longer”.


But there is no evidence that longer sentences keep people safe, beyond the limited point that keeping offenders in prison keeps them out of the community while they are still in custody.

There are some redeeming features of the proposals. We have long called for a presumption against short immediate sentences, so we welcome the proposal for such a presumption. All the evidence demonstrates that short sentences are useless at preventing reoffending, proved by appallingly high reconviction rates, as mentioned by the noble and learned Lord, Lord Bellamy. Such sentences disrupt family and community ties, wreck chances of re-employment, leave no time for rehabilitation, education and training, or for addressing mental health issues or addiction, while they create damaging opportunities for low-level offenders to make criminal contacts to support a future life of crime.

Also welcome is the commitment to increase the use of home detention curfews, and technology makes that an achievable ambition, but the overwhelming direction of travel is to lock people up for longer, in many cases without hope of release, blind to the facts that hopelessness, by definition, leads to despair and that redemption then ceases altogether to be a purpose of punishment. The proposals for imprisonment without remission completely ignore the needs for recognition and reward for good behaviour in prison and for sanction for bad behaviour. Remission and the threat of its loss fill those needs.

The criminal justice Bill continues the theme. True, there are some welcome proposals. These include: compulsory reporting of sexual abuse concerns; multi-agency management of offenders convicted of coercive control; criminalising the sharing of intimate images—cruel and humiliating behaviour. But the general trend is just for tougher punishment, fortified by measures that are, frankly, purely symbolic, such as forced attendance of offenders at sentencing hearings.

This programme fails lamentably to address the crisis in our penal system. Our prisons are overflowing, even into police cells. The building programme, as the Minister acknowledged, is stalled. The Government rely on sticking-plaster pre-fab extra cells, without additional services, so that these are no more than prisoner containers. They double up cells, increasing overcrowding and violence. They bring back into service squalid cells that were supposed to have been taken out of service for the maintenance required to relieve dire conditions. The pitifully small number of available spaces are scattered around the prison estate, so prisoners are sent to where they fit and not to where they need to be, disrupting training and education, continuity of care and links with families and communities, particularly approaching release. We have desperate staff shortages, low retention rates and insufficient recruitment, all caused by low morale. The continuing plight of IPP prisoners is a stain on our penal system.

What we needed was a new approach: lower prisoner numbers; statutory minimum prison standards; a fully resourced Probation Service for prisoners, pre and post release, and to make community sentences work; a comprehensive, multi-agency approach, co-ordinating efforts to promote rehabilitation, involving prison and probation services, local authorities’ housing and social services, training providers, health and addiction services and potential employers. We must replace the mantra, “Lock them up for longer”, with a new and constructive emphasis on supporting rehabilitation and reform. I fear we will not see that change while this Government survive.

[Lord Bellamy (Con)]

My Lords, if the noble Earl, Lord Kinnoull, will permit me a brief moment, I was completely unaware when I made the opening speech of the sad death of Lord Judge. He was a personal friend, a colleague and a mentor over many years, and I associate the Government entirely with the tributes already made and say what a wonderful leader of our legal community he was while Lord Chief Justice and what an amazing job he did as Convenor of the Cross-Bench Peers. I am sure that there will be suitable tributes in due course and on behalf of the Government, we express our deep regret at his very sad passing.

European Court of Human Rights

Debate between Lord Bellamy and Lord Marks of Henley-on-Thames

Wednesday 25th October 2023 Lords Chamber

[Lord Bellamy (Con)]

My Lords, respectfully I do not accept that the Government are flouting the law. The United Kingdom has the lowest per capita number of cases in front of the court of human rights. We represent 0.1% of the court’s caseload. As the noble Lord, Lord Foulkes, said a moment ago, it is very important to encourage other countries to obey the law. We continue to play a very large part in the convention and in the Council of Europe, and we support its work across the board. I just add that the situation has changed very significantly since the aftermath of the Second World War, when Sir Winston led that particular initiative. One has to bear in mind that institutions must respond to international changes and developments.

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

My Lords, now that we have thankfully seen the back of the Bill of Rights Bill, do the Government accept that the UK’s commitment to the binding undertaking in Article 46 of the convention to abide by final decisions of the Strasbourg court was in fact unquestionably threatened by that Bill? Does the noble and learned Lord also agree that that commitment is a vital safeguard for people in the UK, despite the small number of cases in the Strasbourg court affecting the UK today, against the abuse of human rights by Governments of whatever political persuasion in the future?

[Lord Bellamy (Con)]

My Lords, as long as the Government are party to the convention, of course we respect Article 46. I do not accept that the Bill of Rights Bill, subsequently withdrawn, in any way undermined our commitment to the convention; it merely rebalanced the various rights and duties as set out in the UK Human Rights Act.

Joint Enterprise: Young Black Men

Debate between Lord Bellamy and Lord Marks of Henley-on-Thames

Thursday 19th October 2023 Lords Chamber

[Lord Bellamy (Con)]

I thank my noble friend for that question. The national pilot is part of much wider work by the CPS to understand the high number of charges against persons from ethnic minorities. This includes the publication of the CPS Inclusion and Community Engagement Strategy 2025 and the document CPS Defendants: Fairness for All Strategy 2025. But that is combined with statistical research being conducted by the University of Leeds, with an independent disproportionality advisory group established to advise the CPS. The first stage of the Leeds research is published on the CPS website.

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

My Lords, the pilot study sample was too small to draw any strong conclusions, as the report and the Minister accepted. However, it is clear that we need a new, wider study and we welcome the announcement of that study. Does the Minister also agree that great care needs to be taken on the evidence so far compiled with the use of the word “gang”, which may be prejudicial? Does he also agree that young black men appear to be disproportionately charged with these offences, particularly in London? Finally, does he agree that to draw meaningful conclusions, the broader study will need to gather data comparing joint enterprise cases with other cases, which was not done in the pilot study?

[Lord Bellamy (Con)]

My Lords, as I have just said, I do not accept that the study so far reveals disproportionality. I accept that this is a very sensitive subject, and we must avoid anything that could be described as inflammatory language. I take on board the noble Lord’s point that we need a proper data study bringing in relevant comparables.

Prison Capacity

Debate between Lord Bellamy and Lord Marks of Henley-on-Thames

Tuesday 17th October 2023 Lords Chamber

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

My Lords, I welcome this Statement, in part at least, and I thank the Minister for making the time to discuss it with me yesterday. However, we profoundly regret the circumstances in which it came to be made.

At last, the Government recognise the disgraceful state of our prisons—with a current population of 88,000 and only 500-odd places unfilled across the estate and with serious overcrowding within that population. It is not all down to Covid, more remand and recall prisoners and industrial action. Indeed, the Statement itself points out that the prison population in England and Wales has nearly doubled over three decades. That is made worse by serious understaffing, dismal morale and, in consequence, a failure to recruit and retain enough prison staff.

Some of these measures we have long been calling for. We welcome the presumption against damaging short sentences, which are shown to be hopelessly ineffective, with sky-high reconviction rates and no chance of addressing mental health and addiction issues or training or preparation for employment. We welcome recognition of the need to concentrate on rehabilitation and reform and greater use of community and suspended sentences, but these must be supported, as the noble Lord, Lord Ponsonby, said, by probation and community services that are fully resourced and in overall operation.

However, much of this Statement just sets out panic measures from a panicked Government who have simply run out of prison space, despite all the warnings: doubling up in already overcrowded cells; the so-called “rapid deployment cells”, which the noble Lord, Lord Ponsonby, called portakabins—read “makeshift prefab temporary cells” with, importantly, no extra supporting services; cancelling maintenance projects that are essential to improve squalid conditions; and indiscriminate 18-day early release determined by the location where the prisoner is serving, not the prisoner’s suitability. Even worse, we are still resorting to using police cells, which are totally unsuitable for housing prisoners.

This Statement talks of giving the least serious, low- risk offenders a

“path away from a life of crime”.

However, all prison sentences should offer that—and to extend the metaphor, such a path needs to be properly planned, well supported and fully paid for, not just hurriedly hacked out of the undergrowth, to find a way out of a mess.

The long-term prison building plan is now way behind schedule, so I ask the Minister some questions about the Government’s plans for the medium term. Given that sentence inflation is in part fuelled by government policy, do they have other plans to reverse the inexorable rise in the prison population? What proposals do they have to cut the backlog in the courts to reduce the overload from remand prisoners? What exactly is proposed for an urgent end to the disgraceful extended incarceration of IPP prisoners? What changes are proposed to target recall—to moderate its use, which is often unmerited and should be specific and only used when needed? How do the Government propose to avoid shuffling prisoners around the prison estate to fill every available space, without regard for prisoner needs and welfare—in particular, the need for contact with their families and communities before release?

More importantly, what greater resources are proposed for the probation services so that community sentences work? The Statement claims credit for a past increase in funding but says nothing about the extra funding that will be needed to meet the increased demand resulting from these measures.

[Lord Bellamy (Con)]

My Lords, I will deal as best I can with the points made. Hospital pass or not, the Government have to deal with the situation in which they find themselves. On the question of how we got here, the Government have embarked on the largest prison-building programme since Victorian times. To answer the specific questions, I say that Five Wells is open, Fosse Way has recently been opened, Millsike is under construction and I think three other prisons are currently embroiled in the planning process. However, we have spent £1.3 billion on prison construction and at some point the society in which we live has to ask itself, “How much money? Where is the balance to be struck between prison building and other approaches?”

In addition to the various measures I mentioned, including the so-called portakabins or rapid deployment cells, which have proved an important means of ameliorating conditions in some prisons, the Government have taken quite a number of actions and we have done our utmost to keep the available capacity to meet the need, despite the unprecedented pressure arising mainly from the remand population, without which I do not think we would have the problem that we have. Therefore I respectfully defend the Government’s record in this regard.

As regards the very important question of the Probation Service, which both noble Lords raised, it has needed additional resources and, frankly, a degree of rebuilding in the last years, which the Government have been doing their best to do. We are expending an additional £155 million a year on the Probation Service, and I am told that we have exceeded the recruitment target in each of the last three years and recruited 4,000 trainee probation officers over the last three years. Of course, recruiting a trainee probation officer does not mean you immediately have a fully fledged, experienced probation officer at hand to take on very difficult tasks. I accept that from this House, which very much knows what it is talking about, but the Government are in the process of strengthening and rebuilding the Probation Service, which—to answer the question I think from the noble Lord, Lord Ponsonby —will indeed be, and has to be, an integral partner in the new programme.

As the noble Lord pointed out, there will still be cases where there is no alternative to a short sentence of less than 12 months, in which case the presumption is rebutted. Let us hope that, in recalibrating and reorientating the culture, that really is the last resort and that the number of short sentences declines dramatically. The figures speak for themselves, with 55% reoffending on short sentences but only 22% reoffending on suspended sentences with proper conditions that are properly enforced and calibrated to that particular offender. Those are striking facts. The Government’s hope and intention is that we move towards the latter from the former. I venture to suggest that noble Lords would not disagree with the general direction of travel that I have tried to convey.

As to the question of the delay in sentencing that was reported last week, this announcement came from the judiciary. It is indeed up to the judiciary to deal with sentencing, but I anticipate that the need for any delay in sentencing will diminish fairly rapidly after our intermediate step relating to the early release from custody subject to licence, so that we can get back to normal management and the courts no longer have to worry about whether there is sufficient prison capacity. I hope that becomes a temporary problem and is no longer of concern.

As regards foreign national offenders, I cannot give the noble Lord an exact estimate of what difference the change in the period from six months to 18 months will make. We also need to uprate the Home Office team that deals with this and reorganise the relevant procedures, but it should result in at least some numbers, which I am not able to clarify. I can do further research and write to him if that would be useful. If you can imagine 10,000 out of 88,000, that is a very substantial number of foreign national offenders in our system. We should be able to do something effective to reduce that pressure, not least with agreements such as that with Albania for prisoners to serve their sentences in their home jails.

As far as the extradition cases are concerned, I am obviously not able to comment on any specific cases, whether from Germany, Ireland or elsewhere. I respectfully disagree with the idea that there is a difference between a quality issue and a capacity issue because I think capacity and quality are intertwined, especially if there is a problem with overcrowding et cetera, but the Government’s position is that our prisons are fit and decent from the point of view of our request to extradite persons to this country, and I anticipate that these reforms will enable us further to reinforce the fitness and decency of the prison estate in this country.

As far as the noble Lord, Lord Marks, is concerned, again no Government would have wished to be in this position, but we have to deal with it as it is. The measures that the Government have taken on employment and rehabilitation, which include, as I think I have said on previous occasions, employment boards in each prison with local employers—there is more or less a jobcentre in Berwyn prison in Wales—the provision of 12 weeks’ accommodation and the digital passport with a bank account, a national insurance number and so forth, have led to a substantial improvement in rehabilitation and a drop in the reoffending rate from about 32% a few years ago to just under 25% now, which is some progress in very difficult circumstances bearing in mind the kinds of prisoners one is dealing with.

We will come back to IPP. In the medium term let us progress with these reforms and keep them under review. We will now be reporting to Parliament annually, so that will give a new and more transparent opportunity to develop and share the problems, which I venture to suggest are problems that we ought to share rather than problems that are of—shall I say?—a party-political nature.

Jurors: Mental Health Impact

Debate between Lord Bellamy and Lord Marks of Henley-on-Thames

Tuesday 28th March 2023 Lords Chamber

[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.

National Security Bill

Debate between Lord Bellamy and Lord Marks of Henley-on-Thames

Report stage
Tuesday 7th March 2023 Lords Chamber

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

My Lords, I am extremely grateful to the noble Lord, Lord Marks, for his amendments, and to the noble Lord, Lord Pannick, for his comments. I hope the House will agree that the Government have been in listening mode throughout this Bill, and that we have in this particular instance moved quite considerably to deal with what the Government consider to be justified observations by your Lordships.

On the general point, the reforms are designed to protect the public, to deter those who seek to exploit our security services for compensation and to reduce the risk that court awards or damages may be used to fund terrorism—perhaps the most serious harm that can be perpetrated against society, going to its very fabric. The noble Lord, Lord Marks, asked me to restate the purpose of the clause and I think I have endeavoured to do so in those words.

On whether the Government can give any assurance that these provisions will not be invoked on the basis of

“unproven allegations … from a foreign state”,

I draw your Lordships’ attention to the fact that this is a power in the court; it is entirely in its discretion. No court is going to act on anything other than proper evidence, so in the Government’s view there is no risk of the danger to which the noble Lord, Lord Marks, referred, because this is a court process with rules of evidence and proper and fair procedures.

With those two preliminary observations, I come to the central point that was at issue when we discussed this clause in Committee. We have listened to the concerns expressed by noble Lords that the legislation needed to ensure that no national security case fell into scope where there was no connection between the Crown’s conduct and the terrorist conduct of the claimant. I can repeat before this House the assurance in the letter I sent noble Lords today, to which we have already been referred, saying that there needs to be a causal connection between the conduct of the terrorist and the reduction in damages.

As to what criteria the courts should apply when considering these issues, I know that noble Members felt the courts would require further guidance. In the Government’s view, the courts do not require further guidance; they are well able to interpret and apply this legislation, especially in light of the amendments we have proposed. The Government have every confidence in the court being able to discharge its functions under these provisions.

Our courts are well versed in taking a wide range of relevant factors into account in determining liability and assessing the level of damages. There are a number of common-law considerations to which noble Lords referred in Committee which may indeed provide some guidance. We do not seek to exonerate the Crown in respect of its own culpability; we aim simply to ensure that the terrorist conduct is properly taken into account when calculating quantum.

I turn to what I think are the only live amendments on this part, Amendments 174 and 175. Those amendments would apply to the Bill’s provisions whereby a court would consider the context in which the Crown had acted to reduce a risk of terrorism, but their underlying intention seems to the Government to be to markedly restrict those provisions. As I understand it, the amendments seek to limit the consideration of the court to where the Crown’s actions had been commenced —the provisions use the word “instigated”—and the conduct was required to have taken place overseas at the instigation of a foreign state.

While the Government accept that there are difficulties in preventing terrorism when the action concerned needs to be taken overseas, there are so many different facts and circumstances flowing from the claimant’s own actions that the proposed amendments would significantly limit the effect of these clauses. In the Government’s view, the courts ought to have complete discretion to apply the clauses as they stand; a very tight restriction both as to instigation and to the requirement that the instigated conduct took place overseas would limit them inappropriately and improperly restrict the discretion courts should have under the provisions.

The Government further feel that there is scope in these amendments for some confusion. The two aspects, an overseas element and instigation, seem to be couched in language reminiscent of an exclusive list, quite apart from the difficulty of deciding exactly what one means by “instigation”. In practice, the Government feel that the courts should be left to exercise their discretion, as they surely will, without the limitation proposed by these amendments. That is the Government’s position on the amendments proposed by the noble Lord, Lord Marks, and I hope that in the light of what I have said, he will consider not pressing them.

There is one amendment by the Government—Amendment 181—which is proposed to ensure family proceedings in Scotland and Northern Ireland are excluded from the freezing and forfeiture provisions that are also part of this part, as with those in England and Wales. That simply corrects an oversight in the original drafting.

Having set out the Government’s amendments and why we are unable to accept the amendments proposed by the noble Lord, I commend Government’s amendments and ask the noble Lord to withdraw his.

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

My Lords, I have heard the Minister’s explanation. It is right that the amendments that were between us were Amendments 174 and 175. Having considered his point on the court’s discretion, I am not sure that the difference between us is so wide as to justify my testing the opinion of the House on this occasion. I shall not move those two amendments and beg leave to withdraw the stand part amendment.

--- Later in debate ---

[Lord Bellamy (Con)]

I am again extremely grateful to noble Lords for their interventions and, in particular, for the support for the principle behind Clause 89 expressed by the Official Opposition, subject to the point about minor offences, which I will come to in a moment.

As a quick reminder, Clause 89 narrows the range of circumstances in which individuals convicted of specific terrorism offences can automatically receive civil legal aid services. This includes individuals convicted of terrorism offences punishable with imprisonment for two years or more as well as other offences where a judge has found a terrorism connection. It is important to note that this clause modifies but does not exclude legal aid, because there is still the route of exceptional case funding, particularly if convention rights are in issue. One of the fundamental convention rights— I think this at least partially answers the point raised by the noble and learned Baroness, Lady Butler-Sloss—is the necessity for a fair trial, in Article 6. The exceptional case funding route is still available in that regard. Phrases such as “excludes”, “denies”, “debars” and “no legal aid support” are not an accurate summary of what this clause achieves.

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

I am grateful to the noble and learned Lord for giving way, but is it not the case that no one gets exceptional case funding simply because they otherwise would not get legal aid? The point made by the noble and learned Baroness was that it is unfair, so you will not get a fair trial. However, that does not ground exceptional case funding —unless the noble and learned Lord has a different view of exceptional case funding from the rest of us.

[Lord Bellamy (Con)]

My Lords, there might well be found applications for exceptional case funding; approximately 75% of such applications are successful each year. In any event, exceptional case funding is still available.

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[Lord Bellamy (Con)]

It is not entirely irrelevant that exceptional case funding is always available for access to justice. That fact changes some of the comments that have been made about the restrictive nature of the Bill.

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

My Lords, there is a sharp division of opinion on the general principles here. I share the disappointment of the noble Lord, Lord Pannick, at the position taken by the noble Lord, Lord Ponsonby, on behalf of the Labour Front Bench, particularly in view of the way the Labour Front Bench spoke in favour of the principles we enunciated in Committee. I do not propose to press Amendment 180, but when the time comes, I will seek to test the opinion of the House on Amendment 185.

Prisoners: Imprisonment for Public Protection

Debate between Lord Bellamy and Lord Marks of Henley-on-Thames

Wednesday 1st March 2023 Lords Chamber

[Lord Bellamy (Con)]

My Lords, I can give that assurance. The problem is acute; it gets more difficult as time passes. The need for specialised training and proper attention to these matters is growing. The action plan will include a special supervisory board with specific responsibility for IPP prisoners, with a view to tackling this very difficult problem.

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

My Lords, in concert with all who have spoken, I suggest that the continued detention of so many IPP prisoners beyond their tariffs shames the criminal justice system. We have been around this course so many times, but do not the Government now appreciate that their lack of progress on this betrays a complete inconsistency? On the one hand, they agree that the abolition of IPP sentences under LASPO should have happened because continued preventive detention for prisoners who had served their time could not be justified, yet on the other they maintain and defend such a system in failing to release almost 3,000 of those prisoners—including those who have been released once—who were sentenced before LASPO but 10 years after those sentences were abolished.

[Lord Bellamy (Con)]

My Lords, the then Government decided that the abolition of the IPP sentence should not be retrospective. The existing IPP action plan has had a certain degree of success, and the revised IPP action plan will, we hope, fully address the problem.

Domestic Abuse: Defence for Victims who Commit an Offence

Debate between Lord Bellamy and Lord Marks of Henley-on-Thames

Tuesday 21st February 2023 Lords Chamber

[Lord Bellamy (Con)]

My Lords, the Government are making progress on the whole issue of domestic abuse; we have the 2021 Act and the 2022 Home Office plan for tackling domestic abuse. There is also greater awareness among the police, the CPS and the judiciary of these issues. I cannot commit to introducing a domestic violence register but that is certainly one matter to be considered.

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

My Lords, the Domestic Abuse Act was landmark legislation; it improved national understanding of domestic abuse and its appalling consequences. However, the rejection of amendments proposed by the noble Baroness, Lady Kennedy of The Shaws, the right reverend Prelate and others, which were the context of the commitment from the noble Lord, Lord Wolfson, left serious unfinished business. Successive lockdowns and the cost of living crisis have taught us more about the terror of victims trapped in homes with their abusers. Of course we will await Clare Wade’s report, but surely now the Government can recognise that victims should be convicted of offences of violence against their abusers only if they use force that is grossly disproportionate.

[Lord Bellamy (Con)]

My Lords, I do not wish to pre-empt the contents of the Wade report or the Government’s response. The broad position is that the Government are not yet persuaded that a change in the law is needed in relation to homicide or other offences, but are very much open to further consideration of these very difficult issues.

Probation Service: Chief Inspector’s Reviews into Serious Further Offences

Debate between Lord Bellamy and Lord Marks of Henley-on-Thames

Tuesday 31st January 2023 Lords Chamber

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

My Lords, these two appalling cases have shocked and horrified us all. Our deepest sympathies go out to the families of the innocent victims. These reviews record a catalogue of mistakes, miscalculations and failures to act. In view of the Lord Speaker’s ruling, I shall not go into the detail of McSweeney’s case.

In Bendall’s case, against a background of domestic abuse dating back to 2016 and a clear risk of sexual abuse of girls dating back to March 2020, he was assessed in a pre-sentence report in June 2021 as a medium risk of serious harm to the public and, incredibly, as a low risk of harm to partners and children. The so-called fast delivery pre-sentence report was described in the review of his case as “inappropriate”—an understatement, I suggest. As a result, for an offence of arson Bendall was given a suspended sentence order with an electronically monitored curfew requirement that he reside with Terri Harris and her children. The probation service had made no contact with Ms Harris before Bendall’s sentencing and no assessment of the risk to her and her children. In September 2021, he murdered Ms Harris, who was pregnant, her two children and an 11 year-old friend of theirs, raping one of the children.

We can date the parlous state of the probation service to its disastrous privatisation in 2014 and the inevitably challenging attempt to reverse the damage in 2021. However, it is still plagued by a lack of resources and dismally low morale. Of course, we welcome the extra £5.5 million per year for more staff to access domestic abuse and child safeguarding information, but why is it so late? How will the Government ensure that this new investment addresses poor information sharing and the lack of consideration for the welfare of children?

The extra £155 million per year for more probation staff will help, particularly if it really does yield a net extra 4,000 probation officers over three years. However, Andy Slaughter MP pointed out in the House of Commons that more than 50% of probation officer posts in London are vacant. Does the Minister agree that filling the vacancies with suitable candidates is a huge challenge? Retention of experienced officers is also vital; as is high-quality training and building confidence that officers are fully informed and that their decisions are not impossibly pressured. In the other place, Sir Robert Neill, the chair of the Justice Committee, pointed out that these issues had all been highlighted by his committee in April 2021. Will the Minister explain how the Government now plan to tackle all these extremely difficult issues?

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

My Lords, I am sure the whole House will join me in expressing once again our deep condolences and sorrow to the victims in these two cases. I will not, if your Lordships permit, go into details which have already been set out in the House of Commons and have been mentioned today. However, I repeat unreservedly on behalf of the Government the profound apology for serious failings in probation supervision in these two cases already made by my right honourable friend Damian Hinds MP, Minister for Prisons and Probation, in the House of Commons on Tuesday 24 January. The chief probation officer has also made that apology to the families concerned.

As the noble Lords, Lord Ponsonby and Lord Marks, have already said, the primary duty of the Government now is to do all we can to address these failings and ensure, as far as possible, that this kind of thing can never happen again. As the Chief Inspector of Probation found in his highly critical reports, the central problem in both these cases was that the level of risk was not assessed properly. Both criminals concerned were assessed as medium risk when they should have been assessed as high risk in light of their long and often dangerous criminal histories. However, the questions we have to address, which have rightly been raised, are: what are the Government doing about it and how we can move forward from here?

First, at a very high level, the probation service has been reunified with a view to raising standards. The noble Lord, Lord Ponsonby, mentioned the history of this matter and mention has also been made of the privatisation of the service. The Government believed it right to bring that arrangement to an end, and are currently engaged in restoring, reinforcing and improving the service.

The Government recognise that the probation service needs more staff, and an additional £155 million has been invested in that endeavour. This has led to an increase of 2,500 trainee probation officers over the last two years, and a further 1,500 officers are to be recruited by the end of March 2023. I am advised that that is on track.

More specifically, in relation to the circumstances of these specific cases, the Chief Inspector of Probation has produced two detailed reports which in turn have engendered two action plans by HMPPS published on 17 and 24 January respectively.

In the case of Bendall, the report made 17 recommendations, all of which have been accepted, and most have already been actioned. I will briefly run through the steps that have been taken so that we can understand what is in progress.

First, domestic abuse inquiries must be routinely carried out in all cases where an electronically monitored curfew is being considered, with a detailed assessment of any risk of harm.

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[Lord Bellamy (Con)]

I cannot confirm it at this moment. My understanding is that such information should be available if it is recorded in the police record, and not just if there was a consequence—so if a call-out had occurred, even if there was no further action. I ask the noble Lord to allow me to confirm that to be absolutely sure that I have understood the question and given the correct answer.

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

I am terribly sorry to interrupt again but, to follow that up, because it is a very important point, the Statement talks about this money being spent

“to recruit more probation staff who are specifically responsible for accessing domestic abuse information held by the police,”—

with which the Minister has dealt—

“and children’s safeguarding information held by councils”.

When he goes back, it is important that he finds out whether information held by councils on domestic abuse would also be researched, because that can also be very valuable to the probation service.

[Lord Bellamy (Con)]

My understanding is that that is the case but, again, I will confirm it to make absolutely sure that we have the right information for your Lordships. As the noble Lord rightly emphasised, one of the further recommendations is that a child safeguarding inquiry be carried out in all cases where the person concerned either lives with or is likely to have contact with any relevant child, and there are new training and procedures to achieve that.

There are further specific measures to ensure the safety of children, involving a separate section in the OASys—the offender assessment system; a new child safeguarding policy framework; revision of training in producing pre-sentence reports to improve the quality; more support and mentoring for trainee probation officers, with new learning tools and opportunities; and a better framework to guide senior probation officers when allocating cases to more junior probation officers.

Those recommendations are complemented by the report relating to the case of McSweeney, which has 10 further recommendations. It proposes first a thorough review of the processes for assessing the risk of harm, because what went wrong in these two specific cases was that the risk was underassessed. As I understand it, that was partly because not all the information that was on the system was properly assessed or accessed by the relevant staff. It was also, particularly in one of the cases, partly because relevant information was not properly shared between the various elements, particularly the Prison and Probation Service in the community. The noble Lord, Lord Ponsonby, rightly made the point about how important it is that we have a consolidated system in which all information is available to everyone, so that nothing falls through the cracks or is missed.

That is essentially part of the recommendations, particularly in the McSweeney case, for improved processes to ensure that all information on past behaviour and current risks while in prison is shared in a timely and effective manner, particularly between the prison offender manager—the probation officer looking after the prisoner in prison—and the community offender manager who will be responsible for managing the person concerned in the community. That includes better procedures and allocation of cases before a prisoner is released, so that there is proper communication between the relevant prison offender manager and the relevant community offender manager so that there is continuity and overall management when a prisoner is released. It also includes the tightening up of all recall decisions being signed off by a senior probation officer within 24 hours, which was one of the problems in one of the cases, and close monitoring of the licence conditions. So a range of steps are being taken.

I will briefly turn to the questions that your Lordships quite understandably posed. In his reports, the inspector does not make a link between the effect of the previous privatisation arrangements and these particular cases. I do not think I am revealing any secrets if I say that the Government came to the view that the earlier arrangements were not working properly and the situation had to be reformed, which is why the probation service was reunited.

On the local links question, I have every reason to suppose—but, again, I will clarify this with the service and write appropriately to your Lordships—that, although the emphasis has perhaps moved to more central management, as is probably inevitable in the present modern circumstances, one should not underestimate the importance of local links, particularly with the voluntary sector. I will ascertain and obtain further information on how that particular important aspect is being addressed, in answer to the question of how far the links to local government agencies are being reinstated or used—this is an important question, and your Lordships need to know the answer, so I will endeavour to give more detail on it.

I have addressed the importance of the information on an individual offender being held in one place and combined, which will improve information sharing. In the brief time available, I have done my best to explain how the information sharing will be improved. It is true that filling the relevant vacancies is a large challenge, and it is particularly so in London, where some areas have had particular difficulties—I am sure that noble Lords are broadly familiar with the situation. Some senior management has had to be replaced, and various remedial action plans are in force to address this; it is all taken extremely seriously. I hope and trust that we will see significant improvements as the increasing staff gradually gain experience and come through the system. There has been a remarkable increase in the number of recruits in the last two or three years.

All in all, the Government’s position is that a great number of positive actions are being taken. I have apologised deeply and sincerely for these particular incidents involving these victims, to whom our hearts of course go out. I do not think I am in a position to give a wider apology than that but I will put one matter in perspective. I am sure it is your Lordships’ experience that, within probation services and prison services, we have many dedicated professionals who go the extra mile to ensure our safety and look after their charges. When things go wrong, they are as devastated as the rest of us. I would not want it to be thought that the front-line staff, whom I personally salute, are under undue criticism in these cases. I hope I have explained the steps being taken to improve the system at all levels and to avert future tragedies of this kind.

National Security Bill

Debate between Lord Bellamy and Lord Marks of Henley-on-Thames

Committee stage
Wednesday 18th January 2023 Lords Chamber

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

I thank noble Lords very warmly for their contributions, which were pertinent and challenging as ever. I shall make three introductory points. First, there is perhaps—and I put this as lowly as I can—a tension between those who say that this approach is wrong in principle and, on the other hand, those who say it is already covered by the general law. If it is covered by the general law, it cannot be wrong in principle. There seems to the Government to be an opposition in those two propositions.

Secondly, it is said that these provisions are intended to introduce a high level of impunity for the security services, generally reduce their accountability and effectively put them beyond the law. That is not the case, because in this legislation the decision is for the court—it is for the court to decide what to do. It does not give immunity to officials, the security services or the Government. It is a matter for the court. Essentially, this legislation is spelling out what the position is in relation to persons who have been involved in terrorist wrongdoing. It is saying in explicit terms that, where that situation arises, the court should consider—and I emphasise the word “consider”—whether damages should be reduced to reflect that wrongdoing. It is perfectly true that, at common law, such an argument could already be made, at least in theory; depending on which Latin tag you chose to use or whether you refer to the contributory negligence Act or other general principles, the argument can be made. But the point of these provisions is to spell that out in very clear terms so that the general public and potential claimants know what the position is, and one is not left to argue what can sometimes be obscure and difficult questions of common law in particular cases.

Thirdly, the overriding purpose—we can discuss the exact wording—is to convey a message. The message is that the United Kingdom is not a soft touch for those involved in terrorist wrongdoing when they come to claim civil damages. That is a message particularly directed to those beyond the seas who may be tempted to bring, and have in the past brought, proceedings in the UK courts when these kinds of situations have arisen. It is to make the civil position clear. By the same token, we have provisions relating to freezing and forfeiture which protect any damages that are awarded from subsequently being used for terrorist purposes. That is the overriding framework, as it were.

On behalf of the Government, I entirely reject the suggestion that these provisions are intended to introduce a high level of impunity for the security services or to avoid accountability, because it is ultimately for the court to decide. This is limited to national security proceedings, and the conduct of any public bodies will still be fully subject to scrutiny by the court.

With that general description, I shall try to deal with the various points which have been raised. I come first to Amendment 105A, put forward by the noble Lord, Lord Marks, which seeks to introduce an exclusion in cases where the evidence or submissions to the court about national security are merely incidental to the civil claim in question. While completely understanding the objective behind the amendment, the Government believe that it is not necessary, for three reasons.

First, national security proceedings are very clearly defined in Clause 82(2), and it is very hard to construe that definition as including a case where national security was for some reason de minimis to the proceedings concerned. Secondly, it is, in the Government’s view, hard to imagine in practical terms a situation in which a person involved in terrorist wrongdoing brings a case against the Crown, and the Crown has presented evidence or made submissions about national security, but national security is merely incidental to the issues in the case. It seems to the Government that it is most unlikely that such a situation would arise. Thirdly—this is a fundamental point that I have already made—

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

The Minister simply has not answered the point that this provision in the Bill refers to “at any stage” of the proceedings, and any stage of the proceedings could be a disclosure stage, an interlocutory stage or an interim stage, where documents are sought to be withheld for reasons of national security that do not go to any major issue in the proceedings and are merely incidental. The Minister has simply not answered that. If he would like to do so, I would be grateful.

[Lord Bellamy (Con)]

I will further reflect on the question, but it seems to the Government that that specific example is unlikely to bite, as it were, on the duty of the court in the particular circumstances that we are considering, because ultimately it is up to the court to consider whether a reduction of damages is appropriate. If it were the case that, technically speaking, you could argue that national security proceedings on the face of the statute were in some way involved because there had been an earlier discovery application but it had no material impact on the remainder of the case, one could reasonably assume, and the Government do assume, that the court would not proceed to reduce damages on the basis of something that had nothing to do with the real issues.

We will always reflect and consider further, because it is very important to get the drafting right, but at the moment the Government are unconvinced that this amendment is necessary and believe that the protections, and in particular the role of the court, are sufficient to deal with the concern that the noble Lord, Lord Marks, has raised. That, I think, is the answer to Amendment 105A.

--- Later in debate ---

[Lord Bellamy (Con)]

I certainly undertake to reflect on what further guidance can be given on how the courts should go about this exercise.

I have taken up too much of your Lordships’ time and am conscious that I have not perhaps dealt with everything I should have. As I think I have said, the overall intention is not in any way to undermine mechanisms for holding the Government to account, or to allow Ministers and officials to evade scrutiny. I fully agree with the noble Lord, Lord Coaker, that we absolutely have to tread carefully. I hope that this package is a balanced one, and I invite noble Lords not to press their amendments.

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

My Lords, we have had a worthwhile and detailed debate in which the Government have been pretty hard pressed on the detail of these clauses. I am bound to say that nothing I have heard suggests to me that these clauses are in fact defensible. They introduce a very important and, we say, objectionable new power. It is not merely a power but, because of their mandatory nature, a duty to consider reduction in damages—the power being to reduce damages where there is no connection required between the conduct of the claimant and the reduction in damages. That is entirely novel.

If I may go on from there to consider a point made by the Minister fairly early in his speech, he said that those of us who criticise these provisions must face the fact that there is a tension between that criticism and the reliance we place on existing law. The reason why his position falls and why there is a tension is precisely that, under the existing law—as in the point made a moment or two ago by the noble Lord, Lord Pannick—it is the claimant’s conduct that leads to the reduction in damages. The point made by the noble and learned Lord, Lord Hope, was that there is express exclusion of the requirement for the claimant’s conduct to be responsible in these provisions before a reduction in damages is ordered. The security factors may be entirely irrelevant conduct, as far as the award of damages is concerned, but nevertheless lead to the requirement to consider reducing damages.

I suspect that the noble Lord, Lord Bellamy, because of his being so conversant with the common law, got into some difficulty when answering my question on disclosure. He said it is unlikely that consideration of evidence that came to light in a disclosure application would have any bearing on the claimant’s conduct and therefore would lead a court to reduce damages. That is to fall into the trap of ignoring the effect of these provisions where no causal connection is required.

In answer to the other central point made by the Minister, that this is not about giving impunity or immunity to the Government because it is for the courts to decide, that leads the Government directly into the difficulty that these provisions are mandatory. As has been said a number of times, if a judge is faced with a mandatory provision that requires him to consider a number of factors and decide whether to reduce damages, he cannot blithely go on to say, “Well, I looked at the factors and I’m simply going to ignore the legislation”. He then either gets into the point the noble and learned Lord, Lord Hope, made—that he is giving no effect to the legislation at all and it is a cypher, because a Court of Appeal might agree with that—or he is simply falling into error because he is not applying the legislation. It is a very difficult conundrum to face.

The central point made where the Government have got into such difficulty is that originally raised by the noble Lord, Lord Faulks. He said that there is no guidance whatever in Clause 83(5) as to how and on what principle the judge is to approach the question of whether damages should be reduced. Ultimately, the Minister was forced into the position of saying, “I’m not quite sure—I’ll take it under advisement and we may come to some conclusion about it”. Frankly, and with the greatest respect to the Minister, that is simply not good enough. This Committee needs to know what principles are to be applied to the exercise of an entirely new and, we say, entirely objectionable power.

The reality is that this point cannot be escaped from, as was said by the noble Lords, Lord Anderson, Lord Pannick and Lord Faulks, and the noble and learned Lord, Lord Hope. My noble friend Lord Purvis has again said that in an intervention. The problem is that this legislation is to be aimed at using damages to fund terrorism. That would be properly achieved, as the noble Lord, Lord Coaker, pointed out, by using the powers to freeze damages in a responsible way when there is an actual intention to use the damages to fund terrorism. It is exactly the point that the independent reviewer, Jonathan Hall KC, made: that it was dealt with by the existing legislation under the 2001 Act.

I cannot for the life of me therefore see why lowering the threshold achieves anything meaningful that is just, because it is unjust and the threshold under the existing legislation is the proper one to apply for something as serious as depriving somebody of damages or even freezing their damages. This legislation is weakening and altering other legislation in an unnecessary way, by introducing new powers that are objectionable, and therefore it ought to go.

The Minister has said that he is going to take this away and think about it. At this stage, therefore, I could not sensibly press my amendment and we would not ask for votes at this stage on clauses standing part. However, I really suggest that the Government are now under an obligation to consider whether any of these provisions are necessary at all or whether they wish to abandon them. In saying that, I beg leave to withdraw my amendment.

Probate: Waiting Times

Debate between Lord Bellamy and Lord Marks of Henley-on-Thames

Thursday 8th December 2022 Lords Chamber

[Lord Bellamy (Con)]

I fully associate myself with the noble Baroness’s remarks. It is completely right that these issues should be raised, and I congratulate my noble friend Lady Meyer on raising them. I have already met her to discuss this problem. In fairness to the probate registry, I simply point out that we are still enmeshed in the aftermath of Covid. Excess deaths are currently running 13% above the five-year average. The first half of 2022 saw 16,000 extra applications above the same period in 2020. So there is a challenge here. I assure your Lordships that, as far as I am concerned, this issue is being monitored closely and everything is being done to correct it.

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

My Lords, the noble Baroness, Lady Meyer, has the sympathy of the whole House. The 10 days mentioned in her Question are a pipe dream, frankly. The Minister’s figures are hopelessly optimistic. My understanding is that eight weeks is generally the absolute minimum, and only if the form is flawless. The Government’s website says that you will usually have to wait 16 weeks from application to grant—that is from now to nearly Easter. Any queries add another month. If there is inheritance tax to pay, that adds another month. It often takes hours, not 10 minutes, for someone to answer the phone, and it often takes weeks for them to respond to emails. This is a wholesale failure of service at a desperately sad time in people’s lives—a time of loss, grief, stress and worry. Are not the Government and the Minister ashamed of this performance?

Prison Capacity

Debate between Lord Bellamy and Lord Marks of Henley-on-Thames

Tuesday 6th December 2022 Lords Chamber

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

My Lords, this Statement betrays a panic reaction to a crisis of the Government’s own making. Can the Minister say whether the Government finally accept that their policy of increasing time served in prison and their acceptance of prison sentence inflation have increased the number of prisoners? Do they accept that their policies have failed to cut our appallingly stubborn reoffending rates?

Understaffing and overcrowding have given our prisons revolving doors, reducing the chances of education, retraining and rehabilitation within prisons; yet in this complacent Statement, the Government accept no blame. “More rape prosecutions”, they say. Can the Minister say how many more convicted rapists are in prison now than were in 2019?

Then the Government blamed the criminal Bar strike. For years they have paid scandalously low fees to criminal barristers, who finally felt forced to take action. I remind the House of my registered interest as a practising barrister, although I have conducted no criminal cases for decades. If they had settled six months earlier, on the terms that were ultimately offered, how many police cells would now be unnecessary?

How do the Government plan to create more prison spaces, as they say they do, apart from the building program, without yet more overcrowding or even more shunting of prisoners around the prison estate to wherever space may be found, disrupting training, release preparation, visiting arrangements and family relationships, all of which are essential to rehabilitation?

I say yes to body cams, as mentioned in the Statement, and yes to preventing smuggling, but may we please have an end to short-term, panic responses to increased prisoner numbers, for which the Government’s failures alone are responsible, and have a corresponding increase in concentration on rehabilitation?

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

My Lords, I thank noble Lords for the points just made. Before I reply to them, I should say that Operation Safeguard is a temporary measure to meet a recent surge in demand for prison places and to keep the public safe. This is due in part to an exceptional number of prisoners held on remand as a result of the barristers’ strike, and the surge in offenders receiving custodial sentences. The prison population rose by over 1,500 in October and November, a highly unusual increase, which has caused pressure on the adult male estate but not the female or youth justice estates.

Operation Safeguard is a long-standing scheme, also used by the Labour Government, which allows about 400 police cells to be made available for prisoners to be held temporarily before they are moved to prison. It enables better management of the reception process, and in the main, it is anticipated that prisoners are held in police cells for only one night before being moved into a reception prison. This operation enables the police to mobilise their operations and work more closely with HMPPS.

Turning to the various points made, the Government do not accept the link made in relation to the probation service by the noble Lord, Lord Ponsonby. We are doing our very best to increase resources for the probation service, to recruit more probation officers and to improve the service to the best of our ability. This extra pressure has been rather unexpected. The Government do not accept that no other options exist; otherwise, we would not have triggered Operation Safeguard, the Government’s primary duty being to keep the public safe. The operation will come to an end as soon as possible, but I cannot give a date.

We are pursuing the prison maintenance programme as far as we can. We have gone around in a circle to some extent: the maintenance work, which was increased recently, has left us with fewer cells. Within the operational possibilities, improving maintenance in prisons is a priority.

As far as mental health is concerned, respectfully, I entirely agree that vulnerable offenders, whether suffering with their mental health or otherwise, should not be part of Operation Safeguard. My information is that those prisoners are not being held in police cells and that prisoners are properly assessed before they move to prison cells.

On the other points raised, the question of sentencing is a matter for the courts. It is right to point out that reoffending is falling, albeit slowly. But it is falling, and we seem to be on a good track in that regard. The Government are fully committed to the rehabilitation of prisoners. On earlier occasions in this House, we have discussed the steps taken, including education in prisons; employment advisers in prisons; accommodation for prisoners being released; and equipping prisoners with an ID pack consisting of a bank account, national insurance number and so forth. That rehabilitation programme is contributing to the steady, albeit slow, fall in reoffending. I hope I have dealt with the main points raised.

Lammy Review

Debate between Lord Bellamy and Lord Marks of Henley-on-Thames

Monday 28th November 2022 Lords Chamber

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

My Lords, a key recommendation of the Lammy Review was to set a clear national target to achieve a representative judiciary by 2025. The review identified low recommendation rates for black and ethnic minority candidates as a challenge to judicial diversity, suggesting a skewed appointments system. We are now five years through the eight-year target period. The 2022 statistics, published in July, show slow progress for Asian candidates, but none at all for black and other ethnic minority candidates since 2014. Recommendation rates for black and ethnic minority candidates across the board remained far lower than for white candidates. What do the Government plan to do to address this striking lack of progress in a vital area?

[Lord Bellamy (Con)]

My Lords, much effort is being devoted to this problem through the Judicial Diversity Forum. The judicial diversity and inclusion strategy for 2020 to 2025 aims to increase the pool of candidates and attract the best talent. Actions for 2022 include continued MoJ funding for the pre-application judicial educational—PAJE—programme to support lawyers from underrepresented groups to prepare themselves for the judicial application process. There is also a Judicial Appointments Commission—JAC—outreach programme to encourage and prepare applicants for more senior appointments, and a “becoming a judge” scheme especially for ethnic minority solicitors interested in the judiciary. A joint judicial and MoJ programme is in train to improve diversity among magistrates, with an applicant-tracking system to identify ethnic minority candidates. Other professional bodies are also pursuing complementary strategies. In that connection, I pay particular tribute to the Law Society, whose past president, Stephanie Boyce, and present president, Lubna Shuja, are both from ethnic minorities.