Sentencing Bill

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

Report stage
Tuesday 6th January 2026 Lords Chamber

[Lord Garnier (Con)]

My Lords, in the spirit of friendship, I acknowledge the charming but highly persuasive way in which my noble friend advanced her amendment, which I am only too pleased to support, and recognise the support of the noble Lord, Lord Ponsonby, who is also my friend. I will embarrass him further by saying that he is my very distant kinsman, which will completely ruin his credibility for anything further in his parliamentary life; it is a cross that he will have to bear.

The noble Lord and my noble friend bring to the Chamber years of experience as sitting and sentencing magistrates. Very often in England and Wales, it is magistrates who deal with youth offenders. We should listen to what they have to say and to their experience. I very much to support all that they have said. I urge the Government to pay close attention to what has been said and come forward with proposals of their own, if they do not accept what my noble friend advanced in her amendment, so that we can get rid of this injustice, which is, as the noble Lord said, a most extraordinary anomaly.

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

My Lords, I will speak to my Amendments 93 and 94. Amendment 93 is concerned with the impact of changes in the law on sentences that are currently being served under the law that was in force preceding the change. In other words, offenders were sentenced under a law that has been altered. The amendment calls for reports to be provided every three years, with a view to such changes in the law leaving defendants suffering from injustice.

Amendment 94 concerns the direct effect of such changes in the law on sentences that are currently being served or that have been imposed. Proposed new subsection (1)(a) in Amendment 94 concerns cases where the offence itself for which the sentence was imposed has been abolished, and proposed new subsection (1)(b) in Amendment 94 concerns a case where the sentence has been materially altered.

The amendment would enable a person serving a sentence for an offence that had been abolished, or where the sentence had been altered, to seek a review of the case of the sentence that is currently being served. On such a review, the sentence originally imposed could be quashed, or there could be a resentencing.

In practice, of course, Amendment 94 would come into play only where either the offence had been abolished or the available sentence had been reduced, because one cannot imagine an offender seeking a change of sentence where the available sentence had been increased.

Underlying both amendments is a concern that changes in the law would have the effect that an offender’s sentence would not have been imposed or would have been less severe had the law at the time of sentencing been the reformed law rather than the law under which the offender was sentenced, and that such changes should take effect to the benefit of the offender who would not be at such risk now.

I would suggest that it is a matter of simple justice that changes in the law which would have resulted in an offender serving a sentence less severe, or not being convicted of any offence, should have the benefit of the change in the law that pertained at the time of sentencing, so that a review would be appropriate.

Employment Rights Bill

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

Report stage
Wednesday 23rd July 2025 Lords Chamber

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

There might be others. Then again, there might not. I quite accept that a Secretary of State would have to weigh up very carefully the competing considerations in favour of the public interest in having a point determined against the private interest of the worker concerned in not being involved in any way in litigation. Of course, the worker concerned does not have to be involved; proceedings are brought—this is a point I will come on to in a moment—as if he were involved, but the point may need determination in any case.

I think I have covered the point about the public interest, which I suspect is the argument that we will hear from the Government. Nevertheless, and on a point that the noble Lord, Lord Carter, made, in a case where Section 113 is invoked, I suggest that it would be utterly wrong for such a worker to be exposed to risk by the Secretary of State proceeding with such a case. I have dealt with the point about anonymity and circumscribing publicity, and I suggest that this must be addressed before this clause becomes law.

[Lord Garnier (Con)]

I am sorry for interrupting the noble Lord’s developing argument. He talks about anonymity; that is presumably so that the individual can have his case subsumed by the Government without his name being known. Is the noble Lord then going on to suggest that he will have to give evidence behind a screen, or using the other witness protection measures that we use in, for example, cases of rape, so that the complainant is not seen? Has he thought through to the end the practical consequences of this anonymity argument?

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

Such protections as would be afforded would depend on the individual case and on such measures as the tribunal thought appropriate; they might indeed include anonymity or witness protection in an extreme case. I do not believe that that is likely, but I do believe that the right of the worker to some sort of privacy, in a case in which he positively did not want to be identified, would have to be protected.

Going on to my point about the risk in costs, I suggest that it would be simply unconscionable if the decision of the Secretary of the State to take proceedings could expose the worker to a risk in costs. There is no protection in the Bill for a worker on this point; indeed, in subsections (3) and (6) in particular, there is the clear suggestion that there would be a risk in costs for an unwilling worker claimant. Specifically, subsection (3) would provide that, if the Secretary of State brings such proceedings, they are

“to be proceeded with as if they had been brought by the worker”,

and that needs to be addressed. As the noble Lord, Lord Carter, pointed out, subsection (6) will provide that:

“The Secretary of State is not liable to any worker for anything done (or omitted to be done) in, or in connection with, the discharge or purported discharge of the Secretary of State’s functions by virtue of this section”.


That, in my submission, renders the worker vulnerable to an order in costs and there ought to be an indemnity against any such order. I accept that there is not one; the question is therefore whether that can be addressed by the Government. It is not a question that leads to a stand part decision that the clause should be left out of the Bill altogether.

We would of course hope that no employment tribunal would make a costs order against a worker in such circumstances, but this House should not proceed on the basis of hope alone; the possibility remains, particularly if the tribunal were to take a dim view of the worker’s conduct. That, we should remember, may be exactly the conduct that sensibly dissuaded the worker from launching proceedings in the first place.

I invite the Government to bring forward an amendment, hopefully by agreement at Third Reading, whereby protection from this risk in costs could be given to a worker, either by way of indemnity by the Secretary of State or by a prohibition on a costs order. I also urge the Government to look at the other protections that the worker might have. Alternatively, the Government might consider giving solid assurances to meet this point. I give way to the noble Lord.