Victims and Prisoners Bill

Lord Hodgson of Astley Abbotts Excerpts

Report stage
Tuesday 21st May 2024 Lords Chamber

Finally, there is Amendment 148, the requirement for the IPP recall cases. This is a brilliantly important amendment. There is a new documentary coming out called “Britain’s Forgotten Prisoners”, which will have its world premiere at the Sheffield documentary film festival in June. It features Shirley Debono, that tireless, courageous campaigner, and her son Shaun. Part of the harrowing nature of it is that he dreads being recalled because he knows that it will mean another year or two in prison, because he cannot get a Parole Board hearing. For me, that amendment is very important and I will support it.

[Lord Hodgson of Astley Abbotts (Con)]

My Lords, I added my name to Amendments 138A, 143 and 144 in the name of the noble Lord, Lord Blunkett. These amendments are concerned with DPPs—with people who have been detained, as opposed to imprisoned, for public protection. I listened very carefully to the Minister when he explained Amendments 139A, 139B and 139C and the very sympathetic way he has addressed the issues that we raised in Committee.

All I wanted to say at this advanced stage of the Bill is that we need to remember that DPP prisoners were, when they were first detained—“detained” sounds very straightforward; when they were first convicted—under 18. We need to think very carefully about that. They are people who have had—it is almost certain—the most appalling life chances. Members of your Lordships’ House who have worked in this area will have appalling stories about how these people have been unable to get their lives together. We surely have a special responsibility to people who have started out like that, and, in thanking the Minister for the changes he plans to make in procedure for this terrible situation, I hope that the fact that they were children at the outset will not be overlooked.

[The Lord Bishop of Southwell and Nottingham]

My Lords, it is a pleasure to follow noble Lords—and noble and learned Lords—and to benefit from their considerable wisdom on the matter at hand. I do not wish to repeat all that has already been said, but my right reverend friend the Bishop of Gloucester has added her name to several amendments in this group. She is sadly unable to be here today, but I know that, like many other noble Lords, she is dedicated to seeing the reform of the criminal justice system, particularly in respect of our prisons, for which she is the lead bishop for the Church of England.

I will reflect briefly on Amendment 140. As has already been said, we know that many IPP prisoners are stuck in the system, and appropriate psychiatric care in the community is not in place to manage their high-support needs. It is clear to anyone who visits prisons and meets IPP prisoners that they suffer great mental distress, reportedly more so than the wider prison population. This sentence—arguably more than any other— disrupts relationships and leads to hopelessness, anxiety and alienation, as we have heard so much about. In many cases, it can be said that the sentence itself is the very cause of that mental distress, as is reported by many chaplains in our prisons.

The changes proposed through this Bill are welcome and, as we have heard, much progress has been made; but, for the sake of both the prisoners in question and the wider community, I submit that the extended aftercare arrangements proposed in Amendment 140 are needed. Like other noble Lords, I ask the Minister to think again on this important matter.

Victims and Prisoners Bill

Lord Hodgson of Astley Abbotts Excerpts

Committee stage
Tuesday 12th March 2024 Lords Chamber

[Lord Hastings of Scarisbrick (CB)]

My Lords, I too support this array of amendments on IPP, both the current amendments and the ones that will follow. As the Committee will know, I am a regular visitor—twice a month—to prisons across the UK, and I will visit another one tomorrow morning. On a regular basis—two a month—I meet many incarcerated men and sometimes women, and many who have left prison over the last 10 years, and I have found relentless IPP tragedies around every corner.

I shall refer to one story from a meeting in December, when a man came up to me and said that he had been released from an IPP sentence 14 years ago but was recalled back to prison in September after he forgot to inform his then probation officer that he had gone on holiday with his wife in August for two weeks to Spain. This is just sheer stupidity, let alone the fact that this system is organising to persecute people compared with recognising their renewal. In his case, and not just because I have now met him twice, he does not deserve the taxpayer to spend nearly £50,000 for an extended period to make sure that he is further detained and punished.

I hope the Minister will gather up all his strength and either accept this array of amendments in one gulp or go back to the Lord Chancellor and determine to bring back an effective set of government amendments that will allow us to end this appalling stain of injustice and unfairness. Another man I met eight years ago from a prison in Kent had been recalled three times. From an initial sentence of seven years, he had done over 24. The persecution of this man’s mental abilities was blatantly obvious; he was no risk to anyone. I can tell noble Lords that since we campaigned for his release, and he has been released, he is an honourable citizen paying his taxes. That is how we should treat many of these men—they are largely men—to see that they are given the opportunity to prove their new life.

[Lord Hodgson of Astley Abbotts (Con)]

My Lords, I wonder whether I could detain the Committee for one minute on Amendments 156 and 157. The background to this is my time as chairman of the Secondary Legislation Scrutiny Committee, when, with my noble friend Lord Blencathra, we drew attention to the creeping growth in the power of the Executive at the expense of the legislature in our reports Government by Diktat and Democracy Denied?. Therefore, when amendments present changes to be effected or not effected by secondary legislation, my ears prick up.

First, we have to recognise that there has to be secondary legislation. The SLSC looks at between 600 and 800 regulations per year. To think that those can be put through by primary legislation is fanciful. The Government’s system would be completely gummed up, so something has to be done.

Secondly, we all know that the system for scrutinising secondary legislation is weak, to say the least. There is no chance to amend, even if the House were to agree that one particular provision in a regulation was inadequate or wrong; it is all or nothing. There is no room for ping- pong or other things we see in primary legislation. All those things are important. This House has decided to stand in the way of secondary legislation only six times since 1968. The last time, in 2015, led to a full-scale constitutional crisis, the Strathclyde review, et cetera.

With great respect to my noble friend Lord Attlee, it seems that Amendment 156 would lock us into the structure we currently have. He says that a criminal justice Bill will be along in no time at all; maybe, but we would be locked into the structure we have because the Secretary of State has no power at all. By contrast, Amendment 157, in the name of the noble and learned Lord, Lord Thomas of Cwmgiedd, would give the Secretary of State some powers, but only to loosen, not to tighten. It seems to me that, in so far as we are seeking a balance between the Executive and the legislature, between moving too quickly and not moving at all, Amendment 157 is to be preferred, and I hope the Committee would not accept Amendment 156.

[Lord Ponsonby of Shulbrede (Lab)]

My Lords, this has been an interesting and relatively short debate. We have four groups of amendments covering IPP sentences, and this first group is perhaps the easiest and most benign to agree with. I say to the noble Earl, Lord Attlee, that we in the Opposition have no problem with this group. I acknowledge the interesting point that the noble Lord, Lord Hodgson, just made regarding the differences between Amendments 156 and 157. Nevertheless, we have no problem agreeing with the generality of amendments in this group. I thank the noble and learned Lord, Lord Thomas, for his crystal-clear description, quoting my noble friend Lady Chakrabarti, when he introduced the amendments.

We agree with the general thrust of these amendments and, if it comes to it at a later stage, will support any amendments that may be pushed further. I would like to do the Minister’s job and say what the problems might be. I acknowledge that, with a reducing cohort of IPP prisoners in prison, you are dealing with very difficult and potentially dangerous people. As this number reduces, the problem gets greater. I think that is a fair point to make. It is a point the Minister usually makes, but I want to make it from this side of the Chamber.

We will come to more ambitious proposals in subsequent groups, but here we are just dealing with various amendments to licence conditions and fairly imaginative ways of reducing them overall. We support them in the generality.

Victims and Prisoners Bill

Lord Hodgson of Astley Abbotts Excerpts

Tuesday 12th March 2024 Lords Chamber

[Lord Hope of Craighead (CB)]

My Lords, I would like to add a few words to what has already been said about Amendments 162 and 163 devised by the noble Lord, Lord Blunkett. The really important part of Amendment 162 is in proposed new subsection (2), which would set out in statute the aim of the convenor of these planning meetings. It states that they are taking place

“with a view to ensuring that all possible steps are taken to enable their safe release at the earliest possible time”.

Those words emphasise the purpose of the reviews and therefore enhance the care that would be taken to conduct them by the Secretary of State.

As far as Amendment 163 is concerned, the first part of it is already the existing law. It says that for

“a person serving a sentence of detention for public protection, the Secretary of State must refer his case to the Parole Board … after he has served the relevant part of his sentence”.

That is a tariff and is already standing practice. What is new is the proposal that the Secretary of State must refer a person’s case to the Parole Board,

“where there has been a previous reference of his case to the Board, no later than the period of one year beginning with the disposal of that reference”.

The emphasis in both these amendments is on the regularity of reviews. When I was Lord Justice General, I saw this working well in my visits to the Parole Board. As I mentioned earlier, there are files prepared that have to be examined in detail, but the Parole Board appointed a particular member to take on a particular case, so that each time it came up for review, the member could reinforce what was in the files by explaining his or her own view of what was taking place and, as time went on, reinforce it by previous discussions. In that way, continuity was provided to the whole process.

Each board will have its own method of dealing with it, but the structure of what is provided by these two amendments provides a basis on which the Parole Board can exercise its views with a view to achieving what is set out in proposed new subsection (2) in Amendment 162, ensuring that all possible steps are taken to ensure safe release at the earliest possible time.

[Lord Hodgson of Astley Abbotts (Con)]

My Lords, I have added my name to Amendment 155 in this group. The principles behind and the purposes of the amendments we have been discussing have already been well forked over, so I will cut straight to the chase.

I have intervened in Committee only on one other group of amendments, a few weeks ago on restorative justice. I link the two because they offer the opportunity to break cycles of offending and to give the individuals involved a chance of hope, to avoid the hopelessness that my noble and learned friend the Minister said was so pernicious when he was summing up the first group of amendments; the noble Lord, Lord Berkeley of Knighton, also said it when contributing to a later group. Nowhere can this be more important than when dealing with young offenders. As the noble Baroness, Lady Chakrabarti, said, the individuals who make up the group covered by these amendments are unlikely, at the time of their initial sentence, to have a great deal of emotional maturity or self-discipline. They are children, as she pointed out. This is unsurprising, given the likelihood of their background and their life chances prior to their sentence. One hopes that the framework provided by the prison regime for young offenders will accelerate that emotional and other development, paving the way for a return to society.

I endorse the remarks of my noble friend Lord Attlee and the noble Baroness that this is not seen as a soft option. We have to make sure that the public are properly protected—otherwise, respect for and confidence in our judicial and penal system are undermined.

This group is going to undergo a further shock. At a meeting of the All-Party Group on prisons, we had evidence from young people—25 year-olds, really—about what it was like to move from a young offender institution to full prison life. The evidence was pretty startling. The guy said that life in a young offender institution was no bed of roses, but when you got into prison it was a whole different world—quite shocking. Clearly, he was very shocked by it. Indeed, Recommendation 24 of the Justice and Home Affairs Committee report addresses the issue of how you transition and what it means to the people who are so caught up in it. He went on to say that, for some people, it hardened them into a life where they would be persistent offenders but, for some others, it was a wake-up call. They saw that it was a chance, if they managed to get their act together, and were encouraged, to be able to break out—and part of that was seeing some light at the end of the tunnel. This is one of the issues that is very important in these amendments: it is about light at the end of the tunnel, and people being able to see that something can happen to them.

I shall end with a different example that is completely outside the matters that we have been discussing but which might give a sense of what it feels like to be given an IPP sentence. My father’s best friend was captured at Dunkirk in June 1940. He was 24 years old, and he was in a prisoner of war camp until May 1945, when the war came to an end—first in Germany, then in Poland. He went in at 24 and came out at nearly 30. He did not talk about it much, but I remember when I was about 20 him being prepared to talk about what the experience was like. So much of it was like having an IPP sentence.

It began with a sense of shame: had you done enough? Should you have gone on to the bitter end and had you, by surrendering, let your country down? But that died away. Then it was about hardship, which was quite great in the first winter of the war, 1940-41, until Red Cross parcels and parcels from home began to arrive. But my father’s friend said that none of that in any way matched up to the appalling sense of hopelessness —that month after month and year after year ticked by, and you could feel your life running through your fingers.

My father’s friend could articulate that, but I suspect that that is what quite a lot of the IPP individuals are feeling, to some extent, even if they are not able to put it clearly into words. They are the ones for whom I hope we can find ways to help, so that they get that sense of hope. In the prisoner of war camp—they put it rather more roughly in those days—a lot of people behaved rather oddly. What they were saying, of course, was that they were under extreme mental stress. There were no drugs, of course, because they were not available in those days, but the stress of persistent confinement in very crowded conditions undoubtedly had a huge effect on a number of people in a prisoner of war camp.

That is why we need opportunities for reviews of individual cases to take place as often as is consonant with public safety. That is why I support this group of amendments and why I put my name to Amendment 155 in particular.

[Baroness Thornton (Lab)]

My Lords, I am very struck by the words of the noble Lord, Lord Hodgson, about light at the end of the tunnel. That is what this suite of amendments is about for a cohort of young people who, at the moment, will not be seeing a light at the end of that tunnel. I thank my noble friend Lady Chakrabarti for speaking with such clarity about what these amendments are about, and other noble Lords who have described what this must feel like for a young person and pointed, as the noble and learned Lord, Lord Hope, did, to some of the remedies that these three amendments offer to the Minister and the Government. I hope that they take them up and carry them through.

Victims and Prisoners Bill

Lord Hodgson of Astley Abbotts Excerpts

Committee stage
Wednesday 31st January 2024 Lords Chamber

Debate on Amendment 13 resumed.

[Lord Hodgson of Astley Abbotts (Con)]

My Lords, I am grateful for the chance to participate—I thought I was going to be cut off at the knees at the end of the last session when the Committee was adjourned promptly. I also apologise to the Committee because I did not participate in the Second Reading debate. I intervene this afternoon to support Amendment 14 tabled by the noble and right reverend Lord, Lord Harries, and supported by my noble and learned friend Lord Garnier, the noble Lord, Lord Blunkett, and the noble Baroness, Lady Hamwee, and the other amendments concerned with restorative justice or RJ.

I have quite a personal reason for this because when I came into your Lordships’ House some years ago, my best friend rang me to say that his best friend from school had just been made a chief constable and was very interested in this thing called restorative justice, and would I be prepared to go and meet him? I said I would, of course. I knew virtually nothing about RJ at that time. I went to meet the chief constable and he explained to me how he thought we were missing a trick in not using RJ more widely to deal with what he described as our lamentable record in reoffending.

He arranged for me to go and get involved in some cases, hear the facts and even, with the permission of the participants, sit in as a facilitator on one or two cases. I got a great deal of first-hand experience of how RJ might or might not work. All he said when I finished was, “Will you just repay me by raising RJ and speaking about it in the House of Lords in the future?”. So here I am this afternoon, keeping faith with my friend, the chief constable. From my great experience, then, the key issue—this important point was made by the noble and right reverend Lord, Lord Harries—was that it works only if each participant, on the two sides of the argument or the case, is prepared to get inside the head of the other. That was an important part of what I learned while I was there.

I will not talk at length about what I learned specifically, but it is worth briefly recounting one case. A confirmed drug user with a charge-sheet as long as your arm saw an empty house and thought he would break in, find a piece of electrical equipment, take it, flog it and use the proceeds to feed his habit. Unfortunately for him, the house was not empty. The owner of the house, a designer, had a small studio upstairs on the second floor. He came downstairs to find this man in the hall and asked, “What are you doing?”. The man said, “I’ve come to read the gas meter”. The owner said, “Bad idea, because there’s no gas in this house. We don’t have gas”. A struggle ensued, during which the owner of the house hit the man over the head with a flowerpot. There are pictures of the person with blood streaming down his face when the police arrived and arrested him.

From this unprepossessing, unlikely beginning, a case of RJ was introduced. The men met a few times then, as was inevitably right, the burglar got a custodial sentence. The men corresponded while he was in prison and a degree of agreement and understanding—the ability of both sides to put the past behind them and do better in future, from the point of view of the perpetrator —was arrived at. When I talked to the perpetrator, I asked, “What was it?”. He said, “You can see my charge-sheet. All I saw on it were names but, this time, when I met the owner of the house, he said, ‘Do you know what you’ve done? You’ve terrified my family. My two teenage daughters will no longer sleep in separate bedrooms upstairs; they share a room next door to me and my wife. My wife has every single door and window locked—everything locked. You have completely wrecked our security as a family. What do you think about that?’”. Although he did not put it this way, it was a bit of a lightbulb moment for him.

On the other side, when I talked to the owner of the house, he said, “When we began to talk to the chap, he had had a hopeless start. He had a single mum—not much of a single mum, really—and was in and out of care, with little to no educational achievement. Inevitably, his life was largely devoted to crime”. From these two understandings came an ability to work together; it put them, in particular the perpetrator, to an important and life-affirming task to live better and have a worthwhile lifetime.

That is a great, moving story but I said to the chief constable, “There must be a but”. He said, “Of course there’s a but”. He was anxious then, as I think I would be anxious today, not to put too much weight on restorative justice. He said, “There are two things you can do to make sure that RJ does better”. The first is that you need—these are the words from the briefing, not the chief constable—“voluntary and honest participation” by both sides. That is straightforward.

Not in the briefing is the second point that he made: you need expert, trained facilitators. Being expert and trained means, first, that you move the conversation forward but not so that you avoid tackling the awful, painful issues that lie at the heart of the problem; and, secondly, that you are tough enough to blow the whistle when you believe that somebody is not trying. This is not always easy to do because, sometimes, a bit of effort has been invested and people are reluctant to let the case go, but someone has to realise that there are cases in which people will, in the famous phrase, swing the lead in the hope of a reduced sentence. The facilitator needs to be well trained. As the chief constable would say, “A facilitator cannot take on too many cases because they’re quite emotionally exhausting if you get really stuck into these people’s lives”.

The chief constable, if he were standing here, would say, “I certainly would not want RJ to be presented as a silver bullet”—the point made by my noble and learned friend Lord Garnier. “Above all,” he would say, “I don’t want it to be presented as a cheap silver bullet because it isn’t—at least, not in the short run. However, if you can turn a number of cases round, the long-term savings and benefits to society are incalculable.

Our re-offending rates remain too high—the same situation as when I met the chief constable. We surely have an opportunity now to be imaginative in our thinking about how to reduce offending rates. We need new tools in our toolbox, and restorative justice would be an important one. I hope my noble and learned friend the Minister will react sympathetically to Amendment 14. That would give me great pleasure, because it would mean that I have kept faith with my friend the chief constable.

[Baroness Hamwee (LD)]

My Lords, does the noble Lord agree that his faith will be even better kept if he keeps on advocating RJ? Does he also agree that it has its limitations, one of which is that there is a need, in the case he has described, for drug addiction treatment to go alongside it in some way? One must look at the underlying causes, as he has well indicated.

[Lord Hodgson of Astley Abbotts (Con)]

I could not disagree with that. I suspect that there are a whole host of issues behind habitual offending which we need to think about, of which drug addiction is one. People involved in this policy area are clearly more experienced than I am.

[Baroness Brinton (LD)]

My Lords, this is the first group of amendments which really gets into victims’ rights—not just what is expressed in the victims’ code, but ensuring that they can access it. The noble Baroness, Lady Gohir, started the group with the important issue of a victim’s right to challenge decisions, including but not only relating to multiple perpetrators. I thank her for that, because that and some of the cultural issues she raised are important in ensuring that victims’ services are tailored to victims’ needs and are not a tick-box exercise.

I thank Restorative Justice for All for its briefing, and all noble Lords who have spoken in this debate. I will not repeat it all, but we know that restorative justice is a well-established and evidence-based alternative that certainly does not let offenders off the hook; it is as difficult for offenders as it often is for the victims. Restorative Justice for All wrote to us because it is concerned about how long it has been since issues about the right to restorative justice were addressed. It goes back to an EU directive of 2012, yet there is still no absolute right available. That needs to be remedied.

Unfortunately, under this Bill there is no obligation for criminal justice agencies to inform harmed parties about restorative justice systems. When we come to later amendments, we will be fighting hard to ensure that that does become a requirement, because victims deserve no less. The other part of this group also talks about signposting of services. I am grateful to the noble and right reverend Lord, Lord Harris of Pentregarth, who believes that the perpetrators need restorative justice as much. The right reverend Prelate the Bishop of Manchester said that being told there is a code is a start, but much more is needed. I suspect that the Minister will try to say that having such a system would be expensive. However, we know that not having the alternative is even more expensive not just in terms of the consequences for victims’ lives, but for the criminal justice system, parole and stopping recidivism. Without restorative justice, all those costs will continue to pile on.

I do hope that the Minister will bring us some good news. I gently remind him that in the costings for this Bill we were reminded that Part 4, on prisoners, will cost around £0.5 billion, but only a very token amount is allocated for victims’ services. Perhaps that balance is not yet quite right.

Nationality and Borders Bill

Lord Hodgson of Astley Abbotts Excerpts

Committee stage
Tuesday 8th February 2022 Lords Chamber

[Lord Anderson of Ipswich (CB)]

My Lords, I struggle with some of the dilemmas presented by Clauses 29 to 37, for very much the reasons given by the noble and learned Lord, Lord Clarke of Nottingham, in his frank and powerful speech of 1 February on Clause 11. There are, after all, circumstances in which Parliament may legitimately set out its interpretation of treaty provisions and overrule decisions of our courts. There is also a desire, which others on these Benches may share, to give the Government the benefit of the doubt if they can show us why their proposals are not in breach of international law.

The problem I have in that regard is that we have seen impressive formulations of the case against these clauses: for example, from the UNHCR, in the opinion of Raza Husain QC, and in the briefing from the Bingham Centre to which the noble and learned Lord, Lord Brown of Eaton-under-Heywood, has referred. What we—or at any rate I—have not seen is how the Government seek to justify these clauses against the requirements of the refugee convention, as interpreted by the Vienna Convention on the Law of Treaties.

For example, under Article 31.3 of the Vienna convention the interpretation of a treaty can legitimately be influenced by state practice. Do the Government rely on the statute or case law of other states as support for the interpretations that they ask us to enact? If so, which states and in relation to which clauses of the Bill? Do they say, in relation to each relevant provision of the refugee convention, that those practices establish

“the agreement of the parties regarding its interpretation”

within the meaning of Article 31.3(b) of the Vienna convention?

As a second example, the United Kingdom made various reservations and declarations at the time it ratified the refugee convention. Do the Government contend that these clauses, or some of them, constitute de facto reservations in so far as they purport to constrain, as a matter of law, the interpretation or application of the refugee convention? In that case, what are their arguments for their timeliness and permissibility and, if they are permissible, their compatibility with the object and purpose of the convention?

I appreciate, of course, that there are conventions regarding the publication of law officers’ legal advice, but surely a way can be found of conveying to your Lordships, and to the public, a detailed and authoritative explanation of the Government’s legal position in more detail than can be explained, however lucidly, by a very lucid Minister in this Chamber. Whether such advice will be enough to allay the concerns of those of your Lordships who take seriously our obligations under international law I cannot say, but at least these clauses will not be lost by default, which I suspect may be the alternative if we are left in the dark.

[Lord Hodgson of Astley Abbotts (Con)]

My Lords, if I may intervene briefly, I am not an expert in this field but once the lawyers start quoting clauses, sub-clauses and those sorts of things, one has to be careful. This is obviously an important point, and I was really taken by the speech of the noble Lord, Lord Alton. He has spent a lot of time on this and one has to respect the work he has done. He talked about us unscrambling. When my noble friend comes to wind up, can he say whether we are unscrambling or simplifying?

Some of the way this seems to read is that we are making a thing clear for everybody. Therefore, far from undermining what we stand for, we are making it clearer for everybody, and as such for the people of this country, to understand what the Government are trying to do, and thereby increase the degree of informed consent—a concept about which I am very keen. I understand the complications of the legal interpretations put forward by many noble and noble and learned Lords, but I would like my noble friend to tell me: are we simplifying or unscrambling? If we are simplifying, that seems a desirable thing to do.

[Lord Paddick (LD)]

My Lords, taking up what the noble Lord, Lord Hodgson of Astley Abbotts, just said, my lay and naive understanding of international conventions, such as the refugee convention, is that processes of clarifying or simplifying should involve international co-operation and coming to a global agreement over what those interpretations, clarifications and simplifications are.

Amnesty and Migrant Voice put it differently. They say:

“Clauses 29 to 38 constitute an attempt by the Home Office via legislation to unilaterally re-write the UK’s international refugee law obligations and, in doing so, reverse the decisions of the UK’s highest courts”.


As I have said before in this Committee, international conventions, as far as I am concerned, serve no purpose unless the signatories abide by a common understanding of what the convention means. Any deviation from the settled and accepted interpretation of an international convention must be agreed universally, not unilaterally, as these clauses attempt to do. Any attempt by the Bill effectively to rewrite what it means could result in the UK breaching its international obligations and we believe that none of these clauses should stand part of the Bill.

--- Later in debate ---

[Baroness Chakrabarti (Lab)]

I am grateful to all noble Lords who contributed to this group. I believe there was a great deal of consensus in the Committee, but I am sure the Minister was grateful for the support of his doughty and always agreeable noble friend the noble Lord, Lord Hodgson of Astley Abbotts.

I say to the Minister that asserting does not make it so. Asserting, reasserting, “We’re in the convention” and “We will honour the convention” are not enough in the face of the very detailed analysis of these provisions by the UNHCR, the Bingham Centre, Raza Husain QC and, if I may say so, the noble and learned Lord, Lord Brown of Eaton-under-Heywood. The noble Lord, Lord Anderson of Ipswich, again in his always agreeable way, was trying to help the Minister out. The Minister might take his hand and shake it. It is not a hand, it is a lifeboat, but I will be told off again for using metaphors. Last week I was told of by the Minister for using the word “tawdry” too many times; I thought I was on “Just a Minute”. Today, it is metaphors.

I will try one more metaphor with the noble Lord, Lord Hodgson of Astley Abbotts, who asked a very pertinent question of the Minister. Is this not a simplification, rather than a dilution or repudiation? I believe the noble Lord comes from a business background and has often referred to the Wharton school of business. We all draw on our experience and I think a basic contract is not a bad analogy to draw here. It is the equivalent of the chief executive of a company that has been in a contractual relationship with another company for many years getting a bit fed up with various provisions of this contract that has nevertheless been working. We are talking 50 or 70 years of this contract between the parties, when the chief executive thinks, “Maybe we need to reinterpret the various articles of this contract”. He decides not just to repudiate it, because that would be embarrassing, illegal and unlawful, but he says to his board, “What we are going to do in the boardroom is reinterpret all the provisions in a way that is different from the way that we ourselves have honoured them in the past”. “We ourselves” include learned judges such as Lord Bingham and others from all over the world. We are now going to year nought and are rewriting it. We are not just simplifying; we are making material differences, in some places to the convention and in others to decades of jurisprudence, by changing “or” to “and” and changing standards of proof. This is not insignificant.

[Lord Hodgson of Astley Abbotts (Con)]

The noble Baroness’s description of how business works, with an agreement that has lasted for a number of years, is far from the reality of any business in which I have ever worked. It is not a good analogy to use with my noble friend on the Front Bench. There may be all sorts of reasons, as we have heard, about international law, European law, UK law, UK primary legislation and UK secondary legislation, all of which cut across. They are completely different from a single arrangement in business, in which there is a contract, of one sort or another, between two firms. This is not a good analogy at all. I much prefer the complications, which my noble friend referred to, seeking to sort this out.

[Baroness Chakrabarti (Lab)]

Forgive me; I stand corrected by the noble Lord, Lord Hodgson of Astley Abbotts—as always, certainly in matters of business. I was merely trying to suggest that we cannot repudiate a contract by pretending that we are reinterpreting it, when we are making material differences to the relationship between the contracting parties.

Finally on the UNHCR, it is set out in Article 35(1) of the refugee convention:

“The Contracting States undertake to co-operate with the Office of the United Nations High Commissioner for Refugees, or any other agency of the United Nations which may succeed it, in the exercise of its functions, and shall in particular facilitate its duty of supervising the application of the provisions of this Convention.”

--- Later in debate ---

[Lord Etherton (CB)]

In Anwar, as I have said, the Supreme Court approved of that and in doing so again referred to the travaux préparatoires and the way in which those words came into the convention. They were put in at the last minute to appease the French representative because they were concerned about refugees claiming asylum in France who could have applied elsewhere. In 2001, an expert round-table conference was held in Geneva by different countries and disciplines which again upheld the interpretation of a short-term stopover not affecting coming directly from territories where there was persecution.

In a previous debate on this subject on Clause 11, the Minister relied on a provision in Section 31(3) of the Immigration and Asylum Act 1999 which had very similar wording to what we find in Section 36. What she did not say, and which comes out of the very detailed speeches of Lord Bingham and the noble and learned Lord, Lord Hope, is that when those provisions in Section 31 of the 1999 Act were being debated, the Attorney-General specifically said, in light of the view of the UNHCR, that there was flexibility in the concept of arriving directly. So, far from that Act being a precedent for a strict interpretation of those words, his elaboration meant that there was, in fact, a correspondence with the meaning arrived at in the courts of this country in Adimi. For those reasons, I say that the definition of arriving directly in Clause 36 is incorrect. It does not meet the international standards of the UNHCR and is contrary to the convention.

[Lord Hodgson of Astley Abbotts (Con)]

My Lords, I shall be very brief. I am trying to work out exactly what I am being asked to agree to here. Perhaps I may ask the noble Baroness, Lady Ludford—maybe not the noble Lord, Lord Dubs—and certainly my noble friend on the Front Bench: am I being asked to end or at least change the first safe country principle by accepting these amendments? If that is the case, I have grave concern about an increase in what is known as forum shopping. Perhaps I can say to the Hansard writers that forum is spelled “forum” and not “foreign”, which is how it was reported last time. Foreign shopping is what you go to Paris to do; forum shopping is a rather more serious matter.

It is important because this country is an exceptionally attractive place for people seeking to find the best future for themselves. I explained last time that the very fact that debates are going on your Lordships’ House shows how much concern we have to make sure that the rights of people are looked after. It is also an extremely flexible job market once you are here. Getting and maintaining a job is much easier than in some of the areas such as France, where there is a much more rigid job market. There is a non-contributory health and social security system. There is a diaspora from nearly every country in the world. Your mates are here, so you want to come here to join them. We would all want to join our mates. As a last point, you have learned the English language, which is the lingua franca of the world and, in particular, the lingua franca of technology.

I hope that, when my noble friend comes to answer the debate, he will bear in mind that, if we were to accept this, it will open up the borders for people who are seeking—I do not say that they should not seek—the best future for themselves and, as such, are not abiding by the first safe country principle. We are not in a position to provide the answer to a lot of these people.

[Baroness Ludford (LD)]

I know the noble Lord has listened to a lot of the previous debate. He will know there is no such thing as a first safe country principle under the refugee convention. I tried to explain what the obligation was—namely, not to move on if you have refugee status or protection in a country. The UNHCR has made it clear that there would never have been a refugee convention if there had been a safe first country principle, because countries abutting the problematic countries—for example, Jordan, Iran and Pakistan—have had to accept everyone. No other countries like the UK would ever have had any refugees because we do not abut conflict zones. I am sorry, but this must be rebutted every time it is trotted out.

Police, Crime, Sentencing and Courts Bill

Lord Hodgson of Astley Abbotts Excerpts

Report stage
Wednesday 12th January 2022 Lords Chamber

[Lord Cormack (Con)]

My Lords, I made a very brief reference to restorative justice in one of our debates on Monday. I am glad to have an opportunity to comment briefly on the amendment just moved by the noble Baroness, Lady Meacher. I agree with her wholeheartedly. We should always do everything we can to keep people out of prison; to repeat myself from Monday, although sending people to prison is the punishment and the aim is rehabilitation, it does not always work like that. I know that from experience in my former constituency, which had a very large prison—Featherstone—and a young offender institution at Brinsford just a mile or so away. I believe a lot of the young people in Brinsford would have benefited enormously by not going to prison and would have benefited from restorative justice.

I became totally convinced in this view when I had the privilege to be the chairman of the Northern Ireland Affairs Committee for the last of my Parliaments in the other place, 2005 to 2010. I saw at first hand the effect of restorative justice in Northern Ireland, and a lot of young people who would perhaps have gone on to a long life of crime were rehabilitated and came to terms with their victims. As the noble Baroness said, there has to be agreement from both sides, as it were, but it was wholly beneficial in a vast number of cases.

Following the White Paper to which the noble Baroness, Lady Meacher, referred, it seems very strange indeed that there is no provision or recognition in the fairly massive Bill before us. One of my criticisms of the Bill is that it is too long. It should be three Bills rather than one—but that is another story and we have touched on that in the past. But although the noble Baroness, Lady Meacher, said that she will not press this to a Division—I do not dissent from her on that—I hope nevertheless that my noble friend the Minister will be able to make some favourable and encouraging comments about the importance of restorative justice and its place in the criminal justice system.

[Lord Hodgson of Astley Abbotts (Con)]

My Lords, I intervene to express my support for this modest but worthwhile amendment and, like my noble friend Lord Cormack, to urge my noble friend the Minister to give a sympathetic response when he winds up in a moment or two.

I have had an interest in RJ—restorative justice—for a number of years. In particular, I have followed the work of Why Me?, which has briefed us on the debate this afternoon. My noble friend the Minister will be aware of my concern, which I know is shared across the House, about the levels of reoffending, which seem a reproach to us all: a moral reproach, a societal reproach, a financial reproach—you name it. This high rate of reoffending is not a new problem; it has bedevilled our society and our prison system for many years.

It is said that the definition of stupidity is doing the same thing over and over again and expecting different results. That seems to be one of the positions we have got to with regard to trying new ideas which may—maybe at the margin—help cut the underlying reoffending rate. I am sure we need to try a new approach, or new approaches. To use the cricketing analogy, if I may, in light of the results of the test match in Australia, we need to change the bowling—

[A noble Lord]

It is the batting.

[Lord Hodgson of Astley Abbotts (Con)]

Well, shall we change them both? I think changing the batting is a fair comment.

My noble friend and I have had one go round on reoffending over the bunching of Friday prisoners, and we now have a situation where three-sevenths of all prisoners released come out on a Friday, with all the problems of the weekend. We discussed this at some length. It was a cost-free option being put forward from across the House, but my noble friend could not accept it—though he has offered us, and has committed to, a consultation process as part of the prisons White Paper. But we are therefore in a holding pattern now for two or three years, doing the same thing over and over again and expecting different results, because it will be two or three years before we can find a place in a Bill for that measure.

With Amendment 103 on RJ, we have a chance to change the batting and try a different approach. I absolutely accept and I agree with the noble Baroness, Lady Meacher, that it is not a silver bullet. It is not, by any manner of means, cost-free, because it requires very careful handling by trained staff and, as she said, it works only where both parties, particularly the perpetrator, have a moral commitment to making it work. Obviously, there are also touchy-feely aspects, which can be ridiculed in the media.

However, as the noble Baroness said, where it works, its results are remarkable, and remarkable in one unique sense. The victim can begin to understand how they found themselves in this difficult position when they see how the life chances of the perpetrator were so badly damaged. One of the problems in crime is that the victim finds that their life is ruined, but this can enable them to mend their life because they see that the perpetrator has had poor life chances and is now wishing to make amends.

--- Later in debate ---

[Lord Judge (CB)]

My Lords, I put my name to this amendment because it raises some important and delicate issues. I follow the noble Lord in asking: can we please have a date? Can we at least be told that somebody is considering the position of the College of Policing? As he said, it is a company under the control of the Secretary of State with no statutory basis.

There is no problem with the College of Policing issuing guidance to police officers about how police officers should go about their responsibilities, as that is what it is there for. However, the college, a non-statutory body, is being required or invited by the schedule to this Bill—we are not going to look at that now, because it is too late and we all want to go home and there is a lot more business to come—to issue guidance which will impact on bail decisions. Bail is a question of liberty; it will impact on that. We are told not to worry because there is no liability one way or the other for not following the guidance, but we are also told that a court considering an issue such as this may take into account whether the guidance issued by the College of Policing on this issue has been followed. My point is very simple and very small compared to the major issue raised by the noble Lord, Lord Blencathra. It is: should instructions or guidance issued by the College of Policing have any impact whatever on a decision made by a court that a citizen should or should not be granted bail?

[Lord Hodgson of Astley Abbotts (Con)]

My Lords, I support my noble friend Lord Blencathra. He and I have been chasing down issues with secondary and, tonight, tertiary legislation for some months and have produced reports to that effect that I think have found favour in your Lordships’ House, bearing mind the number of noble Lords who wished to speak in the debate tabled by the noble Baroness, Lady Cavendish, last Thursday.

Government by Diktat, the title of a report by the Secondary Legislation Scrutiny Committee, which I chair, is alive and well and living with the situation that my noble friend wishes to remedy. The issues of regulation and guidance, of who provides the guidance and of how enforceable it is are questions with which the SLSC has been struggling. However, if we have been struggling with that, when it comes to this latest idea the guidance will not even touch the sides of the regulatory process of your Lordships’ House. We as a House will be presented with a series of faits accomplish, and unless somebody is able to persuade the usual channels to find time to debate something, we will just be told, “There it is and off we go”.

That is not a satisfactory situation. It is part of a much wider issue of how we deal with secondary and, in this case, tertiary legislation, but my noble friend Lord Blencathra has done a valuable service by bringing this case to the surface. We will make progress in this area only if every time we see this sort of thing emerging we raise it, talk about it and try to deal with it. That is why I support the amendment and put my name to it.

[Lord Paddick (LD)]

My Lords, as the noble Lord, Lord Blencathra, said, in December 2011 the then Home Secretary announced the establishment of the College of Policing and the Government said that as soon as parliamentary time allowed, the College of Policing would be established as a statutory body, independent of government.

Now it is 10 years later. In addition to supporting what other noble Lords have said, I say that the College of Policing being a limited company undermines its credibility, which is not strong among operational police officers in any event. There is an anti-intellectual culture in the police service and the very name gets operational cops’ backs up. To then see documentation that the college produces marked as copyright of the College of Policing Ltd, an organisation headed by someone called a chief executive rather than a chief constable, further undermines its status and credibility in the eyes of operational police officers.

For these reasons, we support bringing forward legislation this calendar year that would go further than re-establishing the professional body for policing under an Act of Parliament. The college should be renamed and the head of the organisation should have the title “Chief Constable”.

Police, Crime, Sentencing and Courts Bill

Lord Hodgson of Astley Abbotts Excerpts

Lords Hansard - Part 2 & Lords Hansard - part two & Report stage
Wednesday 15th December 2021 Lords Chamber

Moved by

[Lord Hodgson of Astley Abbotts]

82: Clause 125, insert the following new Clause—
“Discretionary early discharge of prisoners
In section 23 of the Criminal Justice Act 1961, after subsection (3) insert—“(3ZA) A Minister of the Crown may by regulations establish pilot schemes under which, where a prisoner is to be discharged on a Friday or the day before a bank holiday, they may at the discretion of the governor of the prison be discharged up to two working days earlier than the day on which the prisoner would otherwise be discharged, provided that—(a) it would be helpful for the prisoner’s reintegration into society, and(b) the prisoner has served a custodial sentence of more than 30 days. (3ZB) The power to make regulations under subsection (3ZA) expires after the period of two years beginning with the day on which this Act is passed, and any pilot scheme must have concluded within that period.””Member’s explanatory statement
This amendment would enable trials of schemes for early discharge from prison which would reduce the bunching of releases on Fridays to take place during a two-year trial period.

[The Deputy Speaker (Baroness Fookes) (Con)]

There is a slight mistake on the Marshalled List. It should read “After Clause 125”.

[Lord Hodgson of Astley Abbotts (Con)]

My Lords, Amendment 82 is concerned about Friday prisoner releases, or perhaps I should say the bunching of releases of prisoners on Fridays. I place on record my thanks for the support that I have received from around the House, from the noble Baroness, Lady Lister, and the noble Lords, Lord German and Lord Ramsbotham, and from NACRO, which has done a lot of work and research on this subject over many years.

There is always the danger at this stage of a Bill’s proceedings that you just rehearse familiar arguments and regurgitate facts that have been introduced before. I want to avoid that tonight and instead state briefly the central thesis that concerns me and my fellow supporters; state how we have changed and amended it to meet the points made by the Government at the earlier stage of the Bill; and then explain why we have retabled it in this new form today.

The basic thesis is that when you are sentenced, the court sets a calendar date for your release, not a day of the week. If that calendar date falls on a Saturday, a Sunday or—if it is a bank holiday—a Monday, the prisoner will be released on the previous Friday. A quick bit of mental arithmetic will show noble Lords that some three-sevenths of all prisoners are likely to be released on a Friday. Equally, it is clear to us all that Friday is the last day of the week and so, as the afternoon wears on, the local authority and voluntary services begin to wind down. Because a greater number of prisoners are being released, inevitably they are reaching the places where they can access those services later, so they are even more likely to be closing down. Added to that, the prisoner may well have been released from a prison that is some way from his home town, and in the event perhaps he has no home anyway.

Wrap all that together with the discharge grant, which has now been raised from £46 to £76, a sum on which he or she has to live for two or three days, after allowing for any travel expenses that may have been required. The result is that prisoners who may have no accommodation or support, facing the challenges of freedom after a period of incarceration, are having to do so on very limited financial resources. I suggest that it would be hard to construct a set of circumstances in which the temptation to reoffend could be greater.

In Committee, we argued that giving prison governors five-day flexibility on the day of release could help to tackle this issue of bunching and so improve the opportunities for rehabilitation and reduce the chances of reoffending. In his response, my noble friend Lord Wolfson, while recognising the force of the amendment and that it had a core kernel of truth that needed to be addressed, argued—quite persuasively, in my view—that the amendment was deficient in three ways. First, he said that efforts to avoid the effects of Friday bunching needed to be focused on prisoners where the chances of rehabilitation were greatest—a fair point. Secondly, he said that a five-day release window was too long—I understand that. Thirdly, he said that was particularly significant in the case of short custodial sentences. So we sharpened our pencils and tabled a revised amendment to meet those criticisms.

--- Later in debate ---

[Lord Stewart of Dirleton (Con)]

What I mean simply is that the noble Baroness, doubtless with the best possible intention, is using simplistic language to categorise the Government’s legislative approach, which language I do not accept.

On the subject of the holistic approach—if I may put it like that—which was urged upon us by the noble Lord, Lord German, and the noble Baroness, Lady Hamwee, it is indeed important that we acknowledge the funding the Government are making available to provide just such an approach. Our December Prisons Strategy White Paper set out plans to reduce reoffending and protect the public. We will spend £200 million a year by 2024-25 to improve prison leavers’ access to accommodation, employment support and substance misuse treatment, and for further measures for early intervention to tackle youth offending. We will make permanent the additional £155 million per year provided in the years 2019-20 for a new unified probation service to support rehabilitation and improve public protection, which will be a 15% increase on 2019-20 funding. This expands upon our Beating Crime Plan, which was published in July, setting out how we will cut crime and seek to bring criminals more swiftly to justice, reduce reoffending and protect the public. That included new commitments to recruit 1,000 prison leavers into the Civil Service by 2023, to expand our use of electronic monitoring and to trial the use of alcohol tags on prison leavers.

In addition, in January, a £50 million investment was made by the Ministry of Justice to enhance the department’s approved premises to provide temporary basic accommodation for prison leavers to keep them off the streets, and to test innovative new approaches to improve resettlement outcomes for prisoners before and after they were released. Then there is £20 million for a prison leavers’ project to test new ways to prepare offenders for life on the outside and ensure that they do not resume criminal lifestyles, and £80 million for the Department of Health and Social Care to expand drug treatment services in England to support prison leavers with substance misuse issues, divert offenders, make effective community sentences and reduce drug-related crime and deaths.

For the reasons I have outlined, including the overwhelming notion that these questions are not simplistic and we cannot simply move forward without the necessary evidence, as well as the assertion that an appropriate consultation is under way, I invite the noble Lord to withdraw his amendment.

[Lord Hodgson of Astley Abbotts (Con)]

My Lords, we have had an interesting debate. I thank all those who contributed to it. The noble Baroness, Lady Lister, is always sharp on these matters; she has been well up to her reputation tonight. As the noble Baroness, Lady Jones of Moulsecoomb, said, this is a small fix. As the noble Lord, Lord German, pointed out, it is not an expensive fix either; in fact, it may result in a net gain to the Government because, if we can stop some people reoffending, we will save more money than any cost—there is probably no cost here, or at least very little—and we could be better off as a result. I am grateful to those noble Lords and to the noble Baronesses, Lady Bakewell and Lady Hamwee. My noble friend Lord Attlee asked who is against the idea. I have not yet heard much about people who oppose it. I am grateful to the noble Lord, Lord Ponsonby, for his remarks and the fact that we are better than we were last night.

On my noble and learned friend the Minister’s comments, I do not think that the House buys the Scottish experiment as an example here. It is just not relevant. Nor do I buy the argument about the sunset clause being inappropriate; I think that is just the officials reaching for some reason to try to rubbish this amendment. I accept my noble friend’s point that we need time to understand and his commitment to a consultation finishing by April 2022. Most interesting is the possibility that legislation might not be needed and there might be other ways of achieving what we all wish.

So we have a sort of balance here. On the one hand, an immediate opportunity is being missed and progress seems glacial, to put it no more roughly than that; on the other, we have an encouraging set of statements in paragraph 139 of the White Paper. My judgment as to whether to divide the House on this amendment and possibly damage the concept is that we would really be dividing the House on whether we want to try to create a bridge and find a way to start some work on this project immediately. On balance, the Government have offered us half a loaf. I think we should probably take that half a loaf tonight; I therefore seek leave to withdraw the amendment.

Amendment 82 withdrawn.

Police, Crime, Sentencing and Courts Bill

Lord Hodgson of Astley Abbotts Excerpts

Lords Hansard - Part 1 & Committee stage
Monday 15th November 2021 Lords Chamber

My understanding is that there are operational advantages for the Prison Service if prisoners are generally released on a Monday or Tuesday. I can accept that there may be an issue with the desire of judges to announce a sentence of X months, rather than X months and 23 days. For longer sentences, the approach of my noble friend Lord Hodgson may be superior in this respect but, for very short sentences—of a few weeks, say—my approach might be better. These amendments propose a minor tweak that could reduce avoidable reoffending, and I hope that they find favour with the Minister and the Committee.

[Lord Hodgson of Astley Abbotts (Con)]

My Lords, as my noble friend Lord Attlee has just said, I have tabled Amendment 211 in this group, and I have been very grateful for the cross-party support that I have had from the noble Lord, Lord Bird, and the noble Baronesses, Lady Lister and Lady Bakewell. I am further indebted, as I suspect other noble Lords who take an interest in this important subject are, to the work undertaken on it by Nacro. My noble friend has persuasively talked about this issue in moving Amendment 210. I will not repeat his analysis, but I make it clear that I support it, and it seems to me to be very sensible. But I want to add a bit of gloss of my own and step back from the detail, at least initially. Wherever you stand on the political spectrum, we can surely all agree that the rate of reoffending by prisoners on release is a reproach to us all. Further, in a well-ordered society, we should be making every effort to reduce it. This is one of the things behind the amendments that he and I have tabled.

Why is this? First, there are some hard economic numbers: the costs of our Prison Service and the ancillary services to back it up are stupendous. But there are other, more hidden but very severe social costs that are difficult to measure but nevertheless have a huge impact on our society over the long term: on the prisoner’s family, partner and children, who grow up in very disadvantaged circumstances, with greatly reduced life chances. As the noble Lord, Lord Blunkett, pointed out, there are other hidden costs. The people who have suffered from crime are traumatised by it. Elderly people whose houses have been broken into find it hard to leave their homes and go out. There is a very severe pressure on the fabric of our society, and it leads to neighbourhoods in which suspicions and concerns run rife.

While of course I understand and regret the economic and social costs, the basic issue for me is the point made by the right reverend Prelate the Bishop of Gloucester: it is about common humanity and behaving decently to our fellow citizens, to offer them the best chance of getting back on their feet. At no time is common humanity more needed than at that most vulnerable time when the prisoner is first released.

With that, I turn to my amendment. It does not take a Nobel prize winner to work out that Friday is not the ideal day for release from prison. A long weekend stretches ahead—longer still if followed by a bank holiday—during which the support systems of the state and the voluntary sector are either entirely or largely shut down, as my noble friend pointed out.

In preparing for this debate, I spoke to one of the groups that has briefed us and said, “Can you get someone to talk about this?” I thought that we would get to this amendment last Wednesday, so this is from a prisoner, Michael—that is not his real name—who was released a week ago last Friday: “I was released from prison last Friday, homeless, and everyone knew for months that I would have nowhere to go when I was released. But there I was, late afternoon on the Friday that I was released, still without anywhere to go. The housing people at the council had gone home for the weekend, and I had already been told that there was no chance for a council property. So I was waiting and waiting for news of some emergency accommodation, even just for a couple of days over the weekend. No wonder people reoffend”. Michael’s resettlement worker said, “The holding cell on a Friday is rammed, as such a high proportion of people in prison are released on a Friday. The pressure on the prisons and the resettlement service is incredible. It can lead to people being released late in the day, and, on the Friday, it becomes a race against the clock before services close for the weekend. The barriers to effective resettlement are just too high”.

My amendment, like my noble friend Lord Attlee’s, seeks to spread the days on which prisoners are released and remove the default option of the release day being predominantly a Friday. As he said, his amendment proposes that the courts should decide the specific release date. My Amendment 211 suggests that the governor of the relevant prison should be given the discretion of selecting the five-day window for the release date for a particular prisoner.

I say to my noble friend that the courts are too distant, and Amendment 210 runs the risk of a slightly clunky and administratively burdensome procedure. By contrast, the governor is the person on the spot, with day-to-day responsibility. He or she is therefore able best to take the decision that reflects the particular circumstances of each case and each individual prisoner. I recognise that, in parallel with this new flexibility, there will obviously be a need to make sure that the governors do not slide back to the old default option—the Friday—and some records need to be kept.

That having been said, what unites my noble friend and me is far greater than what divides us. As he said, he and I are concerned about introducing a policy change at very little cost, and possibly no cost, as a way—perhaps only a modest one—of reducing the likelihood of prisoners reoffending. I very much look forward to hearing my noble friend the Minister’s reply.

[Baroness Lister of Burtersett (Lab)]

I support Amendment 211, to which I have added my name. The case has been made very powerfully by the noble Lord, Lord Hodgson of Astley Abbotts. I am also supportive of the aims of Amendment 210, although that goes further by leaving less room for discretion—that may be a good thing, given the Scottish experience, which I will mention later—and I suspect would find even less favour with the Government.

I am struck by the strength of the case for change, from both the short-term perspective of the prisoner being released and the longer-term perspective of the likely impact on reoffending that we have heard about. Just last week, the Justice Secretary emphasised the importance of employment in reducing reoffending, and these amendments would help to support the initiatives to which he referred.

I ask the Minister to put himself in the shoes of a prisoner about to be released. Even the most organised of us would quail at the number of essential things they have to sort out: accommodation, health services, benefits and employment support. As an aside—although I know that the Minister will not be able to answer this question, I would be grateful if he could write to me—why does the law not permit prisoners to initiate their claim for universal credit before the actual release? Having a first UC payment available on the day of release would at least remove one obstacle, helping to create a much more effective resettlement process and, potentially, cut the rate of reoffending.

Returning to the matter at hand, I can only begin to imagine the mixture of relief and anxiety that prisoners must feel on release. To face this on a Friday, when many key services will be closing for the weekend, must be experienced as a set of totally unnecessary hurdles to be negotiated. Is it surprising that, according to Nacro, whose briefing I am grateful for, the inability to surmount those hurdles can lead to reoffending and/or turning to the more accessible comforts of drugs or drink. In the words of one prison-leaver, “If you’re released on a Friday and there are issues then they are not likely to be resolved until the following Monday, leaving the weekend to panic/stew/worry which could easily lead to reoffending.” I would panic/stew/worry if I were in that situation, I really would.

It seemed to me that this was a no-brainer, and thus it was with some surprise and disappointment that I read the negative response from the Minister in Committee in the Commons to the same amendment as Amendment 211. It felt as though he was clutching at straws in his rejection of the case made, and contradictory straws at that. On the one hand, he suggested that the change proposed would create pressure on the other days of the week, ignoring the fact that this amendment is purely discretionary and that, apparently, a third of releases currently take place on Fridays. Surely, if it were acted upon, the amendment would help to even out releases over the course of the week.

On the other hand, much was made of the fact that, in Scotland, prison governors have rarely used this discretionary power, which they have. Can the Minister tell us whether we have any information as to why that is the case? It would be helpful to know so that appropriate steps can be taken. Whatever the reason, however, it is surely not a good cause for refusing to follow suit in England and Wales. Even if it helps only a few prisoners on release, surely helping even a small number is better than helping none at all. It would be good if the impact of the change could be monitored so that, if it is shown to have a beneficial effect, it might encourage governors to use the power more.

In the Commons, the Minister acknowledged that there are challenges in making sure that offenders leaving prison are given access to the services they need so that they can get their lives back on track, but he then said that the Government

“would prefer to focus our efforts on making sure that those services are available on Friday.”—[Official Report, Commons, 22/6/21; col. 706.]

He then spoke rather vaguely about investment in reducing crime and tackling the drivers of reoffending as well as pilot programmes in five probation areas. But what exactly are the Government doing to ensure that services are available on a Friday, and functioning in a way that ensures that an ex-prisoner’s needs are sorted out before the weekend? Why do Ministers think they know better than probation officers and others on the front line who have supported Nacro on this?

I do not understand why the Government are so averse to this very modest change. I had hoped that this was an amendment they might accept in some form and that, while the wording may not be quite right, the essence of the amendments put together would be acceptable. I still hope that the Minister might be more open-minded to it than was his counterpart in the Commons.

--- Later in debate ---

[Lord Wolfson of Tredegar (Con)]

I am coming to the point about discretion in Scotland. I will respond to that in a moment, if I may. First, I wanted to identify how we think we can best deal with the problems which bunching can give rise to. I absolutely agree that reducing further crime by those who have been released is critical. We have to cut reoffending and we know that a lack of suitable accommodation or sustainable employment, as well as substance misuse, can lead offenders to return to crime. Therefore, we need to ensure that people leaving prison on all days of the week, Fridays included, have access to services.

I will briefly identify four important things in this regard. In January this year, we announced a £50 million investment to reduce crime and tackle key drivers of reoffending. In July, we launched temporary accommodation for prison leavers at risk of homelessness in five probation regions, because we know that having access to transitional accommodation is very important. We have invested a further £20 million in the Prison Leavers Project, which tests new ways to reduce reoffending by addressing the challenges people face when they leave prison.

[Lord Hodgson of Astley Abbotts (Con)]

I am of course impressed by the list of initiatives being taken by the Government and the roll call of money being spent, but it has not answered the question. We are not asking to spend money; all we are asking for is an administrative change. It may be an administrative change whereby the flexibility has to reflect the length of the sentence. We surely cannot be in a position where we cannot give prison governors a day or two of flexibility to enable them to set up a system of the sort that has been described all around the House. It must be possible.

Social Action, Responsibility and Heroism Bill

Lord Hodgson of Astley Abbotts Excerpts

Tuesday 6th January 2015 Lords Chamber

[Baroness Butler-Sloss (CB)]

My Lords, I have forborne to say a word on this Bill until this moment. I rise only to say that the phrase “act or omission” is extremely well known in the law and is one which judges—I, too, sat as a judge for many years—understand perfectly well. The word “activity” is ambiguous. The noble Lord, Lord Pannick, and Simon—I am sorry, I should have said “my noble and learned friend Lord Brown of Eaton-under-Heywood”; the trouble is I know him so well—have made absolutely clear the ambiguity of this word. I cannot understand why the Government do not just take the perfectly sensible phrase “act or omission”.

[Lord Hodgson of Astley Abbotts (Con)]

My support for this Bill has been very well documented. Notwithstanding the attacks on it from noble Lords and, especially, noble and learned Lords, I continue, albeit as a non-lawyer, to believe it will play a useful role in encouraging, or at least not discouraging, individuals getting involved and participating and in consequence strengthening our civil society and so improving social cohesion. I fully admit there are aspects of the Bill which overlap with the provisions of the Compensation Act and that the provisions of the Bill will not provide a complete solution to what some people argue risks becoming an increasingly atomised and introverted society. It is just as important that the Bill will help with better insurance provision and the busting of myths.

One of my principal reasons for supporting this short Bill is that it provides clarity; it uses short, uncomplicated language that is comprehensible to the regulars in the saloon bar of the Dog and Duck. On Report, this approach seemed to come under attack from what seemed to be two diametrically opposed reasons, which have started to reappear in our debate this afternoon. The first approach, which was adopted by the noble and learned Lord, Lord Lloyd, and which was supported on Report to some extent by the noble Lord, Lord Pannick, at col. 17, which I will not quote this afternoon, appeared to argue that this legislation was superfluous in that judges could always be relied upon to take into account the factors that form the subject of the Bill. Later on in our debates, the focus changed and a number of noble Lords, in particular the noble and learned Lord, Lord Walker of Gestingthorpe, at col. 46, argued that the provisions of the Bill were too wide and required focus and definition to guide the courts and judges.

This amendment in the name of the noble and learned Lord, Lord Brown, seems to be moving towards the second approach. I therefore have concerns about the impact this amendment may have upon the clarity of the Bill, at least as it is seen through the eyes of the regulars in the saloon bar of the Dog and Duck. I have listened carefully to the two noble Lords who proposed the amendment, and I hope that they will forgive me if I say, again as a non-lawyer, that I have concerns about what they propose. My question to my noble friend on the Front Bench is: do we need three words in the place of the current one word? “Activity” has a simplicity and a clarity which may be clouded by those additional words. Generally, the shorter the better, so my instinct is to resist this proposal. However, I await his further advice.

Before I conclude I turn briefly to government Amendment 2. I am grateful to my noble friend for having taken away the amendment I proposed on Report on 15 December and for having responded so positively. The amendment was originally put down in the name of my noble friend Lord Hunt of Wirral, whom I am glad to see in his place this afternoon and who unfortunately was not able to be present on Report. He will be able to speak far more eloquently about this than me. I close by repeating my thanks to my noble friend on the Front Bench. The change that he is proposing this afternoon will improve the balance by encouraging people to get involved but without encouraging them to do so in a thoughtless or irresponsible way.

[Lord Hunt of Wirral (Con)]

My Lords, I declare my interest as a partner in the global commercial law firm DAC Beachcroft and refer to my other interests in the register.

However, for the purpose of this short debate I add that I have just this morning returned from an expedition to Antarctica, where I must say my boundaries were severely tested. I found myself in the company of adventurers, and I have to tell the Minister that they greeted the Bill with enthusiasm. They took the view that we have achieved the wrong balance, with too much emphasis on health and safety, which, sadly, has led to the cancellation of a lot of trips similar to the one that I went on—I now hold an award and a certificate for following in the steps of Roald Amundsen. I did not go quite as far as he did, but I feel that I have seen the effect of taking risks on the development of one’s own personality and abilities. Younger people certainly benefit from those boundaries being tested. Therefore I bring to the Minister unbridled enthusiasm for the Bill and a slight questioning of why senior lawyers have found fault with it so much.

I speak from my own experience, having dealt with the Compensation Bill, which is generally accepted as a good Bill. At the time, it came under severe attack from some of the most senior lawyers in this House, who tried to explain that it did not add anything and that it should all be left to the judges. They asked why on earth we were repeating the judgment of the very senior noble and learned Lord, Lord Scott of Foscote, who set out the position very clearly indeed, which we repeated in Clause 1 of the Compensation Act 2006. But the general view is that that has done a great deal to calm people down and to stop the cancellation of a lot of adventure holidays.

Finally, I say to my noble friend the Minister how pleased I am that he has decided to delete the word “generally” and insert the word “predominantly”. I thought about all sorts of other words that could be used, as he may have guessed, but I think that the word “predominantly”—for someone to have to demonstrate “a predominantly responsible approach towards protecting the safety or other interests of others”—really clarifies the position brilliantly. I am very grateful to my noble friend for proposing that amendment today.

All that I will say to the other lawyers in the House, who are far more senior than I could ever aspire to be, although I have been in the same firm now for 50 years, is that I bow to their judgments—indeed, I have to observe them and listen to them on many occasions. However, I question for a moment whether it might not be more acceptable for the House to recognise that this Bill will do much to further the opportunities, particularly for younger people, to take the sort of risks that perhaps at my age I should never even have dreamt of, such as traversing the crevasses that I did over the weekend. I think that it did me a lot of good and will do them a lot of good, too.

Social Action, Responsibility and Heroism Bill

Lord Hodgson of Astley Abbotts Excerpts

Monday 15th December 2014 Lords Chamber

[Lord Lloyd of Berwick (CB)]

My Lords, there are many reasons why Clause 2 should not stand part of the Bill, but to my mind the main objection is also the simplest: it serves no useful purpose. The mischief at which the clause is aimed is already covered by existing law. The mischief in question, as defined by the Lord Chancellor in the other place, is that volunteers are being deterred from volunteering by fear of being sued for negligence. That is the very same point specifically covered by Section 1 of the Compensation Act 2006, passed less than eight years ago.

The whole purpose of that section was to encourage people to undertake what the section calls, “desirable activities”. The whole purpose of Clause 2 of the Bill is to encourage people to act,

“for the benefit of society”.

Those are two ways of saying exactly the same thing. Nobody has yet been able to detect any difference between them. Indeed, the Lord Chancellor said that Clause 2 is not intended to change the existing law, so why do we need another piece of legislation covering exactly the same ground now?

The noble Lord, Lord Faulks, accepted that:

“Clause 2 relates to broadly similar territory to that in Section 1 of the Compensation Act”,

but he added that,

“the approach that it takes is different”.—[Official Report, 4/11/2014; col. 1573.]

He did not explain exactly what he meant by the approach being different. When pressed, he said that the 2006 Act had been “ineffective”. However, the only evidence relied on for that assertion—literally the only evidence—was a survey carried out about eight years ago. All it showed was that 47% of a very modest sample, some 300 people at most, said that there was a risk of being sued and that that risk was an issue to be considered. That survey was carried out in 2006-07, before Section 1 of the Compensation Act could possibly have had any effect, so how can it be relied on as showing that Section 1 of the 2006 Act has been ineffective? At the time of that survey, it had not had time to take effect.

A recent report produced by the Joint Committee on Human Rights considered the evidence in support of the Government’s case for fresh legislation in this field. It concluded that the only evidence was almost entirely anecdotal. It said that such evidence was not a sound basis for legislation, and that must surely be right. We now have before us a clause for which there is no evidence of any need covering exactly the same ground as Section 1 of the Compensation Act, which was passed less than eight years ago, and covering the ground already covered by the common law. In negligence cases, judges have always had regard to the matters referred to in Clause 2.

If that was not enough to condemn the clause—although I suggest that it is—the National Council for Voluntary Organisations has recently said that this clause, even if it is to form part of the Bill, will have very little, if any, effect. Indeed, that was the Government’s own case. Paragraph 23 of their impact assessment states that any reduction in claims for negligence will not be substantial.

If, as I suggest, these reasons are nothing like enough to justify the inclusion of this clause, one is driven to ask: what is the real reason the Lord Chancellor is bringing forward this unnecessary clause for our approval? There can be no doubt about the answer to that question, because the Lord Chancellor himself said it over and over again in the other place. The real reason is that the Lord Chancellor wants to send out, as he put it, a strong signal that if people are trying to do the right thing—he used that sort of phraseology over and over again—the law will be on their side. In other words, the justification for including this clause in the Bill is nothing other than a publicity exercise on the part of the Government. If that is the case, and I suggest that it is, it is a flagrant misuse of the legislative process. The purpose of legislation is to make new law or to change existing law so that it can be enforced in the courts. This clause does not purport to do either of those things. It could not be enforced by the court, which is why it will be treated with derision when it comes before the courts—a word that was used by a recent Solicitor-General, Sir Edward Garnier, speaking from the government Benches in the other place. The clause should be rejected on that ground, if none other.

Finally, I should mention points made during the debate in Committee. The noble Lord, Lord Hodgson of Astley Abbotts, who I am glad to see in his place, is in favour of Clause 2. He was chair of the task force which published in 2011 the report Unshackling Good Neighbours. His view is obviously, therefore, entitled to great weight on that ground. I hope, however, that he will forgive me for saying that he did not really answer the point that Clause 2 covers exactly the same ground as Section 1 of the Compensation Act 2006, which should be given much more time to take effect.

On the other hand, the noble Lord, Lord Blair, said that, while he was broadly in sympathy with the Government’s objective, this was, as he put it,

“frankly, a lousy way to do it”.—[Official Report, 18/11/14; col. 404.]

It was smoothing over all the difficulties with words that have very little meaning. The noble and learned Lord, Lord Hope, went further. He was extremely critical of the drafting because of the use of the same word, “person”, in Clauses 2 and 4 to cover two entirely different persons. He said it was a great pity that the Government had not faced up to the real problems in this area. As a result, he said, he was deeply troubled by the clause as it stands.

For all these reasons, I hope the Government will think again before pressing ahead with this unnecessary clause. I beg to move.

[Lord Hodgson of Astley Abbotts (Con)]

My Lords, the noble and learned Lord was kind enough to say some nice things about my report, and I reciprocate by saying that I have had the pleasure of serving under his chairmanship of various committees, and he has always been a punctilious and perceptive chairman. He is particularly kind in being ready to listen to and appreciate the views of those of us who are not learned in the law.

I hope that he will forgive me, but, once again, I cannot support his proposal this afternoon, and I urge my noble friend on the Front Bench not to do so either. We had a pretty thorough discussion of this issue in Committee on 18 November, and I do not intend to repeat the remarks I made then. As I understand it, and as I understood then, the noble and learned Lord is concerned about interplay between this piece of legislation and the Compensation Act 2006. I understand his desire for legal clarity and legal purity, but I have another objective, and that is of legal connectivity.

The report that I produced for the Government, Unshackling Good Neighbours, to which he kindly referred, looked in some depth at what was inhibiting people from getting involved in society and acting as a trustee, and whether they feared potential legal consequences. We received examples in sufficient numbers, which cannot simply be dismissed as anecdotal—a term that I sometimes feel is somewhat patronising. The noble and learned Lord sought to reassure the House that, if a case came to court, the court would throw it out, would, in his phrase, “have regard for the circumstances”. With respect, he may have overlooked the effect on an individual of the agonising, expensive, lengthy and psychologically depressing process of preparing the case—this against the background that, in the event, the court may not throw the case out.

I continue, therefore, to believe that this legislation sends an important signal—there I agree with the noble and learned Lord. This signal may seem unnecessary in the cool, calm, reflective atmosphere of the Inns of Court, but it has a greater resonance at the coalface of our civil society.

At another level, I am particularly looking forward to hearing the final determination of the Opposition’s position on this issue. The noble Lord, Lord Beecham, is a witty speaker and a very practised politician. He has made some disobliging remarks about the contents of the Bill, but he has so far not moved beyond that point. I suspect that, as a practical politician, in his heart of hearts, he knows that this is an issue that, in the minds of the public, needs addressing, and which this Bill does so address.

Before I conclude, I reiterate one other point that I made in Committee. I do not argue for a single minute that the Bill is a silver bullet as regards encouraging volunteering or greater participation in our society. There is much else to be done besides. Better insurance arrangements are crucial, as is the need to debunk myths about the legal consequences of day-to-day actions, too often assiduously and repeatedly promulgated in the press. However, even if the Bill is not a silver bullet, it is a bullet, and one well worth firing. I hope that my noble friend on the Front Bench will resist the noble and learned Lord this afternoon.

[Lord Pannick (CB)]

My Lords, we have had our fun on this Bill at Second Reading and in Committee. I, for my part, cannot remember a legislative proposal that has been the subject of more sustained ridicule and derision. We now come to the serious business. I have been studying and practising law for 40 years—not as long as many noble Lords, but a long time—and I cannot remember a more pointless, indeed fatuous, piece of legislation than Clause 2 of this Bill, with the possible exception of Clauses 3 and 4 of this Bill. As the noble and learned Lord, Lord Lloyd of Berwick, has explained and as we have previously discussed—and as is not in dispute—Clause 2 will not change the law. Courts already have regard to whether the alleged negligence or breach of statutory duty occurred when the person was acting for the benefit of society or any of its members. I referred to the leading cases at Second Reading. The Minister has at no stage suggested that there are any cases in which courts have ignored such obviously relevant factors.

What then is the point of Clause 2? As the noble and learned Lord, Lord Lloyd, has already explained, the Lord Chancellor, Mr Grayling, has been very clear. He wants Parliament to send a message. But if the object of the legislation is to encourage people to volunteer and to encourage heroism without people being concerned about possible litigation—the objective referred to a few moments ago by the noble Lord, Lord Hodgson of Astley Abbotts—Mr Grayling should buy a half-page advertisement in the Sun or the Daily Mail or, if he wants to reach younger citizens, open a Facebook page or set up a Twitter account, and simply tell people the obvious truth, that the law is already on their side. That would be a much cheaper and more effective way in which to communicate a message than to take this sad Bill through all its stages in Parliament.

It is simply ridiculous for the Government to suggest that people who are currently inhibited from volunteering by a fear of litigation are somehow going to step forward when they hear—if they do—that we have approved Clause 2 of the Bill. Mr Grayling cannot seriously think that around the dinner table tonight, or in the Dog and Duck public house, or anywhere, people will say to themselves, “I see that Clause 2 has passed its latest stages in the House of Lords. I look forward to its speedy enactment next year because then I will be much more willing to volunteer and act like a hero, my concerns about litigation having been removed”.

[Lord Hodgson of Astley Abbotts]

I am very grateful to the noble Lord for giving way. It is not just people in the saloon bar of the Dog and Duck who are influenced by this; it is also the professional advisers. In the example that we discussed in Committee, the problem was that many solicitors offering advice to people actually provide advice that might be changed by this legislation.

[Lord Pannick]

With great respect, there is even less justification if we are going to ask the question about professional advice from solicitors, because we are surely entitled to assume that solicitors are capable of understanding basic law. This is not complicated law: it is trite, obvious law that already protects those who volunteer and act as heroes.

It has been said at previous stages of the Bill that we often legislate in the hope of changing people’s behaviour. Reference has been made, for example, to the Race Relations Act. But what is different and what is exceptional about Clause 2 is that it does not purport to change the law one jot or iota. All that it will do is enable Mr Grayling to say that he is in favour of social action; and when we come to Clause 4, he will be able to say that he is in favour of heroism, as if the rest of us were not. I object to legislation being used by the Government to send what is no more than a political message.

In paragraph 125 of its excellent report, published last week, on the office of Lord Chancellor, your Lordships’ Constitution Committee stated that the Lord Chancellor should have,

“a clear understanding of his or her duties in relation to the rule of law and a willingness to speak up for that principle in dealings with ministerial colleagues, including the Prime Minister”.

The Lord Chancellor ought to understand that it is part—an important part—of the rule of law that the statute book has a role and a purpose: it is a purpose distinct from a party conference speech or a party election broadcast. Clause 2 simply debases the parliamentary currency and it therefore undermines the rule of law. If the noble and learned Lord, Lord Lloyd of Berwick, decides to test the opinion of the House on Clause 2, he will certainly have my support.

--- Later in debate ---

Moved by

[Lord Hodgson of Astley Abbotts]

1A: Page 1, line 12, leave out “generally” and insert “predominantly”

[Lord Hodgson of Astley Abbotts]

My Lords, Amendment 1A may be less controversial than the matter that we have just finished discussing, although in matters of the law you never quite know. The amendment was originally tabled in the name of my noble friend Lord Hunt of Wirral, and I added my name to it. My noble friend has had to travel to northern England today on business, so is unable to be here in time to move this amendment. I am moving it on his behalf.

The amendment is very simple: a one-word change to Clause 3, the clause entitled “Responsibility”, to which the noble Lord, Lord Beecham, referred earlier. It replaces “generally” with “predominantly”, so that the clause will read:

“The court must have regard to whether the person”,

demonstrated a “predominantly”,

“responsible approach towards protecting the safety or other interests of others”.

The question was whether the use of “generally” was sufficiently focused to achieve the appropriate balance in individual cases. The adverb “generally” has three definitions in the Collins English Dictionary. The first is “usually; as a rule”. The second is “commonly or widely”. The final one is,

“without reference to specific details or facts; broadly”.

I suspect that what your Lordships’ House will wish the courts to consider, if this Bill passes into law, is whether the defendant will first claim that he was demonstrating an approach which on that occasion was in the main responsible in protecting the safety of others as opposed to the approach which usually, but not necessarily on that occasion, was responsible. Replacing “generally” with “predominantly”—we return to the Collins English Dictionary definition, which is,

“for the most part mostly and mainly”—

should provide the courts with the power to examine the approach of the defendant at the material time and avoid them having to consider the approach demonstrated at other times or taking the matter even wider, enabling them to take into account the approach followed other than that at the material time.

This Bill has an important role to play in reassuring potential volunteers, but equally it should not encourage behaviour which is thoughtless or irresponsible and thus puts others at risk. This change of word may better balance the two aspects, and I hope that the amendment will find favour with my noble friend. I beg to move.

[Lord Beecham]

My Lords, Clause 3 is the one clause in the Bill which the Government acknowledge embodies a substantive change in the law. In Committee, I moved an amendment to remove “generally” from the requirement on the court to consider whether,

“the alleged negligence or breach of statutory duty … demonstrated a generally responsible approach towards protecting the safety or other interests of others”.

Neither at Second Reading nor in Committee did the Minister define the meaning of “a generally responsible approach”, and in replying to the debate in Committee he acknowledged that the term was “unusual” in statutory terms. Indeed, he indicated that he would,

“consider carefully whether and to what extent it adds anything to what is in the clause at the moment and whether, on balance, it takes the matter any further”.—[Official Report, 18/11/14; col. 414.]

We await with bated breath the outcome of the Minister’s deliberations along with his response to the amendment tabled by his noble friend, who is seeking to ratchet up “generally” to “predominantly” in the proposed clause.

I have to say that neither term is satisfactory in terms of either definition, which is entirely lacking, or effect. Why should someone suffering damage through an act of negligence or breach of statutory duty be denied compensation on the grounds that the act or omission was in effect a first offence, or at any rate a rare offence? What, for that matter, constitutes a “responsible” approach? How does the Minister define those terms? Moreover, and crucially, the clause is not limited to social action, responsibility or heroism, terms which are in themselves undefined and undefinable, or to personal injury cases. We are dealing not just with safety but, in terms of the clause, with other interests. As I reported in Committee, the Minister in the House of Commons, Mr Vara, affirmed that the clause,

“could in principle be applicable in relation to other instances of negligence such as damage to property or economic loss where issues of safety may not necessarily be relevant”.—[Official Report, Commons, 20/10/14; col. 693.]

Why should a negligent builder, medical practitioner, accountant, surveyor or even solicitor—I declare my interest—escape liability for what might even be catastrophic damage because he has been hitherto “predominantly” responsible? Negligence can lead to large losses outside the realm of personal injury. Is not the reality that this badly drafted clause is yet another concession to the insurance lobby, which ordinarily would of course stand behind the defendant in such claims?

Many Members of your Lordships’ House will have received an e-mail today from one of those pressure groups which so exercise the Lord Chancellor in relation to judicial review. In this case, the pressure group is one which we can be confident he entirely approves of: it is the CBI. Its curiously worded communication supports Clause 3 on the grounds that it,

“provides better protection against accidents for those firms—particularly the small and medium sized companies that already have good health and safety processes in place”.

Of course, it does nothing of the sort. It provides “better protection” against claims for negligence arising from accidents and it extends, of course, to large employers as well as medium-sized and small employers.

The e-mail goes on to suggest that,

“this clause will encourage the courts to recognise that safety is a shared responsibility”,

as if the courts do not already do so, and do not make findings of contributory negligence when a claimant fails to take proper precautions, or dismiss a claim when he is wholly responsible. Of course, again, the CBI ignores the fact that the clause extends to all types of negligence, including by small and medium-sized businesses which might well find themselves a victim of negligence other than of the kind leading to personal injury.

As the CBI’s response eloquently exemplifies, this whole Bill has all the hallmarks of being drafted by the Lord Chancellor on the back of a small envelope. This clause, in particular, is deeply objectionable. Unless the Minister is prepared to abandon the clause, I shall invite the House to divide and consign the envelope to the parliamentary waste bin.

--- Later in debate ---

[Lord Faulks]

I do not have the full context of what my ministerial colleague said in the House of Commons, but I do not believe that I am in error when I give the reasons for my answers to the various questions that have been posed. As I say, these words are not mere surplusage; they are put in to clarify and limit the extent to which “generally responsible” has an application.

I suggest that this provision is an important but modest reflection of what many people would say was a sensible encouragement of employers to adopt a predominantly or generally responsible attitude to the safety or other interests of others—but which, in appropriate circumstances and subject to the court’s overall discretion, allows these matters to be taken into consideration. That is as far as it goes. It is a modest but, I suggest, sensible addition to the law—and it is an addition to the law, as I think is accepted. Given the clarification I have attempted to give the noble Lord on the limit of the measure’s scope, I invite him to withdraw his amendment.

[Lord Hodgson of Astley Abbotts]

My Lords, I am grateful to my noble friend for returning to Amendment 1A. I thought for a moment that it had been forgotten in the heavy-duty exchange of legal artillery that was flying across the Chamber. I am also grateful for his reassuring remarks about the possibility of something further being introduced along the lines of “predominantly” if the Bill survives the challenge from the noble Lord, Lord Beecham. In those circumstances, I am happy to withdraw the amendment.

Amendment 1A withdrawn.

--- Later in debate ---

words which we are now invited to omit—would be treated as a sufficient context to indicate that, contrary to all normal principles of statutory drafting, “individual” and “person” were being used interchangeably. However, if those words drop out, the person who is acting heroically—whatever that means—is either an individual or a body corporate. No doubt a body corporate charged with providing emergency services in a particular district is a person acting heroically. I suggest that at Third Reading serious thought should be given to the neglect of basic principles of statutory draftsmanship which the Bill reveals.

[Lord Hodgson of Astley Abbotts]

My Lords, I, too, congratulate the Government on leaving out the 11 words at the end of this clause. Particularly following our debate in Committee, it appeared to me that a “person’s own safety” is not necessarily a part of heroism, so it is a useful removal.

The noble and learned Lord, Lord Lloyd, in speaking to his amendment to leave out the clause, said that his reasons for wishing to do that were broadly the same as his reasons for tabling Amendment 1, which concerned Clause 2. I understand that, and therefore draw the conclusion that I drew a couple of hours ago. I hope that my noble friend will resist that amendment.

[Lord Beecham]

My Lords, the noble and learned Lord, Lord Brown, asked what was added by the reference to heroism in the Bill. The answer is that it allows the Government to bestow an acronym on the Bill; otherwise, it would simply be the “Social Action Responsibility Bill”. Now, we have the words “and Heroism”, which make a convenient acronym. That is an interesting way of proceeding with the drafting of legislation and I concur with the noble and learned Lord’s criticisms of that process.

Having said that, the Minister has at least made a concession by, in effect, accepting the amendment moved by the noble Lord, Lord Pannick, to which I subscribed, as I said before. It was of some comfort that St John Ambulance, which was certainly in touch with me and, I suspect, other noble Lords, welcomed that change. The clause does not substantially affect anything, as we have already heard. However, in so far as this modest change makes it marginally more palatable, I welcome the Minister’s concession. He has not been able to offer too many concessions, but I am glad that he has prevailed on the Lord Chancellor on this occasion to make a gesture of an unfamiliarly generous kind to this House. I support the amendment.