Queen’s Speech

Lord Faulks Excerpts

Tuesday 18th May 2021 Lords Chamber

[Lord Faulks (Non-Afl)]

My Lords, as a number of noble Lords have said, the gracious Speech referred to the possibility of restoring balance in the constitution. It is well known that the constitution is not always easy to identify. In fact, one of my revered colleagues on your Lordships’ Constitution Committee—the noble Lord, Lord Hennessy—says that he has spent his lifetime looking for it.

The combination of Brexit, a minority Government, division in the Conservative Party on the approach to Brexit and the rigidity of the Fixed-term Parliaments Act amounted to a constitutional crisis. The purported Prorogation of Parliament by the Prime Minister resulted in a decision by the Supreme Court that he had acted unlawfully and that Parliament should return. This was the second occasion on which Brexit had caused the Government to lose a major constitutional case before the Supreme Court.

It may be that these reversals were a factor in the Government’s decision to set up the independent review. They convened a panel, which I was invited to chair. The terms of reference were broad; the timescale short. Having received an enormous amount of very high-quality material, the panel was not ultimately convinced that judicial review needed radical reform. We set out our reasons, probably at too much length. While some of the panel, including me, preferred the decision of the strong Divisional Court to that of the Supreme Court in the prorogation case, we considered that it was very much a one-off and an unreliable basis on which to conclude that there was something structurally awry with judicial review, which is a vital ingredient in the rule of law.

However, we did accept that it was perfectly legitimate constitutionally for the Government—any Government —to legislate to reverse particular court decisions, whether they were the result of judicial reviews or, indeed, in any other context. We specifically pointed out two areas which we thought were ripe for reform and would need legislation, and they both involved reversing decisions of the Supreme Court. The Government have accepted our recommendations, and some of the judges involved in the decisions have graciously acknowledged that they did perhaps need revisiting. The question remains: will the Government go further?

I understand why the Government are concerned about judicial review. In his Reith lectures, Lord Sumption memorably described “law’s expanding empire”. But as we conclude in our report, it is inevitable that the relationship between the judiciary, the Executive and Parliament will from time to time give rise to tensions, and a degree of conflict shows that the checks and balances in our constitution are working well. We must trust our judges to identify cases which are—to use the words of a Court of Appeal judge—using judicial review as “politics by another means”.

A theme which we also hope emerges from our report is that the issue should not be characterised as merely a conversation between the Executive and the judiciary. We emphasise the importance of Parliament. If legislation is clear, there is little scope for judicial review. But while Governments continue to use framework Bills and Parliament does not prevent them doing so, it cannot be altogether surprising that government decisions are challenged in the courts.

I briefly mention one other constitutional principle: free speech. The online safety Bill, as it is now called, is an exciting and unprecedented piece of legislation. Our newspapers are mostly regulated—I declare an interest as the chair of IPSO—and it is time that social media, where most people gather their news and other information, should also be regulated to protect the vulnerable and safeguard the integrity of the news-gathering process. This legislation is to be the subject of pre-legislative scrutiny and no doubt will be closely scrutinised by both Houses. However, the Secretary of State, Oliver Dowden, was right when he said last week that it was vital that the Bill did not compromise freedom of the press, whether in print or online.

I congratulate the noble Baroness, Lady Fullbrook—who is not now in her place—on her excellent maiden speech. I also mention a maiden speech made last week by the noble Lord, Lord Lebedev. He said that, coming from Russia, he did not take freedom of speech or the rule of law for granted. Neither should we.

Counter-Terrorism and Sentencing Bill

Lord Faulks Excerpts

Committee stage & Committee: 2nd sitting (Hansard) & Committee: 2nd sitting (Hansard): House of Lords
Tuesday 9th February 2021 Lords Chamber

[Baroness Hamwee (LD) [V]]

My Lords, I appreciate that the Committee dealt with some clauses regarding polygraphs on the previous day in Committee, to the extent of filleting the Bill so that certain provisions do not extend beyond England and Wales. I apologise to the Committee that I did not retrieve Amendments 19A and 19B, which were tabled at that time. I shall save my more general remarks about polygraphs for the next grouping, as this is a narrow point.

Section 30 of the Offender Management Act excludes the use of two matters as evidence in any proceedings against a released person. Those matters are physiological reactions and a statement made during participation in a polygraph session. The amendment would make it clear that those matters could not be used as evidence in proceedings against a third party, its purpose being to ask whether that is now the case. When dealing with terrorism offences, there must be a lot of interest in the contacts of individuals—and, perhaps, a lot of interest in finding evidence that can be used against those other people.

I was very grateful for the teach-in arranged by the MoJ on how these sessions are currently run for sex offenders. During that briefing, it was explained to us that the sessions are not fishing or trawling for information; they are not wide-ranging discussions to see what an offender might let slip. They use closed questions, to which the answer will primarily be yes or no. It seems to me that some questions can lend themselves to inquiries about situations which may be relevant to other persons: for instance, “Since our last session, have you had any contact with, direct or indirect, or any news of X?” or “Has your wife had any news of X’s family?” My amendment is to probe whether the answers can be used in evidence against X. I beg to move.

[Lord Faulks (Non-Afl) [V]]

My Lords, I regard this group and the next as essentially probing the Government on the use of polygraphs in relation to those convicted of serious terrorism offences. Like the noble Baroness, Lady Hamwee, I attended the briefing last week, during which the potential use of polygraphs was explained; I also found it useful. As I understand it, polygraphs will be a tool—not instead of anything else—to assist in monitoring by the National Probation Service of offenders who have been convicted of serious terrorist offences and are considered at high risk of causing further serious harm.

I need a little convincing that their use in monitoring sexual offenders is really a terribly useful precedent for the challenge presented by serious terrorist offenders, who often have particular ideological convictions which may make detecting lies or inconsistences rather a different challenge from serious sexual offenders, although I understand that polygraphs have been used by the National Probation Service since about 2013.

I suspect piloting may not be particularly easy, given the numbers involved. We all know from the terrible events following, for example, what happened at Fishmongers’ Hall how challenging it is to assess whether someone has been successfully rehabilitated or not. During the last group, the noble Lord, Lord Marks, stressed how important it was for there to be “effective deradicalisation”. I am sure all noble Lords agree that is a desirable aim, but it is something of a holy grail. As we discussed in Committee last week, effective deradicalisation has been a significant challenge for those responsible for managing offenders, not just in this country but in many others where Islamic terrorists and other extremists have presented problems.

I understand the primary purpose of this Bill to be protecting the public from the very serious consequences of offences committed by these offenders. That does not preclude the possibility of rehabilitation, but I think the balance in the public’s view is very much in favour of protecting them.

I understand that there will be an internal review of this polygraph testing—the noble and learned Lord, Lord Stewart, said so in response to a previous group—and that it is considered that it may involve something like 150 offenders, a relatively small cohort. He also said the responsibility for these offenders might, as I understand it, eventually be transferred to a specialist branch of the National Probation Service—the NSD. Experience of handling terrorist offenders in particular would certainly be desirable.

Although I look forward to the Minister’s response, this process of assessing how best to assist in monitoring serious offenders seems very challenging. Those with that responsibility need all the help they can get, given the difficulties they will encounter. At the moment, I see considerable advantage in using these polygraphs.

--- Later in debate ---

[Lord Thomas of Cwmgiedd (CB) [V]]

My Lords, the noble Lord, Lord Anderson of Ipswich, spoke with such eloquence in making all the points that I can confine myself to making four short points.

First, as he rightly stressed, this is an important part of the conditions for TPIMs because it enables a judge and the Home Secretary, when making the decision, to concentrate on the factual evidence in relation to terrorist activity. The other conditions are more difficult to establish, or it might be more a question of judgment, but this at least concentrates on the facts.

Secondly, the amendment seeks what some may feel is an overgenerous compromise. I do not think so; I think that it is right to say that, for the first and initial period, a lower standard can be acceptable.

However, thirdly, that cannot be acceptable when one is looking at longer periods where a person’s liberty is to be constrained—particularly with the amendment that we will come to next, which concerns the indefinite detention period.

Fourthly, and finally, it seems to me that there can be no justification for making such a change unless there is evidence. Indeed, what was said about the position in the other place has been clearly set out.

I ask the Minister to set out fully what he believes is the evidence for this change. If he cannot do so in public on this occasion, there must be a means of informing those who are interested in this matter of the evidence so that it can be carefully reviewed before we impose on people accused of obviously very serious issues a standard of proof that really is completely unacceptable in any civilised society.

[Lord Faulks (Non-Afl) [V]]

My Lords, the noble Lord, Lord Anderson, has given your Lordships a very clear and succinct history of control orders and TPIMs—as one would expect, given his experience. He pointed out very fairly that control orders had the very same test that it is now proposed in the Bill should be used to decide whether a TPIM is appropriate. It is also worth pointing out that control orders were highly controversial and subject to a considerable number of challenges in the courts to see whether they survived a proper challenge based on the European Court of Human Rights and the convention. They survived that, which will reassure your Lordships.

I accept that the amendment put forward by the noble Lord, Lord Anderson, which is supported by the noble and learned Lord, Lord Thomas, is relatively modest, and I understand the reasoning for it, whereas the amendment put forward by the noble and learned Lord, Lord Falconer, goes rather further and seems to involve a degree of subjectivity—although I will listen with interest to what he says—and that subjectivity might be difficult to satisfy.

Counter-Terrorism and Sentencing Bill

Lord Faulks Excerpts

Committee stage & Committee: 1st sitting (Hansard) & Committee: 1st sitting (Hansard): House of Lords
Tuesday 26th January 2021 Lords Chamber

[Baroness Hamwee (LD) [V]]

My Lords, my name is to the amendment of the noble Lord, Lord Hunt. It would have been added to the amendment of the noble Lord, Lord Ponsonby, but I was caught out by the speed at which we suddenly arrived at these proceedings. I appreciate that there are differences between the amendments, including the time period for review, and the amendment of the noble Lord, Lord Ponsonby, is not confined to prisoners sentenced under Part 1. In particular, there is the criteria for assessment to which the noble Lord, Lord Carlile, referred.

Like others, I have been struck by Ian Acheson’s work. One of the many things that he has said that has been quoted widely is that:

“We cannot speak to dead terrorists. We can speak for dead victims. They demand that policymakers take risks to ensure that the people who wish to harm us through a corrupt ideology are engaged, not shunned. This should happen not because states are weak, but because they are confident the strength of their values will ultimately prevail.”


He has, of course, described prisons as incubators of radical behaviour. They are incubators of crime of all sorts: Islamic extremism, right-wing extremism, drug crime and other organised crime. Are there hothouses within the incubators? Given that resources are not infinite, what is the best balance between work in prison and work in the community? To pick up a point made earlier this afternoon, I do not regard the rights of offenders versus the public as being the issue; both are about effective means of achieving the safety of the public.

Programmes must be assessed and, no doubt, evaluation and adaptation is not a one-off but a continuing process. All this has a context: the conditions in our prisons. That is hardly a novel point. How suitable are those places for rehabilitation? How well trained are staff? Do they have the capacity to spot the signs of how prisoners are affected by other prisoners and by their experience of imprisonment?



I have not seen mention, though I am sure it has been addressed, of the recruitment of staff from Muslim communities, who may be alert to what non-Muslims would not see. In the interests of balance, I should refer—although I am not sure how—to those who might be thought of, in a prejudiced, caricatured way, as having right-wing sympathies. I am not sure how you would do that, but I want to make it clear that this is not a single issue.

If terrorists are segregated from the rest of the prison population, does that reinforce their beliefs and attitudes? Is there a cumulative experience? What if the terrorism is rooted in different, opposing ideologies? What are the vulnerabilities of prisoners to becoming radicalised? How different is that process from being drawn further into, say, drugs crime or other violent crime? Indeed, may it not require more sophistication and knowledge to draw someone into Islamist extremism, which, as I understand it—others will know much more about it—involves much teaching and studying of the Koran?

None of this can be separated from what goes on outside prison, including when a prisoner is on licence. The skills required by the probation service are considerable, especially in the face of what I understand to be increasing sophistication on the part of prisoners on licence regarding how to game the system—the noble Lord, Lord Carlile, may have referred obliquely to that. I cannot begin to answer my questions, and there are not nearly enough of them, but this is the moment to ask them.

[Lord Faulks (Non-Afl) [V]]

My Lords, I join other noble Lords in welcoming my noble friend Lord Wolfson to his position. I can say from experience that it is a challenging but rewarding post.

It is well understood that deradicalisation programmes are particularly challenging to evaluate. There is nothing new about this. I remember attending meetings in Brussels to discuss with my fellow Justice Ministers the problem of radicalisation in prison and the best response to it. There was no real agreement on that but my clear impression was that in 2015, we were already adopting a much more sophisticated approach to the problem than were other countries within the European Union. This is not some tedious pro-Brexit point: the whole purpose of our meeting was to try to share intelligence and work out the best response. However, even the most enthusiastic supporter of the various deradicalisation initiatives would acknowledge the difficulty of assessing their success or otherwise.

As I understand it, there are already a number of programmes deployed in prisons that are targeted at terrorist offenders, and I expect the Minister to tell us a great deal more about them. I have read what Jonathan Hall said about what are, effectively, offences that are committed in prison by the radicalisation of prisoners by other prisoners. This may well have happened in the case of the murder of three men in Forbury Gardens in Reading, which many noble Lords will remember all too clearly.

In 2016, Ian Acheson made a number of recommendations. A number of noble Lords have said that little progress has been made. I await the Minister’s comments on that, but I understood that quite a few initiatives had been taken, including training officers to spot signs of extremism and increasing the number of staff with specific counter-terrorism experience or knowledge.

--- Later in debate ---

[The Deputy Chairman of Committees (Lord McNicol of West Kilbride) (Lab)]

We have been unable to reach the noble Lord, Lord Ramsbotham, so we now move to the noble Lord, Lord Faulks.

[Lord Faulks (Non-Afl) [V]]

My Lords, the Bill has been broadly welcomed, in light of the Fishmongers’ Hall and Streatham attacks, by noble Lords across the House. One could add to that sad litany of attacks the murder of three men in Forbury Gardens, Reading. Noble Lords accepted the need for legislation such as this with something of a heavy heart. There have been anxieties expressed in Committee today and at Second Reading about some aspects of the Bill. I particularly noted the comments at Second Reading of the noble Baroness, Lady Prashar, and the noble Lord, Lord Ramsbotham, who described himself as “horrified” by the reduced role of the Parole Board.

I share, I am sure, with all noble Lords very considerable respect for what the Parole Board does. Decisions about serious offenders are particularly challenging. The boards, which have enormous experience, are given a great deal of material to make their decision, which they do with scrupulous care. I do not see that the purpose of the Bill in any way excludes or marginalises the board. The purpose, surely, is to ensure that serious terrorist offenders spend longer in prison and longer on licence, and it is that fact that removes the Parole Board from the picture, not any lack of respect for what it does.

I listened carefully to what the noble Lord, Lord Anderson, said about the statistics on reoffending by terrorist offenders who are released, and I am sure that he is absolutely right to make that point. I would add just one gentle caveat, in the sense that a terrorist who commits another offence, maybe of the most extraordinary gravity, is not comparable to, say, a burglar who breaks into a house repeatedly, serious though that can be.

The offenders who will no longer be susceptible to review by the Parole Board will have their licence condition, when they are released, set by prison governors on behalf of the Secretary of State. As I understand their position, prison governors will be informed by the probation service, the multi-agency public protection panels, and presumably by information gathered about the prisoners in the prison or prisons where they have served their sentence, which will be something of an incentive for them to behave well. Prison governors have much experience of this process.

The Bill is certainly concerned with the protection of the public. Keeping the most serious offenders in prison for longer and removing their opportunity for early release is what causes the reduced role of the Parole Board. The removal of its involvement for what I understand is likely to be a very small cohort of 50 or so—perhaps the Minister can help—seems to be justified in the public interest.

[Lord Carlile of Berriew (CB) [V]]

My Lords, I agree with the noble Lord, Lord Faulks, that we are dealing with the determination of licence conditions in the context of terrorist prisoners having been sentenced to longer sentences. However, I agree with the noble Baroness, Lady Prashar, who has very considerable and relevant experience, and with my noble friend Lord Anderson of Ipswich that the Parole Board has an important potential role to play in these cases.

It is said that the determination of licence conditions can adequately be dealt with by prison governors. That may be true in some cases, but prison governors do not have the range of expertise, the judicial discipline and the clear legal accountability of the Parole Board. It is therefore my view that this task should be undertaken by the Parole Board, which has all the relevant qualifications to do it. If the Parole Board was placed in that position it would command the confidence of the public. Indeed, those who believe that too much control is being taken of prisoners by government would be able to see that there was a thoroughly independent, accountable, quasi-judicial organisation dealing with these cases empirically and on their merits.

Courts: Resourcing and Staffing

Lord Faulks Excerpts

Thursday 14th July 2016 Lords Chamber

[The Minister of State, Ministry of Justice (Lord Faulks) (Con)]

My Lords, I begin by thanking the noble and learned Lord, Lord Woolf, for introducing this important topic. Understandably, it has ranged over the whole field of justice, both criminal and civil, and indeed it has touched on the prison population.

It is hard to disagree with very much that has been said by all noble Lords. The new Government have a considerable task to attend to. It was a particular privilege to hear the maiden speech of the noble and learned Lord, Lord Saville. He referred to the influence of “The Franchise Affair” on his career. Of course, there has been something of a franchise affair recently in this country, causing an extraordinary revolution in who runs this country and how it is to be run.

I thought—I do not know whether noble Lords will agree—that one of the former Prime Minister’s finest moments was his response to the extraordinary and influential report on Bloody Sunday and the way in which he acknowledged the findings of the noble and learned Lord, Lord Saville, as well as the very real bridge that he was able to build with communities in Northern Ireland following that. That towering achievement of the noble and learned Lord has meant that we have been deprived of many speeches in the House of Lords and in the Supreme Court. I fear that he would have rejected many of my submissions, but I am sure that it would have been a worthwhile exchange. We hope that in future there will be a great deal more from him in this new capacity.

Much attention has been paid to the importance of high-quality judges and the rule of law. In the relatively short time that I have had the privilege to be in this position, it has become apparent to me that the rule of law and the standard of our judiciary are pivotal to our reputation here and abroad. Everywhere one goes, our judiciary’s quality, incorruptibility, intellectual ability and ability quickly to come to conclusions are praised. The rule of law not only results in earnings to lawyers but, perhaps much more importantly, makes London in particular but also the rest of the United Kingdom a centre for those who wish to bring their disputes here. It results in an enormous amount of soft power for this country, as one sees whenever one travels abroad, to have a secure rule of law which is manned by such extraordinary judges. So the noble and learned Lord is quite right to emphasise the importance of our appointing the highest-quality judges.

The challenge for any Government is to ensure that people will apply to become judges. The noble and learned Lord, Lord Judge, referred to the old days of recruitment—the tap on the shoulder, much maligned—but it brought home to potential judges the sense of public duty that I think accompanies all judges when embarking on that voyage. Now there is an application process, and it is understandable that any judge will hesitate for some considerable time before deciding whether it is a sensible step to take.

No Minister in any Government can avoid the need to deal with the financial deficit, which of course means that all public servants have had to take considerable cuts in their income at whatever level, but it is important that high-quality public services continue to be delivered. The Government work closely with the Treasury and the Senior Salaries Review Body to consider how we make best use of the pay award to continue to recruit and retain high-quality judges, and are considering what options there might be in future to mitigate some of the concerns around remuneration. I know that the cogent points that have been made about pensions will be taken on board by the Ministry of Justice. It is crucial that we attract the best possible candidates, preferably from the most diverse sources possible—I take the point that the noble Lord, Lord Beecham, made about that—so that we can continue our reputation for high quality.

The noble and learned Lord, Lord Phillips, referred to the sad state of our prisons, and he was right. That is acknowledged by the Government—certainly, the Government who until recently ruled this country—and he will know that the former Chancellor of the Exchequer promised £1.2 billion for the building of new prisons, and a considerable amount of money has been passed to the prisons to ensure that the recent and regrettable outbursts of violence can in some way be contained. The plan is to give increasing autonomy to prison governors to allow them to deliver some of the greatly needed reforms in terms of education, access to courses and all those factors which can help in rehabilitation.

It was said, quite rightly, that sentences have increased. There are a number of reasons for this. Judges, of course, pass sentences that they consider appropriate, but I entirely accept that various Acts of Parliament can sometimes tie their hands. The noble and learned Lord, Lord Phillips, mentioned the IPP prisoners, which continue to be a source of considerable anxiety. The next Secretary of State and Lord Chancellor will no doubt have to consider whether it is appropriate to exercise the power that Parliament gave them to change that release test. I cannot, of course, anticipate what the response will be.

The cost of justice continues to be high. However, the availability of legal aid remains part of a civilised society. During the course of the last Government spending on legal aid reduced from over £2 billion to £1.6 billion per annum. It remains a generous system. Clearly, following LASPO there were significant changes in the way that legal aid was made available in a number of circumstances. There will be a review of LASPO in due course, and it will be for the Government to decide whether changes need to be made to satisfy the fundamental business of government of allowing proper access to justice.

Judges and court staff have to deal very often with litigants in person, which provides a considerable challenge. However, the court service has responded well in providing assistance, both online and at court, to enable litigants in person to have a better involvement with the justice system.

The House will be aware that a prison and courts reform Bill will shortly be introduced into the House of Commons and, in due course, arrive here. It will include vast numbers of changes to the court system, both criminal and civil, and will no doubt be scrutinised carefully in both Houses of Parliament. The idea is to make justice more accessible; to remove some of the unnecessary hearings about which we have heard so much; and to ensure that there is digital access where possible—although those who are digitally compromised may have to be accommodated within the system—to spare unnecessary court hearings.

The noble Lord, Lord Thomas, makes the understandable point that there can be difficulties sometimes in getting to courts in remote areas. This has been taken into account in the court closures. The relative informality which he described in court hearings may have to take place on certain occasions, and I am sure that the courts are prepared to deal with that. Increasingly, however, there can be communication to enable court users to interact in a far less formal and expensive way. I hope it will be only in rare circumstances that there needs to be a real judge in a real court and that that can be avoided.

The noble Baroness, Lady Coussins, referred to the important requirement for there to be interpreters in appropriate cases. The current contract for language services expires at the end of October and the Ministry of Justice has been progressing a procurement exercise for new contracts over the past few months. Preferred bidders have been identified and we are in the process of finalising commercial arrangements. The comments she makes about the inadequacies of the system will be taken into account. Clearly the instances she gives are far from desirable and ought to be attended to.

The noble Lord, Lord Lester, referred to the statutory duty of the Lord Chancellor, and he is right to do so. The new Lord Chancellor, along with her many other obligations, will have to bear that in mind. It should be an axiom as she approaches her obligations and ensures that the new legislation reflects that principle.

Fees are a necessary way, of course, for the justice system to function because the Ministry of Justice is an unprotected government department. The noble Lord, Lord Trevethin and Oaksey, referred to the problem with fees in circumstances where those who wish to use tribunals may not be able to afford to do so. I cannot give a date yet for when the review is going to be published. As to fee remissions, which were in place to mitigate some of the difficulties, a new digital service is in place to help with fee remissions by making it easier for court users to claim them. He and other noble Lords may be aware of the fact that there has been a vast take-up of the use of ACAS. That has prevented many cases reaching tribunals which perhaps should not have done. But clearly if there is a real problem with access to justice in terms of getting to tribunals, that is something which ought to be attended to urgently.

The noble Lord also made a point about the way in which legal aid has been eroded. Following the Jackson report, changes have been made to the way in which CFAs and ATE premiums work. Whatever faults there may be in the justice system, I think that a great deal of what Lord Justice Jackson recommended, and which was set out in Part 2 of the LASPO Act, has in fact been extremely successful. These are early days, but the cost of litigation was excessive. It meant that insurance premiums went up and far too much litigation was concerned with making profits for lawyers and others rather than it being about real disputes and claimants who should be obtaining compensation.

As I say, the new Lord Chancellor has a huge mountain to climb. I know that she will have assistance from an extremely dedicated staff in HMTCS. She has the co-operation of the Lord Chief Justice, who has been tireless in his attempts to assist the Ministry of Justice in identifying and progressing reforms. She will have the benefit of Lord Justice Briggs’s online court proposals. The first report has been received and the final report is due shortly. All these are potentially fertile ground for improvements that can be made, and it is hoped that they will provide the sort of court service which we ought to have in this country to maintain our reputation, to ensure that the rule of law flourishes as it should, to ensure that the reputation of our Government and the Ministry of Justice can be preserved, and to ensure that we attract the best possible people to work in it.

Right to Die

Lord Faulks Excerpts

Thursday 14th July 2016 Lords Chamber

[Baroness Meacher]

To ask Her Majesty’s Government what assessment they have made of the constitutional implications of the Supreme Court’s 2014 judgment in the case of R (Nicklinson) v Ministry of Justice [2014] UKSC 38.

[The Minister of State, Ministry of Justice (Lord Faulks) (Con)]

My Lords, the Government do not agree that this case raises constitutional issues. The issue in this case was whether the prohibition on assisted suicide in the Suicide Act 1961 was incompatible with the appellant’s right to respect for private and family life. Dismissing the appeal, the Supreme Court held that our courts could decide the question of compatibility but that it was not appropriate to do so then. The court encouraged Parliament to consider the issue further. Both Houses have since had the opportunity to do so.

[Baroness Meacher (CB)]

I thank the Minister for his reply, but he will know that a majority of the Supreme Court justices in the Nicklinson case took the view that the current law is in breach of Article 8 of the human rights convention. They deferred making a declaration of incompatibility only to allow time for Parliament to pass a law to change the situation. Does the Minister accept that a Private Member’s Bill debated on Friday immediately after the Summer Recess was not an adequate response to the Supreme Court justices, and that it is now time for the Government, with Parliament, to pass legislation to allow help to be given to mentally competent terminally ill people who have a consistent wish to avoid unbearable suffering at the very end of their lives?

[Lord Faulks]

The Government recognise that strong views are held on this subject on both sides. It remains the Government’s view that any change in the law is an area for individual conscience and a matter for Parliament to decide rather than for government policy. The noble Baroness and the House will remember the lengthy, thorough and extremely illuminating debates we had last year or the year before in relation to the Private Member’s Bill proposed by the noble and learned Lord, Lord Falconer. Since then, there has been a Bill in the House of Commons which was defeated at Second Reading.

[Lord Singh of Wimbledon (CB)]

My Lords, social as well as medical factors can influence a decision to live, and greedy or uncaring relatives can easily influence that decision—we hear about that every day in the press and in care homes. Does the Minister agree that greater efforts should be made to show that we value all people, whatever their degree of sickness or disability, and that society must work towards better palliative care?

[Lord Faulks]

I am sure that all noble Lords would agree with what the noble Lord said, whatever their views about the issue.

[Viscount Hailsham (Con)]

My Lords, might one way forward be to incorporate into statutory form the guidelines of the DPP, reflecting as desirable the views of the Supreme Court? This would be desirable in itself and might also stand in the way of a declaration of incompatibility, which I would deem to be undesirable.

[Lord Faulks]

I am grateful for that suggestion. There are different views about whether it is appropriate for the Supreme Court to instruct Parliament to do anything. A lot of academic lawyers consider that Parliament is much better equipped to decide these issues. Judges and courts will inevitably consider the matter on a case-by-case basis as opposed to the polycentric view that Parliament will be able to bring to it. I respectfully submit that it is a matter for Parliament.

[Lord Falconer of Thoroton (Lab)]

My Lords, there are significant issues about end of life: palliative care, which everyone wants to see better and more widespread; the assisted dying issues which the noble Baroness, Lady Meacher, referred to; and also how end-of-life decisions are taken with people who are dying, which is nothing to do with the assisted dying issue. With a new Government and with genuine concern about this issue, what would the Minister think about a royal commission or a similar body being set up to address the issues of end-of-life care, including assisted dying?

[Lord Faulks]

The noble and learned Lord will not be surprised that I am not able to give any announcement to the effect that there should be some sort of commission at this stage, but clearly there remains great concern. This is a very difficult issue. Polling indicates a move towards the approach exemplified by the noble and learned Lord’s Bill. No doubt any Government, of whatever hue, will have in mind what the public want.

[Baroness Finlay of Llandaff (CB)]

Do the Government recognise that, apart from the defeat of the Bill in the House of Commons, the BMA has undertaken an extensive study of end-of-life care? I declare an interest as a former president of the BMA and as someone involved in palliative care. The study showed that doctors do not want to be involved in this because they see it as unsafe. A survey undertaken showed that only one in seven GPs is prepared to be involved in assisted suicide, physician-assisted suicide or euthanasia and that, when the public heard more about what was involved, support decreased so that it became equipoised? Overall, there was objection from doctors, which was reinforced recently at the BMA annual representative meeting.

[Lord Faulks]

The House and I am aware of that and of the noble Baroness’s particular expertise in this area.

[Lord Blair of Boughton (CB)]

My Lords, I declare an interest as a member of the commission on assisted dying chaired by the noble and learned Lord, Lord Falconer. Does the Minister see any contradiction between the Government taking no action about something that 82% of the public believe should happen and taking enormous action over a 52:48 split?

[Lord Faulks]

The terms of the European Union Referendum Act were much debated in this House and, no doubt, they will continue to be debated. As to polls, I am aware of the poll to which the noble Lord referred. There are other polls and views differ, as he is well aware.

[Lord Mackay of Clashfern (Con)]

My Lords, does the Minister remember that, in the evidence which was given to the Select Committee that looked into this for the House years ago, one of the witnesses said that the last thing he would like to be is in a place where public opinion determined the law?

[Lord Faulks]

It is a matter for Parliament. No doubt the expertise in this House and the House of Commons can be brought to bear on these issues.

Crown Dependencies

Lord Faulks Excerpts

Tuesday 12th July 2016 Lords Chamber

[Lord Beith]

To ask Her Majesty’s Government what recent discussions they have had with the Governments of the Crown dependencies about the dependencies’ relationships with other countries and with the European Union.

[The Minister of State, Ministry of Justice (Lord Faulks)]

My Lords, regular dialogue happens between the UK Government and the Crown dependencies at both ministerial and official level across a range of issues, including Crown dependencies’ interests in relation to the EU and other countries. This has become especially important in the light of the result of the EU referendum, and on 27 June the Prime Minister confirmed that the Crown dependencies will be consulted on any new negotiation with the European Union.

[Lord Beith (LD)]

My Lords, although the Channel Islands and the Isle of Man are not in the EU, they benefit from the single market in goods. They also have a pressing need to conclude bilateral investment treaties with a number of third countries. Given the huge task facing UK negotiators, what mechanism will be put in place to ensure that Crown dependency interests are not lost sight of in EU negotiations? In order that third country treaty negotiations do not grind to a halt, will more use be made of letters of entrustment, so that they can get on with the job themselves?

[Lord Faulks]

The noble Lord has had a continued interest in the Crown dependencies: as chair of the Justice Select Committee, he wrote an influential report and a subsequent report in 2014, in which he applauded the response of the UK Government to the challenges that the Crown dependencies threw up. As the Prime Minister said, we are most concerned to ensure that the Crown dependencies’ interests are reflected in any negotiation. We are also anxious to encourage letters of entrustment where appropriate, to ensure that those interests are recognised in all treaties. There was a 2007-08 agreement which paved the way for such arrangements.

[Lord Watts (Lab)]

What would the effect of our leaving the European Union be on Gibraltar’s borders?

--- Later in debate ---

[Lord Faulks]

My Lords, there will be no immediate change in the way Gibraltar’s people can travel, or how its services can be sold. The Government are most anxious to maintain the Gibraltar-Spain border: it is one of our top priorities. As for the details, I am afraid that, as with so many things in this negotiation, we will have to wait.

[Baroness Ludford (LD)]

I, too, want to ask about Gibraltar. Obviously it is not a Crown dependency, but naturally there is a great deal of concern in Gibraltar, whose inhabitants voted remain, not only about the economy but also that Spain will be emboldened to press its sovereign claim. How will the Government protect the interests of Gibraltar in all those dimensions?

[Lord Faulks]

As the noble Baroness says, Gibraltar is not a Crown dependency—the subject of this Question. None the less, the Government of Gibraltar have put forward some specific ideas for ensuring that trade will continue between the UK and Gibraltar, and we look on this matter as a priority. We also continue to uphold sovereignty over British Gibraltarian territorial waters by challenging and protesting all incursions, and we are continually monitoring the situation. We will continue to do so, and the long-term aim is to return to the trilateral forum for dialogue between the UK, Spain and Gibraltar.

[Lord Faulkner of Worcester (Lab)]

As regards the Channel Islands, I declare an interest as chairman of the Alderney Gambling Control Commission. The Minister enjoys a very high reputation in the islands and is known to be a friend of them. I know how much trouble the disagreement caused by Defra over the Guernsey fisheries agreement caused him and the MoJ last year. Putting that to one side and looking ahead to the post-EU world, does he accept that Channel Islands Governments will have the constitutional right to legislate on such matters as fisheries in future, and to take greater control over their international agreements?

[Lord Faulks]

I am grateful to the noble Lord for his comments. Of course, we do our best to maintain the relationship between the Ministry of Justice and the Crown dependencies. I spoke to all the Chief Ministers on the day of the referendum and attended the APPG meeting. We are anxious to ensure that the relationship is secured for the future. Of course, the noble Lord is aware of the fisheries dispute with Guernsey. That is the subject of litigation, so I cannot comment further on it. As I said earlier in answers to questions, we are anxious that there should be an appropriate degree of autonomy, and that each of the Crown dependencies should be able to secure matters that are in their interests. Of course, how matters finally turn out following the conclusion of our negotiations is difficult to predict with exactitude.

[Lord Flight (Con)]

My Lords, among the first batch of non-member territories expected to receive AIFM passporting towards the end of this year are Guernsey and, I believe, Jersey, as well as Hong Kong and the USA. Does the Minister feel that if that goes ahead it could be an extremely helpful precedent for this country when potentially negotiating passporting?

[Lord Faulks]

Passporting is extremely important. Negotiations about the UK’s future relationship with the EU have not started and we should not assume their outcome. However, we are acutely aware of how important passporting rights for financial services are everywhere.

[Lord Davies of Oldham (Lab)]

My Lords, the House will be reassured by the Government’s solicitous concern for the dependencies but sometimes it seems to be somewhat one-way traffic. We are concerned about their interests but to what extent do they fulfil their obligations to concern themselves with British interests, particularly on the question of successful taxation of multinational global companies, and the whole issue of their taxation regimes in relation to ours?

[Lord Faulks]

My Lords, in April, the Government secured an agreement with finance centres in the Crown dependencies of Jersey and the Isle of Man—Guernsey is yet to sign—to provide the UK law enforcement and tax authorities with unrestricted and near-real-time access to information on beneficial ownership of companies from a central register. This is part of the Prime Minister’s anti-corruption drive. They are playing their part and it is important that they do so.

[Lord Foulkes of Cumnock (Lab)]

My Lords, is the Minister aware that I have asked repeatedly in this House for a regular air service to start to one of our overseas dependent territories—namely, St Helena—but on each occasion the noble Baroness, Lady Verma, has said, “Come and see officials in my office”? I have been in touch with her office and she says that they cannot see me before October. As a distinguished lawyer and well-respected Minister, will the noble Lord use his good offices to find out how I can get an answer?

[Lord Faulks]

It is very difficult to refuse the noble Lord anything. I will, of course, speak to my ministerial colleague and try to ensure that appropriate meetings take place when they can.

[Lord Empey (UUP)]

My Lords, is the Minister aware that the Channel Islands and the Isle of Man have specific relations with the Irish Republic through our treaties that were developed as part of the peace process in 1998, and that those relationships would need to be dealt with separately, as well as the relationships with the rest of the European Union? Are the Government aware of the significance and sensitivity of these relationships, and that they should be preserved at all costs?

[Lord Faulks]

The noble Lord identifies one of an immensely complicated set of relationships which need to be considered in the renegotiation. I accept that this is a matter that ought to be communicated to those with responsibility for the negotiations.

Article 50

Lord Faulks Excerpts

Monday 11th July 2016 Lords Chamber

[The Minister of State, Ministry of Justice (Lord Faulks) (Con)]

My Lords, I will now repeat a Statement.

“Mr Speaker, the question of how to involve parliamentary discussion around triggering Article 50 has two distinct facets, one legal and the other democratic.

To take the legal considerations first, I am sure everyone will be aware of the debate around whether invoking Article 50 can be done through the royal prerogative, which would not legally require parliamentary approval, or would require an Act of Parliament because it leads, ultimately, to repeal of the European Communities Act 1972.

I will leave the lawyers to their—doubtless—very enjoyable and highly paid disputes, and apart from observing that there are court cases already planned or under way on this issue, so the judge may reach a different view, would simply remark that government lawyers believe it is a royal prerogative issue.

But I hope everyone here will agree that democratic principles should rightly trump legal formalities. The Prime Minister has already said that Parliament will have a role, and it is clearly right that a decision as momentous as this one must be fully debated and discussed in Parliament.

Clearly, the precise format and timing of those debates and discussions will need to be agreed through the normal parliamentary channels. As everyone will understand, I cannot offer any more details today because those discussions have not happened yet. But I will venture a modest prediction in that I strongly doubt they will be confined to a single debate or a single occasion.

There will be many important issues about the timing and the substance of different facets of the negotiations which the Government, the Opposition, the Backbench Business Committee and, I dare say, even you Mr Speaker will feel are important to discussions. But for the details of which topics, on what dates, and the specific wording of the Motions, we shall have to wait and see”.

[Lord Collins of Highbury (Lab)]

My Lords, I thank the Minister for repeating that Answer to an Urgent Question. Last week, we had two days of debate and a QSD on the referendum outcome in which we sought to better understand what will happen next. The result of the referendum is of course clear and must be respected, but as we heard in the other place, it is about not if but how the will of the people is delivered. Whatever version of Brexit we eventually end up with, surely Parliament must be totally engaged in the determination.

Last week, the Minister said that it is for the next Prime Minister to decide when to trigger Article 50 and start the formal and legal process of leaving the EU. We now know who, but when will we know how? The question for all noble Lords in this House is about the process of parliamentary engagement before the triggering of Article 50. What is the Minister’s estimate for meeting the commitment to consult the devolved powers? It will be a lengthy consultation process, bearing in mind the risks, but will it also involve the wider community, including employers and trade unions? If the principle is that Parliament will be engaged, will the Minister please give us more details about what that precisely means?

[Lord Faulks]

The noble Lord asks a number of questions, including some that were posed, as he quite rightly said, to my noble friend Lady Anelay last week during the debate. I can of course advance the position somewhat from the answer that she gave last week, in that we know, as the noble Lord said, who the next Prime Minister is—and I understand that she will become the Prime Minister on Wednesday evening. There is at least some progress there, which I am sure will provide some confidence that the process will be decided rather sooner than might have been the position had there been a contested election for the Conservative leadership.

As to his question in respect of the devolved nations, I know that there have already been preliminary discussions with the various parts of the United Kingdom and their representative Assemblies and Parliament. That will continue, and he is quite right that Brexit, however it finally comes into being, should involve all of the United Kingdom and as many parts—and representative parts of the United Kingdom—as possible.

As to the question of Parliament’s involvement, I fear I can go no further than my noble friend did. It is the Government’s view—as I indicated in the Statement—that the prerogative power does not require parliamentary involvement, but the current Prime Minister made it clear that Parliament will be involved. How and when Parliament will be involved will be a question for the new Prime Minister when she has considered the best way forward.

[Baroness Ludford (LD)]

My Lords, I thank the Minister for his responses. He seemed to make rather a joke of “enjoyable and highly paid” disputes among the lawyers, but surely it is much bigger than that. For a referendum which was fought largely on the issue of parliamentary sovereignty, and on such a major issue as the terms on which this country is supposed to leave the EU, surely it is inconceivable that a decision to trigger Article 50 should not be taken on the basis of a parliamentary decision. After all, Article 50 says that it is up to British constitutional requirements. So this is not about legal formalities; this is fundamentally about democratic principles. We need clarity in a time of huge turbulence. We need to know the evidential basis on which the negotiations will be conducted. We need to know the timing, before and after negotiations, for triggering Article 50. This is about the national interest, not about the convenience of the Conservative Party. I think that we deserve greater respect for Parliament on this decision.

[Lord Faulks]

There is no lack of respect for Parliament; quite the contrary. As to the comment that I appeared to make a joke, the noble Baroness will appreciate that I was simply reading out the Statement that was in the House of Commons. If noble Lords found it amusing, that was a matter for them, not any intention on my part. As to the question of sovereignty, there is a distinction drawn by the noble Lord, Lord Norton, as the noble Baroness may remember, between parliamentary sovereignty and political sovereignty in the Diceyean sense. The Government took the view that it is plainly desirable that Parliament should be involved. Whether there is a strict requirement in law may be a matter that courts will decide in due course.

[Lord Lawson of Blaby (Con)]

My Lords, I am sure we all wish the present Prime Minister well in the next phase of his interesting career, whatever he may choose that to be. Does my noble friend recall that the present Prime Minister made it absolutely clear that, in his view, Article 50 should be triggered without delay following the referendum result? Surely that is sensible given that delay, and the consequent uncertainty, can only be bad for British business and the British economy. Does he not agree that the same applies to the negotiations themselves? They should not take too long, and they can be speeded up by avoiding the nonsense of seeking some special trade agreement with the European Union, which it is clearly not prepared to give—for reasons I fully understand—although it might string us along. Finally, will he not also agree that the same thing applies to the rest of the paraphernalia of the negotiations, which I have not got time to go into now? We need to concentrate on how we are going to conduct ourselves after the Brexit. That is what is most important.

[Lord Faulks]

As for the question of speed, of course, once we trigger the Article 50 process, there is a period of two years which follows—

[Lord Lawson of Blaby]

Not necessarily; up to two years.

[Lord Faulks]

Up to two years is the maximum, as my noble friend quite rightly says. It will be a matter for those conducting the negotiation as to the appropriate speed, although speed should not be the dominant factor. What should be the dominant factor is the best deal that we can obtain for this country. Simply trying to accelerate the process might, depending on how the negotiations continue, be the enemy of that result. We should leave it to the new Prime Minister and those negotiating with her to obtain the best deal for the United Kingdom.

[Lord Morris of Aberavon (Lab)]

My Lords, in principle, I welcome very much the Minister’s statement that political realities trump whatever other legalities. There is an argument here, and I advanced a certain view on the prerogative in last week’s debate on the subject, but I am glad that political realities are now paramount, as they are in the convention of going to war, which was advanced by the late Lord Mayhew and myself as former Attorney-Generals. Indeed, the convention has now been established, in respect of Iraq and Syria, so that matters of such importance can no longer be invoked for the royal prerogative and that the consent of Parliament is required.

[Lord Faulks]

I noted that the noble and learned Lord made that point during the debate on the EU referendum last week, and of course he is right. I hope that I have reflected what this House and indeed the House of Commons would expect by way of parliamentary involvement. Clearly this House, as well as the House of Commons, has much to offer.

[Lord Elystan-Morgan (CB)]

My Lords, will the Minister be so kind as to confirm that, until such time as Article 50 is triggered, nothing of any legal consequence occurs at all, and it does not lie in the gift of the other 27 members of the European Union to take any action at all to seek to force the British Government into that position?

[Lord Faulks]

The noble Lord is perfectly correct, as a matter of law. Of course, there will be a question of what is expedient, in terms of the timetable, and whether pressure would be put on the Government. But he is absolutely right on the legal position.

[Lord Carlile of Berriew (LD)]

I thank the noble Lord for being the third Minister now to say very clearly that Parliament will have a role to play in the Article 50 process. Can he confirm that the role that Parliament plays will be a matter for discussion between the usual channels and that we will be able to have a debate on the real merits of what is proposed so that a proper democratic judgment can be made by Parliament on these matters?

[Lord Faulks]

I cannot, of course, anticipate precisely what the new Prime Minister will decide; if and when she decides on a particular course, I am sure that the way in which parliamentary involvement takes place will include the usual channels.

Prisons: Staff Safety

Lord Faulks Excerpts

Monday 11th July 2016 Lords Chamber

[The Minister of State, Ministry of Justice (Lord Faulks) (Con)]

My Lords, I now wish to repeat a Statement on prison safety. The Statement is as follows.

“A central duty of the Ministry of Justice is security in our prisons. It is imperative that the dedicated professionals who work in our prisons are kept safe. It is also critical that we safeguard the welfare of those in custody who are in the state’s care. It is of profound concern to me that serious assaults against staff in prison have been on the rise recently, particularly in the last 12 months, when there have been 625 incidents.

Those who work in our prisons are idealistic public servants who run the risk of assault and abuse every day but continue in their jobs because they are driven by a noble cause: they want to reform and rehabilitate offenders. Our prisons depend on a network of professionals, including teachers, chaplains, volunteer members of independent monitoring boards and probation officers. But above all our prisons rely on the selfless and courageous work of our prison staff.

I know that members of the Prison Officers’ Association want action to be taken to make their work safer. I understand their frustrations and I am determined to help. Violence in prisons has increased over recent years for a number of reasons. The nature of the offenders currently in custody is one factor; younger offenders who have been involved in gang-related activities pose a particular concern. Another factor is the widespread availability of new psychoactive substances, or NPS, synthetically manufactured drugs, which are more difficult to detect than traditional cannabis and opiates. The former Chief Inspector of Prisons has said that new psychoactive substances are now the most serious threat to the safety and security of our jails. NPS consumption and, indeed, violence in prison are also often a consequence of prisoners’ boredom, frustration and a lack of faith in the future. All of these factors must be, and are being, faced honestly.

There is no single solution to the problem we face, but we are taking significant steps to reform our prisons. To take account of our changing prison population, more than 2,800 new prison officers have been recruited since January 2015, a net increase of 530. To keep them safer, we are deploying body-worn cameras as additional protection for staff. In May, we outlawed new psychoactive substances and dramatically reduced the opportunities for easy profits to be made from their trade. In June, I allocated an extra £10 million in new funding for prison safety, and the money has gone to the governors of those prisons with the biggest safety challenges.

All these steps will, I believe, help improve safety but there are two more critical points to make. First, I stress that my department’s door will be open to staff and their representatives to ensure we work collaboratively together to improve conditions for all in our prisons. Secondly, it is because I have seen for myself how important it is to change our prisons for the better that I have initiated a major reform programme. We will be replacing ageing and ineffective prisons with new establishments designed to foster rehabilitation. We will give governors greater scope to design regimes that encourage purposeful activity and make prisons calmer and more orderly places, and we will ensure that prisoners are more effectively incentivised to turn their lives around. As we press ahead with this reform programme, I am confident we can ensure that our prisons can become what they should always be: safe and secure places of redemption and rehabilitation”.

My Lords, that concludes the Statement.

[Lord Beecham (Lab)]

The Question asked in the House of Commons related to the safety of staff in prisons following walk-outs and protests last week by between 5,000 and 6,000 officers protesting about the rising tide of violence threatening both staff and prisoners. Assaults on prison officers reached 5,500 last year, an increase of 36%, while last year there were 32,000 incidents of self-harm, up by 74% since 2010, a shockingly high number given that the prison population is around 85,000. There were 100 suicides in 2015-16.

Is it not clear that our prisons are both chronically overcrowded and dangerously understaffed? The Howard League for Penal Reform has chronicled the deteriorating position in a worrying number of prisons. In Lewes, for example, 50% of its 640 inmates were being locked in their cells during the working day, some of them for as much as 23 hours a day. In February, staff at Wetherby young offender institution refused to let 300 prisoners out of their cells for a day because of rising violence. We recently had a Statement on the dreadful conditions in Wandsworth prison in which assurances, albeit of a rather vague character, were given about rectifying the situation revealed in a television programme. The Lord Chancellor talks a good game about improving conditions and replacing old and unsuitable prisons, but then he is the Lord Chancellor who set out on the road to his political Damascus in support of Boris Johnson, only to recant and discover at the very last minute that if Boris was the answer he had been asking the wrong question for weeks.

When will the Lord Chancellor, or whoever succeeds him—I rather hope it might be the noble Lord, Lord Faulks—recognise that the crisis in our prisons cannot sensibly be tackled without a significant reduction in the number of prisoners and a significant increase in the number of properly trained staff with adequate support in relation to issues of mental health? Will he now revisit his decision to spend just £10 million to increase safety, approximating to around all of £125 per head of the prison population, which is not of course, a static number?

Is it not time for another high-powered review of the state of the service, along the lines of the inquiry into Strangeways conducted by the noble and learned Lord, Lord Woolf, 26 years ago, but extended to the entire custodial system?

[Lord Faulks]

I am grateful to the noble Lord for his thorough criticism and the questions that he raises about the state of our prisons and the safety of staff and indeed of other prisoners. We freely acknowledge that there is a problem and that we have to do something about it. It is not a problem that is easily solved and, as the Statement indicated, there are a number of factors. There is an increase in the number of violent offenders in our prisons. Substantial problems have been caused as a result of the use of psychoactive substances. It is clearly far less than desirable that prisoners should be locked in their cells for long periods and not engaged in purposeful activity. The Secretary of State clearly wants to involve as many people as possible and as many organisations as possible in trying to improve the situation. That was why he invited the BBC into Wormwood Scrubs to see the conditions there.

There has been new funding of £10 million for prison safety, allocated as appropriate, and that will be supplemented by £2.9 million from existing budgets so that a significant number of governors—those facing the greatest challenges—will have an opportunity to improve safety levels. There is also £1.3 billion, which the Secretary of State secured from the Chancellor of the Exchequer, to modernise the prison estate. That will be a long-term project, but one which the Secretary of State is most anxious to help with.

[Lord Dholakia (LD)]

My Lords, our prisons are overcrowded and understaffed, with the result that prisons are now less safe and less secure than ever before. Does the Minister accept that the root cause of the problem, as has just been mentioned, is the unacceptably high level of the prison population? This makes some of our prisons almost unmanageable. Now that Mr Gove has fewer things on his mind, could we have clarity about how he intends to reduce the numbers so that the prisons’ objective of rehabilitation is met?

[Lord Faulks]

The noble Lord, whose interest in these matters is well understood and appreciated by the House, points to the prison population. Of course, the number of people in prison is a result of decisions by judges, passing sentences that they consider appropriate for those particular offences. In my experience, judges do not send an offender to prison unless no other appropriate means of dealing with the offender can be found.

The number of people in prison clearly presents challenges to the staff. But there are other factors, as I have already indicated, which can cause this escalation of violence. We have a widespread strategy under the violence reduction project to deal with this, including the use of body-worn cameras, a violence diagnostic tool and a number of other different efforts to try to identify where pressure points are in terms of violence and how best to combat them.

[Viscount Hailsham (Con)]

My Lords, I again emphasise the importance of meaningful out-of-cell activity and the provision of appropriate courses so that prisoners who are there for indeterminate sentences can satisfy the criteria for their release.

[Lord Faulks]

My noble friend makes a good point. Indeed, the Secretary of State has placed and will place increasing emphasis on education, as well as courses that enable prisoners to acquire practical skills which will be of particular help outside. We very much welcome the involvement of a number of employers employing prisoners while they are still in prison, which then leads to their employment afterwards. But my noble friend is quite right.

[Lord Ramsbotham (CB)]

My Lords, I refer to one sentence in the Statement on the number of staff being recruited. It says that 2,800 new officers have been recruited and mentions a net increase of 530. I ask the Minister, 530 from what? If it is an increase of only 530, this shows that the number of staff must have been run down disastrously before 2015, because this is a negligible increase.

[Lord Faulks]

I cannot, from the Dispatch Box, give the noble Lord a detailed account of why people left the Prison Service. Of course, he is right that that indicates that quite a number of them did leave, perhaps for reasons of retirement or simply a change in their job satisfaction. But I will endeavour to give him a more detailed analysis of those numbers.

[Lord Beith (LD)]

The Minister has recognised that the present numbers are a barrier to the Government achieving the rehabilitation objectives. However, will they not remain high if we continue to regard the length of a prison sentence as the only measure of the seriousness of an offence and until we put sufficient resources into alternative punishments?

[Lord Faulks]

With great respect to the noble Lord, that is a little unfair. The judges will of course determine the length of the sentence by reference to a whole host of factors: the seriousness of the offence, the history of the offender, and the best way both to protect society but also to rehabilitate. I know that judges always consider alternatives and that sentencing prisoners to prison will only be the last resort; very often judges will say, “I will sentence you to the least possible sentence that I am permitted”. Therefore the judges do not, as it were, oversentence.

[Baroness Butler-Sloss (CB)]

My Lords, I happen to know someone who is in prison at the moment, so I will pick up on, as the Minister put it, the frustration of being locked in a cell for 23 hours a day. What will be done about that?

[Lord Faulks]

Clearly, the prison governor at each prison will have to focus his or her attention on that. As the noble and learned Baroness will know, more autonomy will be given to prison governors, and one of the main objectives of that is to ensure that, so far as possible, prisoners have a greater time out of their cell engaged in purposeful activity or on courses or otherwise, not simply locked up in their cell.

[Lord Triesman (Lab)]

My Lords, some years ago I had the opportunity to serve on the Home Office prison education committee, and I was always impressed by the content and variety of the courses on offer. However, it was said at the time that it was very difficult to get people to the courses because there were too few prison staff to get them there, and because they could not guarantee the security of the teachers, who largely came in from the further education sector, given that the nature of the crimes for which people were imprisoned included more violent crimes. I hope the Minister will forgive me if I say that, although that was many years ago, essentially we are being provided with the same account now. It does not seem that we have moved on enormously. Can he describe some of the initiatives that will reflect the intention to increase the amount of prison education and the rehabilitation that goes with it?

[Lord Faulks]

The noble Lord is of course right that the challenges are not entirely new and that the logistics of ensuring that prisoners are taken to courses and to facilities where they can obtain education will always be a challenge, particularly with a large prison population. There was a report by Dame Sally Coates into the education of prisoners. That they should be given education is clearly very much at the heart of the advantage we believe can be obtained by rehabilitation, and it will be up to prison governors in a particular prison to ensure that this happens. They will be judged by the delivery of this education. By giving greater autonomy to prison governors it will be much less easy for them simply to say, “This is all too difficult”.

[Lord Trefgarne (Con)]

My Lords, is my noble friend satisfied—

Magistrates

Lord Faulks Excerpts

Thursday 7th July 2016 Lords Chamber

[Baroness Seccombe]

To ask Her Majesty’s Government what assessment they have made of the Magistrates’ Association’s request for an increase in the maximum penalty magistrates can impose from six to 12 months.

[The Minister of State, Ministry of Justice (Lord Faulks) (Con)]

My Lords, we are committed to ensuring that the magistracy remains at the centre of our justice system. We are actively considering the possibility of increasing the sentencing powers for magistrates as one way in which we can make sure that this is the case.

[Baroness Seccombe (Con)]

My Lords, that is indeed good news because in the Magistrates’ Association there is a well-trained workforce ready and able to take on that extra responsibility. That would certainly help with delays in the senior courts. Delays are the bugbear of any court, so how should courts assess a situation in which a defendant pleads not guilty in the magistrates’ court, the case is prepared on that basis and yet on the first day of the Crown Court appearance, as soon he can, he changes his plea to guilty? This is extremely expensive for the public purse and, more importantly, causes great distress to victims and other people involved in those cases.

[Lord Faulks]

My noble friend makes an important point and, with her experience of the magistracy, a pertinent one. We very much respect the contribution that magistrates make to our criminal justice system. Some 90% of criminal cases in the justice system are dealt with by magistrates. As to her specific point, defendants are always encouraged to plead guilty— where appropriate, of course—at the earliest possible opportunity, and judges and magistrates very much bear in mind that, although there is a temptation for brinkmanship, the best way to show mitigation and reduce your sentence is to plead guilty at an early stage and save all the costs that my noble friend referred to.

[Lord Beecham (Lab)]

My Lords, on 23 December, the Ministry of Justice declined a freedom of information request on the modelling of proposals to increase the sentencing powers of magistrates, but admitted that it had carried out such modelling. On 7 June, the Minister, Mr Vara, told the Justice Select Committee that he was not aware of any such modelling. Will the Government now disclose what assessment has been made of the impact on prison numbers of the proposed changes? If they proceed with the proposal, when will they review the effect of that change?

[Lord Faulks]

The question of appropriate sentencing powers is a difficult one. It goes back to 1952, when the magistrates were first given their powers. There are different views on whether it is appropriate to increase the sentencing powers. For example, the Prison Reform Trust and the Howard League think there ought to be a decrease in sentencing powers. There is a great deal of thought being carried out on this. I am not currently aware of any modelling and I cannot go beyond the answer given, but I will take that back to the department and bear in mind the question posed by the noble Lord.

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

My Lords, this change has been on the statute book since 2003. The Magistrates’ Association argues strongly that retaining more cases in the magistrates’ court and reducing the number of cases committed to the Crown Court for sentence would cut delays, as the noble Baroness, Lady Seccombe, said, save some £40 million and, importantly, make justice more local. Do the Government see any persuasive arguments against now implementing the change?

[Lord Faulks]

The noble Lord is right; it was as long ago as 2003 that this potential increase in sentence was statutorily allowed. A number of factors have been taken into account by successive Governments. He makes an important point about cost savings. He is quite right; it is, of course, much cheaper to use magistrates than go to the Crown Court and, if they have appropriate powers, it is more likely that magistrates will deal with the matter. We have to bear in mind—I think the noble Lord, Lord Beecham, directed his question towards this matter—the possible effect on the prison population and how magistrates will feel able, or want, to use any increase in powers. It is a difficult question.

[Baroness Berridge (Con)]

My Lords, my noble friend mentioned the incredibly high level of training and expertise that magistrates have. When looking at this Question in relation to today’s first Question, of course the overwhelming majority of motoring offences are also dealt with in the magistrates’ court. On training, will my noble friend the Minister please outline what plans the Government have to ensure that when driverless cars become a reality on our roads, with the potentially complex issues to do with the programming of those cars in the eventuality of an accident, we will still have the expertise in the magistrates’ courts to ensure that the overwhelming majority of such cases are tried in those courts?

[Lord Faulks]

My noble friend makes a good point. The senior presiding judge and HMCTS review the needs of the magistrates’ courts annually, including training for district judges and magistrates. All interested parties are consulted such as local Bench chairmen and local branches of the Magistrates’ Association. The training would include any new potential offences or situations identified through various routes. Clearly, they should include a new concept such as that to which my noble friend refers.

[Baroness McIntosh of Hudnall (Lab)]

Can the Minister confirm that people who receive short custodial sentences of, say, up to 12 months are on the whole least likely to benefit from any of the educational or other potentially rehabilitative resources that are available in the prison system in a very limited way? Therefore, going back to the question from my noble friend Lord Beecham, is it at all useful to run the risk that the number of such sentences will increase?

[Lord Faulks]

The noble Baroness puts her finger on one of the factors which makes it very difficult to decide this quite long-standing issue. Of course, she is right that short sentences are difficult in terms of management for the purposes of rehabilitation, giving training, purposeful activity and the like. Prison governors, who will be given more autonomy, will find it difficult to get any meaningful interaction with a prisoner if the latter is there for a short time. However, it is a matter for magistrates what they think the appropriate sentence for a particular offence is.

[Lord Smith of Hindhead (Con)]

My Lords, I am sure many noble Lords will share my concern about the prevalence of some magistrates permitting criminals to take a break from their tags to go on pre-booked holidays, stag weekends or other social occasions outside the limitations of their curfews. On 25 November last year in the other place, when addressing a Question on this matter, the Prime Minister said:

“A punishment is a punishment, a tag is a tag”.—[Official Report, Commons, 25/11/15; col. 1355.]

Can the Minister update the House on recent talks with the Magistrates’ Association to help close this loophole?

[Lord Faulks]

I am aware of some of the cases to which my noble friend refers. Of course, we as government cannot interfere with the discretion of judges and magistrates in how they sentence and implement sentences. Every single case must be considered individually. Some of those decisions seem somewhat surprising on the face of it. The Magistrates’ Association and all interested bodies will no doubt have that very much in mind in looking forward.

Motoring Offences Review

Lord Faulks Excerpts

Thursday 7th July 2016 Lords Chamber

[Lord Berkeley]

To ask Her Majesty’s Government why their review of motoring offences and penalties announced two years ago has not started.

[The Minister of State, Ministry of Justice (Lord Faulks) (Con)]

My Lords, the review of offences and penalties relating to driving is taking place within consideration of a wider sentencing framework. We intend to commence a public consultation before the end of the year.

[Lord Berkeley (Lab)]

I am grateful to the Minister for that Answer. I remind him, if he does not know already, that in May 2014—that is over two years ago—the then Secretary of State, Chris Grayling, announced,

“a full review of all driving offences and penalties … over the next few months … expected to be implemented in early 2015”.

Twenty-five months later—stretching the definition of a “few months” a little bit—the Minister says that the review has started, but when will there be public consultation, for how long and when will the Government publish something that we can read? I know that we have a caretaker Government at the moment but, unless they were going to use European legislation, this kind of thing could go on.

[Lord Faulks]

The noble Lord makes a fair point about the delay. We do, however, intend to move to a public consultation before the end of the year, with a view to bringing forward any legislative changes that are necessary later in this Session.

[Baroness Barker (LD)]

My Lords, two years ago the Justice Secretary said that this review was necessary in order to make our roads safer. Is that still the purpose of the review, and will it apply to careless drivers as much as to other road users?

[Lord Faulks]

This is a difficult area. The distinction between careless driving and dangerous driving, although long established, does not please everybody. There are always difficult balances between assessing the culpability of driving and the effect of driving. Relatively minor episodes of careless driving can cause serious injury; very dangerous driving can sometimes not cause much in the way of harm. It is a difficult matter. It is also important to establish some proper correlation between the sentencing for driving offences and sentences, say, for dishonesty or assault cases and that sort of thing. It is a difficult matter, but we are proceeding.

[Lord Beecham]

My Lords, has the abolition of the requirement to display a tax disc made enforcement of motoring offences more difficult? Have the Government made any assessment of the loss of revenue as a result of that change?

[Lord Faulks]

I am not aware of any assessment of the loss of revenue. I will certainly write to the noble Lord if such information is available. But it is of course perfectly possible to trace by the individual registration number, through computers, exactly who has the car and who should have the car.

[Baroness Jones of Moulsecoomb (GP)]

My Lords, will the Minister tell us whether the concept of the driver’s duty of care towards vulnerable road users will also be included in the consultation?

[Lord Faulks]

The question of vulnerable road users—cyclists, pedestrians and the like—is something that courts should and do take into consideration when sentencing anyway, but it is a matter on which consultation will evoke appropriate responses. The noble Baroness makes an important point.

[Lord Robathan (Con)]

My Lords, will my noble friend the Minister look particularly in this review at the prosecution of those who park in the so-called boxes for advance stop lines for cyclists? As a cyclist, I find that the lines are ignored extremely often and I do not think that there have been any prosecutions at all.

[Lord Faulks]

I am not aware of any prosecutions. My noble friend makes an important point. Safety for cyclists is a priority for the Government, and we have been investing a considerable amount in this. The plan is to invest £300 million in cycling and walking over the next five years, including £100 million from the Highways Agency to improve the existing infrastructure for cyclists on the strategic roads network.

[Baroness McIntosh of Pickering (Con)]

My Lords, will my noble friend agree to include cycling offences among motoring offences? Will he review the penalties for cyclists using pavements? Why are they not being apprehended and brought to justice?

[Lord Faulks]

I am sure that a number of noble Lords will be sympathetic with that observation, and I agree with my noble friend. The answer is that the consultation will provide the basis of the review that we have carried out and it will invite all sorts of observations which will be most valuable.

[Baroness Randerson (LD)]

My Lords, Part 6 of the Traffic Management Act 2004 covers the civil enforcement of moving traffic offences, but the Government have never introduced the necessary secondary legislation. London and Welsh local authorities already have these powers, and they find them very effective at reducing congestion and enabling buses to run smoothly. Can the Minister explain why the Government are so unwilling to give local authorities the powers they need to do the job and whether they have any plans to do so in the future?

[Lord Faulks]

I am afraid that I do not have an instant answer to the question put by the noble Baroness, but I will look into the matter and write to her about it.

[Lord Whitty (Lab)]

My Lords, I declare an interest as chair of the Road Safety Foundation. It is all very well having clearly defined offences and sentences, but all of them have to be enforced. In that context, will the noble Lord dissociate the Government from the populist demand for switching off and removing speed cameras, which have actually contributed substantially to improved driver behaviour and to saving lives?

[Lord Faulks]

The noble Lord makes an important point, because enforcement is critical; simply having an offence and a penalty is not enough. Of course, these issues are for local authorities with budget restraints, but nevertheless the point is an important one.

[The Countess of Mar (CB)]

My Lords, what is the position of two cyclists who crash into each other head-on in a cycle lane, as happened in London on Monday?

[Lord Faulks]

Not a happy position is probably the case, I think. Of course there are all sorts of potential offences that they may or may not have committed, depending on the facts of the case, and no doubt they might even consider some kind of civil action, depending on the conduct of the respective cyclists.

[Lord Hamilton of Epsom (Con)]

My Lords, am I right that road deaths have been falling pretty steadily over the past few years, and will this be taken into account in the review?

[Lord Faulks]

My noble friend is quite right that road deaths have been falling very considerably, although interestingly whiplash injuries are increasing, notwithstanding not only the decline in road deaths but the decline in all forms of accidents in cars. I am glad to say also that the number of cyclists who have been killed or injured has also decreased. However, we are always conscious of the importance of preserving safety, and of course we will take the statistics into account.