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.

Prison Maintenance: Insourcing

Lord Keen of Elie Excerpts

Thursday 23rd January 2025 Lords Chamber

[Lord Timpson (Lab)]

I thank the noble Lord for his question. The key is to deliver value for money. If we had intervened in the process, it would have cost more. Ultimately, we are not opposed to considering a public sector option, and we will keep it under review. The question I keep asking myself and officials is whether we are getting value for money, and rehabilitative, safe and decent prisons?

[Lord Keen of Elie (Con)]

My Lords, Rule 31 of the Prison Rules 1999 provided that all convicted prisoners should be required to do useful work for up to 10 hours a day, and indeed it is a disciplinary offence for a prisoner to refuse to work. Yet we are constantly being told of prisoners spending 20 hours a day idle in their cells or cellblocks. Is this a failure of management or a failure of resources? Will the Government undertake to review such initiatives as the New Futures Network, which was established to allow businesses to set up workspaces within prisons?

[Lord Timpson (Lab)]

It is vital that, when people are in prison, they are in purposeful activity and not in their cells, so we are putting a lot of effort into getting more people out of their cells for longer. We have still got an awful lot more to do. We have too many prisons for the workshop and educational spaces that we have. The New Futures Network, with which I have been involved for many years, has been very successful in increasing the amount of people who get jobs on release from prison. Three years ago, 14% of people who left prison had a job after six months, and it is now over 30%.

Asylum Seekers: Legal Aid

Lord Keen of Elie Excerpts

Thursday 23rd January 2025 Lords Chamber

[Lord Ponsonby of Shulbrede (Lab)]

I thank the noble Lord for the question; I certainly agree with the second part of it. Regarding the first part, the answer is very similar to the one I gave to the right reverend Prelate. The Government are funding the Law Society to help build up the base of lawyers and other legal professionals who can provide the advice to which the noble Lord has referred and to get rid of the “advice deserts”. I take his point about people not always giving their advice face to face; nevertheless, there has been a big change in remote advice for people seeking to make applications which we think has been beneficial. Nevertheless, there is the underlying issue of getting more people to work within the sector.

[Lord Keen of Elie (Con)]

My Lords, we know that civil legal aid is now available in very limited circumstances and the disposable income threshold is little more than £3,000, so very few of our fellow citizens could ever qualify. An asylum seeker who has paid thousands of pounds to a people smuggler can reasonably argue upon his arrival at Dover that he has no disposable income and qualifies for legal aid, but the result is that we are now spending tens of millions of pounds on asylum cases from the Legal Aid Fund. Is there not a better and more efficient means of dealing with claims and the advice required by those seeking asylum in this country, including the suggestion of a government-supported and centralised legal representation unit for asylum cases, rather than this dispersed disposal of legal aid into what has been an advisory desert?

[Lord Ponsonby of Shulbrede (Lab)]

I was not aware of the suggestion of a centralised legal aid representation facility. If that is still being actively considered, I will write and confirm that to the noble and learned Lord. Nevertheless, he makes a reasonable point about building up the resources to be able to process these cases effectively, efficiently, fairly and humanely.

One other factor is that Duncan Lewis, the well-renowned law firm, has written that it believes that the new rates, which are very likely to be agreed, will help it to do more work in this area.

Courts: Backlogs

Lord Keen of Elie Excerpts

Wednesday 15th January 2025 Lords Chamber

[Lord Ponsonby of Shulbrede (Lab)]

My Lords, the two factors to which the noble Lord referred are real factors—Covid and the action by barristers. However, there is an underlying problem of increasing cases coming to Crown Court, which overlays the other problems to which the noble Lord referred. The Government have increased the number of allocated sitting days to 108,500, the highest level in almost a decade, and increased the sentencing powers of magistrates’ courts from six months to 12 months. Nevertheless, with those two increases, there needs to be further radical reform to address the problem to which the noble Lord referred.

[Lord Keen of Elie (Con)]

My Lords, as the Minister noted, much of the Crown Court backlog can be traced back to the effects of the Covid epidemic. Indeed, I acknowledge that there has been an increase in the number of sitting days for the Crown Court. However, the Lady Chief Justice has indicated that there are a further 4,500 sitting days available. We are in a situation in which many major Crown Court centres are sitting at only half capacity, with many of the courts simply empty. There are courts and judges available, but I am repeatedly advised that there are not suitable defence counsel available, many having been driven out of criminal practice due to the absence of a sustainable fee income. A recent increase in legal aid fees has been granted to solicitors in criminal practice. Is it not time for this Government to address a similar increase for barristers in criminal practice?

[Lord Ponsonby of Shulbrede (Lab)]

My Lords, the noble and learned Lord is right to draw attention to the 12% increase in fees for criminal aid solicitors. That is a substantial amount of money. The Government are exploring options to incentivise the early resolution of cases, which includes the remuneration of everyone in the criminal justice sector. The Government are informed by the 2021 report of the noble and learned Lord, Lord Bellamy, and considerations are ongoing on this matter.

Drones: High-security Prisons

Lord Keen of Elie Excerpts

Wednesday 15th January 2025 Lords Chamber

[Lord Keen of Elie (Con)]

My Lords, the Chief Inspector of Prisons has just delivered a devastating report on conditions at His Majesty’s Prison Long Lartin and His Majesty’s Prison Manchester. At HMP Manchester, almost 40% of prisoners have failed standard drug tests. The Chief Inspector of Prisons has reported that criminal gangs now, in effect, control the airspace above this high-security prison using drones. A number of years ago, the use of drones was emerging, and they could be controlled by physical defences such as nets and blocked windows. Unfortunately, even these basic defences were neglected at HMP Manchester. However, there have been recent and rapid developments in drone technology. First-person viewing drones, GPS-controlled drones and others are all capable of delivering not only drugs but weapons and even explosives. Will the Minister address not only the existing security failures at HMP Manchester but the possible introduction of electronic countermeasures at high-security prisons such as HMP Manchester?

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

The noble and learned Lord is completely right that drones pose a major and serious threat to all our prisons. I have been visiting Manchester prison for over 20 years, and I went there just before Christmas, in the light of the problems that it has. I saw for myself the issues that staff are dealing with, with 49% of the prisoners arriving in the prison being addicted to drugs. I cannot share the counter-drone tactics as that would play into the hands of sophisticated and serious organised criminals. I can assure the noble and learned Lord that we are currently getting on with a number of fixes, but the biggest fix is ensuring there is no market for drugs and weapons in the first place, and that people in prison are there to get on with their sentence, get educated and do purposeful activity, so that when they are out, they stay out.

Prison Capacity Strategy

Lord Keen of Elie Excerpts

Tuesday 17th December 2024 Lords Chamber

[Lord Keen of Elie (Con)]

My Lords, we are concerned here with the Statement made and also with the Written Statement delivered the day before by the Secretary of State for Justice. Both refer to the 10-year prison capacity strategy; indeed, it is described by the present Government as “their” 10-year prison capacity strategy.

What we have heard and what we have read might be described as good and original. Unfortunately, what is good is not original and what is original is not good. The first apparent innovation that we are referred to is the annual statement on prison capacity. In the Written Statement on 11 December, the Secretary of State for Justice referred to the

“first Annual Statement on prison capacity”,

describing it as fulfilling a “transparency commitment for 2024” and a necessary step in “our plan”.

The Oral Statement given by the Secretary of State’s junior Minister in the Commons repeated news of this innovation: that the Government were to publish an annual statement on prison capacity, which would be a “critical” step. It is all about transparency, clarity and public confidence. But let us wait: 16 October 2023 was before the election. We had a Conservative Government and a Conservative Secretary of State for Justice, the right honourable Alex Chalk. What had he to say in the other place? He said:

“To ensure public confidence, a new annual statement of prison capacity will be laid before both Houses. It will include a clear statement of current prison capacity, future demand, the range of system costs that will be incurred under different scenarios and our forward pipeline of prison build. That will bring greater transparency to the plans and will set out the progress that is being made”.—[Official Report, Commons, 16/10/23; col. 59.]


I do not believe the Minister or his officials will require the column reference as the Statement made by the then Secretary of State for Justice is, in effect, repeated verbatim in this novel and innovative Statement that we have received in the last few days.

There is a difference. The right honourable Alex Chalk referred to a new annual statement “of” prison capacity. The new Government repeatedly refer to a new annual statement “on” prison capacity. Are we to infer that the innovation lies in the change of preposition? I can discern no further distinction between the two. What we are in receipt of is the cut and paste of the Conservative Government’s policy announced more than a year ago.

Then there is a second innovation in this new prisons programme, as reflected in the policy paper. We are told of new prisons in Yorkshire, Leicestershire and Buckinghamshire. The Secretary of State for Justice referred in her Statement on 11 December to “rapid deployment cells”. In the foreword to the prison capacity strategy document itself, the now Secretary of State for Justice tells us that this document is our 10-year prison capacity strategy.

“It sets out how this Government will build the 14,000 prison places … It is a detailed plan setting out where these places will be built … As such, it is a realistic but ambitious plan for prison building—a far sight from the empty rhetoric and disappointing reality of my predecessors’ previous efforts”.


Paragraph 8 of the document, under the heading “New prisons”, says:

“We will deliver … new places through new prisons”.

It explains that these are to include new prisons in Yorkshire, Leicestershire, Buckinghamshire, and Lancashire; and there will be “rapid deployment cells”, which are defined as “modular self-contained units”.

More innovation—but let us wait a moment. The construction of the rapid deployment cells at His Majesty’s Prison Millsike was announced by the then Secretary of State for Justice, the right honourable Alex Chalk, on 12 February 2024. With respect to the new prisons programme, His Majesty’s Prison Five Wells and His Majesty’s Prison Fosse Way opened before the election.

The construction of His Majesty’s Prison Grendon in Buckinghamshire was approved by the Conservative Government before the election. The plan for a third prison in Buckinghamshire was approved in January 2024. Construction of the new prison next to His Majesty’s Prison Gartree in Leicestershire was approved at about the same time.

The so-called “innovation” of the new prison programme is yet another case of cut and paste. There is reference to “empty rhetoric”, but whose? If the Minister were to submit this paper to his tutor, it would be marked in bold red, “Wretched plagiarism”, and down-marked again for failure to acknowledge his sources. It is a third-class effort.

There is one example of innovation by the present Secretary of State for Justice and her department. We know that something like 73,000 cases are pending in the Crown Courts. We know that, on any day, 10% to 30% of Crown Courts are shut. The number of prisoners on remand is still set to increase. Only recently, the Lady Chief Justice called for an additional 6,500 judicial sitting days in order that, in the face of such increase, the Crown Court could operate at maximum capacity.

What innovation did this Government bring to bear? They agreed not to 6,500 additional sitting days but to 500. Then, I believe today, there has been a suggestion that a further 2,000 sitting days will be found. Whether they are freed up in light of the move for an increase in magistrates’ sentencing powers from six months to 12 months or otherwise is not clear. But that still leaves a further 4,000 judicial sitting dates which are not going to be utilised in the face of this backlog.

Yet, at the same time, there seems to be consideration of such innovations as judges sitting with magistrates and not with juries. Will the noble Lord please enlighten us as to why the Chief Justice’s suggestion, nay request, for 6,500 additional sitting days that are available has not been met.

I have the highest regard for the Minister and his commitment to prison and sentencing reform, but over a long and successful business career he will have been face to face with a lot of cobblers. This 10-year strategy is simply a cut and paste of existing policy projects, and we need more from this Government than empty rhetoric.

[Lord Beith (LD)]

My Lords, I agree with the noble and learned Lord about the need to address the remand prisoner situation with more sitting days, but on other parts of what he said, I hope he is wrong. If there is that much continuity between the policies of the previous Government and this Government, we are not going to get out of the difficulties that we face.

There is no doubt about the appalling state of our prison system which the Government have inherited. They took over a system which was supposed to provide 20,000 extra prison places while coping with massive overcrowding, a shortage of experienced staff and a penal philosophy which called for even longer sentences. There is a desperate shortage of the resources needed to reduce reoffending, either by programmes during custody or by supporting ex-prisoners on the difficult route to leading a better life and keeping the law.

We do not want to see this Government repeat the failures of their predecessor. Given his practical and personal experience in resettling and employing ex-offenders, we believe that the Prisons Minister understands the problems and is personally committed to changing the way we address them. But the Statement does not really inspire confidence and nor does the strategy. It rests on two assumptions, the first of which is that the increase in prison places will be achieved. I have to say that I am doubtful about that on the basis of experience, and even if achieved, it is recognised that it is not enough. That will not solve the problem. We cannot build our way out of this situation.

The other key assumption is that the sentencing review—which we welcome—will reduce the pressure for yet more places to be provided, even on the numbers the Government have given. That depends on whether there is political leadership to implement the radical ideas the commission will have to come up with if it is going to change the situation. We want to know whether that leadership is there. The public and media debate has to be taken forward. Tough talk leads to bad decisions. Excessive use of custody, which is hugely expensive, ensures that neither the prisons nor the probation system can devote the effort to the rehabilitation needed to cut crime.

It is time to be straight with the public. It is time to tell them that the Government are spending their taxes on a system which we know leads to prisoners reoffending. We know it leads to more prisoners and less rehabilitation, as well as to more reoffending, and it has got to change. When a crime is committed, victims and the public want the offender to be caught, tried, made to face the consequences of the hurt and damage they have caused and set up to lead a better life in the hope that they will not repeat their offences either towards the victims or towards anybody else.

In some cases, prison is essential for public protection; in others, there are more effective community sentences which, for many offenders, are more challenging than a spell in jail. It is not sensible to use the length of a custodial sentence, as we do these days, as the index of how seriously we take a crime. That way lies wasted money and more reoffending on release. Is the political leadership prepared to say that kind of thing? With a former DPP as the Prime Minister, it ought to be possible.

I put to the Minister a simple question: why does this country lock up more criminals for longer than most other west European countries?

Sentencing Review and Prison Capacity

Lord Keen of Elie Excerpts

Wednesday 23rd October 2024 Lords Chamber

[Lord Keen of Elie (Con)]

I thank the Minister for repeating the Statement of the Justice Secretary. It is comforting to note that the Whitehall tradition of dusting down old policies for new Ministers is still with us. Of course, there are many matters addressed in the Statement with which I entirely agree. The proposal for a review is certainly to be welcomed, and there are many policy initiatives touched upon that deserve further consideration and ultimately, I hope, some form of introduction, but does the Minister agree with me that one major issue to be addressed at the outset is the practicality and cost of the measures being proposed?

Take a simple example: extending home detention and the use of tagging. The Minister mentioned tags and sensors, but that is a tiny part of that overall programme. When we have, let us say, thousands of offenders tagged, we require more than just the tag and sensor, however sophisticated it may be. Does the Minister agree with me that, for the programme to work, we require real-time monitoring, real-time reporting 24 hours a day and a real-time response—again, 24 hours a day? There is no point in noticing that someone has left home under curfew if we do not check on them for another week. That makes considerable demands on police resources, for example. What will be done to address that issue in the context of these reforms?

If, however, we are going to use some other service, such as the Probation Service, does the Minister anticipate a significant and, indeed, material increase in the provision of that service? I also ask him: is it proposed to use home detention and tagging as a potential alternative to remand, since it is at the end of remand that we find the greatest pressure upon the current prison system? Furthermore, if we are to have a much-extended home detention system, what steps will be taken to monitor and deal with the impact on families of having an offender in their midst for up to 16 hours a day? We know from the experience of the pandemic lockdown of the stress and mental difficulty that can be caused by that sort of situation. We will need more than just experts in the criminal justice system to address that sort of proposal, so I hope that the appointment of the review panel will go further than indicated in the Justice Secretary’s Statement.

We should also consider the victims of crime and the public perception of crime and punishment. If your home has been burgled half a dozen times in the previous year by the same individual, it is somewhat galling to see him walking down the street in front of your house wearing a tag. We have to be able to inform the public as to the effectiveness of the proposals that are being made. We are going to have to educate the public with regard to their effectiveness. There is the further issue of public confidence in the penal system. At present, it is conceivable that a person given a three-year sentence can be released on licence after three months. How does the Minister consider that the public perceive that when it occurs? A further area of education may be required, if I might be permitted to mention it: the education of the magistrates and judges to persuade them that community sentences can have a much more major part to play in our sentencing policy. Will that too be addressed in the context of the present review?

Then there is a question of how the Government will deal with the opposition. I am referring not to His Majesty’s loyal Opposition but to the Treasury—the place where all penal reform proposals go to die. Before we start out on this ambitious project, will the Minister be able to assure us that he has, in principle, the support of the Treasury for the considerable sums that will be required to implement these policy proposals?

There is an acknowledgement in the Statement that we need more prisons. Will the Minister disclose to us the programme for those new prisons? Will he also address the difficult issue of planning, where proposals for prisons seem to be notoriously subject to blocking and delay? Are there steps that the Minister will be able to advise us of to try to circumvent that problem?

We then come to the matter of foreign nationals, who make up about 12% of the present prison population. The Justice Secretary said in the Statement that it was

“my personal view that deportation is as good a punishment as imprisonment, if not better ”.—[Official Report, Commons, 22/10/24; col. 200.]

Does the Minister agree with me that this is a completely mad proposition? Foreign criminals, gangsters and drug dealers from safe countries—remember that we can deport foreign nationals only to safe countries—will come here to rob, burgle and create mayhem. Then when caught, according to the Justice Secretary’s policy, they will simply be sent home again, no doubt at our expense. We will become a magnet for foreign criminals. Why would you not come here if that was the policy being implemented? Get caught and go home but get a free ticket to go home—wonderful. Can the Minister advise me who dreamed up this particular policy and how they intend to implement it?

It is clear that penal reform has been overdue in this country for many years. I welcome the idea of the review and the appointment of the former Conservative Justice Secretary to head that review. I hope we can see such a review being carried forward in the very near future. I thank the Minister again for repeating the Statement.

[Lord Dholakia (LD)]

My Lords, I thank the Minister for repeating the Statement in your Lordships’ House. Overcrowding in our prisons has been in the headlines for as long as I can remember. Different Ministers have offered various solutions to this problem. No one seems to have looked at overall solutions that could resolve the problem. We are now offered a review by a former Minister and a prison capacity package to solve the present crisis.

We have long called for a review of criminal sentencing. We have asked for reoffending to be cut by taking a holistic approach to rehabilitation and community supervision, including a full range of rehabilitative services. We also believe in implementing a presumption against short sentences of 12 months or fewer to facilitate rehabilitation in the community.

The present proposals offer short-term solutions but do not alleviate the problems or provide the long-term solutions we badly need. The previous Administration had a golden opportunity to set up a royal commission on the criminal justice system, but this was kicked into the long grass. Instead, we have a piecemeal approach to legislation in this field. We need to look at the overuse of imprisonment. This has put us on top in Europe as the worst country in the way we sentence offenders. It is astonishing that we imprison nearly twice as many people as Germany.

There are a number of questions for the Minister. I welcome the proposals to reduce the prison population. We should seriously examine the work of the Sentencing Council. Surely a Minister should put a legislative obligation to take note of the prison population before a sentence is passed. How will the review plan to address concerns about disproportionate sentencing of minority groups and marginalised communities? Would the Minister agree that ploughing more resources into expanding the prison system to hold an ever-growing number of prisoners is far from the most sensible way to tackle crime?