Criminal Cases Review Commission

Lord Keen of Elie Excerpts

Tuesday 20th May 2025 Lords Chamber

[Lord Ponsonby of Shulbrede (Lab)]

There has actually been an increase in resource for the CCRC over the past five years or so, partly to meet the point on forensics that I made in answer to an earlier question. If there is a disproportionate extra amount of work because of the particular case to which the noble Baroness refers then I will make sure that the authorities within the MoJ are aware of that but, as I say, there has actually been an increase in resource for the CCRC for a number of years now.

[Lord Keen of Elie (Con)]

My Lords, any miscarriage of justice has tragic consequences, not only for the wrongly convicted but for the victims of the original crime. It is also liable to undermine public confidence in the justice system. We have seen recent cases where innocent persons have spent tens of years in prison despite repeated applications to the Criminal Cases Review Commission. There is a concern that the commission has been overly cautious in referring cases back to the Court of Appeal, so what measures will be taken to address that concern? Will they include a question over the composition of the commission, and not just its chairmanship?

[Lord Ponsonby of Shulbrede (Lab)]

The short answer to the noble and learned Lord’s question is yes. The review, which, as I said, will take about 18 months, will indeed look at the CCRC’s composition. Of course, the Law Commission is due to produce its report next year, so with the combination of these activities we see some radical reform of the CCRC on the horizon.

Legal Aid Agency: Cybersecurity Incident

Lord Keen of Elie Excerpts

Tuesday 20th May 2025 Lords Chamber

[Lord Keen of Elie (Con)]

My Lords, while the Government Benches may criticise the role of successive Governments in preventing cyberattacks, we must not lose sight of where the true blame lies. The primary responsibility for this deeply troubling incident rests with the malicious individuals who orchestrated it.

This was not merely a digital intrusion; it was a direct assault on some of the most vulnerable members of our society. The data accessed is, in many cases, highly sensitive—it includes medical and other personal records—and the scale and nature of the information compromised over a period, apparently, from 2010, may mark this as one of the more serious data breaches that the Government have suffered in recent years.

Given the gravity of the situation, will the Minister confirm how many individuals have been affected? How are the Government supporting the individuals whose data has been exposed? Is he able to confirm the possible motive and identity of the attackers? Has there, for example, been any form of ransom demand from those who perpetrated this act? We welcome the involvement of the National Crime Agency and the National Cyber Security Centre. Their expertise will be essential. Clearly, it is imperative that those responsible for this breach are held to account and brought to justice.

Significant concerns remain regarding the Government’s handling of this matter. I therefore seek clarity from the Minister on a number of issues. Why were Parliament and the public not informed immediately when the breach was discovered on 23 April? We now understand that the data access may include information dating back to 2010, as I said before, and that over 2 million records may have been compromised. The delay of almost a month before this was made public may have prevented individuals taking timely steps to protect themselves from potential risks. Was there a failure to properly appreciate the seriousness of this breach?

Further, can the Minister update the House on the status of the operational systems that are vital for processing legal aid and payments to legal professionals? If these systems are not fully restored, how can we expect to return to full functionality? It may seem odd to talk about payment of legal aid to lawyers but, of course, those working in the fields of criminal law and family law, which are severely underfunded in many respects, will find the cash flow from the legal fund vital to their continuing activities. It is therefore important that that issue should also be addressed.

We heard in the other place that the Government believe that the incident has been contained. How did the Government arrive at that conclusion, and could the Minister explain to the House what is meant by “contained”? Will he confirm whether the Ministry of Justice has conducted or intends to conduct a comprehensive risk assessment of its wider digital infrastructure? Will similar assessments be made in other departments to safeguard against future vulnerabilities?

I also ask the Minister to ensure that Parliament receives regular and transparent updates as the investigation progresses. It is critical that we and members of the public should be informed clearly and promptly about the consequences of this breach and how it is being addressed. The breach itself represents a significant failure in the protection of our justice system’s digital infrastructure. That is liable to undermine public trust and raises serious concerns about data security and transparency, so I ask the Government to respond with urgency and openness to this issue.

Finally, I will raise a question about the devolved Administrations. For example, Scotland has its own legal aid structure, as, I believe, Northern Ireland does also, but those structures in turn depend on data from the United Kingdom—for example, access to social security data. Have they been impacted by this event? If so, what liaison has there been with the devolved Administrations to try to minimise the difficulties that they may have been caused by this data breach? I am obliged.

[Lord Marks of Henley-on-Thames (LD)]

My Lords, this cyberattack and its result have exposed the lamentable insecurity of the Legal Aid Agency data systems. The ramifications are serious. The personal information that goes into legal aid applications and is held by legal aid providers includes much highly confidential material, which can be used by criminals not just to embarrass but to defraud and, in some cases, harass applicants for legal aid. We are told that the attackers in this case accessed residential addresses, contact details, dates of birth, and employment and financial data—indeed, much of the material that identity checkers seek and criminals could profit from. As the noble and learned Lord, Lord Keen of Elie, said, it appears to have affected 2 million items of data and legal aid applications going back as far as 2010. In addition, as became clear in the House of Commons, that information would have included sensitive medical information. Indeed, that must be right, because many applicants for legal aid would include such information with their applications. Can the Minister say whether there are plans to establish a dedicated helpline or other support systems, and if so what support systems, for individuals who may seek advice or protection in the light of this attack?

Of course, our first condemnation is for the callous criminality of the attackers, whose actions exposed so many vulnerable individuals to risk. These cyberattacks appear, according to the Minister in the other place, to have come from organised crime. It would be helpful for the Minister, so far as possible and without jeopardising security, to give an account to the House of what steps the Ministry of Justice takes routinely and has taken in the light of this case to protect the data of those seeking to access legal aid.

This question is similar to one asked by the noble and learned Lord: will the MoJ carry out a full independent inquiry into this attack, and what can be done to restore public confidence in its future cybersecurity arrangements? We understand the need for the Legal Aid Agency’s systems to go offline in the short term, as they have, but can the Government say how long the shutdown of online services is likely to last and how far the legal aid system will be impacted through delays and in reduced ability to deal with its workload?

We should not underestimate the degree to which the MoJ’s IT systems are antiquated, inefficient, insecure and, frankly, unfit for purpose. We on these Benches agree that that results from a neglect of the system over years under the preceding Administration. As the Statement rightly points out, the Law Society has been complaining for years about the outdatedness of our legal aid IT systems. The £20 million promised for updating the agency’s systems will help. However, regrettably, I worry that there is some complacency about the sentence in the Statement that reads:

“At this stage, we believe that the breach is contained to the Legal Aid Agency’s systems; there are no indications that other parts of the justice system have been impacted”.


Can the Minister say whether the Government will now institute a survey of current IT systems across the department to consider their security? Will the department also institute a system of regular cybersecurity audits for the future, to ensure robust defence of its digital systems and to prevent recurrence of this breach?

More widely, this event should act as a wake-up call for government as a whole to investigate how far its IT systems can provide the public with a high standard of data security. We hope that the promised cybersecurity and resilience Bill will bring some improvement, but we will not keep citizens’ data secure without investing the necessary resources. The reality is that we are working with old and inefficient systems that, frankly, grow creakier and creakier, just as the ingenuity and criminality of the potential attackers becomes ever more sophisticated, not least as the value of personal data rises and the potential for its abuse becomes ever greater.

The Statement rightly reminds us that every organisation is at risk from this kind of criminal behaviour and government is not exempt. As a vital part of the social compact, it is a responsibility of government to keep the personal data it holds on individuals secure. If government fails to live up to that responsibility, it rightly forfeits public trust and we concerned are to know, from the Government, how they intend to retain that trust.

Recalled Offenders: Sentencing Limits

Lord Keen of Elie Excerpts

Monday 19th May 2025 Lords Chamber

[Lord Keen of Elie (Con)]

My Lords, the Victims’ Commissioner has warned that freeing offenders after only a 28-day recall will place victims and the wider public at an unnecessary risk of harm. Indeed, the Domestic Abuse Commissioner has said that the scheme is “simply unacceptable”. It amounts, in essence, to a transfer of a problem from prisons to the public. Does the Minister agree that he has got this proposed policy completely wrong and that the proper approach should be to address the matter of licence conditions, which are prescriptive?

If we address licence conditions sensibly, we will find that where violent offenders breach their licence conditions by reason of a further violent offence, they may be returned immediately to prison, but where a non-violent offender breaches a licence condition—for example, by not attending supervision, not going to a specified place of abode, or even by reason of a minor road traffic offence—there should simply be a points system, as there is for a driving licence. They would receive one, two and three warnings about a breach of their licence; they would get three points for one, three points for another, three points for a third; and if they persisted in breach of their licence conditions, then, like a driving licence, it would be revoked and they would return to prison. The vast majority of prisoners allowed out on licence are not violent offenders; the latter should return to complete their sentence. Does the Minister agree that the Government have gone off in the wrong direction with this proposal?

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

My Lords, our mission is to protect the public, support victims and reduce crime. The worst thing that could happen for victims is for us entirely to run out of space in our prisons. That is forecast to happen in November, if we do not act now. The change announced last week to recall will create approximately a further 1,400 prison places and give us the time to carry out sentencing reform which, alongside prison building, will bring an end to the prison capacity crisis.

The reasons for that are clear. We have had 11 Justice Secretaries in 14 years. The previous Government built a net 500 prison places; we have 2,400 open already. Probation is a fantastic service that is really struggling. We recruited 1,000 extra probation officers last year and 1,300 this year. However, that is not all; we also have a big problem with drugs in our prisons. However, I can assure the House that offenders who pose the most risk and are actively managed by multiple agencies will be excluded from this measure, as well as those who commit serious further offences. We will publish details of that SI shortly, when we bring the measure before the House.

“Hillsborough Law”

Lord Keen of Elie Excerpts

Tuesday 22nd April 2025 Lords Chamber

[Lord Ponsonby of Shulbrede]

Yes, I can give my noble friend the reassurance that she is looking for. It is about looking at the extent of the legal aid that will be available to those families as they go into these types of large-scale litigation. It is precisely those issues that are being looked at. There will be further discussions with the groups that are affected.

[Lord Keen of Elie (Con)]

My Lords, Hillsborough was, of course, a disaster with tragic consequences. It evinced a disgraceful response from many public servants, public authorities and, indeed, in some instances, the police. It is rather depressing to find that we have to legislate to impose a duty of candour on such public servants when we already have a law with regard to misfeasance in public office and, surely, a failure of candour amounts to misfeasance in these circumstances. When the Government eventually come to legislate, will they ensure that they have effective means of enforcing the duty of candour—not imposing it but enforcing it—and ensuring that there will be punishment for those who fail to display such an obvious duty in public office?

[Lord Ponsonby of Shulbrede (Lab)]

I take the point that the noble and learned Lord has made. It is regrettable that we need this duty of candour, but we do need it. We have seen what has happened in events over the last 20 years or so. As I have said in answers to other noble Lords, it is the intention that there will be criminal sanctions in the duty of candour when it is brought forward, and that is the firm commitment of the Government.

Sentencing Council Guidelines

Lord Keen of Elie Excerpts

Thursday 3rd April 2025 Lords Chamber

[Lord Keen of Elie (Con)]

My Lords, two days ago, magistrates and judges across England and Wales were, in effect, blindsided. At midday, they were informed that sentencing guidelines that they thought had come into force had in fact been suspended. The courts would have been sentencing offenders under guidelines that the Lord Chancellor herself now admits are fundamentally flawed. These are guidelines which, she has stated, would inflict a “two-tier” system of justice, undermining fairness and consistency in our courts.

In addition, buried in the very email sent to judges and magistrates, the Sentencing Council somewhat audaciously declared that

“we remain of the view that the guidelines are necessary and appropriate”.

While the Lord Chancellor advised in the other place on Tuesday:

“I believe that we must reverse them”.—[Official Report, Commons, 1/4/25; col. 183.]


So the Lord Chancellor says one thing and the Sentencing Council continues to say another.

This situation was entirely preventable, had the Lord Chancellor put party politics aside weeks ago and backed, rather than blocked, the Bill that my right honourable friend Robert Jenrick introduced in the other place. This Bill would have restored accountability and given the Lord Chancellor the power to govern justice policy. We may welcome the belated introduction of the Lord Chancellor’s Sentencing Council Bill, although I express regret that it had to come to this. However, we should be clear that the proposed Bill does not address the core of the problem, which concerns the status and accountability of the Sentencing Council.

There have already been concerns about other aspects of the Sentencing Council guidelines. Public reference has been made to the guidelines on immigration offences, although I understand that they are debated and indeed disputed. Further concerns have been expressed about guidelines on the provision of bail, where there is particular reference to the priority of ethnic minorities and transgender offenders. That also is a potentially discriminating practice that should not be maintained in our criminal justice system.

What is now required is a calm and considered review of the entire situation, rather than just a knee-jerk reaction Bill that addresses a symptom rather than a cause. I therefore invite the Minister, on behalf of the Government, to commit to a comprehensive review of all Sentencing Council and Ministry of Justice guidance on sentencing policy and bail policy, which should properly rest with the Government in the form of the Ministry of Justice and not with a wholly unaccountable Sentencing Council—however high a regard we have for those who sit in that council.

[Lord Marks of Henley-on-Thames (LD)]

My Lords, the Lord Chancellor maintains that this Statement raises issues of principle, that it is about policy being for Parliament and not for judges, and that the Sentencing Council has breached the principle of equality before the law. We hear complaints from the Conservatives in particular—the noble and learned Lord, Lord Keen, is no exception to this, and it is unsurprising that I take a different view from him—of judicial overreach and of a two-tier justice system. However, all in this House are committed to equality before the law.

The background to the new proposed guidelines is the wealth of evidence, almost entirely undisputed, that ethnic minority defendants are more likely to be sent to prison than white defendants. Yesterday I mentioned the Lammy review, but there is so much more. This inequality of outcomes must be addressed; it is the very opposite of equality before the law.

Pre-sentence reports are a vital tool that enable judges to take into account the circumstances of an offender as well as the nature of the offence for which he is before the courts. The Lord Chancellor appears to accept that. The only other significant assistance a sentencing judge receives on an offender’s background and circumstances is the speech in mitigation from defence counsel. Although speeches in mitigation are powerful tools, they are made by defence counsel on the instructions of the defendant, so they are neither independently prepared nor impartial. They also cannot generally be independently verified, as pre-sentence reports can.

So we need these reports, and they have long been intended to be the norm not an optional add-on, yet resources for these reports have, in effect, been rationed. The Probation Service was hopelessly mishandled by the last Government, and one result is that there is not enough money to fund the number of pre-sentence reports we need. The noble Lord, Lord Timpson, yesterday gave the figures: the number of pre-sentence reports is down by 44% between 2013 and 2023.

The letter from the chairman of the Sentencing Council to the Lord Chancellor on 10 March explained the very thorough process that had led to these new guidelines, in the context of the statutory duty imposed by Parliament for the Sentencing Council to give guidelines to judges on sentencing. Part of the reason behind establishing the Sentencing Council was precisely to encourage consistency in sentencing—that is, equal treatment before the law—yet now we have the Government resorting to hastily drawn and unhelpful emergency legislation that tries to address a complex issue in simplistic terms. The operative section would provide that

“sentencing guidelines about pre-sentence reports may not include provision framed by reference to different personal characteristics of an offender”.

A subsection goes on to say that the “personal characteristics” may include—not must include—

“in particular … race … religion or belief … cultural background”.

The cohorts identified by the Sentencing Council as normally calling for a PSR include being a young adult, female, pregnant, or postnatal. Are those not personal circumstances and are they not relevant?

The solution to this is not emergency legislation. The emergency has now passed because the Sentencing Council has paused introduction of the guidelines. This emergency Bill has not yet had a Second Reading, and I therefore invite the Government to withdraw it now and end this unnecessary row. It is unseemly and widely regarded as such by the public. I suggest that the solution lies in rational and moderate discussion between the Sentencing Council, the Lady Chief Justice and the Government, to which Ministers in this House from the Ministry of Justice would have an important contribution to make.

The first aim would be to reach a solution that ensures that pre-sentence reports are properly funded so that they become the norm once again in all cases where a substantial prison sentence is not inevitable. The second would be that we recognise these reports play an important part in addressing and reducing the inequality of outcomes for ethnic minority defendants—this must be a major priority of the Government. The third would be that we all respect and ultimately achieve genuine equality before the law.

Sentencing Council Guidelines

Lord Keen of Elie Excerpts

Wednesday 2nd April 2025 Lords Chamber

[Lord Timpson (Lab)]

Nothing in the Bill prevents judges requesting a pre-sentence report for pregnant women—it is normal practice for judges to request pre-sentence reports in cases involving pregnant women—nor does the Bill affect Court of Appeal case law, which states that a pre-sentence report is desirable in those cases. I believe that pre-sentence reports are very important, but they have declined in number considerably over the last 10 years. From 2013 to 2023, they declined by 44%. That is why we are putting extra resources into probation, recruiting more probation officers so that they have the time to produce high-quality pre-sentence reports.

[Lord Keen of Elie (Con)]

My Lords, the Minister—perhaps the Minister of State for pouring oil on troubled waters—referred to the dialogue between his department and the Sentencing Council. But, as he knows, after the report became public on 5 March, that dialogue was far from helpful. The Sentencing Council pushed back hard on the suggestion from the Secretary of State for Justice that it had created a two-tier sentencing system. Therein lay the fundamental problem, which is that when the previous Labour Government created the Sentencing Council, they created a body that was not answerable to the judges or the Government. Does the Minister consider that that model is now compromised, as evidenced by recent events? Will his department address the issue of how sentencing guidance should be provided in future?

[Lord Timpson (Lab)]

The noble and learned Lord is right to say that the Sentencing Council plays an important role in ensuring transparency and consistency in sentencing guidelines but I will not engage in the personal issues that he refers to. The Lord Chancellor is committed to reviewing the role of the Sentencing Council but it will take time to consider this carefully, so it is not appropriate for the Bill. For me, what is important is that we are proud of our judiciary and its independence, and the fact that, quite rightly, it is respected the world over.

Crown Court Criminal Case Backlog

Lord Keen of Elie Excerpts

Thursday 20th March 2025 Lords Chamber

[Lord Keen of Elie (Con)]

My Lords, I begin by extending my thanks to the noble Baroness, Lady Longfield, for her maiden speech and for the insight she gave on the issue of children in the justice system, an area where I know she will continue to make very important contributions to the proceedings of this House. I also thank the noble Lord, Lord Carlile of Berriew, for securing this debate on such an urgent and important issue.

I shall not seek to repeat all the damning statistics that we have heard already. In a sense, they speak for themselves. For far too many victims, justice now feels out of touch. For far too many accused, the resolution of a criminal complaint feels out of reach. Victims of serious crimes such as rape, murder and robbery are told that their cases will not be heard until 2027—or, indeed, as the noble Lord, Lord Stevens of Kirkwhelpington, pointed out, in some instances, 2028. Half of victims have had their Crown Court trials adjourned or rescheduled. This is not just a matter of inconvenience or inefficiency; it is a failure of society to deliver the justice that victims deserve and expect, and it is a failure of our society to give accused their right to resolution of a criminal complaint within a reasonable and rational time.

Listening to these contributions, I note that some would adopt the view that there is somehow an absolute right to trial by jury. I would not accept that proposition. Almost 90% of criminal complaints are disposed of without the requirement for a jury. It may be regarded as some sort of fundamental right, but it is not absolute, and we should not regard it as something that is inviolate.

We face a situation in which the proposal for modest change or careful and moderate improvements is simply not going to be enough. The present Lady Chief Justice has pointed out that the backlog continues to increase, despite the best efforts of the Ministry of Justice, the courts and the legal profession to see it go otherwise. The noble and learned Lord, Lord Burnett of Maldon, her predecessor as Lord Chief Justice, again pointed to the situation we are in as being, in essence, in need of “radical change”. Radical change is the only thing that is going to improve matters in the present situation.

We heard from a number of noble Lords about the difficulty of maintaining the appropriate number of lawyers at the criminal Bar. Indeed, it is clear that, over many years now, recruitment to the criminal Bar has been rendered far more difficult by reason of the very limited legal aid made available to those who practise in that critical and important area. The noble Baroness, Lady Levitt, also made the point that there is an impact not only on the practising Bar but on the judiciary themselves, who in many instances feel overburdened by the situation that has been allowed to develop in the last few years.

We have to look at how we can approach this. I would respectfully adopt the view already expressed by the noble and learned Lord, Lord Burnett, and the noble Baroness, Lady Hazarika, and touched on by the noble Lord, Lord Faulks, that we should look at some sort of intermediary court structure. There is clearly room to deal with the either-way cases that, I understand, represent some 40% of the existing backlog in the Crown Court.

There are a number of ways in which it could be done. The adoption of something similar to the Diplock courts, with a Crown Court judge sitting with two magistrates, for example, would be one way forward. Whether that should deal with only specified offences or whether it should deal with, for example, a sentencing power of up to two years, or, I might venture, up to five years, is a matter for debate and cannot be resolved at this time, but there is clearly a need to address that issue and to potentially introduce such an intermediary court.

With respect, I do not accept the suggestion of the noble Lord, Lord Carlile, that this would give rise to a greater number of appeals. As I understand it, that was not the experience with the Diplock courts in Northern Ireland but again, that issue bears examination. It will also be necessary to take into account the point made by the noble Lord, Lord Meston, on the impact of non-jury trials on certain parts of our society. I appreciate the importance of that, but it can be examined going forward.

The reality is that we cannot continue as we do at the present time. We cannot continue with a backlog in the Crown Court that is simply increasing. It is out of control. There are some interim measures that can be taken. The noble Lord, Lord Stevens, referred to the Nightingale courts. I understand that about 60 were established, of which only about 16 are in use at present. The question then arises of whether we have the judiciary to man those additional courts. Do we have the practitioners at the criminal Bar who will be available to prosecute and defend in those additional courts? There are so many factors coming together here that create not just one problem but a chemistry of problems, which cannot be resolved by one or two simple steps. It will take a leap of imagination by the Minister and his department to address this in a capable, credible and effective way.

My noble friend Lady Porter of Fulwood and the noble Lord, Lord Lemos, made an important point. There is an inextricable link between the present, increasing backlog and the immediate problem that we face with our prison population. I understand from the Library statistics that something like 20% of our prison places are taken up by prisoners on remand. Of those, a very large proportion represent what would be regarded as either-way cases. If we can relieve the backlog, one immediate advantage may be that we take some of the pressure off our present prison estate.

We must look at this in the round. It is not just a case of saying that we need more judges. It is not just a case of saying that we need more to pay lawyers more—although I always think that is a very good idea. It is not a case of saying that we need more courtrooms, or of saying that we can just introduce an intermediate court. We have to bring all these features together. Having regard to that, we are immediately faced with the issue of resources.

Can I make this request of the Minister? Will he ensure that he passes the Hansard report of this debate to his colleagues in His Majesty’s Treasury?

Sentencing Council Guidelines

Lord Keen of Elie Excerpts

Wednesday 19th March 2025 Lords Chamber

[Lord Keen of Elie (Con)]

My Lords, the Secretary of State for Justice appears to have implied, perhaps somewhat implausibly, that she and her department were not aware that the new Sentencing Council guidelines would introduce a two-tier justice system until their final publication two weeks ago. She in fact has representatives on the Sentencing Council. To be fair, the Secretary of State moved rapidly to address the grave problem that this presented, but simply encountered a more fundamental problem stemming from the way in which the previous Labour Government established the Sentencing Council. It is not directly answerable to any Minister. We are now told that the Secretary of State and the council are “talking”. However, discussing the height of the drop as you approach the precipice is no substitute for a plan of action. What is the plan and, if these disastrous guidelines come into force on 1 April as intended, who will resign? Will it be the Secretary of State for Justice or the chair of the Sentencing Council?

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

The Sentencing Council is independent of Parliament and government. The council decides on its own priorities and workplan for producing guidelines. The Lord Chancellor was clear about her discontent with the guidance when it was published on 5 March, which was the first time that she and other Ministers had heard about it. It is her view, and mine, that there should not be differential treatment before the law. The Lord Chancellor met with the chair of the Sentencing Council last Thursday and had a constructive discussion. The Lord Chancellor will be setting out her position in writing to the Sentencing Council and it has agreed to reply before 1 April. We will not get ahead of ourselves beyond that.

Strategic Lawsuits Against Public Participation

Lord Keen of Elie Excerpts

Thursday 6th March 2025 Lords Chamber

[Lord Ponsonby of Shulbrede (Lab)]

I absolutely recognise all the points my noble friend made in her question. We do not believe that this issue is slipping down the legislative agenda. We want to see how the 2023 Act will work in practice. That will be happening imminently. The new rules will become active later this spring. The point my noble friend makes about intimidation through this procedure is absolutely right. Women, journalists and women journalists are all victims of this, and it is something we will certainly keep an eagle eye on.

[Lord Keen of Elie (Con)]

My Lords, does the Minister agree that we should not confuse the issues surrounding non-disclosure agreements, which can be pernicious in themselves, with the issue of strategic lawsuits against public participation? Does he also agree that because the public profile of SLAPPs has so increased recently, regulators have taken a far more positive approach to dealing with the matter, as recent evidence from the Solicitors Regulation Authority and the Bar Standards Board illustrates? It might be better to see how the civil rules implement the perception against SLAPPs and allow those regulators to discharge their functions with regard to the legal profession.

[Lord Ponsonby of Shulbrede (Lab)]

I thank the noble and learned Lord for that question, and I agree with the points he made. It is indeed true that non-disclosure agreements can be pernicious in themselves, and they are not to be confused with SLAPPs. The new regulations will come into place imminently, and we should see how they go before considering future legislation.

Prenuptial Agreements

Lord Keen of Elie Excerpts

Thursday 27th February 2025 Lords Chamber

[Lord Keen of Elie (Con)]

My Lords, I thank the noble Baroness, Lady Deech, for securing this debate. I begin with the advantage, shared with the Minister, of never having practised in the area of family law; accordingly, we can both bring a fresh eye to this long-running saga.

I find myself almost entirely in agreement with the observations made by the noble Baroness, Lady Deech, particularly on the need to bring forward suitable statutory provision for prenuptial contracts—and I use that word advisedly. I also agree with the noble Baroness, Lady Shackleton, who followed the noble Baroness, Lady Deech, on her point about the scope of a prenuptial agreement and its inability to forbid or exclude child maintenance.

I entirely agree with the point made by the noble Lord, Lord St John of Bletso, that, clearly, children and their maintenance should not be part of such prenuptial agreements. There should be separate provision for the maintenance of children, when it is required, and that is reflected in, for example, the law of Scotland—which I will come on to address in a different context—where there is express provision for a periodic allowance for children up to a certain age that cannot be excluded by any prenuptial agreement.

The right reverend Prelate the Bishop of Southwell pointed out that of course marriage is not just an economic transaction. But, as the noble Lord, Lord Farmer, made clear, those entering into matrimony need to take responsibility for the financial consequences of marriage. Accordingly, there is no reason why we should not look at the economic aspects of that relationship and the way in which it is going to be addressed.

While supporting prenuptial agreements on a statutory footing, the noble and learned Baroness, Lady Butler-Sloss, expressed the view that there should be some means of addressing changes in circumstances. I cannot find myself in agreement with that. It seems to me that we would be merely exchanging one set of discretions for another—a point the noble Lord, Lord Faulks, touched upon. At present, the court has very wide discretion. I am not sure that replacing that with a narrower discretion is the appropriate way forward.

The noble Lord, Lord Meston, has the advantage on me with regard to his scope of family law. But I cannot find myself agreeing with his inclination towards the status quo. It does seem to me that the time has come for action. Indeed, the time for action has passed. I agree with the noble Baroness, Lady Berridge, on the matter of awareness, but I will not seek to elaborate on the issue of chattels. I leave that to others to consider. I also agree with the noble Baroness, Lady Featherstone, that, if we are to put in place a statutory basis for prenuptial agreements, we need to have certain safeguards.

There is no compelling logic to a person leaving a marriage wealthier than when they entered it. I do not agree with the reference made by the noble Lord, Lord Meston, to some expectation upon divorce. I do not see why that should be taken into account. A prenuptial agreement is neither unique nor, in our present social position, to be regarded as unconscionable. It is an example of what is known to the law as a contract. A contract made between two competent and consenting persons should be enforced in the absence of fraud, coercion or misrepresentation. On the point made by the noble and learned Baroness, Lady Butler-Sloss, if there is material non-disclosure, that should be grounds for voiding any such agreement.

Adults entering a relationship should be free to decide for themselves the consequences and terms on which they may terminate that relationship. The same logic applies here as would apply to other forms of business or professional relationship, albeit acknowledging —as the right reverend Prelate pointed out—that marriage is not just an economic transaction. Parties should be entitled to agree that their existing wealth should never form part of what is termed “matrimonial property”. Parties anticipating their respective contributions to the common wealth during a marriage should be entitled to agree how their matrimonial property should be dealt with in the event of divorce.

At present, the law of England and Wales is a muddle of uncertainty, fed by discretion. Since 2010, we have been told that a prenuptial agreement may be enforced if regarded as fair—but, fair, we are told, at the time it is being implemented: that is, at the time of divorce, taking into account many changes in circumstances. That is part of the problem, because anyone who has entered into a prenuptial agreement, with which they are unhappy many years later, will simply say, “Well, it was fair at the time, but I don’t think it’s fair now”—thus, recourse to the courts, to litigation and to legal costs. That temptation to challenge will always be there and ultimately will only benefit the lawyers.

If I leased a car for five years, I could ask whether at the time of the lease the contract was fair. But to apply that test five years later, when the vehicle has lost its bloom, has become less reliable and is inclined to break down—rather like some marriages—seems inappropriate, in my submission. In the law of Scotland, a prenuptial agreement is treated as what it is: a contract. There is a statutory test of fairness and reasonableness, but it is applied to the contract at the time it was entered into, which is both logical and consistent with legal theory.

Section 16 of the Family Law (Scotland) Act states that the court may set aside or vary such an agreement if it was not fair and reasonable at the time it was entered into. A modest statutory amendment could bring England and Wales into line with the more developed and logical jurisprudence of Scotland. I therefore invite the Minister to indicate whether, and indeed when, the Government will address this issue, which has been outstanding now for more than 14 years.