Court of Appeal (Recording and Broadcasting) (Amendment) Order 2020

Lord Keen of Elie Excerpts

Monday 8th June 2020 Lords Chamber

Moved by

[Lord Keen of Elie]

That the draft Order laid before the House on 12 March be approved.

Motion agreed.

Crown Court (Recording and Broadcasting) Order 2020

Lord Keen of Elie Excerpts

Monday 8th June 2020 Lords Chamber

Moved by

[Lord Keen of Elie]

That the draft Order laid before the House on 16 January be approved.

Relevant document: 3rd Report from the Secondary Legislation Scrutiny Committee

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

My Lords, these draft orders would remove current prohibitions on the recording and broadcasting of certain court proceedings. In the Crown Court, this would enable the broadcast of judges’ sentencing remarks and in the Court of Appeal would make permissible the broadcast of judgments and advocates’ arguments in selected family proceedings. Currently, the recording and broadcasting of court proceedings in England and Wales is prohibited by Section 41 of the Criminal Justice Act 1925 and Section 9 of the Contempt of Court Act 1981.

Section 32 of the Crime and Courts Act 2013 enables the Lord Chancellor, with the agreement of the Lord Chief Justice, to make an order specifying circumstances in which the prohibitions on recording and broadcasting may be lifted. This has been done to allow recording and broadcasting of proceedings in the Civil and Criminal Divisions of the Court of Appeal, which has proceeded successfully since 2013. Section 32 does not apply to proceedings in the Supreme Court, which has its own provision allowing for broadcasting of its proceedings.

The two draft orders vary in effect and scope but share the common intent of increasing transparency, public engagement and understanding about what happens in courts. Very few people have the time or opportunity to attend and observe this in person. Increasingly, people rely on television and the internet for access to news and current affairs. It is right to respond to these changes in technology and society and allow cameras into our courts. There is evidence to suggest that the more informed people are about the justice system, the more confidence they will have in it.

I will briefly summarise the intended purpose and impact of the two orders before your Lordships today. The Crown Court (Recording and Broadcasting) Order will lift current restrictions to the extent necessary to enable recordings to be made where remarks made in passing sentence are delivered in the Crown Court by a High Court judge or a senior circuit judge. Recordings will be made by broadcasters only with written permission to do so from the Lord Chancellor.

Parliament first considered the proposal to extend broadcasting to the Crown Court in 2016 during debates on the Crown Court (Recording and Broadcasting) Order, which lifted the prohibition on recording, to enable a not-for-broadcast test in eight Crown Courts across England and Wales. This test gave us the opportunity to consider the practical implications of filming in Crown Courts. We have taken into account the concerns raised by both Houses when considering the results of that test. Our learning from this, and from some years filming in the Court of Appeal, has informed the drafting of the current order and the safeguards contained within it. 

We have listened to concerns regarding the potential impact of court broadcasting on victims and witnesses, and indeed on the dignity and integrity of our courts. The welfare of victims and witnesses is of paramount importance, and the order does not permit the filming of victims or witnesses, or of any other person present in court, including staff, defendants, jurors and advocates.

Broadcasters must make an application to film a case, and the trial judge has full discretion to allow or deny the application. Filming will not be permitted if a case is considered unsuitable for broadcast—for example, if it is particularly sensitive in some way—and it will not be possible to appeal a judge’s decision to allow or refuse filming. Existing reporting restrictions will continue to apply, and the court will be able to stop or suspend filming in the interests of justice, or to prevent prejudice to any person. Any breach of the terms of the order could amount to contempt of court.

We have given much consideration to concerns that filming might impact on the dignity of the courts and the integrity of the trial process. The decision to limit filming to sentencing remarks has been done with this in mind, and we have introduced a number of other safeguards in the order.

Only those media parties granted permission in writing from the Lord Chancellor will be able to record proceedings, and the Government will retain copyright of the film footage. The order makes clear that the contents of any broadcast must present sentencing remarks in a fair and accurate way. The complete footage of any broadcast will be easily accessible to the public online, so that they can see and hear the judge’s remarks in full and in context.

There will be only one camera, and one experienced cameraman, present in the court, to minimise disruption. In most cases, sentencing remarks will be filmed and the edited footage broadcast later the same day. Live broadcasts are likely to be very limited and only in cases of significant public interest. There will be a time delay on live broadcasts, to ensure that all necessary edits can be made to the footage before it is released to the public. The trial judge will have the power to refuse an application to broadcast live, if he or she considers that this would be inappropriate.

The second draft order before noble Lords today amends the Court of Appeal (Recording and Broadcasting) Order 2013, which sets out the conditions under which the visual and sound recording, and broadcasting, of proceedings in the Court of Appeal may take place. The 2013 order specifically prohibited the recording and broadcasting of Court of Appeal proceedings where the appeal followed from a decision in family proceedings. The draft amending order repeals that prohibition, with the specific purpose of bringing family proceedings within the scope of the current project to test the live streaming of selected Court of Appeal civil proceedings.

Family proceedings have long faced criticism in Parliament, and indeed in the media, for being insufficiently transparent. Historically, family proceedings have been more closed than those in the criminal and civil justice systems, with cases usually being heard in private. However, both the Government and the judiciary recognise the need for greater transparency, while at the same time protecting the privacy of often very vulnerable children and families. A careful balance must continue to be struck. Steps have been taken, and continue to be taken, to make family proceedings more open. This instrument should be seen in this wider context, as well as that of making the Court of Appeal, and the courts in general, more accessible to the public.

Repealing the prohibition on the recording and broadcasting of family proceedings of the Court of Appeal will allow selected cases to be included within the existing live streaming of judgments and advocates’ arguments in appeal cases. This pilot, initiated by the Master of the Rolls and launched in November 2018, has so far tested the live streaming of selected civil proceedings in the Court of Appeal. These have been broadcast through a dedicated YouTube channel, with a link placed on the judiciary website.

The pilot has provided a successful test for the broadcasting of appeal proceedings. No technical issues have been identified with the live feed to date, and no objections have been raised by the parties involved in the hearings selected for live streaming. The pilot includes a delay mechanism and enables the judge to cut the live stream immediately to prevent the inappropriate broadcast of sensitive matters. To date, judges have not needed to use this facility.

There is currently no intention to broadcast family proceedings in the Court of Appeal, other than as part of the ongoing live streaming pilot. However, it is anticipated that if the pilot has a successful outcome, it should become standard practice for selected family proceedings in the Court of Appeal.

The confidentiality and sensitivity with which family proceedings are dealt with remains of paramount importance. It is important to note that family proceedings in the Court of Appeal are already open to the public, who can attend in person, unless the court itself decides otherwise.

The Crime and Courts Act 2013 allows discretion for the judge in any case to prevent broadcasting to protect the interests of justice and prevent undue prejudice to anyone involved. The broadcast of individual appeals will require the agreement of a judge. Judges are always able to stop live streaming at any time, either before or during the hearing, should they consider it necessary. Parties are also given the opportunity to object to having the hearing broadcast. These safeguards will apply to family proceedings, as they do to other proceedings already within the scope of the 2013 order.

This instrument will only allow the broadcasting of judgments and advocates’ arguments in family cases in the Court of Appeal. Appeal cases do not commonly involve family members or other witnesses giving evidence in person, except when they are representing themselves, and safeguards are in place to protect their interests. These have been found to work well already in the broadcasting of civil proceedings.

The Government are committed to ensuring that the justice system is open and transparent. Public understanding of how the courts work, and how judicial decisions are made, is important if we are to maintain confidence in the system. I believe that both orders before the House today will further these aims. They will give the public access to and insight into court decisions, while continuing to protect the integrity of the court and the rights of victims and defendants. I commend these instruments to the House and beg to move.

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[Lord Keen of Elie [V]]

My Lords, I thank noble Lords for their contributions to this debate. The noble and learned Lord, Lord Morris of Aberavon, was quite prescient when he described these moves as a “toe in the water”. That point was supported, or commented on, by a number of noble Lords. We are proceeding here very carefully. On that point, I will address some of the observations of the noble Lord, Lord Thomas of Gresford. He talked about there having been no consultation since 2005, and the need for this. With great respect—this point was made by the noble and learned Lord, Lord Thomas of Cwmgiedd —we have been informed in the development of these orders by the work that has been ongoing since 2013, with the introduction of the means of live streaming into the Court of Appeal, and 2018, with the pilot. It is not as if we have approached this cold. Regarding the matter of costs which the noble Lord raised, these will be borne by the broadcaster who seeks to broadcast the relevant sentencing provisions under the Crown Court order. We have already established a live stream of non-family business in the Court of Appeal on a YouTube channel. There will be a process by which broadcasters can seek permission to broadcast from that.

My noble and learned friend Lord Garnier raised a number of points, with particular reference to the provisions in the Crown Court order. There will be a list of permitted broadcasters, approved by the Lord Chancellor. The BBC, ITV, Sky and the Press Association will receive permission. It could be withdrawn at some point in the future, but I do not understand there to be any time limit to it. Thereafter, it will be for the judge sitting in any one case to determine whether he will permit broadcasting of his sentencing remarks. He will not do that on behalf of any other judge or court. His determination will not be liable to appeal; it will be a final determination. Making an application will be an administrative process that the broadcaster will carry through by way of a written application, for which there is no charge. There will then be a decision on a case-by-case basis.

The noble and learned Lord, Lord Thomas of Cwmgiedd, outlined that it is already the practice for written sentencing guidelines to be available, and they have greatly assisted in the sentencing work of the criminal courts. He made three observations: that this is a complex area, and I agree; that there has been consultation, and, again, I agree; and that a number of safeguards have been developed in the light of our experience, particularly since 2013, to guide us with respect to both the Crown Court and family cases in the Court of Appeal.

The noble Lord, Lord Reid, and a number of other noble Lords raised the question of potential adverse consequences for judges from this process. That has been considered, and the view of both the Government and the senior judiciary is that there will not be any significant increase in such consequences. Of course, judges can already come in for criticism of their sentencing decisions. They are well able to deal with that and they have broad shoulders, but we do not consider that there will be any significant adverse effects as a result of this process.

My noble friend Lady Anelay of St Johns was one of the speakers who felt that the reach of the orders was perhaps too limited. We have developed them in the light of experience, particularly since 2013. We are moving carefully in this area and at present we do not have any intention to extend these provisions beyond the current orders. The decision with regard to the Crown Court order that permission should be available only from a High Court or senior circuit judge was arrived at after consultation and discussion with the senior judiciary, who felt that this was the appropriate way forward at this time.

The noble Lord, Lord Harris of Haringey, encouraged the idea of providing more than just the sentencing guidelines when broadcasting and mentioned the need for immediate attention to what is going on. Where a broadcaster seeks to broadcast in the Crown Court, I cannot say that that will be done live. There might be exceptional cases where it occurs, but I suspect that they will be unusual. One cannot anticipate the speed with which a recording of such a sentencing event would be broadcast, although one would have thought that it would have limited public impact if delayed for long.

My noble friend Lord Wei raised a number of points, the first being the risk of grandstanding by judges. I cannot imagine that any such thing could ever happen, and I do not believe that we need to guard against that in the present context. He also raised the question of security. There is a 60-second delay in the live stream so that it can be shut down if there is an extraordinary or outrageous event in the court. That has never been required but it has been tested on a number of occasions and has been found to work.

The noble Baroness, Lady Jones, asked how we can improve public awareness. I agree that that is important, but I suggest that these are small steps in the right direction. She also asked how one regulates against misuse of the material. Of course, the contempt-of-court process is there for that purpose, and we can police the use of this material in just the same way as when it is recorded in the written press.

The noble Baroness, Lady Kennedy, raised the question of guidance on the behaviour of judges. There are sentencing guidelines that the judiciary is obliged to follow when applying these matters. Over and above those, there have from time to time been cases—they were mentioned during the debate—where the Lord Chief Justice and the Court of Appeal have indicated how these matters should be approached by the judiciary.

My noble friend Lord Bourne raised a number of questions, and I shall touch upon them briefly. I am not aware of any consultation with the Department for Education, although I note that there may be a point to be considered there. As regards costs, they are essentially minimal because the broadcaster will provide the cameraman and the camera, and there will be only a single camera for this purpose. As to who will take up the rights to broadcast, I think I mentioned who the permitted parties are going to be. My noble friend also mentioned security, which I hope I have touched upon, and the need for guidelines for judges. There are sentencing guidelines. I emphasise that the decision of the trial judge to allow or not to allow broadcasting will not be appealable.

My noble friend raised two points on the extension of Court of Appeal broadcasting to family cases. Parties may object, but that objection will be a consideration, not a determination of any application. He raised the question of whether litigants might be put off by the prospect of broadcasting. That is something that we have considered and we do not consider that that would be a material issue. Of course, any litigant’s case that would go to the Court of Appeal would be heard in public, and we do not believe that the element of broadcasting that is being extended here will give rise to any real difficulty.

The noble Lord, Lord Foulkes of Cumnock, pointed to the experience in Scotland, which has been instructive. He asked whether we would consider further broadcast options. I have to emphasise that that is not our present intention. I note that the noble Lord, Lord Marks, would like to see us go much further so far as remote hearings are concerned. That is not something that we intend to pursue at the moment.

I will take up one or two further points about vulnerable persons. This is clearly a material consideration. Witnesses’ and victims’ concerns have to be taken into account in approaching this matter, and we have sought to ensure that there are appropriate safeguards in place for the fairly limited steps we are taking in these two orders.

I hope that that largely covers the points that were raised by noble Lords and noble and learned Lords in the debate. I hope noble Lords will agree that these instruments are an important, necessary and, I would say, sensible and proportionate next step in ensuring that our courts are open and transparent. I observe that we are learning from the Covid experience of carrying on court processes remotely while ensuring that there is public access to those processes. We will continue to learn from the steps that are being taken. In the circumstances, I commend these draft instruments to the House.

Motion agreed.

Royal Commission on Criminal Justice

Lord Keen of Elie Excerpts

Wednesday 3rd June 2020 Lords Chamber

The Question was considered in a Virtual Proceeding via video call.

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

The Royal Commission is an important opportunity to address some of the key issues affecting the criminal justice system. We are addressing the scope, terms of reference and membership of the commission. In doing so, we intend to embrace the lessons we can learn from the present crisis; further announcements will be made in due course.

[Lord Ramsbotham (CB)]

My Lords, I thank the Minister for that response. The prison and probation parts of the criminal justice system are in such a deep crisis—and not only because of the impact of Covid-19. I would have thought it sensible at least to have nominated the chair of the Royal Commission, so that he or she can monitor any lessons learned from attempts at resolution of that crisis.

[Lord Keen of Elie]

My Lords, we are confident that the chair and members of the Royal Commission will be able to take into account the lessons that we can learn from dealing with this crisis in the context of the prosecution of crime, imprisonment and parole.

[Lord Garnier (Con)]

I declare my interests as set out in the register. There is plenty that a royal commission on criminal justice could consider but it is likely to take a long time for any of its recommendations to be implemented by the Government. Our criminal justice system is under dreadful strain and its problems have been aggravated by the Covid-19 crisis. Does my noble and learned friend agree that we need to deal with the growing backlog of criminal trials, improve the state of our court buildings and prisons, and ensure that those lawyers who do publicly funded criminal law cases are paid a decent wage?

[Lord Keen of Elie]

The criminal justice system faces challenges, which is why this royal commission is so important.

[Baroness Butler-Sloss (CB)]

My Lords, will the royal commission membership include judges, barristers and solicitors?

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[Lord Keen of Elie]

The membership of the royal commission has not yet been finally determined but I am confident that there will be appropriate representation of the legal profession, as there has been with previous royal commissions looking at criminal justice.

[Lord Falconer of Thoroton (Lab)]

As previous noble Lords have indicated, there is an immediate crisis in the criminal justice system, made worse by the Covid-19 crisis—demonstrated, for example, by the fact that there were about 37,000 cases waiting for a jury trial when the crisis struck, and approximately seven of those have been dealt with since. What are the Government’s immediate plans to relieve the current huge pressure on the criminal justice system, which obviously cannot wait for the long grass of a royal commission?

[Lord Keen of Elie]

The senior judiciary has been looking at the ability to carry on criminal trials and work in the criminal justice system remotely, and implementing measures to that effect. We hope that these will be developed in the immediate future.

[Lord Dholakia (LD)]

My Lords, I declare my interest as a trustee of the Police Foundation, which has undertaken a strategic review of policing under the chairmanship of Sir Michael Barber. It is expected that a major report dealing with the current and future challenges facing policing will be published in July. Will the Minister advise the royal commission to seek an early meeting with this review body so that the duplication of work can be avoided and an early report on policing produced?

[Lord Keen of Elie]

It is clearly intended that prosecution should be part of the royal commission’s mandate, and clearly the commission, once established, will invite contributions from all interested parties, so I am confident that the police will have ample opportunity to address the commission on the issues referred to.

[Baroness Jones of Moulsecoomb (GP)]

Will the terms of reference include a specific instruction to address the widespread racial and class injustices in our criminal system?

[Lord Keen of Elie]

I cannot at this stage specify the precise terms of reference that will be submitted. Of course, once those terms of reference are accepted and proceeded with, they cannot be altered.

[Baroness Sater (Con)]

My Lords, having sat as a youth magistrate for over 20 years I ask my noble and learned friend whether he agrees that, for the royal commission to be a comprehensive review, it must take into account the developments in the delivery of youth justice—substantially different from that of adults—that have occurred since the last royal commission over a quarter of a century ago.

[Lord Keen of Elie]

Clearly the royal commission will seek to embrace the terms of reference that are finally agreed. As the manifesto indicated, there was the intention to cover the areas of prosecution, trial, sentence and parole.

[Lord Hastings of Scarisbrick (CB)]

My Lords, while I accept the Government’s best intentions to deliver justice, could the Minister inform the House of the precise numbers of prisoners still being held under IPP provisions, and the disproportion of black prisoners that IPP continues to blight despite its removal in law? When will the Government end this appalling scourge of denied justice? Will the royal commission finally resolve it?

[Lord Keen of Elie]

The position with IPP prisoners has been addressed frequently in the past. Of course the legislation in 2012 was not and could not be retrospective. I cannot give a precise number as at today’s date of IPP prisoners held nor of their ethnic backgrounds, but I will write to the noble Lord with up-to-date information and place a copy of that letter in the Library of the House.

[Baroness Mallalieu (Lab)]

I declare a personal interest, having a daughter who is a practising member of the criminal Bar. While the commission is welcome and long overdue, the immediate problem needs to be dealt with today as the criminal justice system is on the point of collapse. What steps do the Government propose to take to increase the number of court sitting days, given that there are empty courts and centres throughout the country that were mothballed to save money; that there are recorders who are ready and willing to sit tomorrow alongside the judges; and, as has been said, that there is a backlog of some 30,000 trials, many of them with people in custody?

[Lord Keen of Elie]

Along with the judiciary, we seek to utilise all the court capacity currently available to us by developing the use of remote hearings. We are also addressing how we can best accommodate jury trials within court accommodation. We will continue to monitor that to see where it can be improved and developed.

[Lord Thomas of Gresford (LD)]

Will the Minister consider recommending to the commission a consideration of the escalating length of sentences, which have probably doubled during my career, and of the impact upon rehabilitation and reoffending?

[Lord Keen of Elie]

The manifesto commitment was that the royal commission would address prosecution, trial, sentence and parole, and I have no doubt that within that it will give consideration to the length of sentences and the need for rehabilitation.

[Lord Kirkhope of Harrogate (Con)]

While I understand that my noble and learned friend cannot talk directly about terms of reference for the commission so far, the original idea was that it would look at the efficiency and effectiveness of the criminal justice process. Does he agree that to be effective in the eyes of the public, it must also be local? The closure of many magistrates’ courts has caused considerable problems in local access to the criminal justice service. Can he ensure that the terms of reference look again at how ordinary members of the public who are involved can get access to the system?

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[Lord Keen of Elie]

I am confident that when addressing these matters the royal commission will have in mind the needs of the public, particularly victims, in the context of access to justice.

[Lord Ashton of Hyde (Con)]

My Lords, the time is almost up for that Question and we have in fact completed the 10 questioners. Just to inform the House, there has not been a coup; the Lord Speaker has had a power cut on the Isle of Wight. That is why, with the leave of the House, I will continue in his place.

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

Lord Keen of Elie Excerpts

Committee stage & Committee: 2nd sitting (Hansard) & Committee: 2nd sitting (Hansard): House of Lords
Wednesday 3rd June 2020 Lords Chamber

Moved by

[Lord Keen of Elie]

17: Clause 4, page 4, line 17, at end insert—
“( ) Her Majesty may by Order in Council provide for section 2 (including Schedule 6) and section 3(2) and (3) to extend, with or without modifications, to the Isle of Man.”Member’s explanatory statement
This amendment inserts a new subsection into Clause 4. This allows Her Majesty by Order in Council to extend Clause 2 (including Schedule 6) and subsections (2) and (3) of Clause 3 to the Isle of Man.

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

My Lords, this government amendment seeks to allow certain provisions of the Bill to be extended to the Isle of Man through what is commonly known as a permissive extent clause. This is a well-established method of enabling UK legislation to be extended to the overseas territories and Crown dependencies.

I should clarify that the amendment was explicitly requested by the Isle of Man Government due to the legislative pressures that Tynwald, the island’s parliament, currently faces. I want to be clear with noble Lords that I am moving the amendment to allow debate and to put on record the request from the Isle of Man Government. I recognise that some noble Lords expressed concerns in the earlier parts of this Committee stage about both the scope and purpose of Clause 2, to which this amendment relates. I will therefore seek to withdraw the amendment once noble Lords have had an opportunity to speak to it.

Returning to the detail of the amendment, this permissive extent clause provides for the addition of a narrow delegated power that, when activated, will allow certain provisions of the Bill to apply in the Isle of Man. The power is exercisable by an Order in Council, which can be made at a time agreed between the UK Government and the Isle of Man Government.

Once made, the Order in Council would extend the Clause 2(1) power to the appropriate authority on the Isle of Man. This would enable the Isle of Man to make its own regulations to implement international agreements on private international law. This power could be used only to implement agreements that the United Kingdom has extended to apply in the Isle of Man, which means that both the United Kingdom and the Isle of Man would be able to operate the agreement between their own jurisdictions and the other contracting parties.

In addition, the amendment would enable the Isle of Man to implement an arrangement to apply the terms of a private international law agreement, subject to necessary modifications, between the Isle of Man and the United Kingdom. Clause 2(3) already provides this power to the United Kingdom. The amendment will enable that power to be extended to the Isle of Man to give it the power to do the same, alleviating the need for it to enact its own primary legislation to implement such an arrangement. Of course, in both cases, the arrangement will be about operating a private international law agreement that the United Kingdom has joined, as anything else would fall outside the scope of the power.

The amendment would not affect the United Kingdom directly. It would require the Queen to approve an Order in Council at a meeting of the Privy Council and would allow the Isle of Man also to make use of this important legislation. Should there be any effect on the UK, it is likely that any agreed arrangement relating to applying private international law agreements between the UK and the Isle of Man could be implemented efficiently both here and in that dependency by mutual agreement.

As I have already stated, this measure is limited to the Isle of Man simply because it issued a formal request for the Bill to include this permissive extent clause. We have engaged with the other Crown dependencies and overseas territories on the Bill; they have not requested that this provision be extended to them. In these circumstances, I beg to move.

[Lord Adonis (Lab)]

I have an obvious question relating to what the noble and learned Lord said. Why does he think that the Isle of Man wants this power but other Crown dependencies do not?

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[Lord Falconer of Thoroton (Lab)]

I am grateful to the Minister for indicating that he is not going to proceed with this amendment today and that he has moved it simply to open it for debate. We oppose the amendment because we oppose in principle Clause 2, which inappropriately gives the Government the power by secondary legislation to introduce important changes to domestic law to reflect private international law agreements. At the moment, if that is the principle that we stand on, in our view it is wrong to say that the Isle of Man, of all the parts of the Crown dependencies, should have a special right to do it by statutory instrument. That, as previous Lords have indicated, would differentiate it from everyone else. We are against it for that reason.

We are also against it because this change would allow for differential application of international agreements as between the various parts of the United Kingdom and, for the reasons we gave the previous time this Committee met, we are against that. So, we oppose the amendment.

[Lord Keen of Elie]

I am obliged to noble Lords for their contribution to the debate, and note what has been said. Perhaps I may respond to the points made by the noble Lords, Lord Adonis and Lord Mann, and touched upon by the noble and learned Lord, Lord Falconer—although I have a correction to make there. The reason why this is being done only in respect of the Isle of Man is that the Isle of Man has specifically requested that this mechanism should be available, so that we can proceed by way of an Order in Council from the Privy Council. It will be for the other Crown dependencies to determine whether and when they wish to implement primary legislation within their own legislatures to come within the ambit of such international agreements as the United Kingdom draws down.

The noble and learned Lord, Lord Falconer of Thoroton, referred to variation between parts of the United Kingdom but of course the Crown dependencies are not part of the United Kingdom. They have a unique status and it is for them to determine whether and to what extent they wish to become a party to legislation that draws down into domestic law international treaty obligations. I continue to believe that this amendment is important and respect the request of the Government of the Isle of Man. However, I recognise the concerns expressed about the links between this amendment and the Clause 2 power to which exception is taken. The noble Lord, Lord Marks, and the noble and learned Lord, Lord Falconer of Thoroton, made that point. In these circumstances I will therefore withdraw the amendment, but I intend to continue this discussion at a later date. For present purposes, I beg leave to withdraw the amendment.

Amendment 17 withdrawn.

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[Lord Marks of Henley-on-Thames]

My Lords, on these Benches we are firmly with the noble and learned Lord, Lord Falconer, in opposing Clause 2 of the Bill, in line with the virtually unanimous view of those who spoke on 13 May and for all the reasons stated on day one in Committee. We will support the noble and learned Lord in opposing Clause 2 on Report. Therefore, it is with some regret that I find myself disagreeing with the noble and learned Lord, Lord Mackay of Clashfern, in particular in respect of the creation of criminal offences. He seemed to be suggesting that such offences would derive from the provisions of the international treaties themselves, rather than the provisions of the delegated legislation and, for that reason, the power in the Bill should be accepted.

However, that is not inevitably so. Under the Bill as it stands, new criminal offences could be introduced by the regulations giving the force of domestic law to private international law conventions and the implementation of those conventions, not by the treaties themselves. I therefore agree with the noble and learned Lord, Lord Thomas of Cwmgiedd, on that issue and the possibility that he raised of new offences being introduced under the regulations.

These two amendments are, of course, alternatives to the removal of Clause 2, as the noble and learned Lord, Lord Falconer, pointed out. Both amendments would plainly be right if we came to the position, contrary to what we believe should happen, that we were stuck with Clause 2. Amendment 19 on criminal offences raises an important principle. I agree with and endorse everything said by my noble friend Lord Thomas of Gresford, as supported by the noble and learned Lords, Lord Thomas of Cwmgiedd and Lord Hope of Craighead, and the noble Lord, Lord Kennedy of Southwark. In this country we have always had a strong and principled objection to making new criminal offences or otherwise changing the criminal law by secondary legislation. The noble Baroness, Lady Jones of Moulsecoomb, expressed that principle forcefully and eloquently. It is an important principle, which I think we should be very firm about upholding.

Amendment 20 is on the super-affirmative procedure. Of course, it would be better than the affirmative procedure and clearly better than any negative procedure —which is not proposed. However, it is a poor alternative to requiring primary legislation to give international treaties the force of domestic law. Paragraph 31.14 of Erskine May says this about the super-affirmative procedure:

“The super-affirmative procedure provides both Houses with opportunities to comment on proposals for secondary legislation and to recommend amendments before orders for affirmative approval are brought forward in their final form. (It should be noted that the power to amend the proposed instrument remains with the Minister: the two Houses and their committees can only recommend changes, not make them.)”


That paragraph is accurate in respect of the super-affirmative procedure proposed by the noble and learned Lord’s Amendment 20. It follows that Parliament would have no right to amend, and that is why super-affirmative is still a poor alternative. It ultimately leaves legislative power with Ministers and not with Parliament.

It is also a fact that success in changing delegated legislation by the super-affirmative procedure comes very rarely—a point made by the noble and learned Lord, Lord Garnier. We perhaps ought to return to that matter in the future. We should perhaps try to formulate a procedure that goes some way to meet the criticism he made—a procedure that permits Parliament to approve an instrument conditionally on its being amended in a way acceptable to both Houses. That might solve some of the problems that we have with delegated legislation. But I agree that that is for another day. Our position is that we support these amendments if we are stuck with having to use them in place of striking out Clause 2.

[Lord Keen of Elie]

My Lords, taken together, the amendments relate broadly to either narrowing the scope of the Clause 2 power or increasing parliamentary scrutiny for use of that power, and I recognise the observations made by a number of noble Lords and noble and learned Lords that this is very much secondary to the opposition expressed to Clause 2 itself. I note the observation of the noble and learned Lord, Lord Falconer of Thoroton, that this is essentially a series of probing amendments.

Before I look at the various amendments, I note that the noble and learned Lord, Lord Falconer, and other noble Lords referred to the role of the Lord Chancellor’s Advisory Committee on Private International Law and the importance of consultation with it, with which I entirely concur. I am now co-chair of that committee, together with the noble and learned Lord, Lord Mance. Its recent meeting was extremely useful. We looked at some technical issues surrounding the application of the Hague conventions of 2005 and 2007 at the end of the transition period. We may hear a little more of that in due course.

Amendment 19 deals with the creation of a criminal offence in the implementation in domestic law of a relevant private international law agreement. The use of the Clause 2 power to create a criminal offence there is very constrained. It is true that private international law agreements do not generally require contracting parties to create criminal offences, and there are no such requirements in the private international agreements that the UK is currently considering joining and implementing under the powers in this Bill. However, it remains a very real possibility that we might negotiate or seek to join a new agreement where a power to create or extend existing criminal penalties will be needed to fully implement the international law obligation. Take an agreement on reciprocal recognition and enforcement of protection measures, for example. In England and Wales, protection measures such as non- molestation orders or injunctions may be made by the courts under the Family Law Act 1996 or the Protection from Harassment Act 1997. Breaches of those orders are punishable by criminal penalties. Any future private international law agreement in this area on reciprocal recognition of such orders, if successfully negotiated, would particularly benefit those who are most vulnerable in our society and reliant on such protection measures, whether they remain within the United Kingdom or travel abroad, where they would wish to retain the protection of such orders.

If we entered into such an agreement, it would seem reasonable and appropriate to exercise the Clause 2 power so that, for example, we could extend criminal penalties for breach of a UK order to also apply to the breach of an order issued by a relevant foreign court. Breach of an order issued by a foreign court would in effect carry the same criminal penalty as that for breach of an equivalent UK order. But that criminal offence-making ability would of course be subject to the limitations within the Clause 2 power itself as currently drafted. Let me be clear: we could not create an offence under this power which would carry a term of imprisonment of more than two years, for example. That is an important safeguard on the exercise of the Clause 2 powers in this area.

Prisoners (Disclosure of Information About Victims) Bill

Lord Keen of Elie Excerpts

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

[Lord Ponsonby of Shulbrede (Lab)]

My Lords, I am winding up for the Opposition on this short but very interesting debate. I want to open by addressing the point made by my noble friend Lord Blunkett. He concluded in his support for this amendment that we are asking the impossible of the Parole Board. Although I recognise his immense experience, I question whether that basic assumption is true, and I take up the point just made by the noble Baroness, Lady Barker, that we entrust the Parole Board with these extremely difficult decisions. All the members of the board who I have ever met are extremely responsible people. My understanding of this amendment is that it would require two medical opinions, after which the Parole Board would make its decision, and it is right that the Parole Board should have that responsibility.

My main objection to the amendment is that by making it inevitable in some way that people will find it impossible to get out of prison, they could be tempted to knowingly give wrong information and to do so as a form of torture, if you like, because they know that it will cause more distress to the parents involved. We should not give them that power. We should retain the responsibility and the subjective judgment of the Parole Board in making these difficult decisions.

I also listened to the noble and learned Lord, Lord Garnier, and the response to his points by the noble and learned Lord, Lord Mackay. They are both extremely experienced lawyers. I must admit that I was initially attracted to the solution proposed by the noble and learned Lord, Lord Garnier, but I listened with interest to the objections of the noble and learned Lord, Lord Mackay, and his method of solving the conundrum before us.

This amendment is not appropriate for the Bill, and I think we should pass the Bill as amended. While I acknowledge the point made by my noble friend Lord Adonis questioning whether the Bill is necessary, I think it is right that the practice of the Parole Board is put into statute, otherwise there may be other legal mechanisms of challenging the Parole Board’s decisions if it is adopting this practice but is not supported by proper legislation being in place. On that basis I would reject this amendment. We will consider the other amendments in due course, but largely speaking the Bill should pass unamended.

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

I thank noble Lords and noble and learned Lords for their contributions to the debate in Committee —[Inaudible.]

[The Deputy Chairman of Committees (Lord Faulkner of Worcester)]

Could the noble and learned Lord, Lord Keen, please lean a little closer to the microphone?

[Lord Keen of Elie]

Yes, of course, although I do not think I could get much closer. Can you hear me?

[The Deputy Chairman of Committees]

That is better.

[Lord Keen of Elie]

Despite Amendments 1 and 3 having—[Inaudible.]

[The Deputy Chairman of Committees]

Sorry, we are still not hearing you.

[Lord Keen of Elie]

I am not sure what I can do about that. Can you hear me now?

[The Deputy Chairman of Committees]

That is better, yes.

--- Later in debate ---

[Lord Keen of Elie]

I believe the host has stopped the video. I will continue, if I may. Amendment 1, as indicated, would require certification by two—[Inaudible] —the application of the release provisions to the prisoner. Of course if the result of the assessment is that the prisoner is found to be suffering from irreversible memory loss, the Bill’s provisions would not apply to that prisoner. The amendment creates a requirement for medical certification in all cases where the board considered the provisions might apply before such provisions—[Inaudible]—as part of the release assessment. That of course contrasts with the Bill’s current approach, which is to allow the Parole Board as an independent—[Inaudible]—prisoner has not disclosed. So the amendment alters the subjective test that requires the board to— [Inaudible]—which they had not disclosed to, I think I quote, “reasonably suspect” that the prisoner has such information. Again, the replacement of “believe” with “reasonably suspect” would lower the threshold—[Inaudible.]

[The Deputy Chairman of Committees]

I am so sorry to the noble and learned Lord, Lord Keen, and I apologise to all noble Lords. We have to adjourn for 10 minutes while we try to sort out this technical problem. We will resume shortly after 3.25 pm.

--- Later in debate ---

[The Deputy Chairman of Committees]

My Lords, we will now resume the Committee stage of the Prisoners (Disclosure of Information About Victims) Bill, and I hope that we will hear from the noble and learned Lord, Lord Keen of Elie. Perhaps I may suggest that he starts his remarks from the top.

[Lord Keen of Elie]

I thank the Deputy Chairman of Committees and apologise to noble Lords for any inconvenience that has been caused. It is not clear what the problem was. [Inaudible.]

I was turning to look at Amendments 1 and 3, which, despite having separate effects on the Bill’s provisions, when taken together have the cumulative effect of preventing the Parole Board considering the release of any prisoner who has failed to disclose the relevant information, unless they have been certified as suffering from “irreversible memory loss”. [Inaudible.]

[The Deputy Chairman of Committees]

I apologise to the Minister but we cannot hear him properly. We will adjourn for five minutes in the hope that he will be able to dial in to speak in the debate. The Committee is adjourned until 3.34 pm.

--- Later in debate ---

[Lord Keen of Elie]

I thank noble Lords for their patience. I now turn to consider Amendments 1 and 3, tabled by my noble friend Lord Blencathra. Although they have separate effects on the Bill’s provisions, when taken together, the two amendments have the cumulative effect of preventing the Parole Board considering the release of any prisoner who has failed to disclose the relevant information, unless they have been certified as suffering from “irreversible memory loss”.

Amendment 1 creates a requirement for medical certification in all cases in which the board considers that the provisions might apply to a prisoner, before such provisions would apply as part of the release assessment. This contrasts with the Bill’s current approach which is to allow the Parole Board, as an independent expert body, to form its own belief as to whether a prisoner has the necessary information regarding a victim’s remains, which that prisoner has not disclosed.

In addition, the amendment alters the subjective test that requires the board to believe that a prisoner has information regarding a victim’s remains which they have not disclosed to a test that it “reasonably suspects” that the prisoner has such information. That would lower the threshold of the evidential standard required by the board to satisfy itself.

Of course, mental impairment, including irreversible memory loss, may well be a reason for such non-disclosure, and I fully expect the Parole Board to consider these issues after consultation with medical and other experts, as it does now. In these circumstances, I see no need for a prior medical assessment to take place, which may be unnecessary and which would unjustifiably fetter the board’s subsequent handling of such cases.

Furthermore, the reference to reasonableness here is, I suggest, unnecessary. As a public authority, the board is already obliged to act reasonably, and to prescribe this in the Bill may undermine these existing general law principles. I do not consider that to be the appropriate approach in this instance.

Turning briefly to Amendment 3, which would deny release to any prisoner who failed to disclose the information under consideration in this Bill, unless they were suffering from irretrievable memory loss, as set out in the preceding amendment, it raises very real difficulties. Parole Board consideration of the case would cease until the prisoner disclosed the relevant information or the medical evidence changed. Precluding release on such grounds may very well give rise to a challenge under Article 5 of the European Convention on Human Rights, as once a prisoner has served their minimum tariff, and is found no longer to pose a risk to the public, continuing detention would be regarded as arbitrary for the purposes of Article 5. I will come back to elaborate upon that in a moment.

In addition, as was touched upon by my noble and learned friend Lord Mackay of Clashfern, a failure to disclose relevant information may not be solely due to memory loss but, alternatively, may be due to mental impairment or mental ill-health, or could be a consequence of genuine changes, for example in geography, which meant the location of a body could no longer be identified. Furthermore, creating a blanket ban on release may even create an incentive for offenders to lie about the location of a body. In these circumstances, I encourage noble Lords to consider very carefully what the Bill currently enables the Board to do, which is to investigate these issues and to come to a subjective view in this context.

I will now touch upon a number of points raised. The noble Lord, Lord Blunkett, alluded to the question of the Home Secretary’s former power to block release. I just note that the Lord Chancellor and Justice Secretary does have the power now to review a decision of the Parole Board, and has exercised that power.

With regards to the points raised by the noble Lord, Lord Adonis, in the context of the sentences that we are looking at—that is, life sentences and certain extended sentences—there are two elements to the sentence: the punitive element and the preventive element. The punitive element is essentially the tariff which is set by the court at the time of sentencing, or the minimum period within the life sentence that the accused or convicted person is going to have to spend in custody. That will have regard to a number of factors including, for example, the non-disclosure of the whereabouts of a victim.

The preventive element is addressed by the Parole Board, and not by the court. As my noble and learned friend Lord Mackay of Clashfern observed, the test there is whether it is no longer necessary for the protection of the public that the prisoner should be detained. An element for consideration at that point is whether a failure to disclose the whereabouts of a victim or victims would indicate a continuing threat to the public in that context. To have an absolute bar on the prisoner being released, on the grounds of non-disclosure, would not fit with the appropriate test which has to be applied by the Parole Board at the preventive stage. I reiterate that this would take us into territory where the whole process could potentially be challenged under Article 5 of the convention. It would be extremely unwise for us to legislate on such an issue in circumstances where we left that legislation open to future challenge from the court. That is hardly going to bring any comfort to the families of victims and others.

In these circumstances, I do not consider that it would be appropriate to go down the road suggested by my noble friend Lord Blencathra. I would add only that I concur with the observations made by my noble and learned friend Lord Mackay on the matter of a further criminal offence of non-disclosure. As I indicated before, there is a common law offence of not disclosing the whereabouts of a body, but even if one was to be convicted of that, in the context of a life sentence having already been imposed, there would be another concurrent sentence and that could only lead to a degree of confusion. That is putting aside for the moment the very real difficulty that was identified by my noble and learned friend Lord Mackay of two juries coming to quite different conclusions on the evidence in related trials.

In all of these circumstances, I would invite my noble friend to withdraw the amendment.

[The Deputy Chairman of Committees]

I have had notification that the noble Lord, Lord Adonis, wishes to speak after the Minister.

--- Later in debate ---

[Lord Ponsonby of Shulbrede]

My Lords, as the noble Lord, Lord German, has just said, there are essentially two groups within this single group of amendments. The first was introduced by the noble Baroness, Lady Bull, on mental capacity and making sure that the Mental Capacity Act 2005 is properly taken into account in the Parole Board proceedings. I was persuaded by the argument of the noble Lord, Lord Thomas of Gresford, that while we should not do piecemeal reforms of the Parole Board system—I anticipate that the Minister will say there will be a larger-scale review of the Parole Board system—this aspect of the mental capacity of the offenders who come before the board should nevertheless be taken into account.

The noble Baroness, Lady Bull, was very persuasive in her speech. She alluded to my noble friend Lord Bradley’s report, in which he pointed out that it is unknown how many people in our prisons have mental disorders. As the noble Baroness, Lady Bull, said, it should be no surprise that quite a lot of prisoners’ mental capacity deteriorates because of their time in prison, for the reasons she gave in her speech. The other point she made was about dementia. We are often dealing with people on very long prison sentences, and dementia is becoming an ever more real issue. For those reasons, I support the amendments in the name of the noble Baroness, Lady Bull.

The amendments in the second part of this group were introduced by the noble Lord, Lord Thomas of Gresford, who spoke about Newton hearings as a possible way of resolving this conundrum. I have some experience of Newton hearings in a much lower capacity in magistrates’ courts. I regularly have Newton hearings, trying to resolve whatever the issue of the day is. My experience is that, in practice, it is quite difficult to narrow the issues and look just at the issue in dispute in a Newton hearing. It is very often the case that the wider events surrounding the events as a whole are brought into the case, even when one is trying to narrow the issue.

While I understand the suggestion and think it interesting, I am also mindful of the points made by the noble and learned Lords, Lord Mackay of Clashfern and Lord Thomas, that the sentencing judge will have heard the whole case in any event and can explain their view on the reason the offender has not disclosed the location of the body and make it quite explicit whether there is an uplift to the tariff because of the way the offender has behaved. I am open-minded on that point; I have just raised some questions that arise from my own experience in the lower courts.

Nevertheless, these amendments are interesting and constructive. I hope that, when he comes to reply, the Minister will treat them in that way.

[Lord Keen of Elie]

I thank noble Lords and noble and learned Lords for their contribution to the debate prompted by these amendments. I begin with a number of general remarks which may well be familiar to noble and learned Lords, but perhaps not to everyone.

I believe there was a reference at one stage of the proceedings to early release, and I emphasise that we are not dealing here with any issue of early release. As I mentioned in response to observations from the noble Lord, Lord Adonis, we are generally dealing with a life sentence or extended sentence, and when we come to look at that, we can identify two elements—in what I shall refer to as a life sentence. There is the punitive element, which is the tariff fixed by the court, and a preventive element, which is the issue addressed by the Parole Board in the context of public protection. The Parole Board’s role comes into play only at the end of the tariff—the punitive element of the sentence—at which point the Parole Board has to determine whether there should be a continuation of custody or a release under licence, having regard to the public protection test.

The noble and learned Lord, Lord Thomas, was quite right in observing that in most, if not all, of these cases, the judge will have made findings in fact that will address, among other things, whether there has been disclosure of a victim’s whereabouts. If that becomes an issue, there is scope for what is termed a Newton hearing. But generally, the trial judge—whether after plea or after trial—will be in a position to make findings in fact on that issue, and to then reflect those findings in fact in the tariff he imposes upon the individual in question when applying the punitive element of the sentence. I emphasise that because the noble and learned Lord, Lord Thomas, made the point that there should not be punishment again. That is quite right: it is not the role of the Parole Board to punish. The role of the Parole Board is to determine, by reference to the public protection test, whether at the expiry of the tariff it is appropriate for an individual to be released from custody, albeit under licence.

That takes me to an observation of the noble and learned Lord, Lord Hope, who asked whether the object of this legislation is to delay release as a punishment. The answer is clearly no. The issue being addressed is in the context of public protection, and whether the failure to disclose indicates to the Parole Board that there is a very real and material question about public protection, and whether someone should be retained in custody. Indeed, if the object of this legislation was to punish, it would potentially be in breach of both Article 5 and Article 7 of the European convention. I stress that this is not the object of this legislation at all.

I turn specifically to the amendments tabled—first, to those in the name of the noble Baroness, Lady Bull, which really have two limbs. The first is covered by Amendments 2, 7, 10, 13 and 16, and the second by Amendment 4 and subsequent amendments. The first limb would ensure that the Bill’s provisions apply only to prisoners who are “able” to disclose relevant information about the location of a victim’s remains but had not done so. The second limb would particularise a prisoner’s mental capacity as one of the possible reasons for non-disclosure.

The Bill in its current form affords the Parole Board a wide scope to subjectively consider the circumstances of a prisoner’s non-disclosure. The test is broadly drafted to give the Parole Board, an independent judicial body with experience of assessing risk and evidence, sufficient flexibility to take all circumstances into account when making a determination about non-disclosure, including the ability, whether mental or physical, of an offender to disclose.

The amendments as drafted would confine the operation of the provisions to prisoners deemed able to make such a disclosure but who had not done so. However, there may be cases where an offender has had ample opportunity to co-operate with the police or the authorities over many years to reveal a victim’s whereabouts but has refused to do so. If such an offender later became unable to disclose—by reason of age or mental illness, for example—the provision of these amendments would not apply to that offender and the board would be unable to consider a previous refusal to co-operate in its assessment of that prisoner’s risk, yet these previous persistent refusals may well be considered as reflecting quite materially on the risk that the prisoner posed to the public in the event of release on licence.

The current Bill avoids such difficulties by allowing the Parole Board to consider all possible reasons in its view to explain non-disclosure, including considering historical refusals. That flexible approach is underlined by Clause 1(3), which makes clear that the imposition of the statutory duty does not in any way limit other matters that the board must or may take into account when conducting such an assessment.

The existence of mental health difficulties or a lack of mental health capacity would doubtless be a relevant circumstance to be taken into account, but there would also be other relevant circumstances. By not specifically referring to particulars in the Bill, we are not giving some more significance than others; we are instead allowing the Parole Board to use its expertise in how it approaches such cases. It is therefore for the board itself to take a subjective view of what the reasons might be, and then it is for the board to decide what bearing that information may have on the subsequent assessment of suitability for release, which is the relevant test that the Parole Board has to address.

We have deliberately avoided any delineation in the Bill of what the reasons for non-disclosure may be, to preserve this flexible and subjective approach. Noble Lords have correctly identified that a prisoner’s mental state is likely to be a significant factor in assessing reasons for non-disclosure but there may also be other reasons, such as, as I mentioned, geographical change, mental impairment or issues of mental capacity that may not have occurred at an earlier point but will still be relevant to a current assessment. In these circumstances, I will be inviting the noble Baroness to withdraw this amendment.

I move on to the amendments tabled by the noble Lord, Lord Thomas of Gresford, which specify that where a Newton hearing has been carried out to ascertain certain disputed facts—generally where there has been a guilty plea, but it may take place after a trial—that should be considered by the Parole Board. The short point that I would make is that these are matters that it will be within the competence of the Parole Board to consider, and the board can call for all material pertaining to sentencing, including the terms of any Newton hearing that may have taken place. I apprehend that what the noble Lord may have in mind is perhaps to encourage judicial activity when sentencing in these cases to ensure that they address the non-disclosure of the whereabouts of a victim. However, as the noble Lord, Lord Thomas, observed, that is something that will invariably be taken into account by a trial judge in fixing a tariff for the sentence that he is going to impose.

--- Later in debate ---

[Lord Thomas of Gresford]

My Lords, I am very grateful to the Minister for his reply, but I think it is necessary to distinguish where there has been a plea of guilty and where there has been a plea of not guilty in a trial. Very often, when a person pleads guilty, he will, with the assistance of his legal team, put together a basis of plea, which is handed to the prosecution for consideration. If it accepts the basis of plea, there is no problem but, if there is an issue, a Newton hearing will be held to determine whether the prosecution which refuses to accept the basis of plea is correct or whether the defendant who is pleading guilty is correct. The judge will sentence accordingly.

That is one situation. Another is after a trial, when there has been a finding of guilt. Let us take a circumstance where a group of people have attacked an individual and one of the group says, “I didn’t take part”—indeed, I remember a case where precisely that happened; the defence was, “I was trying to discourage them so they’d go away”—but, at the end of the trial, the defendant is found guilty. At that point, the judge says, “I will sentence you on the basis that you are withholding information as to where the body was buried.” The defendant could then say, “I’ve been found guilty, but the others took the body away and I want to be heard on that, because I don’t know where they went and where the body was ultimately buried. You cannot sentence me on the basis of the facts the jury has found—that I was a party to a killing—when I don’t know where the body went.” That situation does not involve mental incapacity at all and such a situation should be investigated at the time and not 15 or 20 years later by the Parole Board doing its best, unassisted by medical evidence because it would not arise. It seems to me that issues of that nature should be determined prior to sentencing for the actual offence, whether there is a plea of guilty or a finding of guilt. That should involve a hearing of the sort that I have proposed.

Obviously, my amendment does not require the Parole Board to order a hearing. As the Minister anticipated, my purpose is to encourage the holding of Newton hearings where necessary. I do not believe that they are quite as rare or unusual as he suggests. In this particular instance, with proper directions being given generally to judges to hold Newton hearings where appropriate, they would be useful and helpful to the board’s ultimate determination. They would be of great significance concerning culpability.

[Lord Keen of Elie]

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

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

[Lord Hope of Craighead]

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

“believes that the prisoner has information”—

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

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

[Lord Keen of Elie]

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

[Baroness Bull]

My Lords, I am grateful to the noble and learned Lord, Lord Keen of Elie, for his comments and I have listened carefully to his response. I also express my gratitude to all noble and noble and learned Lords who have spoken in support of my amendments. Aside from generously sharing his considerable expertise with me in advance of today’s debate, the noble and learned Lord, Lord Hope of Craighead, helpfully extended my arguments to include the possibility that the convicted prisoner is not in fact able to disclose the information because, despite the findings of the court at trial, they are innocent. One hopes that this is rarely the case, but of course history shows that it can indeed be so.

I am also grateful to the noble Baroness, Lady Barker, who sounded a useful warning about the general understanding of the Mental Capacity Act and concerns about the extent to which it is drawn on and applied within the prison environment. She raised an important question about training for practitioners in the criminal justice system, including members of the Parole Board, in applying the provisions of the Act. The Minister responded to a point about competence, but I am not sure that he responded to the point about training more broadly to enhance understanding of the Act within the criminal justice system. Perhaps he would write to us on that point.

The noble Baroness, Lady Watkins, spoke from her position of vast experience, including in Broadmoor, and reminded us that medical personnel are usually well able to distinguish between genuine mental disorders and what was referred to earlier as “guff”. Her views of course bear considerable weight here.

I am grateful to the Minister for addressing the two limbs of my amendments in so much detail. Like the noble and learned Lord, Lord Hope, I was confused by his point about previous refusals not being taken into account. I am grateful to him for agreeing to reflect further on that, in response to the noble and learned Lord’s further comments. He argued that state of mind and/or mental capacity are just one of several reasons why disclosure might not be possible. However, given what we have heard today from the noble Baroness, Lady Barker, about understanding the Mental Capacity Act as it is applied within the criminal justice system, and the potential for the infringement of human rights, I contend that there is justification for expressly including this reason in the Bill.

The noble Lord, Lord Kennedy of Southwark, set out very clearly the difficult balance between the rights of a grieving family, who have been by extension the victims of a heinous act, and the rights of a prisoner, convicted of that crime but who suffers a mental health disorder or who, for whatever reason, lacks the mental capacity at the time of the Parole Board hearing to disclose the information requested of him. I know that every noble Lord who has spoken today is acutely aware of this tension and of the importance of this Bill, not just in putting the needs of victims at the centre of the justice system and helping grieving families to achieve closure but as part of a wider and necessary process to increase the efficiency, transparency and accountability of the parole system.

My amendments do not seek to alter the intention of the Bill in any way. As the noble Lord, Lord German, pointed out, neither of the amendments takes away the subjective capacity of parole boards. They simply seek to add clarity through the insertion of the words “is able to, but”, and an explicit reference to consideration of mental capacity. I continue to believe that these simple amendments would support the Parole Board in the fulfilment of the new statutory duty that the Bill places on it by enshrining in law what government has already accepted: that parole boards need to take state of mind and mental capacity into account. This would empower them to do so with confidence and consistency.

I am very grateful to the noble and learned Lord for considering the amendments. I am disappointed that he has not been persuaded by my arguments and those of other noble, and noble and learned, Lords. However, for the time being, I beg leave to withdraw the amendment.

--- Later in debate ---

[Lord Keen of Elie]

My Lords, I thank noble Lords for their contributions to the debate on the amendment, and I thank the noble Baroness, Lady Barker, for her submissions on it. In the context of the Bill, we are dealing with particularly disturbing forms of crime and particularly disturbing consequences. However, we must have regard to all victims of crime, not just of these crimes, in determining the appropriate step to take in order properly to take account of their views, interests and concerns.

Processes are already in place, by virtue of the Parole Board rules, the victims’ code and the Domestic Violence, Crime and Victims Act 2004, that address the issues referred to in the amendment. Both the National Probation Service and the Parole Board communicate information to victims, and where a family member is affected by an offender’s action, they too, of course, will be victims and will be contacted. Where a victim wishes to receive information, this will be provided by their victim liaison officer. Victims can receive information regarding the date of a parole hearing and the outcome of a review. Indeed, they may request a summary of a Parole Board decision and can also provide a victim personal statement to the Parole Board to explain the impact of the crime upon them. They have the right to request that certain tailored licence conditions be applied.

Victims are also informed of the avenues for making a request for reconsideration of a decision. Such reconsideration will be carried out by the Secretary of State. Following a request for reconsideration, they will receive reasons why their request was or was not successful. Thereafter, a victim liaison officer will provide information regarding judicial review, if that is requested.

In recent times—I note the reference to the Worboys case—the National Probation Service has improved the way in which it communicates with victims, such as using email or telephone as opposed to letters, while being mindful of the victim’s preferred method of contact. We have also tightened processes to ensure that victims are informed of developments, such as being notified of the date of oral hearings, in a timely manner. We have expanded the criteria for victims who are eligible for contact under the National Probation Service Victim Contact Scheme. We are trialling a new process whereby all eligible victims are referred directly to probation to reduce the risk that they are not offered use of the victim contact scheme directly. Therefore, we have taken steps to improve the system. However, the Parole Board is an independent body and it requires a degree of flexibility in how it operates. To impose these statutory obligations on the Parole Board, and the Parole Board alone, would, I suggest, be going too far.

I hear what is said about the idea of an opt-out rather than an opt-in scheme for victims and what is said about the need to improve the involvement of victims, particularly those in the present category. I will be happy to discuss that at a meeting, as suggested by the noble Baroness, Lady Kennedy, before the next stage of the Bill. However, I also note that there is a proposal for a review of the Parole Board. I cannot give a precise date for that review but, again, I will be happy to take that up in discussions with the noble Baroness, Lady Kennedy. At this stage, however, I invite the noble Baroness, Lady Barker, to withdraw the amendment.

[The Deputy Chairman of Committees]

My Lords, no noble Lords have indicated a wish to speak after the Minister, so I now call the noble Baroness, Lady Barker.

Prisons: Overcrowding

Lord Keen of Elie Excerpts

Thursday 14th May 2020 Lords Chamber

The Question was considered in a Virtual Proceeding via video call.

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

My Lords, the prison estate is kept under review to ensure sufficient capacity. We have committed to invest up to £2.5 billion to create 10,000 additional prison places. We have recently opened 2,106 prison places at HM Prison Berwyn, and 206 at HM Prison Stocken. We are constructing new prisons at the former HM Prison Wellingborough and HM Prison Glen Parva sites.

[Baroness Humphreys (LD)]

At the end of March, Welsh prisons held 6% of the England and Wales prison population. However, according to MoJ figures on 24 April, they had 25% of confirmed Covid-19 cases across the estate. I understand that this figure is the result of a minor reporting error and has been removed from the MoJ website, but we need clarity on what is happening in Welsh prisons. Will the noble and learned Lord outline now, or in a further letter to me, the joint strategy of the MoJ and the Welsh Government with regard to prisons in Wales?

[Lord Keen of Elie]

The noble Baroness is right that some data has been removed to be reviewed by NHS Wales. As regards the prisons and cells, we are following a strategy in all prisons in England and Wales which involves ensuring that we have separate isolation for any prisoners displaying Covid symptoms, separate isolation for those in a shielding unit—that is, for prisoners identified by healthcare staff as particularly vulnerable should they come into contact with the virus—and what is termed a reverse cohorting unit, to ensure that those coming into the prison population are isolated for 14 days to give an opportunity for any symptoms to develop. As regards the statistics for prisons as between England and Wales and Wales itself, as of Tuesday 12 May, 401 prisoners had tested positive for Covid-19 across 74 prisons, and 501 prison staff had tested positive across 70 prisons. Of those, as at 11 May, 81 prisoners had tested positive in Welsh prisons and 61 prison staff had tested positive in Welsh prisons.

[The Lord Bishop of Gloucester]

My Lords, the World Health Organization has been clear that testing will be a key part of tackling coronavirus. We just heard some of those stats, but could the Government please give us the number of prisoners who have been tested to date, and give an assurance that testing will always be in place before moving people between prisons?

[Lord Keen of Elie]

My Lords, Gold Command has taken control of the movement of prisoners, which is extremely limited between prisons. Where it happens, that cohort is dealt with in the same way as new prisoners, so they are isolated for a period to see whether they become symptomatic. On testing, prison officers and attendant staff are key workers in the present circumstances. We have referred something like 3,000 prison officers and staff for testing. For prisoners, some who have become symptomatic may be subject to testing in prison, but otherwise there is no testing.

[Lord Davies of Gower (Con)]

My Lords, Swansea prison houses twice the number of prisoners it was designed for in the mid-19th century. A Welsh Affairs Select Committee inquiry into prison provision last year heard evidence that between 2013 and 2018 there was a 475% increase in the number of drug crimes in Welsh prisons compared with a 200% increase in English prisons. One of the key challenges faced was violent behaviour caused by the drug Spice, which is exacerbated by overcrowding. Evidence was heard about the intention of the then Prisons Minister to introduce scanners in some prisons by August, which are expected to be running in all Welsh prisons by December 2019. Can my noble and learned friend confirm that these have now been installed and are operational in all Welsh prisons?

[Lord Keen of Elie]

My Lords, my noble friend makes a very good point as regards Swansea prison. It is one of our Victorian prisons and, as such, has a large number of cells that are certified to hold two prisoners, and indeed some which are certified to hold three. As of 1 May this year, the operational capacity of HMP Swansea was reduced from 479 to 396, with a prison population of about 379. Nevertheless, that can still be regarded as crowded accommodation because of the number of cells that are certified to hold two prisoners. We recognise that this is a challenge not only in Swansea but in many other local prisons from the Victorian era. On drug testing, I cannot confirm that such equipment has been rolled out in all prisons in England and Wales, but I will take steps to confirm the position and will advise my noble friend.

[Lord Ramsbotham (CB)]

My Lords, to ease over- crowding, the Government have said that they would release some prisoners early. Can the Minister tell the House how many have actually been released?

[Lord Keen of Elie]

First, we have made provision to ensure that we did not come up to capacity in our prisons, but we did not commit to releasing a set number of prisoners. In the event, given developments in jury trials in Crown Courts and magistrates’ courts, since mid-March we have seen a significant fall in the number of prisoners. As regards the emergency release provisions that were announced and to which the noble Lord referred, the position as at 12 May this year is that 21 pregnant women or mothers have been removed from mother and baby units, five extremely vulnerable prisoners have been released, and 57 prisoners have been released under the end of custody temporary release scheme, giving a total of 83 releases under the scheme.

[Lord Judd (Lab)]

Can the Minister confirm that the central plank of government penal policy is rehabilitation because it makes economic sense, while the cost of not successfully rehabilitating becomes very heavy to society? In that context, will he explain how keeping prisoners in humiliating and degrading conditions can possibly assist in the process of rehabilitation? Is getting these things right not urgent if we are sincere about saving the nation money by not having a high rate of reoffending?

[Lord Keen of Elie]

The noble Lord is quite right: rehabilitation is one of the central pillars of our policy with regard to prisons. That has been made extremely difficult by reason of the Covid pandemic. It has been necessary to limit the movement of prisoners within prisons in order to contain the Covid threat. It has been necessary to curtail rehabilitation schemes and education schemes. That is extremely unfortunate, but we hope that, as soon we are beyond the Covid issue, we will be able to return to the schemes we have in place for rehabilitation.

[Lord German (LD)]

My Lords, given the continued spread of coronavirus among prison staff and prisoners, the lock-in of prisoners for months ahead preventing training for rehabilitation, the number of prisons which, like Wrexham, are designed for two to a cell, and the increase of prisoners held on remand while jury trials are stopped, can the Minister explain why the Government’s early release scheme has ground to a trickle of just 57 out of the 4,000 announced by the Secretary of State in the other place, as overcrowding is seeding this pandemic?

[Lord Keen of Elie]

As I indicated, in all our prisons we have introduced a cohorting strategy that ensures separation and isolation between prisoners displaying Covid-19 symptoms and other prisoners; a shielding unit for those who are vulnerable to contact with the virus; and a reverse cohorting unit to ensure that new prisoners are isolated for a suitable period until they are found not to be exhibiting symptoms. That continues. With regard to the number of cases within prisons, I think I indicated before that the present position as of 12 May is that we have 401 prisoners who have tested positive for Covid-19 across 74 prisons, and 501 prison staff who have tested positive across 70 prisons. The noble Lord will notice that there is a greater number of prison staff than prisoners who have tested positive. We continue to maintain a system of social separation and hand washing and, where necessary, PPE is available to staff.

[The Lord Speaker (Lord Fowler)]

I call the noble and learned Lord, Lord Mackay of Clashfern. No? I regret that we did not get through many supplementaries on that Question, but the time has now elapsed and we will move on to the fourth Oral Question.

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

Lord Keen of Elie Excerpts

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

Before closing, I would ask the Minister to indicate to us where we are on our application to join Lugano, where we are on securing the necessary consent of the European Union to our joining Lugano, and where we are on European Union states joining Lugano. These can be added to the questions raised by the noble Baroness, Lady McIntosh, because it seems to me that it would be very difficult indeed to agree to this amendment without going down the route advocated by the noble and learned Lord, Lord Falconer, and removing Clause 2 altogether, until we have clear answers to these questions from the Minister justifying the urgency as well as justification to support the decision taken in principle to join Lugano.

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

My Lords, I thank all noble Lords for their contributions to the debate. I shall of course speak to each of the amendments, Amendments 1, 4 and 5. When taken together, as the noble and learned Lord, Lord Falconer, observed, they have the effect of restricting the power to implement international private law agreements contained in Clause 2 in the 2007 Lugano Convention. But they not only limit the power of the United Kingdom to implement private international law agreements in this way, they also restrict our ability to mirror any such arrangements as between the United Kingdom’s different legal jurisdictions, and indeed as between the United Kingdom and the Crown dependencies and overseas territories.

Of course we accept, as we have previously, that the most pressing need for the power is in relation to the Lugano convention itself. Our application to rejoin the convention as an independent contracting party was made on 8 April—

[The Deputy Chairman of Committees (Baroness McIntosh of Hudnall) (Lab)]

We appear to have lost the noble and learned Lord the Minister. Is he still with us?

[Lord Keen of Elie]

I think that I am coming back. I apologise, but something happened on the computer.

We have made the application and it is hoped that, subject to agreement, we will be able to rejoin the Lugano convention from the end of the transition period.

I will pause to notice some of the observations made by my noble friend Lady McIntosh of Pickering and the noble Lord, Lord Marks, with reference to Brussels Ia and IIa restated. My noble friend asked in a number of ways what steps we are taking with regard to what she termed the Brussels convention and what progress is being made on that matter. I think we have to remind ourselves that Brussels Ia and IIa do not form an international convention; they are internal instruments of the EU to which you may be a party only if you are a member of the EU. We of course have the transition period during which we enjoy the benefits of Brussels Ia and IIa until the end of the year, but there is no basis on which we can be members of Brussels, as was suggested, after the end of the transition period. That is why we are concerned to apply for membership of Lugano.

With regard to a number of the observations made by the noble and learned Lord, Lord Mance, of course I readily acknowledge that Lugano is not as well developed in a number of respects as the Brussels Ia and IIa restated provisions. We are well aware of that. We would hope to advance Lugano once we are a member, but we have to acknowledge that it is not on a par with Brussels Ia and IIa.

However, Lugano is not the only potential use of the power in Clause 2. For instance, Amendment 1 would prevent us joining two other private international law agreements on which the Government are currently considering their position. They are the Singapore convention on mediation and the Hague judgments convention of 2019. I will return to the latter in a moment because it has been mentioned before.

With regard to the Singapore convention, I have shared with noble Lords a copy of an exemplar statutory instrument to demonstrate the sorts of agreements that we may wish to implement under the Clause 2 power. While the final decision on joining that convention is still to be taken, I invite noble Lords to look at that exemplar statutory instrument when considering the ways this power might be used. The instrument contains what are, essentially, technical implementing regulations for a treaty agreed at the level of international law. The choice for this House and the other place at the point of implementation is about not the specific provisions of an agreement, but whether to approve the United Kingdom’s implementation of the whole agreement in domestic law.

Beyond those two examples of private international law agreements which already exist, and which the UK is considering joining, we are actively engaged in work through the Hague conference to develop rules on jurisdiction in international civil and commercial cases. The global arena of private international law is constantly developing. We have been active in it in the past, and hope and intend to take a leading role in the future.

Restricting the scope of the Clause 2 power in the way envisaged by this amendment would, I suggest, prevent the United Kingdom implementing any future agreements in a timely manner. That would in turn delay the benefit of those agreements to citizens and businesses. I regard that as an unsatisfactory position, given that in many cases there is considerable advantage to be gained from such international co-operation in the area of private international law. It would also mean that primary legislation will be needed to insert into a schedule to the Civil Jurisdiction and Judgments Act 1982 the text of the United Kingdom’s declarations and reservations in relation to the 2005 Hague Convention and the 2007 Hague Convention, in the absence of which the terms of the United Kingdom’s accession to those agreements will be far less accessible to users.

I also point out that it will mean that the definition of “relevant international agreement”, as used in subsections (2) and (3), and presently defined in subsection (7) by cross-reference back to subsection (1), will be unclear. That term is also used in Schedule 6 and defined by cross-reference back to Clause 2. In addition, the way that Amendment 1 has been drafted would not in practice allow us to make implementing regulations in advance of becoming a contracting party but only after joining. In that respect, I venture that it is defectively drafted because, essentially, one has to take these things in a particular order.

I turn to Amendment 4. As drafted, Clause 2(2) allows the terms of an international agreement, subject to suitable modifications, to be applied between United Kingdom jurisdictions: for example, between England and Scotland. Amendment 4 seeks to restrict this power to allow for only the Lugano convention to be applied in this way. International agreements on private international law would not ordinarily apply between the United Kingdom’s three jurisdictions because such agreements apply only between contracting parties and it is the United Kingdom Government, not their separate jurisdictions, who join international agreements. Although the relationship between the different parts of the union are perhaps far deeper than they are between foreign jurisdictions and ourselves, it often means that the rules between different UK jurisdictions need to be detailed and bespoke. Applying the same rules between United Kingdom jurisdictions that we apply with foreign jurisdictions will, not invariably but very often, be desirable. For example, it could reduce the number of sets of rules that courts need to apply in cases raising cross-border issues, making them more efficient and easier for courts, lawyers and litigants to understand. It would also mean that intra-UK private international law rules are at least as effective and up to date as the rules applied between the United Kingdom and foreign jurisdictions. Clause 2(2) allows for such keeping pace but would be exercised only if the relevant jurisdictions agree that it is beneficial to do so.

These sorts of arrangements are not without precedent. All three UK jurisdictions already apply rules that mirror the EU Brussels 1A regulation on jurisdiction for cross-border cases and much of the EU maintenance regulation as between themselves. The fact that, thanks to Schedule 4 to the Civil Jurisdiction and Judgments Act 1982, a modified version of the Brussels 1A rules is applied to cases between Scotland, Northern Ireland and England and Wales means that there might be limited prima facie rationale for suggesting that we replace this with the application of the rules under the Lugano convention. The rules are already substantially similar.

However, in addition, the amendment that I referred to has an altogether more significant deficiency. By limiting the intra-UK application of private international law agreements to the Lugano convention, the amendment may well result in the perverse situation in which the intra-UK rules are out of step, out of date and less effective than those governing the relationship between all three of these jurisdictions and a foreign jurisdiction. If the amendment were accepted, separate primary legislation would be needed to achieve this, potentially resulting in the intra-UK rules being less effective and less comprehensive than the rules that we apply with foreign jurisdictions until such primary legislation was passed.

Perhaps I may give an example. If the United Kingdom decided in future to join a new private international law agreement dealing with cross-border cases regarding children, the inability to implement that agreement between the UK’s jurisdictions at the same time as implementing an agreement between the UK and foreign jurisdictions could lead to families finding it more difficult to resolve disputes where parents live in, say, Northern Ireland and England than where one parent lives in the United Kingdom and the other in a foreign country. That would be a very strange outcome.

Amendment 5 has an effect similar to that of Amendment 4 in that it seeks to restrict the ability, under the Clause 2 power, for the United Kingdom to enter into arrangements with the Crown dependencies and overseas territories that mirror, subject to suitable modifications, the provisions of a private international law agreement to which the United Kingdom is a party. As I explained in relation to Amendment 4, the UK Government are the contracting party to international agreements on private international law. As such, these agreements would not ordinarily apply as between the United Kingdom and one of the Crown dependencies or overseas territories.

However, as with the relationships between the different legal jurisdictions of the UK, applying the same rules between the UK and the Crown dependencies and overseas territories that we apply with foreign jurisdictions will sometimes be desirable. It can ensure that the relationships between the various members of the wider UK family can be at least as effective and up to date as those applied between the United Kingdom and foreign jurisdictions. Clause 2(3), as presently drafted, allows for such keeping pace but only if the relevant territorial Government agree that it is beneficial to do so.

I submit that this builds on a significant body of precedent. Both the Administration of Justice Act 1920 and the Foreign Judgments (Reciprocal Enforcement) Act 1933 enable the Government, via Order in Council, to recognise and enforce civil and commercial judgments from the Crown dependencies and overseas territories where reciprocal arrangements have been entered into with them. Furthermore, Section 39 of the Civil Jurisdiction and Judgments Act 1982 enables the Government, by Order in Council, to apply a modified version of the Brussels 1968 convention between the United Kingdom and a Crown dependency or overseas territory. Indeed, an order was made in respect of Gibraltar in 1997 to do exactly that: applying a modified version of this convention to relations between the UK and Gibraltar—an arrangement that sustains to this day.

--- Later in debate ---

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

I had not intended to intervene at this stage. However, since this, is or ought to be, very similar to Committee if we were sitting in the Chamber, I hope that Members will understand why I do so. It is not to deal with questions that the Minister raised about Crown dependencies and overseas territories—although he answered the question that I had intended to ask later on, on other amendments, so that will shorten the debate later—nor indeed about the different jurisdictions within the United Kingdom. Again, that will be dealt with in subsequent amendments and I can come back to that during that debate.

I want to say two things. First, I agree totally with what my noble and learned friend Lord Falconer said; that will surprise neither him nor the Minister. Secondly, the noble Lords, Lord Adonis and Lord Pannick, made important points, which the Minister just touched on. As the noble Lord, Lord Adonis, said, we should note the significance of this being the first Committee stage of a Bill that we have held virtually. It is very important that we see that it operates properly.

As it happens, two members of the Procedure Committee are in this debate: the noble and learned Lord, Lord Morris of Aberavon, and me. At the committee’s last meeting, we asked for a report on the workings of this Committee stage—that is, how it will proceed. At its next meeting, the committee will discuss the procedure for virtual voting. If my noble and learned friend Lord Falconer hopes to divide the House on Report, as he indicated—I hope that he will—that cannot be done without virtual voting. It would be improper and unconstitutional for that to take place. My noble friend Lord Adonis should be reassured by that.

Finally, I hope that the Minister will treat this Committee stage just as he treats Committee stages on the Floor of the House—that is, take account of what has been said, be prepared for a challenge on these issues on Report and bear all this is mind before bringing the Bill in its present form back on Report. I hope he takes note of that.

[Lord Keen of Elie]

My Lords, I of course am listening to the contributions made to the debate in Committee and will take account of the observations that have been made. I make no comment on the procedural issues that the noble Lord raised.

[Baroness McIntosh of Pickering]

My Lords, I thank my noble and learned friend for his full answer to the concerns that were raised. Perhaps I misunderstood his response, but I think that the thrust of the interventions of noble Lords—nearly to a man and a woman—was that it is inappropriate to seek to put into UK law by delegated secondary legislation a new treaty that the Minister and the Government seek to sign. The thrust of the remarks was that it should require primary legislation. Have I misunderstood my noble and learned friend on that point? Why are the Government resisting the usual procedure of agreeing to implement anything that has been agreed by the Government by way of international treaty through primary legislation?

[Lord Keen of Elie]

First, let me make it clear that I do not accept that it is an invariable constitutional practice that the implementation in domestic law of an international law treaty is undertaken by way of primary legislation only. Secondly, when it comes to the implementation of a treaty that has been entered into at the level of international law, the purpose of drawing it down into domestic law is either to accept it into domestic law or not to accept it into domestic law. There is no scope for amending the terms of the treaty that has already been entered into. Therefore, the use of the affirmative statutory instrument procedure is considered appropriate. It gives this House and the other place ample opportunity to debate whether they should draw down the treaty obligations into domestic law. There is, essentially, no real scope for amendment; therefore, we consider the affirmative procedure perfectly adequate for that purpose.

[Lord Mance]

I have just a few points to raise with the Minister. At one point, he said that the first amendment would prevent us joining two other measures, the Singapore mediation convention and the 2019 Hague Convention. It is too easy to slip into that sort of language. What he really means is that it would prevent us joining those measures without proper parliamentary scrutiny by primary legislation.

In response to the Minister’s last point, yes or no can be a very important question, even if you cannot amend an international treaty once it is made; Lugano is a classic example. It is a difficult decision, as has been illustrated. It is also very easy to say that we would be prevented from implementing future measures in a timely manner, but there is no real evidence for that at all.

The Minister took various rather minor—if I may call them that— drafting points on, for example, the definition of related international instruments and ancillary provisions. Those would all be sorted out if the principle of the first four amendments was accepted.

On that principle, the Minister also took various points about the intra-UK relationship, suggesting that Amendments 4 and 5 raised complexity. As I see it, those amendments are perfectly simple. They ensure that the general power marches in tandem with the specific power to legislate Lugano into the intra-UK jurisdictional relationships and interrelationships with overseas territories. They are “keeping pace” amendments and there is nothing inconsistent or complicated about them.

As to the 1920 and 1933 Acts, I pointed out in my previous remarks that they are quite different, minor and limited measures relating to recognition of superior court judgments overseas, coming either from UK overseas territories or from territories with which we have reciprocal arrangements. Those judgments would have been recognised as common law by action on the judgments, which would operate as an estoppel in any event, so they are minor amendments.

It is true that the Civil Jurisdiction and Judgments Act contained some provisions for delegated legislation in respect of, for example, Gibraltar. However, it was a piece of primary UK legislation in the first place, and it is no doubt a tribute to the quality of the UK Parliament’s consideration of that legislation if overseas territories are willing to accept that they should be legislated for on a delegated basis.

[Lord Keen of Elie]

I thank the noble and learned Lord, Lord Mance, for his further observations. I simply notice this: for the last 20 years, Parliament has had no oversight of the drawing down of these obligations into domestic law because it has been an EU competence. That has not led to any dramatic constitutional issue, as far as I am aware.

In the meantime, however, we have introduced CRaG, which means that the entering into a treaty at the level of international law is now subject to scrutiny by Parliament. After that scrutiny, the Executive can enter into the relevant treaty. Then, when it is drawn down into domestic law, the affirmative statutory instrument procedure ensures that both Houses of Parliament have an opportunity to scrutinise and debate this. There is no difficulty about that; it is the outcome that matters.

However, I notice the noble and learned Lord’s observation that there is little that can be done by way of amendment at that stage. That is why we would suggest that the affirmative procedure was a perfectly adequate mechanism, as distinct from primary legislation.

[The Deputy Chairman of Committees]

My Lords, before I call the noble Lord, Lord Marks, I should say that the noble Lords, Lord Adonis and Lord Pannick, have indicated their wish to speak after the Minister. I shall call them in that order after the contribution from the noble Lord, Lord Marks of Henley-on-Thames.

[Lord Marks of Henley-on-Thames]

My Lords, I was not suggesting—and neither, I believe, was the noble Baroness, Lady McIntosh—that we can stay in Brussels recast or rejoin it after the end of the transition period. I was merely regretting the loss of the benefits of Brussels recast and pointing out that Lugano, if we joined it after the transition period ended, would not offer us comparable benefits. Apart from conceding that point, the Minister has not addressed the points made—notably by the noble and learned Lord, Lord Mance—that joining Lugano may be undesirable, and that we are deprived of the opportunity of debating that in the context of primary legislation. That, I think, is a point that he needs to address.

[Lord Keen of Elie]

On that point, of course I accept that Lugano does not go as far as Brussels Ia and IIa—Brussels restated. We are all well aware of that. As regards the interplay between Lugano and the Hague Convention 2019, one has to bear in mind that Hague has not been signed or acceded to by the EU. We do not know if or when it may intend to do so. Indeed, it is noteworthy that it took the EU 10 years to sign and accede to the Hague Convention 2005. On the other hand, Lugano is there and available as a convention. A number of noble and learned Lords have acknowledged its importance in the context of private international law. Therefore, it is appropriate that we proceed with Lugano at this stage.

[Lord Adonis]

I took the Minister’s response to my noble friend Lord Foulkes to mean that he did not recognise the constitutional doctrine that international treaties could take effect in UK law only by primary legislation. I took him to speak of “recent precedents”. Can he tell the Committee what those recent precedents are?

[Lord Keen of Elie]

I mentioned them earlier in my observations with regard to the 1920 and 1933 Acts, which, by Order in Council—not even a statutory instrument—can draw these matters down into domestic law.

[Lord Pannick]

An important part of the Minister’s argument is that an affirmative procedure suffices because all that Parliament is doing is approving, or not approving, an international agreement which cannot be amended. The noble and learned Lord, Lord Mance, has already made the point that this may involve very detailed and important policy questions. Can the Minister comment on a further point that, in any event, Clause 2 confers power on the Minister, not only to make regulations for the purpose of implementing the international agreement but in connection with implementation? He will know that implementing legislation often includes provisions which may be of some importance, which are not mandated by the international agreements but arise from them.

There may be discretionary decisions to be taken—for example, in relation to the creation of criminal offences. Therefore, I put to the Minister that it is not good enough to say that all Parliament is doing is implementing an international agreement which has already been negotiated and agreed. There are policy decisions that the statutory instrument will contain, and primary legislation is required so that Parliament can debate these policy choices in a proper, effective way and, if necessary, seek to amend the provisions, which are distinct from those contained within the agreement itself.

[Lord Keen of Elie]

There may of course be incidental policy issues that arise when we come to draw down into domestic law an obligation, or obligations, undertaken at the level of international law. Clearly, in circumstances where there were policy choices to be made, a Government would consult upon those matters to bring forward policy choices that were acceptable to stakeholders. If they were not acceptable to Parliament, even after consultation, Parliament would not pass the affirmative SI in question. I do not accept that it is necessary in each and every instance to bring forward primary legislation for this purpose. In those exceptional cases where there may be consequential issues to be addressed, clearly they will be addressed at policy level. They will be consulted upon and the matter brought forward. The Government will not bring forward a policy proposal for an incidental measure without realising that Parliament would be prepared to accept it. That would be a pointless exercise.

[Lord Falconer of Thoroton]

This very interesting debate has raised, in effect, two substantial questions: as a matter of principle should there be the Clause 2 power at all and, if not, should we nevertheless make an exception for the Lugano convention?

First of all, should there be this power at all? In a speech that might be described as a Scottish smokescreen —because it dealt primarily with drafting issues and issues about the dependent territories and, important as those are, did not really address the principle at all—the noble and learned Lord, Lord Keen of Elie, gave one line to justify this unprecedented power. He said that not having this power under Clause 2 would prevent implementation of any international treaty “in a timely manner”. I forgive the noble and learned Lord for putting it in such wide terms and assume he means private international law treaties only. With respect, what he says is plainly wrong.

The noble and learned Lord was given the opportunity on two occasions to provide evidence that it would prevent the implementation of private international law treaties in a timely manner, once before the Delegated Powers Committee of this House and once before the Constitution Committee. The Delegated Powers Committee said that the Ministry of Justice

“offers no empirical evidence that delay has been caused to stakeholders by late implementation of private international law agreements … The argument from delay, apart from involving unsubstantiated assertion, might justify dispensing with Acts of Parliament in other areas where governments need to legislate quickly.”

It rejected it on grounds of lack of evidence and on grounds of principle.

The Constitution Committee also looked at the very same assertion made to it, and said:

“However, the Government offers no evidence to support this argument. The UK has become a party to only 13 Hague Conventions over the course of nearly 60 years. In respect of some of the Conventions the UK has signed, full ratification and implementation has taken years to complete. The Hague Convention of 13 January 2000 on the International Protection of Adults … was ratified for Scotland in 2003 but has not been ratified for England and Wales or for Northern Ireland … While there may or may not be an increase in the number of PIL agreements that are made in the coming years, there is nothing to suggest that PIL agreements will be produced at a rate that would preclude implementing them via primary legislation, nor that there are exceptional circumstances so urgent that resort to a fast-track bill would be impossible. It is therefore difficult to give weight to the Government’s argument that reputational damage will result from not having the power.”


Anybody who has looked at this in detail thinks the Minister’s argument is rubbish. It is not surprising that he never mentioned it at Second Reading.

The Minister then cited occasions when it has been done before, in particular two primary Acts of Parliament: the Administration of Justice Act 1920 and the Foreign Judgments (Reciprocal Enforcement) Act 1933. Reading those is worth while. The 1920 Act refers to a provision whereby a judgment obtained in one dominion can be enforced in other dominions as long as the dominion passes a power to agree to that. The 1920 Act—the 1933 Act is the same, but not in respect of the Empire—says that if another country agrees to this convention, we can add the name of that dominion or country to the list, having approved the convention by primary legislation. The idea that those two Acts give support to the proposition that we can now import wholesale into our domestic law every international treaty we enter into is absolute nonsense. They provide no sort of precedent at all. I really hope the Minister has noted that every single person who spoke took the view that Clause 2 was inappropriate.

As far as Lugano is concerned, I thought the points made by the noble and learned Lord, Lord Mance, were powerful. I do not know whether they are right or wrong, but they illustrate that we need a proper debate about Lugano: we cannot just import Lugano into our law by secondary legislation. Our debates about Lugano today—which, as one speaker identified, were not answered by the Minister; we never debated Lugano, we simply debated the principle of whether Lugano could be an exception to the deletion of Clause 2—illustrate that this very important convention, about which two views prevail, should be the subject of primary legislation. Of course, I will come back to this on Report.

The important point that was made about procedure, and which is worth emphasising, is that we cannot change a Bill unless there is consent, or as a result of a Division which agrees to change that Bill. It means that we cannot proceed with legislation until we have the ability to divide on legislation, whether remotely or in person. We cannot get to the next stage of this Bill until we have the power to divide. With the permission of the House, I beg leave to withdraw the amendment.

--- Later in debate ---

[Lord Thomas of Gresford (LD)]

My Lords, in his letter of 19 April in response to the report of the Delegated Powers Committee, the Minister said:

“The Committee’s Report implies that the power in clause 2 of the Bill would allow the Government to implement agreements on any aspect of private law with a foreign element, rather than merely agreements on the much narrower subject area of private international law, as defined by clause 2(7) of the Bill. … It will not be possible for matters outside of the areas indicated by the definition of ‘private international law’ in clause 2(7) to be implemented using the power.”


The Minister echoed what was set out in paragraph 7 of the Explanatory Notes, which state:

“PIL agreements cover a discrete area of law that is narrowly defined.”


One would therefore have expected that the interpretation of Clause 2(7) to be narrowly defined, but as the noble and learned Lord, Lord Falconer, pointed out, there is a width and uncertainty about these provisions that really do not follow the expressions being used.

For example, the definition clause for “international agreement”, which Amendment 9 deals with, includes,

“an agreement to which the UK is, or is expected to become, a party.”

What does that mean? Does that mean that legislation will be brought forward under these provisions and regulations brought forward in respect of an agreement to which we are not a party? As the noble and learned Lord, Lord Falconer, pointed out, what happens if the agreement is not ultimately made and the negotiations fall through? We would then, presumably, have regulations on the statute book dealing with an agreement to which we were not a party.

The definition of “private international law” is also contained in that same subsection, and Amendments 10, 12 and 13 demonstrate the loose wording that is used in case anything has been missed. That is rather typical of the drafting of the legislation. It is so drafted that anything can be bought in and the door is kept open. For example, it includes “rules and other provisions”, and there is to be co-operation in relation to the

“service of documents, taking of evidence and other procedures”

not defined. Paragraph (c)(ii) deals with

“anything within paragraphs (a) and (b).”

It is so loose and ill-defined.

So the purpose of the amendment moved by the noble and learned Lord, Lord Falconer, is to define the scope of regulation-making powers of the Bill so that the regulations should be confined exclusively to the field of private international law. Any provisions that trespass into any other territory could not be incorporated into domestic law by these regulations. I wholly support what he says about that.

I also support what was said by the noble and learned Lord, Lord Manse, on arbitral awards and model laws.

But I am interested in Amendment 6. Perhaps the Minister will share his thoughts about any proposed regulations concerning legal aid. What proceedings in the field of private international law does he envisage? To what is this directed? Would these be additional provisions to existing legal aid regulations? Would there be more hoops or fewer? Would there be more generous or less generous provision, and in what fields?

[Lord Keen of Elie]

My Lords, I begin with Amendment 2, which as the noble and learned Lord, Lord Falconer, noted, would seek to limit the scope of the Clause 2 power to implement agreements to those that relate exclusively to private international law, whereas of course in its present form of drafting it is clearly intended to extend to the implementation of private international law provisions in wider agreements. In previous correspondence, as noted by the noble and learned Lord, Lord Mance, I referred, as an example, to the jurisdiction of the provisions of the 1961 Warsaw Convention, which is concerned with international carriage by air. The point made by the noble and learned Lord, Lord Mance, was: why would you seek a power to implement such a private international law provision outwith the wider terms of the relevant international agreement? There may be some force in that point. It is one that I would like to consider further, and I will do so before we reach Report.

Amendment 6, which was just referred to by noble Lords, seeks to remove legal aid from the scope of the matters about which Clause 2 regulations can make provision. In the light of the observations of the noble Lord, Lord Thomas, perhaps I should explain that the Bill as presently drafted does not expressly include legal aid in the scope of the definition of private international law. However, under Clause 2(5)(c), it allows for regulations that implement or apply a private international law agreement to make provision for legal aid. This would mean that, where a private international law agreement to which the UK chose to become a party included obligations in relation to legal aid, those could be given domestic effect through Clause 2 regulations.

The reason for that approach to the matter of private international law and legal aid in the Bill is that, although there is some doubt about whether legal aid is typically encompassed in the scope of what is referred to as private international law as generally understood by practitioners and academics, there are circumstances in which a private international law agreement could contain specific legal aid provisions. This normally arises, as one might expect, in the field of family law. For example, there is a requirement in the 1980 Hague Convention on international child abduction for a contracting state to apply the same legal aid rules to citizens of, and persons habitually resident in, other contracting states in matters covered by the convention as it would to its own citizens and residents. It is therefore the Government’s view that, should similar conventions arise in the future providing for critical cross-border co-operation in matters of private international law, it would be unfortunate if there were to be a delay in people benefiting from the provisions of such an important convention.

Where a private international law agreement imposes requirements relating to legal aid that go beyond the sorts of areas for which the United Kingdom Government currently provide such funding domestically, we would need to think very carefully before proceeding. However, the normal process of consultation during the development of, and before taking the international steps to join, a convention of this nature would provide an opportunity for consideration of any legal aid implications.

In short, the amendment would create unhelpful doubt around whether the Clause 2 power could be used to implement a private international law agreement that included provisions relating to legal aid, and indeed it might even render that impossible.

Amendment 9 seeks to restrict the Clause 2 power to implement in domestic law only the private international law agreements to which the UK is already a contracting party and nothing further. It will not be possible for the Government to take the final steps necessary under international law for the United Kingdom to become bound by a new agreement in this area, such as depositing an instrument of ratification, because, in order to do that, the necessary implementing legislation must already have been made and, as a result of this amendment, it would need a different legislative vehicle.

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[Lord Marks of Henley-on-Thames]

My Lords, the question raised by my noble and learned friend Lord Wallace of Tankerness is about how legislation should be made regulating implementation between jurisdictions within the UK and between the UK and other relevant territories. It seems to me that Clause 2(2) and (3) and Schedule 6 infringe the principles of devolution, particularly in the lack of provision for consultation with Scotland and Northern Ireland, as he pointed out. They also infringe the autonomy of the other relevant territories. For those reasons it seems to me that, in addition to the general reasons about the width of Clause 2 and the points already made by the noble and learned Lord, Lord Falconer, we will support amendments such as these on Report.

[Lord Keen of Elie]

My Lords, as with the previous groups of amendments, the underlying theme is that Clause 2 should not stand part of the Bill, but we have to look at these amendments in the context that it does stand part. They would therefore limit the power conferred by that clause—that context is important.

When discussing Amendments 4 and 5, I pointed out that, in the context I have just described, they in turn would result in an unacceptable restriction of the power in Clause 2 and would mean that co-operation on private international law matters between different parts of the United Kingdom family would be significantly less well developed than it is between the United Kingdom and international partners. As a matter of policy, we see no way to justify such a position. Why, for example, should two parties in London and Edinburgh have less legal certainty about the way in which their dispute will be resolved than if the dispute was between parties based in London and Paris or New York? Of course, the point is then made that it is not a question of whether, but how. If you are able to have this regulatory-making power under Clause 2 with regard to foreign jurisdictions, why not intra-UK?

If, as suggested by the noble and learned Lord, Lord Wallace, the concern is the power being perceived as risking imposing a position on Scotland, Northern Ireland, the Crown dependencies or overseas territories without consultation or consent, I would seek to assuage those concerns. Such arrangements under the power would require the agreement of all the relevant Administrations—the United Kingdom Government and the Government of the relevant devolved Administration, Crown dependency or overseas territory. Indeed, such a measure would be considered only after the Government had consulted appropriately with relevant stakeholders, and the statutory instrument to give effect to such a “mirroring” provision—that is what it would be—would still be subject to the scrutiny of the affirmative procedure, as I noted before.

There are examples where such mirroring-type relationships already apply. We apply a modified version of the terms of the 1968 Brussels Convention, an instrument that was the forerunner to Brussels I and the recast Brussels IA regulation, between the United Kingdom and Gibraltar. That works perfectly well. Therefore, assuming Clause 2 stands part of the Bill, we do not see any reason why it should be amended in the way suggested.

I now turn to Amendment 18, which would in turn require fresh primary legislation if the UK wished to amend or revoke, at a later date, any declarations it chose to make when it first implemented a new international agreement. This would mean, for example, that if, in implementing the 2005 Hague Convention, the Government decided to replicate the current EU declaration in regard to certain insurance contracts being out of scope of the convention and then wished to review that decision later, primary legislation would be required to implement that change.

Our policy intention is to replicate the current EU declaration in relation to the exclusion of certain insurance contracts when we accede to the 2005 Hague Convention later this year, because this is how the convention rules currently apply here and, given the tight timeframe between now and the end of the transition period, it makes sense to maintain the status quo and then review in the longer term. Under the proposed amendment, if we wished to change our position following that review, we would have to wait for a primary legislative vehicle to give effect to that change. In our view, that would simply create undue delay on a matter which could be addressed through secondary legislation without losing any of the desired scrutiny. It is in these circumstances that I respectfully ask the noble and learned Lord not to press his amendments.

[The Deputy Chairman of Committees]

One speaker has indicated that they wish to come in on the amendment.

[Lord Wallace of Tankerness]

My Lords, I note what the Minister said about fears that something might be imposed on Scotland or Northern Ireland, but as I read it, Scotland or Northern Ireland could actually impose something on England. He then went on to say that there would of course be discussion, negotiation and consultation. If that is the case, why does it not say so on the face of the Bill? Would he be minded to give further thought to these provisions and how they are drafted to secure some degree of consultation, which does not, I would argue, detract in any way from the devolution settlement?

[Lord Keen of Elie]

Let me be clear: I do not accept the underlying premise of the noble and learned Lord’s argument. However, I am perfectly content to look at this before the next stage of the Bill in order that I can, again, reassure him of the position. There is no intent here to proceed to regulatory-making power without the consent of the relevant devolved Administration. That would be wholly inappropriate, and I accept the noble and learned Lord’s observation that it would conflict with the devolved settlement. However, I am perfectly willing to look at this again.

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[Lord Falconer of Thoroton]

I simply underline the points made by my noble friend Lord Foulkes and the noble and learned Lords, Lord Wallace and Lord Hope. As far as my noble friend Lord Foulkes is concerned, the purpose of these amendments is to probe; as far as I am concerned, they illustrate the lack of thought that has gone into Clause 2. They simply underline the sense that there should not be a Clause 2.

[Lord Keen of Elie]

My Lords, I am obliged to the noble Lord, Lord Foulkes of Cumnock, for tabling what he very candidly pointed out were probing amendments. I am also obliged to the noble and learned Lord, Lord Wallace, who drew on his experience of the devolved Administrations and was able to outline the position in this matter. I will come in a moment to address the questions raised by the noble and learned Lord, Lord Hope, in the context of these provisions.

As the noble Lord, Lord Foulkes, pointed out, two authorities are identified in this part of the Bill that might proceed to implement matters of private international law in Scotland. That is consistent with legislation in other areas. The Secretary of State might decide, with the consent of the Scottish Ministers, to make UK-wide provision for implementation. That is why he is one of the identified national authorities, because there are circumstances in which the Scottish Ministers would be entirely content for there to be UK-wide provision.

Alternatively, if that is not the case, Scottish Ministers may themselves then proceed as a national authority to implement the matter in domestic law. That is because, as the noble and learned Lord, Lord Wallace, pointed out, the position is that—I am sorry, something came up on another phone and rather distracted me—the implementation of private international law is a devolved issue under the Scotland Act, so allowance is made for both provisions.

As regards this Bill, an LCM was discussed between officials. The Scottish Ministers have recommended that such an LCM should be provided, and the noble and learned Lord, Lord Wallace, pointed out the terms of the recommendation that Scottish Ministers have made to the Scottish Parliament with regard to this matter. Indeed, there was prior discussion about these proposals last year, when the Lord Chancellor, for example, was in communication with the Scottish Government on matters of the convention. Perhaps I can clarify this by reference to the points made by the noble and learned Lord, Lord Hope. The Secretary of State may be a national authority with the consent of Scottish Ministers because Scottish Ministers may, as sometimes happens, wish to see UK-wide regulations made here for implementation. Alternatively, as the national authority, they may choose to do that for themselves. The Secretary of State clearly does have the power to do that because under the Scotland Act there is the power to legislate for the entirety of the United Kingdom as regards the implementation of a matter that is otherwise within the devolved competences, so that does not raise an issue either.

With regard to the matter of whether or when it would be one national authority or the other, that is simply a matter that will be discussed, as it is in other contexts, between the United Kingdom Government and Scottish Ministers. If Scottish Ministers are content that the UK Government should legislate UK-wide on this matter, that will happen. If they are content for that to be done, then Scottish Ministers will deal with the matter. The Secretary of State cannot deal with the matter without the consent of Scottish Ministers, so I hope that that puts minds at rest in this regard.

As regards the identification of the Secretary of State as an authority and the reference, for example, in the Scotland Act to a Minister of the Crown, I accept that the reference in this Bill is more limited. Because I cannot answer immediately, I will consider why it was thought appropriate to limit it to the Secretary of State as opposed to the wider reference to a Minister of the Crown. But I will look at that to see whether there is an issue there that needs to be addressed.

As regards consultation on the implementation of international treaties, that is not an issue, but as regards entering into international treaties, that is of course a reserved matter. I recognise that it is appropriate that Scottish Ministers and others should be consulted on these matters for their interests when they arise. I do not understand that to be a difficulty in this context, nor a matter that would require express provisions in the terms of this Bill.

I thank the noble Lord, Lord Foulkes of Cumnock, for his probing amendment and I hope that I have been able to put minds at rest as regards why there are two identified national authorities for the purposes of Clause 2. In the event that Clause 2 stands, these are appropriate alternative mechanisms for the implementation of these provisions.

One final matter raised by the noble Lord, Lord Foulkes, was the issue of contract, but of course, where you have a contract, it will have a choice of jurisdiction and a choice of law. If the contract has Scotland as a choice of jurisdiction and Scots law as the choice of law, that will be binding if we have a situation in which, for instance, the Lugano provision applies. I hope that that answers the query in so far as I have understood it.

I cannot give a precise date for the provision of the LCM, but as the noble and learned Lord, Lord Wallace of Tankerness, himself indicated, Scottish Ministers have recommended the granting of an LCM, and it is not anticipated that there will be any difficulty. With that, I invite the noble Lord to withdraw the amendment.

[Lord Foulkes of Cumnock]

My Lords—

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[Lord Falconer of Thoroton]

I have nothing to add.

[Lord Keen of Elie]

My Lords, I thank the noble Lord for what I understand are, again, probing amendments. As I perhaps explained, the Crown dependencies and overseas territories have a constitutional relationship with the United Kingdom whereby the United Kingdom is responsible for their foreign relations. This means that the Crown dependencies and overseas territories do not generally themselves join international agreements, including agreements in the area of private international law, which we are concerned with here. Instead, an agreement that applies in the United Kingdom can usually be extended to apply also in a Crown dependency or overseas territory. We work with those Crown dependencies and overseas territories to determine where and when they would wish to have a private international law agreement apply between them and other contracting parties. The scope of the United Kingdom’s ratification of that agreement is then extended to them. This means that multilateral agreements extended to the Crown dependencies and overseas territories apply only between those jurisdictions on the one hand and the other contracting parties on the other, but not between the Crown dependencies and overseas territories and the UK. To apply the agreement with the UK, there needs to be a separate mirroring arrangement, as it is sometimes termed. I referred to that in responding to earlier amendments.

The general power within Clause 2(3) allows the United Kingdom to maintain and develop a private international law framework with the Crown dependencies and overseas territories as well as with foreign partners. That is the intent here.

The noble Lord asked about consultation. There was consultation, not with the governors of the Crown dependencies and overseas territories, but with each attorney-general and their officials. My understanding is that they were entirely content with the way in which these provisions are extended to the benefit of the Crown dependencies and overseas territories.

The noble Lord raised the question of entrustment. It does not directly arise in this context, but entrustment is where the United Kingdom essentially consents to a Crown dependency, for example, entering into an agreement at the level of international law. That can sometimes happen where, for example, a Crown dependency wants a reciprocal agreement with a foreign partner.

The behaviour of the overseas territories is monitored by the Foreign and Commonwealth Office and there are instances in which, for the purposes of good governance, the United Kingdom will intervene in the affairs of an overseas territory. The noble Lord himself gave an example in respect of the Turks and Caicos Islands where that has been done.

As regards the choice of court or arbitration that the noble Lord referred to, in so far as I understand his point, I would respond that it is up to parties to a private contract to determine how their disputes, if any, will be resolved. For that purpose, the parties can choose a law or legal system to apply to their private contract and the jurisdiction in which their disputes will be resolved. That is an issue that arises only in the context of their private contract and in the context of what we are dealing with here, which is private international law. At the level of private international law, we are concerned with the way in which other jurisdictions respect that law, respect the choice of jurisdiction and, indeed, then respect the judgment of that jurisdiction when it comes to enforcement.

I hope that answers the points raised by the noble Lord. I thank him for the probing amendments, but I invite him to withdraw Amendment 14.

[The Deputy Chairman of Committees (Baroness McIntosh of Hudnall) (Lab)]

My Lords, I am not aware that any other noble Lords have expressed a wish to speak after the Minister, so I call the noble Lord, Lord Foulkes of Cumnock.

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[Lord Marks of Henley-on-Thames]

My Lords, for some years I had the privilege of serving on the Delegated Powers and Regulatory Reform Committee under the chairmanship of my noble friend Lady Thomas of Winchester. That committee has increasingly come to stand as a crucial protector of the role of Parliament, alongside the noble and learned Lord, Lord Judge, whom I was delighted we were able to hear. The committee has acted in attempting to limit the Executive improperly taking powers for government Ministers to change the law by delegated legislation in significant ways and ways for which delegated legislation has never in the past been deemed appropriate.

The committee usually expresses itself, or certainly has until recent years, in circumspect terms and the Government have traditionally accepted its recommendations. The committee has left it to the House to implement its recommendations if the Government do not agree to do so. The clarity and decisiveness of the recommendation in paragraph 15 of the committee’s report on this occasion is anything but circumspect. The conclusion speaks for itself:

“We are of the view that clause 2 represents an inappropriate delegation of power and we recommend that it should be removed from the face of the Bill.”


The committee is forcefully supported by the report of the Constitution Committee, chaired by the noble Baroness, Lady Taylor, from whom we have heard, and includes the noble Lord, Lord Pannick, from whom we have also heard. Paragraph 19 of that report contains the kernel of its conclusion:

“We are not persuaded by the arguments the Government has made in support of this power. If the balance between the executive and Parliament is to be altered in respect of international agreements, it should be in favour of greater parliamentary scrutiny and not more executive power.”


Another important point made by the Constitution Committee, mentioned by the noble and learned Lord, Lord Falconer, and the noble Lord, Lord Howarth, is that delegated legislation is amenable to judicial review so that future regulations implementing international treaties could be the subject of challenge. It is entirely right that delegated legislation, which involves an exercise of executive power of itself, should be capable of being challenged as unlawful.

However, it would be a highly undesirable consequence of the Bill if, when enacted, the lawfulness of conventions entered into by the United Kingdom Government as a matter of our domestic law could not be guaranteed to our international convention partners until such challenges were determined.

I also agree with the point made by the Constitution Committee, my noble friend Lord Thomas of Gresford and the noble and learned Lord, Lord Goldsmith, that the CraG procedure is at present inadequate and ineffective as an instrument of parliamentary scrutiny.

In the light of all that, can the Minister say whether, given the Constitution Committee’s report published on 4 May, he is prepared to go away and reconsider his extremely negative response, dated 17 April, to the Delegated Powers Committee’s report? I ask, because if these important committees of your Lordships’ House are going to be routinely ignored by government, parliamentary democracy is entering treacherous territory, in which the conventional boundaries between executive power and parliamentary sovereignty are roughly and unceremoniously shifted by the failure of government to adhere to well-established, valuable and principled conventions.

The central point is this. As it stands, the Bill involves moving a whole area of legislation—that of implementing private international law treaties in domestic law—from Parliament to the Executive. That is a dangerous extension and an unwelcome trend—noted by the noble Baroness, Lady Taylor—in our constitutional arrangements from parliamentary democracy to government by an overmighty Executive. If it is private international law agreements this year, what might follow next year? This House has rightly sought to resist the trend, which is dangerous and must be stopped. As parliamentarians, and respecting the traditional role of this House as a guardian of the constitution, we have a responsibility to stop it.

[Lord Keen of Elie]

My Lords, I thank noble Lords and noble and learned Lords for their contribution to this part of the debate. Since the commencement of this Committee, the matter of whether Clause 2 should stand part of the Bill has in a sense been the elephant in the virtual Chamber—or perhaps the virtual elephant in the Chamber. I therefore do not intend to rehearse or repeat the arguments that have been made repeatedly in Committee. However, I want to make it clear that the Government regard the powers in Clause 2 as essential to achieving their objective to build up the United Kingdom’s position in private international law, not only in the immediate future but in years to come.

Of course, there is one particularly pertinent example of our ambition; namely, our ambition to accede to the 2007 Lugano Convention on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters, and the desire—indeed, the need—to do that before the end of the transition period. It would be gravely unfortunate if a gap was to emerge between the end of the transition period, when we continue to look to the Brussels I and IIa regime, and the application of the 2007 Lugano Convention. We are concerned that that should be avoided.

Briefly, first, we consider that the proposal in Clause 2 is not only essential but proportionate. International law agreements are generally uncontroversial and technical in nature, and the detailed content of the private international law agreements to which the Bill will apply will already be determined at the international level; they are by their very nature clear and precise in their terms.

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[Earl of Devon (CB)]

I understood that I would get an opportunity to speak before the Minister rather than after him, as I have been on the list for the past few days, but I shall proceed none the less with what I was going to say. At the risk of flogging rather a dead horse at this stage, I wish to add that while I support the basic aims of the Bill, I do not support Clause 2.

Private international law and our membership of the Hague and other global jurisdiction and enforcement conventions are an essential part of our global standing and our ability to welcome and to home families from overseas. They are essential particularly to the professional and legal services markets in which we are world leaders. I note my interests in the register, and particularly my work as a dual-qualified, cross-border litigator, whose practice touches variously on this area.

I shall not speak at length because pretty much all the issues have been addressed in some detail. However, I thought that your Lordships might appreciate some stories from the front line. Unlike many of our eminent jurists in the Lords, I am currently active in this space and spent 10 years as a litigator in California, as a California-qualified litigator, in which capacity I advised often on jurisdiction clauses and dispute resolution provisions.

For the most part, the most popular forum for these was the courts of England and Wales, irrespective of the parties—typically, one of them was an American party, but we dealt with parties from all around the world. There were plenty of reasons for this, not least the English language, our time zones, our excellent legal services, our use of the common law and precedent, the independence of our judiciary, and the broad membership we have of cross-border conventions, such as those under consideration in the Bill.

Finally, and perhaps most important, is the rule of law—particularly the transparent, thorough and long-established legislative process by which our laws are passed. This is the reason that England and Wales is so often chosen as the preferred third-party forum for jurisdiction and dispute resolution clauses. That is directly threatened by Clause 2. Indeed, by seeking to short-circuit the long-standing practice of passing treaties by primary legislation, the Government are in danger of undermining one of the most important pillars that supports the UK’s pre-eminence in the provision of dispute resolution services in the global market.

I note that the US-UK trade negotiations started recently. Can the Minister give us any indication as to whether the subject of private international law has been raised within that forum? Is any pressure being brought to bear on the UK Government to align their cross-border enforcement and jurisdiction regime towards that of the US, which obviously takes a very particular line in these matters? We know, for example, that the current US Administration disfavour cross-border co-operation. I understand that in recent rounds of Hague conference negotiations, the US has become increasingly reluctant to engage. It is taking a back seat while burgeoning economies, such as China, are increasingly engaged.

Finally, before we reach Report on this crucial Bill, we must have either mastered virtual voting or returned to a normal practice. This is too important an issue to slip through at such a procedurally challenging time. I appreciate your Lordships’ indulgence.

[Lord Keen of Elie]

As regards the UK-US negotiations, I say only that I am not in a position to comment on how far they have gone, or on whether they have engaged the issue of private international law at all.

[Lord Adonis]

Perhaps I may add to my earlier contribution to the Committee, since it looks as if we will vote on this issue on Report. We are all agreed that it is a hugely important constitutional issue.

The House of Commons, which has been conducting its first online votes this afternoon, has descended into complete chaos on its latest vote. I can report to the Committee that on what was, I think, the third vote it held—after its Members had had an opportunity to get to know the system—there were 22 Tory rebels, including the Chancellor of the Exchequer, Rishi Sunak, who accidentally voted the wrong way. The Deputy Speaker, Eleanor Laing, pointed out that some MPs are struggling with the new electronic voting system but, she added, there was no need to rerun the vote because there was a majority of 51 for the Government.

I will point out two things for the benefit of our colleagues on the Procedure Committee. First, there is no natural government majority in the House of Lords, so how are we to know whether people have voted the wrong way accidentally? The constitution of our country could be rewritten because people did not understand the system of voting. Secondly, although I have the highest regard for all our colleagues in the House, if Members of the House of Commons are struggling with the new electronic voting system, it is fair to say that some colleagues in our House may also struggle with that new system.

I see not just a flashing orange light but a flashing red light about moving to electronic voting at any early stage in our proceeding, and certainly on a matter as grave and serious as this. If this were to be our first vote and it descended into chaos, as in the House of Commons, nobody could say that we were not warned.

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[Lord Keen of Elie]

My Lords, the noble Lord, Lord Adonis, has made a number of extremely telling and important points. We are clearly in a situation where we must ensure either that we have an entirely reliable voting system in the upper Chamber, or alternatively a clear and telling government majority. I suspect that it is more likely that we will seek to secure the former.

[The Deputy Chairman of Committees (Baroness Finlay of Llandaff) (CB)]

My Lords, I shall now put the question that Clause 2 stand part of the Bill; all microphones will be opened until I give the result. As many as are of that opinion shall say “Content”.

Prisoners (Disclosure of Information About Victims) Bill

Lord Keen of Elie Excerpts

2nd reading & 2nd reading (Hansard) & 2nd reading (Hansard): House of Lords
Tuesday 28th April 2020 Lords Chamber

Moved by

[Lord Keen of Elie]

That the Bill be now read a second time.

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

My Lords, this Bill will stipulate in statute an obligation on the Parole Board to ensure that the non-disclosure of information is always considered when making a release assessment. The Bill will put established practice on a statutory footing and respond directly to real-life issues that have caused immense pain to the families of victims of serious crimes.

The Bill, sometimes referred to as “Helen’s Law”, is a result of the work of Helen’s mother, Marie McCourt, who has campaigned tirelessly for this change. I take the opportunity to pay tribute to Mrs McCourt’s resolve. It is in large part thanks to her that we have reached this point.

Helen McCourt was a 22 year-old insurance clerk from the village of Billinge, near St Helens in Merseyside. On the evening of 9 February 1988, Helen disappeared while on her way home from work. The following year, Ian Simms was convicted of Helen’s murder and ordered to serve a minimum of 16 years in prison. Ian Simms has since been released but has never revealed where Helen’s body is and, despite extensive searches, her remains have never been found. This has compounded the unimaginable suffering of the McCourt family.

We will all appreciate the closure and comfort that can come from laying a loved one to rest. The McCourt family, and others like them, have been wilfully and cruelly denied this comfort. Mrs McCourt has campaigned for a change in the law to represent this, to acknowledge the added distress this causes for the families of victims, and there is wide public support for such a change.

I would like to take a moment to reflect on another case which has shaped the development of the Bill. In 2009, Vanessa George was convicted for multiple counts of sexual abuse against children at the Plymouth nursery where she worked. She did not stop at the abuse of the children but photographed these horrendous acts in order to share them with other depraved individuals. Her abuse of the trust placed in her by the families of the children she was meant to care for and protect is truly shocking.

The pain felt by the victims and their families has been compounded by the fact that the children she photographed cannot be identified from the images she produced, and she has hitherto refused to disclose their identities. Many families who placed their trust in Vanessa George do not know, and may never know, if their children fell victim to her cruelty. She was released by the Parole Board after serving 10 years in prison.

When considering the release of an offender like Vanessa George or Ian Simms, the Parole Board must always take into account this withholding of such significant information. That is why we are legislating, through this Bill, to directly address this current gap, and to seek to bring some small solace to victims and families.

Clause 1 will amend the release provisions that apply to life sentences for murder and manslaughter, and sentences of imprisonment for public protection for manslaughter and the offence of taking or making indecent images of children. This places a statutory obligation upon the Parole Board to consider a non-disclosure of information about a victim’s remains or the identity of a victim in an indecent image when making a public protection decision, being a decision to release, about such a prisoner.

Clause 2 of the Bill effectively replicates what Clause 1 achieves but in relation to the release provisions that apply to an extended determinate sentence which has been imposed for manslaughter or the offence of taking or making indecent photographs of children. Functioning in the same way as Clause 1, it will place a statutory obligation on the Parole Board to consider the non-disclosure of information about the location of a victim’s remains or the identities of a child or children featured in indecent images when making a public protection decision, including a decision to release.

In order for the Bill to apply, the Parole Board must not know the location of a victim’s remains or the identity of a victim in an indecent image but must believe that the prisoner has information about this that they have not disclosed to the board. This is the essence of the prisoner’s non-disclosure, and it is this that must be taken into account by the board when assessing whether a prisoner can safely be released on licence.

Furthermore, the Parole Board must particularly take account of what, in its view, are the reasons for this non-disclosure. This subjective approach will enable the board to differentiate between circumstances such as when, for example, the non-disclosure is due to a prisoner’s mental illness, and cases when a prisoner makes a deliberate decision not to say where a victim’s remains are located.

Subjectivity is fundamental to the proper functioning of the Bill. It is for the Parole Board, as an independent, court-like body, to decide what bearing such information has on the risk that a prisoner may present and whether that risk can be managed safely in the community. The Bill reflects the established practice of the Parole Board but goes a step further and puts a legal duty on the board to take the non-disclosure into account.

While, as I have set out, the measures in this Bill may seem relatively small or technical, I cannot stress enough the importance of this Bill and the support it has from victims and families. The crimes of the likes of Ian Simms and Vanessa George are harrowing, and families affected by these crimes deserve the peace of some element of closure, whether that is the opportunity to lay a loved one to rest, or the certainty of whether or not they were abused. This Bill offers families and victims a chance to achieve that.

I hope that the “Helen’s Law” Bill will attract support from all sides of the House and enter into the statute book as soon as possible. I beg to move.

--- Later in debate ---

[Lord Keen of Elie]

My Lords, I thank noble Lords for what has been a worthwhile debate on this important Bill. I hope that families and victims affected by the sort of circumstances referred to will have taken some comfort from the fact that the Bill has made this much progress and has received support from around the House, albeit some noble Lords may feel that it does not go far enough and some may feel that it should look to issues other than those addressed.

The noble Lord, Lord Ponsonby, whom I welcome to his place on the Front Bench, used the word “balance”, which is an important term in the present context. There has to be a balance of the number of issues and interests. I shall seek to address the points raised by noble Lords in as straightforward and clear a way as possible in the time allowed.

The noble Baroness, Lady Kennedy of Cradley, referred to the guidance to the Parole Board. Certain guidance exists at present, but we ensure that that guidance can never move away from the issue addressed by this Bill by enshrining it in statute. There is a question about the status of victims and their views in the context of the Parole Board hearings, and the whole question of how technology may be brought to bear to improve these hearings. The processes of the Parole Board are the subject of review at present, and no doubt these issues will be taken into account.

A number of noble Lords asked about the timescale for that review. In the present circumstances, I can go no further than to say that it will be brought forward in the course of time. I know that that is not terribly helpful in itself. However, I hope that noble Lords will appreciate that we are concerned to ensure that the review is brought forward as soon as reasonably possible, but that there are other pressures on government at present.

On the observations of the noble Baroness, Lady Bull, again, I concur with her observation that to move from a discretion in guidance to a statutory obligation is itself important. It ensures that there is a clear consideration mechanism to be brought in these cases. We are confident that the provisions of the Bill are sufficient and effective to apply in the contexts of non-disclosure, psychiatric conditions and mental illness. Again, the noble Baroness raised the question of review by the Parole Board, which I have sought to address.

My noble and learned friend Lord Garnier suggested that the Bill does not go far enough. I am reminded of the reference made by the noble Lord, Lord Ponsonby, to balance. I will make two observations. We agree that Parole Board decision-making should be transparent and as open as possible, particularly for victims and their families. However, there are good reasons why parole hearings are held in private. Deeply personal and sensitive issues are discussed regarding the offender, the nature of the offence, the victim and the arrangements for the possible release of an offender, including, for example, where they might or might not live, and the licence conditions that apply. Therefore, the parties must be able to speak candidly, and the prospect of information being made public that could compromise the integrity of evidence has to be borne in mind.

We have taken steps to improve the transparency of the parole process. In May 2018 we amended the rules to allow the board to provide summaries of its decisions, in order to provide victims with an indication of what the position had been. That has improved transparency. In July 2019, the new Parole Board rules were introduced. This created a reconsideration mechanism that can be employed by the Secretary of State, and which has been in one of the cases referred to here.

The second issue that my noble and learned friend Lord Garnier raised was a new offence of non-disclosure. We have to remind ourselves that in sentencing, one is concerned with two elements, punishment and prevention, and the Parole Board’s consideration is of course prevention. Where an offender’s main offence is murder, for which a life sentence is imposed, any additional sentence for a separate offence—for example, of non-disclosure—would have to be served concurrently to the life sentence, because it would be a sentence of immediate custody and could not be deferred to commence at the point the judge sets as the minimum tariff for the murder. Therefore, if a separate concurrent sentence were imposed at or shortly after the time of sentencing for the main offence, it would in all likelihood be completed well before the minimum tariff for the original sentence had been completed. In fact, there is no need for a statutory offence, because courts may consider the common law offence of preventing the lawful burial of a body, which is itself punishable by a maximum sentence of life imprisonment.

Therefore, provisions do exist, but in reality it is more reasonable for the sentencing judge to take account of the non-disclosure when deciding on the length of the tariff, and to increase the tariff accordingly when non-disclosure is seen as an aggravating feature of the crime. We can therefore accommodate this under current sentencing policy, and I do not consider it necessary to introduce a new statutory offence. However, clearly, we will keep the application of the Bill under review—a number of noble Lords raised that point. It would be usual for the implications of the legislation, once it has commenced, to be considered after a period of three years. That gives time for implementation by the Parole Board, for the results to be identified and for improvements, if any, to be contemplated; that will take place in this case as well. On the commencement of the Bill, it is certainly the intention that it should be brought into force as soon as reasonably possible after it receives Royal Assent, which would normally be a minimum of two months after Royal Assent. I do not anticipate that being deferred for any material period, and I am not aware of any reason why it would be, so we would hope to see the Bill in force reasonably swiftly.

I turn to the observations of the noble Lord, Lord Kennedy of Southwark, who asked about a short determinate sentence in the case of manslaughter. There, the person would never come before the Parole Board and the Bill, when it becomes an Act, would therefore not apply to them—so I seek to give him that reassurance.

There was also the question of when somebody maintains that they are not guilty, a point raised by other noble Lords as well. That matter clearly comes before the Parole Board. It has to make a judgment about the circumstances and come to a view about whether such conduct is deliberate. It may be a psychological problem or a mental health issue. That is why we cannot have an absolute rule of, “no body, no parole”, as has been suggested on some occasions. Quite apart from anything else such a rule, while it would not take account of somebody who is suffering a mental illness or who simply has a psychological commitment to denial at all costs, would also potentially be in breach of Article 5 of the European Convention on Human Rights. That allows for punishment and preventive elements in a sentence but would not allow for a non-co-operation element. So there are very real concerns that an absolute rule would be subject to successful legal challenge, which is one thing we do not want in this context. Indeed, if there were to be such a challenge it would merely heap further uncertainty on families and victims of crime in circumstances where we can, if we look forward, avoid that.

The noble Lord, Lord Hastings, raised a number of points on sentencing policy. I am not going to address sentencing as it is not the purpose of the Bill, so it is not appropriate to go there. He also raised release from prison during the Covid emergency and referred to the provision for releasing up to 4,000 prisoners—I stress “up to”—who would be due for release within two months. There have certainly been only limited releases under that provision. However, the whole purpose of that policy was to provide head room within the prison population; that is, to allow for capacity demands to be met within it. They have in part been met because, due to the closedown resulting from the Covid pandemic, courts have not been sitting, trials have not been taking place and people have not been committed to prison as a result of sentences. That has reduced the head room within the prison estate by about 2,500. So it is a question of balancing these issues. We must of course have the means to reduce the prison population if that is urgently required, but we are not going to do it as a matter of course. We do not seek to release 4,000 prisoners just because that figure was the upper limit set in the provisions that were referred to. It is there as head room and will be used if required. If it is not required, it will not be used.

Reference was made to the unfortunate administrative error that led to the release of six prisoners who should not have been released. I commend the prisoners in question, who all returned as soon as the administrative error had been identified. One was then re-released, as it were; the other five were not. But to that extent they co-operated.

The noble Lord, Lord Balfe, asked me a series of about 20 questions. I will seek to address some of them. He asked why we need guidance for the Parole Board. It is appropriate that the Parole Board, like any body of that kind, should work within the boundaries of guidance. It is not that we do not trust it or rely on it but, like any such body, it would like to have a rulebook so that it knows the boundaries within which it operates. As I say, we will bring forward the review when we can.

Will the provisions extend to Scotland and Northern Ireland? I believe that the noble Lord, Lord Naseby, also raised this point. These are devolved issues and it is not for us to legislate for Scotland or Northern Ireland in these areas. However, my understanding is that both those legislatures are addressing this issue and they may in turn bring forward their own legislation in these areas. I would add only this: if somebody was convicted in Scotland but then transferred into the English prison establishment and became subject to the Parole Board in England, the provisions of the Act would apply to them. That is the only exception. Otherwise, we would leave it to the devolved Administrations to discharge their provisions as they think fit.

The noble Lord, Lord Adonis, referred to the observations of the noble and learned Lord, Lord Garnier. I hope that I have addressed those to some extent. Clearly, there is the issue of the interests of victims being considered, and I anticipate that that will form part of the ongoing review into the operations of the Parole Board. I take the point that was made by a number of noble Lords about the introduction of technology to improve that whole process. As we see it accelerating in the courts, why should we not see it accelerating with other bodies? Those developments that just a few months ago people thought would take five to 50 years, are taking five to 50 days to implement, which shows what can be done when it is demanded.

The noble Baroness, Lady Finn, talked about a lack of transparency at the Parole Board; I hope I have addressed that to some extent. There is also the question of the Victim Contact Scheme. No doubt experience indicates that that can be improved, and we may have to look at whether it is an opt-in scheme or an opt-out scheme and how it can best be developed with modern technology to ensure that victims and their families are aware—not after the event but before the event—of these processes. I acknowledge the concern expressed on that point.

The noble Lord, Lord Mann, asked what happens when someone is committed to Broadmoor, for example. Their release would be determined under the provisions of the Mental Health Act and would go before the First-tier Tribunal for determination. If they were then referred back into the prison system, ultimately they would become subject to the parole process and to the Act; otherwise, their release from Broadmoor, or from another institution of that kind, would be under the Mental Health Act and not these provisions.

The noble Lord, Lord Naseby, raised a number of points that I hope I have addressed to some extent. In particular, he asked why we rejected the “no body, no release” point. I have sought to reassure him as to why it is appropriate that we should not accept that particular way forward. There is the question of incentivisation, and one of the purposes of the Bill is to make it very clear, not only to the Parole Board but to prisoners, that this is an issue they will have to face when they reach the preventive stage of their sentence and are seeking to be released into the community. But let us remember that there are evil and manipulative people out there, and they will not cease necessarily to be evil and they will not cease to be manipulative, no matter what legislation we seek to pass. We have to be realistic about that. It is unfortunate, but it is true.

The noble Baroness, Lady Barker, who I acknowledge took helpful and appropriate steps to engage with the McCourts after this Second Reading was deferred, raised the question of “no body, no release” as well, and I concur with the point that she made. She also asked how we would monitor the Bill. As I indicated, it is usual after a period of three years for us to look to review the workings of the Act once it is in force to ensure that it is achieving its necessary objectives.

Finally, the noble Lord, Lord Ponsonby, asked a number of questions. On a victims Bill, I cannot express a view as to how and when such a provision will come forward. On the operation of the Parole Board, we know that it will be the subject of further review, but I cannot fix a date for when that review will be available.

As I indicated at the outset, this is a short but fundamentally important Bill and I hope that I have dealt as far as I can with the specific questions raised by noble Lords, which can of course be taken forward for discussion in Committee.

[Baroness Barker]

Will the Minister please write to me about whether this legislation once passed can be used by the families of victims to consider judicial review of decisions to release that have already been made?

[Lord Keen of Elie]

I can answer that now. The Bill will be retrospective to the extent that it will apply to all those currently serving a sentence of imprisonment who are due to come before the Parole Board. If in those cases the Parole Board were to make an error of law by not applying the provisions of the Bill, that would leave it susceptible to administrative action by way of judicial review. But it will not allow families or victims to come forward and seek to judicially review a decision already implemented by the Parole Board for the release of an individual. I hope that makes clear the point the noble Baroness raised. I commend this Bill to the House.

Bill read a second time.

Vagrancy Act 1824

Lord Keen of Elie Excerpts

Thursday 23rd April 2020 Lords Chamber

The Question was considered in a Virtual Proceeding via video call.

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

My Lords, the Government believe that no one should be criminalised simply for sleeping rough. In the cross-government review entitled the Rough Sleeping Strategy which was published in August 2018, we committed to review the Vagrancy Act. The review has consulted with stakeholders on all the options, including retention, repeal, replacement or amendment. The Government will announce the conclusions of the review in due course.

[Lord Young of Cookham (Con)]

My Lords, I am grateful to my noble and learned friend for that reply. Does he agree that attitudes to those who sleep rough have softened over the past 200 years and that legislation which refers to “idle and disorderly”, “rogues” and “vagabonds” living in “coach-houses” and “stables” has no place in modern legislation? Given that charities working with rough sleepers have criticised the use of the Vagrancy Act for drawing rough sleepers into the criminal justice system, at the very time when the Government’s commendable Rough Sleeping Initiative is seeking to tackle the problems of rough sleeping at their roots, can my noble and learned friend say when the review he has referred to, which was scheduled to be completed in March this year, will come to an end? Further, does he agree that we should replace the Act with legislation that is more appropriate and effective?

[Lord Keen of Elie]

My Lords, I am grateful to my noble friend for his further question. The review, which was led largely by the Ministry of Housing, Communities and Local Government, has essentially been completed. However, in light of the work being done in respect of Covid, it has not yet been reviewed by Ministers, although we will seek to bring it forward as soon as possible. I would acknowledge that the language of the 1824 Act is archaic, albeit that the meaning is clear. I should reiterate that we have no desire to criminalise those who are simply sleeping rough, but the provisions of the Act also apply in respect of, for example, begging and persistent begging. We have consulted with all the interested parties, including local authorities and the police, in order to determine a way forward.

[Lord Judge (CB)]

If Section 4 of the Vagrancy Act, which was enacted after repeated harvest failures created an army of the dispossessed, were presented to us today, beyond the archaic language to which the noble Lord, Lord Young, has already referred, we should reject it as being vague and uncertain, and arguably tarnished with an improper reverse burden of proof. If we would not enact it, why should it remain on the statute book for a minute longer?

[Lord Keen of Elie]

My Lords, I do not accept that the essentials of the provisions of Section 4 would not be worthy of enactment today. The provisions are of assistance to local authorities and indeed to the police. I understand that, quite often, the police are able to suggest the possibility of prosecution under Section 4 as a means to persuade those who are homeless and those who are begging to seek assistance either from drug and alcohol hubs or by seeking to claim benefits. It therefore remains of use in the view of some authorities.

[Lord Bourne of Aberystwyth (Con)]

My Lords, I very much support what we have heard from the previous speakers. I think that the country has witnessed the awesome challenges presented by rough sleepers as a result of the pandemic and I believe that, given the spirit of national unity and cohesion that we are seeing, it would be totally behind the calls for repeal. I think that this cannot happen too soon and that the country is looking for a lead on issues like this. We have seen the dreadful suffering of rough sleepers, so the eradication of rough sleeping, coupled with the repeal of a 200 year-old Act, are surely things that the Government should be supporting with enthusiasm.

[Lord Keen of Elie]

I mentioned earlier that there is a concern as to whether we should repeal this legislation, amend it or substitute it with something else. As regards the position which has arisen as a result of the Covid-19 situation, the Government have asked local authorities in England to support rough sleepers into appropriate accommodation. Indeed, I understand that more than 5,400 rough sleepers, which represents over 90% of those who were on the streets at the beginning of the crisis and were known to local authorities, have now been made offers of safe accommodation, and we are concerned that that should continue.

[The Lord Speaker (Lord Fowler)]

Lord Bird has a supplementary question. Lord Bird? Okay, we will move on to Lord Foulkes of Cumnock.

--- Later in debate ---

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

Can the Minister confirm that the provisions of this ancient Act as they apply to Scotland were repealed in Westminster by the Civic Government (Scotland) Act 1982? The kind of things he has talked about, such as persistent or aggressive begging, are being dealt with in Scotland using other legal provisions. Why cannot that be done in England, and why cannot the Government move quickly to bring England and Wales in line with the excellent situation in Scotland?

[Lord Keen of Elie]

My Lords, the provisions of Section 4, but not Section 3, of the Vagrancy Act 1824 were extended to Scotland by Section 15 of the Prevention of Crimes Act 1871. Section 4 was of course concerned with rough sleeping and Section 3 with begging. The noble Lord is quite right that the extension of Section 4 to Scotland was repealed by the Civic Government (Scotland) Act 1982. It should be noted that Part 4 of the 1982 Act brought in a series of very specific offences of what was termed

“annoying, offensive, obstructive or dangerous behaviour”—

essentially public order offences. In that regard, the law was brought up to date in Scotland. Indeed, it has been amended in England as well in some instances, for example by virtue of the Anti-Social Behaviour, Crime and Policing Act 2014.

[Baroness Grender (LD)]

Does the Minister agree that Dame Louise Casey’s strategy has provided hope for rough sleepers, with well over 5,000 people coming off the streets within a fortnight, as he has already mentioned? Tempting as it is to ask what took the Government so long prior to the pandemic, instead I ask: will the Minister share with us what commitment the Government have now made to ensure that none of those rough sleepers returns to the streets? Will he undertake to organise an urgent meeting with Members of this House who are interested in this issue to outline those plans and commitments?

[Lord Keen of Elie]

My Lords, we consider that there has been a truly remarkable achievement since the Covid-19 epidemic emerged with regard to achieving suitable accommodation for rough sleepers. A great deal of that work has been done by local government and other agencies and charities across the country. Of course, we would like to see these vulnerable people protected going forward. We have provided additional funding to local authorities in excess of £1.5 billion so that they can be more able to respond to the pressures brought to bear by Covid-19. That includes taking suitable social welfare steps in respect of those who do not have appropriate housing. I would be more than willing to meet with relevant Members, although I should add that the lead on this matter is taken by the Ministry of Housing, Communities and Local Government.

[The Lord Speaker]

Lord Falconer of Thoroton. No? Lord Harries of Pentregarth.

[Lord Harries of Pentregarth (CB)]

Following on from the question from the noble Lord, Lord Foulkes, if Scotland can abolish this without any harmful effects, surely we can do the same in this country. Bearing in mind what the Minister said about using the law to encourage rough sleepers to find help, there are plenty of other laws on the statute book about disorderly behaviour and being a public nuisance that could be used in exactly the same way. Given the Government’s wonderful promises about housing rough sleepers in hotels, how many rough sleepers does the Minister think have not yet been housed?

[Lord Keen of Elie]

There are other statutory provisions in place addressing public order offences; the Public Order Act 1986 is an example and I also mentioned the Anti-Social Behaviour, Crime and Policing Act 2014. However, the evidential requirements of these other statutory provisions can be quite challenging when dealing with those who are sleeping rough. For example, it is not possible to serve a community protection notice under the 2014 Act without a prior written warning. Noble Lords will appreciate that it may be difficult to issue a prior warning to someone with no fixed abode in the first instance and then to follow that up with further steps. There is a place for the provisions of the 1824 Act, but of course we will look very carefully at all sources of opinion in respect of this matter. I reiterate that Section 3 of the 1824 Act has never extended to Scotland—only Section 4.

[The Lord Speaker]

My Lords, the time allowed for this Question has now elapsed. We move on to the fourth and last Oral Question. Baroness McIntosh of Pickering.

Covid-19: Prisons and Offender Rehabilitation

Lord Keen of Elie Excerpts

Thursday 23rd April 2020 Lords Chamber

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

Like other noble Lords, I thank the noble Lord, Lord German, for securing this debate. If I appear to move at speed as I address these matters, it is because I want to address as many of the questions raised as possible in the time available.

Covid-19 presents a unique set of challenges that we must address to maintain the provision of custodial services. We are working very closely with Public Health England to ensure that our approach is based on the best scientific advice available. Our first challenge was to ensure that we had a safe operating procedure, and we implemented what were termed exceptional delivery models with heavily restricted regimes that implement social distancing measures. This puts in place temporary measures to restrict regimes and cease all non-essential activities involving groups of people. That includes social visits, education, non-essential work and association, which has already been touched on. We restricted movement between prisons to prevent the disease spreading from prison to prison and, most importantly, we took a range of measures to ensure that we had resilient staffing levels available, with robust contingencies—I will come back to that. Prison staff have stepped up terrifically; we are doing all we can to celebrate them through the #HiddenHeroes campaign, and we would welcome support for that campaign across government.

We have adapted the way we use the prison estate: we are putting in place units to isolate the ill, units to shield the vulnerable and units to manage the risk from new prisoners. Taking these measures required headroom between the prison population and prison capacity. We are moving towards the necessary headroom through a number of measures and developments. There has been a fall in the prison population due to the upstream changes in law enforcement and court activity; the prison population has fallen by about 2,500 since the start of the pandemic as a result. We are taking measures to expedite remand hearings, implementing the new end of custody temporary release scheme—I will touch on that again—and establishing alternative accommodation, including additional temporary accommodation, in North Sea Camp, Littlehey and Highpoint, and there will be a rapid expansion of that. For resilience during what will clearly be a difficult period, we are making sure that we have sufficient staff available at the front line. We are working closely with the Department of Health and have a clear PPE plan, and have commenced staff testing in line with other key workers.

I will touch on a number of the points made by noble Lords, in particular the noble Lord, Lord German. He began by referring to statistics. Let me be clear: we make a daily report and press release of relevant statistics from the prison estate. The figures that I have—which I must say differ from his—are that as of 21 April: 300 prisoners had tested positive for Covid-19 across 69 prisons; 239 prison staff had tested positive across 57 prisons; and 10 prisoner escort and custody services personnel had also tested positive. As of 22 April, 4,439 prison staff were not working due to Covid-19-related absences, which leaves us with a staffing level of about 80% against current staffing targets. Sadly, I have to report that there have been three prison staff deaths and 15 prisoner deaths with Covid-19. I hope that assists to some extent.

On the matter of cells, in the prison estate we have something like 17,000 twin cells. The temporary cells that we are bringing forward will be single cells. At the moment, we have about 200 constructed. We are proceeding with them within the category D estate as quickly as possible.

The noble Lord, Lord German, also raised the question of PPE for staff. Our position is that we have PPE available to staff. We are focused on social distancing and regular handwashing, but we are using PPE where we need to break social distancing to support close person-to-person operations with prisoners who have suspected or confirmed cases of Covid-19. As regards the actual supply, a stock is available to the Prison Service, separate from that of the Department of Health and Social Care. There have been short-term supply concerns around coveralls and gloves, though I hope that assists in explaining the position.

On overall staff numbers, I have indicated that we are operating at about 80%. We also have provision for additional staff, having invited recently retired staff to return and proposed moving about 750 headquarters staff to the front line. There is also further provision for military personnel to assist, if or when ever required.

In regard to the testing of staff, I can advise that they are key workers and regarded as such. Since 9 April, we have been engaging with the Department of Health and Social Care to discuss plans to ensure that these vital key workers are prioritised in the rolling out of that department’s testing. So far, hundreds of staff have been tested and we are working on a rollout plan to deal with that. Currently, prisoners are not being tested for Covid-19 unless they are taken to hospital unwell, in which case they will be.

On the points raised by the noble Lord, Lord Naseby, on communication and contact, we have implemented further steps because of isolation within cells so that prisoners have PIN credit per week allowing for approximately 60 minutes of free calls. Where there is not in-cell telephony, we have also made provision for access to locked mobile handsets so that they have that facility as well. There is also access to the “email a prisoner” facility on all sites, so I hope that assists.

With respect to the questions from the noble Lord, Lord Harris, I have indicated that the proportion of front-line prison officer staff working is at about 78% to 80%. I have mentioned those statistics already. As regards advice to families, if a prisoner is removed to hospital with Covid-19 or is so ill that he cannot consent to inform his family of his condition, steps will be taken to inform the family. But it would otherwise be a matter for the prisoner to determine whether he wished to make such a disclosure. With regard to the investigation of deaths raised by the noble Lord, the Prisons and Probation Ombudsman is still investigating all deaths in prison. On 26 March, the Chief Coroner published his guidance on Covid-19, which made it clear how important it was that deaths in custody should be scrutinised carefully and that there should be sufficiency of inquiry.

The noble Lord, Lord McNally, raised the various briefings that have been received. If I can adopt shorthand, I am happy to write responding to the points made in those briefings. I will write to him and place a copy of my letter in the Library.

The noble Lord, Lord Ramsbotham, raised the question of single cells, which I have touched upon, and asked about families being kept informed, which I have also touched upon. There is in addition the urgent line, which can be accessed through the GOV.UK website, for families who wish to make urgent inquiries about prisoners.

The right reverend Prelate the Bishop of Gloucester raised the question of pregnant women. They are featured in the release scheme announced on 31 March, but we have to keep public safety at the forefront of our minds. We therefore cannot simply have an unlimited release of women because they are pregnant and in custody. As regards the ability of children to contact those in custody, I have already indicated that we have taken steps to improve telephone contact.

The noble Lord, Lord Farmer, raised a number of questions. Perhaps I may touch on them briefly. As I indicated, we have improved provision for virtual visits, and improved telephony. There is also an iPad on every site for compassionate video calls and we are extending the “email a prisoner” facility to all sites.

The suspension of prison visits will be lifted in accordance with such guidance as we receive from Public Health England and in accordance with operational assessments. As I indicated before, information on how to contact a prison is available to families if they have urgent concerns about an individual in custody.

The noble Baroness, Lady Healy, suggested that there would be no need for risk assessments and that there should be release with them. I simply cannot agree with that proposition.

The noble Baroness, Lady Humphreys, asked whether we have separate statistics for Covid numbers in Welsh prisons, as distinct from the rest of the prison estate. I do not have those numbers. I will inquire to see whether they can be identified as a separate statistic. If they can, I will write to her to let her know what the then-current numbers are and place a copy of the letter in the Library.

The noble Baroness, Lady Bennett, suggested that we should have a daily report of Covid cases in the prison estate. We do have that, in fact. It is made available by way of a press release. She also asked how many people were due for release in the next 12 months. That is not the measure that we have applied under the release scheme. We are concerned with those who are due for release in the next two months, and that will remain the position.

The noble and learned Lord, Lord Woolf, asked about remand prisoners. That is not a matter for the Ministry of Justice; it is a matter for the judiciary. We do not, therefore, feel that we are in a position to address this issue.

The noble Lord, Lord Dubs, asked about single cells and pregnant mothers, which I touched on.

The noble Lord, Lord Balfe, referred to the Prison Officers’ Association. Certainly, from a ministerial point of view, I commend the co-operation that we have had from it in dealing with this crisis within the prison estate. I say that without qualification. When it suggests that we should remember their staff as front-line staff, I agree entirely; they are the hidden heroes in this context.

The noble Lord also asked about testing, which I touched on, and asked about the lack of PPE, which is not critical at this stage. He asked whether such staff are key workers. They are. We regard them as key workers, the Government generally regard them as key workers, and they will be tested as key workers. I certainly hope that supermarkets will have regard to their position in that context.

[The Earl of Courtown]

It is time to wind up.

[Lord Keen of Elie]

I will do so in about a minute, if I may.

The noble Lord, Lord Marks, asked about prisoners being outside cells. Clearly, we must maintain social distancing at present.

The noble Lord, Lord Ponsonby, whom I welcome to his new position on the Opposition Front Bench, mentioned officers worrying about taking the coronavirus home. I understand their concerns. I join the noble Lord in congratulating Center Parcs on the position it adopted with regard to that matter. Clearly, it will be of considerable assistance. However, I do not recognise his reference to the removal of prisoners to care homes. I am not aware of that occurring, but I will inquire further.

On that point, let me say that we are carrying out all the steps that we consider appropriate, as advised by Public Health England. We are developing robust contingency plans and relying on an enormously dedicated group of staff to maintain the prison estate. We are, of course, concerned with the welfare of prisoners and shall continue to be.

I thank noble Lords for their contributions.

[Lord McFall of Alcluith]

My Lords, the Virtual Proceedings will now adjourn until 6 pm for the Government Statement.