Crime and Policing Bill

Debate between Lord Garnier and Lord Ponsonby of Shulbrede

Committee stage
Thursday 5th February 2026 Lords Chamber

[Lord Garnier (Con)]

My Lords, my Amendment 486, co-signed by the noble Lords, Lord Ponsonby of Shulbrede and Lord Berkeley of Knighton, and the noble Baroness, Lady Fox of Buckley, is a probing amendment designed to enable the Committee to consider the criminal law on joint enterprise and the Government to tell us how and when they intend to reform this troubling aspect of our law. The noble Lord, Lord Berkeley, regrets that he cannot be here this afternoon. He had wanted to refer to the law of Scotland, which I will not—simply because it would be a mistake for me to venture into that dangerous water. The noble Lord, Lord Ponsonby, after having listened to what I have to say and endured my speech, might regret that he could be here, but I am very grateful to him for being here.

The instigator of this amendment is Kim Johnson, Member of Parliament. She presented a Private Member’s Bill to this effect in the other place in February 2024, and initiated a debate on joint enterprise through her Amendment 13 to this Bill on Report in the other place in June 2025. Amendment 486 is framed in the same terms, and its supporters come from across your Lordships’ House. Legal academics and practitioners outside Parliament have argued for it as well.

Section 8 of the Accessories and Abettors Act 1861, if changed by my amendment, would provide that “Whosoever shall”—and here I add the amending words—

“by making a significant contribution to its commission”,

and would continue,

“aid, abet, counsel, or procure the commission of any indictable offence, whether the same be an offence at common law or by virtue of any Act passed or to be passed, shall be liable to be tried, indicted, and punished as a principal offender”.

I believe that the noble Lord, Lord Marks, will address the corresponding need to amend the Magistrates’ Court Act 1980 later this evening.

The last Government rejected this proposal because they said it would be too difficult for the prosecution to prove a significant contribution. I disagree. This amendment may not provide the best or only answer, but the intention is to bring to Parliament’s and the Government’s urgent attention the need for clarity, and therefore justice, in an aspect of our criminal law that has, over the years, led to confusion and injustice, as our courts have wrestled with how to deal with defendants who agree to commit one crime but who go on separately or together to commit another one. Over the years, that has led to a version of the law of joint enterprise that has allowed several people to be convicted of a crime, usually murder or manslaughter, even if only one person committed the fatal act. In some cases, there have been demonstrably unjust convictions.

Let me mention a few recent developments. The first is the combined Supreme Court and Privy Council decision in two appeals, Jogee and Ruddock, from England and Jamaica respectively, heard in 2016. If I may, I will refer to those two appeals as Jogee. The question of law relating to the liability of a secondary party was whether the common law took a wrong turning in two cases, one called Chan Wing-Siu, in 1985, and the other the Crown v Powell and English, in 1999.

The Jogee appeals concerned a subset of the law of secondary liability for a crime relating to the person who did not himself forge the document, fire the gun or stab the victim—the person who did so is the principal—but who is said to have encouraged or assisted the principal to do so. There is no question that persons who are indeed together responsible for a crime are all guilty of it, whether as principals or secondary parties. Sometimes it is not possible to determine exactly whose hand performed the vital act, but this does not matter, so long as it is proved that each defendant either did it himself or intentionally assisted or encouraged it.

Jogee did not affect that rule. In Jogee, the court was considering a narrower subpart concerning secondary parties who had engaged with one or more others in a criminal venture to commit crime A but, in doing so, the principal had committed a second crime, crime B. In many of the reported cases, crime B is murder committed in the course of some other criminal venture, but this aspect of the law is not confined to cases of homicide or even to cases of violence. The question in Jogee is the mental element that the law requires of the secondary party. This narrower area of secondary responsibility has sometimes been labelled joint enterprise. To speak of a joint enterprise is simply to say that two or more people were engaged in a crime together. That, however, does not identify what mental element must be shown in the secondary party. The narrower area of secondary responsibility in question, where crime B is committed during the course of crime A, has been in the past more precisely called parasitic accessory liability—a phrase that I have to accept does not exactly trip off the tongue.

The two cases of Chan Wing-Siu and Powell held that, in the kind of situation described, the mental element required of the secondary party is simply that he foresaw the possibility that the principal might commit crime B. If the secondary party did foresee this, the case is treated as continued participation in crime A—not simply as evidence that he intended to assist crime B but as automatic authorisation of it. So the secondary party was guilty under this rule, even if he did not intend to assist crime B at all. This set a lower test for the secondary party than for the principal, who will be guilty of crime B only if he has the necessary mental element for that crime, which is usually intent. That was in contrast to the usual rule for secondary parties, which is that the mental element is an intention to assist or encourage the principal to commit the crime.

Jogee held that Chan Wing-Siu and the Crown v Powell had taken a wrong turning in their reasoning. The decisions departed from the well-established rule that the mental element required of a secondary party is an intention to assist or encourage the principal to commit the crime. They also advanced arguments based on the need that co-adventurers in crimes that result in death should not escape conviction without considering whether the secondary parties would generally be guilty of manslaughter in any event. The Supreme Court decided that the law must be set back to the correct footing that stood before Chan Wing-Siu.

The mental element for secondary liability is the intention to assist or encourage the crime. Sometimes the encouragement or assistance is given to a specific crime and sometimes to a range of crimes, one of which is committed. Either will suffice. Sometimes the encouragement or assistance involves an agreement between the parties, but, in other cases, it takes the form of more or less spontaneous joining in a criminal enterprise. Again, either will suffice.

Intention to assist is not the same as desiring the crime to be committed. On the contrary, the intention to assist may sometimes be conditional, in the sense that the secondary party hopes that the further crime will not be necessary. If he nevertheless gives his intentional assistance on the basis that it may be committed if the necessity for it arises, he will be guilty. In many cases, the intention to assist will be coterminous with the intention that crime B be committed, but there may be some where it exists without that latter intention.

In most cases, it will remain relevant to inquire whether the principal and secondary party shared a common criminal purpose, for often this will demonstrate the secondary party’s intention to assist. This will be a matter of fact for the jury after careful direction from the judge. The error, Jogee says, was to treat foresight of crime B as automatic authorisation of it, whereas the correct rule is that foresight is simply evidence—albeit sometimes strong evidence—of intent to assist or encourage. It is a question for the jury, in every case, whether the intention to assist or encourage is shown. The correct rule, therefore, is that foresight is simply evidence—albeit sometimes strong evidence, as I say—of intent to assist or encourage, which is the proper mental element for establishing secondary liability.

The story does not end there, I am sorry to say—for those noble Lords who are still with me. For those convicted post Jogee, there is now a concern in the minds of some academics and practitioners that the Court of Appeal has subsequently lowered the conduct element and removed causation once again to widen liability through another error of law.

This criticism follows two cases in the Court of Appeal in 2021 and 2023, one called Rowe and the other called Hussain, where it was held—if I have this right—that, save for procuring a crime, conduct is enough, causation is not necessary and contribution is implicit and need not be measurable. The consequence is that the statutory language of “aid, abet, counsel or procure” is lost, and liability through complicity does not require proof that the accused person made a significant contribution to the crime in which he is alleged to have been complicit. Without a significant contribution, an alleged accomplice is not meaningfully involved in the principal’s crime.

Professor Matthew Dyson in his paper “The Contribution of Complicity”, published in the Journal of Criminal Law in 2022, suggests that judges should direct juries on contribution. This would retain the necessary derivative nature of complicity. Dr Felicity Gerry KC, who appeared for one of the defendants in Hussain, argues that the result of Dyson’s research

“is a much safer legal framework to ensure only those who make a significant contribution to the crime are at risk of conviction. The current approach fails to make it clear that there must be some nexus between the alleged acts of assistance and encouragement and the principal’s commission of the crime. Dr Beatrice Krebs has explained that without further guidance on the level of contribution made by the accessory’s action towards the principal’s commission of the offence, the jury has no tool to distinguish between an accessory who was merely present and one who by their presence has assisted or encouraged. Put simply—the decision in Hussain leaves a real risk of convicting people who make no significant contribution to the crime. The fundamental problem both Dyson and Krebs identify is the Court of Appeal focus on the accessory’s conduct rather than proof of the contribution to the principal’s commission of the offence”.

Dyson’s proposed test of a significant contribution, which I import into Amendment 486, is a measure that could have tightened the conduct element in complicity, just as Jogee envisaged greater care in fault.

Dyson argued that Jogee passed over the important issue of what contribution an accomplice needs to make to a principal’s crime. He submitted that

“English law is too willing to assume that such a contribution has occurred and has little detailed law to test for it”

and that a more rigorous approach is needed. He suggested a two-part approach:

“to be liable for assisting or encouraging a crime, the accomplice must make a substantial contribution to the principal’s commission of it; to be liable for procuring the principal’s crime, the accomplice must bring the crime about”.

Whether the accomplice’s assistance or encouragement had made the necessary substantial contribution would be a question for the jury. This approach, he argues, would be consistent with what was said in Jogee about overwhelming supervening acts. Where such an issue arose, a jury would first have to decide what level of contribution the assistance or encouragement of the accomplice had made and would then have to decide whether that had persisted to the point when the principal committed the offence.

The Court of Appeal rejected that proposition in Hussain, so, in addition to all those wrongly convicted before Jogee, there is a growing cohort of prisoners whose contribution to a crime has never meaningfully been measured. With no minimum threshold for the conduct element and, in murder, the consequence of lengthy tariffs on life sentences, this latest approach to joint enterprise contributes to overcriminalisation and overincarceration. Prison overcrowding and perceived injustice are, I suggest, a toxic mix. Absent a further case before the Supreme Court, we look to the Law Commission and the Government to find a way through.

In December 2024, the Law Commission announced a review of homicide and the sentencing framework for murder. It will, among other things, examine the law on joint enterprise following the Supreme Court ruling in Jogee. I suggest that the published timetable for the review is too long: opened in August 2025, with two separately focused consultation papers to be published in 2026 and 2027, it will not report until 2028. Would it not be possible to conclude the proposed review with two separate, if linked, reports—first, much earlier, on the offences, and, secondly, on defences and sentencing—rather than waiting until 2028 to publish one final report? Depending on what is in the legislative programme for 2028-30 and bearing in mind the delays caused by a general election and changing political priorities, it could be well over two years before anything is done.

I know from my own experience in government and opposition in Parliament since 1992 that Governments are reluctant to do anything that looks like being weak on crime, especially violent crime, but getting the law on joint enterprise understood and settled in statute is not a sign of weakness but evidence of the search for justice. I beg to move.

[Lord Ponsonby of Shulbrede (Lab)]

My Lords, I thank the noble and learned Lord, Lord Garnier, for introducing this matter so fully. He started by saying that this was a troubling aspect of the law. I want to talk about how troubling it is and to reflect on the academic research which underpins many of the comments he made. I was a youth magistrate for many years, and my experience is underpinned by the academic research which I will refer to.

Sentencing Bill

Debate between Lord Garnier and Lord Ponsonby of Shulbrede

Report stage
Tuesday 6th January 2026 Lords Chamber

[Lord Ponsonby of Shulbrede (Lab)]

My Lords, I am very pleased to support my friend, the noble Baroness, Lady Sater. We sat together as youth magistrates for many years at the old Hammersmith youth court. She has fully set out what must be an anomaly. I have not heard any explanation in defence of the current situation. She gave the example of two offenders who have committed the same offence at the same time but, because of some geographical issue, were sentenced at different times on either side of their 18th birthday, with different outcomes. They would not have had access to referral orders or youth rehabilitation orders, which are, in our experience, better at rehabilitating young people.

There would also be the problem with the DBS checks. If somebody was subsequently to get or apply for a job, they would get different results in the DBS check depending on whether they were sentenced before or after their 18th birthday. This is an anomaly. I look forward to what my noble friend can say, because this is part of a wider look at how youth DBS records are kept. Nevertheless, this example is a true anomaly. I hope that the Government can be as sympathetic as possible to this amendment.

[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.

Criminal Cases Review Commission

Debate between Lord Garnier and Lord Ponsonby of Shulbrede

Tuesday 20th May 2025 Lords Chamber

[Lord Ponsonby of Shulbrede (Lab)]

The Government are actively looking into the concerns raised about the compensation cap and will provide an update on that matter in due course. We would encourage Mr Sullivan to make an application to the miscarriage of justice application service, and we will prioritise his application because of the length of his prison sentence.

[Lord Garnier (Con)]

My Lords, since we discussed the CCRC last week, it has become apparent that Mr Chris Henley KC, who wrote a review of the CCRC in relation to the Malkinson case, thinks that the chief executive gave inaccurate evidence to the House of Commons Select Committee. Nobody places any blame on the Secretary of State or on the Minister in this place for the current state of the CCRC, but has the time not come for the decision on who should be the next chair of the CCRC to be made not in the near future but today? It is unravelling quickly, and there will be more Malkinsons and more cases of that hideous nature unless the Government really grab hold of it and take charge.

[Lord Ponsonby of Shulbrede (Lab)]

The noble and learned Lord raised those points a couple of weeks ago and, since then, we have had the letters in the Sunday Times about the appearance of the chief executive in front of the Justice Select Committee. I shall not comment on that, because the CCRC is an independent body, but it has already begun to implement a number of the Henley recommendations—and, of course, we intend to go further on that. On the appointment of the interim chair, as the noble and learned Lord will know the objective is to have an interim chair for 18 months to review the CCRC’s operations. An individual has been identified and is going through the approvals process, so the announcement will be made imminently.

Criminal Cases Review Commission

Debate between Lord Garnier and Lord Ponsonby of Shulbrede

Wednesday 7th May 2025 Lords Chamber

[Lord Garnier]

To ask His Majesty’s Government what plans they have to reform the Criminal Cases Review Commission.

[The Parliamentary Under-Secretary of State, Ministry of Justice (Lord Ponsonby of Shulbrede) (Lab)]

My Lords, it is essential that the public have confidence in the CCRC and its ability to investigate potential miscarriages of justice fairly and impartially. An interim chair is being appointed and the Lord Chancellor will ask them to conduct a review of the operation of the organisation. As part of its current review of criminal appeals, the Law Commission will be reporting on the role and function of the CCRC. The Government will carefully consider any recommendations put forward.

[Lord Garnier (Con)]

My Lords, does the Minister share the view of the chief executive of the CCRC, given to the House of Commons Justice Select Committee last week, that she thought it appropriate to come into the office only one or two days every couple of months? Does he agree that the CCRC needs real leadership? It needs an executive chairman with legal standing, full-time salaried commissioners, and higher quality and better paid caseworkers, and it needs to get rid of the predictive test for referring cases to the Court of Appeal. The CCRC is vital to the justice system of this country. It is in a state of complete collapse and it needs gripping by this Government.

[Lord Ponsonby of Shulbrede (Lab)]

As I said in my first Answer to the noble and learned Lord, the intention is to appoint an interim chair who will conduct a review of the way the CCRC is working, and that will be done in collaboration with the ongoing review by the Law Commission. I listened to the evidence that was given to the Select Committee last week. Clearly, how it chooses to conduct its affairs is a matter for the CCRC itself. A new interim chair is to be appointed, probably for a period of about 18 months; that, together with the Law Commission review, may result in changes at the CCRC.

Sentencing Council Guidelines

Debate between Lord Garnier and Lord Ponsonby of Shulbrede

Thursday 3rd April 2025 Lords Chamber

[Lord Ponsonby of Shulbrede (Lab)]

My Lords, I thank the right reverend Prelate the Bishop of Southwark for those questions. Regarding the lack of sophisticated data, that is a fair point, and we are continuing to work on building up that database, but it is an ongoing project to properly understand the nature of the differential treatment. The second point the right reverend Prelate makes is about the propensity of certain groups not to plead guilty, which means that they do not get the discount. That is certainly true in my experience of sitting in youth courts and adult magistrates’ courts. However, I do not think it accounts for all the disparity in sentencing, and I think there is more to the story. That needs to be gone into, and a better database would help the Government do that.

[Lord Garnier (Con)]

My Lords, having worked in justice for nearly 50 years and in Westminster for nearly 40 years, I am not so naive or squeamish as to be shocked by this political squabble over the recent sentencing guidelines. That said, will the Minister accept that the most difficult job for any sentencer—as he and I know from experience—is to sentence the defendant in a way that does justice to the victim, the public and the defendant? Will he also accept that the failure to ensure the provision of far more pre-sentence reports, which are, as he said, an invaluable tool to assist the sentencer, is not confined to this or the previous Government but is of long standing? Will he also agree that although we all have the right to criticise a sentence, even from a position of ignorance of the facts before the judge, parliamentarians should not resort to ugly personal attacks on members of the judiciary, who cannot respond?

[Lord Ponsonby of Shulbrede (Lab)]

I agree with all the points the noble and learned Lord has made. It is for sentencers to sentence in a way that can be understood by the offender, the victim and the public. All our adult courts are open to the public and the press. It is also true in youth courts, which are not open to the public, but the same principle obtains. It is worth adding that, in my experience, pre-sentence reports compiled for the youth court are far more extensive than those compiled for the adult court. When it comes to the extent of pre-sentence reports, the Probation Service, which compiles them for the adult courts, has something to learn from YOTs that compile reports for youths who are sentenced. I realise that that is a resource issue, but nevertheless when one sentences, as I used to do very regularly, the difference in those reports was quite stark.

Home Detention Curfew and Requisite and Minimum Custodial Periods (Amendment) Order 2024

Debate between Lord Garnier and Lord Ponsonby of Shulbrede

Tuesday 10th December 2024 Lords Chamber

[Lord Garnier (Con)]

My Lords, I briefly intervene, if I may. In doing so, declare my interest: until about 1 pm this afternoon, I was a trustee of the Prison Reform Trust. I largely agree with my noble friend on the Front Bench and the noble Lord, Lord Marks. I agree with them because I have made that very same speech probably about 20 times in the last 10 years—nobody listens, it does not matter. The short point I want to make is this: who monitors the monitors? One of the problems that we have noticed over the last several years, when looking at the use of tags, is that far too often the monitoring organisation falls down. One expects ingenious people on tags to try to get out of the restrictions imposed by them, but one does not expect the monitor to fall down in its duties. Can the Minister please assure us that rigid steps are being taken to make sure that the monitors are monitored, and that if they fail, there is some form of contractual sanction?

[Lord Ponsonby of Shulbrede (Lab)]

My Lords, I thank all noble Lords who contributed to this short debate. I agreed with all the points of the noble Baroness, Lady Newlove, on the importance of victims, but one point that is worth emphasising is that it is a discretionary matter for the governor as to whether a home detention curfew is granted. My understanding is that 40% of applicants for home detention curfews fail that application. That is distinct from SDS40, where there is a mandatory reduction from 50% to 40%; whether a home detention curfew is granted is a discretionary matter. The noble Baroness was broadly supportive of the measures in this SI, and I thank her for that.

The noble Lord, Lord Marks, raised a number of interesting points. The one I found most interesting was about extending tagging on perpetrators beyond the HDC period and maybe beyond the licence period— I do not know exactly what he is suggesting. As he will know, a sentencing review is under way, and it may be that there is an increased use of technology. I will make sure that the noble Lord’s point is fed back to the Ministers who are enabling David Gauke and his team to do that review.

A couple of days ago, I met the Estonian Justice Minister, and a couple of weeks ago, I was in Poland. It was interesting to talk to the Justice Ministers in both those countries about how they are extending their use of technology in a number of ways—there are a lot of possibilities there. I would not be at all surprised if this is looked at further as part of the sentencing review.

The noble Lord, Lord Marks, went on to talk about the capacity of the prison estate and the need to have spare capacity so that the system can essentially be managed properly for the benefit of the prisoners. This means that they can complete their courses and be relatively near to home, so that family ties are not broken. All the noble Lord’s points on that are absolutely right. What he said is very ambitious, but I hope the Government are matching his ambition in the sequencing of the steps we are taking to try to have a prison system that reduces reoffending—that should be, and is, the primary objective of any prison system.

The noble Lord, Lord Marks, raised a point that the noble and learned Lord, Lord Garnier, raised, on who monitors the monitors. My noble friend Lord Timpson is monitoring the monitors, and he is having absolutely regular meetings with Serco to reassure himself that the technology is working properly and that the further technology that we will need will be available. This is a real issue, and the noble Lord is right to raise it. It is very much alive in my noble friend’s head, if I can put it like that.

The noble Lord, Lord Murray, asked whether we would return to the old regime in due course. The answer to that is that we will keep the current proposed changes under review. One difficulty that we have had is that the situation is changing so quickly that it has proven difficult to do a proper review in a stable regime. The previous Government did not do a review of the previous regime when it went from four and a half to six months, and the current changes from six to 12 months need a suitable amount of time to bed in, to make sure that a proper assessment is done so that the Government can take a view about future steps. I hope that that puts the noble Lord’s mind at rest—the Government will constantly keep these matters under review.

Strategic Lawsuits Against Public Participation

Debate between Lord Garnier and Lord Ponsonby of Shulbrede

Wednesday 24th July 2024 Lords Chamber

[Lord Ponsonby of Shulbrede (Lab)]

I agree with that point, but it is a complex question and we want to look at it in the round.

[Lord Garnier (Con)]

My Lords, I declare an interest, in that I have been practising at the defamation Bar since the mid-1970s. Much has been said in this House and in Committee about the need for SLAPP laws. I invite the Minister to look, if he can, at the letter I wrote to his predecessor, my noble and learned friend Lord Bellamy, on this very subject just before the election; if he cannot look at it, I will send him a copy. Will he also undertake to put this matter before the Law Commission, so that we can generate rather more light than heat?

[Lord Ponsonby of Shulbrede (Lab)]

My Lords, I am happy to look at the letter and to consider whether the matter should go before the Law Commission.

Judicial Review and Courts Bill

Debate between Lord Garnier and Lord Ponsonby of Shulbrede

Consideration of Commons amendments
Wednesday 27th April 2022 Lords Chamber

[Lord Garnier (Con)]

My Lords, I join the noble and learned Lord, Lord Brown, in all that he has said, and I say with greater confidence, albeit with some reticence, if that is not a contradiction, that I disagree with my friend, the noble Lord, Lord Marks, with whom I am a fellow member of chambers. I think it is fair to say that the Back Benches of the Conservative Party in this House are now more greatly adorned by the promotion, I would say, of the noble Lord, Lord Wolfson, to these Benches, and I look forward to his contributions from his Back-Bench seat. The noble Lord, Lord Pannick, correctly described my noble friend, but he and I need to be very careful because we now have yet another competitor for a car park space in Brick Court.

[Lord Ponsonby of Shulbrede (Lab)]

My Lords, I too would like to thank the Minister for his careful introduction to the Motions before us today. I would also like to thank all those who worked to improve this Bill during its progress through both Houses, and I single out my honourable friend the Member for Hammersmith, Andy Slaughter, and Alex Cunningham, the Member for Stockton North. I would also like to thank noble, and noble and learned, Lords from the Cross Benches who have taken an active interest, particularly in the judicial review parts of this Bill, which has led to the substantial improvements which we have just heard about.

There has been a spirit of consensus on parts of this Bill, particularly those concentrating on court procedures. I thank the noble and learned Lord’s predecessor, the noble Lord, Lord Wolfson, for numerous discussions about court procedures and how they might be monitored and improved. That is not a point of contention we are considering today.

I start with Motion A and the amendment to it, Motion A1, from the noble Lord, Lord Marks, on Clause 1 of the Bill. Yesterday the Government accepted the amendment in the name of the noble Lord, Lord Anderson, which would do away with the presumption that quashing orders would be prospective. As my honourable friend said yesterday, this

“extracts the worst of the sting in clause 1”. —[Official Report, Commons, 26/4/22; col. 604.]

I congratulate the noble Lord, Lord Anderson, on this achievement. It is in the spirit of recognising this compromise and move by the Government that, while we are sympathetic to Motion A1, in the name of the noble Lord, Lord Marks, we would not support it if it were pressed by the noble Lord.

In Motion B, on Clause 2 of the Bill, the Government propose that the House do not insist on its Amendment 5, in the name of the noble and learned Lord, Lord Etherton. The amendment would have retained Cart reviews in the High Court and Court of Session in limited circumstances. I understand the noble and learned Lord will not be revisiting this issue, and we will not oppose the Government’s Motion. For the avoidance of doubt, I should make it clear that we see no purpose in Clauses 1 and 2 of this Bill. It would be our preference to remove these clauses from the Bill in their entirety, but we recognise the votes yesterday and we will not be opposing the Government’s Motion.

I now turn to the Government’s Motion C and my amendment to it, Motion C1. The original amendment in my name ensured that bereaved people, such as family members, would be entitled to publicly funded legal representation in inquests where public bodies, such as the police or a hospital trust, are legally represented. The original amendment in this House was won with a handsome majority. The purpose of the amendment was to achieve an equality of arms at inquests between bereaved people and state bodies. This is an issue not just of access to justice, but of fairness. How can it be right that state bodies have unlimited access to public funds for the best legal teams and experts, while families are often forced to pay large sums towards legal costs, or risk representing themselves or resorting to crowd- funding? This fundamental point was acknowledged and agreed with yesterday by Sir Bob Neill, chairman of the Justice Select Committee in the other place.

The reason given by the Government for objecting to this amendment was that it would involve a charge on public funds. I acknowledge that point and the amendment now asks for a review. I also acknowledge the point that the noble and learned Lord made—that that is not the sole reason for the objection to the amendment in my name.

Five years have passed since Bishop James Jones delivered his report on the experience of the Hillsborough families. In that report, Bishop Jones made recommendations, which included publicly funded legal representation for bereaved families. In May 2021, the Justice Committee recommended that for all inquests where public authorities are legally represented, non-means-tested legal aid or other public funding for legal representation should be available for people who have been bereaved. This is a long-standing issue which, to be fair to the Government, as we have heard today, they acknowledge there is more work to be done on.

I have had a number of meetings with the Minister and his colleague Mr Cartlidge. Unfortunately, we have not reached an agreement on this matter, although I thank them for the efforts that have been made. I want to run through the arguments they advanced during our meetings. First, as the noble and learned Lord has said, there is a means test review under way. The Government’s argument is that by highlighting one particular group—namely, bereaved families—it would raise expectations for that group and that may not be fair to that group while the review is under way.