Sentencing Bill

Debate between Lord Keen of Elie and Lord Thomas of Cwmgiedd

Report stage
Tuesday 6th January 2026 Lords Chamber

[Lord Thomas of Cwmgiedd (CB)]

My Lords, I shall move this amendment on behalf of the noble Lord, Lord Verdirame, who unfortunately cannot be present. I wish to express first his appreciation of the time the Minister has taken to speak to him about the issue raised by this amendment. I can explain it very briefly. In the independent review conducted by Mr David Gauke, he considered whether foreign national offenders should be removed to reduce pressure on capacity and ensure that punishment was served for crimes committed in the United Kingdom. Under the then existing law, foreign national offenders had to serve 50% of their sentence but could then be removed and returned to their own state, where they would get no further punishment. The review recommended that the 50% rule be reduced to 30%—this was accepted and brought in by a statutory instrument—and that those who were sentenced to three years or less could be removed without serving any part of their sentence here. Clause 32 proposes the removal of the three-year time limit, so that any offender, however serious the offence is, can be removed without serving any part of their sentence whatever.

The amendment proposed by the noble Lord, Lord Verdirame, seeks to do three things. First, it seeks to restore the position recommended by Mr David Gauke: to ensure that people who receive sentences of more than three years could not be removed without serving part of their sentence. Secondly, it would make it clear that it is inapplicable to a person who has been deported and returns. That is to stop the revolving door of committing a crime, being deported, coming back, committing a crime and going round and round. Thirdly, it would require the Secretary of State to be satisfied, in the case of serious crimes,

“that the interests of justice are not defeated by the removal, having regard to the gravity of the offence and the impact … on those affected by it”.

There is a change from the amendment put forward in Committee in one respect, in that it drops the requirement that the offender serve his term overseas.

The most important of the three points raised by this amendment is the first: restoring the recommendation of the Gauke review. As I understand it, there are about 3,000 such offenders and it costs about £61,000 a year to keep each of them in prison here. I can see no objection to sending them back if they are to serve the remainder of the term in their own country, but it is evident from the figures that only a tiny proportion would serve such a term. The Bill as it stands, therefore, will send back at our own cost a very significant number of people who have committed crimes that deserve at least three years’ imprisonment.

It seems that the Government have said that they are not prepared to accept the amendment partly because they cannot agree to anything that will effect a reduction in prison capacity. Secondly, they are determined to make sure that the public Exchequer is relieved of the burden of paying for the imprisonment of foreign national offenders.

The purpose of this amendment is to try to reverse what can only be described as the interests of short-term expediency over the principles of sentencing, because the amendment infringes three of those principles First, if a person commits a wrong that merits three years’ or more imprisonment, that person merits equivalent punishment. Being sent back to his own country at taxpayers’ expense is not a punishment. Secondly, the purpose of sentencing is to deter crime. What deterrence is there in making it clear that, if a person comes to this country to commit a crime, he will be sent home free, without punishment? Thirdly, and most importantly, proper punishment retains public confidence in the system. If, for example, someone commits a series of shoplifting offences to go to the lower end of the three-year limit or, more seriously, comes here deliberately to commit a crime, paid for, what deterrence is there if that person knows he can go back? We hope that the Government will think again on this point.

However, on the second and third points—that is to say, dealing with the revolving door problem in the first place, while requiring the Secretary of State to be satisfied that the interests of justice are not defeated by removal, having regard to the gravity of the offence and the impact on those affected by it—why can the Government not accept them? I hope the Minister will be able to say, “Well, we’ve got to have a framework to deal with those kinds of issues” and will make it clear that, among the issues to be contained in the policy framework that governs the way in which foreign national offenders are dealt with, those two points, namely the revolving door and maintaining and examining each case to ensure that the gravity of the offence and the effect of the offender will not be that which casts doubt on the integrity of the criminal justice system, will be looked at and properly included within it. I beg to move.

[Lord Keen of Elie (Con)]

My Lords, we are grateful to the noble Lord, Lord Verdirame, for the carefully framed amendment and to the noble and learned Lord, Lord Thomas of Cwmgiedd, for the very careful way in which he presented the amendment. We agree with all the points made by the noble and learned Lord, Lord Thomas, without qualification.

When the previous Secretary of State for Justice first intimated this policy last year, I referred to it in this Chamber as being “completely mad”. I have not deviated from that opinion, I have to confess. The idea that someone coming from a safe country in Europe will commit a series of robberies and then, when caught, will be returned to their country of origin at public expense in order to pick up a different set of identity papers or a different passport and then return yet again strikes me as quite absurd. That is the revolving door point that has been touched upon, but the other points are equally important.

Of course, they may not have come from a safe country, in which case we cannot deport them, but no accommodation has been made for that either. It is going to be optional, essentially. You may seek to argue that you have not come from a safe country and therefore you cannot be deported, so you prefer to stay in prison. It is a quite extraordinary proposal that somehow punishment lies in the fact that you have been returned to your country of origin after committing a serious offence in this country. We have a foreign national who rapes a child and flees back to his country of origin, and presumably we no longer make any efforts to extradite him because as far as this policy is concerned, he has been punished. He has gone home. What is that going to do for public confidence in the justice system? It will damage it, but I cannot see any upside. It is an impossible proposal.

David Gauke proposed, very sensibly, that there should be a minimum term of punishment, and that is necessary because it is not just punishment; it is also deterrence. Without that, we end up in the strange situation in which people commit a crime, leave for their home country at public expense and return as and when they wish to do so. We have had instances of that already. I will not go into the detailed cases at this stage in the evening, but it is not uncommon for those who have been arrested and convicted of offences to return to their country of origin and then return to these islands in due course. There have recent instances of that. We strongly support the idea that there has to be a minimum term of imprisonment in these cases, while understanding the pressure on our prisons. Does the Minister truly believe that public confidence in the justice system will be improved or even maintained as and when the full implications of this proposed policy become public?

Sentencing Bill

Debate between Lord Keen of Elie and Lord Thomas of Cwmgiedd

Committee stage
Wednesday 3rd December 2025 Lords Chamber

[Lord Thomas of Cwmgiedd (CB)]

Perhaps I could just finish my second point very quickly. It is simply that, even if the public do not think there is any harm in just deporting someone who has committed a crime, I would caution Government not to rely on public opinion. It does not always stay constant, but I can be sure that, if a serious crime is committed and someone is deported without being punished, this provision will come back to haunt the Government, and I do not want that to happen.

[Lord Keen of Elie (Con)]

My Lords, the principle of deportation of foreign national offenders attracts almost universal support. I say “almost” because the cohort of foreign national offenders may not entirely embrace the idea. However, if we introduce a system whereby they are deported without custody or punishment, I suspect that they will come on board with the idea as well.

It occurs to me that the Government are going to approach this with considerable and conspicuous care and take on board the very considered amendment advanced by the noble Lord, Lord Verdirame, and Amendment 142 from the noble Lord, Lord Jackson. It will, as the noble and learned Lord, Lord Thomas of Cwmgiedd, said, come back to bite us if it is discovered by very professional criminals that you can come here, execute your robbery, contract killing or whatever else and then, when you are caught, we pay your air fare home. It does not make an awful lot of sense.

With regard to Northern Ireland, I would take Amendment 146 as a probing amendment inviting the Minister to explore the impact of the Windsor Framework on this proposal.

I note that, if a foreign national offender in Northern Ireland is offered the option of deportation or lengthy custody in Northern Ireland, he might well be inclined to the former, but that is just a practical proposal. I look forward to hearing the Minister’s response.

European Union (Withdrawal Agreement) Bill

Debate between Lord Keen of Elie and Lord Thomas of Cwmgiedd

Committee: 1st sitting (Hansard) & Committee stage & Committee: 1st sitting (Hansard): House of Lords
Tuesday 14th January 2020 Lords Chamber

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

I should correct the noble Lord. Amendment 59 is part of this group, and therefore if he wishes to speak to it, he should do so.

[Lord Thomas of Cwmgiedd (CB)]

My Lords, I confess my inexperience in this court of Parliament in knowing whether it is the right opportunity to raise Amendment 59. I will do so. This may seem a very small point, but it goes to two points that underlie the amendments to which we will turn in due course. The first is the need to ensure that the Bill respects our constitution as regards devolution and that the devolution statutes that form part of our constitution are altered in a proper and constitutional manner. Secondly, going forward with our life outside the European Union, we achieve a stronger union by making sure that there is the closest possible working together of the devolved Governments, Assemblies and Parliaments with the Government at Westminster.

Although the amendment is addressed to deal with the position in Scotland, Northern Ireland and Wales together—logically it has to be—I approach this from the standpoint of Wales, for two reasons. First of all, my own experience of that devolution settlement is much clearer than my experience of the others. Secondly, I really think it of importance that in this House we try to do all we can to make sure that Wales, the Welsh Government and the Welsh Assembly understand that the union will work for the future as envisaged in the devolution statutes.

It may seem that devolution is not that important at this time in the context of this Bill, and I can well understand that view. But it is important to reflect for the future and to realise that much will need to be done to the way in which devolution operates when we are outside the European Union and with our own internal market. Those are the general points that underline my seeking to make this amendment.

The purpose of the amendment is to ensure that the principles agreed in respect of the IMA’s composition, as set out in the schedule, are carried forward in the event that a new body is created pursuant to the powers that have been added to the Bill. As regards the obligation to appoint the non-executive members of the IMA, provision is made in the Bill that the Secretary of State will appoint those with experience in relation to Scotland, in relation to Wales and in relation to Northern Ireland, who understand how the systems there work. This is plainly a proper and right provision as, over the past 20 years, as any examination of the detailed operation of devolution will show, things have changed. I find it sometimes regrettable that those who occupy the ministries in Whitehall do not realise the extent of that change. I therefore appreciate what the Government have done through this provision and the further discussions they have had of the role of the Welsh Administration and Welsh Ministers in the selection of the appropriate person. However, the provision is not carried forward if the functions of the IMA are transferred to a new body.

I accept that it is a small point, but small points can go a long way to ensure that the spirit of devolution and the constitution is respected. Of course the Government can say that there will be no change, no statement made and no clarification, but would that be wise? With the utmost respect, I suggest that it would not be wise because it would point out that even a small change that can capture the spirit of the way forward is something that the Government will not contemplate. On the other hand, if some assurance were given about any future transfer to a new body, is not that the first step in showing that the spirit of a post- devolution UK will be respected by this Government?

Courts and Tribunals (Online Procedure) Bill [HL]

Debate between Lord Keen of Elie and Lord Thomas of Cwmgiedd

Committee: 1st sitting (Hansard): House of Lords
Monday 10th June 2019 Lords Chamber

[Lord Keen of Elie]

I quite see that this House might wish to see it in primary legislation, but the position is this: a committee will be formed to put forward appropriate rules and regulations for the online procedure, under the essential supervision not only of the Executive but of the judiciary. There may come a point, at some unforeseeable time in the future, where the judiciary is of the view that it is no longer necessary to employ paper as a form of application or entry into the judicial process. I do not anticipate that happening—there is nothing here to suggest it will happen—and I do not see that there is a requirement for such a guarantee in the form of primary legislation. We intend to form an Online Procedure Rule Committee that will be well qualified to determine the appropriate routes into the online procedure for all parties concerned, including those perhaps not digitally competent or confident. That remains the position.

[Lord Thomas of Cwmgiedd (CB)]

Perhaps I may press the Minister on one point. It is easy to see that there is a distinction between an online procedure and the way the court works. If it was made clear that the online procedure is largely geared to ensuring that the systems that lie behind it operate efficiently across the system but that, in using that procedure, if people did not want to go online the court would undertake to scan the documents in—if that distinction was made—would the Minister accept that what really is needed, because these amendments do not grapple with the problem, is a guarantee to the litigant that he can go to court, hand in a piece of paper and it will be scanned into the system? That is all.

If that is the effect of these amendments—and it is limited to that—would that not achieve everything and give an opportunity to increase access to justice? In the current system access to justice is a figment of the imagination, but the use of an online procedure would enable this to happen. Will the Minister look at this issue again in the light of my suggestion to him?

[Lord Keen of Elie]

I hear what the noble and learned Lord has said and I will take account of those observations in going forward to the next stage of the Bill. However, at present it is not my intention to accept any of the amendments so far laid in respect of this matter. If there is a way through by which we can underline the right of a party to make an application on paper to the relevant online procedure once it is up and running, that would essentially achieve the objective that we have and I believe the House has. However, I do not accept that it will be achieved by means of the present amendments.

--- Later in debate ---

[Lord Thomas of Cwmgiedd]

With the utmost respect to my predecessor, it would be usual for a magistrate to be appointed by the Lord Chief Justice rather than the Lord Chancellor. That would slightly affect the majority, but otherwise I agree with the points made.

[Lord Keen of Elie]

My Lords, it appears that we might avoid both potential problems if we retain the present membership of the proposed committee. Before I turn to the detail of the amendments, it may be helpful if I make some general remarks about the committee’s composition. We certainly support the need for a small, focused and agile committee responsible for making new court rules that are simple, tailored for the benefit of ordinary users and, therefore, understandable. In his final review of the civil justice system in 2016, Lord Justice Briggs as he then was anticipated—I accept—a very differently constituted committee of experts from across various disciplines reflecting users’ needs. A smaller committee allows the standing members to increase and adapt their membership quite easily every time they consider a different topic. That therefore allows them access to a greater spread of expertise and to ensure the rules are made by those who have an understanding of how they are most suited to the user.

The purpose of Amendment 15 from the noble Lord, Lord Beecham, is to add legally qualified members, or members with legal experience, to the committee. As I have indicated, we consider that there is considerable benefit in beginning with a small committee, but one where the membership and expertise can be adapted over time. We consider that adopting the amendment would create issues about who is appointing the membership of the committee and whether there was a disproportionate power of appointment between the Lord Chancellor and the Lord Chief Justice.

I remind noble Lords that the intention is that the online procedure will apply in the first instance to civil money claims up to the value of £25,000, but over time we of course want to widen the procedure’s scope so that it covers the civil procedures, potentially including family and tribunal proceedings. It would be difficult to see the value of insisting on an expanded legal membership at this stage without first gauging the overall value that could be addressed by bringing in specific experts in the area of specific proceedings being considered. In addition, as I said, Clause 6 would allow for the committee’s composition to be changed to incorporate particular experts or disciplines and particular areas of expertise if or when the committee came to address such issues as tribunal jurisdictions or some forms of family jurisdiction.

For similar reasons, we are not persuaded of the need for Amendments 16 and 17, which seek to add an additional member with IT expertise. Again, the argument is the same. Under Clause 6, the committee will have the ability to bring in additional expertise as and when it requires it, and that flexibility is seen as a considerable benefit.

In Amendment 18, the noble Lord, Lord Beecham, seeks to ensure a gender balance on the committee. Of course we support the wider aim of ensuring greater diversity among all senior appointments to public bodies but, to be truly effective, public bodies must bring together a mix of people with different skills, experience and backgrounds. The obligation with regard to appointment is always guided by the code of practice of the Office of the Commissioner for Public Appointments, which sets out the design principles and procedures for appointments with diversity in mind, including gender diversity. It is by these means that we can preserve accountability for diversity. That process is monitored by the Commissioner for Public Appointments, and is subject to a published report each year. We are certainly not complacent about the idea of gender representation at all levels on all committees, but we think it better that it is seen through the wider lens of the Equality Act, which protects a broader range of groups, not just gender. At this stage, we are not inclined to accept that there should be an express provision on gender balance.

Amendments 20 and 21 deal with the number of committee members required to agree the rule changes. Amendment 21 from the noble Lord, Lord Beecham, would increase the number needed from three to five, and that would perhaps be a consequence of an extended membership. Amendment 20 from the noble Lord, Lord Ponsonby, would require a simple majority with regard to matters, rather than just the current number of three. I can see that there may be an advantage in having some flexibility here, if we look forward to the point where the committee decides to exercise the powers under Clause 6 and extend the numbers in the committee to embrace further areas of expertise. I would like to give further consideration to that point in light of that, because it seems that underlying this there is a point that we should address before Report. With that, I invite noble Lords not to press their amendments at this stage.

Criminal Justice (Amendment etc.) (EU Exit) Regulations 2019

Debate between Lord Keen of Elie and Lord Thomas of Cwmgiedd

Monday 25th March 2019 Grand Committee

[Lord Thomas of Cwmgiedd]

On the Minister’s last point, the ability of a court to fine someone who is here knowing that it will be enforced of course means that the court considers that a financial penalty might be more desirable than the imposition of a short term of imprisonment. Bearing in mind the desire to get rid of or reduce the number of short terms in prison, has anyone looked at the impact that imposing fines that we know will not be enforced will have on the policy of trying to reduce short terms of imprisonment?

[Lord Keen of Elie]

I do not believe that any distinct analysis has been made of that issue, but the noble and learned Lord will be well aware that the problem of recovering financial penalties is hardly limited to people who have gone to Poland or the Netherlands. There is a far more fundamental problem with recovering financial penalties within the United Kingdom. That is much greater in its extent and impact on the sentencing policies of the courts than that of the few people who move abroad after a financial penalty has been imposed and not paid. Of course we are looking at the whole area of sentencing policy with regard to the issue of short-term sentences, and we can only encourage the courts to move away from them in circumstances where they have confidence in the imposition of non-custodial sentences, which of course include community orders and financial orders. I would suggest that this is a relatively small aspect of a bigger problem, but I acknowledge the bigger problem. It is one that requires to be analysed fully as we take forward our sentencing policy.

That takes me neatly or otherwise on to the final point, which is the question of taking into account prior convictions. Just to be clear: this regulation addresses the question of what the court does once it has the information and the data. Indeed, the question of data transfer is, I am pleased to say, a matter for Home Office Ministers.

Courts and Tribunals (Judiciary and Functions of Staff) Bill [HL]

Debate between Lord Keen of Elie and Lord Thomas of Cwmgiedd

Report stage (Hansard): House of Lords
Tuesday 16th October 2018 Lords Chamber

[Lord Thomas of Cwmgiedd (CB)]

My Lords, I support what the Government seek to do and urge a substantial degree of caution in respect of the proposal put forward by the noble Baroness. The Criminal Procedure Rule Committee and the other ones—the civil, family and tribunals committees—are independent bodies. They look at and scrutinise everything with a great deal of care. They are representative of all interests in litigation. For example, the Criminal Procedure Rule Committee has a number of defence lawyers and people from other aspects of the criminal justice system who proceed with great care to look at what is before them. It was suggested that they are unaccountable. I say on this amendment that the provisions for having to consider the right of reconsideration and then reporting that to the Lord Chancellor informing him of the decision and reasons is a traditional form of explanatory accountability.

Secondly, we ought to take into account the fact that, in our system of justice, the operation of the criminal, civil, tribunals and family procedures rule committees has enabled us far more than any other state to keep our rules up to date. I urge the greatest caution in trying to put into primary legislation anything that restricts in this way the powers of the rule committees. For example, there are areas where it has proved difficult to modernise and to reform the system—for example, for extradition appeals, where provisions put into primary legislation made the system almost unworkable. Certainly what was in the primary legislation in relation to videolinks and the protection of vulnerable witnesses proved a great obstacle.

I therefore urge your Lordships to consider that this amendment, as my friend the noble Lord, Lord Marks, said, provides the right balance. It gives discretion to a body that knows and has a lot of experience, but it contains that degree of explanatory accountability that will make sure that it does not do anything—even if we were to worry that it might—that goes outside a proper and just delegation. It is always difficult to think of issues on the spur of the moment but, for example, one of the areas that troubles courts quite often is the short time limits if you have a recalcitrant party. It might be that, in very restricted circumstances, a rule committee would say, “This is the kind of area where a reconsideration is not necessary when a final extension has been given”. But the important point is that I urge your Lordships to trust the rule committees, particularly now that there is this additional safeguard.

[Lord Keen of Elie]

I am obliged to all noble Lords for their contributions. The Government’s position remains that the independent procedure rule committees, comprised of experts and practitioners from each jurisdiction, are best placed to decide whether a right of reconsideration is needed for each judicial function that staff are permitted to exercise. Similarly, they are best placed to determine what such a right should look like. In that context, I gratefully adopt the observations of the noble and learned Lord, Lord Thomas, the former Lord Chief Justice, and of the noble Lord, Lord Marks.

The approach taken in Amendments 8 and 11, tabled by the noble Baroness, Lady Chakrabarti, would impose a blanket right of reconsideration across all jurisdictions, with arbitrary deadlines. It simply would not work in practice. For example, the amendments would allow a person 14 days to apply for reconsideration. Why would a 14-day limit apply across all jurisdictions and for every judicial function that authorised persons are permitted to exercise, some of which are entirely straightforward case management and preparation duties? Indeed, the noble and learned Lord, Lord Thomas, referred to time limits. What happens if you have a request to adjourn a hearing due to take place the following day? If it is refused, you then have 14 days for reconsideration. In other words, it would automatically be successful because of this blanket provision. That is just one of many examples.

Each jurisdiction has its own ways of working and needs mechanisms for reviewing decisions that can respond to this. For example, the rule committees in the civil and tribunals jurisdictions have already built in a specific right to judicial reconsideration of decisions made by authorised staff. The magistrates’ courts and the family court have their own existing mechanisms for reviewing various decisions. These amendments, as proposed by the noble Baroness, would cut across all those existing provisions.

I mentioned an example in response to a query from the noble Lord, Lord Pannick. The magistrates’ courts issue something in excess of 2 million local authority summonses every year. If there were a right to reconsideration in every one of those cases, where would we begin and end with regard to the administration of such applications? Indeed, in the magistrates’ courts, there are already a number of ways for a defendant to challenge a case in which a summons has been issued. He or she can make an initial argument to the court hearing the case that the summons should not have been issued. You can contest the substantive application made by the local authority. There is even the possibility of judicial review. The matter is already covered.

Creating a mandatory right to apply for judicial reconsideration of the decision is not only unnecessary but would also be burdensome and ineffective. It is in these circumstances that I reiterate that it is appropriate, as other noble Lords have observed, that these matters should remain with the independent procedure rule committees and that I again commend Amendments 7, 9, 10 and 13. I invite the noble Baroness, Lady Chakrabarti, not to press her amendments in this group. I cannot commit to reflecting any further between now and Third Reading on these matters, so if the noble Baroness wishes to test the opinion of the House, she should do so now.