Illegal Migration Bill

Lord Carlile of Berriew Excerpts

Committee stage
Monday 5th June 2023 Lords Chamber

[Baroness Hamwee (LD)]

My Lords, I also have various other amendments in this group. I feel I should speak very slowly in the hope that those who have the other amendments in this group arrive in time to introduce them.

Amendment 30 relates to Clause 5, which is one of the removal provisions. A number of noble and learned Lords, all learned in the sense that one generally understands it—I can see one of them in her place—have put a good deal of work into the other amendments in this group. I do not want to pre-empt what they and my noble friend Lord Paddick will say, so I will leave that support unspoken.

Clause 5(4)(b) places the Secretary of State above the law and above the courts, because the first hurdle to making a protection or a human rights claim is that

“the Secretary of State considers there are exceptional circumstances”

preventing removal to a particular country. This amendment is intended to probe what is meant by “exceptional circumstances”. I hope the Minister can expand on this. We have examples in subsection (5) which are about particular countries and not individuals. I suspect that they may include situations which are the subject of many other amendments in this group, and if so we should spell that out and not make it a matter of discretion. I am questioning the Secretary of State’s discretion, as I understand it—reasoned discretion, one hopes—or consideration that there are exceptional circumstances which prevent removal to a particular country.

It was only when I was preparing for today that I paused on the word “prevent”. Does it really mean preventing removal, which to my mind conjures up pictures of protestors preventing take-off of a plane carrying a particular individual? Or does it mean that removal is inappropriate or risky because of the reception—in the broadest sense—at the other end; or that there are circumstances which mean that removal would be unsafe? If it is about treatment at the other end, I am not sure that “prevent” is the right term.

I very much support the amendments—which we will hear about in a moment— extending the list of countries and parts of countries which are dangerous to return people to.

My amendments are directed at, and opposing, the notion that an individual can be safe in a part of a country if he is not safe in another part of the same country. Not every country is in a tidy unity, but where there are laws, they tend to apply overall. Where there are prejudices in a country, those who may be a threat to an individual will be free to travel between different parts of the country. Those are Amendments 52A to 52D, Amendment 52G and Amendment 53A.

Amendments 52B and 52D challenge the proposition in Clause 6(1) of removal if “in general” there is no serious risk of persecution or that removal will not “in general” contravene obligations under the human rights convention. What is meant by “in general”? I do not understand the term in this context. It is not fair to call it a lazy term, because I appreciate the vast amount of work that goes into drafting any Bill—however much one dislikes it—but it is not a very imaginative way to describe a situation. If you cannot give an example, you should not be trying to use generalised terminology. This seems to be another demonstration of the Government clutching at anything they can to deny obligations to asylum seekers. I beg to move Amendment 30.

[Lord Carlile of Berriew (CB)]

My Lords, I apologise for my slightly late arrival in the first minute of this debate. I rise because I am the signatory of a number of amendments tabled by my noble and learned friend Lord Etherton, and because I have some amendments in my own name: Amendments 33A, 34 and 35.

The aim of all these amendments is to ensure that something happens which I feel should not cause any differences with the Government. I think it may be a matter of interpretation or a matter of adding a few words to the Bill. Principally, it relates to the treatment in third countries of people who fall within the LGBTQ group. Section 80B of the Nationality, Immigration and Asylum Act 2002 provides that a state is a safe third state in relation to a claimant if

“the claimant’s life and liberty are not threatened in that State by reason of their race, religion, nationality, membership of a particular social group or political opinion”.

I focus on the words

“member of a particular social group”.

I am sure the noble and learned Lord, Lord Bellamy, will acknowledge that the definition of a “particular social group” has been to the courts. Indeed, government guidance has been issued which accepts that being a member of the LGBTQ+ community, subject to the facts being established—obviously, there is a consideration of the facts in every case—entitles that person to protection from Section 80B, as I quoted. The purpose of these amendments, therefore, is to ensure that people who are seeking asylum because they are a member of that social group—or another definable social group—do not lose the full protection of the law by reason of the content of Schedule 1 to this Bill, and the provisions of Clause 5 in particular.

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[Lord Bellamy (Con)]

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

[Lord Carlile of Berriew (CB)]

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

Independent Public Advocate

Lord Carlile of Berriew Excerpts

Thursday 2nd March 2023 Lords Chamber

[Lord Carlile of Berriew (CB)]

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

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

[Lord Bellamy (Con)]

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

National Security Bill

Lord Carlile of Berriew Excerpts

Committee stage
Wednesday 18th January 2023 Lords Chamber

[The Parliamentary Under-Secretary of State, Home Office (Lord Murray of Blidworth) (Con)]

My Lords, Clause 77 allows the Secretary of State to make regulations about the publication and sharing of information provided through the foreign influence registration scheme. Amendment 105 clarifies that power at Clause 77(1)(b) and provides for the Secretary of State to make regulations about the onward disclosure of information registered or provided under the foreign influence registration scheme. The amended provision will enable the Secretary of State to provide clarity in respect of what data can be lawfully shared where necessary. I therefore ask the Committee to support this amendment. I beg to move.

[Lord Carlile of Berriew (CB)]

My Lords, we are being asked to approve something that relates to regulations that we have not seen, and we would ask the Government to review the way in which they are approaching the passage of this part of the Bill. We need to see not just draft practice or draft regulations but the regulations themselves.

The way in which this part of the Bill has been generated—and I do not want to repeat a discussion that we had two days ago—means that there is a great deal of uncertainty about what is intended. I hope that the flexibility that was indicated by Ministers on Monday will be extended to how such information is disseminated. I hope that we will get an undertaking that, before Report, and not on the day that Report begins, we will see the regulations and other documents that will indicate the architecture and detail of whatever parts of FIRS are going to be retained.

[Lord Coaker (Lab)]

My Lords, I agree with what the noble Lord, Lord Carlile, has just said, and I shall say a bit about it myself, in a few remarks on the government amendment. As the Minister said, the amendment clarifies the power in Clause 77(1)(b) and deals with the publication and disclosure of information provided by the Secretary of State under Part 3 on registration. Can the Minister say a little about what is not to be published? As the noble Lord, Lord Carlile, has just pointed out to the Committee, all this is to be done by regulations—and, I emphasise, done by regulations under the negative procedure.

Information provided by the Minister about foreign activity arrangements and foreign influence arrangements could, as the DPRRC said, be both politically and commercially sensitive. There will also be practical matters of significant political interest around these matters, given their relationship to national security. What sort of thinking is going on about what may or may not be published? Will those whose information is to be published be told in advance of publication and have any right of appeal? Again, as the noble Lord, Lord Carlile, said, why should Parliament not be able to have a more direct say in what sort of information should be published? That point was made by the DPRRC, which called for these regulations to be made, at the very least, under the affirmative procedure, to give at least some degree of scrutiny for this Parliament. I ask the Minister again to reflect on why negative procedure is being used for these regulations and not, at the very least, affirmative.

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[Lord Murray of Blidworth (Con)]

At the moment I fear I cannot commit to providing draft regulations. It may be that there are some, but it may be that to draft regulations prior to Report would be too time-consuming.

[Lord Carlile of Berriew (CB)]

I am sorry to intervene again, but does the Minister not see that this is illustrating the whole mistake in producing important legislation arising from amendments made in Committee in the House of Commons? If this part of the Bill had been drafted in the normal way, by parliamentary counsel with time to develop it and to consult, it would have been perfectly simple to produce draft regulations in time for Report in the House of Lords, which is nearly at the end of the legislative process. Is this not really just a guilty plea to having had insufficient time to prepare a Bill that came to this House based on an idea which was not even government policy?

[Lord Murray of Blidworth (Con)]

I note the noble Lord’s views on the topic, but we are where we are. Obviously, the department will take away what he says and endeavour to meet his reasonable request.

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[Lord Bellamy (Con)]

My Lords, perhaps I can take this point under advisement, because it is not yet spelled out in the statute and I am reluctant—on the hoof, as it were—to put words into the mouths of judges who would go about it in due course. One can imagine that one would draw inspiration from certain aspects of the existing law, but that is to go further than the statute already provides, so perhaps the Government can consider this point further.

I return to the broad thrust of the Bill and come to the stand part notices. I have tried to explain the importance of the message. Western Union is perhaps a slightly outdated way of conveying a message these days, but there are times when primary legislation is important to clarify the legal position, and this is one of those cases.

Before I pick up the specific points that have been made, in relation to the freezing and the forfeiture, the essential point is that these provisions bite at the moment the freezing order was made. You do not have to go to Horseferry Road Magistrates’ Court or Highbury Corner to get an order. It bites straightaway and is done by the same court that was dealing with the damages in the first place. It is more efficient to deal with the same court. Although there are other powers, as noble Lords rightly point out, in the Government’s view this is the right mechanism.

To come to the point made by the noble Lord, Lord Coaker, about why we do not just take the whole lot straight off, these exceptions for care costs and so forth, this is intended to be a measured structure. You start by simply freezing for the first two years, then you have another go at it after a second two years, then, finally, if after four years there is still “a real risk”—I will come to real risk in a moment—that is the moment when the forfeiture power kicks in. It is to give people time to persuade the court that there is no risk, as it were. That is thought to be a measured and proportionate approach to this problem.

The Bill provides that the freezing and forfeiture apply only in part to the damages if the court so orders, so that if, for example, medical expenses or care costs have to be met out of the damages, the court can provide for that. It does not have to take away the whole lot all at once. It can have regard to the needs of the claimant in that context.

That is the essential structure. It is to remove the risk of the money simply being spirited away at the press of a button, down a hole to an offshore haven before the courts can move to make sure that the money remains safe. Again, that is a power of the court, not of the Government or the security services. Therefore, in our view it does not lead to an undermining of the principle of access to justice or any other relevant right. To take another important point raised by your Lordships, it certainly does not take away the human rights damages. There are no circumstances in which it affects human rights damages in any event; that is a sort of entrenched position under the Human Rights Act. But that does not prevent a court taking into account circumstances in relation to other claims where the court considers that a reduction would be justified. Even in relation to human rights cases—I am sure plenty of people here will immediately put me right if I am wrong—the European Court of Human Rights reduces damages in certain circumstances when it does not think that the claimant is fully deserving of a particularly large award because of the conduct of the claimant in question.

That is the general outline and why we say that the whole structure is balanced but proportionate. It extends to involvement in terrorist-related offences. It is not limited to terrorist convictions because of the quite obvious difficulty, particularly in terms of parties that are abroad, in managing to apprehend them, bring them to this country, prosecute them and secure a conviction. Cases have been brought by persons abroad known by the security services to have been involved in terrorist activities but not subject to a conviction in this country. That is why we have to make this a little wider than people who have been convicted of terrorist offences.

For the reasons I gave in relation to the message, the provisions are not limited to circumstances in which one should confiscate the damages because of the risk of them being used in terrorist activities. One should reduce the damages because of the conduct of the claimant, which is a normal, civil law situation. I do not mean civil law in the sense of continental civil law, but it is the normal situation in the common law.

[Lord Carlile of Berriew (CB)]

I must admit that I was more favourably disposed towards some of these provisions, but the Minister has convinced me that I was wrong. He has told us that these provisions are unnecessary. They are in effect a very long text message, which apparently the public are going to consider over their breakfast tables, reminding judges of what the existing law is. Is he comfortable with using this House and this legislation for that purpose?

[Lord Bellamy (Con)]

My Lords, I feel that this is the first time that I have ever convinced the noble Lord, Lord Carlile, that he is wrong. The answer to the question is yes, the Government are entirely comfortable with the need to make explicit what to a large extent is implicit but rather undefined and diffuse in our legal system. This measure gives us a clear code in terrorism cases to provide a framework for the judge to consider what he should do about damages. I accept that the question of guidance for the judges is an open point, but let us reflect on that. The purpose is to provide a clear framework in terrorism cases.

Prison Capacity

Lord Carlile of Berriew Excerpts

Tuesday 6th December 2022 Lords Chamber

[Lord Carlile of Berriew (CB)]

My Lords, can the Minister point to any empirical evidence or analysis that demonstrates that the doubling of the prison population in the last 40 years has made this country more law-abiding and less violent? Is he able to commit the Government to a new prison policy that is based on merit and not headlines?

[Lord Bellamy (Con)]

My Lords, I am not in a position to comment on the last 40 years, but, respectfully, I would not make any link between the Government’s policy on prisons and the other matters to which the noble Lord referred. On the second part of his question, as I said just now, sentencing policy is a matter for the courts and not the Government.

Parole Board (Amendment) Rules 2022

Lord Carlile of Berriew Excerpts

Tuesday 18th October 2022 Lords Chamber

[Lord Garnier (Con)]

I apologise for intervening. I forgot to refer to my interests in the register. I am a trustee of the Prison Reform Trust and am connected to a number of other prison welfare bodies.

[Lord Carlile of Berriew (CB)]

My Lords, I speak in support of my noble friend’s regret Motion, which she moved with such clarity. She speaks with great experience and authority, as she told us at the beginning of her speech.

These regulations, already in force, feel like an attack on the Parole Board. I have been knocking around the legal system for decades, and I know many people who have been, and some who are, judicial members of the Parole Board. I think I reflect their feeling of the Parole Board being under attack from the Government, so I want to start by praising the Parole Board: for its fastidious care over the evidence in cases for which it is responsible; for its determined and proper independence, which is key; and, indeed, for its accepting the increased judicialisation that has made its processes more transparent and public. The Parole Board has moved with the times, and it perfectly understands its responsibilities.

Like others, I want to focus on paragraph (22), which provides that:

“Where considered appropriate, the Secretary of State will present a single view on the prisoner’s suitability for release.”


Even by statutory instrument standards, those are words of breathtaking vagueness. I suggest that this provision is a very unwise and unwelcome change for the following reasons. First, it is nothing less than an unwarranted interference by Ministers with what is clearly, now at least, a judicial process. Nobody can deny that the Parole Board is a judicial process; the issue goes, therefore, to the heart of the separation of powers. The previous Lord Chancellor knew perfectly well that he was attacking the separation of powers. I have, sneakingly, more confidence in his successor, who in my view has operated with some skill in bringing to an end quickly the justified strike by criminal barristers.

As I said a moment ago, the provision is vague. What are the terms of reference that would make it appropriate for a ministerial single view to be given? What does a “single view” mean in this context? Who is actually going to make these decisions? Who is going to prepare the papers to be put in the Minister’s red box? This is such an unclear procedure as to be wholly unacceptable.

Why on earth are report writers such as psychologists, an example already given, those with real knowledge of the prisoner concerned and, by definition, experts themselves to be banned from expressing a written opinion, which, of course, is not more than that—an opinion, not a decision, on the outcome of the case? This seems to me to presage a political reaction to media stories in an attempt to influence the Parole Board. That can have no legitimacy.

Furthermore, these ministerial decisions or recommendations are apparently not binding. What do they really mean? Well, they obviously mean that the Minister does not trust the tribunal, or at least he does not trust the media’s reaction to a decision that may be made by the Parole Board as a tribunal. But it certainly puts unacceptable pressure on the Parole Board.

With those comments in mind, please will the Minister tell us whether the Parole Board was consulted and, if so, whether the Parole Board welcomed these proposals and in what terms? Indeed, I think that we are entitled to know who else was consulted. What did they say? Did anyone support these proposals? If so, who were they and what reasons did they give?

Also, please will the Minister tell us how many cases this is expected to apply to? Is he, as a very experienced and eminent lawyer, comfortable with these changes? Do they accord with the ethical principles that separate Ministers from the courts and tribunals? He should be clear, when he answers, that most responsible commentators and respected NGOs see this as a slippery-slope provision to be deprecated.

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[Lord Bellamy (Con)]

My understanding is that they are not to make recommendations. They can make their risk assessments and say whether there is a valid release plan; they can do all of those things. They can say this man or woman poses no risk to the public, or does pose a risk, or whatever it is, but they cannot express an opinion on the very question that the Parole Board is required to answer: whether the prisoner should be released. This is essentially a change that brings the decision on release back to where it belongs: the Parole Board, not the expert.

[Lord Carlile of Berriew (CB)]

Is not the noble and learned Lord confusing two quite different things? The expert does not give an opinion on whether the person should be released, as the noble and learned Lord suggested has been the case; the expert gives his opinion on whether it is safe for the person to be released. That is quite different. Can the noble and learned Lord, with all of his expertise, think of another form of expert evidence in which the expert is not permitted to give his opinion on the key matter under consideration?

[Lord Bellamy (Con)]

My Lords, I respectfully submit that we are dealing with angels dancing on pins here. What is intended by this change is to make it clear that the responsibility for the decision rests squarely with the Parole Board, and to avoid the risk, however remote, that the expert report tends to usurp the role of the decision-maker, running the risk of them delegating their decision to the expert. This amendment brings the Parole Board process in line with the rest of the justice system. I respectfully refer your Lordships to the evidence of Professor Stephen Shute to the Science and Technology Committee of the other place on 7 September. He made this very point, saying that it is for the Parole Board to make the decision, rather than run the risk of the matter being left in the hands of the expert.

Analogy has been rightly drawn with what happens elsewhere in the justice system; for example, in relation to pre-sentence reports in the criminal process. One does not find the probation officer saying that the court should impose a community sentence. One asks the probation officer to assess whether the offender is suitable for a community sentence. This change will align the practice of the Parole Board more closely with the rest of the justice system.

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[Lord Bellamy (Con)]

My Lords, with respect, I have always understood it to be the case—I hope I have not got this wrong—that an expert should not normally give his opinion on the very issue on which the court is required to decide. The scope of the expert’s opinion is to provide the court with the factual details. It is the duty of the expert not to say whether X or Y is guilty or not guilty but to provide the court with the facts on which that decision is taken. At least, that is common practice.

[Lord Carlile of Berriew (CB)]

In the jurisdiction in which the Minister is so expert, namely competition law—as he knows, I have sat with him in the Competition Appeal Tribunal—economists and other experts giving evidence before the Competition Appeal Tribunal do give an opinion as to whether the practice under consideration is competitive or anti-competitive.

I pull the Minister back to a previous point. Time and again, those of us who have been in criminal courts for a long time have heard judges say to a probation officer, for example, “If I pass a non-custodial sentence, do you think he would comply with orders A, B and C?”. That is an opinion on exactly the issue under consideration. I am completely befuddled by that part of the argument and so, I think, are many noble friends and colleagues.

[Lord Bellamy (Con)]

Perhaps I ought to try to bring this somewhat tetchy debate to a close. The Parole Board is required to decide that it should direct release if it is satisfied that the detention is no longer necessary for the protection of the public. The provision we are discussing makes it clear that the expert should not pronounce on the prisoner’s suitability for release. In other words, the expert should not pronounce on the principal matter on which the Parole Board is being asked to decide. Subject to that, all the other material that was there before will continue to be there.

Human Rights Act 1998

Lord Carlile of Berriew Excerpts

Thursday 14th July 2022 Lords Chamber

[Lord Carlile of Berriew (CB)]

My Lords, it is a great pleasure to follow the noble Baroness. I agree with what she said and defer to her experience in dealing with matters under the Human Rights Act. The background to this debate is in six stark words in paragraph 2 of Schedule 5 to the Bill of Rights Bill:

“The Human Rights Act … is repealed.”


The noble Baroness, Lady Whitaker, opened this debate in that context, with great self-control and temperance. I thank her for keeping the subject so cool, when it could be extremely emotive. If that Bill is ever debated in this House, the Government will face a serious fight, because it is not a manifesto Bill in the form in which it has been presented to Parliament.

The noble Lord, Lord Sandhurst, is an admired legal colleague, and I hope he takes what I am about to say in good part. In my study at home, I have approximately 100 years of Criminal Appeal Reports. Let me take the first Birmingham Six appeal as an example: I could take pages from those reports and say to your Lordships, “These decisions were just wrong”, but I do not present that as an argument for abolishing the jurisdiction of the Court of Appeal Criminal Division. Courts are not perfect places and, as has just been illustrated by the noble Baroness, Lady Chakrabarti, there will be subjects on which we disagree, but they are not an argument to abolish a jurisdiction.

The quantity of cases that have come before the European Court of Human Rights in recent years is deeply connected with this argument, as Suella Braverman happens to have said this morning—I may return to that in a moment. There have been only five cases before the European Court of Human Rights against the United Kingdom since October 2017. I doubt if any Member of this House or member of the Conservative Party could present a respectable argument for disagreeing with the decision reached in those cases.

So I look forward with interest to hearing the speech of the noble and learned Lord, Lord Bellamy, in due course. I had the privilege of serving as one of his part-time chairs when he was president of the Competition Appeal Tribunal. Brilliantly knowledgeable, he was a very good teacher, and, heavens, did I need it in that jurisdiction. The House will often benefit from his great intellectual skills and persuasive voice, and I hope he will use that persuasive voice in his customarily logical way to try to persuade the Government that they are wrong about this issue. We will not blame him if he fails; we will blame him only if he does not try.

The absurdity of Her Majesty’s Government’s position was illustrated this morning by Suella Braverman who is, of course, the current Attorney-General—she is not a random Back-Bencher standing for the leadership of the Conservative Party—who said that one of the reasons why we should abolish the Human Rights Act and take no part in the decisions of the European Court of Human Rights is because that is the way we would prevent refugees crossing the English Channel. I have been struggling with that one all morning. It has absolutely no intellectual or—can I put it this way?—even political credibility. I hope at least that we will hear the Government saying that tropes of that kind will not be used in argument against the Human Rights Acts.

We will have full debates on this issue, I fear, if the new Prime Minister, whoever they are, decides to proceed with this Bill or something like it. I simply ask them to bear in mind some words of James Madison, the founding father of the American constitution, who wrote:

“Liberty may be endangered by the abuses of liberty, as well as the abuses of power”.


That proportionality test is well worth some deliberation before presenting legislation as intended at the moment to this House at least.

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[Lord Bellamy (Con)]

Not as far as I am aware, is the direct answer to the noble Lord’s question. The original Bill of Rights was not subject to pre-legislative scrutiny as far as I know. However, I would myself like to use the extra time we now have in a process of outreach to your Lordships’ House and to other interested organisations—I saw Sir Peter Gross yesterday; I have plans to visit each of the devolved legislatures shortly—to explore and understand all these points and see how far we can narrow the differences between us. I respectfully suggest that there are issues that we need to grapple with here and we need to grapple with them sensibly. This Bill clearly arouses very strong feelings and quite a lot of anxieties, but I hope that we can resolve a lot of them and quite a lot of other problems in the course of sensible and reasoned debate.

At one end of the spectrum, there seems to be an almost entrenched view that the 1998 Act is more than perfect and that the slightest change will bring the whole edifice crashing down, or at least give rise to unacceptable risks. At the other end of the spectrum, which has been mentioned several times, there is the point of view that we should withdraw from the convention altogether. The latter is not the Government’s position, and whatever may be said by someone in their capacity as candidate for the leadership of a political party is not relevant for today’s purposes. The position of the Government is quite clear: to stay in the convention and to reconfirm the rights that flow therefrom that are clearly set out in the Bill. From the Government’s point of view—

[Lord Carlile of Berriew (CB)]

Would the noble and learned Lord be kind enough to help Members of your Lordships’ House, Members of another place and, above all, the public by informing the remaining candidates for leadership of the Conservative Party of what he has just said so that they get it right during the TV debates that will start tomorrow?

[Lord Bellamy (Con)]

With respect, I do not think that I have any channel of communication with the candidates for the leadership of the Conservative Party, but what I have just said is on the record and may be referred to. That is the Government’s position.

As your Lordships have observed, I personally find myself—as do the Government—with cannons to the left and cannons to the right. So in the valley of calm reasoned debate in this House, I would like to explore with your Lordships the centre ground to which this Bill is directed. In my repeat of the Oral Statement on the Bill on 23 June, I used the phrase “constructive balance”: balance between the roles of the legislature and the judiciary; balance between the domestic courts and the Supreme Court, on the one hand, and the Strasbourg judges, on the other, having regard to subsidiarity and the margin of appreciation; and balance between rights and responsibilities. To that theme of balance, I add three related themes: constitutional clarity, the separation of powers and reinforcing the fundamentals that underpin human rights.

I will address constitutional clarity first. After 25 years of the Act in operation, it is important, in the Government’s view, to restate certain basic principles. These include the following: that the convention rights are an integral part of the domestic law of the United Kingdom; that the ultimate judicial authority in interpreting those rights is the Supreme Court, taking into account our domestic legal traditions in particular; and that the possibility of divergence from Strasbourg is recognised—that is not in dispute; it has always been there, as has been pointed out already. Those basic principles are effectively recognised in Clauses 2 and 3 of the Bill, which are declaratory of the existing position.

It is important that the convention retains a very special and unique constitutional status: no other Act of Parliament provides a machinery where another Act of Parliament, even a subsequent Act of Parliament, can be subject to a declaration of incompatibility under Clause 10. However, when that arises, it is the Government’s view that the separation of powers must prevail. At the moment, under Section 3, we have this curious provision whereby the courts can read down the Act to have a different meaning to that which Parliament intended. The Government wish to clear up that constitutional muddle, if I may put it that way, and put the responsibility for bringing the legislation in question into line with the convention back where it belongs—that is to say, the legislature that first enacted the legislation in question.

Police, Crime, Sentencing and Courts Bill

Lord Carlile of Berriew Excerpts

Lords Hansard - Part 1 & Report stage
Wednesday 8th December 2021 Lords Chamber

[Baroness Hamwee (LD)]

My Lords, we have more and more life sentences and less and less judicial discretion. The point made by the noble Baroness, Lady Fox, that deterrence is not a factor in this really should not be glossed over; it is very important.

[Lord Carlile of Berriew (CB)]

My Lords, I am puzzled by the mechanism that the Government are trying to use to increase sentences, which, in some cases, should rightly be higher, in relation to the deaths of emergency workers. After a long period of development, we created a completely new mechanism: the Sentencing Council. Judges must have regard to sentencing guidelines in every case, and those guidelines are complex. They give examples of levels at which sentences should start in certain circumstances.

I see a number of noble Lords around this Chamber who have either acted as police officers or have prosecuted and defended manslaughter cases. In my case, I have done, on one side or the other, a number of one-punch manslaughter cases, in which there was a conviction, and perhaps a sentence of three or four years’ imprisonment. One can imagine circumstances in which that could have arisen where the person who died was an off-duty emergency worker trying to help someone, and the perpetrator of the offence had no idea that that person was an emergency worker.

Surely the better mechanism is to use the flexible, living instrument of the Sentencing Council, and the sentencing guidelines, and not to inhibit the discretion of judges. The Sentencing Council and the judges will, of course, respond to the pressure that rightly arises from the awful case that has given rise to this discussion and this amendment. With great respect to the Minister, relying on “exceptional circumstances”, a description that is always determined in a restrictive way—rightly so—by the Court of Appeal, seems to be the wrong mechanism to achieve the right result.

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

My Lords, on these Benches we share the shock and revulsion at the death of PC Harper and the way that it came about. We support the principle that a life sentence should be available, and even possibly the norm in serious cases, for the manslaughter of an emergency worker. But where we part company with the Government is in sharing the concerns of the noble Viscount, Lord Hailsham, and everybody else who has spoken. We are unhappy with the proposal that such a sentence should be mandatory unless a judge can find “exceptional circumstances”.

The word “exceptional” has been seen in the past as requiring circumstances that are quite out of the ordinary. Frankly, I took issue with the Minister when he treated the word as allowing more latitude than the usual interpretation of “exceptional” would permit. The MoJ press release uses the phrase “truly exceptional” to describe what is required. In that connection, the noble Baroness, Lady Fox, rightly made the point about legislation by press release—a point echoed by the noble Lord, Lord Carlile, when he talked about the knee-jerk nature of this type of legislation in particular cases.

We would have far preferred the amendment to permit judges the discretion to depart from the life sentence where the circumstances and the interests of justice required. The Government’s determination to prevent judges exercising discretion, as seen throughout this Bill, is frankly depressing. This is despite Victoria Atkins MP saying in the other place only yesterday, in answer to a question from my right honourable friend Alistair Carmichael MP, that:

“Fundamentally, the judiciary and magistrates should be trusted in their sentencing decisions.”—[Official Report, Commons, 7/12/21; col. 206.]


Frankly, we agree. I made these arguments in Committee in connection with my amendments to the minimum fixed sentence provisions in Clause 101—now Clause 102 —and I will make them again when we come to debate my amendments later on Report.

The Explanatory Note to these provisions asserts that they require a court to impose a life sentence on an offender who is convicted of unlawful and dangerous act manslaughter against an emergency worker. That is misleading. There is no requirement in the proposals that the manslaughter be dangerous, in the sense that there was danger to the life of the victim, as there so obviously was in the Harper case. The requirement for danger in the case of unlawful act manslaughter, on the cases and in the CPS guidelines to prosecutors who apply those cases, it is very limited indeed. It is necessary only that the unlawful act exposed someone—not even necessarily the victim who died—to the risk of “some harm”.

I take a hypothetical case, similar to that mentioned by the noble Viscount, of a bad-tempered 17 year-old suspected by a shopkeeper of shoplifting. The shopkeeper accosts him. A row ensues, which turns into a fight—not serious, but serious enough to draw a passing police officer to come into the shop to intervene. The officer tries to arrest the youth. The youth resists arrest. He throws a punch at the officer—not hard, but plainly an assault on a police officer in the execution of his duty and enough to be obvious to everyone that it could cause some harm. The officer falls backwards and sustains an injury that turns out to be fatal.

All the elements of unlawful manslaughter are there. The guideline sentence would probably be two to four years. The required sentence under these proposals would be life imprisonment. Are these circumstances “exceptional,” as that word is known to the law? No. is the sentence just for that 17 year-old, whose very bad behaviour had such tragic consequences? I would suggest clearly not, when one considers the overall criminality of the offence and the offender. Of course, the death of the victim would significantly aggravate the sentence. That is true for all manslaughter cases. And of course, the fact that the victim was a police officer acting in the course of his duty would be another seriously aggravating factor. But should those circumstances lead to detention for life for a 17 year-old?

The manslaughter excluded from the operation of these provisions is, as the Minister helpfully explained, manslaughter by gross negligence—a very sensible exclusion—or manslaughter mentioned in certain sections of the Homicide Act or the Coroners and Justice Act, which cover diminished responsibility by reason of a recognised mental condition, suicide pacts and loss of control, reducing murder to manslaughter if the specified conditions are met. But that leaves the whole area of unlawful act manslaughter within the provisions, and any such manslaughter of an emergency worker would attract the mandatory life sentence.

The current sentencing guidelines mentioned by the noble Lord, Lord Carlile of Berriew, which came into force as recently as 1 November 2018, suggest a range of sentences for manslaughter of between one and 24 years. They divide culpability into four ranges, from A at the top to D at the low end. The factors indicating lower culpability are as follows:

“Death was caused in the course of an unlawful act … which was in defence of self or other(s) (where not amounting to a defence) OR … where there was no intention by the offender to cause any harm and no obvious risk of anything more than minor harm OR … in which the offender played a minor role,”


or where the

“offender’s responsibility was substantially reduced by mental disorder, learning disability or lack of maturity.”

Those factors, or some of them, could quite easily be present in many cases of manslaughter of an emergency worker. So these sentences might—perhaps even often—cause serious injustice.

A further point was alluded to by the noble Lord, Lord Pannick. When a life sentence is passed, the release date is ultimately in the hands not of the courts but of the Home Secretary. Any Home Secretary, not just this one, is subject to political pressures. Were a victim, for example, the holder of a Queen’s Police Medal, and there was a campaign to keep the offender in custody on that account, how easy would it be for this or a future Home Secretary to succumb to pressure to keep the offender subject to a life sentence in custody, for far longer than would be just?

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[Lord Carlile of Berriew (CB)]

I am grateful to the Minister for giving way. One point he has not dealt with, as I understand it, is why the Sentencing Council and sentencing guidelines are not seen as an adequate and flexible mechanism for dealing with cases of this kind. We need a reasoned explanation for the rejection of that proposition.

[Lord Wolfson of Tredegar (Con)]

The reasoned explanation is that the Government believe that this is an offence which should be marked by a life sentence—a mandatory life sentence. The amount of time the person serves can be set by the judge in a tariff.

[Lord Carlile of Berriew (CB)]

The Minister has just given the game away by his slip of the tongue. He said it is a case which should be marked by “a life sentence”, and then he said, “a mandatory life sentence”. He was right before he made the slip of the tongue. That is exactly what judges can do and exactly what the Sentencing Council can deal with. I am afraid that I do not accept that his explanation so far has been reasoned.

[Lord Wolfson of Tredegar (Con)]

We are now having precisely the opposite debate to the one we had in Committee. In Committee, when someone said to me—I think it was the noble Baroness, Lady Jones—“this is a mandatory sentence” and I said, “but there are exceptions”, it was said to me, “no, it is mandatory”. Now, when I am trying to point out that it is not mandatory, in the sense that it is a mandatory life sentence but it does not mean you serve life in prison, that is said to be a slip of the tongue. I absolutely meant what I said: this provision sets out a mandatory life sentence, because the Government believe that is the right way to mark society’s horror at the killing of emergency workers, in the same way that we do for murder.

However, with murder, and in this case, the trial judge will have the ability to set an appropriate tariff. Also, unlike with murder, the trial judge can, in exceptional circumstances, depart from the sentence entirely, something which society and Parliament does not enable a trial judge to do in any murder case. With great respect to the noble Lord—

[Lord Carlile of Berriew]

I am sorry to interrupt again, but the Minister has said something completely untenable. He said that under “exceptional circumstances”, the judge has the power to depart from the sentence entirely. That is absolutely not the case. If the sentencing guidelines in front of any judge sitting in a criminal court lead to the conclusion that the starting point for the sentencing process is a life sentence, but there are circumstances at which different levels can be set, they will operate on that basis. This provision is unnecessary if we trust the judges. The Government are telling us, on the basis of belief, as the Minister said—which I do not necessarily regard as reasoned—that they do not trust judges to pass appropriate sentences in these cases, on the basis of one or two instances, when there is a perfectly good living instrument for dealing with this.

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[Lord Wolfson of Tredegar]

I am very happy to be accused of all sorts of things, but I hope that nobody in this House believes that I act either towards it or towards any of its Members with discourtesy. We may have disagreements, but they are always, I hope, courteous. I am not in the least embarrassed about going back to the Ministry of Justice with or without anything. My task, as I see it, is to set out the Government’s position in this House and then the House has to take a view.

With great respect to the noble and learned Lord, I do not accept that this is a question of tweaking the provision or making it better. The points that have been put to me are really points of principle—people do not agree with this at all, while saying, “Of course we agree.” The matter ought to be presented to the House and dealt with by it today.

[Lord Carlile of Berriew (CB)]

Following on from the remarks of the noble and learned Lord, Lord Falconer, can the Government agree to the House being adjourned for half an hour or so, so that there can be a discussion between the usual channels and between the groups in the House as to how this should continue? We would be very grateful and it would be seen as a matter of utmost but necessary courtesy.

[Baroness Jones of Moulsecoomb (GP)]

I have an alternative suggestion; perhaps the clerk can tell us whether it is legal. Is there anything to stop any of us calling for a vote once—

Police, Crime, Sentencing and Courts Bill

Lord Carlile of Berriew Excerpts

Lords Hansard - part one & Committee stage
Wednesday 17th November 2021 Lords Chamber

[Baroness Jones of Moulsecoomb (GP)]

My Lords, I rise to speak in place of my noble friend Lady Bennett, who has tabled Amendment 221. As the noble Baroness, Lady Chakrabarti, said, it is perhaps a softer option that your Lordships might find acceptable.

I strongly support the amendment in the name of the noble Lord, Lord Dholakia, and the noble and learned Baroness, Lady Butler-Sloss. The only qualm I have about Amendment 220 is that it sets the age at 12 and not 14. Quite honestly, we treat our children in the criminal justice system absolutely abysmally, with demonstrably disastrous results and a recidivism rate of 40% within a year. This demonstrates that the courts are not working to address the issue of these children. As we have already heard, the Children’s Commissioner has described the youth justice system as “chaotic and dysfunctional”, and the children caught up in it are disproportionately from ethnic minority communities.

We are world leading in the awful way in which we treat children. At 10, we have the lowest age in Europe—far below the suggestion from the UN Committee on the Rights of the Child of a minimum appropriate age of 14. That is the average across European countries, but even China and Russia—where the UK rightly often has cause to point out human rights abuses—have higher ages of criminal responsibility than we do. And we do not have far to look—we can go to Scotland to see exactly what happens there. There the age is 12, and I would prefer it to be 14.

This is not a moral question but a scientific one. Children’s brains do not develop as quickly as people might think. Children below the age of 14 are still developing the capacity for abstract reasoning. Their frontal cortex is still developing; therefore, they are unlikely to understand the impact of their actions. I think there is some political will in Westminster to take this evidence on board and, to use a phrase so loved by the Government, “level up” our youth justice legislation. In 2020, the Justice Committee recommended that the Ministry of Justice review the minimum age of criminal responsibility. Unfortunately, the Government seem to have chosen once again to renew their ideological commitment to being tough on law and on youth crime, even when it is committed by children. This is not an acceptable status quo either on human rights or on scientific grounds. Children are being failed by antiquated government standards. This is an outrage, and reform is needed.

If the Government cannot accept Amendment 220—which they absolutely should—Amendment 221, in the name of my noble friend Lady Bennett, might be a soft option. Both she and I hate putting softer options to the Government, but, in this case, it might work. It would ensure a legally binding commitment on the UK Government to at least consider whether our abnormally low age of criminal responsibility is tenable, given international norms and expert opinion. My noble friend Lady Bennett would, of course, be happy to discuss a revised text for Report. Personally, I would tough it out and potentially vote for Amendment 220 and for our Amendment 221.

[Lord Carlile of Berriew (CB)]

My Lords, I apologise to the noble Baroness who has just spoken. It is a pleasure, on this occasion at least, to follow her. I do not necessarily agree with some of the language she used. I do not feel a sense of outrage about this issue. I feel shame and sadness and I agree strongly with the speech of my noble and learned friend Lady Butler-Sloss, and other noble Lords who have spoken on this issue.

The noble Baroness, Lady Jones, used the term “outlier”. That is what I had scribbled down on the piece of paper in front of me. We are the outliers on this. As the noble Baroness said, in Russia the age of criminal responsibility is much higher. Indeed, the general age of criminal responsibility there is 16, with 14 for exceptionally serious offences. I have visited a number of countries in central and eastern Europe and looked at the way in which young children who have committed serious offences are dealt with, and I do not notice a higher level of disorder in a single one of these countries. I do not know any country with a higher age of criminal responsibility in which children roam the streets committing crime to a greater extent than—very occasionally, fortunately—happens here, and I can see absolutely no empirical reason for turning down this amendment.

I have also observed how children behave when they are sent to Crown Courts. I am happy to note that far fewer children are being dealt with in Crown Courts than used to be the case and that the Crown Prosecution Service is being much more sensitive than it used to be at one time as regards the joinder of children with adults in Crown Court trials. The CPS has recognised that, wherever it is possible, children should be dealt with in the youth court. That has led to a reduction in the number of Crown Court trials.

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[Lord Falconer of Thoroton (Lab)]

My Lords, that was my fault. I was not for one moment suggesting that the noble and learned Baroness, Lady Butler-Sloss, was saying that the Bulger case did not require enormously sensitive handling, nor that she was in any way underestimating the seriousness of it. I was seeking to say that the fact that there were tabloid campaigns about it and that people were very concerned about it was absolutely legitimate. What they were asking for was not necessarily legitimate, but there was very real concern. Obviously, there must be anonymity, but if the matter is dealt with entirely in the care system, without any public element of how the law is dealing with it, then the community never gets satisfaction in relation to what is happening. By satisfaction, I mean that there must be some recognition within the justice system of the appalling nature of what has happened.

[Lord Carlile of Berriew (CB)]

Surely the noble and learned Lord is not saying that the public aspect of this, which he describes rightly, must be dealt with by a criminal trial. Numerous other mechanisms can be used. An inquiry, for example, can ventilate all the public factors that need to be discussed without the artifices of a criminal trial for 10 year-olds.

[Lord Falconer of Thoroton (Lab)]

I agree that it does not need to be dealt with in a criminal trial, but there needs to be some process. Before one increases the age of criminal responsibility from 10 to 12, which we should do, this must be looked at. This is why I rather favour the second amendment, tabled by the noble Baroness, Lady Chakrabarti, which is a review of this, because broadly the case is made in relation to it. It probably should not be something ad hoc, as is the nature of an inquiry, but it should have some recognition that cases such as the Bulger case, which have a significant effect on not only the local but the national community, must be dealt with in a special way.

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Rather than reinvent the wheel, the Government should give local authorities the opportunity to tender for these secure establishments. I must say that this sounds like dogma—the dogma which says that “academy” can mean only something which is not local authority. For goodness’ sake, the important thing here is the service that is to be provided and not the name it is called. The definition of “academy” in this manner may suit the Government but it does not suit the interests of children, who need the best services so that they can get the best form of education in a secure environment and come out of that with an opportunity for their lives in front of them.

[Lord Carlile of Berriew (CB)]

My Lords, it is a pleasure to follow the noble Lord, Lord German. I know that he has an immense amount of experience in matters around education, from both his personal experience of teaching in earlier decades and his work in the Welsh Assembly Government. I probably support his amendment, but I am much less interested in the amendments here than in achieving a shared purpose, which is that children who are in custody have the chance of a quality education which will enable them to go on to higher education, where appropriate, good apprenticeships and other forms of training which will give them a decent chance in life—most of them not having had a chance in life. I am afraid it is a truism, at least in my experience of visiting many institutions holding children, that for many of them, that institution is the most comfortable and secure place, emotionally, that they have ever lived. That is a sad commentary on their situation.

I carried out some voluntary work for the Howard League some years ago, and it involved visiting Oakhill, Rainsbrook and, indeed, Feltham—a place which has been through good and bad patches over the years but, from what I hear from people who work there, is at the moment pretty challenging and not providing children with a particularly good education.

The ambition that we surely all share is that there should be a consistent level of good education throughout those institutions. I will give an illustration of why. When I was doing the voluntary work for the Howard League, of which the current president is another Member of your Lordships’ House, the noble Lord, Lord Macdonald of River Glaven—I am very happy to see him in that role—I went to one of the institutions that I have named. I was taken around and a boy of about 16 asked me to go into his room, as he called it. I went into his room and all over the wall there were maths certificates, including a grade A GCSE maths certificate. I said something really silly like, “You must be very good at maths.” He said, “I love it, sir. I want to be a maths teacher when I leave this place.” I do not know what happened to him, but he certainly had the ability to be a maths teacher. The reason he got that maths GCSE was because there was one really inspired teacher in that institution who spotted his talent at maths and had taken it to that level. I said to this boy, “Did you like maths when you were at school before you came here?” He replied, and I will never forget these words: “I never went to school, sir.” The capacity of education in these institutions and the opportunity it provides are enormous, but it has to be consistent.

Charlie Taylor, who has been referred to in this debate, did some very valuable work. I was very fortunate in that I was a consultee for him from time to time. He absolutely shares the views I expressed in the last few minutes. I ask the Government to accept that the ambitions I have expressed are shared by the Government too and that, whatever we call these institutions, whoever runs them—I do not really care, to be frank, as long as they reach the requisite standard—will try to reach standards that have been reached in the past. Noble Lords will remember Peper Harow, which was a very fine institution run in the voluntary sector by a number of trustees who would have been familiar in some way or another to Members of your Lordships’ House. It came to a slightly abrupt end because there was an accident there, but people who left Peper Harow, having had their education, commonly went straight to university and achieved university degrees, or did other training that gave them a good life after custody.

I say to the Minister: please can we have an assurance that we are not getting bogged down in process and the name we give to these educational institutions, and that we are actually trying to achieve a gold standard of quality with young people who are bored of being in an institution and for whom education is a really welcome change if it is good enough?

[Baroness Chakrabarti (Lab)]

My Lords, I am sorry, I was looking around the Chamber to see who was poised and trying to be too polite. It is an absolute pleasure to follow the noble Lord, Lord Carlile of Berriew, who many members of the Committee will associate with his legal expertise, but it is to be remembered that he has a considerable track record, to say the least, in matters of penal reform.

It is also a pleasure to have my name associated with this amendment in the names of the noble Lords, Lord German and Lord Marks of Henley-on-Thames. It seems totally anomalous that local authorities should be excluded from giving this provision, for all the compelling reasons given by the noble Lord, Lord German, about the expertise that they have accumulated in relation to education, children, care and so on. It can be only an ideological justification—I must not be too smug about ideology because I have a little of my own. Although there are always political debates about the role of the state in relation to all sorts of goods and services, most people, across politics and across the Committee, have some sort of notion of the irreducible core of the state. Personally, I think that, as with policing and the Army, incarceration ought in general to be a primary responsibility of the state itself, for obvious reasons to do with the vulnerability of those incarcerated and the responsibility, including democratic responsibility, of politicians, whether at local or national level, in relation to powers of coercion and the incredible vulnerability of people who, of course, cannot even vote.

Police, Crime, Sentencing and Courts Bill

Lord Carlile of Berriew Excerpts

Lords Hansard - part two & Committee stage
Wednesday 10th November 2021 Lords Chamber

[Lord Paddick (LD)]

Forgive me for the delay, my Lords—so many amendments, so little time, as it were.

I am grateful to Transform Justice for its briefing on this issue and for its assistance in drafting this amendment. Currently, simple cautions with no conditions attached are considered “spent” within the meaning of the Rehabilitation of Offenders Act 1974 as soon as they have been given. This means that they do not have to be disclosed to potential employers. The Government propose to abolish simple cautions, so those who would previously have received a simple caution, which do not have to be disclosed, could potentially receive a diversionary caution, which, like conditional cautions currently, have to be disclosed for three months after the caution is given. Given the Government’s commitment to reform rehabilitation periods elsewhere in the Bill, we suggest that the rehabilitation period for diversionary cautions should be removed. In Part 11, Clause 164 already sets out various changes to the rehabilitation periods for different sentences. Removing the diversionary caution rehabilitation period should be added to the list of those changes.

The Government argue that a three-month spending period is required for a diversionary caution to support protection of the public. There is strong evidence that employment is one of the most, if not the most, important factors in enabling people to cease offending behaviour and to move on to crime-free lives as productive members of society. A three-month rehabilitation period is short enough to have little impact on public protection, but its existence will require people in employment or seeking employment to declare the caution and risk losing their job or be refused employment. It will also act as a barrier to those seeking education and volunteering opportunities. Research has found that employers discriminate against people with criminal records and that most do not differentiate between a caution and a conviction. Introducing a spending period for the diversionary caution will therefore hamper people’s efforts to gain employment while doing little for public protection. Diversionary cautions should follow the spending regime for the existing simple caution and end at the point at which the caution is given. I beg to move Amendment 189ZA.

[Lord Carlile of Berriew (CB)]

My Lords, I support the noble Lord’s amendment. If I may, I will elasticate the rules of order slightly by referring to some other issues relating to the spending of cautions and of convictions.

In 2013 and 2014, an ad hoc committee of Members of this House and of the other place reported, sponsored by the National Children’s Bureau and the Michael Sieff Foundation, on the youth courts. I was part of that group, as was the noble Lord, Lord Ponsonby, who was very valuable member, and as was a certain Back-Bencher called Robert Buckland, who later became Secretary of State for Justice and Lord Chancellor. To be fair to him, despite having gone to the other side of good behaviour by becoming a member of the Cabinet, he always remained personally committed to what we had found. Our second recommendation was this:

“Children who have committed non-serious and non-violent offences, who have stopped offending, should have their criminal record expunged when they turn 18.”


I believe that that is a very important principle for which there is supporting evidence around the world. I am disappointed that the Bill is a touch pusillanimous in not picking up that recommendation—and I am grateful to say to the Minister that a number of our recommendations have been picked up.

If the noble Lord were to speak to Charlie Taylor, who held a very important position in the Ministry of Justice at that time, as chairman of the Youth Justice Board, and who is of course now Her Majesty’s Chief Inspector of Prisons, he would find that he is also very supportive of that recommendation, with his huge experience of dealing with young people, first as a teacher and then in the criminal justice sphere.

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Moved by

[Lord Carlile of Berriew]

208: Clause 109, leave out Clause 109 and insert the following new Clause—
“Power to refer high-risk offenders to High Court for consideration of referral to Parole Board in place of automatic release
(1) The Criminal Justice Act 2003 is amended in accordance with subsections (2) to (10).(2) In section 243A (release of prisoners serving sentences of less than 12 months), after subsection (2) insert—“(2A) Subsection (2) does not apply if—(a) the prisoner’s case has been referred to the High Court or the Board under section 244ZB, or(b) a notice given to the prisoner under subsection (4) of that section is in force.” (3) In section 244 (general duty to release prisoners), after subsection (1) insert—“(1ZA) Subsection (1) does not apply if—(a) the prisoner’s case has been referred to the High Court or the Board under section 244ZB, or(b) a notice given to the prisoner under subsection (4) of that section is in force.”(4) After section 244 insert—“244ZB Referral of high-risk offenders to High Court in place of automatic release(1) This section applies to a prisoner who—(a) would (but for anything done under this section and ignoring any possibility of release under section 246 or 248) be, or become, entitled to be released on licence under section 243A(2), 244(1) or 244ZA(1), and(b) is (or will be) aged 18 or over on the first day on which the prisoner would be so entitled.(2) For the purposes of this section, the Secretary of State is of the requisite opinion if the Secretary of State believes on reasonable grounds that the prisoner would, if released, pose a significant risk to members of the public of serious harm occasioned by the commission of any of the following offences—(a) murder;(b) specified offences, within the meaning of section 306 of the Sentencing Code.(3) If the Secretary of State is of the requisite opinion, the Secretary of State may refer the prisoner’s case to the High Court.(4) Before referring the prisoner’s case to the High Court, the Secretary of State must notify the prisoner in writing of the Secretary of State’s intention to do so (and the reference may be made only if the notice is in force).(5) A notice given under subsection (4) must take effect before the prisoner becomes entitled as mentioned in subsection (1)(a).(6) A notice given under subsection (4) must explain—(a) the effect of the notice (including its effect under section 243A(2A), 244(1ZA) or 244ZA(3)),(b) why the Secretary of State is of the requisite opinion, and(c) the prisoner’s right to make representations (see subsection (12)).(7) A notice given under subsection (4)—(a) takes effect at whichever is the earlier of—(i) the time when it is received by the prisoner, and(ii) the time when it would ordinarily be received by the prisoner, and(b) remains in force until—(i) the Secretary of State refers the prisoner’s case to the High Court under this section, or(ii) the notice is revoked.(8) The Secretary of State—(a) may revoke a notice given under subsection (4), and(b) must do so if the Secretary of State is no longer of the requisite opinion.(9) If a notice given under subsection (4) is in force and the prisoner would but for the notice have become entitled as mentioned in subsection (1)(a)—(a) the prisoner may apply to the High Court on the ground that the prisoner’s release has been delayed by the notice for longer than is reasonably necessary in order for the Secretary of State to complete the referral of the prisoner’s case to the High Court, and (b) the High Court, if satisfied that that ground is made out, must by order revoke the notice.(10) At any time before the High Court disposes of a reference under this section, the Secretary of State—(a) may rescind the reference, and(b) must do so if the Secretary of State is no longer of the requisite opinion.(11) If the reference is rescinded, the prisoner is no longer to be treated as one whose case has been referred to the High Court under this section (but this does not have the effect of reviving the notice under subsection (4)).(12) The prisoner may make representations to the Secretary of State about the referral, or proposed referral, of the prisoner’s case at any time after being notified under subsection (4) and before the High Court disposes of any ensuing reference under this section.But the Secretary of State is not required to delay the referral of the prisoner’s case in order to give an opportunity for such representations to be made.(13) Upon hearing a reference, the High Court must determine whether the prisoner would, if released, pose a significant risk to members of the public of serious harm occasioned by the commission of an offence under subsection (2) and either—(a) allow the Secretary of State’s reference, or(b) dismiss the Secretary of State’s reference.(14) If the High Court allows the Secretary of State’s reference, the Secretary of State must refer the prisoner’s case to the Parole Board.(15) If the High Court dismisses the Secretary of State’s reference, section 243A(2), 244(1) or 244ZA(1), as applicable, of the Criminal Justice Act 2003 applies to the prisoner.244ZC Proceedings following reference under section 244ZB(1) This section applies to a prisoner whose case has been referred to the Parole Board under section 244ZB.(2) If, in disposing of that reference or any subsequent reference of the prisoner’s case to the Board under this subsection, the Board does not direct the prisoner’s release, it is the duty of the Secretary of State to refer the prisoner’s case to the Board again no later than the first anniversary of the disposal.(3) It is the duty of the Secretary of State to release the prisoner on licence as soon as—(a) the prisoner has served the requisite custodial period, and(b) the Board has directed the release of the prisoner under this section.(4) The Board must not give a direction under subsection (3) in disposing of the reference under section 244ZB unless the Board is satisfied that it is no longer necessary for the protection of the public that the prisoner should be confined.(5) The Board must not subsequently give a direction under subsection (3) unless—(a) the Secretary of State has referred the prisoner’s case to the Board under subsection (2), and(b) the Board is satisfied that it is no longer necessary for the protection of the public that the prisoner should be confined.(6) For the purposes of this section, the “requisite custodial period” means the period ending with the day on which the prisoner would have become entitled as mentioned in section 244ZB(1)(a).”(5) In section 246(4) (exceptions from power to release early subject to curfew), after paragraph (f) insert— “(fa) the prisoner’s case has been referred to the Board under section 244ZB,(fb) a notice given to the prisoner under subsection (4) of that section is in force,”.(6) In section 255A(2) (duty to consider suitability for automatic release following recall of certain prisoners) (as amended by the Counter-Terrorism and Sentencing Act 2021), for “or a serious terrorism prisoner” substitute “, a serious terrorism prisoner or a prisoner whose case was referred to the Board under section 244ZB”.(7) In section 255C(1) (prisoners whose release after recall is not automatic), for the words from “who” to the end substitute “—(a) whose suitability for automatic release does not have to be considered under section 255A(2), or(b) who is not considered suitable for automatic release.”(8) In section 260(5) (powers and duties of Secretary of State that continue to apply to prisoner removed from prison pending deportation), after “244,” insert “244ZB,”.(9) In section 261(5)(b) (application of release provisions to returning deported prisoner), after “244,” insert “244ZC,”.(10) In section 268(1A) (meaning of “requisite custodial period” in Chapter 6 of Part 12), after paragraph (c) insert—“(ca) in relation to a prisoner whose case has been referred to the Parole Board under section 244ZB, the requisite custodial period for the purposes of section 244ZC;”.(11) In Schedule 1 to the Crime (Sentences) Act 1997—(a) in paragraph 8(2)(a) (provisions relating to release continuing to apply to prisoner transferred from England and Wales to Scotland), for “, 244,” substitute “to”;(b) in paragraph 9(2)(a) (provisions relating to release continuing to apply to prisoner transferred from England and Wales to Northern Ireland), for “, 244,” substitute “to”.(12) In section 128 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (power to alter test for release on licence at direction of Parole Board)—(a) in subsection (2), after paragraph (b) insert—“(bza) a prisoner whose case has been referred to the Parole Board under section 244ZB of the Criminal Justice Act 2003 (power to refer to Parole Board in place of automatic release),”;(b) in subsection (3), before paragraph (ab) insert—“(aaa) amend section 244ZC of the Criminal Justice Act 2003 (proceedings following reference under section 244ZB of that Act),”.”

[Lord Carlile of Berriew (CB)]

My Lords, this amendment stands in my name and the names of other noble Lords. In one way, this amendment is modest, although I regret that it is not modest in length. Indeed, I think it is the longest amendment on the current Marshalled List, winning that dubious honour, by only a short head, over Amendment 259C tabled by the noble Lord, Lord Marks of Henley-on-Thames.

Our amendment leaves intact the legislative intention of Clause 109 to provide a safeguard against the early release of a prisoner serving a determinate sentence who presents a significant risk to members of the public. The amendment’s less modest intention is, quite simply, to preserve the separation of powers—not to give a Secretary of State the power to in effect change and lengthen sentences. It transfers the initiation of the safeguard that is sought from the Executive to the judiciary. It will enable a full hearing of the facts before a prisoner has their case referred to the Parole Board. A Secretary of State who is using this power appropriately has absolutely nothing to fear from this safeguard. It preserves the necessary separation between an elected politician and an individual prisoner who has been sentenced.

I am grateful to the noble and learned Lord, Lord Garnier, the noble Baroness, Lady Prashar, and the noble Lord, Lord German, for co-signing the amendment. The noble and learned Lord, Lord Garnier, was kind enough to get in touch with me this morning to say that he had a professional engagement elsewhere. I checked that he had not picked up a returned brief in the Virgin Islands from a Member of another place, and I am sure that that is not what happened. I am also particularly pleased that the amendment is tabled with the support of the Sentencing Academy, the Prison Reform Trust and Justice—all highly respected and thoughtful organisations.

At the heart of Clause 109 lies an assessment of dangerousness. The clause is aimed at a small number of prisoners who have been underclassified at the point of sentencing. The scenario cited in the White Paper concerns people who are assessed as presenting a terrorist threat, but who are in prison serving a sentence for a non-terrorism-related offence, and offenders who are deemed to present a significant danger to the public for other reasons but whose offending behaviour and assessment of dangerousness at the point of sentencing did not meet the threshold for a finding of dangerousness. One can think of many examples, but familiar to me because of my interest in terrorism offences is people who have been sentenced for quite mundane crimes but who are radicalised in prison and present a high degree of dangerousness at a time when they otherwise might be released.

--- Later in debate ---

For those reasons, although I understand the impetus behind the amendment, I suggest that, far from making the mechanism better, it would make it significantly worse. I therefore respectfully invite the noble Lord to withdraw the amendment.

[Lord Carlile of Berriew (CB)]

My Lords, I am very grateful to those who have intervened in this debate. I pay particular tribute to the noble Lord, Lord German, who has had the courage to climb on to the head of the pin occupied by a number of broad-shouldered and big-elbowed lawyers. He made some very good points in doing so, particularly his straightforward point about the gatekeeping role that we say in this amendment should be carried out by the High Court.

I thank the noble Viscount, Lord Hailsham. I was around in the other place in the heady days when he was a Minister at the Home Office. I suspect that his experience of the Home Office as he described it was as instructive as such experience would be today. What is required in these cases is a clear exercise of judgment before they reach the Parole Board, fully expressed and in a justiciable way. A lot has been said about the adequacy of reasons in relation to this issue. I think we are all agreed—certainly, the noble and learned Lord, Lord Falconer, and the Minister agreed—that we are concerned about the adequacy of reasons.

I am puzzled by what the Minister said about the utility of judicial review in these cases. He knows—all those of us who have been in judicial review cases, and some of us have been judges in them, know—that the test of judicial review is not an ordinary merits test; it is not a test of what is right. The test in judicial review, if you are to win, is: would no reasonable Minister have made this decision? It is quite different from the test on the merits which would be applied by the High Court. I will say a word in a moment in answer to points that have been made about the High Court. I say to those who have suggested that judicial review is an adequate remedy—of course, it is a possible remedy—that it does not fit the bill because it does not mean that there will be a merits test with the adequacy of reasons that has been discussed.

The noble and learned Lord, Lord Falconer, is an absolutely excellent and much-admired advocate, at least by me, but like other great advocates is sometimes wrong, and I venture to suggest that he may have been wrong on this occasion. What this amendment argues for is two quite different stages which are carried out without the intervention of the Executive, save to refer a case. The High Court makes the first assessment. I take what was said by the noble Viscount on drafting as something that needs to be considered, so I will just use the present tense: is there a risk that there is a danger of a particular sort? If so, the case is referred to the Parole Board. That is a decision based on the evidence, on merits, after a proper hearing. It goes to the Parole Board and a quite different assessment is made, which is the one the Parole Board expertly carries out all the time and is about release provisions—whether a person should be released or detained in custody.

It has been an interesting debate and I will reflect on what has been said. I will of course reflect on the comments made by the Minister. I am grateful to him for analysis, which naturally merits further thought, but for the time being I beg leave to withdraw the amendment.

Amendment 208 withdrawn.

Police, Crime, Sentencing and Courts Bill

Lord Carlile of Berriew Excerpts

Lords Hansard - part one & Committee stage
Wednesday 10th November 2021 Lords Chamber

[Lord Ponsonby of Shulbrede (Lab)]

My Lords, I agree with the points that the noble Lord, Lord Paddick, just made. I also think that Mr McAra should be very grateful to my noble friend Lord Brooke for raising the points about the lack of a formal record of the cost of the incidents. I agree with the noble Lord, Lord Paddick, that it seems very unlikely that anyone would get a caution for this sort of offence. Even if it got to court, there would be an obligation on the sentencing court to consider compensation, because one has to consider this whenever one sentences an individual. Nevertheless, my noble friend has raised an interesting question and I look forward to the Minister’s reply.

[Lord Carlile of Berriew (CB)]

I hope I can be forgiven for intervening slightly out of order. I have been thinking as I listen to this debate about the very troubling case which the noble Lord, Lord Brooke of Alverthorpe, raised, but I am not sure that what he is looking for is germane to this clause. However, there is an issue of general principle about unrecovered, uninsured losses arising from a serious crime of violence which does not cause considerable personal injury.

If there is an injury that would attract damages of £1,000 or more, some ancillary costs are payable under the criminal injuries compensation scheme. This raises in my mind that perhaps the Government should look at something like the Pool Re reinsurance scheme, which applies to claims which are uninsured as a result of terrorism events. The underinsured or uninsured person can go to this entity, which has been set up jointly by the public and private sectors, and recover the cost of damages for what has occurred outside the insurance scheme. I suggest to the Minister, who is an extremely experienced lawyer, that perhaps the Government should look at the criminal injuries compensation scheme and the Pool Re scheme and try to produce something which would deal with quite a significant number of cases which probably do not involve a massive amount of money, but in which people who are not very well resourced suffer a great deal, and disproportionately, as a result of the kind of offence that the noble Lord described.

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

My Lords, this group of amendments, proposed by the noble Lord, Lord Brooke of Alverthorpe, seeks to require that reasonable steps be taken to obtain and take into account details of any financial costs incurred by the victim as a result of the offence when deciding on the conditions to attach to a caution and when deciding on the amount of the financial penalty.

I will begin with the particular instance that the noble Lord set out. Both he and the noble Lord, Lord Paddick, used the word “distressing” and I agree with that entirely. I would go further and say that it was appalling; it is a horrific set of circumstances and I am sure everyone in the Committee would share that approach. I extend deepest sympathies to Mr McAra. I am very pleased to hear that his local MP has been helpful and supportive; I was also pleased to hear that she is a Conservative, although one of the glories of our parliamentary system is that all MPs from all parties extend that sort of support to their constituents. It is very good to hear that the system is working.

I also tend to agree that this would be unlikely to be a caution case. I am hesitant to say any more, because prosecuting decisions are independent and a matter for the CPS. I defer in this regard to the experience of the noble Lord, Lord Paddick, but it sounds to me as though this would be more than a caution case.

The Bill states that both the diversionary and community cautions must have conditions attached to them. Those may include rehabilitation and reparation conditions, financial penalty conditions or conditions related to certain foreign offenders. I assure the noble Lord, Lord Brooke, that I give this amendment and the points that he made a sympathetic hearing, as he wanted, but I will explain why as a matter of principle we cannot accept it. This is not because we disagree with the point that underlies it but for the reasons which I will set out. The starting point is that Clauses 79 and 88 already provide for the authorised person to make reasonable efforts to obtain the views of any victim of the offence and take those views into account when deciding on the conditions to be attached to a caution. This includes obtaining their views on financial costs incurred and any decisions on seeking compensation.

Under the current cautions regime, the code of practice for conditional cautions makes clear provision for this in specifying that financial compensation may be paid to a victim. In addition, where the offending has resulted in damage to community property—I appreciate that in the case we have discussed the damage was to personal property—reparation may also take the form of repairing the damage caused, reparative activity within the community more generally or a payment to a local charitable or community fund, which might be more helpful if an offender does not have the financial means to pay. The current code also states that compensation for the victim should be prioritised ahead of other costs or financial penalties.

As is the case with the current code of practice for conditional cautions, the code of practice for the new diversionary and community cautions is the appropriate place to set out further detail on how the conditions attached to a caution may be decided. Again, that will include obtaining and considering any financial losses and requests for compensation. The code will be drawn up under the delegated powers in the legislation. We will consult widely, as the noble Lord would expect, and it will be laid under the affirmative procedure.

Consulting victims goes beyond just cautions. It is a key principle of the victims’ code, point 6.7 of which says:

“Where the police or the Crown Prosecution Service are considering an out of court disposal you have the Right”—


that is, the victim has the right—

“to be asked for your views and to have these views taken into account when a decision is made.”

As I have sought to explain, that will encompass the financial circumstances as well.

Finally, without wishing to be too particular on the drafting but just for the record, I point out that, although the parts of Amendments 177 and 186 relating to Clauses 81 and 90 share the same underlying intention, those clauses relate to financial penalties paid to a court, which are punitive and are not the same as the rehabilitative or reparative conditions, which I know are really the focus of the noble Lord’s amendment.