Release of Prisoners (Alteration of Relevant Proportion of Sentence) Order 2019

Lord Keen of Elie Excerpts

Wednesday 22nd January 2020 Lords Chamber

Moved by

[Lord Keen of Elie]

That the draft Order laid before the House on 14 October 2019 be approved.

Special attention drawn to the instrument by the Secondary Legislation Scrutiny Committee, 3rd Report, Session 2019

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

My Lords, I will also speak to the Criminal Justice and Courts Act 2015 (Consequential Amendment) Regulations 2019.

These draft instruments form part of the Government’s wider plans to reform sentencing and law and order, through which we aim to strengthen public confidence in the criminal justice system. The purpose of these instruments is to ensure that serious violent and sexual offenders serve a greater proportion of their sentence in prison, and to put beyond doubt that these release provisions will apply in relation to offenders receiving consecutive sentences, ahead of further changes the Government will set out in a sentencing Bill.

Under the provisions of the Criminal Justice Act 2003, all offenders sentenced to standard determinate sentences must be automatically released halfway through their sentence. These orders move the automatic release point for the most serious offenders who receive a standard determinate sentence of seven years or more. Instead of being released at the halfway point of their sentence, they will be released after serving two-thirds of their sentence.

A key component of our criminal justice system should be transparency, but currently, a person convicted of rape and sentenced to nine years in prison will be released after only half that sentence. Victims and the general public do not understand why they should serve only half their sentence in custody. While improved communication about how a sentence is served will help, this measure aims directly to improve public confidence by making sure that serious offenders will serve longer in prison.

Some may suggest that the whole sentence should be served behind bars, but this would not serve victims’ interests. It is crucial that when someone is given a custodial sentence, they spend part of this sentence under supervision in the community. The licence period has long been an integral part of the sentence, and it should remain so. It provides assurance to victims through the imposition of conditions to protect them such as non-contact conditions and exclusion zones, through supervision by the probation service and through the power to recall that offender to prison if they breach their conditions. It is also an important period for rehabilitation, giving the offender the chance to address their offending behaviour and undertake activities that can help to prevent them reoffending. So, a licence period must remain.

However, it is not in the interests of public protection that when someone has committed a serious offence for which they rightly receive a long sentence, such as grievous bodily harm with intent or rape, they are entitled to be released half way. This instrument aims to address this by moving the release point for these serious offenders so that they will serve two-thirds of their sentence in prison and the remainder on licence. Retaining them in prison for longer will provide reassurance to victims, protect the public and restore public confidence in the administration of justice. It will also provide longer periods for these offenders to undertake rehabilitative activity in prison and prepare effectively for their release and resettlement in the community.

Automatic release from a fixed-term custodial sentence is a long-established measure. The Criminal Justice Act 1991 made a clear distinction between long-term and short-term prisoners. Short-term prisoners would be released automatically at the halfway point of their custodial sentence. Under Section 33(2) of that Act, long-term prisoners could be released automatically only at the two-thirds point of the custodial period. The 2003 Act removed this distinction between sentence lengths, requiring all standard determinate sentence prisoners to be released at the halfway point.

This order is the first step in restoring that distinction, beginning with those sentenced to standard determinate sentences of seven years or more, where the offender has been convicted of a serious sexual or violent offence, as specified in parts 1 and 2 of Schedule 15 to the 2003 Act, and for which the maximum penalty is life. Moving the release point to two-thirds for these offenders will correct what this Government consider to be an anomaly in the current sentencing and release framework.

Take the example of an offender convicted of rape. They could receive a standard determinate sentence, or, if they are determined by the courts to be dangerous, an extended determinate sentence. If they are given an extended determinate sentence with a custodial term of nine years, they could spend the whole custodial period behind bars if it was necessary for the protection of the public, but the Parole Board could consider them for release on licence after two-thirds of that period—namely, six years. However, if they were not assessed to be dangerous but had still been convicted of this very serious offence and sentenced to a standard determinate sentence of nine years, currently, they would be released after four and a half years. This measure will bring the two sentencing regimes closer into line, so that the offender could be released only after six years, ensuring that offenders committing these grave offences serve time in prison that truly reflects the severity of their crime.

We are starting with those sentenced to seven years or more because this strikes a sensible balance between catching those at the more serious end of the scale and allowing time for the change to embed sustainably. While the measures will apply to anyone sentenced to a standard determinate sentence of seven years or more for a relevant offence after the orders commence, the effects will not begin to be felt until nearly four years later—that is, until we approach the stage at which the first affected prisoners reach the halfway point of their sentence and remain in prison rather than being released. The impact will be felt gradually; our best estimates are that this will result in fewer than 50 additional people in custody by March 2024, rising to 2,000 over the course of 10 years.

The House’s Secondary Legislation Scrutiny Committee has drawn attention to the impact of this measure. I am content to offer assurances that this Government will act to ensure that the additional demands on HM Prison and Probation Service will be met. We will continue to invest in our prisons, both to build the additional capacity of 10,000 places announced by the Prime Minister—as well as the 3,500 places already planned at Wellingborough, Glen Parva and Stocken—and to undertake maintenance across our prison estate to manage the anticipated increase in demand. We have also invested significantly to increase staff numbers, recruiting between October 2016 and September 2019 an additional 4,581 full-time equivalent prison officers, thereby surpassing our original target of 2,500. We will continue to recruit officers to ensure that prisons are safe and decent, and to support both the current estate and planned future additional capacity.

Our impact assessment is based on assumptions that judicial and offender behaviour will continue unchanged, although of course, that cannot be certain. We are putting in place mechanisms with our partners across the criminal justice system to monitor the impact of the additional officers and give us the ongoing and future insight necessary to allow us to plan the prison estate. As these offenders spend more of the sentence in prison, correspondingly less time will be spent under probation supervision in the community.

These measures will enable us to take swift but sustainable action ahead of the wider package of reforms that the Government intend to bring forward in the sentencing Bill. They are not retrospective and will apply only to those sentenced in England and Wales on or after 1 April 2020.

Not proceeding with legislation would mean continuing with a system which fails properly to ensure that serious offenders serve sentences that reflect the gravity of their crimes and continue to be released halfway through their custodial period. In our view, that is not in the public interest, nor does it promote confidence in the justice system. I beg to move.

[Lord Beecham (Lab)]

My Lords, for some time this country has had the dubious distinction of having among the highest number of prisoners relative to population in Europe, with the numbers having risen by almost 70% in 30 years, with the vast majority of those, some 60%, being imprisoned for non-violent crimes. Moreover, the length of sentences has increased substantially, with 2.5 times as many people being sentenced to 10 years or more in 2018 as in 2006. On average, those receiving mandatory life sentences spend 17 years in custody, an increase of four years since 2001, while the average minimum period imposed for murder rose from 12.5 years in 2003 to 21.3 years in 2016. And yet, typically, the Prime Minister chooses to play to the gallery by reviewing sentencing policy without any consultation beyond the inner workings of the Ministry of Justice, and emerges with proposals for a draconian increase in the length of sentences which is likely to increase substantially the problems faced by an overworked and understaffed Prison Service, and indeed by the majority of prisoners.

As the Prison Reform Trust has pointed out:

“No evidence is given about the re-conviction of people currently released from these sentences”


and there is a risk that

“the people affected will spend a shorter period under the supervision of the probation service after release.”

The trust points out that reconviction rates are indeed lower for those serving more than four-year sentences, but there appears to be no evidence that sentences of seven years or more lead to any further reduction in reoffending on release.

The trust also reveals that the Ministry of Justice’s own research discloses that, when they are given the full facts of individual cases,

“the public tends to take a more lenient approach than sentencing courts.”

Moreover, they are likely to be confused by the fact that, when two convictions lead to consecutive sentences of less than seven years but with a total of more than seven years, the new provisions will not apply. And, of course, it is in any event open to the trial judge to impose longer sentences where this is deemed necessary.

As the trust rightly points out, there are other and better approaches to combating potential reoffending, not least by tackling the problems of the understaffed probation service. It rightly points out that the Chief Inspector of Probation has raised the issue of unacceptably large case loads for officers responsible for the supervision of long-serving former prisoners. Typically, no detail has been supplied of the additional costs of providing the offender management of those in custody that the new regime will require. Can the Minister supply any information about the relevant staff numbers and the costs involved?

For that matter, is he able to provide an estimate of the costs likely to be incurred by local authorities to meet the needs of families struggling for even longer periods without the income of an imprisoned partner or parent? What assessment has been made of the impact on prisoners’ employment possibilities after serving longer sentences and the consequential cost of benefits if, as seems increasingly likely, they find it even more difficult to find employment after a longer period of imprisonment?

Other financial questions arise. Four years ago the Government declared that they would provide an extra 10,000 prison spaces. All of 200 have been created. How many places will be required now to meet the need created by this order? How long will it take to provide them? What is the estimated cost of their provision and of the necessary increase in staffing? To what extent does the estimated increase in prison numbers of 3,200 by March 2023 reflect this new policy—or did that increase precede the policy contained in this order?

The last decade has seen a shocking worsening of conditions in our prisons. Sexual assaults quadrupled between 2012 and 2018; 117 prisoners have died having used or possessed new psychoactive substances; self-harm incidents rose from 23,158 in 2012 to a staggering 55,598 in 2018, with women disproportionately affected; and assaults rose dramatically, tripling to more than 10,000 on staff between 2013 and 2018. Yet staff numbers were cut by 26% between 2010 and 2017-18—albeit with some partial restoration since then. But—this is surely alarming—54% of the officers who left the service last year had served less than two years. What, if any, attempts were made to understand the reasons for this drastic loss of staff in such a short period and to avoid its repetition? Currently, 35% of staff members have been in post for less than two years and only 46% have served for more than 10 years. What, if anything, is being done to address this disturbing position and what, if any, is the difference between privately and publicly managed prisons in those respects?

In 2018, 58,900 people were sentenced to prison, 69% of them for non-violent crimes. Of those who received custodial sentences, 46% served six months or less. Is it not time to review the utility of such sentences against alternative measures? Would it not be better to secure greater investment in the probation service and the youth service as an approach to tackling the problem?

Should it not be a priority to promote purposeful activity for those sentenced to imprisonment? Just two in five prisons received a positive rating for this in 2017-18, while the quality of teaching and learning in prisons has declined, with the number of those rated as good reduced to 42%. Some 62% of those in prison had a reading age of 11 or lower in 2017-18. What will the Government do to address this serious situation, which is mirrored in a significant fall in the number participating in education while in custody?

There are serious matters to be addressed in our Prison Service. Will the Minister use his influence to persuade the Prime Minister to address them rather than play to the gallery with a populist approach that at best will achieve nothing and is likely to make matters worse, not just for prisoners but for prison staff and society as a whole?

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[Lord Keen of Elie]

My Lords, I am grateful for all the contributions to the debate, which has ranged widely and not simply confined itself to the terms of the present order. That is entirely understandable and appreciated. I have listened with interest and concern to the many contributions. I will touch on some as I go through, more on the basis of topics than anything else.

I emphasise that we are dealing here with steps that we can take by way of this order in the context of our bringing forward a sentencing Bill that will be the subject of detailed consideration both here and in the other place. However, this is what we can do at present under the 2003 legislation.

In answer to the proposition that we are increasing sentences, I suggest that this is a process of restoration, not of increase; we are restoring the position to what it was prior to 2003. There is also the technical question of how we deal with consecutive sentences, because there was a concern about the state of the law before that.

My noble friend Lord Hailsham talked about relevant courses for safe release, and he makes a good point. It is more applicable to extended, rather than standard, determinate sentences, but I am conscious of his point. That touches on a wider issue of concern, that of rehabilitation. We all aspire to secure rehabilitation; who would say, “Yes, we want to imprison people for long periods but we’ve no desire to rehabilitate them. We’d rather they came out of prison just as dangerous and violent as they were when they went in”? Of course we aspire to rehabilitate. Although it may have gone unsaid in some quarters, we all understand what a challenge that genuinely is for the prison population that we have, but we are concerned to try to achieve it.

If we extend the sentence, as this instrument proposes, it will take some pressure off the probation service, but I do not seek to overstate that. Reducing the period for which someone is on licence will take some degree of pressure off the service, but that is perhaps marginal.

The noble Lord, Lord Ramsbotham, talked about us now adding 2,000 prisoners to an overcrowded population. However, with respect, that is the impact on prison numbers by 2030; we will not see any immediate impact from this for four years. It is a gradual process, and we are in the position of already dealing with the question of prison numbers by reference to capacity and staff. Indeed, in August 2019 it was announced that we would expend some £2.5 billion in this area, and in 2020-21 we will expend somewhere in the region of £156 million on the existing prison estate. Those are considerable sums of money.

The noble and learned Lord, Lord Thomas of Cwmgiedd, raised the question of new Treasury money—I think I quote him correctly. I confess that that is more a matter for the alchemist than the Minister. New Treasury money is, again, one of those aspirations that every Minister may have, but securing it is very different from talking about it. But we are expending considerable sums on the prison estate and will continue to do so.

In passing, I recognise the importance of access to justice in all its forms, as we all do, but we must be proportionate in how we go about that. There are various demands on the public purse; we cannot just assume that we have unlimited funds available, even in legal aid, for example.

Of course, there are changes we can aspire to. Indeed, the noble Lord, Lord Hogan-Howe, talked about the introduction of further technology. I am sure that is an area where exploration would pay dividends over the 10-year period we are talking about, up to 2030.

These instruments are an important first step towards reforming sentencing and release measures for offenders, particularly those who cause the greatest harm to society. In these circumstances, we consider that they will ensure an improvement in the perception of how sentencing operates. Indeed, a noble Lord mentioned that some victims of crime have little idea of how the sentencing of a prisoner who has committed a violent crime actually works. It is important to bring greater transparency to that, while ensuring that when a violent prisoner, or a prisoner who has committed a violent offence, is released, they are still subject to a period when they receive the required support from the probation service, and are still under licence and can be returned to prison if they commit a further offence.

I commend the instrument to the House.

Motion agreed.

European Union (Withdrawal Agreement) Bill

Lord Keen of Elie Excerpts

Committee: 2nd sitting (Hansard) & Committee stage & Committee: 2nd sitting (Hansard): House of Lords
Wednesday 15th January 2020 Lords Chamber

[Baroness Hayter of Kentish Town]

My Lords, I too am not a lawyer, and I will not even attempt to add to the legal arguments, which have been so well set out by the noble and learned Lords, Lord Woolf, Lord Judge, Lord Thomas of Cwmgiedd and Lord Brown of Eaton-under-Heywood, as well as by the noble Lord, Lord Beith, and others, as to why any decision on the interpretation of retained EU law should be taken at Supreme Court level, as envisaged in the 2018 Act, and why ministerial regulations are simply not appropriate in this matter.

I will say three things. One is that it is a really bad way to make law suddenly, with such a clause, with no consultation either with the judiciary—if this was the consultation that has happened today, I think we can take it as, “No thanks”—or, indeed, with the devolved nations, which we discussed earlier. I will answer the question put by my noble friend Lady Taylor about what the Government have in mind. At a briefing, it was very clear that they already had something in mind, a sunset clause at the end of this year, and my answer is simply that there is something that is not oven-ready at the moment that is waiting to come in. There is a closed envelope somewhere, and it is appropriate that we should be told what exactly is in it, so perhaps we could hear about that later.

Secondly, as the noble and learned Lord, Lord Mackay of Clashfern, has said, Clause 26 could result in the divergence of approach within and between the jurisdictions of the UK on matters where a common approach is essential: things that are fundamental to our UK-wide single market. On Monday, the noble Duke, the Duke of Montrose, recalled that for 40 years EU legislation

“ensured that there was a large amount of similarity and coherence in how these laws were interpreted in the various parts of the United Kingdom. The question that arises now is: will we require to maintain that level of coherence in order to operate as a single national economy? This will be particularly true for food, farming, fishing … in Scotland and … the devolved Administrations.”—[Official Report, 14/1/20; cols. 530-1.]

Harking back to the earlier discussion about the all-United Kingdom economy, this seems a crucial issue. Allowing lower, non-UK-wide courts to interpret the regulations that the noble Duke, the Duke of Montrose, mentioned, environmental matters, as raised by the noble Baroness, Lady Jones, or VAT or duties, which the noble and learned Lord, Lord Judge, mentioned, could open a wide door to divergence on issues within our own single market.

Thirdly, there is obviously a fear that this provision risks undermining workers’ rights, given that the political declaration makes no mention of the rights previously protected by the European Charter of Fundamental Rights and its key principles which have found their way into EU case law. Employees in the UK benefit from the ECJ’s sometimes more generous interpretation of employment rights, such as the right to paid holidays, the requirement for employers to keep records of hours worked to comply with the working time directive, and the ruling as to whether overtime is factored into holiday pay. These have been essential and are now part of UK law—of course via case law. Without a guarantee to uphold the body of case law on workers’ rights, the Prime Minister’s commitment to protect our employee rights after Brexit will sound more hollow than any chimes of Big Ben, whether on 31 January or any other day.

Clause 26, which has been dropped in with no rationale, prior debate, consultation or Green Paper, diminishes the Bill while introducing uncertainty into our laws. It has no place here. We will seek to remove it, although, as other noble Lords have said and as the noble and learned Lord, Lord Mackay of Clashfern, urged, it would be much better if the Government were to do this.

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

My Lords, I am obliged to the noble Lord, Lord Beith, for moving the amendment in the name of the noble Lord, Lord Pannick. I will seek to offer some explanation and reassurance with regard to the clause in question.

As has been noted by the noble and learned Lord, Lord Brown of Eaton-under-Heywood, we are concerned here with retained EU law. For clarity, Clause 26 draws a distinction between retained EU law and relevant separation agreement law, which is applicable as a consequence of the withdrawal agreement and is untouched by any of these proposals, given our international law obligations. Retained EU law will form part of the law of the United Kingdom. It is then a question of how we approach the interpretation and application of that law, which, in turn, takes us to the question of precedent and the binding force—at present—of decisions of the Court of Justice of the European Union in this context.

Provision has already been made, pursuant to Section 6(5) of the 2018 Act, to confer upon the United Kingdom Supreme Court the power to depart from previous decisions of the Court of Justice of the European Union. The idea that one can depart from such a body of case law is hardly novel. It has been a feature of common law since at least the 1960s, when the judicial committee of the House of Lords expressed its intention to depart from previous case law as and when it felt it was necessary to do so. Therefore, we are not, as it were, moving into novel territory in this context.

The intention behind this clause is to give a power to make regulations to ensure that the United Kingdom courts are not inappropriately bound by retained EU case law as part of the body of United Kingdom law after we have left the European Union. It goes no further than that. These courts may choose to follow that case law, but the point is to ensure that they are not bound to do so in circumstances where they form a view that it would be inappropriate to the development of UK law for them to do so.

The Government are sensible in the manner in which they will seek to exercise the regulatory power. The Bill requires that Ministers must consult the senior judiciary across the whole of the United Kingdom before making any regulations, and indeed may consult other appropriate persons, and any regulations will be laid before Parliament under the affirmative procedure. Those safeguards are clearly in place.

We want to ensure that United Kingdom law after we leave is consistent and clear. The power will be employed in a way that is consistent with our own constitutional norms and traditions: judicial independence, the doctrine of precedent and the separation of powers. Any regulations will respect these long-established principles but will also allow that retained EU case law is not the sole preserve of the court of final appeal, be it the United Kingdom Supreme Court or, in the context of criminal matters, the High Court of Justiciary in Scotland.

[Baroness Hayter of Kentish Town]

The Minister says that this will be done under the affirmative procedure. Should that come here, we have always had the right to negate such an order. However, should this House do that, given the advice it has had, it would not be challenged as a constitutional outrage but would be a proper use of this House’s power.

[Lord Keen of Elie]

It would always be a proper use of this House’s power, albeit there are constitutional norms that apply. However, it is not just this House; the House of Commons would also have the opportunity to address the terms of any regulations. I have no doubt that, having regard to our constitutional norms, this House would have regard to the determination of the House of Commons on that point, but would not be absolutely bound by it. I fully accept that.

[Baroness Ludford (LD)]

The Minister has just said that this would improve consistency. How can it improve consistency in the interpretation of law if you potentially have a proliferation of lower courts that can all reach different judgments? The import of the objections made in the last hour is precisely that having just the Supreme Court, and the High Court of Justiciary in Scotland, is much more a recipe for consistency than what the Government are planning.

[Lord Keen of Elie]

That is one view as to how we might achieve consistency. However, as the noble Baroness, Lady Ludford, will have noted from the contributions made by a number of noble Lords and noble and learned Lords—in particular the noble and learned Lord, Lord Thomas of Cwmgiedd, and my noble and learned friend Lord Mackay of Clashfern—there are diverse views as to how this could be achieved.

For example, one view is that the power should rest only with the Supreme Court and the High Court of Justiciary but that there should be a reference process. Another view is that the power should be conferred upon the Court of Appeal, a lower court, or the Inner House in Scotland, because that would assist the Supreme Court as and when it came to consider the matter, and speed up the whole process of determining the issue. There are diverse views, as is reflected in the report of the Constitution Committee, as to how this could best be achieved. That is a very compelling reason for taking this regulatory-making power in order that, with the appropriate consultation, we can come to a suitable consensus as to how this is best done in the future. We can then allow for flexibility.

I stress that if, for example, we left the power purely in the hands of the United Kingdom Supreme Court, that might assist in consistency of decision-making—I will come back to the question of precedent in a moment—but it would put immense pressure on the Supreme Court itself and potentially create significant delays for litigants. Given that, it would not be a recipe for certainty; rather, it would be a recipe for uncertainty.

As I say, there are diverse views on how we can best achieve the result that we are all seeking. That is why it is appropriate that we should pause, take the matter forward by way of regulation, consult with the appropriate parties and then determine the best means of doing this. That will have to be resolved before the end of the implementation period.

At the end of the day, the power can be used only to determine which courts can depart from retained EU case law, the circumstances where they may do so and what test may be applied in doing so. It will not be used to set out how the courts are to interpret retained EU case law, because that is a matter for the independent judiciary, and it will not determine that courts may not follow established EU case law.

The noble Lord, Lord Anderson of Ipswich, made a number of points about unleashing uncertainty. With the greatest respect, Section 6 of the existing 2018 Act already provides that the Supreme Court may depart from established EU case law, although it may take significant time before it comes to address a particular question in a particular case. There is, therefore, what he referred to as “uncertainty with effect from now” if we proceed purely on the basis of Section 6.

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[Lord Beith]

Can the noble and learned Lord tell us at what level of court he thinks it would be inappropriate to extend these powers, and would that level embrace all those courts which do not have a precedent-creating capacity?

[Lord Keen of Elie]

As the noble Lord is aware, there is a level of courts, for example the Sheriff’s Court in Scotland, which is not bound by each other’s judgments, and therefore at that level one could arrive at inconsistency of decision-making, and we are conscious of that. The question is where we should best place the determination, and the whole point of this clause is to allow for the flexibility that is required, upon consultation with the appropriate parties, to determine how we can best achieve the outcome that everyone seeks. I am not in a position to say that it will be just the Supreme Court, as it is under Section 6, or to say that it will be just the Supreme Court and the Court of Appeal. However, one can see a rationale behind the approaches, both of which have been supported by various noble and learned Lords in the course of this debate. What we want to be able to do is to resolve that debate and achieve a consensus that will bring about the best result for the law of the United Kingdom, given its different legal systems. What we are seeking in the end is certainty for those who seek to litigate in our courts, and we would achieve that by coming to a consensus on how we should look at EU case law going forward.

I cannot accept the amendment and at this time I would urge the noble Lord to withdraw it.

[Lord Howarth of Newport]

How does the Minister defend—if he conceivably can—the violation of the principle of separation of powers embodied in this clause?

[Lord Keen of Elie]

I do not consider that this clause in any sense violates the principle of the separation of powers.

[Baroness Hayter of Kentish Town]

Given that that Minister has not answered my noble friend’s question and given that there is a sunset clause on this, there must be something ready to go. Can he not explain what it is?

[Lord Keen of Elie]

No. What is ready to go is a consultation process. That is why we have not reached a conclusion. The noble Baroness, Lady Taylor, asked two questions, the first of which was, “Are the Government going to use this power?” We are going to use it in order to consult with appropriate parties. May I give examples? Examples have been given by noble and learned Lords. One example is a reference system to the Supreme Court. Another example is to extend this power to the Court of Appeal. That is what we want to determine by virtue of the consultation process we wish to take forward.

[Lord Newby (LD)]

Is the Minister saying that when the consultation goes out, it will in effect be saying, “Give us a clue as to what you think makes best sense because we haven’t the faintest idea ourselves”? Are the Government going to express no thoughts about what might be preferable? Have they had no thoughts? Have they not thought about it before now? In every other aspect of Brexit, the Government have clear, dogmatic, unwavering thoughts. On this single one, they appear to have no thoughts at all. Is that not strange?

[Lord Keen of Elie]

My Lords, this Government are not dogmatic—the noble Lord is quite wrong about that. Let us be clear: there is a starting point. If I can refer the noble Lord back to Section 6(5) of the 2018 Act, he will see that the starting point is already enacted. However, we want to find a way forward that is more effective and appropriate, and that is the purpose of the consultation process that is allowed for in the clause.

[Baroness Taylor of Bolton]

Will the Minister answer the point raised about the policy areas the Government have in mind where they could use these powers?

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[Lord Keen of Elie]

It is not a question of having policy areas in mind. We want to take forward a consultation process that will enable us to arrive at an appropriate conclusion as to how we should look at EU case law as a part of retained EU law after the implementation period has expired.

[Lord Mackay of Clashfern]

My Lords, I understand that the first part of the amendment may be reasonably accommodated within the answer given to the previous question about separation of powers. I cannot see how the second part can be accommodated—formulating the question the court has to decide in deciding whether the previous decision of the Court of Justice of the European Union should be followed.

[Lord Keen of Elie]

With respect to the noble and learned Lord, we seek to consult on the appropriate test to be applied in taking this matter forward. We intend to do that in consultation with the senior judiciary.

[Baroness Hayter of Kentish Town]

My Lords, given that the existing law has now been in place since 2018 and all that time could have been used for this consultation, why has this suddenly gone in now with the power to make changes by ministerial decision? If it was not felt at the time that the 2018 position was correct, why has this consultation—which could take place without an Act of Parliament—not already taken place?

[Lord Keen of Elie]

My Lords, in the interim there had been certain distractions, including a general election—the outcome of which the noble Baroness will be familiar with.

[Lord Brown of Eaton-under-Heywood]

My Lords, may I just be clear? When in future the High Court, say, is given this power to exercise what currently under the practice direction is only for the Supreme Court, will it not merely be saying that we will not follow this precedent from the European Court of Justice, but declaring retrospectively that it was wrong all the time? Or will it be saying in this particular case that we are not going to follow that principle but in all other cases—cases pending, appeals and so forth—we will? In other words, will there be the retrospectivity we now have under the practice direction, with the court declaring what the law in truth is and saying it was wrongly understood before; or is it merely to be, as legislation has it, that this will be the law in future—we are changing it?

[Lord Keen of Elie]

That matter will have to be addressed in the context of the regulations that are to be made, but those are the two options available. You can either proceed upon the basis that has pertained since the 1960s, which is, as we have stated, the law as it has always been, or say that the law is about to change. I make the point again that what will be provided for is the circumstances in which a court is not bound by EU case law. It will not be a circumstance in which they are told they are not allowed to follow EU case law; it will be open to them to do so if they wish.

Queen’s Speech

Lord Keen of Elie Excerpts

Wednesday 8th January 2020 Lords Chamber

[Lord Lamont of Lerwick]

That an Humble Address be presented to Her Majesty as follows:

“Most Gracious Sovereign—We, Your Majesty’s most dutiful and loyal subjects, the Lords Spiritual and Temporal in Parliament assembled, beg leave to thank Your Majesty for the most gracious Speech which Your Majesty has addressed to both Houses of Parliament.”

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

My Lords, it is a privilege to open the third day of debate on Her Majesty’s most gracious Speech. I begin by wishing all noble Lords a happy and prosperous new year.

The focus of today’s debate on home affairs, justice, constitutional affairs and devolved affairs will enable us to explore some of the key themes of the gracious Speech. That includes the Government’s commitments to making our streets safer, which is the first duty of any Government; to review the way the constitution works in our modern society to ensure that our democracy and the rights of all are protected and supported; to deliver further for the whole of our union, investing in and levelling up every part of England, Scotland, Wales and Northern Ireland; and to improve the criminal justice system so that it is fair, proportionate and supports victims to get the justice they deserve. Given the wealth of experience represented on all sides of the House, both my noble friend Lady Williams and I look forward to hearing the contributions from noble Lords.

We were all shocked and appalled by the scenes at London Bridge at the end of last year. I express my deepest condolences to the families and friends of Jack Merritt and Saskia Jones. I also pay tribute to those members of the public and the emergency services who ran towards danger. The incident was a shocking reminder of the threats we face from terrorism. The Government’s top priority is the safety and security of the public, and that is why we will introduce changes to ensure that the worst terrorist offenders spend the appropriate amount of time in prison. We want to give the public greater confidence that the sentences served by terrorists reflect the level of their offending and the risk they represent.

The Government have also been clear that the most serious violent and sexual offenders must serve sentences that truly reflect the severity of the crime. We will toughen community orders, so that they deliver an appropriate level of punishment, and address issues such as mental health or substance misuse.

As well as getting tougher on criminals, we also recognise that being a victim of a crime can be a life-changing event and the way that people are treated in the justice system can have a huge impact in helping them to recover. The Government are determined to ensure that victims receive the support they need and the justice they deserve. That is why we have committed to guaranteeing victims’ rights in legislation, through a victims law. Our law will build on the rights to which victims are entitled as set out in the victims’ code and ensure that they fully understand the level of support they can expect. Furthermore, we are committed to consider increasing the powers of the Victims’ Commissioner, so that they can better hold government to account. To deliver this we will seek views on a revised victims’ code in early 2020 and bring forward a consultation on our new victims law as soon as possible thereafter. Noble Lords will agree that such an approach will ensure that victims of crime receive the best support and the understanding they need to enable them to cope and recover.

Recent cases have underlined the anguish for families when offenders are released in spite of refusing to disclose the location of their victims’ remains. This Government have brought forward legislation to make sure that an offender’s failure to disclose these details about their offences is considered by the Parole Board as part of its assessment as to whether they should be released from prison. We are grateful to the family of Helen McCourt, who have underlined the significant importance of this issue. The legislation also makes provision to address circumstances where offenders fail to disclose the identities of children who are the subject of indecent images.

Domestic abuse can shatter the lives of victims and tears families apart. In the year ending March 2019, an estimated 2.4 million adults experienced domestic abuse. The domestic abuse Bill will transform the response to domestic abuse to better protect victims and their children, and to ensure they have the support they need and that offenders are brought to justice. We need to build a society that has zero tolerance when it comes to domestic abuse and empowers people to confront it. This Bill will be a step towards that.

Marriage will always be of vital importance to our society, but when people take the difficult decision to divorce, the legal process should not incentivise conflict. The current process incentivises that one spouse makes allegations about the other’s conduct, to avoid otherwise waiting for at least two years of separation. The new process will remove the requirement to prove that the marriage has broken down irretrievably. Where reconciliation is not possible, the new process will encourage couples to approach arrangements for the future as constructively and co-operatively as is possible.

The Government are committed to ensuring a fair justice system that works for everyone and commands public confidence. We will establish a royal commission on the criminal justice process in England and Wales which will deliver a fundamental review of some of the key issues affecting the system now, and which may do so in the future. The Government will set out the terms of reference for the royal commission in due course, which will include details on the scope, duration and membership of the commission.

After Brexit, United Kingdom businesses, individuals and families will still need to be able to settle cross-border disputes. That is why we are bringing forward a Bill enabling us to operate agreements on private international law after we leave the EU. These agreements can help to return home a child abducted by one of their parents, help two parents living in different countries to agree custody arrangements in the best interests of their children, or help a UK business to resolve issues with a supplier based abroad. Without these agreements, people involved in cross-border disputes will find it more difficult to resolve them. This Bill will give United Kingdom businesses, citizens and families the confidence to work, live and trade across borders, and will help the UK to flourish as a trading nation, as we leave the European Union.

Following our exit from the European Union, the government will bring an end to free movement to ensure that the UK can take back control and introduce an Australian-style points-based immigration system that prioritises people’s skills and contributions to the UK. While seizing this opportunity, we remain committed to ensuring that resident European citizens—people who are our family, friends, neighbours and colleagues and who have built their lives here and contributed so much to this country—have the right to remain.

The tragic killing of PC Andrew Harper last summer and the incident at London Bridge in November illustrated how police officers put their lives on the line and make sacrifices day in and day out in the course of their duties to assist others. The Government are committed to the recruitment of 20,000 police officers over the next three years and we have already begun recruiting new officers. We are also committed to providing the police with the powers, support and protection they need to do their jobs effectively and safely. That is why we are putting our commitment to a police covenant on a statutory footing. We are strengthening the powers available to the police to allow them to tackle unauthorised encampments. We will also introduce measures to strengthen the legal protection given to police drivers when pursuing a subject or responding to an emergency. This will ensure that the police have the protections and the powers they need to continue with their vitally important work.

Along with further protections and powers for our police officers, we will also award them the power to arrest individuals who are wanted by trusted international partners. We will ensure that the police do not have to allow known offenders, flagged on Interpol systems, to walk free while they seek a warrant. The provision will see people who are wanted for a serious crime in a country such as Canada or America and who may be a danger to the public brought before a judge within 24 hours to allow extradition proceedings to commence and thus make the streets of the UK safer.

The Government are working hard to improve the efficient and effective removal of foreign national offenders from the UK. However, tougher action is needed to stop abuse of the system, speed up the process for deporting foreign national offenders and deter foreign criminals from coming to the UK. That is why the Government will significantly increase the maximum penalty for those who return to the UK in breach of a deportation order, sending a clear message to criminals who seek to return to the UK, namely: if you try to return, you will go to prison for a long time.

The Government are absolutely committed to tackling serious violence and making our streets safer. We are determined to stop young people being drawn into crime. We need to understand and address the factors that cause someone to commit violent crime in the first place. That is why the Government will bring forward a new legal duty which will ensure that all agencies work together to share intelligence and identify warning signs, so that we can intervene earlier, protect young people and prevent and reduce serious violence in local areas.

The United Kingdom and its allies face sustained hostile activity from certain states, as illustrated by the Salisbury attack. We are committed to empowering the brave men and women of our law enforcement and security services with the tools they need to tackle these evolving threats. The espionage Bill will modernise existing offences to deal more effectively with the espionage threat.

One of this Government’s key priorities is the integrity and prosperity of the union that binds the four nations of the United Kingdom. Our union is the most successful economic and political partnership in history, and it is at its strongest when all four nations work together. We are committed to getting Stormont functioning again and we will continue to work with Northern Ireland’s political parties to re-establish the Executive and the Assembly. Following the UK’s departure from the European Union, we will devolve and empower regions across England so that decisions and powers sit in the right place and closer to people than ever before. As set out in the gracious Speech, the Government are committed to levelling up powers and investment in the regions across England and will also introduce a bold new UK shared prosperity fund to tackle inequality and deprivation in each of the four nations and across all regions of the United Kingdom

The measures outlined in the gracious Speech set out a clear direction for the future of the United Kingdom, for a country with safer streets where the most serious offenders spend longer in prison and tougher community sentences address underlying causes of crime—one that ensures that victims receive justice and have rights enshrined in law to support them throughout the process.

We want a society with zero tolerance for domestic abuse that empowers people to confront it, that values marriage but accepts the realities of divorce, and gives the necessary powers as well as the legal protections our police officers need to do their jobs and keep us safe. We want a nation that works with others to settle cross-border disputes, values immigration but prioritises the skills it needs and rejects foreign criminals from our shores swiftly and decisively, where state agencies work together to address serious violence tou keep our young people safe from harm. We want a United Kingdom that works together, where every constituent part and region is empowered with the necessary political will, the right levels of investment, and the ability to make decisions in its own best interests, where opportunity is levelled up and every single person can thrive. Over the coming weeks and months, I look forward to debating with your Lordships the many measures which I have outlined today.

Prisons: Pregnancy Healthcare

Lord Keen of Elie Excerpts

Thursday 31st October 2019 Lords Chamber

[Baroness Hussein-Ece]

To ask Her Majesty’s Government, following the death of a newborn baby in HMP Bronzefield, whose mother reportedly gave birth alone in a cell with no medical care, what action they are taking to ensure that vulnerable pregnant women have access to good-quality healthcare, and are safe, in prison.

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

My Lords, the incident at Her Majesty’s Prison Bronzefield was tragic. Ongoing investigations, including by the police, mean that it is not appropriate to comment on the details. While the police investigation has primacy, we have asked the Prisons and Probation Ombudsman to conduct an overarching investigation. This distressing incident is a rare occurrence. Every step is taken for women to give birth in hospital but, for a small number, this is not possible due to the unpredictability of labour.

[Baroness Hussein-Ece (LD)]

I thank the Minister for that Answer, although it is not satisfactory. It seems that lessons were not learned at Bronzefield Prison as there were two such incidents in the past year, one resulting in a stillbirth. Will the Minister say why, despite the Government’s commitment in the female offender strategy to reduce the number of women in prison, the figures show that they are going up? Why is it that the Government—or the Prison Service—have no figures at all for how many women in prison are pregnant? Surely an urgent and immediate audit is needed to ensure that that is rectified. In addition, the Minister said that the Prison Service is responsible for pregnant women, but surely it is also responsible for their unborn children. This Victorian incident of a woman giving birth alone in a prison cell illustrates the lack of care and support for pregnant women in prison, many of whom should not even be there. Can he explain this, please?

[Lord Keen of Elie]

My Lords, I cannot accept all the propositions advanced by the noble Baroness. As at 3 pm on Monday, 47 women in custody were identified as being pregnant. In 2018, collection of local data identified that there were fewer than five cases in which a woman in custody had given birth in prison. Every effort is made to ensure that suitable midwifery and perinatal care is available for all women taken into custody. Indeed, the guidance document Working with Women in Custody and the Community, published in December 2018, includes an entire section on caring for perinatal women in prison. This was a most unfortunate incident. As I say, it is not appropriate for me to go into the detail of the incident, given that there is an ongoing police inquiry, but I can assure the noble Baroness that, apart from the guidance I have just referred to, the National Prison Healthcare Board has a principle of equivalence of care for prison healthcare in England to ensure that the same standard of perinatal care should be available to those in custody as to those in the community.

[Lord Beecham (Lab)]

My Lords, we have a situation where 600 pregnant women are confined. While this raises questions about sentencing, it surely also underlines the need for those in charge of women’s prisons to provide proper care. There are 11 investigations currently under way. Given the shocking failure of Sodexo in this case, what sanctions will the Government impose on the company? Will it transfer the management of women’s prisons to public sector or non-profit-making management?

[Lord Keen of Elie]

My Lords, the guidance that I referred to applies equally to public sector and contracted prisons. With reference to Her Majesty’s Prison Bronzefield, I observe that the most recent report from the inspectorate, published in April this year, identified Bronzefield as an “overwhelmingly safe prison” and an “excellent institution”. It found that pregnant prisoners in Bronzefield were identified and immediately referred to midwifery support. Clearly, we need to look at this incident and learn lessons from it. We are intent on doing so.

[Lord Garnier (Con)]

My Lords, I declare my interests as a trustee of the Prison Reform Trust. Will my noble and learned friend not only take on board the points made by the noble Baroness opposite in respect of the example at Bronzefield but widen the inquiry he has spoken about to cover all medical services provision in the prison estate in England and Wales, be it for mental or physical health? An increasing cohort of elderly, geriatric and end-of-life prisoners is underprovided for in terms of adequate medical care. Will my noble and learned friend ensure that this Government make sure that there is proper provision for all prisoners, throughout the prison estate?

[Lord Keen of Elie]

My noble and learned friend makes a very good point. It is essential that we provide medical care across the board for those in custody. As I mentioned, that is why the National Prison Healthcare Board has produced its principle of equivalence of care for prison healthcare in England. That followed a report by the House of Commons Health and Social Care Committee, published in November 2018, which recommended that the board should work with stakeholders over the next 12 months to agree a definition of equivalent care and indicators to ensure that they can measure that there are no health inequalities for people detained in prison. Of course, that includes mental health, which is a major issue, particularly in respect of women’s custody, with more than half of women in custody recorded as reporting or suffering from mental health issues. I agree that that needs to be addressed.

[Lord Ramsbotham (CB)]

My Lords, when I suspended my first inspection of HMP Holloway after discovering that women were routinely chained while in labour, I was very disturbed to discover that there was nobody in Prison Service headquarters responsible for the overall direction and co-ordination of women’s prisons. Could the Minister tell the House who in Prison Service headquarters is responsible for the co-ordination of the delivery of services to pregnant women in prison?

[Lord Keen of Elie]

My Lords, that ultimately rests with the director-general, who in turn takes steps to deal with those concerned at a regional level. That remains the position. I am pleased to say that the director- general of the Prison Service is always in communication with prison group directors regarding all these issues. I am also pleased to observe that we have moved on significantly since the days when the noble Lord, Lord Ramsbotham, made the discoveries he referred to. Matters have improved. Indeed, my understanding is that Holloway prison is no longer open.

Sharia Law: Marriages

Lord Keen of Elie Excerpts

Wednesday 23rd October 2019 Lords Chamber

[Baroness Cox]

To ask Her Majesty’s Government what progress they have made in implementing the first recommendation of The independent review into the application of sharia law in England and Wales, published in February 2018, in order to protect Muslim women in Islamic marriages which are not civilly registered.

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

My Lords, the review recommended creating an offence that would apply to celebrants of religious marriages that do not confer legal rights. We continue to explore across government the practicality of such an offence among other potential options and whether it would achieve the change of practice intended.

[Baroness Cox (CB)]

My Lords, I thank the Minister for his reply, but we have seen no evidence of any progress on this crucial issue, which causes so much suffering to so many Muslim women in this country. Is he aware that many noble Lords were deeply concerned by his response to a similar Oral Question in July, in which he suggested that the plight of Muslim women,

“is more of a social issue than a legal one”?—[Official Report, 4/7/19; col. 1516.]

Given the recommendations of the sharia law review, the Casey review and the Parliamentary Assembly of the Council of Europe, and the number of Private Member’s Bills that I have submitted since 2011, will the Minister give an assurance that the government legislation will at last be introduced with great urgency, as so many Muslim women are suffering in ways which would make our suffragettes turn in their graves?

[Lord Keen of Elie]

My Lords, I fully understand the concern about this issue in relation to marriage law. We do not agree with the recommendations in the sharia review. The Council of Europe’s view on this was, I regret to observe, inept in so far as it used the concept of “civilly registered”, which is not a legal concept in the context of the marriage laws of England and Wales. On 29 June, it was announced that the Law Commission would undertake work in relation to the law on how and where marriages may take place in England and Wales. The commission will not consider directly the sharia review’s recommendations, but it will consider rationalising the system of offences within marriage law.

[Lord Anderson of Swansea (Lab)]

My Lords, the Minister may understand the concern, but the question is what the Government are going to do about it, having set up this commission. Are they content with a situation where, under sharia courts, women are constantly discriminated against in terms both of inheritance and particularly evidence, the weight of their evidence being half that of a man’s?

[Lord Keen of Elie]

My Lords, we do not recognise sharia courts in this country; we do not recognise sharia law in this country. It is necessary that people carry through their relationships in accordance with the law of England and Wales. However, the Government do not prevent individuals seeking to regulate their lives through their religious beliefs.

[Lord Cormack (Con)]

My Lords, as one who has supported the noble Baroness, Lady Cox, and admires her persistence and courage, I ask my noble and learned friend to ensure that action is taken soon to give these women—I have met some of them with the noble Baroness—the basic equality that they are denied, and which everyone in this country deserves.

[Lord Keen of Elie]

My Lords, one is clearly concerned where equality of treatment is not available as it should be under our law, but I repeat a point that I made on a previous occasion, albeit the noble Baroness, Lady Cox, may take issue with it: this is as much a social issue as it is a legal issue. Many people in this country choose to cohabit rather than go through any form of marriage but, within the Muslim community, cohabitation is severely frowned upon. It is for that reason that we find that many go through this informal form of marriage, which is not recognised under our law.

[Baroness Hussein-Ece (LD)]

My Lords, religious marriages that are not legally recognised is an issue that affects women and girls from many faiths and backgrounds. A third of cases dealt with by the UK’s Forced Marriage Unit involved children under the age of 17. The Minister will be aware that, under existing law, children can be married and, shockingly, an adult marrying a child in this way is not in itself a crime; it is simply not legally binding. Will the Government take action to close this loophole by increasing the minimum age of any marriage to 18 and protect all children from all backgrounds?

[Lord Keen of Elie]

My Lords, forced marriage is a criminal offence in this country and has been since 2014. Indeed, in 2017 we introduced lifelong anonymity for the victims of forced marriage to encourage more people to come forward and report it. The age of marriage is 16 but, in the period from 16 to 18, marriage can of course be carried out only with the consent of the parent. There are no immediate plans to increase the age in respect of marriage.

[Baroness Flather (CB)]

My Lords—

[Baroness Afshar (CB)]

My Lords, are the Government aware that these courts deprive Muslim women of not only their rights but their Islamic rights? They do not give them the rights that the Koran gives to women: to independence, to charge for housework and to charge for motherhood. It is high time that someone who is familiar with the Koranic teachings of Islamic rights intervened to prevent this façade of sharia courts imposing absolutely unjust and unlawful demands on women. What will this Government do about that?

[Lord Keen of Elie]

My Lords, we do not recognise sharia courts and we do not recognise sharia law. We recognise the law of England and Wales, and it is that to which we must look for protection of rights and to which individuals must have recourse. Of course, I understand the social inhibitions that exist in parts of the Muslim community in seeking to vindicate their rights. That is why, for example, we introduced anonymity in the context of forced marriage.

[Lord Elton (Con)]

My Lords, the Government may not recognise the courts but a great many people in this country do, of whom a large proportion cannot speak, read or understand the English language. Do the Government realise that there is a huge barrier around this problem, which needs to be solved quickly to avoid terrible injustice?

[Lord Keen of Elie]

My Lords, I entirely concur with the observations of my noble friend. There is a very real need for education and information in this area. If we can achieve that, we can take strides to deal with this inequality and injustice, which we readily recognise, but which is more difficult to cure than to identify.

Crime: Rape

Lord Keen of Elie Excerpts

Tuesday 22nd October 2019 Lords Chamber

[Baroness Kennedy of Cradley]

To ask Her Majesty’s Government what plans they have to change the law in respect of the offence of rape.

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

My Lords, we are committed to ensuring that the law is fit for purpose and that the offence of rape is well understood. The decline in the number of rape cases reaching court is a matter of concern. The Government are committed to a cross-government review of the criminal justice system’s response to rape. If barriers to justice are uncovered, we will take action.

[Baroness Kennedy of Cradley (Lab)]

My Lords, how can it be right that young girls aged 13 to 15 who were groomed, exploited or manipulated into having underage sex cannot get justice for the crimes against them because the abuse they suffered took place before 1 May 2004? The one-year time limit to commence proceedings for the offence of unlawful sexual intercourse, set by the old Sexual Offences Act 1956, is protecting countless perpetrators who should otherwise still be prosecuted for abusing underage girls. I believe, as do many others, that legislation can put this right. Will the Minister commit the Government to investigating and closing this loophole?

--- Later in debate ---

[Lord Keen of Elie]

My Lords, I can understand the noble Baroness’s concern about this issue. That is why we are taking forward a quite urgent cross-government review in relation to rape. Where we consider that there are gaps in the law and these are identified, we intend to take action.

[Lord Beecham (Lab)]

My Lords, the number of convictions for rape fell by 26% between 2017-18 and 2018-19, while the proportion of reported cases being prosecuted declined to a mere 1.4%, the lowest on record. How does the Minister account for these figures? What steps will the Government take to ensure that the relevant departments—the Ministry of Justice and Home Office and, perhaps, the Department of Health working with the victims—address this deplorable failure in the justice system?

[Lord Keen of Elie]

My Lords, I fear that the drop in the number of rape cases being referred to trial is even greater than the noble Lord suggests. Current figures indicate that approximately half the number of cases is reaching court, from a peak in 2015. That is a matter of real and material concern and is why we have set up a cross-government working group—a sub-group of the Criminal Justice Board—to bring forward an action plan as soon as possible. We hope to have that plan in place by the spring of 2020.

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

My Lords, whether or not the Government’s review leads to a change in the law on rape, does the noble and learned Lord nevertheless agree that there is much more to be done to support and counsel victims at every stage of the criminal process, particularly in collecting and disclosing personal data, and in supporting victims giving their evidence, through to verdict and thereafter? Would such comprehensive support not encourage more victims to report rape and support prosecutions?

[Lord Keen of Elie]

My Lords, we recognise the significant importance of support for those who make complaints of all sexual offences, and rape in particular. It is necessary to look at taking forward further the scheme for the giving of evidence under Section 28. It is also appropriate to have in mind the use and application of Section 41 in relation to the potential for examining complainants about their sexual history. These matters have been under fairly constant review since Dame Vera Baird’s study in 2017, followed by the CPS study the following year and, more recently, in work done by the Criminal Bar Association. We do recognise the need for support and consideration in these cases.

[Lord Morris of Aberavon (Lab)]

My Lords, I have been involved professionally in a number of rape cases. Will the House accept the distinction between the small number of cases where the issue is identification and the much larger number where the issue is consent? The problem is that juries are reluctant to convict in those cases. Are the Government satisfied that the problem of non-disclosure of evidence has been solved? Will they provide resources for the CPS to upgrade the pay of prosecutors so that only the best counsel is available and able to prosecute in these very serious cases?

--- Later in debate ---

[Lord Keen of Elie]

My Lords, the issue of consent is clearly a challenging matter. We consider that the present law encompassed within Section 74 of the Sexual Offences Act 2003 is fit for purpose. There is guidance as to how that should be approached, and we believe that it strikes an appropriate balance between complainers and those who are complained against. As for the actual prosecution of these cases, we consider that that is carried on in a responsible way and that we have addressed the issues of disclosure which caused such disquiet only a year ago in a number of cases. Indeed, as the noble and learned Lord may be aware, the present Attorney-General instructed an examination of issues of disclosure in order to ensure that, going forward, that should not create a problem for these prosecutions.

[Baroness Afshar (CB)]

My Lords, there are minority communities that import brides from abroad and, in the name of marriage, proceed to rape women who do not know the language or the law, do not know who to go to and certainly cannot go to the kin group around them. Are there any provisions for a specialist group to deal with imported brides?

[Lord Keen of Elie]

My Lords, a number of support groups are available to deal with the sorts of cases that the noble Baroness has outlined. It is a particularly insidious form of sexual crime and one that is sometimes difficult to identify, partly because of issues of language and partly because of issues of social acceptability in the community in which such a person may find herself. As I said, there are support groups and we encourage their use in that context.

[Baroness Kingsmill (Lab)]

My Lords, does the Minister agree that it might be helpful if children—and I repeat: children—were taught at an early age about the issues around sexual encounters and consent? Boys, in particular, need to understand a bit more clearly what consent actually means in these circumstances. That might make sexual crimes such as rape a little less common.

[Lord Keen of Elie]

My Lords, of course we have taken forward matters regarding sexual relationships with schools and with young people. It is important that they should be educated in these areas; I quite accept that.

Queen’s Speech

Lord Keen of Elie Excerpts

Monday 21st October 2019 Lords Chamber

[Baroness Anelay of St Johns]

That an humble Address be presented to Her Majesty as follows:

“Most Gracious Sovereign—We, Your Majesty’s most dutiful and loyal subjects, the Lords Spiritual and Temporal in Parliament assembled, beg leave to thank Your Majesty for the most gracious Speech which Your Majesty has addressed to both Houses of Parliament”.

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

My Lords, it is a privilege to open this day of debate on Her Majesty’s most gracious Speech.

The focus of today’s debate is home affairs, justice, constitutional affairs, devolved affairs and local government. The debate will enable us to explore some of the key themes of the gracious Speech, including laying the foundations for a fair, modern and global immigration system by seizing the opportunities of Brexit, doing more to redress the balance in the criminal justice system, and ensuring that victims receive the support they need and the justice they deserve. Both my noble friend Lady Williams and I look forward to hearing noble Lords’ contributions, given the wealth of experience represented on all sides of the House.

The Government are committed to making neighbourhoods safer and to ensuring that punishments fit the crime. People across the country are, rightly, appalled at the rise in violent crime. For that reason, the gracious Speech included a commitment to introduce legislation to ensure that the most serious violent and sexual offenders spend more time in prison, to match the severity of their crimes. The Government will also seek to strengthen community orders so that they deliver an appropriate level of punishment, address offenders’ behaviour, support people in addressing the potential underlying causes of their offending and provide reparation for the benefit of the wider community.

As well as getting tougher on criminals, the Government are determined to ensure that victims receive the support they need and the justice they deserve. To do that, we are accelerating plans to enshrine in legislation the rights to which victims are entitled, as set out in the victims’ code. We will publish the revised code in early 2020. We recognise that rights are meaningless without the means to enforce them. We want to legislate to ensure that victims understand the minimal level of service they can expect from criminal justice agencies and to increase the powers of the Victims’ Commissioner, who is already a powerful voice for victims. The Government will legislate for the new victims’ law to be consulted on early in the new year. These changes will ensure that victims of crime receive the very best support as well as the information they need at every stage of the criminal justice system.

For the families of murder victims there can be many unanswered questions. No one should endure the anguish of having a loved one murdered and then be denied the dignity of giving them a final resting place. That is why the Government have brought forward legislation to make sure that the Parole Board must take into account an offender’s failure to disclose the location of their victim’s remains. This legislation also addresses another situation where a failure to disclose information about victims causes particular distress: where offenders fail to disclose the identities of children who are the subject of indecent images. The Parole Board will similarly be required to take into account any failure to disclose the identity of victims when assessing offenders’ suitability for release.

Marriage will always be a vital aspect of our society and it is sad for those involved when a marriage fails, but when people take the decision to divorce, the legal process currently incentivises one spouse at the outset to make allegations about the other’s conduct to avoid otherwise waiting for at least two years of separation. The new process will remove the requirement to evidence a fact to prove that the marriage has broken down irretrievably. In the gracious Speech the Government reaffirmed their commitment to reform the current legal process, which can be especially damaging to any children of the relationship. As well as removing the conflict flashpoints inherent within the current legal process, the Bill will introduce a minimum timeframe for it. This will allow for greater reflection on the decision to divorce and for couples to approach arrangements for the future as constructively and co-operatively as possible.

Domestic abuse shatters lives and tears families apart. It is estimated that in the year ending March 2018, some 2 million adults between the ages of 16 and 59 experienced domestic abuse. The Domestic Abuse Bill and wider action plan will help to ensure that victims have the confidence to come forward and report their experiences, safe in the knowledge that the justice system and other agencies will do everything they can both to protect and support them and their children and to pursue their abusers. We need a society in which there is zero tolerance when it come to domestic abuse and which empowers people to confront it. This Bill will be a step towards doing that.

The Government are determined to seize the opportunities of Brexit and bring an end to free movement to ensure that the UK can deliver a new points-based immigration system which will prioritise people’s skills and contributions to our society. For years, politicians have promised the public an Australian-style points-based system. We will actually deliver on those promises. We also remain committed to ensuring that resident European citizens, people who are our friends, neighbours and colleagues, and who have built their lives here and contributed so much to this country, have the right to remain.

After Brexit, the Government will take forward measures to provide certainty and stability to ensure that the UK is a world leader in private international law. We will ensure that we can continue to have clear and effective legal rules in place for resolving cross-border disputes. For example, if a UK citizen is divorcing and seeking child maintenance payments from another parent living abroad, we will have an agreed international mechanism for resolving this. If a UK business is contesting a contract with an overseas party, an international framework will be available for resolving it. The availability of agreed international rules will give UK businesses, citizens and families the confidence to work, live and trade across borders and will help the UK to flourish as a trading nation as we leave the European Union.

I know that the House will want to join me in paying tribute to the brave police officers up and down the country who do so much to keep us safe. The tragic killing of Police Constable Andrew Harper this summer starkly illustrated how police officers put their lives on the line and sacrifice time and again to help others. In July, the Government committed to the recruitment of 20,000 police officers over the next three years. It is now only right that we give all police officers the protections they need to keep the population safe. That is why we are putting our commitment to a police covenant on a statutory footing. We will also introduce measures to strengthen the legal protection given to police drivers when pursuing a subject or responding to an emergency. This will ensure that the police have the protections they need to continue their vital work.

As well as further protections for our police officers, we will invest them with the power to arrest individuals wanted by trusted international partners. As it stands, people wanted for serious crimes by countries outside the EU cannot be arrested if the police come across them on the streets of the United Kingdom. This Bill is about making clear that, where a person is wanted for a serious crime in a country such as Canada or America and may be a danger to the public, we will get them off our streets faster and in front of a judge within 24 hours to allow extradition proceedings to commence.

We will also introduce measures to improve the justice system’s response to foreign nationals who abuse the system by committing crimes. Anyone coming to our country seeking to do so should be in no doubt of our determination to deport them. The Government are already working hard to improve the efficient and effective removal of foreign-national offenders from the UK, but tougher action is needed to stop abuse of the system, speed up the process for deporting foreign-national offenders and deter foreign criminals from coming to the UK. This Bill will significantly increase—from six months to five years—the maximum penalty for those who return to the UK in breach of a deportation order. This will send a clear message to criminals who seek to return to the UK in breach of the law: if you return, you will go to prison for a long time.

This Government have always been clear that we will tackle serious violence and make our streets safer. That is why, together with strong law enforcement, we are determined to stop young people being drawn into crime. We need to understand and address the factors that cause someone to commit violent crime in the first place. The new legal duty we will deliver will ensure that all agencies work together to share intelligence and identify warning signs so that we can intervene earlier, protect young people and prevent and reduce serious violence in local areas.

Nothing is more important than ensuring that people are safe in their homes. This Government will legislate to put in place new and modernised regulatory regimes for building safety and construction products, and ensure that residents have a stronger voice in the system.

One of this Government’s key priorities is the integrity and prosperity of the union that binds the four nations of the United Kingdom. We will continue to work with all parties in Northern Ireland to support the return of devolved government and to address the legacy of the past. We want to unleash the potential of every corner of England, Wales, Scotland and Northern Ireland by bridging the productivity gap, levelling up opportunity and prosperity across the nation and starting an infrastructure revolution.

As set out in the gracious Speech, the Government will bring forward our offer on devolution in England and a White Paper, along with refreshed strategies for the northern powerhouse, the Midlands engine and the UK shared prosperity fund. We are committed to invest in every area of the UK to boost jobs, productivity and living standards and, once the United Kingdom leaves the European Union, we will have a unique opportunity to devolve and empower regions across the country.

The measures outlined in the gracious Speech set out a clear direction for the future of Britain: a country with safer streets where punishments fit crimes but criminals are supported to overcome the causes of their behaviour; one where victims are supported throughout the justice process and after, so that they can move on and rebuild their lives; a society that values marriage but accepts the modern realities of divorce and has no tolerance when it comes to domestic abuse; one that gives the most legal protection possible to brave police officers who risk life and limb to keep us safe; a nation that values immigration and has enough control of its borders to welcome the skills it really needs and reject foreign criminals from our shores; one that addresses serious violence at its root causes to keep our young people safe from harm; a United Kingdom where every constituent part and region has the necessary political will, the right infrastructure and the ability to make decisions in its own best interest; one where opportunity is levelled up and every single person can thrive. Over the coming weeks and months, I look forward to debating with your Lordships the many measures that I have outlined today.

Bailiff Reforms

Lord Keen of Elie Excerpts

Thursday 17th October 2019 Lords Chamber

[Baroness Meacher]

To ask Her Majesty’s Government what plans they have to publish policy recommendations following their consultation on the review of bailiff reforms, which closed on 17 February.

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

My Lords, in a Statement on 22 July, the Government set out their initial response to the call for evidence on the enforcement agent reforms. We intend to make body-worn cameras mandatory for private enforcement agents and the complaints system against agents more effective. We are also considering strengthening regulation of the industry. Officials have since met further with a range of stakeholders; we hope to set out our proposals as soon as possible.

[Baroness Meacher (CB)]

My Lords, as we debate Brexit for hours and days on end, some of the most vulnerable people in our country are suffering. Every minute of every day, somebody in dire poverty is suffering the humiliation and fear of a bailiff banging on their door. In about 300,000 cases a year, the bailiffs break the rules. Self-regulation is not working. They may send strings of texts to the person concerned threatening that the whole debt must be paid immediately—or else. None of that is legal, and none of it will be resolved by body-worn cameras. The Justice Committee reported on the bailiff problem in April and recommended an independent regulator. Twenty organisations worked for two years on this and came to the same conclusion. Will the Minister be so kind as to meet at least two of the main experts and me to discuss the best way forward on this very tricky issue?

[Lord Keen of Elie]

My Lords, we appreciate the work done by the Justice Committee, which was published in April 2018, and have taken up some of its recommendations already. There are discrepancies over the number of complaints, but that may in part be explained by difficulties that some people perceive in following through on complaints. We are concerned when enforcement officers do not comply with the law and with regulations, but we must remember that there is not only a group of people out there who are “can’t pays” but a very large group who are “won’t pays”. Individuals and small businesses need the ability to recover money lawfully due to them. I am happy to meet the noble Baroness and her experts and associates to discuss the matter further.

[Lord Howarth of Newport (Lab)]

My Lords, while creditors are entitled to take steps to obtain money properly due to them, does the noble and learned Lord agree that what is not legitimate is the harassment and bullying perpetrated by some bailiffs and some of the profit-driven organisations that employ them? Will he go beyond an expression of concern and tell the House more fully what the Government intend to do to improve this culture and to ensure that those bailiffs who commit excesses are brought to book?

[Lord Keen of Elie]

My Lords, there are regulations in place and there are those—a minority—who do not comply with those regulations. The position at present is that there are about 2,500 civil enforcement agents. They have to appear before a county court judge every two years, where their conduct will be the subject of consideration. We are looking at further regulation and at the means of ensuring that a small minority of enforcement agents do not break the law. Clearly, we do not condone aggressive and inappropriate behaviour, no matter what the circumstances may be.

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

My Lords, the Government are publicly committed to ensuring that enforcement agents treat debtors fairly, responsibly and proportionately. The proposed breathing space scheme, the Government’s civil enforcement project and, indeed, the Minister’s answers so far suggest that they also agree on the need for a sympathetic approach to problem debt. Will the Government therefore now consider requiring enforcement agents to advise debtors of the availability of the breathing space scheme and of debt management assistance more generally? Are the Government now more receptive to the call of many for independent regulation of all enforcement agencies?

[Lord Keen of Elie]

It would be premature to commit on a matter still under consideration by the ministry. We have proposed as a manifesto commitment to introduce the breathing space scheme, which will give debtors 60 days in which interest charges on their debts are frozen and in which they can seek further advice. We also established the Money and Pensions Service in January 2019, merging three former organisations to provide free-to-use financial guidance for those who find themselves in debt.

[Lord Howell of Guildford (Con)]

My Lords, I think I am right that paragraph 14 of Magna Carta undertakes to halt unreasonable and unfair bailiff entry behaviour. Do we not need to proceed rather carefully on this matter?

[Lord Keen of Elie]

I bow to the noble Lord’s detailed knowledge of Magna Carta on this point.

[Lord Pickles (Con)]

My Lords, with enormous respect to the Government Bench, those who will not pay are probably very familiar with Magna Carta and their rights. It is those who are vulnerable and those able to offer reasonable repayment terms who are being treated rather harshly. Clearly, cameras will help in this process but when the review comes out, will it specifically address reasonable repayment schemes?

[Lord Keen of Elie]

The Government have established a fairness group, which is working with the advice sector to implement a joint programme of work to examine practices in the context of, for example, the recovery of debt due to central and local government, and to support vulnerable people in the context of such debt. We are taking steps to try to accommodate those in a difficult or vulnerable position and unable to meet their debt liabilities. We continue to look at ways of improving that sort of facility.

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

Lord Keen of Elie Excerpts

2nd reading (Hansard): House of Lords & Committee: 1st sitting (Hansard): House of Lords & Report stage (Hansard): House of Lords
Wednesday 16th October 2019 Lords Chamber

Moved by

[Lord Keen of Elie]

That the Bill be now read a second time, that the Bill be committed and reported from a Special Public Bill Committee and that the Report be received pro forma.

Motion agreed.

Legal Aid, Sentencing and Punishment of Offenders Act 2012 (Legal Aid for Separated Children) (Miscellaneous Amendments) Order 2019

Lord Keen of Elie Excerpts

Tuesday 1st October 2019 Lords Chamber

Moved by

[Lord Keen of Elie]

That the draft Order laid before the House on 22 July be approved.

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

This draft instrument makes provision for separated migrant children to be eligible for legal aid for civil legal services for non-asylum immigration and citizenship matters. This is important legislation that ensures access to justice for these vulnerable children.

For noble Lords not familiar with its provision, legal aid for civil legal services is available to an individual if the service is in scope—in other words, if it is described in Part 1 of Schedule 1 to the Legal Aid, Sentencing and Punishment of Offenders Act. In addition, legal aid may be available on an exceptional basis where there would be a breach or risk of a breach of the individual’s rights under the European Convention on Human Rights or any enforceable EU rights. This is known as exceptional case funding or ECF. For in-scope matters and ECF, legal aid eligibility is subject to statutory means and merits assessments.

Under current arrangements, separated migrant children seeking to regularise their immigration or citizenship status in the United Kingdom can apply for exceptional case funding to receive legal aid for help with their citizenship application, immigration application form or subsequent appeal. Following litigation and engagement with key stakeholders including the Children’s Society, this draft instrument will bring these matters into the scope of legal aid. This means that separated migrant children will no longer have to make ECF applications to receive legal aid for citizenship and non-asylum immigration matters.

I turn to the scope of the amendment. Officials have been working closely with other government departments and children’s charities to finalise the terms of the amendment since 2018. The amendment makes provision for separated migrant children to be eligible for civil legal services in relation to their immigration applications for entry clearance, leave to enter and leave to remain in the United Kingdom under the Immigration Rules. The amendment also provides civil legal services in relation to separated migrant children’s immigration applications for leave to remain where that application is made and determined outside of the Immigration Rules. This would include applications for discretionary leave to remain and leave to remain on medical grounds, as well as exceptional circumstances or compassionate or compelling factors, which may warrant a grant of leave outside the immigration rules.

Further, legal aid will be available to these children in relation to relevant applications for entry clearance, leave to enter or leave to remain made under the Immigration Rules by another person, including family members and extended family members, and granted either under or outside the Immigration Rules. These applications are determined on the basis of exceptional circumstances under Article 8 of the convention, regarding the right to respect for private and family life, or on compassionate and compelling factors. This amendment includes legal aid applications for registration as a British subject or citizen, a British Overseas Territories citizen, and a British overseas citizen.

Some amendments relate to the procedures for applying for different forms of civil legal services. These are grouped into different categories: gate- way work, controlled work and licensed work. The changes ensure that, for controlled work and licensed work, separated migrant children who require legal representation in proceedings before a court or tribunal covered by this regulation will be able to receive it. There are also some technical amendments to other instruments regarding the merits and financial eligibility criteria. The changes ensure that the tests applied to immigration matters currently in scope of legal aid are also applied to this regulation.

This instrument takes a normative definition of a “child”, being any person under 18 years. Where the age is uncertain, the individual is treated by the director of legal aid casework and the legal aid provider making the legal aid determination as being under 18 years.

For the purposes of this regulation, a child is “separated” if they are not being cared for by a parent or someone with parental responsibility for them. It also accounts for children who are looked after by a local authority or are privately fostered, but for whom parental responsibility has not been determined. It also acknowledges that some separated children may be in other informal caring arrangements or, indeed, caring for themselves.

A Written Ministerial Statement was laid on 12 July 2018 outlining the Government’s intentions to lay this legislation. Following this Statement, the Legal Aid Agency advised legal aid providers of interim amendments to the exceptional case funding guidance for applications made by, or on behalf of, separated migrant children for citizenship and non-asylum immigration matters. The guidance outlined reduced evidence requirements when making an application and that ECF caseworkers will operate on the basis that there is a strong presumption that separated migrant children require legal aid.

To conclude, the draft regulation before us today makes important changes to the scope of legal aid to bring citizenship and non-asylum immigration matters into scope of legal aid for separated migrant children. This is important legislation that ensures access to justice for a highly vulnerable section of our society. I beg to move.

[The Earl of Listowel (CB)]

My Lords, I warmly welcome this regulation and the manner in which the Minister introduced it. As vice-chair of the All-Party Parliamentary Group for Children, I have sat in meetings with young people and children in the immigration system and in care, and have heard their concerns and uncertainties about the future. I very warmly welcome this regulation and the careful and sensitive way in which the Minister introduced it. The Children’s Society, as the Minister pointed out, has been a prime mover in this area over many years; indeed, a consortium of charities has been working towards this goal. I am sure we all feel that it is a momentous occasion to have this legislation after so many years for these children—this access to justice for them.

Many of these children will have spent most of their lives in this country. They may well know few or no people in the country they come from. So there may be good humanitarian reasons why they should continue to live in this country. The theme from these meetings is that the earlier one can begin the process towards leave to remain or citizenship, the better—but so very often, these decisions get left until the last minute, when the child has just about reached the age of 18, which is very unsatisfactory. This regulation will make it much easier to act early in the best interests of these children.

I want to ask the Minister about what will become of care leavers. When these children pass the age of 18, or sometimes prior to that age, they become care leavers. They still have some responsibilities due to them from their local authority, but not as strong. I understand that the Government have given some commitment that there will be an expectation that the default position will be that the exceptional case fund will be applied in these cases, but can the Minister confirm that in his response to the debate?

Last year I, along with the noble Lord, Lord Storey, met three care leavers. One of them had experienced some periods in a mental institution; as we know, many care leavers experience a great deal of loneliness when they leave care, and the challenge for him of the uncertainty over his immigration status had damaged his mental health. Another young man was working as a taxi driver, illegally and under the radar, which was a very unsatisfactory state of affairs. These young people, who have had such a difficult start in life, could have their rights better protected by us. This regulation does exactly that, so I warmly welcome it.

--- Later in debate ---

[Lord Keen of Elie]

My Lords, I am obliged for the contributions from all sides of the House, to a greater or lesser extent. This is an important area and an important issue. I will begin by addressing generally some of the points that a number of different noble Lords raised.

First, the noble Earl, Lord Listowel, raised the very real question of those termed care leavers, who tend to be a cohort aged 18 to 25 years. It was a point raised by the Children’s Society when we discussed this matter more generally, as the noble Earl and the right reverend Prelate will be aware. The position we are in regarding that cohort is that we have agreed to consider the position of care leavers and their access to legal aid via the exceptional case funding scheme in relation to immigration matters. That work is ongoing, but I cannot say more than that at the present time.

In addition, there is the question of separated children who applied for legal aid but turned 18 before the original immigration application had been fully determined. They will continue to be eligible for legal aid until the immigration or citizenship matter has been concluded. How it is concluded is a different matter, but if it is concluded through the immigration process, legal aid will continue to be available. I seek to reassure noble Lords on that point.

Very diverse figures were given regarding the number of children who might have been or may now be eligible for legal aid under this provision. It is very difficult indeed to identify precise figures. That might explain why such a diversity of figures is being quoted. So far as we are concerned, the most reliable figures are from 2012-13 because after that, as a consequence of LASPO taking these cases outwith the scope of legal aid, there are not reliable figures. That is why it has been necessary to go back to the last set of reliable figures pre the LASPO provisions themselves. That might be unfortunate in a number of respects, but that is where we are. We intend to monitor the figures, but clearly we will have an eye on the number of applications being made.

In that regard—to respond to the noble Baroness, Lady Smith—we are and have been engaging since July last year with legal aid agencies over the scheme for provision. Indeed, pending this order coming into force, we have been explaining to legal aid agencies that separated children falling into this category who still rely on exceptional case funding would be entitled to certain presumptions so far as their application was concerned, because their rights under Article 8 of the convention are clearly to be regarded as in play, if I can put it in those terms. There has also been an assumption that they are vulnerable and that they are not capable of carrying through these proceedings without the assistance of legal aid. That has actually simplified the exceptional case funding application process. Indeed, we are working with legal practitioners to review and simplify the exceptional case funding application forms and guidance, which we hope again might be of assistance to the cohort known as the 18 to 25 year-old care leavers.

[Baroness Smith of Basildon]

Just to clarify: if I have understood correctly, is the Minister saying that all children who currently get exceptional case funding will now get legal aid to complete their cases?

[Lord Keen of Elie]

If they already have exceptional case funding then they have legal aid, so there should not be any interruption regarding that cohort, who have already received it. I was seeking to stress that since this matter arose in July 2018—I acknowledge that that was because the Children’s Society took steps with regard to judicial review—we have taken steps to try to simplify the ECF process for those separated children but as a result they have legal aid, so generically they have legal aid and that should not be interrupted.

Regarding the future position, ECF is not affected by our decision to leave the European Union. Of course, convention rights are already expressly covered by LASPO. There is also the question of retained EU rights under our domestic legislation. Therefore, there is no reason why the ECF scheme should be affected by that.

As regards the wider number of children who may have been affected by this, it is not possible to give figures. The noble Baroness, Lady Smith, referred to 144,000 undocumented children potentially being in the United Kingdom. The point to stress is that if they are undocumented, it is very difficult to determine how reliable that estimate is, where they are, what they are doing, where they have gone or where they have been. By the very definition of undocumented, we have an issue here which is surrounded by a penumbra of doubt and uncertainty and very little can be done with that.

However, I hope that with these regulations coming into force we will have a more meaningful ability to deal with these vulnerable children, to provide them with the support that we acknowledge they will require in future and which they have had in the past under the exceptional case funding, but which we believe should now more appropriately be brought within the scope of Section 9 of LASPO. I beg to move.

Motion agreed.