Non-custodial Sentences: Public Confidence

Debate between Lord Carlile of Berriew and Lord Bellamy

Monday 22nd January 2024 Lords Chamber

[Lord Bellamy (Con)]

My Lords, the Government accept that we can do more to increase public understanding of the working of the criminal justice system. We are committed to open justice: broadcasting judges’ sentencing remarks is a notable step forward; the further availability of transcripts of those remarks is another step that we can take. It is also important to publish sentencing and other information in an accessible form, on GOV.UK and on social media. We should be ambitious to improve the data that we already publish on criminal justice statistics. The Sentencing Council website has extensive information on how sentencing works, and a number of other steps can be taken to improve public knowledge of what is happening.

[Lord Carlile of Berriew (CB)]

My Lords, does the Minister agree that public support for non-custodial sentences would be improved considerably if the Government took immediate steps to deal with the workforce gap in the Probation Service? Every probation service in the country is undermanned; there is a shortage of 400 officers in London; and 20% of new probation officers leave the service before they finish qualifying.

[Lord Bellamy (Con)]

I agree with the noble Lord that the key to public confidence in community sentences is rigorous offender management. We are investing £155 million a year in the Probation Service, which is in recovery mode. We have over 4,000 new trainees and even in London there has been a 10% increase in recruitment. The Community Payback programme, which is targeted specifically at community sentences, involves a further £93 million, and an increase in staff and resources for that programme.

Miscarriages of Justice

Debate between Lord Carlile of Berriew and Lord Bellamy

Wednesday 14th June 2023 Lords Chamber

[Lord Bellamy (Con)]

My Lords, first, on joint enterprise, it is a long-standing principle of the criminal law that persons who go together to commit a crime are jointly liable, irrespective of whoever threw the brick or fired the shot. There is a great deal of jurisprudence on this subject, and it is true that there is some concern that the existing case law does operate in a harsh way on certain young black boys and men. The CPS, to which I would like to pay tribute, is engaged in a six-month pilot, which started in February 2023, to review joint enterprise cases in several CPS areas. It has also established a joint enterprise national scrutiny panel to review the interim findings of the pilot and several finalised joint enterprise cases. At the end of September this year, the results of that review will be published. This, I understand, will also be considered in relation to the Law Commission’s investigation into the appeals process.

[Lord Carlile of Berriew (CB)]

My Lords, will the Minister assure the House that the Criminal Cases Review Commission, under its excellent new chair Helen Pitcher, will be given sufficient funding efficiently to ensure that miscarriages of justice are dealt with in a timely way? Also, will he consider allowing Professor Cheryl Thomas, who is the leading researcher into juries, to carry out more in-depth research into how juries actually reach their verdicts, in order that prosecutors can be better informed about how to prepare their cases?

[Lord Bellamy (Con)]

My Lords, the functioning of the Criminal Cases Review Commission—its resources, its governance and the test it applies—will be considered in the context of the Law Commission’s current review. The Government would like to thank the Westminster Commission in particular, in which my noble and learned friend Lord Garnier and the noble Baroness, Lady Stern, participated, for its work on that. It is of interest, and the Government look forward to hearing the Law Commission’s response to these difficult matters.

Illegal Migration Bill

Debate between Lord Carlile of Berriew and Lord Bellamy

Committee stage
Wednesday 7th June 2023 Lords Chamber

[Lord Bellamy (Con)]

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

[Lord Carlile of Berriew (CB)]

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

[Lord Bellamy (Con)]

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

Illegal Migration Bill

Debate between Lord Carlile of Berriew and Lord Bellamy

Committee stage
Monday 5th June 2023 Lords Chamber

[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

Debate between Lord Carlile of Berriew and Lord Bellamy

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

Debate between Lord Carlile of Berriew and Lord Bellamy

Committee stage
Wednesday 18th January 2023 Lords Chamber

[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

Debate between Lord Carlile of Berriew and Lord Bellamy

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

Debate between Lord Carlile of Berriew and Lord Bellamy

Tuesday 18th October 2022 Lords Chamber

[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.

--- Later in debate ---

[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

Debate between Lord Carlile of Berriew and Lord Bellamy

Thursday 14th July 2022 Lords Chamber

[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.