Human Rights Act 1998 (Remedial) Order 2026

Lord German Excerpts

Wednesday 28th October 2026 Grand Committee

[Lord Bellamy (Con)]

My Lords, I thank the Minister for his introduction and, more importantly, place on record that I was the Minister in the previous Government who held the posts that the noble Lord now holds. This proposed statutory instrument—or an instrument along these lines—came before me at the time and I declined to allow the department to proceed with a statutory instrument, not on the basis that we should do nothing to implement the relevant judgment of the Court of Human Rights but on the basis that it should be done by primary legislation and that the statutory instrument rule is quite wrong for this kind of instrument.

I relied particularly on two things. In 2021, as noble Lords will recall, the then Government commissioned a review of the working of the Human Rights Act 1998, chaired by Sir Peter Gross, who had a distinguished panel in support and came out with an impressive report. A major recommendation of that report was that, although one can have remedial orders to amend various Acts of Parliament, that should never be done in relation to the Human Rights Act itself, because that is the foundation stone of the whole system and a foundational Act by Parliament, so amendments to the Human Rights Act itself should be done only by primary legislation. I was not, as the Minister, prepared to go against that very important recommendation and constitutional safeguard. That was the first reason.

The second reason was that this instrument has profound constitutional implications anyway. As the Minister has just said, the principle of judicial independence is a foundational principle of our constitution. In order to protect judicial independence, we have for centuries held that judicial acts made in good faith are immune from damages. That is also a foundational principle of the constitution, and again I took the view that if one was going to modify or weaken that principle, that should be done by Parliament and by primary legislation.

From the point of view of judicial independence, once one allows people to sue a judge or the court for acts done in a judicial capacity, there are two fundamental problems. One is that you are undermining the independence of the judiciary fairly self-evidently. The second is that you are opening up a second route of appeal from the decision in question, and that is a serious matter. I took the view, rightly or wrongly, that this should be done only with the full consent of both Houses of Parliament, properly and fully debated on the Floor of both Houses, following normal procedure for primary legislation.

I regret to say that by proceeding by this route, the Government have taken the wrong course. They have shown profound disrespect to Sir Peter Gross and his distinguished panel in this regard and have managed simultaneously to weaken both the foundational principles of our constitution: namely, the supremacy of Parliament and judicial independence.

I therefore respectfully ask the Minister, even at this late stage, to reflect on whether this really is the route that the Government should proceed with to make the necessary amendment to the Human Rights Act 1998, and I invite him to withdraw this order and to proceed by way of a one-line Act of Parliament which we can debate fully to explore these very important and difficult issues about judicial independence, the way courts operate, and whether in any circumstances parties or witnesses in court have rights against the judges or against courts for what is done in good faith judicially.

[Lord German (LD)]

My Lords, it is always a pleasure to follow the noble and learned Lord, Lord Bellamy, who raises matters that, if you are not a lawyer, give you thought and give you interesting contributions that need to be addressed. I do not make a judgment on what he said, save that the Joint Committee—our Joint Committee on Human Rights, which I will come on to in a moment—reported, both the first time and the second time, on the singular point that, at some stage, this matter should be dealt with by primary legislation. Of course, the Government’s response at the time—and it continues to be the response; I am sure that the Minister opposite me now is going to have to defend this position—was that there was no time for such a small piece of primary legislation. I look forward to the Minister’s answer on that.

First, however, I absolutely agree that these pieces of legislation are foundation stones throughout our continent. For those of us who have spent, and are spending, a considerable amount of time working on the European Convention on Human Rights and the body that was set up to protect it—the Council of Europe—it is quite clear that all the legislatures in Europe bear this one thing and would say that all this is built on that foundation stone.

I carry that foundation stone with me, because it is not a huge document. I have it here: that is it. When people complain about the European Convention on Human Rights, I ought to have a selection and give them a copy. If you read the actual decision of the European court, you will see that it concerned Article 13 on the right to an effective remedy. I will read this into the record because it is only one sentence. It says:

“Everyone whose rights and freedoms as set forth in this Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity”.


You can see that, if you want to talk about foundations, that that is the foundation on which our Human Rights Act, which is being changed, was made.

My questions are related to the fact that we are justifiably proud of our Joint Committee on Human Rights. It is precisely its work that has been able to look at all these issues in great detail through taking evidence over a two-stage process, which has now taken nearly two years—and that is on top of the three years before that, when the case was first heard. This is very serious legislation and we need to be proud of the fact that we have a body of both Houses that lays out that the conditions that are being put before us today must be approved by both Houses; that is what we are here to do today.

I know that a solution has been put forward and the committee has agreed it—but not without a caveat. The committee’s primary caveat was that the amendment that has been brought forward is very tight and not broad. In the document that the Joint Committee on Human Rights produced, it sought to ask the Government to explain the rationale for being tight. This touches on one of the points made just now by the noble and learned Lord, Lord Bellamy, on judicial independence.

King’s Speech

Lord German Excerpts

Monday 18th May 2026 Lords Chamber

[Lord German (LD)]

My Lords, I declare my interest as in the register: I am supported by the Refugee, Asylum and Migration Policy project. I wish to talk about the annual event for this Parliament that is an immigration and asylum Bill. Our position on these Benches is clear: we believe that the British people demand a migration system rooted in order and compassion, one that provides a disciplined framework for entry while protecting those fleeing for their lives.

The Government, to their credit, have reduced regular migration to near net zero, but we must be honest about our national needs. With an ageing population and a falling birth rate, migration is not a choice but a necessity for GDP growth. Analysis from the OECD is clear. Well-managed migration and successful integration are critical to prevent our economy falling backwards. We agree that those who enter irregularly and do not require protection must be humanely returned. However, an orderly system requires a functional queue, and currently, beyond the micro French deal, no such queue exists. Without a legal path for entry, we cannot effectively address those who jump the queue.

I am grateful to my noble friend Lord Teverson, who has described the proposed Bill as being flawed. It is flawed because, first, it targets the wrong people, and, secondly, it is applied retrospectively to people who are already living and working legally in the United Kingdom, in the hope that making their lives difficult will dissuade irregular arrivals. There is no evidence that penalising immigrants living here legally through increased costs, complexities and barriers to family reunion will change the minds of those seeking to come here irregularly. There is no evidence that people seeking to come here irregularly will be dissuaded from coming if they see that those immigrants who have been given protection and are living here legally are being given a tough time. By proposing a road to settlement that favours the wealthy over other hard-working contributors, the Government are creating a system that suggests that millions of legal residents are unwelcome. This is the snakes and ladders policy described by the most reverend Primate earlier today.

There is a word cloud in a recent analysis of the problem where people who are going to be affected by this new law were asked to name the migration system in this country by giving one word to describe the UK immigration system. They were: “confusing”, “hostile”, “frustrating”, “unfair” and an expletive beginning with the letter “s”. As one EU resident said, “They don’t want to make us feel welcome and let us belong”.

As the noble Lord, Lord Pickles, commented, belonging that is just conditional is dangerous for our society. Costs, errors, complexities, family reunion, the effect on employment and education, and hampering children’s development are all problems that the Bill will make worse. Making millions of legal residents feel depressed and unwelcome does nothing to create an orderly or compassionate system, let alone help the pathway to integration. We must move beyond legislation that prioritises fear over humanity and economic common sense.

Protection of Prison Staff

Lord German Excerpts

Tuesday 13th May 2025 Lords Chamber

[Lord Sandhurst (Con)]

My Lords, on 3 April, the Times reported that Islamist gangs had created gross dysfunction in HMP Frankland, in which a large number of convicted terrorists are held. Just nine days later, on 12 April, Abedi, the Manchester bomber, detained in the same Frankland prison, threw hot oil over a prison officer. Then, on 8 May, Rudakubana, the Southport killer, detained in HMP Belmarsh, threw boiling water over an officer there. Both those terrible attacks were by radical Islamists, in category A prisons. What steps will be taken to isolate such prisoners from access to such dangerous substances? Will tasers be issued in category A prisons, and when will stab vests be provided?

[Lord German (LD)]

My Lords, with a prison population at 98.9% of capacity last month, a 19% increase in the number of assaults on prison officers in the last year and a shortage of prison officers, that is a bagful of problems for the Minister. Does he have an emergency plan for these problems, and what will he do to ensure that our prison officers are safe and that there is a sufficient number of them?

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

Like all noble Lords, I was shocked to hear about the serious assaults against prison officers at HMP Belmarsh and HMP Frankland. It is a sorry state of affairs. We will not tolerate any violence against prison officers. Prisoners who are violent towards of staff will face the full consequences of their actions. The incident at HMP Belmarsh is subject to a police investigation; as such, we are unable to comment further at any level of detail at this stage. However, in the past few weeks, since the recent serious attack at Frankland, we have announced a number of steps to improve prison officer safety, including trialling tasers, suspending the use of self-cook areas for certain prisoners and reviewing whether protective body armour should be made available to front-line staff.

We also have a zero-tolerance approach towards extremist gang activity in prisons. Staff clamp down swiftly on any threatening behaviour. Our staff turn up to work to help people turn their lives around, not to get assaulted.

Prison Maintenance: Insourcing

Lord German Excerpts

Thursday 23rd January 2025 Lords Chamber

[Lord Timpson (Lab)]

I thank my noble friend for his question. The prison estate suffered historic underinvestment by the previous Government over the last five years, which has led to a growing backlog of maintenance tasks and shocks to the estate from dilapidations. This has made the prison capacity crisis even more acute. As future prison maintenance contracts approach expiry, we will conduct detailed assessments to inform decisions about whether to continue to outsource services, alongside our usual performance management process. Stopping the contract process we inherited last year would have meant incurring additional costs and delivering less value for money. I am glad that the noble Lord mentioned Q-Branch, which is an innovative model that has empowered prisoners to build new skills and play a part in keeping their prisons running smoothly by undertaking tasks such as basic cell restoration, painting and decorating. It is currently active in 25 establishments and I am exploring how we can expand it further, alongside a similar operation called CRED, which helps build skills within prisons that can be used on release to get a job and not reoffend.

[Lord German (LD)]

My Lords, among the myriad problems that the Minister faces is the fact that probably half of the security cameras around the perimeters of our prison estate are not working. Is that because they are too old or did the original contracts not include appropriate maintenance so that these cameras can be made to work for our security and that of prisoners?

[Lord Timpson (Lab)]

The noble Lord is correct that the security of our prisons is of utmost importance and that we need all our security apparatus working correctly. We have had years of underinvestment in our prison estate. I am pleased that the Government are spending £520 million from this year until the end of 2026 on lots of projects, including improving our security.

Prisons: Imprisonment for Public Protection

Lord German Excerpts

Thursday 12th December 2024 Grand Committee

[Lord German (LD)]

My Lords, I thank my noble friend Lady Burt for this short debate and all who have spoken in it so far. We should remind ourselves, as she did, that the work we are doing here is subsequent to the abolition of IPP in 2012. We are dealing with the cases of people who were sentenced between 2005 and 2012. As the noble Lord, Lord Carter, has just outlined, tremendous hurt has been done to those people. There are now some 240 IPP prisoners in mental health institutions, and the hopelessness of this regime has led to 86 prisoners taking their own lives. We, the state, are responsible for this inhumane treatment. In many cases, it is psychological torture. Basically, this is an unjust system; that is now agreed across all parts of this House, as the noble Lord, Lord Moylan, said, but the solutions to the problem are proving more difficult to grasp.

Action plans in the past were criticised because they did not have clear strategic priority, ownership, detail, timeframes and performance measures. The scheme as we see it now, refreshed, has led to reductions in the numbers serving sentences but the new plan will not mean an end to these sentences altogether, and the timeframe for the reduction in numbers is still slow. That is, in great part, as a result of resource implications and issues.

As my noble friend Lady Burt has said, there is limited scope for proper preparation for reintegration into society more generally. A member of the Parole Board who has served on it for 12 years said that he had

“seen the difficulties that hopelessness and the lack of opportunity to reform brings to people—some people have got worse in prison because of that”.

Lack of hope due to a limited light at the end of the tunnel is causing these problems.

It is very difficult for IPP offenders to engage in rehabilitation opportunities. This is made worse by the capacity issues in prisons, as my noble friend Lady Burt pointed out. On recall, both my noble friend and the noble and learned Lord, Lord Thomas, pointed to the dramatic increase in the recall procedure to show that it is not getting better quickly.

Members have raised numerous questions on the current action plan, as has the Prison Reform Trust. I can sum up those questions in two that encompass what the noble Baroness, Lady Blower, and the noble Lord, Lord Moylan said. What do the Government believe will be the measure of success with the current action plan? What will the numbers and expectations of successful outcomes look like? We need an answer to those questions. We need to find the resource for progression panels inside the institutions, so that we can work properly to give people a route out.

I know that I have only a few minutes to touch on resentencing. In that time, I will refer to the letter the Government received from the Justice Committee which points out that they never committed to introducing measures that would lead to people being released who were dangerous to the community. It lists in some detail what the proposals were. Will the Government commit in this Parliament to looking afresh at this matter, in light of the view of the Justice Committee and that letter? Will they, as a minimum, seek advice from an expert group as recommended in the committee’s letter?

We in this Parliament are useful in developing legislation. The Government may be concerned about bringing forward further legislation but, if there is a genuine concern, I assure the Minister that we on these Benches will support him to deal with this matter. Any resulting legislation would bring this miserable problem to a satisfactory end.

Prisoners: Early Release Scheme

Lord German Excerpts

Monday 21st October 2024 Lords Chamber

[Lord Timpson (Lab)]

The noble Lord is correct that probation is under a lot of pressure and our probation colleagues do an amazing job in these difficult situations. I have been fortunate to spend a lot of time since I have taken on this role visiting probation staff around the country, and although we are recruiting an extra 1,000 probation staff by March next year—that is on track and going well—it takes time to train people and for them to gain experience, because much of their role is about relationship building and understanding the challenges that offenders face.

[Lord German (LD)]

My Lords, one way in which the prison population could be reduced would be to deal with prisoners on remand, who are one in five of all prisoners at the moment. They do not have any access to meaningful activity, and we need to move the process along by which they have their cases heard. Can the Minister tell the House what steps have been taken to reduce the remand population and when we are likely to see that reduction taking effect?

[Lord Timpson (Lab)]

I am afraid I would not want to put a date on when things are going to change, but I assure the noble Lord that the remand population of 17,000 is far too high. He is right that a number of prisoners who are on remand do not engage as well as they should in all the opportunities they have to turn their lives around—for example, education and purposeful activity. Changing magistrates’ sentencing powers to 12 months will free up Crown Court time to reduce the backlog, and this will reduce time spent on remand.

Prison Capacities

Lord German Excerpts

Thursday 12th September 2024 Lords Chamber

[Lord German (LD)]

My Lords, the one thing that we can take away from this timely debate, which was well introduced by my noble friend Lady Burt, is that it has demonstrated that the Minister has an inbox full of difficult decisions. The current action to release prisoners early cannot remove all the risks inherent in this exceptional situation, but it does expose the problems, weaknesses and failures of the current justice system. The immediate need to free up prison spaces cannot be allowed to mask these failures. A top-to-toe set of reforms is needed from pre-sentencing through to licensing ending.

This debate has shown that the problems are extensive: there is a lack of meaningful activity in prisons; sentence inflation; vulnerability of prisoners to self-harm; drug abuse; poor morale in the Prison and Probation Service workforce; shortage of staff at all levels; and a lack of resource to effectively provide essential housing, skills and healthcare when leaving prison. The list goes on—in the course of this debate I have written down another seven or eight that should appear on the Minister’s action list. I want to add another: the so-called dynamic pricing of facilities offered to those seeking to train offenders within prison, which is pricing NGOs offering training out of prisons, such as Redemption Roasters at The Mount prison.

But there is great work going on, as we have heard. That needs replication and augmentation. Will the Minister, with all his experience at his elbow, agree that wholesale reform is needed, and as swiftly as possible? When will he be able to set out the actions that we need to take to resolve all these difficult issues, and will he provide a wholesale reform?

This is a massive project, which needs fixing so that the punishment needle can be moved back towards rehabilitation and reducing offending. That will produce a much more productive activity list for prisoners when they leave prison as well, but it will also save huge costs to taxpayers and make an improvement to society at large. I look forward to the Minister’s reply.

End of Custody Supervised Licence Scheme: Extension

Lord German Excerpts

Monday 13th May 2024 Lords Chamber

[Lord Bellamy (Con)]

My Lords, I think the House is well aware of the pressures on the prison estate. We have had considerable difficulties in recent times, particularly with a highly increased remand population and the ongoing effect of Covid. The Government have embarked on the largest prison building programme since Victorian times. We have opened two new prisons, and there are two more on the way for which outline planning permission has now been achieved. We are working as well as we can to deal with the situation, but temporary measures are unavoidable, I am afraid, as the Labour Government found when they were in power some time ago. I agree with the noble Lord that sentencing, in terms of community orders and suspended sentences, is very much a subject that should continue to be considered fully.

[Lord German (LD)]

My Lords, the Government’s approach to this has been rather haphazard. We have moved from 18 to 70 days, and it does not look as if this is getting any better. Has the Minister any news on the Sentencing Bill and the Government’s proposals for people with sentences of 12 months or fewer generally not going to prison? Secondly, when does the Minister expect Dartmoor to be able to take its full quota of prisoners again, having been emptied of most of them?

[Lord Bellamy (Con)]

My Lords, I am not in a position to update the House at the moment on the Sentencing Bill, except to say I understand that it will indeed be progressing through the other place in early course. I will write to the noble Lord about the situation at Dartmoor, on which I am not at this moment informed.

Victims and Prisoners Bill

Lord German Excerpts

Tuesday 12th March 2024 Lords Chamber

Debate on whether Clause 49 should stand part of the Bill.

[Lord German (LD)]

My Lords, I rise with the leave of the House and at the request of my noble friend Lord Marks to oppose the Question that Clause 49 stand part and speak to the stand part notices for Clauses 50, 51 and 52.

Clause 49 would disapply Section 3 of the Human Rights Act in respect of any decision made under Chapter 2 of Part 2 of the Crime (Sentences) Act 1997. That chapter of the 1997 Act sets out a range of provisions concerning life sentences and sentences of detention during His Majesty’s pleasure, including minimum-term review for under-18s. For life prisoners, the provisions concern release on licence, termination of licences for public protection, recall for breach of licence conditions, the duration of licences, release at the direction of the Parole Board and removal of life prisoners from the United Kingdom.

The chapter is specifically extended by this Bill, in particular by Clause 41, to provide, in respect of public protection decisions, those considerations that the decision-maker is to be bound to take into account relating to such things as the risk of reoffending and the risk of breach of licence conditions. The clause includes, ominously, the provision under Clause 41(9):

“This section does not limit the matters which the decision-maker must or may take into account when making a public protection decision”.


Clause 44 provides for the Secretary of State to have the power to direct the referral of a prisoner’s case to a court—currently the High Court or the Upper Tribunal —as discussed on 26 February. Clause 48 makes further provision about the termination of the licences for life prisoners for public protection. For all these provisions, Clause 49 would disapply Section 3 of the Human Rights Act 1998.

Section 3 lies at the heart of the human rights protection afforded by the Human Rights Act. It governs the interpretation of legislation by courts and also, importantly, by public authorities, and so effectively by all relevant public decision-makers. It provides:

“So far as it is possible to do so, primary legislation and subordinate legislation must be read and given effect in a way which is compatible with the Convention rights”.


Section 3 gives legislative teeth to the convention, requiring legislation to be compatible where possible. Clause 49 would disapply that crucial protection in relation to this chapter of the 1997 Act and any subordinate legislation made under it.

The Explanatory Notes, in paragraph 353, claim that this disapplication

“will apply the section as it is intended to be applied, and not use section 3 to alter the interpretation”.

In other words, the clause is intended to operate in a way that enables convention rights to be ignored or overridden; otherwise there would be no point in the disapplication. This represents a real and important threat to human rights and should be removed from the Bill.

Clause 50 would operate in exactly the same way in respect of the provisions of Chapter 6 of Part 12 of the Criminal Justice Act 2003 relating to the licences, release, supervision and recall of fixed-term prisoners. These provisions are to be amended by Clauses 42, 45 and 47 of the Bill. At present, this chapter of the Criminal Justice Act 2003 is subject to the protection of the interpretive requirement of Section 3 of the Human Rights Act. Clause 50 would remove that provision, and not just in relation to the new provisions in the chapter introduced in this Bill. As with the 1997 Act dealt with in Clause 49, it would remove it in respect of the whole chapter of the 2003 Act dealing with fixed-term prisoners.

Similarly, Clause 51 would disapply Section 3 in respect of the amended Section 128 of the LASPO Act. This amends the power to change the release test for release on licence in cases involving public protection.

Clause 52 deals with a similar issue. It is not approaching the interpretation of legislation in the light of the convention, but the different question of whether a person’s convention rights have been breached in connection with a prisoner release decision under the two chapters I have previously mentioned in the 1997 and 2003 Acts.

Paragraph 354 of the Explanatory Notes sets out how to govern any challenge on human rights challenge under the convention to a prisoner release decision. Where Clause 52 is offensive is in subsection (3), which requires:

“The court must give the greatest possible weight to the importance of reducing the risk to the public from persons who have committed offences in respect of which custodial sentences have been imposed”.


That provision would apply regardless of the length of the custodial sentence imposed, regardless of what harm was being risked to the public and regardless of the injustice to the offender or the offender’s circumstances or the risk to the offender’s health, family or prospects of rehabilitation. What is the “greatest possible weight”? That, effectively, means exclusive weight—the only factor the judge is to consider.

When the Explanatory Notes say:

“Requiring the courts to give the greatest possible weight to this factor reinforces the precautionary approach and means that public protection will be given appropriate consideration in any balancing exercise”,


they are disingenuous. The provision does not call for a balancing exercise. It requires courts not to consider questions of balance or appropriate considerations, but instead to prefer one factor over all others. That is pernicious and ought to go. Judges are perfectly capable of performing balancing exercises. They can and do give appropriate weight to public protection when they do so. They should not have their judicial function curtailed in this way. The clause should go.

[Baroness Lister of Burtersett (Lab)]

My Lords, here we go again. First, they came for the asylum seekers and then for the prisoners. Which unpopular and demonised group—to quote my noble friend Lady Chakrabarti—will be next to be deprived of some of the rights contained in the Human Rights Act?

As some of us have been arguing during the passage of the Safety of Rwanda (Asylum and Immigration) Bill, to deprive marginalised groups of their human rights in this way undermines the principle of universality at the heart of human rights. The noble and learned Lord, Lord Stewart of Dirleton, quoted back at us that it is

“a fundamental tenet of modern human rights that they are universal and indivisible”.—[Official Report, 14/2/24; col. 342.]

He then went on to try to justify the very opposite.

In answer to some general Oral Questions on our human rights legislation in June, the Lord Chancellor and Secretary of State for Justice emphasised the Government’s commitment to

“a human rights framework that … works for the British people”.—[Official Report, Commons, 27/6/23; col. 145.]

He later talked about our legislation delivering on the interests of the British people. Leaving aside whether universal human rights can be confined to the British people, it raises the question of whether prisoners no longer count as British people.

As it is, some of the briefings we have received, including from the Howard League for Penal Reform and the Prison Reform Trust, make the point that in the words of the latter,

“it is precisely in custodial institutions like prison … that human rights protections are most vital, because individuals are under the control of the state”.

The NAYJ, a member organisation which campaigns for the rights of and justice for children in trouble with the law, is particularly anxious about the implications for children in prison. The Law Society, the EHRC and the then chair of the JCHR have all expressed their deep concern about the diminution of human rights protection represented by these clauses. The EHRC, in particular, warns that there may be an impact on the UK’s international legal obligations.

The Constitution Committee sets out the government justification for these clauses in the human rights memorandum on the Bill, but invites us to seek further explanation from the Government as to what effect they intend to achieve with the disapplication of Section 3 of the Human Rights Act. According to the memorandum, the intention is to ensure that the HRA does not get in the way of the policy intentions of the release regime. In other words, it seems to be saying that human rights should not trump government policy. No evidence is provided to justify the need for this diminution of human rights, and of course the clauses were not subject to pre-legislative scrutiny.

In his response to the Second Reading debate, the Minister seemed to say that all the organisations expressing concern are making a mountain out of a molehill because Section 3 of the HRA is “a procedural provision only”. He argued that it gives the courts an

“unusual power to reinterpret what Parliament has said in a manner that may not have been and probably was not Parliament’s original intention so as to render a particular provision compatible with the convention”.—[Official Report, 23/12/23; col. 2135.]

This, he suggested, was a “neutral” description of the function of Section 3.

I am grateful to Amnesty for its help in making sense of what the Minister said, although it would be the first to emphasise that its analysis is in line with that of the independent Human Rights Act review, established by the Government. It questioned whether this was a “neutral” interpretation of the role of Section 3. The reference to reinterpreting legislation seemed to suggest that there is one legitimate act of interpretation, which is then challenged by a second questionable one under Section 3. But this interpretation is itself highly questionable. I am advised that Parliament intended for Section 3 to be used in the way that it is. There is no reason to think that Section 3 interpretations lead to interpretations that are “probably not” in line with Parliament’s original intention, as confirmed by the Human Rights Act review, even if that was not the view of one member of the commission cited by the Minister.

More practically, and I think for the first time in this context, the Minister suggested that it has been a difficult section to apply, with the case law having “gone all over the place” and the introduction of uncertainty where the Government want certainty. I am advised that while this may have been true of when Section 3 was first brought into force—although “all over the place” is a misleading description—that period has long passed and the legal issues around it have not substantively changed for the past decade or so. As the Minister acknowledged, it has “settled down more recently”. So having been in effect for 20 years, it is not at all clear why its continued function would create the kind of complexity and uncertainty the Minister fears.

If the Minister cannot come up with a more convincing case for the disapplication of Section 3 from a group of citizens for whom the protection of the Human Rights Act is especially important, given their relationship to the state, I certainly think that these clauses should not stand part of the Bill. I have yet to hear any argument that justifies this further breach of the principle of the universality of human rights.

--- Later in debate ---

[Lord Bellamy (Con)]

My Lords, as your Lordships know, this group is a stand part challenge to Clauses 49 to 52 of the Bill, which, in essence, disapply Section 3 of the Human Rights Act to prisoner release legislation. The issue before us is, as much as anything, to do with the constitutional balance between Parliament and the courts. It is not about disapplying the Human Rights Act; it is about who does what. What do the courts do and what does Parliament do? That is the issue.

The provisions with which we are concerned include the new release test for releasing prisoners on licence—namely, the public protection test set out in Clauses 41 and 42, which make it abundantly clear that the protection of the public is the overriding factor. The Human Rights Act is also disapplied in relation to the referral mechanism, referring the most serious release decisions by the Parole Board to a court—currently the Upper Tribunal—and to other prison release decisions. As far as I am aware, no amendment has been tabled in this House objecting to the principle of the new public protection test, nor to the proposed referral mechanism—though there is an argument about which court it should go to—nor to the principle of our IPP reforms, except that it is argued that we should go further. Parliament has plainly indicated what it is trying to achieve.

Against this background, where exactly does Section 3 of the Human Rights Act fit in? Lest any misunderstanding persist—which it seems to do—my first point is that nothing in these clauses removes or limits any convention rights enjoyed by any prisoners, or anyone else for that matter, by virtue of Section 1 of the Human Rights Act or under the convention. A breach of human rights may still be pleaded before any domestic court or in Strasbourg in the usual way, whether it be the right to liberty, family life or any other right protected by the convention. Clauses 49 to 51 do not alter or detract from those rights in any way.

Even if—which I do not for one moment believe—anything in the legislation from which Section 3 has been disapplied were held by a higher court to be incompatible with the convention rights, in such a hypothetical case it would be for the court to make a declaration of incompatibility. Then, in accordance with the principle of parliamentary sovereignty, it would be for Parliament to decide what to do—whether to amend the legislation and, if so, in what way. In other words, it is the job of Parliament to make challenged legislation compatible with the convention. It is Parliament’s legislation; it is for Parliament to fix it, and it is the constitutional responsibility of everyone in either House to find a legislative solution.

The problem with Section 3 is that it gives finding the legislative solution to somebody else altogether—namely the court. This is Parliament’s legislation and not the courts’. That was why I said at Second Reading that Section 3 of the HRA is, in essence, a procedural and interpretive provision that requires legislation to be given effect to in a way which is compatible with convention rights. Those words “given effect” have led, in certain circumstances, to the court reading in or reading down words into the legislation that Parliament has passed. In other words, the court is empowered under Section 3 to add to or subtract from what Parliament originally intended. This has been a difficult section to apply. It has required courts to depart from Parliament’s intention and, if I may say so, to stray into the legislative realm.

These amendments directly raise the proper balance between the courts and Parliament when it comes to legislative matters. That issue was highlighted in the 2021 Independent Human Rights Act Review. It was discussed over 80 pages, toing and froing on all sorts of points and suggesting numerous recommendations and amendments, with the majority of the panel finally recommending a series of reforms to Sections 2 and 3.

On the Government’s position that Section 3 is a most unusual power in this respect, I can do no better than refer your Lordships to the trenchant criticism of Section 3 of the Human Rights Act on constitutional grounds by the noble Lord, Lord Pannick, King’s Counsel, present in this Chamber, in his evidence to that 2021 review. His basic point was that it is not the function of the courts to legislate; it is the function of Parliament. Against that background, in the present context, the Government’s position is that, on an issue of importance, such as public protection and prisoner release, it is for Parliament to determine what the test should be.

In the unlikely event of any of those provisions being disapplied, and a declaration being made under Section 4, again, it is for this House and the other place to put it right and not to delegate, abdicate or push away that responsibility on to the courts. That is the Government’s position and it is essentially a question of the constitutional balance between what we do and what somebody else does—in other words, the courts. That is essentially the background to these amendments.

Clause 52 sets out the approach a court should take if there is a challenge on human rights grounds regarding the release of a prisoner. I do not accept the characterisation by the noble Lord, Lord German, that the wording of Clause 52 is effectively saying that public protection is an exclusive requirement; it simply says that that is a requirement to which weight should be given. No doubt, the courts are perfectly capable of arriving at a sensible interpretation of the provision, but the Government’s view is that the importance of public protection is a matter that Parliament can rightly draw to the court’s attention as something to which weight should be given. I will just add that that requirement does not apply to the so-called non-derogable rights under the convention, which are: Article 2, the right to life; Article 3, the prohibition of torture; Article 4, the prohibition of slavery, and Article 7, no punishment without law.

The courts already consider risk to the public. The Bill simply ensures that weight is properly given to that consideration. The essential point is that on these matters, in this context, it is not for someone else to be reading in or reading down what your Lordships decide; it is for your Lordships and for Members of the other House to put matters right.

[Lord German (LD)]

My Lords, having heard that explanation, on the first part I suspect that this will have to come back when we have an array of former judges of all sorts in this House to test the position the Government have placed on this matter. To a lay person, it seems to be on a trail of chipping away Section 3 of the Human Rights Act, in particular. Therefore, I think this can wait for another day to have that legal learning that I think we will all need to take it on board.

In respect of the Minister’s second point, about weight, it would not be so bad if it were simply “weight”; it would not be quite so bad if it were “great weight”; but it is “the greatest possible weight” and the greatest possible weight to me means virtually everything you can possibly put into it. I will take a simple Welsh analogy. You have a scrum. You put the weight of everybody into it with the objective of pushing the other side off the ball so that you can take it yourselves. That is where you would apply “the greatest possible weight”. There might be a bit of pulling of hair and ears, and whatever else goes on inside a scrum—but I am not going to talk about that any more.

If you think about it, though, the words “the greatest possible weight” are pretty conclusive that what you must do is virtually everything that is in sight. So, I take on board the Minister’s view that the word “weight” is important, but I do not take on board the words “the greatest possible weight”. However, on the basis of the future legal discussion we are likely to have in this House, I beg leave to withdraw my objection to Clause 49 standing part.

Clause 49 agreed.

--- Later in debate ---

[Lord German (LD)]

My Lords, I too echo the words that have been spoken. Rather than repeating all this or speaking to this in the next group, I will talk about those issues in this group because they are very relevant to these amendments.

I have a series of practical questions. For example, stating which Parole Board members should be involved in a particular case is definitely an interference in the independence of the board. If the reply to that is, “Well we need to make sure that the right people are hearing the right cases”, surely all you have to do is to make sure you appoint to the panels more people who have those experiences available to them. The Government, of course, have gone on the issue of those with enforcement experience. You simply recruit more enforcement-experienced people to the panels.

I agree with what has just been said. These parts of the clauses are analogous to the Government deciding who will be the judge in a particular case. Whether the chair should be involved in individual cases is a matter for the board; it should not be the subject of statutory prescription, as is before us now.

There is concern about the broad powers given to the Secretary of State to remove the chair on the grounds of public confidence. The outgoing chair of the Parole Board, Caroline Corby, said in her evidence to the Justice Committee that the power to remove the chair could see them dismissed if the board made an “unpopular decision”. Unpopular with whom? With the Secretary of State, perhaps. As the noble Baroness, Lady Prashar, just said, she argued that

“the chair of the Parole Board needs more protection than pretty much any other chair of any arm’s length body”.

There is already a termination clause which means that the chair of the Parole Board, or any other member, can be removed. It is therefore not clear why a statutory power is needed. Perhaps the Minister can explain to us why he needs a statutory power rather than relying on the contractual power he already has.

Who is going to judge that public confidence has been breached and when? What is the need for this confidence test? Does the existing contract not provide for appropriate removal? What is going to be the threshold for the new test of breached public confidence? Will it be an opinion poll? Will it be an assessment of the latest newspaper cuttings? What will be the criteria? How will that threshold be applied? As many of us suspect, will it rest merely with the subjective view of the Secretary of State, which is the reason why it appears in the Bill at this point?

Public opinion should not form the basis for ministerial interference in an independent body making quasi-judicial decisions. I say “quasi-judicial” because that is what the Government say they are called. Most people would just call them “judicial”. Last year the High Court noted that:

“It is … well established that, when exercising powers in relation to the Board, the Secretary of State must not to do anything that undermines or would be perceived as undermining the independence of the Board or that encroaches upon or interferes with the exercise by the Board of its judicial responsibilities”.


There is no explanation anywhere why engagement in individual applications is needed. Currently, the chair holds these quasi-judicial judgments in his or her hands. Paragraph 14B of the board’s current rules, which were put before this House in 2022, states that:

“The Board chair may determine an appeal by—(a) upholding the decision made by the panel chair or duty member … or (b) substituting their own decision, which may contain any direction that the panel chair or duty member could have made under paragraph (5)”


of the rules.

Pages 67 and 68 of the root and branch review made no such recommendation to neuter the chair. Instead, the review supported a strategic oversight group and a rules committee to recommend procedural changes to the Secretary of State. The impact assessment for this Bill states that the chair will be appointed for a three-year term, renewable. However, the job pack, a copy of which I have with me, issued by the Ministry of Justice with a closure date of just last month, states that the appointment is to be made for five years. So applications closed in February and people have applied for a job where the tenure of the job—whether it is three or five years—is not known. I hope that the Minister can tell us how that circle is to be squared.

Can the Minister confirm the delegated authority that the Secretary of State has given to Ministers for appointment of the role of board chair? Does it remain as it was when Liz Truss was the Secretary of State, because, on delegation to Ministers, the review said that Ministers

“should be involved at every stage of a competition, including: agreeing the advertising and the advisory assessment panel membership; suggesting potential candidates; being consulted on closing a competition; being invited to give views on candidates; being provided with a choice of appointable … candidates; and having the opportunity to meet candidates”.

If that is still the case, Ministers have an incredible influence over the person to be appointed, and one might reasonably wonder why they might want to sack them.

So those are a lot of practical questions, some of which are contained within the Bill and within the job pack for the new person taking over the role, which need to be clarified. I hope that the Minister in replying will be able to answer them.

[Baroness Hamwee (LD)]

My Lords, I apologise to the Committee for missing the opening part of this debate. I was with representatives of the Bar Council discussing these very issues.

Having chaired a committee that questioned Dominic Raab about his ambitions for the Executive to take over functions which I do not think that any of us regarded as appropriate for takeover, this seems to me to be Members of the House of Lords doing what we do so well. We are trying to help find a way through and answer the questions. We should just be rubbing the whole thing out because of that Executive takeover, which is anathema to probably everybody who is sitting in the Chamber at the moment.

--- Later in debate ---

[Earl Howe (Con)]

My Lords, I have heard the arguments. I hope that the noble Baroness will allow that I have already given an undertaking to take those arguments back with me, and I will do so.

Turning, if I may, to Amendments 170 and 171, the first of these seeks to remove the power currently in the Bill which would allow the Secretary of State to dismiss the Parole Board chair on public confidence grounds and would remove the prohibition on the chair’s involvement in individual parole cases. Amendment 171 seeks to ensure that the chair would continue to be permitted to attend and participate in individual parole cases alongside the more strategic role defined by other amendments to the chair’s functions.

Let me begin by confirming that Clause 54(10) means that any changes in respect of the chair of the Parole Board do not impact on the appointment or functions of the current chair, Caroline Corby. Caroline has led the board well since her initial appointment in 2018, and the Government are very grateful to her for her leadership. However, there might be an exceptional occasion in the future when requiring a change of chair before the end of their appointment period is the best or only option. For that reason, new sub-paragraph (2C) within Clause 54(5) gives the Secretary of State the power to remove a chair from office if it becomes necessary on the grounds of public confidence.

[Lord German (LD)]

What is the term of office? There is a difference between the impact assessment, which says three years, and the pack against which people have applied, which says five years. Which is true? I am happy if the Minister wants to reply in writing.

[Earl Howe (Con)]

I will reply in writing, if the noble Lord will let me.

--- Later in debate ---

[Earl Howe (Con)]

That is exactly why I said that it is not a power that it is likely any Secretary of State would use often, if at all.

[Lord German (LD)]

To add to that point, I read out the list of delegations to Ministers about the appointment of the Parole Board chair. I am sure that Members of the House will have realised that it is a pretty extensive power over who gets a job. I wonder whether those delegations have altered. Once again, if the Minister does not know, perhaps he could write to me before we get to Report.

[Earl Howe (Con)]

I should be happy to do so.

Alongside this new power, we are setting out for the first time in statute the functions of the Parole Board’s chair. The intention is both to define the chair’s role as a strategic leadership role and to make it clear that the postholder does not play any part in the board’s decision-making when it comes to considering individual parole cases. The package of measures here, I am advised, ensures that the provisions that we are putting in place are consistent with the European convention.

The noble Lord, Lord Bach, asked me why the Justice Secretary will send only some cases to the Upper Tribunal, and whether he will delegate the power to officials. In line with other significant powers that the Secretary of State operates, such as the power to detain under Section 244ZB of the Criminal Justice Act 2003, which allows the SSJ to override a prisoner’s automatic release date and refer the case to the board, the operation of the power will be restricted to cases where it is considered necessary to take the not insignificant step of referral of a case via an operational policy.

It will be up to the Secretary of State to decide which of those cases they would like to refer to an independent court for a second check. We will develop criteria to ensure that this power is used only in those few cases where it is in the interests of protecting the public and maintaining public confidence. It will also be up to the Secretary of State, if he or she wishes, to delegate the power to senior officials, but we will ensure that there is a robust process in place.

I am of the view that retaining this clause—having a safeguard in case removal is ever necessary and being clear about what the role of the chair is—is vital. However, as I said at the start, I have listened carefully to what the noble and learned Lord and other noble Lords have said. I understand the concerns expressed. Without commitment at this stage, I undertake to consider the issues very carefully, in conjunction with my noble and learned friend, between now and Report.

Victims and Prisoners Bill

Lord German Excerpts

2nd reading
Monday 18th December 2023 Lords Chamber

[Lord German (LD)]

Before I sum up on behalf of these Benches, I pay tribute to the noble Lord, Lord Carter of Haslemere, for his wise and thoughtful speech. Now that he is out of that Box, I think we are all going to benefit from his wise words in the future. I must pay absolute tribute to him for a splendid maiden speech in this Chamber.

This Bill is heading on the right track, but there is a substantial number of bumps, deep potholes and curves which will need sorting before it will be best suited to reach its destination. It is sad that this Bill is of two parts—a victims’ part and a prisoners’ part. As many noble Lords have said, it tends to deflect from the importance of one or the other, and probably this would have been better in two separate pieces of legislation. But, while this Bill is on the right track but needs amending, it falls very short. I am going to mix my metaphors a little, because this Bill has been late out of the station, but in this House we have a duty to ensure that it gets to its destination in a fit and proper state.

I will speak largely about Part 4 of the Bill, but I want to pay tribute to my colleagues who have spoken about earlier parts of the Bill and it is important to recall the main issues my noble friends have raised. My noble friends Lady Brinton, Lady Burt, Lady Hamwee and Lady Benjamin all raised the gaps in the definition of victims, including the rights of rape victims, victims of anti-social behaviour, victims who are coerced and, as explained by my noble friends Lady Brinton and Lady Benjamin, children who are subjected to sexual and domestic abuse—crimes of the most heinous kind.

My noble friends Lady Hamwee and Lady Brinton emphasised the need for the victims’ code to have a statutory basis, with a statutory duty for public services to deliver the new rights to these victims. The costs of this provision are strangely absent, as is an impact assessment. I ask the Minister: will we have an impact assessment to cover Part 1 at some stage in this process?

My noble friend Lady Hamwee raised the issue of victims having to pay for transcripts. Can noble Lords imagine the outcry if the public had to pay to download Hansard? I think that would probably shake at the roots of what we try to do in this Chamber.

My noble friends Lady Brinton, Lady Hamwee and Lady Burt spoke of the need for an immigration firewall—we need to protect migrants’ rights to data privacy to ensure that they are free to come forward in the same way as other victims, and my noble friend Lady Burt pointed out quite rightly that currently six in 10 victims do not receive their rights.

This is indeed a catalogue worthy of change, which we on these Benches will pursue during the passage of the Bill. As my noble friend Lady Brinton put it, there are a lot of “shoulds” in this Bill which need to be changed to “musts”.

In Part 4, I want to raise several issues, but the one at the root at some of them is what I call the “public confidence” issue. It is twice used in the Bill, first as the judgment to be used by the Secretary of State to refer a case heard by the Parole Board to the courts and secondly as a judgment test for the Secretary of State to remove the chair of the Parole Board. In other words, it hands power to the politician from the independent board. The problem is that the public confidence test is both undefined in the Bill and subjective. The director general operations of His Majesty’s Prison and Probation Service in another context said that using these words

“is highly subjective and, as a result, has been difficult to apply in practice”.

The Howard League for Penal Reform points out, from a High Court judgment this year, that

“this policy criterion … adds nothing”.

The court found that all matters said to be relevant to the issue of public confidence were aspects of the prisoners’ risk, with no factor going to public confidence being distinct from a risk factor. The Howard League further states that public opinion should not influence the independent judicial process. I wonder whether the Minister agrees with that statement.

I turn to the disapplication of Section 3 of the Human Rights Act, mentioned by many noble Lords. It is a growing trend within this Government. First, it conflicts with the statement in the Bill. I know that the Minister has asked for us to understand why it says on the face of the Bill:

“In my view the provisions of the Victims and Prisoners Bill are compatible with the Convention rights”,


when, later on, we are asked to disapply the convention rights. I hope that he can tell us how both those statements are correct. What is the justification for the difference of fact between those two statements in the same Bill?

Secondly, on a more general point, could the Minister tell us what the Government object to in Section 3 of the Human Rights Act? It would be good to know what it is.

Thirdly, as many noble Lords have said, a human right is applied universally. As soon as you carve out that a right does not exist for one group of people, it ceases to become a universal human right. Does the Minister agree that a human right applies to all humans, not just some of them? As my noble friend Lady Hamwee put it, the penalty for crime is the loss of liberty but not the loss of rights.

Many noble Lords have spoken about the problems with the IPP section of this Bill. The changes made by the Government in the Commons are welcome, but they do little or nothing, as the noble Lord, Lord Moylan, pointed out, for those still trapped in the system. There are around 1,200 people sentenced under the IPP rule who have never been released, and about 1,600 who were in custody who were released on licence but have since been recalled. This cohort will first need to convince the Parole Board that the risk to community has been reduced enough for them to be released on licence and remain out of prison on licence for a further two years before the provision to cancel their licence will apply. As many noble Lords have said, the Justice Committee in the Commons recommended re-sentencing as the best way in which to bring this dreadful and much-abused sentencing policy to an end. Will the Minister give attention to using the Justice Committee’s approach for this cohort of IPP prisoners?

There are also practical issues with this Bill that need sorting out. The impact assessment, which needs updating, states that a further 640 prison places will be required. The prison estate, as we all know, is already full. The extra cost to the public purse of building additional prison places will be £250 million over the next decade; the cost of running them will be £28.7 million a year. If those figures are no longer correct, because they were put in place and outlined before the changes were made in the House of Commons, perhaps the Minister can tell us whether there will be a new impact assessment that is to alter those figures. If they are to stand, they are somewhat important to our knowledge and understanding of how the Bill might work.

Additionally, can the Minister tell the House whether there will be a disproportionate impact on black and ethnic-minority prisoners as a result of this Bill? There are also questions around the availability and suitability of community support once people are released from prison and, in particular, the need for mental health services.

I turn to the impact the Bill will have on Parliament and the way it can deal with matters relating to it. Clause 59 basically says that if the Government wish to amend primary legislation, to change it in some way or to repeal or revoke it, they can do that by the affirmative measure of a statutory instrument. It further states:

“Any other statutory instrument containing regulations under this Act is subject to”


the negative procedure. I am sure that the Committee of this House will want to look at that very carefully, but certainly I find that a very strange way in which both Houses of Parliament will have the opportunity to scrutinise major change to the Bill when it comes about. These are all issues that will need exploring as the Bill passes through the House.

Finally, there are the issues relating to the Parole Board which need further examination. My good colleague, the noble and learned Lord, Lord Thomas of Cwmgiedd, expressed that in his normal, vigorous, Welsh manner. It is not just because I am Welsh also that I absolutely agree with him and the manner in which he put it. What is the need for the use of the public confidence test for the removal of the Parole Board chair? Does not the existing power for the removal of the chair provide an appropriate safeguard? Besides which, are we prepared to have a politician making decisions, rather than an independent body which has judicial functions? I would be grateful if the Minister, in replying, could also lay out the reasons for excluding the chair from having a role in individual parole cases. If the chair is to be responsible for the operation of the Parole Board, why on earth can the chair not have a part in those deliberations?

The Bill falls short in an important range of areas, and it will need amendment. I look forward to future stages of our work on it to ensure that it can meet its fundamental objective of an effective, efficient and just victims’ rights system, and a just system for rehabilitation of offenders. To return to my earlier metaphor, this train is years late leaving the station, but when it does leave, it must be in the best condition for those victims who, unfortunately, have to travel on it, and for them to have their rights known, available and enforced.