Prisoners (Disclosure of Information About Victims) Bill

Lord Hope of Craighead Excerpts

Committee stage & Committee: 1st sitting (Hansard) & Committee: 1st sitting (Hansard): House of Lords
Wednesday 20th May 2020 Lords Chamber

[Baroness Bull (CB)]

My Lords, it has long been recognised that the withholding of information about the location of victims’ remains can have a devastating impact on the lives and mental health of their families. This Bill enshrines in law what is already the practice in parole boards, which is fully to consider the failure by a prisoner to disclose this information or, indeed, to disclose the identity of child victims of indecent imagery. By removing any discretion to disregard non-disclosure, the Bill will play an important role in helping families come to terms with what for most of us is unimaginable grief. It is for these reasons that I supported the Bill at Second Reading. In doing so again today, I repeat my tributes to Marie McCourt and to those people who have campaigned tirelessly over several decades to see legislation of this sort brought before the House.

Amendments 2 and 4 in Clause 1 and Amendments 7, 8, 10, 11, 13, 14, 16 and 17 in Clause 2 make two connected points. The first is that parole boards must take account of the prisoner’s state of mind when determining whether they can in fact make a disclosure, and the second is that the prisoner’s mental capacity within the meaning of the Mental Capacity Act 2005 to make the disclosure, is taken into account. Out of necessity, the amendments are repeated at relevant places in the Bill, so I am essentially speaking to two amendments, and these two amendments stand together.

My amendments address the concern I raised at Second Reading that, as drafted, the Bill fails to provide adequate protection for prisoners with mental health issues, and therefore seeks to balance the imperative for justice with the appropriate regard for human rights. Since that occasion, I have discussed these concerns with colleagues working in mental health and with others working in mental health charities, including the charity Rethink. I am grateful to them and to the noble and learned Lord, Lord Hope of Craighead, for their expert advice, and it is with their support that I have tabled these brief amendments.

In response to my questions at Second Reading, the noble and learned Lord, Lord Keen of Elie, said:

“We are confident that the provisions of the Bill are sufficient and effective to apply in the contexts of non-disclosure, psychiatric conditions and mental illness.”—[Official Report, 28/4/20; col 214.]


Speaking in the other place, the Lord Chancellor and Secretary of State for Justice, Robert Buckland, further clarified the Government’s acceptance by saying:

“This subjective approach is fundamental to the proper functioning of the Bill.”—[Official Report, Commons, 11/2/20; col. 748.]


In other words, the Government accept that the approach has to take into account the circumstances of the particular prisoner. This acceptance is important because the consequences of deliberate non-disclosure will, in most cases, give rise to a longer period of imprisonment. The Government rightly accept that these consequences should not flow on a strict liability basis, but only where in effect the non-disclosure is culpable and where there is, as conventional principles dictate, the combination of a relevant act carried out with the requisite degree of either intentionality or recklessness.

This approach has to be correct; any other approach would come dangerously close to suggesting that the mere fact that there is missing information means that the prisoner should be held responsible for withholding it. While the Government’s acceptance of this key point is welcome, the Bill does not at present specifically direct the Parole Board’s attention to the consideration of whether, first, the prisoner has the mental capacity to decide whether or not to disclose the information, and/or, secondly, whether for some reason—for instance, because of the presence of mental disorder—they cannot form the requisite intention to withhold the information.

It is difficult to know how extensive a problem this might present, as it has always been challenging accurately to estimate the number of prisoners with mental health problems in England and Wales. The 2017 report from the Public Accounts Select Committee showed that people in prison are more likely to suffer mental health problems than those in the community, and successive reports from the noble Lord, Lord Bradley, the National Audit Office and others have all highlighted that it is unknown precisely how many prisoners have mental illnesses. Figures from NHS England in March 2017 showed that nearly 8,000 prisoners, 10% of the prison population, were receiving treatment for mental illness in prison. It is estimated that 37% of NHS expenditure on adult healthcare in prisons is on mental health, which is more than twice the proportion within the NHS budget as a whole. The Public Accounts Committee also found that imprisonment can exacerbate mental illness, due to what it describes as,

“a deteriorating prison estate, long-standing lack of prison staff and the increased prevalence of drugs in prison.”

This is highly relevant to the Bill, given that parole hearings are likely to take place some considerable time after sentencing.

The World Health Organization points to several factors that have negative effects on the mental health of prisoners, including exposure to violence, enforced solitude or, conversely, lack of privacy, absence of meaningful activity, insecurity about the future and inadequate mental health services. Prisoners with mental health issues are often subject to bullying and extortion; they may even have their medication stolen. The Royal College of Psychiatrists has expressed concerns that its members are unable to deliver adequate mental health services in prisons.

These points bear repeating here because they demonstrate both the scale of mental health problems in the prison population and the potential for mental health to deteriorate during imprisonment. By extension, mental capacity may also change during imprisonment, given that, as defined within the Mental Capacity Act 2005, lack of capacity may be related to mental health, learning disabilities and neurodegenerative conditions such as dementia. The charity Rethink and other experts believe that these particular conditions are likely to be overrepresented in the prison system. Capacity is also specific to a given decision, rather than universal, meaning that a person who lacks capacity for some kinds of decisions may well be able to make others. The Mental Capacity Act code of practice is clear that a person can have capacity to make decisions in certain areas—for example, deciding what activities to undertake—while lacking it in others, such as a decision to disclose information. The potential for capacity to change over time, particularly with mental health conditions such as dementia, is especially relevant here, as the Government are rightly focused in the Bill on the present position. This makes it all the more important that parole boards are directed to take into account the current capacity of an offender to disclose information about a victim, the presence of mental illness at the time of the hearing, the place of the offender in their mental health recovery and their compliance with any treatment for mental health conditions.

As the Bill is presented, it would indeed be possible for the Parole Board to take these matters into account in the very broad discretion provided by each of the relevant clauses. This could also be amplified in any guidance provided to the Parole Board, but I contend that the Parole Board is not directed with sufficient precision to consideration of whether refusal to provide the relevant information is deliberate, and hence culpable. As the consequences of deliberate nondisclosure are, and are intended to be, serious, the test to be applied by the Parole Board should explicitly reflect this.

To conclude, my amendments would ensure, first, that specific focus is placed in that broad discretion on whether the refusal to disclose information is deliberate and therefore culpable, hence also relevant to consideration of the likely risk that the prisoner will pose; and secondly, that when considering questions of the prisoner’s capacity to make the decision to refuse to disclose the information, the Parole Board is doing so by express reference to the provisions of the Mental Capacity Act 2005. This is of no little importance, given the time-specific nature of the test for capacity in the Act. The focus of the Parole Board’s attention should be on whether the prisoner currently has the capacity to make the decision, rather than the position historically. This will be of particular relevance where the prisoner has a progressive condition such as dementia.

The Parole Board’s broader discussion to take account of all other relevant factors remains unfettered by the amendments. I urge the noble and learned Lord to consider these amendments and the attempt behind them seriously. I believe that they in no way undermine this important Bill; rather, they strengthen it by directing the Parole Board explicitly to determine whether prisoners’ withholding of information is deliberate, conscious and therefore culpable, and not unimportantly a potentially legitimate signifier of continued risk. I beg to move.

[Lord Hope of Craighead (CB)]

My Lords, I will speak to Amendments 2 and 4, to which I have added my name. I am most grateful to the noble Baroness, Lady Bull, for her introduction to the group. I too completely understand the policy reasons that have given rise to the Bill. I have the deepest sympathy for those who feel that they can have no closure until they are given the information that the Bill refers to.

A tragic headline in the Scotsman only three weeks ago read:

“We cannot say goodbye until Suzanne is found.”


This was a reference to the case of Suzanne Pilley, of whose murder her former lover, David Gilroy, was convicted in 2012. It is now 10 years since she went missing, and her body has still not been found. Her family believe that he is the only person who knows where it is. The problem is that Gilroy has maintained throughout, despite his conviction, that he is innocent. He says that he cannot reveal where the body is and that it had nothing whatever to do with him. There seems to be no way out of this impasse, but the family’s distress is very real and very deep. As the noble and learned Lord, Lord Mackay of Clashfern, said, sadly, it is not always possible to find a just solution to their pain.

However, we need to be very careful about exactly what it is that the Bill is trying to achieve—or, to be more precise, about the test that the Parole Board is being asked to apply when it takes non-disclosure into account. The noble and learned Lord, Lord Garnier, was quite right in his understanding that our amendments seek to leave it with the Parole Board to make the judgment. As the noble Baroness, Lady Kennedy of Cradley, said at Second Reading in the Chamber in April, this is not a “no body, no release” Bill, although that is what some campaigners would have preferred. We need to be clear: is the Bill about simply delaying release as a punishment, or securing the release of information? Surely, it is only by securing the release of the information that the board will be able to give closure to those most affected. I hope the Minister will be able to confirm that it is the latter and that the point of the Bill is to strengthen the power of the Parole Board to encourage disclosure. “Encourage” is perhaps too mild a word because of course, we have to face the fact that disclosure must have been asked for repeatedly, time and again, ever since the prisoner was first interviewed by the police. Nevertheless, one can only hope that, however this is done, the board will be able to achieve that objective.

--- Later in debate ---

[Lord Keen of Elie]

My Lords, I accept what the noble Lord, Lord Thomas, has observed. In cases of this kind, the judge will wish to take into account the disclosure or non-disclosure of the whereabouts of a victim and the circumstances in which the offender can or cannot make that disclosure. There may be circumstances in which that might necessitate a Newton hearing, and so be it. That would be done contemporaneously with the determination of the tariff in the sentence. When later on we get to the preventive element after the tariff has been served, the Parole Board will be able to call for all that material, whether it be a Newton hearing or otherwise.

I hear what the noble Lord, Lord Thomas, has to say about the importance of determining these issues at the time of trial and sentence; I do not disagree with him at all. It may be that some element of encouragement will be given if it is required, although I take from the observations of the former Lord Chief Justice—the noble and learned Lord, Lord Thomas—that there may be little requirement to encourage in a matter that is dealt with in this way day in and day out.

[Lord Hope of Craighead]

My Lords, I refer the Minister to his remarks about historic refusals. Reading proposed new subsection (1)(c), I do not get the impression that it is talking about historic refusals and I do not think that anything in the noble Baroness’s amendments would cut the ability of the board to look at them. What the opening words of the subsection are talking about is a situation where the board

“believes that the prisoner has information”—

talking about it in the present tense so that the board can consider it in a situation where it thinks that the prisoner is able to do something. That is where the words suggested by the noble Baroness would fit in very well.

Would the Minister like to reflect carefully on exactly what subsection (1)(c) is talking about and reconsider his point as to whether these amendments would cut out historic refusals, which would be highly undesirable, of course?

[Lord Keen of Elie]

It does appear that the amendment has that effect even it was unintended. I will give the matter further consideration, as invited to by the noble and learned Lord.

Private International Law (Implementation of Agreements) Bill [HL]

Lord Hope of Craighead Excerpts

Committee stage & Committee: 1st sitting (Hansard) & Committee: 1st sitting (Hansard): House of Lords
Wednesday 13th May 2020 Lords Chamber

[Lord Wallace of Tankerness]

My Lords, as the noble Lord, Lord Foulkes of Cumnock, has said, it is welcome that we have this opportunity to probe. In his Explanatory Statement, which appeared next to this amendment on the Marshalled List, the noble Lord said that it was

“to explore whether conflict might arise as to whether it is the responsibility of Scottish Ministers or of the Secretary of State in consultation with Scottish Ministers.”

But, as he indicated in his remarks just now, that is not actually in the Bill, which speaks of

“the Secretary of State acting with the consent of the Scottish Ministers”.

That is a crucial difference.

There is no doubt that negotiating or joining an international agreement on private international law is a reserved matter for the Government of the United Kingdom as a sovereign state. Equally, there is no doubt that private international law is a devolved matter. Section 126(4)(a) of the Scotland Act makes that expressly clear. Therefore, the implementation of these agreements is within the legislative competence of the Scottish Parliament.

It is right, therefore, that Scottish Ministers should be one of the appropriate national authorities. Equally, there will be occasions—perhaps a number of occasions —when it makes sense for the United Kingdom Secretary of State to make regulations with respect to the whole of the United Kingdom with the consent of Scottish Ministers. In paragraph 8 of their legislative consent memorandum, the Scottish Government draw attention to this fact:

“In 2018, the Scottish Ministers (with the approval of the Scottish Parliament) consented to two UK statutory instruments … including devolved material relating to the 2005 and 2007 Hague Conventions.”


So there is a very recent precedent for regulations to be made in the sphere of private international law. It has been done by a United Kingdom statutory instrument, but with consent not just in the case of Scottish Ministers but with the approval of the Scottish Parliament. These are often pragmatic matters, but the fact that it requires consent means that the UK Government cannot override the Scottish Parliament. The noble Lord, Lord Foulkes asked whether the legislative consent Motion has been passed; I checked yesterday—I do not think it has. But paragraph 19 of the Scottish Government’s memorandum says:

“The Bill is drafted to respect the devolution position: the Scottish Ministers make provision for implementation in Scotland with UK Ministers only being able to do so with the consent of the Scottish Ministers. Legislation in this area has in the past been taken forward on a UK basis and it may be convenient for it to be so in the future so the Scottish Government recommends this approach.”


There is one final matter which is not really germane to the terms and text of the amendments but I shall be grateful if the Minister is able to respond. Given that the implementation can be a matter for the Scottish Government, what engagement is he aware of with Scottish Government officials in some of the negotiations on these private international law agreements? For example, two agreements are referred to in paragraph 53 of the Explanatory Notes of the 2019 Singapore agreement and the 2019 Hague Convention. Is the Minister aware of any engagement or involvement by Scottish Government officials? Quite clearly, if the next step is implementation, it is important that Scotland is a party to these negotiations, albeit at the end of the day, as responsibility for joining these international agreements rests with the United Kingdom.

[Lord Hope of Craighead (CB)]

My Lords, the noble Lord, Lord Foulkes, explained in his introduction that these are probing amendments, and I hope that the Minister will understand my remarks in that context. I would like to speak to both amendments but my main focus is on Amendment 8, which seeks to leave out sub-paragraph (ii) in Clause 2(7)(b)—that is, the reference to the Secretary of State acting with the consent of Scottish Ministers. However, anything that I might say now is without prejudice to my support for the notice given by the noble and learned Lord, Lord Falconer of Thoroton, and others of their opposition to the clause standing part of the Bill at all.

I have three points to make. The first reinforces what others have already said. It is important to know which of these authorities is expected to exercise the powers referred to in this clause. That is because if it is the Scottish Ministers, paragraph 4 of Schedule 6 applies and the regulation has to be laid before the Scottish Parliament as a Scottish statutory instrument under Section 29 of the Interpretation and Legislative Reform (Scotland) Act 2010. If it is the Secretary of State, it comes under paragraph 2 of Schedule 6 as a statutory instrument in this Parliament and the Scottish Parliament will have no say in the matter at all. The word “or”, which lies between those two alternatives, gives no guidance as to which of them, or in what circumstances, it is to be. My first question, following what others have said is: why is that?

This clause is about implementation and application—implementation in Clause 2(1) and application as between the relevant jurisdictions in Clause 2(2). I think that I could understand the position if the Bill said that implementation in Clause 2(1) was a matter for Scottish Ministers and application as between the jurisdictions was a matter for the Secretary of State with the consent of Scottish Ministers, but that is not how the Bill stands at the moment.

For example, on implementation, if one were considering the UK acceding to the Lugano convention, about which so much has already been said, it would seem that nothing more is needed to implement it into Scots law as an instrument as the instance of Scottish Ministers. One can look again at the illustrative statutory instrument—the Singapore convention, which the Minister attached to his helpful letter of 5 May. It gives the force of law to that convention in England and Wales. If the same were to be done for Scotland, surely that would be a matter for the Scottish Ministers alone. Therefore, in the context of implementation, what part has the Secretary of State to play at all?

My second point concerns whether the reference to the Secretary of State is consistent with the Scotland Act 1998. Paragraph 7 of Schedule 5 to that Act provides that international relations are reserved matters, but paragraph 7(2) states that paragraph 7(1) does not apply to

“observing and implementing international obligations”

or

“assisting Ministers of the Crown in relation to any matter to which”

paragraph 7(1) applies. Therefore, the matters dealt with in paragraph 7(2) are devolved, as indeed is private international law itself, as the noble and learned Lord, Lord Wallace, has pointed out.

This clause is about implementation and application, and it would seem to fall squarely within paragraph 7(2). I should have thought that that reinforces the point that these should be matters for Scottish Ministers only. Section 53 of the Scotland Act provides for a general transfer of functions exercisable by a Minister of the Crown to the Scottish Ministers. That reinforces my query as to what function the Secretary of State has in this matter at all.

--- Later in debate ---

[Lord Howarth of Newport (Lab)]

My Lords, I agree that Clause 2 should not stand part of the Bill. Under our normal procedure for Committee in the Chamber, I would have been able to come in earlier when I saw how widely the debates on previous groups were ranging. However, with the rigidity of Virtual Proceedings, I was unable to do so.

I underscore the points made by all noble Lords, all of whom—except the Minister—have objected to Clause 2. This clause is constitutionally offensive on a variety of grounds. The issues that arise in private international law are many, varied and important. They may be complex and technical, but they are not obscure or trivial. In family disputes, questions of divorce, child custody and child maintenance can cause great anguish to all concerned. By definition, if a commercial dispute comes to court, it is of great importance to the parties involved.

What is Parliament for? Our responsibility is not simply to wave through significant new legislation, but to scrutinise it and satisfy ourselves on behalf of the people of our country that it is appropriate. That can be done only through the processes of primary legislation. It cannot be done through our procedures for regulations. Even my noble and learned friend Lord Falconer’s super-affirmative procedure would not be satisfactory. The Minister has suggested that these regulation-making procedures provide ample opportunity, but they do not because there is no scope for amendment and scrutiny is still relatively perfunctory compared to the lengthy process of primary legislation.

Hitherto, new private international law has been incorporated into our domestic law by way of primary legislation. The Minister disputed that, but he was unable to give us convincing examples of when that had not happened. What we are seeing is part of an objectionable behaviour pattern on the part of the Government. They seek to evade full parliamentary scrutiny and arrogate power to themselves to save themselves inconvenience.

The noble and learned Lord, Lord Judge, was about to discourse on the matter of Henry VIII powers—I hope he will. We see egregious Henry VIII powers in this Bill, including an open-ended power to implement any future international agreement, even if it overthrows existing primary legislation. We see the deployment of those innocent-sounding but weasel words "in connection with", "consequential" or "supplementary" legislation, which would enable this Government to smuggle in very significant legislative changes in an arbitrary fashion.

Clause 2(5)(a) and Schedule 6, concerning enforcement powers, would allow the creation of new criminal offences, the extension of existing ones or increases in the penalties applying to them. Again and again, your Lordships’ House has said that is not an acceptable practice on the part of the Government when legislating. We see in Clause 2(5)(b) the Government taking a cavalier approach to questions of data protection, which are extremely sensitive and important matters in this era of surveillance capitalism and in the context of measures being taken to protect us against a pandemic.

At Clause 2(5)(c) a power to alter the regime for legal aid without scrutiny is brought in. This too is a super-sensitive policy and legal area, as we know from the history of the Legal Aid, Sentencing and Punishment of Offenders Act 2012, in consequence of which, I am sorry to say, the Government forfeited the trust of Parliament, the people and the legal profession.

The Government’s justifications for taking these open-ended, wide-ranging powers in Clause 2 are specious. They suggest that there may be an urgent need to legislate; we have had a significant discussion about the Lugano convention. The intervention by the noble and learned Lord, Lord Mance, made it very clear that, while there may be urgency for us as a country to resolve whether or not we wish to participate in the Lugano convention, that is certainly not something to be dealt with by statutory instrument. It will possibly need to be dealt with by fast-track legislation, though again we should always be wary of that. There is certainly no case for allowing it to go through under the terms of this law.

It is almost comic to see the Government plead that they will be eager to implement Hague conventions. Let me gently remind the Minister that successive Governments of this country took 63 years to legislate to implement in our domestic law the 1954 Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict. It did not get on to the statute book until 2017; despite endless pressure from Parliament, successive Governments refused to make time to legislate for it.

The Government make the case that, as there is little or no scope to amend international agreements, scrutiny by Parliament would be otiose. However, it is for Parliament to determine on principle whether or not to adopt important new legislation. If it decides that it is appropriate, it is again for Parliament to determine the manner in which that legislation is to be implemented in the specific circumstances of the United Kingdom—what we might refer to as the vernacular of implementation.

The Minister conceded that the Constitutional Reform and Governance Act 2010 would not permit scrutiny of model laws, but he went on to say that model laws are a very important area of law. Surely, therefore, we need something beyond the zero scrutiny that CRaG would permit. The point has just been made by the noble Lord who spoke previously that statutory instruments fail to provide the same legal certainty as primary legislation. Recourse can be had to the provisions of the Human Rights Act and it may always be possible that what is legislated by way of statutory instrument can subsequently be modified and superseded by the development of the common law.

The Minister sought to assuage the anxieties of some of us that the provisions in the Bill would ride somewhat roughshod over devolution and fail to respect the status and responsibilities of the devolved Administrations. He gave some satisfaction in what he said about Scotland, but I think no satisfaction to the noble Lord, Lord Thomas of Gresford, or myself about how the provisions affect Wales. Of course, in Wales there is no provision for co-decision by Ministers in the devolved territory as there is in Scotland and Northern Ireland.

Finally, the Minister, in pleading with us to be reassured, pointed out that, up until now and for a long period, the adoption of private international laws had been a matter for European Union competence. But we have just spent four years in a political convulsion to establish the right to make our own laws in our own Parliament, accountable to our own people, and for Parliament not to be obliged to rubber-stamp obscure deals made on our behalf by people who are not accountable. We have sought in all the agonising political disputes of the last four years to re-establish not executive absolutism but parliamentary governance. Having gone to all this trouble, we cannot accept the provisions of this legislation. Clause 2 should not stand part of the Bill.

[Lord Hope of Craighead]

My Lords, this matter has been so fully covered by the speeches already made that I have little to add other than my full support for what has been said. I hope very much that we may be able to hear from the noble and learned Lord, Lord Judge, before the Minister speaks.

I do, however, wish to emphasise two points. First, I refer to what I said in support of Amendments 7 and 8 in the name of the noble Lord, Lord Foulkes of Cumnock. The lack of clarity about whether it is the Scottish Ministers or the Secretary of State who are to exercise the powers referred to in Clause 2(1) and Clause 2 (2) is surely an indication, among others, that this Bill is seeking to do too much. The umbrella phrase “any international agreement”—I stress the word “any”—indicates that it is intended to catch a wide variety of international transactions and model laws relating to private international law. At present, with the possible exception of Lugano, we have very little idea of what they might be. It seems likely, however, that they will not be many. The pressure on Parliament, if we were to proceed by way of public Bills and not statutory instruments, would be quite limited. It is therefore hard to see why we are having to go down this road at all.

Secondly, there is no sunset clause in the Bill. I could understand it, although I would not like it, if the Bill were designed to deal only with measures that needed to be enforced before the end of the implementation period or shortly afterwards. But without such a clause, the Bill is entirely open-ended; committing all international agreements and model laws to the statutory instruments procedure, as a permanent feature of our laws whatever they may be, seems to me to be a hostage to fortune.

[Lord Adonis]

It is very clear that the Committee is overwhelmingly against the Government on Clause 2, although we hope that the Minister will reflect further before Report. Assuming that the Government stick to Clause 2 on Report, it is clear that the House will want to debate it further and, probably, divide on it.

I turn to the procedural issues that are raised thereby. First, although we pay tribute to the officials and the remarkable technical team who have managed our proceedings—and done so, I would say, to the efficiency limits of the technology available—our reflection on the last few hours is that it has been patchy at best. We have not been able to hear in this debate from the noble and learned Lord, Lord Judge, one of our most distinguished Members, and I could barely hear the noble and learned Lord, Lord Morris, another of our distinguished colleagues, when he was speaking earlier. I do not think we would find it acceptable in any other circumstances to proceed to a vote or a decision of the House while key Members were being silenced and were unable to participate in the debate.

The noble Lord, Lord Pannick, referred earlier to the interchange between Members, which of course is necessarily reduced when we are online, but perhaps I may also draw attention to something that has become very clear in this debate. We need to separate the ability to vote online from the process of debate that leads to votes. Clearly, we cannot have a Report stage until it is possible to have a reliable system of voting online. I hope that our colleagues on the Procedure Committee—I think that my noble friend Lord Foulkes, who is here, is one, as well as the noble and learned Lord, Lord Judge—will bring to the attention of the committee an issue that has become very clear in this debate: the big divorce between the ability to participate online, which is extremely restricted, and the engagement of the House as a whole.

Terrorist Offenders (Restriction of Early Release) Bill

Lord Hope of Craighead Excerpts

Committee stage & Report stage & Committee: 1st sitting (Hansard) & Committee: 1st sitting (Hansard): House of Lords & Report stage (Hansard) & Report stage (Hansard): House of Lords
Monday 24th February 2020 Lords Chamber

[Lord Thomas of Cwmgiedd (CB)]

May I add one observation? I warmly support the idea of a Parole Board review. It is plainly not contrary to Article 7, and, if one looks at whether it is justified as against the presumption against retrospective or retroactive legislation, there are reasons which justify taking that view, as has been explained in the debate. Ultimately, it may be for others to opine on that.

However, the one thing that troubles me is the retrospective nature of this. I accept—it is obviously sensible—that a mistake was no doubt made many years ago, before the full import of terrorist offences was understood, which assumed that you could safely release anyone at the halfway point. I have dealt with many appeals on terrorist cases and I can only confirm what has been said, which is how difficult it is to make the assessment. Therefore, it is plainly right that there be an assessment—but, if that is the position and we say, “Okay; the person is to stay in prison up to the maximum of the term imposed by the judge, until he is deemed to be safe”, the detention is lawful and there is justification for that retrospectivity. What I fail to understand—I am sure that it is my fault—is why we should apply this to a person who was properly sentenced, is not dangerous and should not be serving more than the minimum term. I cannot accept the argument that we are trying to make the sentencing system logical, which is confusing. Anyone with any experience of it knows that it is in sad need of reform, and the Law Commission Bill will help great a deal in that respect.

In addition, evidence shows that keeping someone in prison, particularly if it is for an Islamic terrorist offence as opposed to another kind of terrorism offence, might make them more dangerous. It therefore seems that the only reason that can be advanced is that it is not practicable for the Parole Board to deal with the matter immediately. However, if this legislation makes it lawful to maintain someone until the Parole Board decides that they are safe, what is the risk in saying, “That is the law; we don’t need to impose a two-thirds term”? I do not follow that. It seems that it is grossly unfair and very difficult to justify for someone who, in fact, is no danger. I cannot see the risk for the Government, but maybe I have not understood this properly, because detention in custody would be perfectly lawful, and it would be very difficult to mount a case saying that the prison authorities were negligent or in breach of duty in not getting on with the matter, when it is Parliament itself that has decided to make the change. On that basis, the Bill is plainly necessary, but I do not understand this one minor aspect of it, and I look forward to the Minister’s clarification.

[Lord Hope of Craighead (CB)]

I have some difficulty in understanding what exactly the amendment is trying to achieve. I have the greatest respect for all four noble Lords who have tabled the amendment, but to take the point on Article 7 of the European Convention on Human Rights, I do not think that the amendment meets the terms of the article. It seeks to address the position when the sentence was imposed, whereas Article 7 refers to the situation at the time when the act that gave rise to the criminal offence was committed. It is worded in such a way that the individual should have been aware at the time of his conduct what sentence he was likely to receive. The amendment does not address that, as it is not addressed to that point in time. On Article 7, it misses the point, and does not achieve anything.

The noble Lord, Lord Anderson, said that the convention was a sideshow. That brings me to the other point, which I think I do understand, on the value of retaining the Parole Board at halfway through the sentence, partly for the reason that changing the system for those who have already been sentenced seems instinctively rather unfair to them. It also has a value in getting the Parole Board in as early as possible, because the longer it has to assess the element of risk, the greater the possibility that it can achieve something useful at the end. To shorten it, which seems to be the effect of the Government’s amendment, reduces the opportunity for the board to get into the depths of the mind of the individual and to see what it can do about the risk. If that is the purpose of the amendment, why not have the same rule for everybody? It is accepting the Government’s amendment for the newcomers—those who have not yet been sentenced. It would be more logical to apply the same rule throughout.

That goes back to the point made by the noble and learned Lord, Lord Falconer of Thoroton, when he asked what the change from a half to two-thirds would achieve, given that the Parole Board will be involved anyway. If it comes in halfway through, there is no question of the prisoner being released until it is safe for them to be released, which could well be right up until the end of the sentence imposed by the judge. Logically, it would be sensible to have the same rule for everybody, rather than split it up. The other point, which is worth emphasising, and perhaps an answer to the noble and learned Lord, Lord Thomas, is that a great deal has been said about automatic release, but it is not unconditional release. This point was made very effectively by the noble Baroness, Lady Chakrabarti, when describing the deficiencies of the Parole Board system.

When the original scheme was devised with release subject to conditions, it was understood that these conditions meant something. I remember cases in which I was involved where people were returned to custody because they had breached their conditions. It was not just a day in custody; they were in for a substantial time until it was regarded as appropriate for them to be released again. In the case of life prisoners, sometimes they went backwards and forwards because they had breached conditions, and they went back in again. This is what we have lost, I am afraid. It bears thinking about that the release halfway through is not unconditional; it is a conditional release subject to the licence terms. That has a bearing on whether this is something that attracts the Article 7 attack in any event. For the reasons I have indicated, I am slightly puzzled by the amendment, and I am not sure that I would support it.

[Lord Mackay of Clashfern (Con)]

My Lords, I will not apologise to your Lordships for not speaking at Second Reading. It is, rather, a matter for congratulation—noble Lords have not had to listen to me twice.

The situation is one of severe crisis in respect of the damage that has occurred as a result of the release of persons described in this Bill. That is a matter of the utmost importance for Her Majesty’s Government, because if any human right is vital it is people’s right to be protected against danger, by their Government. That danger has been illustrated vividly by these two incidents.

I do not imagine for one minute that anyone thought that the man involved in the London Bridge incident was going to do anything like that. One of the people murdered was doing his best to look after him and to bring him into ordinary life in a good way, yet that man was struck down. I do not believe it is possible to discern who is dangerous and who is not, because the problem with this type of danger is that it is not necessarily there when the man or woman is originally sentenced. It is danger that, to a great extent, seems to have arisen as a result of the experience in prison, and that is most unfortunate.

On the other hand, if you had an opportunity to ask somebody to change his mind, you may find it difficult if he has a religious persuasion. The people trying to get rid of this danger in prison are finding that it is very difficult to succeed and mightily difficult to know when, if at all, the attempt has succeeded. The concentration therefore has to be on the circumstances in which one of these people is released. One way of dealing with that, to get a bit of time, is to postpone the release. That is what is done in the move from half to two-thirds. Of course, there is still a third of the sentence left.

The second point that has been made clear is that there is a substantial number of convicted prisoners up for release quite soon. The Parole Board’s investigations are quite substantial, and I do not believe it would be possible for the board to deal with a large number of these satisfactorily in a very short time. We have to remember the decision the board is going to take. Personally, I would not like to be a member of the Parole Board taking that responsibility. I am glad to say that there are people who do that and who have the skills to do it properly. On the whole, the Parole Board’s decisions have been pretty well received. One or two—I remember one in particular—have been by no means well received, but generally they have been. So it is important that it gets a proper opportunity to carry out its task.

The rule is to be that when the two-thirds is up, the prisoner is released or not according to whether the Parole Board is satisfied that it is safe for the person to be released. That seems the best possible solution to a mighty difficult problem. However, it is only a temporary solution, because when the sentence is fully served, the person is to be released in any case, without anything from the Parole Board. That matter must be dealt with in the Bill that is to come. In the meantime, with respect to the noble Lord, Lord Anderson, I cannot see any justification for dividing up the original division with this amendment. The Bill would be better without the amendment.

Sentencing (Pre-consolidation Amendments) Bill [HL] (Law Commission Bill)

Lord Hope of Craighead Excerpts

2nd reading & 2nd reading (Hansard): House of Lords & 2nd reading (Hansard)
Tuesday 11th February 2020 Lords Chamber

[Lord Hope of Craighead (CB)]

My Lords, it is an honour for me to follow the noble and learned Lord, Lord Mackay of Clashfern—my former devil-master, from whom I learned so much. I take this opportunity to congratulate the noble and learned Baroness, Lady Hallett, on her excellent speech. She demonstrated very well what the House is gaining by her membership, because of her remarkable and deep experience of criminal law at every level, from the Bar right up to the very high level she reached on the Bench. Her remarks about the difficulties that sentencing judges face, which she observed so well from her position in the Court of Appeal, are extremely valuable in the context of the debate we are having.

I have no hesitation in welcoming the Bill, and I am delighted that it is being sponsored by the Government. As chairmen of the Law Commission, I have known only too well for decades, that it is not easy for Law Commission Bills to make progress in Parliament. Parliamentary time is often at a premium and, without sponsorship from the Government, it would be difficult—probably impossible—for any progress to be made at all. We must be grateful to the Government, not only for being willing to sponsor the Bill but for being willing to find time for it, at the third time of asking, only six weeks into the new parliamentary Session. This is, of course, only the first stage of the further process which will, we hope, end up with the approval of the code itself. I hope, as others have said, that the progress made so far in this Session—let us ignore the fits and starts of the previous ones—will be maintained, and that rapid progress will be made to get us to the stage at which we may be able to consider and approve the code itself.

It is very easy in a debate of this kind to be drawn into a broad discussion of sentencing policy, as the noble Lord, Lord Bates, demonstrated in his entertaining and fascinating speech. If I had freedom to do so, I would say something about the disturbing, inevitable creep in the level of sentences: up and up they go, without any obvious benefit. However, I will leave that all aside because, as has been said already, the Bill, as its long title makes clear, does no more than lay a sound basis for the enactment of the sentencing code itself.

I pay tribute to the Law Commission and parliamentary counsel for the immensely impressive and painstaking work put into the schedules, particularly Schedule 2. I did my own research when comparing this Bill with its predecessor, in June of last year. I was looking for what used to be paragraphs 90 and 92 of Schedule 2, which I commented on at Second Reading last time. They dealt with the transfers of community orders and suspended sentences from England and Wales to Scotland under the Powers of Criminal Courts (Sentencing) Act 2000. I could not find them, because the numbers had changed. I was rather startled to find that what were paragraphs 90 and 92 had moved to paragraphs 101 and 103. As I looked further into the schedule, I found another nine new provisions, including paragraphs 133 and 134, to which the Minister has already made reference. It is to be admired that, although the Bill was becalmed in the summer, work to make sure that the schedules were absolutely up to date did not cease; I am sure we will all benefit from the work that has been put in.

I will say no more about the problems that sentencing judges and magistrates face; it is a morass of confusion, as the noble and learned Lord, Lord Judge, said. However, I want to draw attention to one point. In his celebrated book The Rule of Law, the late Lord Bingham of Cornhill identified eight principles of the rule of law that he thought we should bear in mind. The first was this:

“the law must be accessible … intelligible, clear and predictable.”

The law which magistrates and judges should be required to administer should be accessible, clear and intelligible. It is absolutely plain from the noble and learned Baroness’s speech that that is very far from the case, and indeed that we are in serious risk of failing to observe the rule of law in the situation as it is at the moment. I mention that just to underline the point others have made—I am referring in particular to the noble and learned Lord, Lord Falconer of Thoroton, and his impressive speech—of the urgency to make progress with the Bill to the stage which we all wish to reach.

Finally, I pay tribute to the care which has been taken in the drafting of Clause 1(3) and (4), which are designed to ensure that those convicted after the code comes into force will be dealt with according to the most up-to-date law, and also the corollary: that the convicted person is not dealt with by the imposition of a penalty of any kind that is more onerous than that which applied when the offence was committed. Perhaps there is a difference in the uplifting and administration of a penalty which the court has imposed, which may be a riposte to the point made by the noble and learned Lord, Lord Falconer, on the Bill he referred to. If the judge is not required to increase the sentence, but only to deal with the way that it is administered by changing terms of parole and so on, one might not think that that is the case, but we are not really concerned with that here, because every effort is being made—and should continue to be made—to ensure a clean sweep in both these respects.

This is a supremely well-drafted and very carefully put together Bill, and I offer it my full support.

Divorce, Dissolution and Separation Bill [HL]

Lord Hope of Craighead Excerpts

2nd reading & 2nd reading (Hansard): House of Lords & 2nd reading (Hansard)
Wednesday 5th February 2020 Lords Chamber

[Lord Hope of Craighead (CB)]

My Lords, it is a very real privilege for me to follow the noble Baroness and to be the first to congratulate her on an excellent and indeed compelling maiden speech. As we gathered from what she said, she served for 14 years with Stonewall, for much of it as its chief executive. The name Stonewall calls to mind a fixed, immovable object. But under her leadership—we have heard about her campaigning skills—that was very far from the case.

“I grew up, learnt, fought, cried, cajoled, persuaded and sometimes we triumphed. All with the most amazing group of people you can imagine”,


she has said of her time with that organisation. It is no exaggeration to say that during her time and under her leadership, far from standing still, the organisation transformed the way that LGBT rights are respected and understood across the country, to a degree that only a few years earlier seemed almost unattainable.

The organisation gave support to the development of the law by, among other things, helping to promote what became the Marriage (Same Sex Couples) Act 2013 for England and Wales, and the Marriage and Civil Partnership (Scotland) Act 2014. Partnerships were developed with many organisations across the public and private sectors too, and she has spoken in favour of bridging the gap that, sadly, still remains between faith leaders and LGBT communities. Given that unique background, and the insight into the subject which she demonstrated to us in her maiden speech, she has much to contribute to the work of the House, and we look forward very much to hearing from her many times in the future.

At first sight, to one who was brought up in the tradition of fault-based divorce, the reform introduced by the Bill is startling, but it does not require much thought and reflection to appreciate the benefits that will flow from it, so I support the Bill and hope that it will proceed on its way with the minimum of delay.

Rather like the noble Lord, Lord Anderson of Swansea, my experience as a beginner in the profession was in the early days of fault-based divorce—the undefended divorce. I was not as fortunate as my noble and learned friend Lord Mackay of Clashfern, who had defended divorces. My experience was always that they were undefended, but fault in one way or another still had to be proved. The concept of the irretrievable breakdown of a marriage had not yet been invented, nor had separation with consent. Adultery, desertion or cruelty were the grounds available.

The easiest way to divorce where both parties were reconciled to the fact that the marriage was at an end was to allege adultery. All you needed, if you were bringing proceedings, was for the other party to book a hotel room, arrange to be there with the paramour on a given date, provide a photograph to enable him—it was almost always him—to be identified and employ two private investigators to visit the room on the prearranged date. It was a bit of a charade, but it was in fact no laughing matter. The stigma of having committed adultery was unavoidable; so, too, if this was the ground relied on, was that of cruelty.

Happily, the grounds currently available in Scotland are based on irretrievable breakdown, matching those available in England and Wales, which the Bill seeks to replace. As far as I know, a similar reform has not yet been proposed for Scotland, but it might make sense for it to follow this example.

Why do I support the Bill? Its immediate effect is to remove the elements of blame and conflict from the process. Those practitioners who are much closer to the realities than I ever was will know far better than I do what this means. A chance conversation which I had the other day with a recently qualified lawyer who now handles divorces in London brought this point home to me. “Please, please, pass the Bill,” she said. “The culture of blame does so much damage. It makes sorting out all the other things that need to be sorted out so much more bitter and difficult.” The fact is that the process is hard enough without having to attribute and prove blame for the breakdown. The same can be said where a civil partnership breaks down irretrievably, so I support what the Bill seeks to do there, too.

I have, however, two concerns about possible effects of the Bill in Scotland. I am conscious that this is a Second Reading debate, not Committee, but I should like to make these points. The first relates to Clause 6, which extends to Scotland under Clause 7(2). Surprisingly wide delegated powers are to be conferred on the Lord Chancellor in relation to Scotland, including the power to amend, repeal or revoke an Act of the Scottish Parliament if that is consequential on any provision made by the Bill. These powers are surprising, given that the subject matter of the Bill has nothing to do with divorce, dissolution and separation in that jurisdiction. Why is this needed and what will it be used for? Have the Scottish Government been consulted and can the noble and learned Lord assure the House that their consent will be sought if the power is ever to be exercised?

I must stress that that is not an idle question. I take as an example paragraph 58 of the schedule, which amends the definition of exempt transactions in Schedule 1 to the Land and Buildings Transaction (Scotland) Act 2013. Under paragraph 4, a transaction is exempt if it is in connection with a divorce that is effected in pursuance of a court order or an agreement made in contemplation of the divorce. Paragraph 58 removes the words in paragraph 4(a), which describe the orders that are currently made in divorce cases in Scotland, and replaces them with words that do not. That seems to be designed to accommodate in Scots law the reformed system being introduced for England and Wales, but the way this is being done is surely a mistake. It creates a gap in the definition which may well deprive parties in Scotland of the benefit of the exemption. I should be grateful if the Minister would look again at this provision and consider carefully whether it should be amended, or perhaps removed. I cite that as an example of my concern about the scope of Clause 6.

My second point is on a jurisdiction issue. The availability of divorce on the basis of a unilateral, unchallengeable statement may seem an attractive way out of an unhappy marriage by people living in Scotland, but they should have access to it only if they are subject to the jurisdiction of the English courts. The same can be said of Northern Ireland. The easier the system is, the more important it is to be sure that it is available only to those who are entitled to take advantage of it. We can recall the attraction of Scotland in earlier days when it was possible to obtain a divorce there on the ground of adultery alone, whereas in England there had in addition to be proof of cruelty or desertion for two years. From time to time, attempts by people from England to take advantage of that system were rejected by the Scottish courts because they were unable to show that the court had jurisdiction to hear the case.

Jurisdiction in England and Wales in those cases under what is now retained EU law is based on the partners’ residence or domicile. So persons who are resident in Scotland or Northern Ireland and domiciled there should not have access to this simplified system, even if they agree. So how is this to be controlled, if at all? How is the maximum period laid down in Clause 1(7) to accommodate the time needed to seek and obtain advice—possibly with the benefit of legal aid in Scotland—where the other party to the marriage wishes to challenge the proceedings on the ground of lack of jurisdiction? I would welcome some reassurance from the Minister on these points.

Leaving them aside, however, I repeat that I welcome the Bill and wish it success as it passes through this House.

Queen’s Speech

Lord Hope of Craighead Excerpts

Wednesday 8th January 2020 Lords Chamber

[Lord Hope of Craighead (CB)]

My Lords, I would like to add my own few words to the powerful speech of the noble Lord, Lord Reid of Cardowan, about Scotland. The gracious Speech said:

“The integrity and prosperity of the United Kingdom is of the utmost importance to my Government.”


The Government’s briefing note says that the Government

“want 2020 to be a year of opportunity, growth and unity for Scotland, not of further division.”

I agree with these sentiments, of course, but my concern is that, despite what the noble Lord, Lord Lang of Monkton, said, this message is not being put across clearly enough in Scotland to the people who live there. We are at risk of sleepwalking into the breaking up of the United Kingdom, as the noble Lord, Lord Reid, rightly said.

The future of the union in the face of the SNP’s relentless demands for another referendum on independence is a matter of huge importance. The other parts of the union have a strong interest in holding it together. Take defence, for example: the SNP will not allow any nuclear weapons to be based in Scotland. That is a red-line issue for it. So the future of the submarine base at Faslane, and all that that means, will not be negotiable after independence. We need therefore to give careful thought to what needs to be done if the integrity of the union is to be preserved.

The first point to notice is that the SNP’s relentless demands for complete independence will continue. It will not go away, despite everything that is said in the briefing note about how the Government are investing in the Scottish economy. We must give it full credit for its beliefs. It will never be satisfied with less. The briefing note is right to point out that a raft of additional powers were devolved to the Scottish Parliament in 2016. There was a time when it was thought that devolution would settle the matter for ever, but that is not so now, as the Labour Party has been replaced by the SNP as the established governing party in Scotland. Just saying no to Nicola Sturgeon’s call for another referendum on independence because of what the result was in 2014 may be enough for now, but as the noble Lord, Lord Kerr of Kinlochard, pointed out, it will not be enough for very much longer.

The second point is that if and when it becomes clear that independence is the settled will of the Scottish people as a whole, the demands for it will almost certainly be unanswerable. Many believe that it would be unthinkable that the people of Scotland should be held within a union to which the Scottish people as whole did not wish to belong. It needs to be stressed that this is a high standard. However, short of holding another referendum—which the Prime Minister refuses to agree to—how is one to determine whether that high standard has been reached? That is the key question.

The SNP is a master at answering that question by making capital out of the way election results play in its favour. It did this in 2015, just one year after the country rejected independence by 56% to 44% of those voting in the referendum. It said that there had been a material change of circumstances because it had won 56 of the 59 Scottish seats in that year’s general election. It did so again just a few weeks ago when it won 47 of the 59 seats in the last general election. It claims that this was a mandate for a second referendum— indyref2, as it calls it. Of course, the results in a first past the post election are not a true guide to where the settled will of the Scottish people lies. Although the SNP won by far the most seats, its share of the popular vote was only 45%.

The SNP is now looking forward to the next election for the Scottish Parliament in 2021. It is almost certain that the SNP will be returned to power again by a substantial majority; there will then be even more vocal demands for a second referendum. Of course, it can be said that the issues in that election will be about devolved government in Scotland, but we can be sure that this is not what SNP will ask the Scottish people to believe.

As a matter of law, the integrity of the union is a reserved matter to be decided here in Westminster, but I cannot emphasise too strongly that relying on the legal position will not hold up against the political campaign demanding that Scotland’s future is for the Scottish people to decide. The SNP knows that if it is to win the popular vote on this issue, it has a lot of persuading to do. Last time, many people—the silent majority—were put off by the aggression and intimidation that were used. This time, gentle, steady persuasion is likely to be the preferred, and much more effective, tactic. It is already under way as I speak.

I do not claim to have the answers to this problem. That is for the Government to work out, if they mean to make good their pledge in the gracious Speech. The purpose of my intervention is to draw attention to the scale and urgency of the issue. There is no time to lose if that pledge is to be made good.

Queen’s Speech

Lord Hope of Craighead Excerpts

Monday 21st October 2019 Lords Chamber

[Lord Hope of Craighead (CB)]

My Lords, there is an air of unreality about this debate. I cannot recall debates on a Queen’s Speech being held in a state of such uncertainty. Nevertheless, there are two issues that the gracious Speech raises that concern me and that are worth commenting on, lest they go further. The first arises from this sentence:

“New sentencing laws will see that the most serious offenders spend longer in custody to reflect better the severity of their crimes”.


At first sight, it is hard to disagree with this—if there is something wrong, it needs to be made better—but the background briefing tells us that the main elements of the proposed sentencing Bill include changing the automatic release point from half way to the two-thirds point for adult offenders serving sentences of four years or more for serious violent or sexual offences.

I have to confess that I am in two minds about this. On the one hand, I dislike the system of automatic release before the full sentence has been served. As a former judge, I believe that sentences should mean what they say. When I entered practice some 55 years ago, the system was that offenders had to earn their release before the end of the sentence by satisfying the Parole Board, once they became eligible, that they should be released. That was the position under the Criminal Justice Act 1991, which provided that offenders had to be half way through the sentence before they were eligible. It was to relieve the pressure on prisons caused by a relentless rise in the number of prisoners that the system was changed from one of eligibility to one of automatic release. To move this system to the two-thirds point, closer to what the judge was saying, has some attraction, but I have concerns.

The gracious Speech goes on to say that the Government,

“will work to improve safety and security in prisons and to strengthen the rehabilitation of offenders”.

To move the release point to two-thirds will mean an increase in the prison population, according to the Government’s own estimate, by about 3,000. It is no secret that England and Wales already have more people in custody that any other western European nation, and it is well known that many of our prisons are overcrowded. This has consequences. As the Royal College of Psychiatrists pointed out in its briefing note, prisoners are dying at an unprecedented rate from suicide and physical ill-health, and mental health teams are finding it difficult to access prisoners who need help. How, it asked, are prisoners supposed to be treated and rehabilitated and enabled to prepare themselves if they are required to spend longer in these conditions?

The longer prisoners spend in custody, the more they become institutionalised and the more difficult it becomes for them to face up to what will happen if and when they are released. During one of my many visits to prisons when I was Chief Justice in Scotland, I met prisoners who had long since forgotten how to use a knife and fork when eating their meals, and for mental health reasons they found it very hard to sit at a table with other people at mealtimes. Rehabilitation matters, and overcrowding is an obstacle to progress. I hope that the Minister will explain how increasing the prison population to such an extent can be reconciled with the aim, which of course I support, of strengthening the rehabilitation of offenders.

I have time to mention one other concern. The gracious Speech says:

“Laws will be introduced to ensure that the parole system recognises the pain to victims and their families caused by offenders refusing to disclose information relating to their crimes”.


But this is already the established practice. We are told that making this a legal obligation will reassure victims, but I dislike the rigidity of a statutory obligation. Judges know all about this when they are faced with rigid rules which have been fixed by statute when it comes to the matter of sentencing.

One has to bear in mind too that under the established practice of the Parole Board, very occasionally mistakes are made. For example, Victor Nealon, having been convicted of rape, spent 17 years in custody beyond his tariff release date because he refused to admit his guilt. He was eventually released when DNA evidence showed that he could not have committed the crime. For him, his repeated appearances before the Parole Board were a prolonged nightmare.

There may be a variety of reasons why a prisoner does not disclose information, some of which he cannot control. I fear that a legal obligation may increase the number of mistakes, especially if the measure extends to any failure, as the noble and learned Lord, Lord Keen of Elie, said in his opening speech. I would much rather leave this to the discretion of the Parole Board, with all the sensitivity that it can bring to bear, unless it can be clearly demonstrated that there is a real need for this change. I would be grateful if the Minister could explain what the need really is for this to be a statutory obligation rather than for it to be left to established practice.

Victims and Witnesses (Scotland) Act 2014 (Consequential Modification) Order 2019

Lord Hope of Craighead Excerpts

Wednesday 26th June 2019 Lords Chamber

[The Parliamentary Under-Secretary of State, Northern Ireland Office and Scotland Office (Lord Duncan of Springbank) (Con)]

My Lords, this order is necessitated by the Victims and Witnesses (Scotland) Act 2014. Through this Act, the Scottish Government sought to improve the information and support available to victims and witnesses, and to put them at the heart of the justice system in Scotland. The Act also created a new victim surcharge fund, which will use the money raised from this surcharge to provide support to victims of crime.

The order will amend the Criminal Justice Act 1991, which gives the Secretary of State the power to introduce a process whereby courts can apply for a deduction from an offender’s benefits to pay for a fine or compensation order.

This process has been in place for the victim surcharge in England and Wales since 2007. However, social security is for the most part reserved and, therefore, the Scottish Government are unable to apply the power to the new Scottish victim surcharge. This order, if approved, will allow Scottish courts to apply to the Secretary of State for a deduction to be made from an offender’s benefits.

This order demonstrates that the UK Government remain committed to strengthening the devolution settlement and shows Scotland’s two Governments working together. I commend the order to the House and beg to move.

[Lord Hope of Craighead (CB)]

My Lords, looking at the matter from the point of view of a sheriff sitting in a court in Scotland, I think that the order is much to be welcomed. The fact is that people move about, and some offenders coming to Scotland from England or Wales disappear back to England or Wales after they have been sentenced. It is necessary that this measure be passed so that the order that the sheriff would like to make can be properly put into effect.

[Lord Wallace of Tankerness (LD)]

My Lords, we also support the order, but I have one or two questions for the Minister. We heard in the previous debate about legislation that came into effect in 2012 and we were only now getting around to considering the order. My understanding is that the Victims and Witnesses (Scotland) Act was passed by the Scottish Parliament in late 2013 and received Royal Assent in January 2014. Here we are, more than five years after Royal Assent, considering this order.

Paragraph 7.1 of the Explanatory Memorandum states: “Included in these measures”—that is, the measures in the 2014 Act—

“is the victim surcharge, a new financial penalty to be imposed on offenders in certain cases as will be set out in the Victim Surcharge (Scotland) Regulations 2019”.

Is it right that we do not yet have these regulations, so we do not know what will be in them, what the circumstances would be nor the measure of the penalties? I think that there is reference somewhere to a sliding scale, but has the Minister seen any draft regulations? In inviting the House to approve this measure, it might have been reasonable to give us some idea as to what precisely the Scottish Government had in mind. I know the Scottish Parliament will be able to look at this order, but it would have been helpful to have had a bit of colour: if he has that information, it will be very welcome.

I emphasise that it has been a very long journey to get here. On a visit to Victim Support Scotland in August 2014, the then Justice Secretary in the Scottish Government, Mr Kenny MacAskill, met victims who had been helped by the existing fund, run by that very important organisation. Mr MacAskill indicated that they were the kind of victims who would be helped by the victim surcharge fund. Indeed, the Scottish Government’s press release accompanying Mr MacAskill’s visit said:

“A new fund providing more than a million pounds a year of practical help for victims of crime is set to be introduced in the coming months as part of the Scottish Government’s package of measures to improve the support for victims and witnesses in Scotland … The Victim Surcharge Fund will be established in the next few months and is likely to be administered by Victim Support Scotland”.


That press release was dated 13 August 2014.

A series of questions have been asked in the Scottish Parliament about when we are actually going to get these regulations. My Liberal Democrat colleague Alison McInnes, then Member for North East Scotland, asked in July 2015,

“what (a) criminal offences, (b) circumstances and (c) descriptions of offender can cause a victim surcharge to be imposed”.

She was told by Mr Michael Matheson, who by that time had taken over from Mr MacAskill as Scottish Justice Secretary:

“The victim surcharge is not yet operational, nor have the relevant provisions in the Victims and Witnesses (Scotland) Act 2014 been brought into force. Therefore, no surcharges have been imposed or payments made. The victim surcharge is due to be introduced later in 2015, ensuring that offenders contribute towards a fund specifically to support victims of crime. Preparatory work for the establishment and administration of the fund is ongoing … details of how it will operate, including the circumstances in which a surcharge is to be imposed, will be set out in subordinate legislation and will be subject to parliamentary approval in due course”.


Fast forward—or not-so-fast forward—to February 2016, when Ms McInnes was given a further answer from Michael Matheson:

“Preparatory work for the establishment and administration of the victim surcharge fund is on-going. The timetable for the introduction of the fund has been influenced by a number of factors, including further detailed consideration of viable options for delivery and the potential role of third sector or other organisations in this process”.


Then we get to an answer given to my colleague, Member of the Scottish Parliament for Orkney, Mr Liam McArthur, who asked in December 2016 what progress had been made in establishing the victim surcharge fund and when it was expected to be operational and issue its first payments. To this, he got the reply:

“It is the Scottish Government’s intention to establish the fund in 2017 and to initially impose the surcharge on offenders given a court fine. Further details of how the fund will operate will be set out in subordinate legislation, which will be subject to parliamentary approval in due course”.


So here we are at the beginning of 2017, three years after Royal Assent, and we are still talking about it being done “in due course”.

There were further questions of a similar kind. Mr Humza Yousaf, who had by this time taken over from Mr Michael Matheson, said on 17 July last year:

“Our intention is to announce further details on the VSF, following the summer Parliamentary recess”.


The then Conservative Member for North East Scotland, Liam Kerr, asked in October 2018 on what date the fund would become operational. Mr Yousaf, replying on 7 November 2018 said:

“In order to ensure effective operation of the victim surcharge in Scotland, an Order under section 104 of the Scotland Act 1998 … is required to amend section 24 of the Criminal Justice Act 1991 … which is reserved”.


That is the very point we are debating in relation to this order, but one notes that not until November 2018 did the Scottish Government ever say that there was any issue about trying to get a Section 104 order. Will the Minister tell us when the Scotland Office was first approached by the Scottish Government with regard to identifying the necessity for such an order? Mr Yousaf went on to describe the order and said:

“The UK Government have agreed in principle to this Order and have estimated that, once all the necessary steps are completed, it will come into force in summer 2019, subject to UK Parliamentary timescales. The Victim Surcharge (Scotland) Regulations, which will implement the surcharge, will be laid before the Scottish Parliament, as soon as practicable after the section 104 Order comes into force”.


In all fairness to the United Kingdom Government, they have held to summer 2019 reasonably well. In a reply to a parliamentary question from Liam McArthur last month, that timescale was repeated by Mr Yousaf in very similar terms.

It is widely agreed that this is an important provision. It is one that will actually give support to victims from the fund created, and it is a matter of considerable regret that it has taken the Scottish Government five years after legislating to even come up with a proposal on how their flagship policy might work. That is not a responsibility of the United Kingdom Government, but it would be very helpful for us to have some colour as to the detail of the proposal. For example, while it is important that we look at the position of victims, we also need to consider those who might have this sanction applied to them. What are the guidelines to ensure that they do not have so much taken out of their benefits that they then struggle to make ends meet, which might actually drive them, in some circumstances, to further crime? That is a detail we do not know and if the Minister has any information on that, it would be very welcome.

As I say, my Liberal Democrat colleagues in the Scottish Parliament have been pushing the Scottish Government hard to make progress on this and it is important that we have this order tonight. We very much welcome it and will certainly give it our support.

Sentencing (Pre-consolidation Amendments) Bill [HL]

Lord Hope of Craighead Excerpts

Second reading committee (Hansard): House of Lords
Wednesday 12th June 2019 Grand Committee

[Lord Hope of Craighead (CB)]

My Lords, it is a pleasure to follow the noble Baroness, Lady Mallalieu, and to acknowledge the fact that she has been much closer to the day-to-day problems of the sentencing process than I have. I spent my judicial career in the appellate courts, in various places; we encountered these problems from time to time but to nowhere near the same degree she has told us about, based on her substantial experience.

I have no hesitation in welcoming the Bill. I am delighted that it is being sponsored by the Government. As chairmen of the Law Commission know very well, and as the noble Baroness said, it has not been easy for Law Commission Bills to make progress in Parliament as parliamentary time is often at a premium. Without government sponsorship it would be difficult for any progress to be made at all, so we must be grateful to the Government for being willing not only to sponsor the Bill but to find time for it, as they have done today.

As it happens, it has not been all that difficult at this juncture, given the present state of politics in this country, to find time for this Bill. It is obvious to everyone in this House that it is being starved of legislation that we can really get our teeth into. The Kew Gardens (Leases) (No. 3) Bill and the Wild Animals in Circuses (No. 2) Bill are really quite lightweight in comparison with what we are normally used to. There is a bit more in the Courts and Tribunals (Online Procedure) Bill, as anyone who listened to the spirited debate in Committee on Monday will have noticed, but even in that case the Committee stage lasted only for two hours and 40 minutes. So, based on my own experience of dealing with the usual channels as I do, it was not too difficult to persuade them that this Bill should make rapid progress as soon as possible.

As the short title of the Bill indicates and as the Minister made clear in his opening, this is doing no more than laying the sound basis for the enactment of the sentencing code, which has been the subject of so much hard work by the Law Commission. As a rider to what I was saying about the speed at which this Bill has been brought before the House, one must wish that that rapid progress will be extended to the next stage of the process, when the sentencing code itself comes forward for enactment. Of course, at Second Reading we are concerned with only the issues of principle, not the details. The meat of the Bill really is in the two schedules, to which the Minister has referred, and there will be an opportunity for detailed examination of them in Committee with the advantage of the special procedure, to which reference has been made.

As for the issues of principle, perhaps I might make one or two points. The first is that there is no doubt whatever that the current law relating to sentencing has become less and less acceptable, and more and more confused, as it is scattered about various statutes which themselves have been subject to frequent amendment. It is one of the requirements of the rule of law that the law which the magistrates and judges have to apply in the sentencing process should be clear and accessible. As matters stand today, and for the reasons which have already been made, the law relating to sentencing is at serious risk of failing to meet that requirement. The purpose of the sentencing code is to address that problem, in a way that gets over the hurdle of piecemeal attempts to keep the law up to date. For that reason, one must applaud the work that has been done and the presence of this Bill before the Committee today.

There is, however, one aspect which deserves to be carefully noted. It is the approach to dealing with the changes in the law, which has been described as a clean sweep. The Minister referred to this in his opening. As I understand it, that is what subsections (3) and (4) of Clause 1 are about, being designed to ensure that those convicted after the code comes into force will be dealt with according to the most up-to-date law. But there is a corollary to that requirement: that the convicted person must not be dealt with by the imposition of a penalty of any kind which is more onerous than that which he would have faced when the offence was committed. This is the rule against retrospective penalties to which the Minister referred. I hope that particular care will be taken in Committee to see that the protections described in Clause 1(4) as needing to be in place before the Bill is enacted will be adequate in all circumstances. I have no doubt careful consideration will be given to that.

Although I said that we are concerned with principles and not with details I would like to draw attention to one other matter, bearing in mind that the jurisdiction from which I come is north of the border. I draw attention to paragraphs 90(1) and 90(2) and paragraphs 92(1) and 92(2) of Schedule 2. These provisions deal with the transfers of community orders and suspended sentences imposed in courts in England and Wales to Scotland under the Powers of Criminal Courts (Sentencing) Act 2000. The effect of Clause 5(6), which deals with the extent of the Bill, is that these provisions extend to the whole of the United Kingdom and not just to England and Wales. The effect is that to some degree, although not very much, the law of Scotland will be altered by the provisions to which I have referred. Have the Scottish Government been consulted about these provisions? If so, have they indicated whether they are content? I would not imagine there would be too much difficulty about that, but I would hope that the protocols were observed.

I draw attention to the power to make further amendments by regulation under Clause 2(2), which is also extended to Scotland by the provisions of Clause 5(6). In that connection, can the Minister assure the Committee that the usual conventions will apply in that case as well, if the power is exercised in a way that affects the law of Scotland? All that having been said, I am very happy to offer my full support to the Bill.

Devolved Administrations: 20th Anniversary

Lord Hope of Craighead Excerpts

Wednesday 22nd May 2019 Lords Chamber

[Lord Hope of Craighead (CB)]

My Lords, I am grateful to the noble Lord, Lord Bourne, for his comprehensive introduction to this debate, covering the development of devolution across all parts of the United Kingdom and paying attention to the particular problems of how England fits into a structure that has been designed elsewhere.

I wish to say a bit about the legislation that was put together to create a reliable vehicle for this major alteration to our constitution. I should explain that my qualification for speaking is that I was involved in the legislative process in this House from the very start. I was one of the 40 or so hardy souls who worked late into the evening as the Bills were going through this House. Despite our protests, devolution always seemed to be taken as last business—and when I say that, I mean very last business. The Scotland Bill, which was my main concern, was given eight days in Committee, but the time allotted to us each evening was from around 10 pm onwards, so we were struggling with the need to complete the work while also finding time to sleep. I am not exaggerating—I am recorded in Hansard as speaking on the Scotland Bill at 2.30 am on one of those days. That was not the time at which we rose that night, and it was not the only time that we sat until the early hours.

That is one side of the picture. The other side is my interest in the legislation when sitting as a judge in the Appellate Committee of this House, in the Judicial Committee of the Privy Council and in the UK Supreme Court. Issues were brought before us such as whether the Scottish Parliament or Members of the Scottish Government, including the Lord Advocate, were acting within the powers that had been devolved to them; and, at a later stage in two cases that came before us, whether the Welsh Assembly had acted within the powers that had been devolved to it. I can claim credit for being the first judge to use the expression “Welsh law”, because it seemed to me that that was indeed what was developing at the time, and to my great pleasure it has developed much further since. This means that I was able to see how the system was working in practice.

Perhaps I may concentrate on the Scotland Act 1998. I agree with the word used earlier—challenge—because designing this legislation was a remarkable achievement. The political inspiration for Scotland came from Donald Dewar. I shall always remember his pride in the wording of Section 1(1) of the Scotland Act, which declares:

“There shall be a Scottish Parliament”.


He loved those words and he repeated them several times. But the architect was an exceptionally able civil servant in what was then the Scottish Office in Edinburgh, named Iain Jamieson. It was his scheme and it was built on three pillars around which the necessary machinery was constructed. The first pillar, of course, was that devolved competence was to be limited to the territory of Scotland and to functions exercisable in or as regards Scotland. The second—also a very important point—was that the sovereignty of the United Kingdom Parliament was to be respected, and a provision was included in the Act in those very terms. The devolution of powers to the Scottish Parliament was therefore not to affect the power of the UK Parliament to make laws for Scotland. Obviously, a balance was going to have to be struck in practice. The third pillar was that our international treaty obligations were to be respected, so it was to be outside competence to do anything incompatible with any of the rights set out in the European Convention on Human Rights or with Community law, which we now call EU law.

On that last point, Iain Jamieson was fortunate in two respects. At the same time as we were considering the devolution legislation for all three nations, Parliament was also being asked to approve the Human Rights Bill. That Act, as it became, was the outstanding achievement of the noble and learned Lord, Lord Irvine of Lairg, during his time as Lord Chancellor. It received its Royal Assent on 9 November 1998. Royal Assent to the Scotland Act followed 10 days later. As far as the Scotland Act was concerned, the work needed to bring human rights home—as it was put—was already being done. All that was needed in the Scotland Bill was to cross-refer to that other Bill.

As it happened, human rights came home to Scotland more than a year before England. The commencement date for Scotland was 1 July 1999. It was thought that England and Wales were not ready for such a revolution and that more time was needed for preparation, so the commencement of the Human Rights Act—which applies it all to England and Wales—was put off until 1 October 2000. But no one in Scotland seemed to mind. Unlike the adventure of the poll tax, which was introduced there first, Scotland did not seem to mind getting human rights in advance of anywhere else.

The second respect in which Iain Jamieson was so fortunate, as is now plain to see, was in regard to Community law. All he needed to do was to say what that expression meant. He did not have to wrestle with how to define Scotland’s place in a single UK market, because we were already within the European Community.

I think it right to say that he was also fortunate he was not asked to provide for a second chamber. This point was raised when the noble Lord, Lord McConnell, was giving his lecture in the Robing Room last week. At the end of his excellent lecture he was asked whether there should have been a second chamber. His answer was, “No, that would have been to create a republic”. Of course, creating a separate state was not the idea; the aim was intended to be devolution, not a stepping stone to independence.

Jamieson was fortunate in another respect too. In contrast to the earlier attempt at devolution to which the noble and learned Lord, Lord Davidson, referred—which failed because the vote was not big enough—the simple rule to which he was asked to work was that whatever was not reserved to the UK Parliament was devolved. Unfortunately, that was not the situation for Wales. It had to be dragged out of the UK—I remember this so well—step by step, as the noble Baroness, Lady Randerson, described, until eventually we have something fairly close to what we now have in Scotland, which makes the situation so much more acceptable.

So Jamieson was very fortunate. I remember spending many hours late at night in this Chamber going through the list of reserved matters, because it was so important to get these right. The remarkable thing is that in my time as a judge I can recall only one case in the Supreme Court where we had to examine that structure because it was under challenge, and it survived scrutiny. The scheme of the Act has performed remarkably well over these years.

I remember going to see Iain Jamieson with the late Lord Rodger of Earlsferry to discuss with him some points we thought needed clarification. We were put firmly in our place. He wanted to turn our conversation into a seminar and to explain the provisions we were there to scrutinise. It became clear that most of the passages that we thought were obscure were the result of prolonged and somewhat dogged arguments between him and the parliamentary draftsmen. That meant there was no discernible room for manoeuvre; we simply had to accept the package as it was.

However, in the end we were able to achieve one significant amendment. It was to a clause about the removal of judges, now Section 95. That same clause dealt with appointments, and there was no problem with that. The system was that this could be done by Her Majesty on the recommendation of the First Minister, but the scheme provided for removals to be exactly the same: the First Minister recommends removal and Her Majesty follows that recommendation. There was an objection to this, because the whole idea of convention rights was that the people of Scotland could challenge the Government as acting incompatibly with those. The First Minister and Scottish Government were people whose actions we had to scrutinise and criticise, and it was thought really quite dangerous to give the First Minister the power to direct our removal. So three of us—Lord Clyde, Lord McCluskey and I—eventually carried an amendment by 140 votes to 108 altering the system to provide for proper scrutiny of the removal process. It was to our great relief that the Government gave way on this point.

I do not want to go on too much longer, but there was one problem that we really did not foresee, which arose because of the jurisdiction we had over the criminal appeal court and the actions of the Lord Advocate. One of the consequences of requiring the Lord Advocate to act compatibly with the convention rights was that we found ourselves dealing with issues about disclosure of evidence by the police and the right of an accused person to have a solicitor present during police questioning. Scots law at that time was somewhat behind English law, which had well-developed rules. We had other rules and were fenced in by many checks and balances. In the end we decided in our court that it did not measure up to the rulings of the Strasbourg court on what was necessary to achieve the right to a fair trial. Unfortunately the judges in Edinburgh took strong exception to what we were doing, especially when we exercised the power under our rules to quash convictions. Relations between the Supreme Court and the criminal appeal court in Edinburgh became very tense. In the end the situation was resolved by an amendment in the 2016 Act that confined the Supreme Court’s power simply to determining the issue, leaving the disposal of the case to be decided by the judges in Scotland. That was a sensible scheme that we should have thought about at the very beginning.

Of course, the architecture had one other feature that was not fully developed: the need to work out and respect the devolution system in the working of this Parliament at Westminster. There was the Sewel convention, now reproduced in statutory language in the 2016 Act, but perhaps we should have gone a bit further in developing the rules in that way. That might have saved quite a bit of time.

Overall, I think those pieces of legislation—the 1998 Act for Scotland, the Wales Act as it developed and the Northern Ireland Act—were all remarkable achievements. As in the case of the Human Rights Act, they all say a great deal in relatively simple and concise language. I hope that Iain Jamieson, to whose efforts the Scotland Act owes so much, derived much pleasure in seeing it put into effect.