Rule of Law

Lord Keen of Elie Excerpts

Tuesday 26th November 2024 Lords Chamber

[Lord Keen of Elie (Con)]

My Lords, first, I extend my welcome to the noble and learned Baroness, Lady Smith of Cluny, both to her place in this House and to the office of Advocate-General. I thank her for a thoughtful maiden speech. I also extend my welcome to my noble friend Lady Laing of Elderslie, who also made a very gentle and compelling maiden speech to this House.

As the noble and learned Baroness, Lady Smith, and I both began our careers at the Bar of Scotland, some anecdote might be appropriate, but that presents something of a generational challenge. However, I can notice this. I first encountered her when she was in about primary 4. This came about in 1984, when I was instructed to appear in the Court of Session to challenge the relevancy of a series of personal injury actions brought on behalf of a firm called Thompsons. I appeared in court, as a rather callow junior, to find that Thompsons had instructed, on the other part of the case, one John Smith MP. And so, we went to debate for a full day. As noble Lords might expect, he proved to be not only a formidable opponent but a most charming colleague. At the end of the day, he invited me to Cluny the following evening for drinks. I arrived there at about 7 pm to find a young lady handing out canapés and a number of formidable political and legal luminaries in the room, including the late Lord Stott, who was a neighbour and who had been Lord Advocate in Harold Wilson’s first Government.

After about half an hour, John’s wife came into the room and announced that Tam Dalyell MP was on the telephone. He was in a public telephone box in Yorkshire and required immediate advice on the law of secondary picketing. More observant Members of your Lordships’ House will recall that this was in the midst of the miners’ strike. John went to the telephone and returned rather quickly, at which point Lord Stott observed that his advice on the law of secondary picketing must have been rather concise, to which John answered, “My advice would have been longer, but Tam ran out of change”. Thus was our first meeting, although I will forgive the noble and learned Baroness if she does not recollect it in detail.

This debate has been rather like one of the opening rounds of the FA Cup; it seems to be 20-0. None of your Lordships came out in favour of tyranny or despotism. I will not say I am surprised by that, but of course there was a fundamental difference of view about what the rule of law actually is. Generally speaking, it fell between two areas—the thin approach to the rule of law, which embraces fundamental rights, and what was termed the thick approach to the rule of law, which is intended to embrace the wide spectrum of human rights, which are flexible, elastic, and sometimes politicised, as well as being in constant development. I come down on the side of the thin approach to the definition and understanding of human rights.

The rule of law is not a rule, and it is not a law. The rule of law is not the rule of a tolerant society as contrasted with the rule of an intolerant society. The rule of law is not the rule of democratic institutions as contrasted with the rule of undemocratic institutions—albeit that experience and history tell us that the rule of law is far more likely to be adhered to when we have democratic rather than undemocratic institutions of government.

The rule of law is a conceptual framework—some might say a principle—within which we can decide what kind of society we want to live in and what laws we wish to be subject to. The rule of law does not define that society and it does not determine those laws. What it tells us is that our society should be governed by law, and not by despotic whim; that such law should be certain and accessible; and that law should be applied equally and without favour to all persons and institutions within our society. For example, a society that determines by law that only persons over the age of 40 may vote in any election may adhere just as closely to the rule of law as a society that determines that anyone over the age of 16 will vote. A society that determines by law that a person may be subject to physical punishment may adhere just as closely to the rule of law as a society that absolutely rejects any such form of punishment. A breach of the laws made by society is not per se a breach of the rule of law. However, the rule of law requires that those who breach the law should be able to determine the existence of such law and be treated equally.

This is where I agree with the observations made by the noble Lords, Lord Sikka, Lord Bach, Lord Bellingham and Lord Hodgson, and the noble and learned Lord, Lord Etherton, that without access to justice there cannot be equality before the law.

In his work on the rule of law that has been referred to on a number of occasions, Lord Bingham described it as follows:

“The core of the existing principle is … that all persons and authorities within the state, whether public or private, should be bound by and entitled to the benefit of laws publicly and prospectively promulgated and publicly administered in the courts”.


To that extent, Lord Bingham’s definition of the rule of law is consistent with that of Dicey and Joseph Raz, but Lord Bingham went on to specify eight subcategories to his definition. This is where he appears to depart from both Dicey and Raz. For example, his subcategory 4 states:

“The law must afford adequate protection of … human rights”.


This is where we part between the thin approach to what is properly the rule of law and fundamental rights and the thicker approach which seeks to embrace the rather more flexible concept of human rights.

Of course, the law of any civilised society should afford protection to what are identified as human rights, but is that what we define as the rule of law? The law might expressly place limits on freedom of movement or freedom of expression, both of which may be regarded as human rights. Such a law, publicly and prospectively promulgated, is not per se a departure from the rule of law. If we attempt to merge a society’s present perception of human rights with the principle of the rule of law, then we are liable to create confusion rather than certainty. There, I agree with the noble Lord, Lord Verdirame, that while there is room for fundamental rights at the core of the rule of law, such as equality before the law, it cannot be expanded into the more politicised area—and always developing area—of what are termed human rights.

The Roman republic developed a sophisticated legal system and courts which made citizens of Rome subject to the law and not the rule of tyrants. At the same time, it embraced slavery and had a well-developed jurisprudence dealing with all aspects of slavery. Slavery was subject to the rule of law in the Roman republic and not the whim of individuals. Both master and slave were the subject of law. I give that example in order to emphasise that while the rule of law as properly understood and expressed by Aristotle is clear, it is not to be confused with our perception of or belief in human rights. We consider the concept of slavery to be abhorrent. It does not follow that a society which embraced slavery had abandoned the rule of law. The same essential principles apply at the level of international law between states. The relationship between states is generally governed by customary law, conventions and treaties consented to by the states. Such law should be certain and accessible. Such law should be applied equally between states.

Nation states adhere to their treaty obligations as a matter of principle and indeed political expediency. Nation states adhere to their obligations under international conventions on the understanding that, if they do not do so, they may be subject to sanction. However, a breach of a treaty or convention is not to be regarded simply as a departure from the rule of law.

I suggest that it is critical that we begin and end with a correct and certain understanding of what the rule of law is. When you seek to incorporate all aspects of human rights, as interpreted from time to time by courts and international tribunals, you are going to lose the certainty that is required in such an important definition. Indeed, such a step will, as the noble Lord, Lord Lilley, observed, lead eventually not to the to the rule of law but to the rule of lawyers.

So I have to take issue with the noble and learned Baroness, Lady Smith, on the suggestion that all human rights, the Human Rights Act and all human rights embraced by the Council of Europe are fundamental parts of the rule of law. That, I suggest, is to diminish them and confuse what the rule of law actually represents. Of course, human rights have an important place in our society and law, but they stand on their own feet and are not to be confused with the rule of law as such. I thank your Lordships for your attention.

Rule of Law: Law Officers

Lord Keen of Elie Excerpts

Tuesday 15th September 2020 Lords Chamber

[Lord Lexden]

To ask Her Majesty’s Government what role the Law Officers have in ensuring that the rule of law is maintained in (1) the development of domestic legislation and (2) their policies relating to the United Kingdom’s withdrawal from and future relationship with the European Union.

[The Advocate-General for Scotland (Lord Keen of Elie) (Con)]

My Lords, the duty of the law officers is to give the Government full and frank legal advice, to advise and to stipulate adherence to the rule of law. Our advice is confidential, and it is fundamentally important that it remains so. As I have said previously, the freedoms and protections that we all enjoy rely on the rule of law. It is an important constitutional principle and, as a responsible Government, we remain committed to it.

[Lord Lexden (Con)]

My Lords, is it not difficult to retain confidence in the Lord Chancellor and the law officers of the Crown when they acquiesce in the Government’s declaration of willingness to break international law? Are these officers of the Crown not charged with responsibility for ensuring that Ministers respect the rule of law, national and international, in all circumstances—a duty with which permitting threats to break it is hardly compatible.

[Lord Keen of Elie (Con)]

My Lords, I would find it difficult to disagree with any of the observations made by my noble friend. Of course, we must advise Government—as we would advise others—to temper the rule of law at the level of both domestic and international law. I have to say to this House that, in my opinion, the present Bill does not of itself constitute a breach of international law or of the rule of law.

[Lord Falconer of Thoroton (Lab)]

The key characteristic for law officers is not brains—they can get all the advice they want from the English Bar or the lawyers—but backbone. The Secretary of State for Northern Ireland confirmed that a breach of international law would be caused by the passage of the United Kingdom Internal Market Act under Article 4 of the withdrawal agreement.

The Advocate-General produced a load of rubbish to the EU withdrawal committee this morning when he said that Article 16 justified saying that it was not a breach. The party that changes its story on the law—as this Government do—shows it lacks backbone. How does the Advocate-General feel able, consistent with personal honour and professional duty, to remain as Advocate-General?

[Lord Keen of Elie (Con)]

My Lords, let us be clear that I have satisfied myself as to the correct legal position in this context. As I indicated to the EU Justice Sub-Committee this morning, it is my view that the Secretary of State for Northern Ireland essentially answered the wrong question.

[Lord Falconer of Thoroton (Lab)]

For goodness’ sake. He is a Cabinet Minister.

[Lord Keen of Elie (Con)]

I hope that the noble and learned Lord has not become unwell in view of the noises emanating from him—but, if he has, I wish him well for the future.

Let us be clear that we are in a situation where we have rights under an international treaty. Those rights include our response to any breach of obligations by the counterparty, be that a lack of good faith or such action as would fundamentally alter the obligations under the treaty, giving rise to a position—under Article 62 of the Vienna Convention—where we could withhold our operation of the treaty.

It has been suggested to me by no less a legal authority than the noble and learned Lord, Lord Falconer of Thoroton, that we can simply rely on Article 16. This has immense novelty value. The idea the Executive can enter into a treaty at the level of international law and then rely on that to displace primary legislation passed by the domestic Parliament is, I respectfully suggest, extraordinary. That requires these mechanisms in the UKIM Bill to address the contingency of a material breach that we need to address.

[Lord Thomas of Gresford (LD) [V]]

My Lords, the noble and learned Lord told the Scottish Public Law Group in Edinburgh in June 2018:

“If the rule of law is disrespected, and falls into disrepute, elected governments will not be able to govern effectively—any government is simply shooting itself in the foot if it undermines the rule of law.”


The contingent powers in this Bill to change the Northern Ireland protocol unilaterally trash the dispute resolution provisions in the treaty that Boris Johnson signed, and on any sensible reading undermine the rule of law, as Brandon Lewis candidly acknowledged. Will the Minister acknowledge that for him to promote their use by introducing a statutory instrument under these provisions in this House would violate his overarching duty under the Ministerial Code to comply with the law, including international law and treaty obligations, as the Court of Appeal found and as the noble and learned Lord is reported by the Guardian correctly to have advised the Prime Minister? Does he acknowledge that it would also violate the law officer’s oath that he took as Advocate-General of Scotland, and would be a gross dereliction of his duty?

--- Later in debate ---

[Lord Keen of Elie (Con)]

My Lords, with great respect, I adhere completely to my previous observations about the importance of the rule of law, and I have no difficulty with those statements. What is contemplated is a contingent situation, one in which we find that the EU has materially breached its treaty obligations and in which we find that it may have acted in such a way as to fundamentally alter our obligations under the treaties. In those circumstances, we have Article 16 of the Northern Ireland protocol. We also have Article 62 of the Vienna convention with regard to withholding our operations. However, we have to look at our dualist system: not only do we have obligations at the level of international law, pursuant to Article 4 of the withdrawal agreement, but we have drawn them down into domestic law by virtue of Section 7A of the withdrawal agreement Act. Article 16 of the international treaty does not confer upon the Executive the power or right to ignore that primary legislation. That is why an instrument and means of dealing with this matter rapidly and effectively needs to be in place lest there should be such a material breach.

[Lord Lilley (Con) [V]]

Can my noble and learned friend confirm that, if the Government invoke Article 16 to tackle the problems that they foresee, they would still need legislation like the Internal Market Bill to implement it? Do not we need that legislation on the statute book before the end of the transition period to reassure businesses that they will not have to either submit export declarations or pay tariffs on all goods between Great Britain and Northern Ireland?

[Lord Keen of Elie (Con)]

My Lords, I entirely concur with the observations of my noble friend. As I indicated before, it is one thing for the Executive to determine an issue at the level of international law in terms of a treaty, but they cannot utilise that in order to ignore primary legislation of our domestic Parliament. Therefore, a means has to be in place to address the effect of that domestic legislation, and that is the purpose of Part 5 of the UKIM Bill. It will enable us to bring forward regulations that will do that—and, indeed, regulations that will require explanation and the affirmative approval of this House.

[Lord Woolf (CB) [V]]

In view of the fact that the Minister accepts an obligation on the Attorney-General to protect and safeguard the rule of law, in regard to this matter where there are different views, what action is the Attorney-General taking, along with the other law officers, to show the importance of upholding the rule of law?

[Lord Keen of Elie (Con)]

My Lords, I sought to explain this morning to the Security and Justice Sub-Committee the position that I adopt with respect to this matter, and why I consider that the provisions of the Bill are entirely limited in their intent and effect and fall within the rule of law and the requirements of international law. I certainly do not anticipate that those provisions would be abused. Indeed, if they were, I cannot foresee that either House would contemplate passing the relevant regulations. If they did, I would certainly have to consider my position as a law officer, because I owe my obligations to Parliament as well as to the Government.

[The Lord Bishop of Carlisle]

My Lords, can the Minister confirm that the Government recognise that any attempt unilaterally to modify the terms of the withdrawal agreement would adversely affect not only future trade partners but also the confidence that EU citizens resident in this country will place in the commitments that the United Kingdom has made under the agreement? The confidence of British citizens resident in EU countries would also be damaged if they saw that treaty commitments could simply be set aside. Can he offer any reassurance in either regard?

[Lord Keen of Elie (Con)]

My Lords, I would offer absolute reassurance with respect to the points that have been raised. First, there seems to be a common misconception that somehow we could unilaterally alter the treaty provisions. That is simply not possible and is not being attempted. What we are addressing are circumstances in which, in the face of a material breach or fundamental changes in our obligations due to the conduct of the other party, we need to take preventive measures to maintain the paramount intent of the Northern Ireland protocol, which is the integrity of the Belfast agreement.

[Lord Foulkes of Cumnock (Lab Co-op)]

My Lords, the Minister has a very distinguished record in the Scots and English Bar. Does he not find it demeaning to stand up and give this lame political justification for what distinguished lawyers outside Parliament consider to be a breach of the law? How can he justify continuing as a law officer, given that situation?

[Lord Keen of Elie (Con)]

My Lords, I am not seeking to give a political justification for anything; I am providing a legal justification for saying that the UKIM Bill falls within the boundaries of international law, within the boundaries of our treaty obligations and within the boundaries of the rule of law.

[Lord Campbell of Pittenweem (LD)]

My Lords, when the Advocate-General supported the withdrawal agreement in this House, did he find it as ambiguous and problematical as the Prime Minister now claims? If so, why did he vote for it?

[Lord Keen of Elie (Con)]

My Lords, I was not concerned with either ambiguity or problems within the withdrawal agreement Bill; others may have taken a different view.

[Lord Garnier (Con)]

My Lords, may I take it from his earlier answers this afternoon that my noble and learned friend agrees that the law officers’ first duty is to the rule of law, their second is to Parliament and their third—and very much their third—is to the Government, and that respect for the rule of law encompasses ministerial obligations under both domestic and international law? The Bill that we are considering disapplies sections of a treaty that we have freely entered into. How does that fit with the rubric that I have just read out?

[Lord Keen of Elie (Con)]

On the first point, I entirely agree that the role of the law officers requires them to address the rule of law, Parliament and government, and in that order, without any difficulty. As regards the present Bill, it is designed to provide for a contingency, which will operate only in the event of us having to respond to a material breach or fundamental change in obligations, and then only by bringing forward regulations that will require the approval of this House. Unless and until that occurs, there is no breach of the treaty; there is simply a means by which the treaty obligations can be addressed in the event of a breach.

[Lord Singh of Wimbledon (CB) [V]]

Will the Minister agree that, while the Internal Market Bill is clearly intended as a negotiating tool, it can easily have the opposite effect and lead to a further hardening of attitudes? “I’m not going to play with you” is bad enough in a school playground; in international negotiations, it can lead to a dangerous ripple effect, undermining national and international treaties.

[Lord Keen of Elie (Con)]

My Lords, the extent to which these provisions might be used in the context of negotiation is for others to determine. What I will say is that I have to accept the factual matrix as set out by those who represent the Government in these negotiations. Where it is suggested that, for example, the United Kingdom would not be listed as a third party country for the purposes of animal and food products, with the result that it would be unlawful to move such food products from the mainland to Northern Ireland, and that is justified on the grounds that they do not know what our standards are when they are their standards, we then have to contemplate that the outcome of these negotiations may not only be adverse to everyone’s interests but, ultimately, amount a breach of obligations that we have to maintain under the terms of the Northern Ireland protocol.

[The Lord Speaker (Lord Fowler)]

My Lords, the time allowed for this Private Notice Question has elapsed, and I apologise to those Members who were not reached. That brings the Question to an end.

Rape: Prosecutions and Convictions

Lord Keen of Elie Excerpts

Monday 14th September 2020 Lords Chamber

[Baroness Gale]

To ask Her Majesty’s Government what steps they intend to take to increase the number of prosecutions and convictions in rape cases.

[The Advocate-General for Scotland (Lord Keen of Elie) (Con) [V]]

My Lords, there is ongoing work to improve the handling of these sensitive cases and to narrow the disparity between offences reported and cases going to court. In July, the CPS published its rape strategy—the first of its kind for any department. There is also an ongoing cross-government review of the criminal justice response to rape, and this is examining evidence across the system about the causes of the falls in outcomes for rape and identifying solutions to reverse the trend.

[Baroness Gale (Lab) [V]]

I thank the Minister for his reply but, according to police records, there were 55,130 cases of rape but only 2,102 prosecutions and 1,439 convictions in England and Wales, until March this year. With the prosecution and conviction rates at an all-time low, can the Minister say how on earth this happened? Swift action is needed, so how long will it take to improve these figures? What measures will he take to ensure that confidence can be restored for those who seek justice?

--- Later in debate ---

[Lord Keen of Elie (Con) [V]]

My Lords, we are conscious of the disparity between the number of reported cases of rape and completed prosecutions. As the noble Baroness observed, the number of completed prosecutions in the year to 2020 was 2,102. However, there are signs of improvement, slight though they may be at this stage. While the number of referrals to the CPS dropped between 2018-19 and 2019-20, the number of persons charged consequent upon those referrals has increased. We are taking steps to ensure that such improvements are maintained.

[Baroness Jones of Moulsecoomb (GP) [V]]

My Lords, it is quite obvious to those who have been watching this situation that both the CPS and the police drastically need some training and education. The obvious people to go to are charitable organisations that work with women and girls who have been raped. Can the noble and learned Lord tell me whether the review will encompass those organisations and when it will report?

[Lord Keen of Elie (Con) [V]]

My Lords, it is of course important to see proper co-ordination between the police and the CPS to address these issues. The CPS is planning to consult on rape legal guidance, and the Joint National Disclosure Improvement Plan represents both the CPS and the police. In addition, we now have a joint inspection going on between the CPS and police inspectorates, which we hope will report in the autumn, in response to issues about rape and serious sexual offences.

[Baroness Greengross (CB)]

What steps will the Government take to ensure that the long-standing principle in British justice of innocent until proven guilty for those accused of rape and sexual assault is always upheld? Given the recent examples where those falsely accused of such crimes had their reputations destroyed through speculation in the media and social media, how will the Government ensure that those defending such charges still have the right to an absolutely fair trial?

[Lord Keen of Elie (Con) [V]]

My Lords, wrongly and deliberately accusing someone of a sexual offence is a very serious matter and should be treated as such by criminal law. Clearly, the impact on those falsely accused and their families can be devastating. Fortunately, these cases are extremely rare and should not distract us from the need to support genuine victims of such crimes to come forward and feel confident that they will be listened to.

[Lord Falconer of Thoroton (Lab)]

Something is going wrong here. As my noble friend Lady Gale said, in 2019-20 there were 55,000 rapes recorded by the police, with just 2,102 prosecutions and 1,439 convictions; yet three years earlier, there were 44,000 recorded rapes with 5,000 prosecutions and nearly 3,000 convictions. The dramatic drop in prosecutions and convictions is put down by Sarah Crew, the most senior police officer for rape in England and Wales, to the Crown Prosecution Service increasing the standard before it will prosecute. This has led also to the police submitting fewer cases to the CPS, because they know it will not prosecute. What changes to the approach on rape prosecutions did the CPS adopt between 2016-17 and 2019-20, and has its approach now changed again?

[Lord Keen of Elie (Con) [V]]

My Lords, there has been no material change to the CPS’s approach. The evidential stage of the code test remains as it was, despite some suggestions to the contrary. Indeed, the most recent inspectorate report, in 2019, observed that the code test was being applied correctly in 98% of cases. But I acknowledge that we face challenges in this area, and we are seeking to address them, as I say, by way of a joint inspectorate examination of the issue and a cross-government review of how we can improve matters.

[Lord Thomas of Gresford (LD) [V]]

First, the need for corroboration in rape cases was abolished; secondly, sentences were increased to a five-year minimum guideline; and then inquiries into the complainant’s character were forbidden. Then the defendant was barred from cross-examining in person, and video links kept the complainant out of the witness box. Recently, there was an exhortation that complainants are, prima facie, to be believed. Despite all this, conviction rates have fallen. Does the Minister agree that further reform should be evidence-based? Will the Ministry of Justice permit academics to look exceptionally into the way that real-life juries have reached their verdicts, whether guilty or not guilty, in a limited number of rape cases?

[Lord Keen of Elie (Con) [V]]

My Lords, the issue of engaging with juries about how they arrived at their verdicts is complex and difficult. To set a precedent there would be a material step. However, we recognise that it is necessary to address some of the ingrained misconceptions that still exist and persist around reporting these offences. We hope that, by doing that, we will improve outcomes overall.

[The Senior Deputy Speaker (Lord McFall of Alcluith)]

I call the noble Lord, Lord Judd. Lord Judd? I suggest we go on to the noble Baroness, Lady Cox, and then come back, if there is time.

[Baroness Cox (CB) [V]]

My Lords, is the Minister aware that I have had the painful privilege of becoming friends with young women who suffered such atrocities, including Caitlin Spencer, a pseudonym, whose story is published in the must-read book, Please, Let Me Go? She describes how, from the age of 14, she was groomed, raped, sexually exploited and trafficked around the country by gangs of men. She still sees her abusers driving their taxis with impunity, and many other victims still see perpetrators living freely and intimidating them. What more will the Government do to bring these perpetrators to justice?

[Lord Keen of Elie (Con) [V]]

My Lords, these are tragic cases. They are particularly difficult to investigate when they are historic. However, we remain determined to pursue all offenders, no matter how historic the offences are.

[Lord Morris of Aberavon (Lab) [V]]

My Lords, a previous Attorney-General asked for my views, as a criminal practitioner, on the failure to get convictions. Can I persuade the law officer’s department that there should be a special trigger mechanism for particular action whenever digital evidence might be an issue? Since consent seems to be the problem, will he also persuade the Attorney-General to instruct the CPS to publish details of how many cases of rape consent is raised in and how many convictions there are in consent cases?

[Lord Keen of Elie (Con) [V]]

My Lords, I am not certain that such data is available, but I will make inquiries to see whether it is or whether it can be collected, in a reasonable fashion. I will advise the noble and learned Lord upon the outcome of that inquiry.

[The Senior Deputy Speaker (Lord McFall of Alcluith)]

My Lords, the time allowed for this Question has elapsed.

Rule of Law

Lord Keen of Elie Excerpts

Thursday 10th September 2020 Lords Chamber

[Lord Falconer of Thoroton]

To ask Her Majesty’s Government, further to the remarks made by the Secretary of State for Northern Ireland on 8 September confirming that certain provisions of the United Kingdom Internal Market Bill relating to the Northern Ireland Protocol would “break international law” (HC Deb, col 509), whether they are committed to the rule of law.

[The Advocate-General for Scotland (Lord Keen of Elie) (Con) [V]]

My Lords, the Government have not proposed any breach of UK law. On occasions, tensions can arise between our domestic obligations and our international commitments and we will always seek to resolve these, as we have in the past. The freedoms and protections that we all enjoy rely on the rule of law; it is an important constitutional principle and, as a responsible Government, we remain committed to it.

[Lord Falconer of Thoroton (Lab)]

I am grateful to the noble and learned Lord, the Advocate-General, for that Answer. Brandon Lewis’s acceptance that this Government are deliberately breaking international law will be thrown in the UK’s face for years. Expect dictators to justify murderous breaches of international law by relying on the Lewis mantra: “specific and limited”.

Demanding compliance with anti-Covid measures, yesterday the Prime Minister said:

“We expect everybody … to obey the law.”—[Official Report, Commons, 9/9/20; col. 608.]


The Home Secretary condemned Extinction Rebellion for law-breaking. The rule of law is not pick and mix, with acceptable laws chosen by the Home Secretary or an adviser in No. 10. This stinking hypocrisy chokes our country’s reputation and destroys our Government’s ability to lead at home and make agreements abroad.

In June 2018, the noble and learned Minister, a law officer, whom I am surprised to see in his place, lectured on the importance of law, describing the law officers as

“champions of the … law within government”,

and said that their

“duty … is to ensure that the Government acts lawfully at all times”.

Jonathan Jones agreed and left. Law officers and the Lord Chancellor must stand by their self-proclaimed duty or leave. Otherwise, they will be dismissed as long on self-importance and short on the backbone that their great offices require.

I have two questions. First, how is the admitted breach of international law consistent with the UK’s commitment to the rule of law? Secondly, on what basis does he, as a law officer, remain part of the Government?

--- Later in debate ---

[Lord Keen of Elie (Con) [V]]

My Lords, I think the noble and learned Lord broke up slightly when he was asking his second question, but I certainly understood the drift of his remarks.

[Lord Falconer of Thoroton (Lab)]

Secondly, on what basis does he, as a law officer, remain part of the Government?

[Lord Keen of Elie (Con) [V]]

I thank the noble and learned Lord.

My Lords, from time to time, as I indicated, tensions occur between our domestic legal obligations and our position with regard to international law. Indeed, in 1998, the then Labour Government passed the Human Rights Act, including Section 19 that required statements of compatibility to be made when Ministers introduced legislation. Interestingly enough, Section 19(1)(b) had an alternative statement, which required the Minister to say that

“he is unable to make a statement of compatibility”

with our international obligation but that

“the government nevertheless wishes the House to proceed with the Bill.”

In 2002, the Labour Government introduced the Communications Bill with just such a certificate, because it was perceived that Clause 309 of that Bill could be considered to violate our international obligations under Article 10 of the convention. From time to time, we face these tensions.

Here, there is a very real tension between the direct effect of EU law pursuant to Article 4 and what would occur if we had no agreement at the end of the transition period and there was no determination by the Joint Committee as to the way forward under the Northern Ireland protocol. That is because there are other provisions apart from Article 4. There is Article 4 of the protocol itself, which determines that Northern Ireland is part of the UK’s customs area. There is Article 16 that deals with societal and economic pressures that could lead to us being in breach of the Belfast agreement. All these have to be considered.

Against that contingency, Ministers considered it appropriate to provide, or ask Parliament to provide, a means of addressing these issues. At the end of the day, it will be for the sovereign Parliament to determine whether Ministers should be able to deal with such a contingency. Indeed, it will be for this House to determine whether it considers it appropriate for Ministers to be able to deal with such a contingency.

In these circumstances, I continue in post and continue to advise, encourage and stipulate adherence to the rule of law—understanding that, from time to time, very real tensions can emerge between our position in domestic law and our position in international law. It is not unprecedented for legislation passed by this Parliament to cut across obligations taken at the level of international law. In those circumstances, domestic legislation prevails.

[The Lord Speaker (Lord Fowler)]

My Lords, I remind the House that this is not a debate; we are asking questions. If the next contributors could keep their questions short, and Ministers could keep their answers short as well, it would be to the benefit of everybody.

--- Later in debate ---

[Lord Thomas of Gresford (LD) [V]]

Has a certificate such as the noble and learned Lord referred to a moment ago been given in relation to this Bill, suggesting that it does not comply with international obligations?

The Prime Minister persuaded the Queen to prorogue Parliament unlawfully a year ago, his chief adviser Cummings unlawfully broke the law on his Barnard Castle jaunt, and now the Prime Minister will ask the Queen to give her Royal Assent to what is effectively an unlawful Bill that quite deliberately breaks international law. The Tory shadow Counsel General in Wales, the highly respected David Melding, resigned yesterday, and the head of the Government’s legal service resigned two days ago. Having regard to the oaths of office to uphold the rule of law, why are the Lord Chancellor and the Attorney-General still in office, even if the noble and learned Lord himself clings to it?

[Lord Keen of Elie (Con) [V]]

My Lords, first of all, the Minister presenting this Bill has given a certificate of compatibility pursuant to the Human Rights Act; that has been done.

As regards the further issues raised, it will be for Parliament to determine whether, at the end of the day, it decides to pass this legislation. That is a matter for Parliament, and the Ministers have presented the Bill to Parliament for those purposes.

[Lord Judge (CB) [V]]

My Lords, given that, by the Executive’s own assertion, they propose to break the law in a specific and limited way, are they to be exempted from the basic principle that the rule of law, which includes adherence to international treaty obligations, binds all of us? If so, where will this violation of constitutional principle end?

[Lord Keen of Elie (Con) [V]]

As I previously indicated, my Lords, there are exceptional circumstances that arise, from time to time, when we find ourselves with a tension between our domestic legal regime and our obligations at the level of international law. There are also occasions when we find some conflict between different international law obligations. We adhere to the rule of law, but we understand the need to try to resolve tensions that may emerge if, at the end of the day, we do not have a post-transition agreement and determinations from the Joint Committee.

[Lord Howard of Lympne (Con)]

My Lords, does my noble and learned friend simply not understand the damage done to our reputation for probity and respect for the rule of law by those five words uttered by his ministerial colleague, in another place, on Tuesday— words that I never thought I would hear from a British Minister, far less a Conservative Minister? How can we reproach Russia, China or Iran when their conduct falls below internationally accepted standards, when we are showing such scant regard for our treaty obligations?

[Lord Keen of Elie (Con) [V]]

My Lords, we are not showing scant regard for our treaty obligations. We are endeavouring to allow for a contingency that may arise very soon, which will require us to ensure that we can discharge our obligations to Northern Ireland. That creates difficulties, so far as the direct effect of EU law is concerned, if there is no post-transition agreement and no determinations by the Joint Committee.

[Lord Blunkett (Lab)]

As a non-lawyer, I ask a simple question. Alongside the breach of our international obligations, is this not a breach of respect for Parliament and democracy, given that the Prime Minister signed up to this agreement, forced it through as part of the Act and knows perfectly well that it is nothing to do with the negotiations towards the end of this year, but an admission of complete failure to understand what he was putting through Parliament?

[Lord Keen of Elie (Con) [V]]

I do not accept that. This is not a case of the Executive or Ministers seeking to act contrary to the will of Parliament. This is a case in which Ministers have brought legislation and laid it before Parliament for Parliament to determine whether provision should be made for the contingencies to which I have referred. This shows complete respect for Parliament and if, at the end of the day, Parliament and this House do not wish to confer the ability to deal with these contingencies on Ministers, they will not. It is a matter for Parliament.

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

My Lords, the Government have used terms such as “clarification” and “safety net” in describing the Bill. It is nothing of the sort; it is a direct abrogation of the withdrawal agreement. This is an issue about national integrity and the rule of law, as Sir Jonathan Jones recognised in resigning as Treasury Solicitor. I ask the noble and learned Lord how he would describe a barrister with whom he had negotiated a detailed written settlement agreement, who then explicitly reneged on that agreement by announcing an intention to act in direct contravention of both the agreement and the law.

[Lord Keen of Elie (Con) [V]]

The situation outlined by the noble Lord does not reflect that which exists in the context of a potential tension between our domestic legal obligations to Northern Ireland and the terms of the withdrawal agreement, in the event that we do not achieve the goals that all parties intended, including the ability to ensure the maintenance of the Belfast agreement.

[Baroness D'Souza (CB) [V]]

My Lords, tanks on the lawn will not, in the UK at least, herald the end of democracy or of adherence to the rule of law. It is shocking that the following clause is set out in government-proposed legislation:

“Certain provisions to have effect notwithstanding inconsistency or incompatibility with international or other domestic law”.


Will the Government either withdraw this derogation or provide compelling justification for its inclusion?

[Lord Keen of Elie (Con) [V]]

My Lords, the Government will seek to provide compelling justification for its inclusion. Ultimately it is for this Parliament to determine whether that case has been made.

[Lord Hunt of Wirral (Con)]

While declaring my interests set out in the register and as chair of the Society of Conservative Lawyers, I ask my noble and learned friend the Minister whether we are rewriting or amending the withdrawal agreement or the Northern Ireland protocol.

[Lord Keen of Elie (Con) [V]]

My Lords, we absolutely are not. It would not be possible for us to unilaterally rewrite either the withdrawal agreement or the terms of the Northern Ireland protocol. We understand that. It is why my right honourable friend the Secretary of State for Northern Ireland was so candid in his remarks in the other place.

[Lord Empey (UUP) [V]]

At the beginning of July, the Government allocated £25 million to help businesses in Northern Ireland manage the regulatory and customs consequences arising from the Northern Ireland protocol. By 29 August, this sum had risen to a staggering £355 million. Can my noble and learned friend explain how a unionist Government are allocating hundreds of millions of pounds to police a border, within the United Kingdom, which they claim does not exist legally?

[Lord Keen of Elie (Con) [V]]

I am not familiar with the precise sums that have been expended, as explained by the noble Lord. On paragraph 4 of the Northern Ireland protocol, it is expressly agreed by everyone that Northern Ireland will remain a part of the United Kingdom customs area. We as a Government are determined to ensure that that remains the case after the transition period.

[Baroness Crawley (Lab) [V]]

My Lords, government spokesmen have said all this week that we need to disapply aspects of the withdrawal agreement, which we signed, in case of no deal. However, does the Minister agree with his Irish counterpart Simon Coveney, who said in his address to the Dáil last night that the Irish

“protocol agreed as part of the withdrawal agreement is designed and empowered to operate in all circumstances, including in the absence of an agreement on the future relationship between the EU and the UK”?

If the Minister agrees, why are the Government risking their international reputation by setting aside the upholding of international law?

[Lord Keen of Elie (Con) [V]]

My Lords, that is because we will require consideration of not only the absence of a post-transition agreement, but the absence of clear determinations by the Joint Committee, which would render the Northern Ireland protocol potentially unworkable.

[The Lord Speaker (Lord Fowler)]

The time allowed for this Private Notice Question has elapsed. I apologise to those noble Lords who have not been able to get in, but it brings the PNQ to an end.

Police Act 1997 (Criminal Record Certificates: Relevant Matters) (Amendment) (England and Wales) Order 2020

Lord Keen of Elie Excerpts

Thursday 10th September 2020 Lords Chamber

Moved by

[Lord Keen of Elie]

That the draft Order laid before the House on 9 July be approved.

Motion agreed.

Rehabilitation of Offenders Act 1974 (Exceptions) Order 1975 (Amendment) (England and Wales) Order 2020

Lord Keen of Elie Excerpts

Thursday 10th September 2020 Lords Chamber

Moved by

[Lord Keen of Elie]

That the draft Order laid before the House on 9 July be approved.

[The Advocate-General for Scotland (Lord Keen of Elie) (Con)]

My Lords, I beg to move that the House considers the Rehabilitation of Offenders Act 1974 (Exceptions) Order 1975 (Amendment) (England and Wales) Order 2020 and the Police Act 1997 (Criminal Record Certificates: Relevant Matters) (Amendment) (England and Wales) Order 2020, which were laid in Parliament on 9 July.

These two orders relate to the process by which an individual may be required to self-disclose criminal records when applying for roles eligible for standard and enhanced criminal records certificates or have criminal convictions and cautions disclosed on a standard or enhanced criminal record certificate issued by the Disclosure and Barring Service.

As noble Lords are aware, the criminal records disclosure regime is designed to protect the public, in particular children and vulnerable adults. We want to ensure that criminal records disclosure is proportionate, balancing safeguarding with supporting people who have offended in the past into employment. Criminal records checks provided by the Disclosure and Barring Service form an important part of an employer’s broader approach to safeguarding. They support employers to make informed decisions about an individual’s suitability when they recruit for sensitive roles dealing with children and vulnerable adults.

As noble Lords are aware, the Supreme Court handed down its judgment on the case of P, G and W on 30 January 2019. That judgment determined that certain aspects of the current disclosure rules are incompatible with Article 8 of the European Convention on Human Rights, which is the right to a private life. The court found a rules-based disclosure regime for criminal records certificates is justifiable and in accordance with the law, but it found two areas of concern. First, the rule where all convictions are disclosed because an individual has more than one conviction, known as the multiple conviction rule, was found to be an unnecessary and disproportionate means of indicating a propensity to offend.

Secondly, the automatic disclosure of out-of-court disposals and youth reprimands and warnings administered to young offenders was found to be an error of principle given the instructive purpose of these disposals. The Supreme Court held that

“a warning or reprimand given to a young offender whose moral bearings are still in the course of formation, requires no consent and does not involve the determination of a criminal charge. Its purpose is wholly instructive, and its use as an alternative to prosecution is designed to avoid any deleterious effect on his subsequent life.”

These two orders are necessary to ensure that the disclosure of criminal records on standard and enhanced certificates is proportionate and fully complies with Article 8 of the convention. The two orders, read together, will have the effect that youth cautions and multiple convictions, unless affected by the other rules, no longer have to be disclosed when a person is asked about them and will no longer be subject to automatic disclosure on standard and enhanced criminal records certificates.

The Rehabilitation of Offenders Act 1974 affords offenders protection from having to disclose convictions and cautions once those convictions and cautions have become spent under the Act—the point at which the offender has become rehabilitated. The exceptions order lists activities or categories of jobs, where those protections are lifted. For these listed activities or jobs, applicants must, if asked, disclose their otherwise spent cautions and convictions, unless the exceptions order provides that they are protected. The primary rationale behind the exceptions order is that there are certain jobs, such as positions involving a high level of public trust—for example, unsupervised work with children—where more complete or relevant disclosure of an individual’s criminal record may be appropriate to mitigate risks to public safety.

Section 113A of the Police Act 1997 defines relevant matters which must be disclosed by the Disclosure and Barring Service in response to an application for a standard or an enhanced criminal record certificate. The two orders before us today work together to amend the criminal records disclosure system. First, the Rehabilitation of Offenders Act 1974 (Exceptions) Order 1975 (Amendment) (England and Wales) Order 2020 draft instrument amends Article 2(2) and (4) of the exceptions order to change the definition of a protected caution, being a spent caution not requiring self-disclosure, to include all those given where a person was under 18 at the time. It also amends Article 2(5) and (6) to change the definition of a protected conviction by removing the multiple conviction rule exemption from the scope of the definition. The effect of this order is that an individual with a youth reprimand, warning or caution, or those with more than one conviction, will no longer have to self-disclose their criminal record when applying for a role eligible for a standard or enhanced DBS check, unless one of the other disclosure rules is engaged. This amendment is necessary, as I say, to ensure that all aspects of the criminal records disclosure system are proportionate and compatible with the convention.

The Police Act 1997 (Criminal Record Certificates: Relevant Matters) (Amendment) (England and Wales) Order 2020 amends the definition of “relevant matter” by excluding the multiple conviction rule and youth cautions, including reprimands and warnings, from the scope of the definition of “relevant matter”. A relevant matter is a matter which must be disclosed by the Disclosure and Barring Service in response to an application for a standard or enhanced criminal record certificate.

The effect of this order is that youth reprimands, warnings and cautions and multiple convictions, where not affected by any other rule, will no longer be subject to automatic disclosure in criminal records certificates issued by the Disclosure and Barring Service. As criminal records disclosure is a devolved matter, these orders apply to England and Wales only.

Those with more than one conviction will no longer have to disclose them unless one of the other disclosure rules applies. Convictions and adult cautions will still be disclosed on certificates if they are recent, if they were received for a specified violent or sexual offence or if a custodial sentence was imposed. Youth reprimands, warnings and cautions will no longer be automatically disclosed through these rules.

Where an offence has been committed, we have a responsibility to ensure that the public are adequately safeguarded and that employers can make informed recruitment decisions through the disclosure of appropriate and relevant information, particularly for roles which involve close contact with children and vulnerable adults or a high level of public trust, but the rehabilitation of offenders is vital to enable long-term desistance for those who have offended in the past. By changing the disclosure rules, we are supporting those with childhood criminal records and those with old and minor convictions to move on with their lives, to be reintegrated into society and to take up employment and training opportunities. We are committed to increasing the employment rates of people who have offended in the past. The importance of employment in enabling those who have offended in the past to move forward with their lives cannot be overstated. We have an obligation to do what we can to make sure that people with convictions do not offend again, and employment is one of the most effective ways to do that.

These amendments to the exceptions order and the Police Act protect the privacy of an individual and represent a proportionate means of retaining the vital protections of relevant disclosure to employers, when they need them to make recruitment decisions for sensitive roles. I seek to reassure those who may be concerned that ceasing automatic disclosure of some criminal records presents a safeguarding risk. Other disclosure rules ensure that recent, sexual or serious violent convictions, adult cautions and any convictions that resulted in a custodial sentence will continue to be automatically disclosed on standard and enhanced DBS certificates. Furthermore, the statutory regime enables chief police officers to disclose any information they consider to be relevant to the purpose of a certificate and which, in the chief officer’s opinion, ought to be included in the certificate.

We intend to update the associated Home Office statutory guidance for the police alongside this legislative change to make it clear that information about convictions and cautions not automatically disclosed under the rules can, in principle, be included in a certificate in the same way as other police information reasonably believed to be relevant to the purpose for which the certificate is being sought.

In conclusion, we welcome the Supreme Court’s recognition of the important public interest in disclosing criminal records to protect children and vulnerable adults from harm, and we also acknowledge their judgment that two aspects of the regime are disproportionate. We are confident that these changes will still enable employers to make informed recruitment decisions to support safeguarding, but in a way that enables those who committed minor offences and who offended long ago to move away from their past. This will have particular benefit to those with childhood cautions. I invite noble Lords to support these two orders and I beg to move.

--- Later in debate ---

[Lord Keen of Elie (Con)]

My Lords, I am grateful for the contributions to this debate. I will touch briefly on a few points.

First, regarding the points made by the noble Lord, Lord Ponsonby, he is quite right to assume these matters will refer to both conditional cautions and cautions. I understand his point about having to address unemployment amongst those leaving imprisonment, and we are concerned to develop through-the-gate services.

More generally, we are not proposing a wider review at the time, but I believe that this legislation addresses the Supreme Court ruling in full. We are confident that the regime will help employers make informed recruitment decisions, particularly for roles involving children and vulnerable adults.

Touching on another point from the noble Lord, Lord Ponsonby, we feel it is for employers to make a subjective judgment as to the circumstances in which they feel they should make a DBS check. Clearly, we want to enable people affected by this legislation to move away from their past, particularly those who have been subject to childhood cautions. It is in these circumstances that I commend these draft instruments to the House.

Motion agreed.

Human Rights Act 1998 (Remedial) Order 2019

Lord Keen of Elie Excerpts

Thursday 3rd September 2020 Grand Committee

Moved by

[Baroness Scott of Bybrook]

That the Grand Committee do consider the Human Rights Act 1998 (Remedial) Order 2019.

Relevant document: 2nd Report from the Joint Committee on Human Rights

[Baroness Scott of Bybrook (Con)]

My Lords, this draft remedial order was laid before both Houses on 15 October 2019 in the last Session of Parliament. It was laid to implement the decision of the European Court of Human Rights in the case of Hammerton v the United Kingdom. The draft order amends Section 9(3) of the Human Rights Act 1998 to enable damages to be awarded under the Human Rights Act in respect of a judicial act done in good faith that is incompatible with Article 6—the right to a fair trial—of the European Convention on Human Rights. It provides the power to award damages where a person is detained and would not have been detained for so long, or at all, were it not for the incompatibility.

The Government consider this limited amendment to be an appropriate balance that implements the judgment of the European Court of Human Rights and takes into account the views of the Joint Committee on Human Rights, while also respecting the important constitutional principle of judicial immunity and the constraints provided by Section 9(3) of the Human Rights Act.

The particulars of the case are that in 2005, Mr Hammerton was committed to prison for three months for contempt of court after breaching an injunction and undertaking during child contact proceedings. However, he was not legally represented at the committal proceedings due to procedural errors. The Court of Appeal quashed the finding of contempt and the sentence, finding that he had spent extra time in prison as a result of procedural errors during his committal proceedings, which were such that his rights under Article 6—the right to a fair trial—were breached.

In 2009, Mr Hammerton lodged a claim for damages in respect of his detention. The High Court held that the lack of legal representation had led to Mr Hammerton spending around an extra four weeks in prison. However, he was unable to obtain damages to compensate for the breach of Article 6 in the domestic courts, because Section 9(3) of the Human Rights Act does not allow damages to be awarded in proceedings under the Act in respect of a judicial act done in good faith, except to compensate a person to the extent required by Article 5(5) of the convention—that is, where someone has been the victim of arrest or detention in contravention of the right to liberty and security.

In 2016, the European Court of Human Rights considered this case and found a breach of Article 6. The court also found that the applicant’s inability to receive damages in the domestic courts in the particular circumstances of his case led to a violation of Article 13— the right to an effective remedy—and awarded a sum in damages, which has been paid. We are obliged, as a matter of international law, to implement the judgment of the European Court of Human Rights which, in this case, means taking steps in respect of the violation of Article 13 to ensure that similar violations will not arise in the future.

To set the draft order in context, the Human Rights Act gives individuals the ability to bring proceedings to enforce their convention rights or to rely on those rights in other proceedings, and gives courts and tribunals the ability to grant any relief or remedy within their powers as they consider just and appropriate.

The award of damages is often not necessary to afford just satisfaction for breaches of convention rights. In the majority of cases in which a judicial act done in good faith leads to a violation of an individual’s convention rights, it can readily be remedied by an appeal and other forms of relief, such as release from custody. Therefore, it would be only on rare occasions that the existing statutory bar in Section 9(3) of the Act would constitute a barrier to a victim receiving an effective remedy as required by Article 13 of the convention.

The bar on paying damages in cases such as this one is in primary legislation. To implement the judgment, it is necessary to amend the relevant primary legislation —in this case, the Human Rights Act 1998, which sets out the procedure for making remedial orders such as the ones we are discussing today.

In 2018, the Government laid a proposal for a draft remedial order to make a narrow amendment to Section 9 of the Human Rights Act. That amendment provided for damages to be payable in respect of a judicial act done in good faith where, in proceedings for contempt of court, a person does not have legal representation in breach of Article 6, that person is committed to prison and the breach of Article 6 results in the person being detained for longer than he or she would have been otherwise. The Government considered that that addressed the specific findings of the court, while at the same time taking into account the need to preserve the important principle of judicial immunity—a constitutional principle that should rightly be preserved.

In November 2018, the Joint Committee on Human Rights reported on the draft remedial order and was of the view that that proposed amendment was too narrow and did not fully remove the incompatibility of Section 9(3) of the Human Rights Act with Article 13. It recommended that we consider redrafting the order to make damages available for any breach of human rights caused by a judicial act where otherwise there would be a breach of Article 13, whether or not that leads to a deprivation of liberty. In other words, the committee said that we were not extending it enough and should go broader than the specific facts of the case.

In response, the Government accepted that other situations could arise outside proceedings for contempt of court where a judicial act done in good faith could potentially amount to a breach of Article 6, where that breach could result in the victim spending time in detention or longer in detention than they would otherwise have done, and where damages would be unavailable, contrary to Article 13. The order before the Committee today is therefore slightly wider in scope than the 2018 draft order, taking into account the need to balance addressing the incompatibility identified by the European Court of Human Rights with the need to protect the principle of judicial immunity.

I am grateful to the Joint Committee on Human Rights for its scrutiny of the proposal for a draft order and its careful consideration of the more recent draft order that has been laid. We welcome the Joint Committee’s recommendation that Parliament approve the order.

Noble Lords will have heard me mention just now the need to protect the principle of judicial immunity. Judicial independence and the principle of judicial immunity must be protected; any intrusion needs to be stringently justified. That is why we engaged with the judiciary to ensure that it was fully sighted on the judgment and our plans for the remedial order.

Finally, given that the Human Rights Act 1998 applies to the whole of the United Kingdom, this order would apply UK-wide. Our officials have worked closely with the devolved Administrations during this process.

The order ensures that, in certain limited additional circumstances, where our domestic courts find that a judicial act done in good faith has breached an individual’s Article 6 right to a fair trial and led to them spending longer in detention than they should, the courts are able to determine and properly consider whether an award of damages should be made for any such breach.

I beg to move.

Fatal Accidents Act 1976 (Remedial) Order 2020

Lord Keen of Elie Excerpts

Thursday 3rd September 2020 Grand Committee

Moved by

[Baroness Scott of Bybrook]

That the Grand Committee do consider the Fatal Accidents Act 1976 (Remedial) Order 2020.

Relevant document: 4th Report from the Joint Committee on Human Rights

[Baroness Scott of Bybrook (Con)]

My Lords, I am afraid that the noble and learned Lord, Lord Keen of Elie, is unable to be here so I am taking this order through on his behalf.

This draft order seeks to rectify an incompatibility with the European Convention on Human Rights identified by the Court of Appeal in the 2017 case of Jacqueline Smith v Lancashire Teaching Hospitals NHS Trust and others. This relates to limits on the categories of person eligible to receive an award of bereavement damages under Section 1A of the Fatal Accidents Act 1976, which excludes a person who has cohabited with the deceased person for a period of at least two years immediately prior to the death.

The draft order was laid in Parliament on 12 February 2020 and was approved by the House of Commons on 15 June, so this debate represents the final stage in the parliamentary process, after which it will become law. As noble Lords will be aware, the terms of the Human Rights Act 1998 in relation to remedial orders require the order to be strictly focused on rectifying the incompatibility that has been identified; it cannot extend to addressing wider issues.

The bereavement damages award is set by the Lord Chancellor and is a fixed payment in acknowledgment of the grief caused by a wrongful death. The level of the award is currently £15,120, having recently been increased in line with inflation. The award is currently available to a limited number of people, including the wife, husband or civil partner of the deceased person.

Unlike civil damages generally, which are intended to compensate fully for the loss suffered, the bereavement damages award is, and was only ever intended to be, a token award payable to a limited category of people. When the award was first introduced in the Administration of Justice Act 1982, it was acknowledged by Parliament that it is impossible to quantify or provide adequate financial compensation for the grief felt at the loss of a loved one. Similarly, the limits on the categories of people able to claim are not intended to imply that people outside those groups would not be severely emotionally affected by the death in question.

The draft remedial order provides that a claimant who cohabited with the deceased person for a period of at least two years immediately prior to the death will be eligible to receive the bereavement damages award. In view of the fact that this is a fixed, token award, it is desirable for the system governing it to be as simple and straightforward as possible to avoid unnecessary complexity that would add to the cost of litigation and the potential for disputes.

In that context, we consider that it is reasonable to set a limit that objectively evidences a relationship of permanence and commitment and avoids the need for intrusive inquiries into the quality and durability of the relationship in individual cases. We believe that two years is an appropriate qualifying period. This period is already applied under Section 1 of the 1976 Act in relation to claims by cohabitants for dependency damages, and unnecessary complexity would arise in a claim involving both types of damages if different definitions were used.

In the very rare instances in which both a qualifying cohabitant and a spouse will be eligible—that is, in circumstances where the deceased was still married and not yet divorced or separated but had been in a cohabiting relationship for at least two years—the draft order provides for the award to be divided equally between the two eligible claimants. We consider that this is the fairest approach to adopt, given that it is desirable to avoid the potential for intrusive inquiries into the quality and durability of an eligible relationship or, in this particular situation, into the respective merits of the two claimants.

I am grateful to the Joint Committee on Human Rights for its scrutiny of this draft order. A remedial order is seldom used to correct incompatibilities in primary legislation with the European Convention on Human Rights. It is therefore right that each order be scrutinised carefully both to ensure compliance with the procedure laid down in the Human Rights Act 1998 and to ensure that the incompatibilities found by the courts are addressed.

The Government welcome the committee’s recommendation that Parliament approves the order and I hope that my comments have addressed the main points on which it has expressed concern in relation to the contents of the draft order. It remains our position that some of the issues raised by the committee go beyond the Court of Appeal’s ruling on incompatibility and are therefore beyond the scope of the order. I beg to move.

Probate Service

Lord Keen of Elie Excerpts

Monday 27th July 2020 Lords Chamber

[Baroness Ludford]

To ask Her Majesty’s Government what assessment they have made of (1) the operation, and (2) the resourcing, of the Probate Service; and what plans they have to remedy any issues identified.

[The Advocate-General for Scotland (Lord Keen of Elie) (Con) [V]]

My Lords, current waiting times in the probate service are within expected timeframes, but we expect that to come under pressure as case receipts rise. The service has continued to operate effectively, despite the pressures faced during the Covid-19 pandemic. Additional resources have been, and continue to be, put in place by Her Majesty’s Courts & Tribunals Service to prepare for additional demand following the increase in the overall death rate.

[Baroness Ludford (LD) [V]]

I thank the Minister for that Answer, but his claims do not mesh with my experiences or those of others. I appreciate that, like other service providers, lockdown has caused challenges for the probate service, but its problems of resourcing and organisation go deeper than that. It was already in the midst of an apparent restructuring. Press articles last month on the chaos experienced by relatives mirror my own saga. I received misinformation, and calls and emails went unanswered. Finally, my husband’s will, which had been deposited with the service, could not be located for a very worrying few weeks—almost a subject for the theatre of the absurd. Only once I had gone on Twitter was my case solved. People who are grieving deserve better treatment than many are getting, not least from the probate service.

[Lord Keen of Elie [V]]

My Lords, I very much regret the personal experience that the noble Baroness, Lady Ludford, suffered. However, particularly during the present crisis, the probate service is working effectively. There was a move in the last year to a digital system. That is bedding in and proving successful. Indeed, the average waiting time for a grant of probate in the period January to March this year was about four weeks.

[Lord Howarth of Newport (Lab) [V]]

Are not inordinate delays and confusion, applications stuck for four months without explanation, people kept on the line for 50 minutes and staff unable to find relevant documents symptoms of an organisation that was already underfunded and whose staff were undertrained before Covid? Is this service not unacceptable for the families and charities that need assets released? Will the Minister guarantee that fees will not be raised while the performance of the probate registry is so poor?

[Lord Keen of Elie [V]]

My Lords, I do not accept that the performance of the probate service should be characterised as poor. No guarantee can be given regarding fees.

[Lord German (LD) [V]]

My Lords, with continuing delays now extended over several years, is it not time for the Government to introduce a one-stop shop for dealing with probate to avoid the need to go back and forth making arrangements between the courts service, the Treasury and others?

[Lord Keen of Elie [V]]

My Lords, the introduction of a digital scheme is proving effective. Because of that, it was possible for probate staff to deal more effectively with applications during the Covid crisis. We are seeing a greater uptake in the digital service from legal professionals as well.

[Baroness Jones of Moulsecoomb (GP) [V]]

Given the comments already made by noble Lords, does the Minister think that adding various issues to probate, such as the signing of wills remotely by video call, could increase disputes and later administrative problems? Perhaps the probate service is being overloaded.

[Lord Keen of Elie [V]]

My Lords, in fact, we have taken steps to simplify the probate process. We are replacing affidavits with a statement of truth, accepting electronic-type signatures on probate forms, and allowing legal representatives to sign legal statements on behalf of clients. These steps will simplify and accelerate the process.

[Lord Ponsonby of Shulbrede (Lab) [V]]

My Lords, there has clearly been a lot of adverse press and we have heard from other noble Lords about personal experiences where the probate service has not performed as we would all wish. What confidence does the Minister have that the probate service is performing as well as he claims it is? What monitoring does he think is appropriate to put in place so that we can all have confidence that the probate system is fit for the present large increase in Covid-related deaths that we have seen?

[Lord Keen of Elie [V]]

My Lords, in late 2019 we saw a very clear and discernible improvement in the turnaround of probate applications and probate grants. As I indicated, in January to March this year the average waiting time for a grant of probate was about four weeks. Some, of course, are simpler than others. Indeed, where written rather than digital applications are made, there is greater room for error and therefore of delay in respect of these matters. However, we are monitoring the system. That is why we can give figures on the turnaround on probate grants. We are training additional staff as well. We appreciate that this will be required, given that there will be an increase in probate applications over the summer, reflecting the increased death rate as a result of the Covid pandemic.

[Viscount Trenchard (Con) [V]]

My Lords, does my noble and learned friend the Minister agree that the delay on granting probate in recent years has been far more than is reasonable? Does he not think that it would be helpful if the Government could allow, prior to probate being granted, more additional payments to be made from an estate than are allowed at present?

[Lord Keen of Elie [V]]

My Lords, I emphasise the improvement that took place in the grant of probate during 2019 and into 2020, even in the face of the increased demand on the probate service as a result of the Covid crisis. As a result, we are seeing a turnaround in the grant of probate that allows for the present system on payments to be accommodated. We have no proposals regarding my noble friend’s latter point.

[Lord Blunkett (Lab) [V]]

My heart goes out to the noble Baroness, Lady Ludford, who demonstrated the personal heartache that comes when systems do not work. Could the Minister reflect on the fact that the Courts & Tribunals Service has always been under major pressure, not least because of the use of agency staff? What plans are in place for when staff who have been reallocated to probate go back to their normal working lives?

[Lord Keen of Elie [V]]

My Lords, we have undertaken the training of an additional 34 staff in the probate service. In addition, as district probate registries close in the light of the development of the digital applications, we have sought to retain some of those staff within the courts and tribunal system for probation work. However, other staff are allocated to other parts of the Courts & Tribunals Service.

[Baroness Bowles of Berkhamsted (LD) [V]]

Are any of the temporary measures adopted during lockdown under consideration for becoming permanent—for example, signed statements of truth replacing affidavits or HMRC accepting estimated values and then subsequent corrected values?

[Lord Keen of Elie [V]]

Certainly, it is intended that permanently replacing affidavits with statements of truth will be considered, as will electronic signatures on probate forms—albeit that the whole issue of electronic signatures should be considered more widely. Going forward, we will seek to learn from these changes what permanent improvements can be introduced to the service.

[Baroness Altmann (Con) [V]]

I commend the Government on the move to a digital scheme for probate, but will the Minister consider an urgent inquiry into the performance levels that we have been hearing about since March? What has happened to average waiting times? How many important documents have been mislaid, and what lessons can be learned on streamlining the service after recent experiences? I add my sincere condolences to the noble Baroness, Lady Ludford.

[Lord Keen of Elie [V]]

I thank the noble Baroness for her question. We appreciate that the service will come under increased pressure in July and August, because of the increased death rate in the spring. Probate applications tend to come about three months after the relevant death. We are pleased with the rollout of the digital service and the response has been extremely good, with an increase in take-up by legal professionals. The system is being monitored and we will ensure that the improvements of the latter part of 2019 continue, while recognising the challenges of the Covid-19 crisis.

[The Lord Speaker (Lord Fowler)]

My Lords, the time allowed for this Question has elapsed.

Covid-19: Prisoners

Lord Keen of Elie Excerpts

Thursday 16th July 2020 Lords Chamber

[Lord Harris of Haringey]

To ask Her Majesty’s Government what progress they have made towards the implementation of the recommendations in the report by the Independent Advisory Panel on Deaths in Custody “Keep Talking, Stay Safe”: A Rapid Review of Prisoners’ Experience under COVID-19, published on 31 May.

[The Advocate-General for Scotland (Lord Keen of Elie) (Con)]

My Lords, we welcome this report from the IAP on the experience of prisoners during Covid-19. The Government are committed to making safety a priority for all those in custody as well as staff. We have reviewed the recommendations in the report and are making good progress against a number of the areas identified, with many discussed further at a Covid-19 sub-meeting of the Ministerial Board on Deaths in Custody on 7 July 2020.

[Lord Harris of Haringey (Lab) [V]]

My Lords, I am grateful to the Minister for that reply. The IAP report said that early release was important to protect life. We were told that 4,000 prisoners would be released; indeed, the MoJ bought 2,000 tagging kits for those released. But, so far, only 209 prisoners have been released early. What went wrong? So far, 23 prisoners have died from Covid-19 in a prison population of 80,000. Each death is a tragedy; those prisoners were under the care of the state, and the state had a duty to keep them safe. However, to keep the numbers to such levels, many prisoners are confined, essentially in solitary confinement, in their cells for 23 hours a day, with limited access to exercise or basic rehabilitative activities, exacerbating mental health problems. There have been 36 self-inflicted deaths so far this year. Can the Minister tell us what proportion of prisoners are currently restricted in this way and when he expects that figure to improve?

--- Later in debate ---

[Lord Keen of Elie]

My Lords, the end-of-custody temporary release on licence scheme was there essentially as a safety valve for capacity reasons. As the noble Lord observed, there have been 209 releases as at 3 July. That is consistent with maintaining appropriate capacity within the prison population. There have tragically been 23 prisoner deaths since the start of the pandemic, again based on data available at 3 July, as against a model in March of 2,300 deaths—I emphasise, a model. Nothing has gone wrong with the release system as such. With regard to the situation within prisons, we have now seen a majority of prisons move to a less rigorous regime within the parameters set for prisons; indeed, a proportion of prisons are now able to admit visitors as well.

[Lord Bradley (Lab) [V]]

My Lords, noting my interests in the register, this report reminds us of the need for robust and effective alternatives to custody. This is especially so for people with mental health problems, whose experience of prison can worsen pre-existing conditions, including the risk of self-harm. Will the Minister therefore assure me that the planned investment in community sentence treatment requirement programmes will continue in the current 12 test areas, and that national rollout will be prioritised to ensure universal sentencing options for the courts and necessary treatment for offenders?

[Lord Keen of Elie]

My Lords, we are committed to developing a more robust community sentencing framework. We recognise the importance of that. With regard to the health of those within the prison system, we have been taking steps to ensure that appropriate support is in place. The Ministry of Justice, working closely with Cruse Bereavement Care, has established a series of interactive webinars specifically designed for chaplaincy and welfare teams.

[Lord German (LD) [V]]

My Lords, in his follow-up report just a few weeks ago, the Chief Inspector of Prisons said that “large and increasing” numbers of new prisoners are arriving and that

“the End of Custody Temporary Release Scheme … had failed to reduce the population meaningfully.”

With overcrowding and capacity still major problems, and with prisoners locked in cells for 22.5 hours a day, what is the point of having a release scheme which, according to Her Majesty’s chief inspector, has failed?

[Lord Keen of Elie]

My Lords, the scheme is there to ensure that there is a safety valve for capacity within our prison system. It has worked in that respect. The primary issue has to be public protection. We have to take great care over the early release of those who have been imprisoned, particularly for offences that might otherwise inflict further danger on the public. At present, the Government have fully implemented compart- mentalisation in 98% of prisons and introduced strong measures to protect not only prisoners but staff. The remaining matters of compartmentalisation simply await the completion of temporary accommodation.

[Lord Garnier (Con) [V]]

I refer to my interests in the register. While recognising the point that my noble and learned friend has just made about security, can he tell us what progress has been made in implementing the report’s second recommendation—namely to streamline and expedite the early release scheme to create the headroom needed to take active steps to protect life? Does he agree with the report’s suggestion that:

“Given numbers of medically vulnerable people who need to be shielded”,


we should

“overhaul the process of release on compassionate grounds and review and halt the misuse of prison custody as a place of safety”?

[Lord Keen of Elie]

My Lords, we are not going to rush into reviews of the kind that my noble and learned friend refers to at this stage. However, we are of course anxious to build on improvements within the prison system, for example by building on some of the recommendations in the report, such as those concerned with the key worker scheme and with greater prisoner engagement and peer support.

[Lord Ramsbotham (CB) [V]]

In view of the Government’s general acceptance of the very sensible recommendations of the independent advisory panel, will they make a further report on the progress of their implementation when the House resumes at the beginning of September?

[Lord Keen of Elie]

My Lords, I am perfectly content to take further questions on this issue as we seek to implement some of the recommendations of the IAP report. As I indicated, it has already been the subject of consideration at a joint sub-committee ministerial meeting and we are taking forward some of the recommendations. I have mentioned two; the others I would mention are improvement in family contact, and the introduction of bereavement support and counselling for prisoners.

[Lord Falconer of Thoroton (Lab) [V]]

I congratulate the independent advisory panel on its report. One problem at the moment, because of coronavirus, is the fact that there are very few jury trials or magistrates’ courts trials, the consequence of which is that more prisoners are spending longer on remand. Can the Minister describe to the House what steps have been taken by the Prison Service to facilitate having more, and quicker, jury trials and magistrates’ courts trials, in particular by facilitating video links to prisons, courts in prisons and lawyers being able to take instructions from people remanded in custody?

[Lord Keen of Elie]

My Lords, the Prison Service is not directly facilitating the issues relating to jury trials, but we are taking steps to introduce additional courts so that we can, essentially, restart and develop the criminal justice system.

[Lord Purvis of Tweed (LD)]

The last full report of the Prisons and Probation Ombudsman suggested that 70% of people who died of self-inflicted means in prison had already been identified as having mental health needs, but that these needs had been flagged to the Prison Service in only half those cases, while 29% of them had not even had a community referral for community mental health services. What is the Government’s target to ensure that 100% of those admitted to prison with mental health needs are flagged up to the Prison Service, and that they are able to continue to receive treatment?

--- Later in debate ---

[Lord Keen of Elie]

My Lords, we have encouraged prison governors to continue to operate peer support schemes, where possible, and issued guidance on how and why they should be maintained. We have also continued our partnership with the Samaritans by providing a further grant until 2021 to run its Listener scheme, which operates in 111 prisons and provided something like 30,000 hours of emotional support last year.

[Baroness Uddin (Non-Afl) [V]]

My Lords, I welcome this opportunity to ask for robust and full implementation of a Lammy recommendation, and I add my voice to that of my noble friend Lord Harris on the implementation of this report. I am disheartened to learn that we did not secure the release of significant numbers of prisoners during the pandemic, particularly those who are pregnant and women with young children. The numbers of black and Muslim men suffering at the hands of our police remain grim and deaths in custody are a scar on our democratic system. I have spoken about Zahid Mubarek in this very Chamber; he was killed in 2000 at the hands of a racist prison inmate and denied human decency when he sought assistance from prison officers. I could list hundreds of others; I wish that I could. I honour the women and families still campaigning for justice. What steps are being taken to enable the justice system to be fit for purpose and to have trust in upholding a humane justice system, eradicating the physical and mental cruelty inflicted disproportionately on black and Muslim men, be it on the roads with stop and search, through arrest or in police custody?

[Lord Keen of Elie]

My Lords, we have taken considerable steps in the implementation of the recommendations in the Lammy report.

[The Deputy Speaker (Lord Faulkner of Worcester) (Lab)]

My Lords, the time allowed for this Question has elapsed. We now come to the third Oral Question.