Criminal Justice System: Capacity

Lord Hope of Craighead Excerpts

Tuesday 22nd October 2024 Lords Chamber

[Lord Ponsonby of Shulbrede (Lab)]

I do not agree with the premise of the noble Lord’s question. It is not right that we will see an increase in the number of short sentences. Certainly, in my experience as a sentencing magistrate who gave short sentences, I gave them only to those who were already on community orders or suspended sentences. I cannot remember giving a short sentence to somebody who had a previous good character.

[Lord Hope of Craighead (CB)]

My Lords, can the Minister say a little more about training? I understood him to say that it would be available to magistrates who feel that they need it. Is it not better that there should be some supervision to identify which magistrates really need training? When will the training be available?

[Lord Ponsonby of Shulbrede (Lab)]

All magistrates were trained the first time these sentencing powers were put in place. Of course, there will be some new magistrates aboard and some who feel that they would like to retrain, so there will be online courses available either for refreshing or for magistrates who are relatively recently in post. The magistrates are regularly appraised—winger magistrates every four years and presiding magistrates every two years—so we can be confident that the standards are being kept up.

--- Later in debate ---

[Lord Ponsonby of Shulbrede (Lab)]

Of course, I accept the point. The objective is not to change the number of people who are remanded in custody, because obviously that is a judicial decision, but to reduce the time those who are remanded in custody spend in custody. If we can do that through reducing the backlog, that will be a desirable effect. We think that some 2,000 days of Crown Court sittings could be saved by this change to the rules of magistrates’ sentencing powers.

[Lord Hope of Craighead (CB)]

Can the Minister assure us that the training of magistrates covers the circumstances in which it is right for somebody to be remanded in custody? Following the riots, suspicions were raised that some people were being remanded without true consideration of whether they justified that treatment. It is rather an important issue, and I hope that the training does cover it.

[Lord Ponsonby of Shulbrede (Lab)]

I absolutely assure the noble and learned Lord that remanding in custody is covered in magistrate training. When I used to oversee new magistrates, I said to them on their first day in court that remanding in custody is the most difficult decision they will make, both on the first day and on the last day. It is consistently a difficult decision to make and one that magistrates and the judiciary, I am sure, are fully aware of and trained in.

Arbitration Bill [HL]

Lord Hope of Craighead Excerpts

Committee stage
Wednesday 11th September 2024 Lords Chamber

[Lord Hoffmann (CB)]

My Lords, I declare an interest in that, since retiring from the Appellate Committee of your Lordships’ House, I have practised as an arbitrator. More to the point, I was the presiding arbitrator in the Nigerian case to which the noble Lord referred. Of course, no one could object to the sentiment behind the noble Lord’s amendment—we all disapprove of bribery and corruption—but the question your Lordships have to think about is: what does that mean we arbitrators are supposed to do in practice?

Take, for example, the Nigerian case to which the noble Lord referred. It was a claim for breach of contract against the Government of Nigeria: they were supposed to supply the claimants with quantities of gas over a very long period, but they did not do so. The question was: was that a breach of contract? If it was, what were the damages to be? No objection was made on the validity of the contract. We heard the arguments about whether there had been a breach, and we decided there had. Eventually, at another hearing, we went into the question of what damages had to be paid. Arguments were again brought, with expert witnesses on both sides, and we came to the conclusion that it was a large figure, because the gas was due to have been supplied over a period of 25 years and it all added up. That was the rub.

As the noble Lord said, at the hearing before Mr Justice Knowles it turned out that there had been some bribery and corruption in obtaining the contract and in the conduct of the litigation. None of this was known to us. So the question is: what ought we to have done? Should we have said to the parties at the beginning, “By the way, can you please assure us that there has been no bribery and corruption?” It seems an extraordinary ritual that we would have had to go through, and it would have to be the case in every arbitration.

Arbitration is a consensual arrangement. The parties have agreed that each of them will come before a tribunal, that each will present his case and that the tribunal will decide on the basis of the arguments the parties present. Is it consistent with that form of decision-making that the tribunal should attempt to dig away at a point on which the parties have not relied? Of course, if one of the parties suspects that there has been bribery and corruption on the other side, so to speak, that would enable it to resist the application, it would no doubt do so. But, in a case in which neither party raises this point, it is difficult to see what the arbitrators can do.

It is also difficult to see why that should not also be the case in ordinary litigation in the Commercial Court. Is the judge in the Commercial Court to say to the parties, “Has there been any corruption? Nobody’s mentioned it yet, but can you please tell us and inquire as to whether there’s been corruption?” It is quite inconsistent with the way in which litigation and arbitration are conducted that the tribunal should have to take that sort of active investigatory role.

As far as I can see, all that introducing this amendment would do is add a formalised ritual to the conduct of arbitrations, and it may even provide a technical ground on which a party who has lost an arbitration can say, “Well, it’s true that I can’t say there was any corruption, but the tribunal didn’t do enough to investigate whether there was, and that was a breach of its duty under this new provision in the Arbitration Act”. It would therefore create uncertainty and unnecessary difficulties in the way in which arbitrations are conducted. For that reason, I invite your Lordships to reject the proposed amendment.

[Lord Hope of Craighead (CB)]

My Lords, I entirely endorse what my noble and learned friend Lord Hoffmann has said, but I would like to say a word about the procedure that the noble Lord, Lord Hacking, has invited the Minister to adopt. Surely the stage of conferring with people as to what they think about this amendment has passed. This matter could have been raised in the Committee of the noble and learned Lord, Lord Thomas —it was not, of course—but now it is a matter for this Committee to decide whether or not to accept the amendment. It is as simple as that. With great respect, I think it is a matter for the Committee and not for anybody else now. I agree with my noble and learned friend Lord Hoffmann that this amendment should not be accepted.

[Lord Thomas of Cwmgiedd (CB)]

My Lords, I agree with both the noble and learned Lords, Lord Hope and Lord Hoffmann, that this amendment ought not to be accepted. However, it seems to me, as the noble and learned Lord, Lord Hoffmann, said, that everyone agrees with the sentiment behind what the noble Lord, Lord Hacking, has proposed.

I had thought that we had agreed how to deal with this matter when the then Minister dealt with it at a hearing of the Special Public Bill Committee. I raised this point by way of an amendment to the old Arbitration Act. The Minister agreed, in response to that, that he would write to the arbitral institutions and we would see what the best practice was. I had assumed that all that would be made public, and I am entirely at a loss to understand why the letters that were written and the responses have not been made public. It would be extremely helpful to have all this information put into the public domain to show, for the benefit of London, what was being done to address this point. As I understand it, these were documents written by the Minister in his capacity of trying to deal with a problem that had arisen and was discussed in this House. It would be very helpful to have a discussion and look into the matter in detail. If something needs to be done—more than is being done—we can return to it. Certainly, we ought not to delay the Bill by this amendment.

Criminal Justice Act 2003 (Requisite and Minimum Custodial Periods) Order 2024

Lord Hope of Craighead Excerpts

Monday 29th July 2024 Lords Chamber

[Lord Beith (LD)]

We have all welcomed the Minister in three debates on three successive sitting days, so he has been thrown in at the deep end of parliamentary accountability. However, he has received some pretty sound advice from all the preceding speeches, including in the well-directed questions from the noble Lord, Lord Moylan.

Today what we are faced with from a parliamentary accountability point of view is not satisfactory. We know that the Government are caught in a difficulty whereby they have had to deploy a statutory instrument without it having gone to the Joint Committee on Statutory Instruments, on which I have served. That is a shame, because that committee and its excellent team of advisers go through statutory instruments in great detail and sometimes find mistakes. They occasionally find mistakes that throw into question the validity of the instrument and the ability to enforce it, so I hope that extreme and extra care has gone into the drafting of this instrument, which is quite complicated. For example, there are 54 excluded offences, and many other complications affecting various categories of prisoner. So we hope that it is looked at very carefully—and, in a defect is found, we hope that the Government will come back at a later stage with a revised instrument.

What we have today is not a policy but a response. The Minister gave some indications of how policy might be developed, but we are not there—we are not at that point. We are simply observing a government response to a desperate crisis, which any incoming Government would dread—well, it is happening. It is the result of underinvestment and delayed investment in prison building over a long period and the constant rise in the number and length of custodial sentences, as well as the large rise, to which the Minister referred, in the number of remand prisoners, which itself is largely the result of the huge backlog in serious cases coming to court, as part of the wider chaos that we find in our criminal justice system. I ask the Minister: is it in fact the case, as alleged in the press, that sentencing hearings for prisoners on bail have been deliberately delayed to avoid further sentences sending people into our already overcrowded jails?

We have a prison population that is three times the level it was when I became a Member of Parliament. The noble Lord, Lord Deben, has referred to how that contrasts with other European countries, and I share his concern about the fact that it has happened and that it is so out of line with how most countries view the same problems of crime that we face. The announced prison building programme cannot solve the problem, although it is needed. We have to remember that, when the prison building programme that we have now was announced, much of it was intended to replace unsuitable and inadequate prison accommodation—not to add to the total stock but to replace accommodation that should not continue to be used.

We have a prison system that cannot house its prisoners and cannot rehabilitate them, and we have as a result a completely unacceptable level of violence against prison staff as well as prisoner-on-prisoner violence.

Nothing we are doing today will change this. We have to review the trend of the ever-increasing use of custody. For that to happen—here I repeat what I said last week—we need to strengthen community sentencing and the services necessary to make it effective. We also need to establish a measure of crime and its seriousness which does not make custody the only means by which society can assert its abhorrence of serious and persistent crime. That is fundamental to the problem we have at the moment: the only way society knows how to recognise and deal with crime, as is reflected in the media and in ordinary conversation, is to say that we are not going to put up with these dreadful crimes and so we should put people in jail for longer, even if it is not relevant to the rehabilitation of the offender when they are eventually released. We have to face up to that problem, and that is going to require real leadership, rather than party-political leadership. The Minister has a background that makes him well suited for this; I hope he is given the scope to carry out that kind of leadership.

[Lord Hope of Craighead (CB)]

My Lords, I am intervening just to ask a question. The Minister used the word “stabilised” twice, I think, during his presentation of this instrument—he is looking forward to a stage when the Government can feel that the prison crisis has stabilised. Can the Minister explain a little more of what he means by the word “stabilised”? The point is this, as the noble Baroness, Lady Jones of Moulsecoomb, made clear: we are sending too many people to prison, and therefore one of the ways of stabilising the problem is by addressing rigorously the overuse of prison as a means of punishing crime. I am sure the Minister is well-equipped to carry out that campaign.

The other feature of our present treatment of offenders, particularly serious offenders, is the length of the prison term. I was Lord Justice General in Scotland some years ago, when I had the task of reviewing the tariffs to be imposed on discretionary life prisoners. These are people who, unlike murderers, were sentenced to life imprisonment because of the gravity of the crime they had committed. The average tariff I was imposing in line with what was the current practice then—this was about 20 or 30 years ago—was something like 11 years; now, it is way above that, at 17 or 18 years, or more, and lengths of sentences are going up into the 30s. In my time as Lord Justice General, such lengths of sentences were quite unimaginable, and I am not sure it is doing any good except to keep people in prison longer than ever before. That is why the crisis has grown. There is a fundamental problem that has to be addressed, and I urge the Minister to explain what he means by “stabilise”. Perhaps the Minister could also address more closely—not today, and not even in writing to me, but later, in discussion with officials—how the problem can be corrected, so that we do not find ourselves in two years’ time facing the same crisis we are facing today.

Beyond that, I commend the drafting of the regulation. I think a great deal of thought has gone into the measure. It has been carefully thought through and, as a means of dealing with the crisis, it is exemplary. However, it is the underlying problem that must be addressed, not the particular crisis itself.

[Lord Brooke of Alverthorpe (Lab)]

My Lords, I welcome the Minister to his appointment and wish him well. I assure him that many people in the House will be anxious to assist him, so that we can move away from the inevitable decade-on-decade increase in the number of people in prison. When the last Government went out, we had 87,000 people in jail, and we now have 97,000 people in jail. I do not think there is any point in pointing to any party-political basis; we should be seeking to come together to take a longer view. I share precisely the views expressed by the noble Lord, Lord Deben: when we look at what is happening in Europe, why are we so different?

If the Netherlands has got empty spaces in its jails, why are we not sending some prisoners there? If Denmark has got empty spaces in its jails, why are we not sending some prisoners there? That is not to say that I think we should be about sending prisoners elsewhere; we should be about trying to get to the fundamentals behind what happens with criminal acts, and looking then at how we deal with people. We need to try to find a more civilised way of handling many of the cases in which people need not go to jail.

In particular, I get increasingly concerned about the problems we encounter with mental health within jails. I know a number of people working in jails from different angles, and the constant complaint is that there are so many people there who should not be in jail but who should in fact be cared for on a mental health basis rather than being incarcerated.

I have a couple of questions there, including on whether we can export people temporarily. I support the statutory instrument, but I hope that the Minister might be able to say that it is high time that we did not just have a review of the reasons why we have our current problems but that we in fact have an all-party approach to try to get a longer-term analysis of our fundamental difficulties, and of what new and more civilised steps can be taken. Then at least, stability could come from not increasing from the present numbers when we review this in 10 years’ time, and within the Government’s five-year period we might have a proper analysis of the underlying causes and a real strategy devised where we could all come together to work for a better life in the future.

Recognition and Enforcement of Judgments (2019 Hague Convention etc.) Regulations 2024

Lord Hope of Craighead Excerpts

Friday 24th May 2024 Lords Chamber

[Lord Thomas of Cwmgiedd (CB)]

My Lords, I warmly welcome this instrument. It is a singular achievement that we have done this. To an extent, it will remedy the EU’s refusal to allow us to accede to the Lugano Convention. As the Minister said, it is extremely important in making sure that litigants who come to this country know that their judgements will now be much more easily enforceable. I add that the Arbitration Bill which was before this House would have achieved exactly the same objectives. It is extremely important to the international position of London as an arbitration and litigation centre that we keep our law up to date.

I thank all noble Lords—the Minister, in particular, as well as the Whips and the Government Chief Whip, the Leader of His Majesty’s Loyal Opposition and their Chief Whip, and others on their Front-Bench team—and others in the other place for all they did to try to get the Law Commission Bill into the wash-up. A lot of loud noise was made, but it did not succeed.

I want to look forward and say that it is critical that overseas litigants who might choose London to have their disputes arbitrated, whether in contracts now or for the future, realise that this is, I hope, but a temporary hiccup and that we will find the means, with the co-operation of the Government and the Opposition, whichever roles they may be playing, and with the welcome support of those on the Liberal Benches, to go forward without having to go through it all over again. The Bill was agreed. There is one small amendment to be made to clarify something, but I hope we can get it on to the statute book as early as possible. It is a Bill that would help this country make money, and that, I am sure everybody agrees, is an imperative.

I thank the Minister enormously for what he has done while he has been in his position. As a Minister in the Ministry of Justice, he has laboured mightily on many matters, but I thank him in particular for what he has done to ensure that London stays at the forefront in the highly competitive world of dispute resolution in court and in arbitration.

[Lord Hope of Craighead (CB)]

My Lords, I too very much welcome this measure for various reasons, which are set out very well in the Explanatory Memorandum. Some of the features which are set out in it are the care that has been taken to consult at various stages, the response to the consultation, and working together across the various jurisdictions within the United Kingdom to achieve harmony in the way we respond to the challenge that this convention has presented us with. The result is a happy one, and I am very happy to offer my support for this measure.

I join with the noble and learned Lord, Lord Thomas of Cwmgiedd, in his remarks about the Arbitration Bill. For the reasons he has given, it is extremely important that this Bill be brought back at the earliest possible opportunity and with the least possible complication. I know that there are procedures that always have to be gone through for Law Commission Bills, but it was very thoroughly debated at all its stages. It was really ready to go and it is a great disappointment that it has been lost because of the calling of the election. I hope that all those involved can move quickly to bring the Bill back, so that we can get the benefits the noble and learned Lord has identified.

Lastly, I join with him in expressing great appreciation for all that the noble and learned Lord the Minister has done in his position on behalf of the Ministry of Justice. It has been a pleasure to work with him and we wish him well for the future.

[Lord Hacking (Lab)]

My Lords, I do not know whether my noble friend Lord Ponsonby is going to intervene, but I would just like to endorse entirely what the noble and learned Lords, Lord Thomas and Lord Hope, have just said. I speak as a member of the Public Bills Committee, which was so well chaired by the noble and learned Lord, Lord Thomas, and I hope my side of the House or the Minister’s side of the House will quickly bring back the Arbitration Bill, for all the reasons given by the two noble and learned Lords.

Victims and Prisoners Bill

Lord Hope of Craighead Excerpts

Report stage
Tuesday 21st May 2024 Lords Chamber

The second reason that I will not be dividing the House is that, as he has already explained, the noble and learned Lord, Lord Thomas of Cwmgiedd, has tabled Amendment 149A, which drops the issue of burden of proof, as I had, and focuses solely on this point about proportionality. I am persuaded by his arguments that that is the key point. It also might be easier for noble Lords to vote for a trimmed-down amendment that focuses on that very narrow point. So, if the noble and learned Lord does, as he has indicated, divide the House on Amendment 149A, while I will not be pressing Amendment 145 to a vote, I will join him in the Lobbies on Amendment 149A.

[Lord Hope of Craighead (CB)]

I would like to say a few words about Amendment 141 in the name of the noble Lord, Lord Blunkett, to which I have put my name, and also, briefly, about Amendment 145 in the name of the noble Lord, Lord Moylan, to which, again, I have put my name.

Before making those remarks, I join both noble Lords in paying tribute to the noble and learned Lord the Minister for all the work that he has been doing to find a way of progressing this deeply damaged group of prisoners towards safe release. I use the words “deeply damaged” because, as the noble and learned Lord, Lord Thomas, has reminded us, there is a grave effect on them of being detained for so long under preventative sentences with no prospect of release. This has had the result that many of them suffer from a variety of conditions that make the process of releasing them so much more difficult than might have been expected to be the case when they were sentenced. They have faced the trauma of detention in overcrowded prisons without the support they needed, mental health problems, substance issues and various other points that the Minister himself told us about in Committee.

It is impossible for us, who have not seen and studied the files that have been kept on the cases of each of these prisoners, to appreciate the magnitude of the problem that the prisoners themselves face and that faces the Parole Board too. All we have are the numbers: the number of those in the various groups who have never been released, the time they have remained there in comparison with the tariff which they would have faced had they been given a determinate sentence, and the number of those who have been recalled to prison because their licences have been terminated.

The bare statistics are as depressing as ever, with no end in sight for so many of them. That is why so many of your Lordships, including the two noble and learned Lords who are no longer with us, have been pressing for so long for things to be done to enable the situation to be reformed. The various amendments that the Minister has introduced have gone a long way towards mitigating the problem that these preventive-sentence prisoners have been facing for so many years. The changes that have been made to the process for the review and termination of their release from prison on licence are also especially welcome.

Amendment 141 in the name of the noble Lord, Lord Blunkett, seeks to put the Government’s existing action plan for this group of prisoners on to a statutory basis. I will not go over the details, but I draw attention to the wording of one provision in the opening subsection of the proposed new clause, which sets out in clear language the purpose of the action plan proposed by the noble Lord, Lord Blunkett. It says that its purpose is

“to ensure that all possible steps are taken to ensure the earliest possible safe release and progression”

of this group of prisoners, so it flags up at the outset what this action plan is designed to do.

When we were in Committee on 12 March, I asked the Minister whether there was some way of getting that purpose clearly identified in the existing IPP action plan and of communicating that purpose to the prisoners who are subject to the system, so that they know what the plan is designed to do. The Minister was kind enough to say that this was certainly something that he would take away when considering the Government’s position. The amendment to which I was referring then was about review—not the action plan that Amendment 141 is now talking about—but the need for a stated purpose is the same point. So I would be grateful if the Minister could say whether the Government’s plan as now proposed states what its purpose is, and, if not, whether he would be willing to include a purpose to that effect before the plan is finalised.

As far as Amendment 145 is concerned, I really do not need to say very much, in view of the very thorough way in which the noble Lord, Lord Moylan, has discussed the subject and plainly explained his reason for not pressing the amendment. I appreciate and agree with the various points he has made. I agree with him that Amendment 149A of the noble and learned Lord, Lord Thomas, should be preferred, because it focuses on the key issue of proportionality. It preserves the existing test but highlights proportionality as a crucial point that must be addressed. For these reasons, if the noble and learned Lord, Lord Thomas, does test the opinion of the House, I propose to vote in favour of it.

[Lord Carter of Haslemere (CB)]

My Lords, I am going to speak to four amendments in this group: Amendments 137 and 146 on executive release, on which I can be very brief; a new amendment in my name, Amendment 148; and a few words about Amendment 149A, which was tabled by the noble and learned Lord, Lord Thomas, to which he and others have already spoken.

Starting with executive release and Amendments 137 and 146, I am delighted and grateful to the Minister for bringing forward his Amendment 139B, which incorporates neatly into one clause those two amendments, which I will now obviously not press. I have just one question on the Government’s amendment: as regards the licence being treated as having remained in force following executive release if it is in the interests of justice, what sort of cases are covered by the “interests of justice”, a phrase which was not in my original amendment? I would be grateful if the Minister could say a few words about that.

As I seem to be on a bit of a roll as regards my amendments being accepted, Amendment 148 is a new amendment but on the same theme of helping to reduce the time spent in prison following a recall. This is about ensuring that IPP cases will be referred by the Secretary of State to the board within 28 days, or earlier if the prisoner makes written representations about the recall. This 28-day deadline already exists in statute for determinate sentence prisoners, and my amendment simply requires the same thing for IPP prisoners, not unlike executive release. There is no reason for any difference. Many recalled determinate sentence prisoners will involve more preparation before referral to the Parole Board than IPP prisoners, so why treat them differently? Since it is currently MoJ policy, as I understand it, to refer recalled IPP prisoners to the board within 28 days, let us be consistent and make it a statutory duty, as with determinate sentence prisoners.

Your Lordships may ask what difference it will make, given that it may be many months, if not years, before the board then considers the case. On paper, it is perhaps only a little, but it is only once the case is referred to the board that the process towards a paper or oral hearing can be initiated. It is easy to forget that every day in prison matters hugely for the prisoner concerned, particularly just after the psychological trauma of a recall, with all the frustration and despair that involves.

Although this amendment is only a small step when set against the unfair delays that currently arise at the board stage, it should make some difference for IPP prisoners to know that there is at least a statutory time- table governing the immediate aftermath of a recall. A statutory deadline would also mean the Secretary of State would have to ensure adequate resources were put into ensuring that a properly documented referral can take place within that timescale. I make no apology for that. Every day in prison matters hugely to the prisoner concerned. So I very much look forward to the noble and learned Lord saying, as he did with my executive release amendments, that he sees force in that one.

Victims and Prisoners Bill

Lord Hope of Craighead Excerpts

Committee stage
Tuesday 12th March 2024 Lords Chamber

[Lord Hope of Craighead (CB)]

My Lords, I shall speak to Amendments 159 and 160 in this group, which the noble Lord, Lord Blunkett, has asked me to introduce on his behalf, and in support of Amendment 161, which was spoken to so ably by the noble Lord, Lord Moylan, a moment ago. I join others in expressing great regret that the noble Lord, Lord Blunkett, cannot be here to speak to his own amendments. It was very good of him to suggest that I might take his place in the case of these two amendment, but I am conscious of the fact that I cannot match the contribution that he would have made had he been here. Along with others, I have admired the way in which, with commendable candour, as has been said, he has faced up to the enormous and wholly unforeseen problems that the IPP regime has created. He has done his very best to bring his profound understanding of our prison and parole systems to bear in the search for solutions to the problems, and the amendments in his name are the product of that endeavour. His contribution in person will be very much missed.

I come from a quite different background. When I served for seven years as Lord Justice General in Scotland, I visited all the prisons but one in that country and attended several meetings of its Parole Board. I did this because under the regime that was then in force one of my responsibilities was to advise the Secretary of State for Scotland when it would be in the interests of justice for prisoners who were serving a mandatory or discretionary life sentence to be referred to the Parole Board with a view to them being released on licence. In each of these cases, I was presented with files, often very substantial, that recorded the prisoner’s progress through various stages in the prison system. I felt that I had to visit the prisons, each of which had its own characteristics, in order to understand what I was dealing with. I also wanted to meet and speak to some of the prisoners who were there, whose names were never released to me, and on one occasion joined them sitting at a table, in their case almost for the first time in many years, to eat lunch with them using a knife and fork.

I admired the way the Parole Board went about its work, equipped, of course, with very substantial files. It was borne in on me how much attention was paid to what was in those files, how crucial it was that the files should be accurate, fair and complete and how much effort had to be put in by those who were reading the files and relying on them in order to understand the picture that they presented. I join the noble and learned Lord the Minister in expressing appreciation of the work done by the Parole Board in these cases, particularly the IPP cases, where the burden on it is so heavy.

We did not have IPP prisoners in Scotland when I was there and never have had, so I can only guess at the scale of the problems that all those who have to administer that system must face. However, there was, in my time, a very well-organised and properly funded training for freedom programme, which all life-sentence prisoners who had reached the appropriate stage would undergo.

Care was taken to see that those prisoners understood the plan and how their sentence was to be progressed; that played its own part in the eventual success of the plan that they were working to. Of course, I am speaking of how things were in Scotland 30 years ago. The pressures on the prison system, both there and here, are very much greater now, while the IPP system is in a class of its own. However, it gives a hint of background to the way the mind of the noble Lord, Lord Blunkett, was going when he proposed these amendments.

One further word of background: I, along with others, look back to the powerful and sustained contributions made on this problem from these Benches over many years by the noble and learned Lords, Lord Lloyd of Berwick and Lord Brown of Eaton-under-Heywood. I think it was the noble and learned Lord, Lord Lloyd, who was very much involved in the measures that eventually led to the changes brought about by LASPO. He went right back to the very beginning. From the very start, when I first came into the House, he was making strong speeches in favour of the need to change the system. We can recall much more recently the contributions by the noble and learned Lord, Lord Brown. I felt I owed it to them to contribute tonight because they are no longer able to be with us.

Amendment 159 seeks to place the Government’s existing action plan on a statutory basis and strengthen its effect by giving it a purpose that is set out in the statute. That purpose will be to ensure the effective rehabilitation and progression of persons serving these sentences. The Minister was kind enough to present to us, in his reply on the previous group, the overall framework that has now been developed in order, as I understand it, to improve on the existing plan. I hope that he will forgive me for saying what I am going to say—it is really a criticism of the plan that I think he is departing from—but it may indicate the way that the mind of the noble Lord, Lord Blunkett, is going as to how the existing plan ought to be improved. It may also assist in the development of the plan that is currently being worked on.

Amendment 159 sets out the position in a good deal of detail but the structure of the amendment can be summarised briefly in just a few words. First, in subsection (3) of the proposed new clause, it sets out in five propositions what the revised action plan must seek to do. In subsection (4), it sets out what the plan must include if it is to deliver that purpose. It then goes on to provide how that purpose is to be delivered. The Lord Chancellor must allocate sufficient resources and appoint a board to oversee the delivery of the plan, then the board must provide the Lord Chancellor with a report at the end of each financial year, which will be laid before Parliament.

As the noble Lord, Lord Blunkett, sees it, the present plan, although an improvement on the previous one, suffers from a basic and fundamental weakness: it has no stated purpose. It does not state what the outcomes for those serving these sentences are to be. They have not been given a forward plan that would allow for some hope and enable the sentence to be progressed, nor is it said how the process is to be monitored or evaluated. Although the prisoner’s case is to be subject to review every six months, these basic weaknesses remain; that enhances the sense of hopelessness, as has been mentioned in the earlier stages of these debates.

According to the figures I have been given—I will deal with them briefly—the quarterly number of releases has remained static at between 50 and 59 over the past three years. Re-releases have been declining while the number of IPP recalls has been increasing. The lack of any real progress shows that something must be done, although I accept the point that has been made: the more the number of IPP prisoners remaining in custody decreases, the greater the problems that one must face to consider them suitable for release. I absolutely understand that and am sure that the noble Lord, Lord Blunkett, appreciates it very well.

Of course, there are no easy answers and regard must always be paid to the protection of the public from serious harm, but we owe it to these unfortunate people to do more. There is an urgent need to review their needs and to provide each individual with a forward plan as to how their sentence is to be progressed, and that plan should be updated regularly. A whole range of issues needs to be covered, as referred to in subsections (3)(b) and (4)(b) of the proposed new clause. That really is the key. Their physical and mental health needs to be attended to and they need to be provided with daily and weekly activities including exercise, work and education, designed to develop their suitability for release. Their skills for everyday living in the community need to be developed too—such simple things as eating with a knife and fork at a table. So much more could be done with a stated purpose and a structured plan. That is what this amendment seeks to achieve.

Amendment 160 provides for the setting up of an independent scrutiny panel. The function of the panel would be to ensure that Ministers and officials give priority attention to the IPP prisoners and scrutinise each prisoner’s progress through his or her IPP action plan.

Finally, I very much welcome and strongly support Amendment 161 from the noble Lord, Lord Moylan. It deals head on with the unfairness which is such a stain on the justice system. Although those serving life sentences have for the most part been convicted of a more serious crime, it is the IPP prisoners—often initially with a very short period to serve as a tariff—who have to prove their lack of risk to be released. In their case, the burden of proof was reversed, while life sentence prisoners can expect to be released when their tariff has been served, unless the Secretary of State can show that they still present a risk to the public. We have seen what this has led to. It is surely now time for it to be changed, as the noble Lord, Lord Moylan, has been urging. That was what the noble and learned Lord Brown of Eaton-under-Heywood argued for so vigorously whenever he could. He would certainly have done that again this evening, had he been here. I hope that the noble and learned Lord the Minister can see his way to accepting this amendment.

[Baroness Burt of Solihull (LD)]

My Lords, I support every single amendment in this group, particularly the “two strikes” part of the amendment from the noble Lord, Lord Blunkett, so ably introduced by the noble Baroness, Lady Chakrabarti. I am sure we have all had letters from individuals who are languishing in prison under the “two strikes” rule. For the sake of brevity, I will just talk about Amendments 165 and 166 in my name.

Amendment 165 comes from a concern at the lack of fulfilment of aftercare obligations for prisoners who have been transferred to a secure hospital and subsequently returned to prison. It amends Section 117 in Part 8 of the Mental Health Act. We are talking about approximately 400 people who will, arguably, need additional help to cope with their return to prison life and subsequent reintegration into the community. It will help clarify and highlight the existing Section 117 entitlement to aftercare for prisoners who have been transferred from secure hospital to prison and remain either in prison or out on licence in the community. These individuals can be defined as those who are entitled to Section 117 aftercare. Sometimes this does not happen and individuals either in prison or out in the community do not receive the aftercare they need or are entitled to. Clearly, this entitlement is and should be reflected in their release plan and will increase their chances of a successful transition into the community, reducing the risk of recall.

Victims and Prisoners Bill

Lord Hope of Craighead Excerpts

Tuesday 12th March 2024 Lords Chamber

[Baroness Burt of Solihull (LD)]

My Lords, I have added my name to all the amendments in this group, initiated by the noble Lord, Lord Blunkett, and so well presented by the noble Baroness, Lady Chakrabarti.

While I have made my feelings clear on many occasions on just how egregious the treatment of all IPP prisoners has been, the situation for individuals sentenced as children has been arguably even more cruel and wrong. As I understand it, there are 85 people currently serving an IPP sentence that was handed down when they were children and some were of a very young age.

The teen years are such a formative time, and of the 85 remaining—who are now all adults—they have arguably had the worst start in life; 36 of them have never been released. What chance have they got of adjusting back into whatever might pass as a normal life? The only upside of this is that, because there are not that many of them, more time and attention can therefore be focused on fitting them for release.

According to the Prison Reform Trust, there is a window in which people typically develop the support and inner resources to desist from crime. As the noble Baroness, Lady Chakrabarti, has said, this unfortunate cohort is rapidly passing that window, which means that giving them the maximum possible support as quickly as possible is vital.

Amendment 155 would halve the qualifying period in which other statutory provisions for children become spent. Amendment 162 would give heavier support to DPPs who are unsuccessful in staying on parole or getting released at all. My worry about changing sentence planning reviews from annually to quarterly, however, is that if nothing has happened it might devalue the relevance of the review and dishearten the prisoner.

Amendment 163 would halve the time between referrals for consideration by the Parole Board to one year, which I heartily commend. The issue for me is the cost in financial and human resources, to which the Minister might want to refer. The only upside of this concentrated help is the fact that there are not many DPPs in terms of the overall cost that is being expended on IPP prisoners.

If these young people are to have a real chance, they need the help now, while their mind and their development can still be receptive to another way of living their life.

[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.

--- Later in debate ---

When I spoke earlier of the possibility, between now and Report, of putting the action plan, or the need to have an action plan, on some kind of statutory basis, and possibly setting out in the statute, in broad terms, what the action plan should cover, it seems, to me at least, that there would be an important argument for providing that the action plan has to have a section on DPP offenders and has to demonstrate that these offenders are given priority and that there is an appropriate regime for them. A combination of that kind of provision in the action plan plus the existing priority given to DPP offenders by the Parole Board would go a very long way to achieving the joint objectives that noble Lords are envisaging. That is broadly the Government’s position.

[Lord Hope of Craighead (CB)]

Before the noble and learned Lord sits down, will he comment on the point I was making about the aim of having these reviews written into the statute? Subsection (2) in the new clause set out in Amendment 162 says 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”.

That flags up, at the outset, exactly what these reviews are dealing with. I do not know whether it is already in the action plan that the Minister has been referring to, but is there some way of getting that purpose clearly identified, and of course communicating that purpose to the DPP prisoners themselves who are subject to the system, so that they know that that is the purpose for which these reviews are being conducted?

[Lord Bellamy (Con)]

I thank the noble and learned Lord, Lord Hope of Craighead, for that point. It is certainly something I will take away when we come to consider the Government’s position.

Arbitration Bill [HL]

Lord Hope of Craighead Excerpts

Second reading committee
Tuesday 19th December 2023 Grand Committee

[Lord Hope of Craighead (CB)]

My Lords, I too, I think in common with all your Lordships, very much welcome this Bill. It is plain from the Law Commission’s report that it is the product of a great deal of hard work on the parts of the Law Commission itself and those who responded to its papers in the course of this process.

The result is a compact measure that seeks to amend the Arbitration Act 1996 in 15 distinct respects. I do not think that anything in the Bill is controversial. On the contrary, the proposals will all contribute to the improvement of the law of arbitration in England and Wales in the various ways that the Minister explained in his helpful introduction. Our thanks must go to all the members of the Law Commission who contributed to this process and to His Majesty’s Government for finding time to bring the Bill before us. We very much hope it will achieve its results before the next election.

At first sight, the best guide to what has been going on might be thought to be found in Appendix 3 to the Law Commission’s final report, which sets out for the reader a list of all the suggestions that have not been taken forward. No less than 54 such suggestions are listed. I thought that this was perhaps quite a good indication of the amount of interest among practitioners that this project has generated. However, my sense of excitement was somewhat dampened when I read in paragraph 3.3 that almost all these suggestions were raised by only one consultee, and that there was, indeed, no widespread clamour for reform in respect of the various suggests that that consultee put forward. On the other hand, the consensus was that the 1996 Act works well, as indeed it does, and that root and branch reform was not needed or wanted. What was looked for, instead, was some updating and refinement of what we already have. Indeed, this is essential if we are to ensure that England and Wales remains the jurisdiction of choice for the resolution of international disputes.

The fact is that there is a very competitive market out there in the wider world. We must keep our heads in front. We do not want to lose our place to others in the Middle East and elsewhere, who are marketing their services vigorously to attract as much business as they can. That is why the work that the Law Commission has done in bringing this Bill forward is so important and so much in the public interest.

Leaving Appendix 3 aside, a word should be said about the work done by some very experienced practitioners in Brick Court Chambers, including my noble and learned friend Lord Hoffmann. I should mention that, although I am a door tenant there, I was not one of those practitioners. They worked to persuade the Law Commission to include a provision in the Bill about the law applicable to the arbitration agreement. I understand that what is now Clause 1 was not in the first draft of the Bill, but it is good to see that the Law Commission was persuaded that there was a need to clarify the rules as to its determination.

As the Minister mentioned in his introduction, the position in Scotland is set out in Section 6 of the Arbitration (Scotland) Act 2010, which provides that:

“Where (a) the parties to an arbitration agreement agree that an arbitration under that agreement is to be seated in Scotland, but (b) the arbitration agreement does not specify the law which is to govern it, then, unless the parties otherwise agree, the arbitration agreement is to be governed by Scots law”.


There is currently no such provision in the Arbitration Act which precedes this Bill. On the contrary, as the law stands in England and Wales, no necessary inference can be drawn that by choosing an English seat, and with it English law as the law which governs the proceedings in the arbitration, the parties also, by implication, have chosen English law as the law which governs the arbitration agreement itself.

The need for clarity was rendered all the more pressing by the decision of the UK Supreme Court in Enka v Chubb in 2020. In that case, it was held that the question as to the law applicable to the agreement was to be determined by applying English common law rules for resolving conflicts of laws. According to those rules, the law applicable to the arbitration agreement was the law chosen by the parties or, in the absence of such choice, the system of law with which the arbitration agreement was most closely connected.

The reasoning in that case—it was a majority decision, as mentioned earlier—was perfectly orthodox, but it seemed to open up issues which, in this context, were best avoided. It was argued that the better view was that where there was no agreement, the law to be applied to the arbitration agreement should be the law of the seat of the arbitration. That simple solution is what is now provided for in new Section 6A(1) of the 1996 Act, which is set out in Clause 1 of the Bill. This provision achieves the clarity that is needed, in line with the position in Scotland.

However, new Section 6A(2) adds a rider to what is set out in Section 6A(1), which perhaps need to be clarified. It states that:

“For the purposes of subsection (1), agreement between the parties that a particular law applies to an agreement of which the arbitration agreement forms a part does not, of itself, constitute express agreement that that law also applies to the arbitration agreement”.


The words “of itself” beg the question: what do they mean? What do they envisage as necessary to displace the default rule that, where no such agreement is made, the law to be applied is the law of the seat of the arbitration?

These questions arise because it may be said that the wording of subsection (1) is perfectly clear in itself; it already uses the word “expressly”. We are told there that the law applicable is

“the law that the parties expressly agree applies to the arbitration agreement”.

What, then, does subsection (2) add to what is already provided for in subsection (1)? Indeed, do we need that provision at all? I hope that, at some point, clarity could be given as to the reasoning behind subsection (2) so that we fully understand how it interacts with what is already set out in the clearest language in subsection (1).

That point aside, the wording of the other provisions in the Bill, all of which are very welcome, do not seem to me to give rise to any questions. I hope that the Bill will receive a Second Reading in due course and as soon possible, and I wish it well as it proceeds through its remaining stages in this House and in the other place.

Jurors: Mental Health Impact

Lord Hope of Craighead Excerpts

Tuesday 28th March 2023 Lords Chamber

[Lord Bellamy (Con)]

My Lords, I do not think that I can add to my earlier Answer that the Government are currently considering all options. Roughly 100,000 people serve on a jury every year; most, as I have just said, find the experience interesting and informative, and the Government will keep this under close review.

[Lord Hope of Craighead (CB)]

My Lords, it is helpful to see what happens in Scotland. The Scottish Courts and Tribunals Service provides specialist assistance in cases of particularly violent and distressing crimes. It is available in the court. It is available to jurors, who may not realise, even given the warnings that have been referred to, that the scenes they are going to have to view repeatedly as a juror as the evidence goes on are particularly distressing. Will the Minister have a look at what happens in Scotland and perhaps follow its example?

[Lord Bellamy (Con)]

My Lords, I will gladly look at what happens in Scotland—I believe there is a service provided through NHS Lothian. I am not sure I can undertake to follow a Scottish example; Northern Ireland has a counselling association associated with its employee assistance programme. We are exploring a number of options.

National Security Bill

Lord Hope of Craighead Excerpts

Committee stage
Wednesday 18th January 2023 Lords Chamber

[Lord Faulks (Non-Afl)]

With respect to him, the Minister is quite right: the application of ex turpi is very uncertain. There is a great deal of authority, and it is difficult to predict in particular cases whether they are going to rely on it. However, if there is going to be a statutory scheme then I return to my point: it needs to be a lot clearer so judges know how they are supposed to apply it.

[Lord Hope of Craighead (CB)]

I wonder if I may add a thought. One of the words that strike me in Clause 83(5) is “must”. If I were a judge at first instance, I would have to explain my decision, so I would have to say that I had applied my mind to the various factors. Having looked at the factors, I am still left in the dark as to what principle I should apply. I can look at them and understand them, but why should they affect the award? I do not think a list of factors is needed if the Government can explain the principle that should be applied. Is it that a kind of quasi-immunity should be given because of these various factors—some sort of overriding principle in favour of the Government’s security measures and so on that should be applied? I cannot devise that myself, but a list of A, B, C and D is not going to be helpful. We already have the factors there; it is the trigger, what the principle is that leads to the decision that the damages must be reduced, that is important. Otherwise, a first-instance court might say, “I’ve considered the factors and I can’t see any reason why the damages should be reduced”, and an appeals court will say, “Well, that’s perfectly right”, and we are left without any significant advance in this legislation. I hope I have made my position clear. I do not like lists of factors very much, but I like to have guidance as to principle.

[Lord Bellamy (Con)]

I can say that the principle is certainly not for the judge to be asking himself, “Should I be protecting the Government or the security services from actions for damages?” I am not drafting the Bill, and I will further consider the matter, but I would imagine that it is something like how far the claimant brought the situation on himself. That would be an ex turpi causa or contributory negligence type of consideration. However, I do not want to pre-empt the discussion any further, standing on my feet thinking aloud, because I hear what is being said: we want further precision as to how the courts are to go about this.

--- Later in debate ---

[Lord Bellamy (Con)]

My Lords, on that last point, I would need some notice of that question. It is not a point that I have so far had to consider.

It is the case that the court would have to be satisfied on the civil standard that that the claimant had been involved in terrorist wrongdoing. In accordance with normal statutory principles of construction, there would have to be some nexus between the United Kingdom and the terrorist wrongdoing. It is hard to imagine a case in the UK courts where there was terrorist wrongdoing without any nexus to the UK. That is as far as I can go.

I will see if I can get a bit further, if your Lordships will permit me. As far as the general position is concerned, when I said the Government wanted to say that the UK was not a soft touch, I meant that the provision makes it clear that in civil proceedings against the security services of the United Kingdom one has to be aware that the judge will consider whether the damages should be reduced. That is all I meant by that. I did not mean to say, and I do not think I can reasonably have been construed as saying, that the intention was to protect the security services from unwarranted claims for damages. The underlying principle is, I think, that if a terrorist person has brought it on himself then that should be considered, but let me reflect further on the relevant questions that noble Lords have asked.

[Lord Hope of Craighead (CB)]

Would the Minister consider the wording in Clause 83(4)(a) that says there

“need not be a causal connection”?

You can find that there is a connection, but it need not be a causal connection. I can understand that if there were a causal connection then one might get around to thinking that the damages should be reduced but, if there is not a causal connection, why should you consider a reduction in damages at all? That is one of the reasons why I am looking for a principle that gets over the point that a causal connection is not necessary. What else is there?

[Lord Bellamy (Con)]

The causal connection point is to do with whether there are national security factors in the first place. As to general question of what the court is to do, and whether we should have further guidance or precision in statute, that is perhaps a matter that we will need to come back to on Report to see whether we can get any further clarity.