Judicial Pensions (Amendment) Regulations 2024

Lord Marks of Henley-on-Thames Excerpts

Monday 11th November 2024 Grand Committee

In conclusion, I assure the Committee that the amendments set out in this statutory instrument are necessary to improve and correct the running of the judicial pension schemes, meet our statutory duty to insert a cost cap mechanism and, together with other measures on judicial pay and pensions, help to ensure that we can continue to support our outstanding independent judiciary. I beg to move.

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

My Lords, first, I congratulate the noble Lord on his concise and detailed opening on a complicated set of regulations. I note that the regulations were introduced by the last Government and have hardly undergone any significant change since their introduction, so it is unsurprising that they are likely to be relatively uncontroversial. There will certainly be no opposition from the Liberal Democrats to these proposals.

The most significant of what are largely tidying-up amendments are those that bring into line with other fee-paid judges a number of tribunal judges and chairs. That is completely in line with the view that we all take—that tribunal judges and chairs are a very important part of the working judiciary and that the tribunal system does the whole work extremely well. It is right that the pension arrangements for paid judges should be aligned.

The other significant point is that the pension arrangements for part-time service in the light of the O’Brien judgment are now going to be tidied up so that some of the anomalies that arose from that judgment have been eliminated, so far as they can be, although it is a difficult area—and I appreciate that the regulations have to reflect that difficulty.

I noted from the Explanatory Memorandum and the Minister’s opening that there was a consultation, which attracted no fewer than six responses, none of them critical—and, I take it, all of them raising questions that have been satisfactorily answered. In view of that, I have no further questions for the Minister on this SI.

[Lord Wolfson of Tredegar (Con)]

I am not sure whether I need to declare a formal interest, as my wife sits as a fee-paid tribunal judge but, for the avoidance of any doubt, I do. I suspect that the impact of this regulation on her will be de minimis and no doubt happen in many years’ time.

That said, I can be brief because the Minister has been so comprehensive. As we heard from the noble Lord, Lord Marks of Henley-on-Thames, these regulations emanate from the previous Government; this is not an area where, historically, there has been political controversy. Indeed, as the Minister said, we debated similar regulations when our roles were reversed. I echo his comment to me that this is probably not the last time we will come back to debate and discuss these pension regulations, because they are complex. Part of the reason for that is the history and the litigation that has arisen, but the one thing we share around the Committee is the importance of having an attractive pension scheme so that we attract the finest candidates to our judiciary—and retain them. Indeed, one of the things we did in the previous Government was to increase the retirement age to 75. The Minister referred to our outstanding and independent judiciary, and we absolutely endorse those two adjectives; it is outstanding, and it is totally independent.

I also endorse the point made by the noble Lord, Lord Marks of Henley-on-Thames: the fact that we are widening some of these pension schemes to include more tribunal judges is testament to the fact that so much of the important work of our judiciary is done by tribunal judges, both full-time and part-time—I think fee-paid is the proper term. Day in, day out, tribunals up and down the country deal with really important issues for people on the ground, so to speak. They are often unsung, and far from the legal journals and law reports, but they deal with important legal issues on a daily basis.

I have only one question for the Minister, which I ask as a matter of interest rather than in any controversial way. I note that, by these regulations, we are extending the time to enable judges to make choices between the pre-1995 and post-1995 schemes. I am interested in why we are extending time for that and why this particular period of extension has been chosen.

Other than that, I am tempted—as I think they are still debating the Budget in the Chamber—to point out that, although it is important to have attractive and gold-plated pensions in the public sector, that does not mean that we should raid private pensions in the private sector. If I say any more on that I will take this debate to places where it ought not to go, so I will stop there and make it unequivocally clear that we on these Benches are also firmly in favour of these regulations. I thank the Minister for introducing and explaining them so clearly.

Prison Capacity

Lord Marks of Henley-on-Thames Excerpts

Wednesday 24th July 2024 Lords Chamber

[Lord Stewart of Dirleton (Con)]

My Lords, I welcome the noble Lord, Lord Timpson of Manley, to his place on the Front Bench. Repeating a Statement has always struck me as one of the odder things that one has to do from the Front Bench, and I congratulate him on having completed it. I also have a further degree of sympathy with him in his opening outing in your Lordships’ Chamber. When I gave my maiden speech, I had to speak half of it as a maiden speech and half of it on a Bill, prompting my noble and learned friend Lord Mackay of Clashfern to say, “I very much enjoyed half of the Minister’s speech”. However, I look forward to welcoming properly the noble Lord to his place on the occasion of his maiden speech, which he is shortly to deliver.

The strain on prison capacity has been a matter of anxious concern for Parliament for some time, and the matter was brought frequently before your Lordships’ House in the course of the last Parliament. This is an area of great complexity, in which the actions of the Government of the day must take into account considerations over which they have no control, and should never seek to have control—such as decisions taken by the independent judiciary on sentencing, carried out on a case-by-case basis, to arrive at a sentence apt for the individual circumstances of the case and the need at once to protect the public, to punish, to deter and to rehabilitate.

It also has to reflect the physical capacity of the prison estate to accommodate prisoners. There is an inevitable tension between the need to protect the public by imprisoning serious offenders and the need to have sufficient provision of prison accommodation and staff so that the crucial function of rehabilitation might be best accomplished. It is liable to be upset by sudden contingencies, such as the closure of HM Prison Dartmoor and the effect that had on the number of available places on the estate.

At all times, the previous Government sought to manage this difficult problem in a manner which addressed all concerns while reflecting their paramount concern: the safety of the public. That is why, during the pandemic, in circumstances wholly without precedent, the previous Government made the decision not to order a mass release of prisoners from our jails, as happened in other countries and as was pressed on us by public health experts and others. I acknowledge immediately that we were supported in that steadfastly by the then Opposition, who now sit on the Government Front Bench. Events demonstrated that that was the correct decision. During the pandemic, we maintained that vital safeguard of our liberties which we all enjoy: trial by jury.

However, all that added to the pressure on the prison estate: the numbers of those remanded pending trial or sentencing increased from around 9,000 to 16,500. The previous Government acted to allow longer sentences for the most serious crimes, conscious of the possible strain on prison places, and acted at all times to reflect the overriding necessity of protecting the law-abiding public and reflecting their concerns that punishment should properly reflect the gravity of the crime for which it is imposed.

The previous Government also acted responsibly and with foresight to address the capacity of the prison system in England and Wales. The biggest prison-building programme since the 19th century was commenced. During the last Government, more than 13,000 additional prison places were created, two new prisons were opened, a third is under construction at present, planning permission has been granted for two more and a decision is imminent on another. Some £30 million was allocated for the purchase of land on which prison construction could take place.

On probation, a detailed Statement was made to the other place and repeated in your Lordships’ House on 13 March. I repeat some of the details: additional funding for probation of £155 million; more than 4,000 trainee probation officers beginning their training; and probation practice redirected to areas which bring the best results in reducing reoffending, as well as public protection.

When the Lord Chancellor says that she will recruit at least 1,000 new trainee probation officers, is that in addition to those that we announced? Will the Government commit more funds to recruitment and training of probation officers? We do not see any acknowledgement of that in the Lord Chancellor’s Statement. She professes to find herself shocked by what she discovered on taking up office about the pressures on the system, but the figures on the prison population in England and Wales were not only widely publicly available during the last Parliament but matters of urgent debate here and in the other place. They can have come as a surprise to no one.

The previous Government left the new Government with no ticking time bomb, but the Lord Chancellor’s Statement prompts real concern for public safety. These Benches will watch what develops with anxious concern. In the Statement, she made a promise to be transparent in a way that she says the previous Government simply were not. In the spirit of that transparency, I pose certain questions.

Does the Minister agree with the position outlined from the Liberal Democrat Front Bench in the other place by Alistair Carmichael MP that prisons should be used less? It is a perfectly defensible position which is perfectly capable of being argued. We do not agree with it on these Benches, but do the Government? If they do, how do they intend to deal with violent crime, rapists, persistent offenders who have no fear of the system and the epidemic of benefit and financial fraud which the country is experiencing? Does the Minister agree that it is easier to speak about community alternatives to custody than to devise ones which are not expensive to operate and difficult to organise and command the support of the public and the judiciary?

We heard from the Lord Chancellor of the safety measures on which she relies in relation to this new measure of early release. I submit that she does nothing more than rehearse safeguards which already exist. She speaks of strict licensing conditions, electronic tagging and curfews where appropriate. These are familiar measures, deployed to support prisoners released on licence. They are measures of long standing. The Lord Chancellor announces a policy which will understandably create concerns for public safety and then, to allay concerns arising from that new policy, founds a series of safeguards that already exist. That is nothing new.

The Lord Chancellor offered specific reassurance on crimes of domestic violence in the debate that followed her Statement. Before too long, I hope that we will hear from her about the significance of other crimes, such as those relating to public order, the need to maintain our civic spaces and free thoroughfares and the need to protect our retail sector and those working in it from those who try to dictate to us what we should buy and from whom. We look forward to hearing from her on these matters.

I wonder whether the Lord Chancellor would agree with that great man of the left, George Orwell, about the harmful properties of stale, clichéd language and dead metaphor. Her Statement gives us “ticking time bomb”, “silver bullet”, “veil of secrecy”, “the guilty men” and much more tired language besides. Orwell’s point is that such language not only serves to disguise meaning or conceal the absence of content in a statement but has actively harmful effects on the reader by helping to deaden not only the capacity for clarity of expression but the capacity for clarity of thought. It is inevitable that we express ourselves in such a way in politics—and I certainly would not hold up my own contributions to this House as models—but the Lord Chancellor’s Statement was filled with cliché. Can we see clarity from the Government?

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

My Lords, we too welcome the Minister to his new role, and we look forward to his official maiden speech later today with enthusiasm, not least because we have for a number of years on these Benches cited his ground- breaking commitment in his business and more generally to the rehabilitation of prisoners through training and employment.

However, to say we welcome this Statement would be inaccurate, because it reflects a complete failure of our prison system, but we recognise the emergency and, with it, the need for the measures announced in the Statement. We also endorse the Statement’s serious criticisms of the last Government’s performance; they allowed, encouraged and created the present prison capacity crisis. I disagree with the noble and learned Lord, Lord Stewart of Dirleton, for whom I have the greatest respect, as to the foresight, commitment and care of the last Government on this issue, which was sadly lacking.

On these Benches, and on the Labour Benches, we warned of this crisis during the last Parliament over and over again, but the Government carried on in the same old way, filling our prisons to bursting and failing to address the disastrous conditions within them.

The Government’s stated aim is that the 40% early release point should not stand in perpetuity and is to be reviewed in 18 months’ time. We agree with that and that this process will be a slow one, but progress is thoroughly necessary. A wholesale programme of prison reform is needed. We imprison far too many people in this country for far too long. We have seen significant sentence inflation over recent years, and it is no good just blaming the judges for passing longer sentences; government legislation on sentencing and later release dates has significantly increased prisoner numbers. We need more use of community sentences and that means more probation officers—we welcome the commitment in the Statement to an urgent recruitment programme. However, to echo the question from the noble and learned Lord, Lord Stewart, does that include a commitment to fully funding an increased overall number of probation officers?

Our prisons are desperately overcrowded; cells are packed to well over capacity; temporary prefab cells are used; repairs and maintenance are cancelled. Cells that should not be in service are brought back into use. Prisoners are shuffled around the prison estate at the expense of continuity of training and supervision. Understaffing remains acute, with insufficient officers to manage our prisons, even to get prisoners to where they need to be for education and training courses when they are available. Twenty-two hours daily in overcrowded cells has become the new commonplace within our prison system, which has led to mental health issues, serious violence and massive drug abuse. When will we introduce mandatory drugs checks for everyone entering prisons, staff as well as visitors? There is ample evidence that too many drugs enter prisons in the hands of members of staff who give their colleagues a bad name and seriously damage morale.

The prison building programme set out to provide 20,000 new places under the last Government, but, of those, some 4,000 already counted as present capacity. Only Millsike in Yorkshire, with just 1,500 places, is approaching completion next year. Grendon in Buckinghamshire now at least has planning permission for another 1,500 places, but in the other sites not a brick has been laid. Two prisons at Gartree and Chorley are still in the planning process, and two near Braintree have not even been decided on yet. The whole promised programme of the last Government involved double counting and smoke and mirrors. The new Government’s programme is welcome, and so is the caution and moderation with which the Statement stressed it—but it is crucial.

On any view, the last Government’s building programme could not possibly keep up with the projected rise in prison numbers—17,000 more places needed in three years on present trends. The only answer is to reverse those trends; reduce reoffending, emphasise reform and rehabilitation as the function of prisons and do all we can to reduce prison numbers. Does the Minister agree?

[Lord Timpson (Lab)]

My Lords, I start by thanking the noble and learned Lord, Lord Stewart, and the noble Lord, Lord Marks of Henley-on-Thames, for their questions. This is my first time in this House answering questions, so I apologise in advance should I not respect any of the customs and courtesies of the House by mistake. Having not even done my maiden speech yet, this feels to me like having a first ski lesson on a black run. I thank noble Lords for their patience and will do my best to answer all their questions.

The noble and learned Lord, Lord Stewart, raised a point on the sentencing review that we are planning. The sentencing framework has been allowed to develop piecemeal, over time. As a result, there have been inconsistencies that do not make sense to victims or the wider public. We will be launching a review of sentencing. While the terms of reference are not yet defined, this will look to ensure that the sentencing framework is consistent and clear to the public. More details of this review will be announced in due course.

On HMP Dartmoor, one of the first roles that I have had since taking on this job is focusing on prison capacity. It was unfortunate that I had a note from my officials regarding the temporary closure of HMP Dartmoor at a time when we really need capacity. At Dartmoor, safety is our number one priority. After close monitoring of the situation, it has been decided that the prison will temporarily close. I will update the House as the situation develops.

This Government are committed to a 10-year capacity strategy, and we recognise that we need to make sure that this country has the prison places that it needs. We will deliver where the previous Government failed, and we will never allow the planning process to get in the way of having the prisons we need.

Talking about the prisons we need, we need to build more prisons, because we need to keep the public safe, but one of the themes also raised is around reducing reoffending. I have been working on this for the last 22 years, finding ways to recruit people from prison to help them get a job, live a normal life and not reoffend. This is not a quick fix—it takes time—but recruiting 1,000 probation officers is a good start. These will be in addition to the probation staff we have now.

Only late last week, I went to the Camden and Islington probation delivery unit and met the team there, which was preparing to deal with the offenders who were being released in September and October. I was delighted at the commitment, focus and professionalism of this team, and I am confident that they will do their best in very difficult circumstances.

On training, I do not know about probation officers but, just before I came into this role, I completed a review for the Government on prison officer training. It was clear to me where the gaps were, and I am looking forward to working with colleagues in the months ahead to see what can be learned not just for prison officers but for probation officers.

On safeguards put in place for early release, the scheme currently in place is a very rushed and disorganised way of releasing people from prison, which puts extra pressure on probation officers to do all the work they need to do to identify victims, to find places to live, and to connect the offenders up with mental health and drug workers. The eight weeks that they now have to prepare for the releases will make this easier, but it is far from perfect.

The 40% early release scheme will be reviewed and, in 18 months’ time, the plan is for it to go back to 50%, but the noble Lord is right when he says that we need a wholesale programme of prison reform. Community sentences are vital, but we need to resolve the capacity crisis we have now, because our probation officers are overworked. The recruiting of 1,000 extra probation officers will help, but they also need time for the system to settle down.

Finally, I will mention training and education. Prisons are not places where we want people just to be locked up. We want them to have opportunities to turn their lives around. A lot of that is around training and learning skills, so that when they are released they can have a job and not go back. Some 80% of people who offend are reoffenders. It is hard to do this well in the current crisis, but I emphasise that I look forward to working with the noble and learned Lord and the noble Lord and having countless important debates. I stress to all noble Lords that I will write a letter, which might be quite a long one, on all the points I did not answer today.

Recognition and Enforcement of Judgments (2019 Hague Convention etc.) Regulations 2024

Lord Marks of Henley-on-Thames Excerpts

Friday 24th May 2024 Lords Chamber

[Lord Sandhurst (Con)]

My Lords, I too welcome this measure, but I want to take this opportunity to echo the very generous words of praise from my noble and learned friend Lord Thomas of Cwmgiedd. My noble and learned friend Lord Bellamy has been a tremendous Minister. He has worked absolutely tirelessly under great pressure and it is no fault of his that we are losing the Arbitration Bill, which really is important. I think it is important that this point is made and it is very important that whoever wins the election understands that this Bill is important for the City of London which, whatever one’s political views, brings enormous sums of money into this county and generates a lot of tax.

In the same breath, I am also very sorry that the litigation funders Bill, which I think was effectively uncontested—although it could probably do with a minor tweak—has also been lost. I very much hope that that is brought back and sent through quickly in the autumn. That Bill is also very important for the London legal market. I am not talking about small sums here and cases in the Competition Tribunal and so on could be taken elsewhere. It is really important that they stay in the United Kingdom and that we keep our top legal services.

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

My Lords, I add the support of these Benches for everything that all noble Lords have said, particularly the noble and learned Lord, Lord Thomas of Cwmgiedd, who led the special committee on the Arbitration Bill. I agree with him and other noble Lords about the Hague convention regulations, but I also express considerable concern about the loss of the Arbitration Bill and the Litigation Funding Agreements (Enforceability) Bill.

With others, I pay tribute to the work of the noble and learned Lord, Lord Bellamy, generally, and to the noble Lord, Lord Roborough, and the noble and learned Lord, Lord Stewart of Dirleton. We had the three government Ministers involved in this House on a delegation yesterday to try to save those two Bills. We have not succeeded, which is a great shame. I hope that we can unite to bring some pressure on the powers that be to improve the wash-up procedure so that Bills of great importance to the British economy can be taken through during the wash-up where there is absolutely no controversy about them, as is the case with both these Bills. They both could have been dealt with last night and today before Prorogation and they have not been. That is going to cause a big delay and it is a great shame. I hope the delay will be kept as short as possible.

[Lord Ponsonby of Shulbrede (Lab)]

My Lords, we on our side support the statutory instrument and recognise and endorse everything the noble and learned Lord, Lord Bellamy, said regarding the importance of recognising the Hague convention and being one of the first adopters of the new convention and, as the noble and learned Lord explained, the ratification process and the importance of the UK maintaining its status as a world leader in its courts system.

I agree with what the noble and learned Lord, Lord Thomas, said, about the Arbitration Bill. I well remember the Second Reading debate in the Moses Room, where the Back Bench was replete with retired Supreme Court judges—which, as the only non-lawyer taking part in that debate, was a very instructive process for me.

Every noble Lord who has spoken has really made the same point about the Litigation Funding Agreements (Enforceability) Bill and the Arbitration Bill. All I can say is that, from my side, I also did what I could to try to get these Bills to be recognised, but, as the Bills started in the Lords, that was a problem. I recognise what the noble Lord, Lord Marks, says about improving the wash-up procedure, because these are not politically contested Bills yet they are very important for UK plc. In the future, I will very much do what I can to make sure that my political party, whatever its position, will do everything it can to get these Bills on the statute book as quickly as possible.

Victims and Prisoners Bill

Lord Marks of Henley-on-Thames Excerpts

3rd reading
Thursday 23rd May 2024 Lords Chamber

[Baroness Campbell of Surbiton (CB)]

My Lords, I will be brief because I know that time is of the essence. I pay tribute to the noble Baroness, Lady Brinton, for her sterling work on this Bill. She has given great comfort and strength, as well as enormous amounts of information, to the infected blood community, so that they can keep up with what we have been doing in this House up until today. She is right that there is now confusion in the community.

At the end of a very long day on Monday, I had thought that I might just get a day off, but by Tuesday my phone was ringing off the hook, and I became a helpline to many in the infected blood community who have the concerns that the noble Baroness, Lady Brinton, just described. I urge the Minister to give a little more clarity, if he can today, so that we can go back and continue to give reassurances to a community that has been campaigning and working towards this week for probably 35 years. I thank the Minister for his open door, because we have been going in and out of it for weeks. I, for one, really appreciate his support and help.

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

My Lords, I add the thanks of these Benches to the Ministers—the noble Earl, Lord Howe, and the noble and learned Lord, Lord Bellamy—and the Bill team as a whole for the way they have handled the Bill. It has been a real example of co-operation and cross-party help, leading to a number of amendments, not only on this particular issue but on all the issues that we have faced. We have not always reached agreement and there have been Divisions; nevertheless, I think everybody here agrees that the Bill will leave this House much improved.

I also very much wish to associate these Benches with everything that has been said by my noble friend Lady Brinton, speaking from these Benches, and the noble Baroness, Lady Campbell of Surbiton. I pay tribute to the noble Earl for the way he has handled the infected blood issue, particularly by meeting with the community and noble Lords in a way that has been utterly helpful and completely sympathetic. We all know that it has devoured an enormous amount of his time, and we all respect and admire the care he has given to handling this issue. I hope that he will be able to give the reassurance today—to my noble friend Lady Brinton, the noble Baroness, Lady Campbell, and the House—that is sought by the infected blood community; it would be a great relief to them.

Many of us had telephone calls yesterday in which extreme concern was expressed about what was happening in view of the calling of the general election, the fear that the Bill might be lost and that further improvements or reassurance on the scheme might not be possible. I add that it would have been a crying shame if this Bill had been lost and had not got through the wash-up. That seemed a real problem yesterday; there was concern that it would happen. It has got through, and for that we are extremely grateful.

It is also a great shame that the Arbitration Bill and the Litigation Funding Agreements (Enforceability) Bill look as if they are under threat. That is ridiculous. The Arbitration Bill is a Law Commission Bill. It has to start in the House of Lords, it went through a long Special Public Bill Committee procedure, ably chaired by the noble and learned Lord, Lord Thomas, and there is no opposition to it. Similarly, the Litigation Funding Agreements (Enforceability) Bill has no opposition. These are two Bills important to the British economy because of the contribution that the legal services sector makes to it as a whole. For the progress of those Bills to Royal Assent before Prorogation to be stymied by an absurd convention that, if it has not already been introduced in the other House, a Bill will necessarily fail, is wrong. In those circumstances, I profoundly hope that the Whips in the Commons can come to an agreement. As I understand it, there is all-round agreement in the Lords that these Bills should go through. They must be taken through, just as this Bill has been taken through.

We are very grateful that this Bill has gone through. However, if the other Bills that are non-controversial and agreed cannot get through, the procedure on the wash-up needs a radical shake-up.

[Baroness Thornton (Lab)]

My Lords, the noble Lord, Lord Marks, has absolutely nailed it, and I absolutely agree with him about the Arbitration Bill, although my pay grade is much too low to do anything about any of those things.

This is one of those times when we are allowed to say “Thank you” and “Didn’t we do well?” Thank goodness we have this Bill and that it did not fall with the call of the general election. Between us in this House, we have improved the deal for victims across the country. We have given powers to our Victims’ Commissioner which she needs to do her job. I thank everybody we have worked with: my noble friend Lord Ponsonby, who is of course in court today—I do not think he has done anything wrong—the noble Baroness, Lady Brinton, the noble Lord, Lord Marks, and the ministerial team. The noble and learned Lord, Lord Bellamy, has been a model of what you need in a Minister in your Lordships’ House in that he is always prepared to listen, to discuss and to hear what might be needed, and when something is just, he seems to be able to act on it. You cannot ask for much more than that. I thank the Bill team, because I know what hard work it is to be a Bill team. I also thank my own people in our office, who have been backing us up on this Bill. I am just very glad that it has made it through wash-up.

Victims and Prisoners Bill

Lord Marks of Henley-on-Thames Excerpts

Report stage
Tuesday 21st May 2024 Lords Chamber

[Lord Thomas of Cwmgiedd (CB)]

I am very grateful to the Minister for what he said and the amendments he has put forward. For reasons that would be boring to explain, they achieve exactly the same result in practice as the amendments put forward by myself and the noble and learned Lord, Lord Burnett of Maldon. I am delighted that the Government have accepted this and I concede that their amendments are simpler.

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

My Lords, I simply say that we support these amendments; we argued for them in Committee. A view I expressed then was that it was bizarre that the Bill provided for the Upper Tribunal to determine Secretary of State referrals from the Parole Board of release decisions, with the High Court involved only in cases with sensitive material.

We also agree that releases should be suspended pending decisions on such referrals by both the Secretary of State and the divisional court. The only further point I will make is that I hope that the Minister will be able to indicate from the Dispatch Box that such referrals should generally be dealt with as expeditiously as possible, to minimise the anguish of people waiting and the risk of prisoners having their time in custody unjustly extended by the delay.

[Lord Ponsonby of Shulbrede (Lab)]

My Lords, I, too, thank the Minister for the government amendments in this group. The Government have listened carefully to the two previous Lord Chief Justices and decided that the High Court is the most appropriate place to hear parole referrals. The noble and learned Lord, Lord Thomas, said that the Government’s amendments in this group were better than his, which has circumscribed the debate.

The noble Lord, Lord Marks, raised an interesting point about how the courts should deal expeditiously with parole-type matters, and I will listen with interest to what the Minister has to say on that.

--- Later in debate ---

[The Lord Bishop of Southwell and Nottingham]

My Lords, it is a pleasure to follow noble Lords—and noble and learned Lords—and to benefit from their considerable wisdom on the matter at hand. I do not wish to repeat all that has already been said, but my right reverend friend the Bishop of Gloucester has added her name to several amendments in this group. She is sadly unable to be here today, but I know that, like many other noble Lords, she is dedicated to seeing the reform of the criminal justice system, particularly in respect of our prisons, for which she is the lead bishop for the Church of England.

I will reflect briefly on Amendment 140. As has already been said, we know that many IPP prisoners are stuck in the system, and appropriate psychiatric care in the community is not in place to manage their high-support needs. It is clear to anyone who visits prisons and meets IPP prisoners that they suffer great mental distress, reportedly more so than the wider prison population. This sentence—arguably more than any other— disrupts relationships and leads to hopelessness, anxiety and alienation, as we have heard so much about. In many cases, it can be said that the sentence itself is the very cause of that mental distress, as is reported by many chaplains in our prisons.

The changes proposed through this Bill are welcome and, as we have heard, much progress has been made; but, for the sake of both the prisoners in question and the wider community, I submit that the extended aftercare arrangements proposed in Amendment 140 are needed. Like other noble Lords, I ask the Minister to think again on this important matter.

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

My Lords, it has long seemed strange that, having abolished IPP sentences during the coalition in the LASPO Act, we still have nearly 3,000 prisoners, many of whom had relatively short-term tariffs, in custody or recalled to custody many years after their tariffs have expired.

In this House and elsewhere, there is unanimity that IPPs have been and remain a stain on our justice system, and that they are an inhumane mechanism, unjustly withholding from prisoners a date of release, routinely depriving them of any hope of freedom and causing them serious mental health problems. This is a fact highlighted by the noble and learned Lords, Lord Thomas of Cwmgiedd, Lord Hope of Craighead and Lord Garnier. The IPPs were frequently in the wake of offences that were not of themselves the most serious.

This is all against a background of a Government taking strange measures, almost impossible to justify, to keep down the prison population. As the noble and learned Lord, Lord Thomas, pointed out, we have prisoners on determinate sentences being released up to 93 days early, for no good reason apart from that there is no space for them. With Operation Early Dawn, we have hearings of criminal cases being delayed to avoid using up prison space by convicting and sentencing offenders expeditiously. We have a prison building programme that even on the most sanguine projections for planning and construction cannot possibly keep pace with predicted increases in prisoner numbers.

Yet we have a Government who have already been the cause of increasing prisoner numbers—with longer prescribed sentences and legislation increasing times in custody—setting their face against doing more to relieve a significant part of the pressure by releasing IPP prisoners faster and more humanely. Certainly, they have moved some way, and I join my noble friend Lady Burt in welcoming the Government’s movement and in her call in Amendment 140, supported by the noble Baroness, Lady Fox of Buckley, and the right reverend Prelate, for much more and far better aftercare and support for these damaged prisoners who have suffered so much from IPPs. The action plan, so far as it goes, is welcome, as are the other government amendments, in which the Government have accepted the spirit of amendments moved by others throughout the passage of this Bill. I join those others, notably the noble Lord, Lord Blunkett, who has been mentioned and who has spoken, in appreciating the discussion and co-operation that we have all had with the Minister. However, one suspects that it has been despite the Minister’s best efforts that the Government have not moved far enough.

Amendment 149A, tabled by the noble and learned Lord, Lord Thomas of Cwmgiedd, and noble Lord, Lord Blunkett, and powerfully supported today by the noble Lords, Lord Moylan, Lord Carter, and others, with its requirement for an approach that embodies proportionality, is a modest amendment. Why the Government cannot accept it I cannot imagine. The noble and learned Lord’s amendment is designed to give IPP prisoners the hope that they need. The noble and learned Lord, Lord Garnier, expressed powerfully the effects of the loss of hope for IPP prisoners in the context of this amendment. If the noble and learned Lord does test the opinion of the House, we will support his amendment. I hope only that a good number of Labour Peers and Conservative Peers, in the cross-party spirit shown by the noble and learned Lord, Lord Garnier, will do the same. It would be very welcome if the Government would heed his plea to have one more think.

[Lord Ponsonby of Shulbrede (Lab)]

My Lords, I too acknowledge the work done by the Minister on IPP and the significant movement that there has been through the government amendments.

It is right that IPP sentences were abolished. We share the concerns that lie behind many of these amendments. We have always sought to work constructively on a cross-party basis on this issue, which is why we are supporting the government amendments to bring forward a statutory action plan. Our default position will always be, where possible, to secure the safe release of IPP prisoners. However, public safety must be at the centre of our approach. It is not possible to make assessments of public safety responsibly and confidently from the opposition position without the necessary evidence on the individual needs of these offenders. In government, the Labour Party will work at pace to make progress and will consult widely to ensure that the action plan is effective and based on the evidence available.

Government Amendment 139C, the annual report amendment, is a government concession to Amendments 141 and 142 tabled by my noble friend Lord Blunkett. It places an obligation upon the Government to report annually on the progress and rehabilitation of IPP and DPP prisoners through the enhanced work of the progression board and to outline those whom they have consulted in supporting such progress. There is clear intent of prisoner release and support and progress on licence while being monitored and advised by the scrutiny panel—currently known as the external challenge group. The Minister mentioned the members of this group. Nobody could doubt their credibility.

Victims and Prisoners Bill

Lord Marks of Henley-on-Thames Excerpts

Report stage
Tuesday 21st May 2024 Lords Chamber

Moved by

[Lord Marks of Henley-on-Thames]

150: Leave out Clause 49

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

My Lords, the amendments in this group, Amendments 150 to 153, objecting to Clauses 49 to 52 standing part of the Bill, fall into two slightly different categories. The first three amendments, in my name and that of the noble Baroness, Lady Lister of Burtersett, who I am grateful to for her support, would remove the proposals in the Bill that Section 3 of the Human Rights Act be disapplied in relation to three pieces of legislation.

First, by Clause 49, the disapplication would apply to Part 2, Chapter 2 of the Crime (Sentences) Act 1997, which concerns life sentences and sentences of detention at His Majesty’s pleasure, release on licence for prisoners serving such sentences, and their release on licence, recall and removal from the UK, and will include all those amendments to be introduced by Clause 41 of this Bill. Secondly, Clause 50 would disapply Section 3 to Part 12, Chapter 6 of the Criminal Justice Act 2003, which concerns the release on licence, supervision and recall of certain fixed-term prisoners, and will include all those amendments to that Act to be introduced by Clause 42 of this Bill. Thirdly, Clause 51 would disapply Section 3 to Section 128 of the LASPO Act, or any order made under that section. That is the section which, as we have heard in debate at some length in Committee and earlier today, permits the Secretary of State to change the release test for certain prisoners, importantly including IPP prisoners, to shift the balance so that if conditions are met, an IPP prisoner must be released.

As will be familiar to the House, Section 3 of the Human Rights Act requires that:

“So far as it is possible to do so, primary legislation and subordinate legislation must be read and given effect in a way which is compatible with the Convention rights”.


The ECHR is fundamental to the protection of human rights in this country. That is and has long been an article of faith for my party and the Labour Party, which was responsible for enacting the convention as part of domestic law by the means of the Human Rights Act. Indeed, it is important for many but not all in the Conservative Party; we have all seen the fault-lines on this issue over the tenure of this Government. However, the present Secretary of State for Justice is a keen advocate for the convention.

The architecture of the Human Rights Act has been widely and, I suggest, rightly praised for striking the balance between the sovereignty of Parliament and the convention. That architecture has at its heart the combination of Section 3—the section I just read—which requires convention-compatible interpretation and application of legislation where possible, and Section 4, which provides for a court to make a “declaration of incompatibility” where a legislative provision is found to be irrevocably incompatible with the convention right. The making of such a declaration leaves it to Parliament to legislate so as to comply with the convention and remove the incompatibility.

It follows that the proposed disapplication of Section 3 represents an invitation, almost an instruction, to courts to disregard convention rights when interpreting or applying the legislation. This is not a purely academic point; in relation to IPPs, for example, the European Court of Human Rights found in the case of James, Wells and Lee v UK in 2012 that the applicants’ IPP sentences were a violation of their Article 5 rights to liberty and security because the unavailability of rehabilitative courses meant that their detention after the expiry of their tariff terms was “arbitrary”.

As the Prison Reform Trust put it, in its helpful briefing for this debate:

“The introduction of specific carve-outs from human rights for people given custodial sentences contradicts one of the fundamental principles underlying human rights—their universality and application to each and every person on the simple basis of their being human. Moreover, it is precisely in custodial institutions like prisons that human rights protections are most vital, because individuals are under the control of the state”.


These carve-outs represent an insidious threat to the effectiveness of the convention in this country and, I suggest, a stalking horse for future legislation, undermining the balance between parliamentary sovereignty and the convention that I spoke of. They should be resisted.

I am bound to say that I find it very disappointing that the Labour Party is not whipping Labour Peers to support these amendments. The Human Rights Act was one of the Labour Party’s finest achievements. For Labour Peers to be instructed to condone by abstention the disapplication of Section 3 to these provisions is a sad portent for the future.

Before closing, I turn to Amendment 153, which seeks to remove Clause 52 from the Bill. Clause 52 does not seek to disapply any part of the convention, but it seeks to skew the court’s decision-making process on the application of convention rights in a way that is underhand and unacceptable. It would provide that, in making a decision as to whether a person’s convention rights have been breached in relation to a release decision:

“The court must give the greatest possible weight to the importance of reducing the risk to the public from offenders who have”


been given prison sentences. In other words, risk reduction is to outweigh all other factors. But what does the instruction to give “the greatest possible weight” say to a judge? The answer is effectively that no other factor is to count. There is to be no careful judicial balancing exercise, because if the risk reduction factor can be outweighed in the balance, a judge cannot, by definition, give that factor “the greatest possible weight”. Judicial discretion is to be removed; judges are to be compelled to reach decisions that they would not otherwise make, because they may not judge for themselves what weight to give to competing factors. That is not acceptable.

I fully intended to divide the House on these amendments, but given the Labour Party’s decision not to support them but to abstain and the fact that it is now late, I have decided not to. Nevertheless these amendments raise an important point of principle for all those who believe in the convention.

[Baroness Lister of Burtersett (Lab)]

My Lords, I was very disappointed by the Minister’s response in Committee, so I felt that I ought to have another go in support of the noble Lord, Lord Marks of Henley-on-Thames, aided by the British Institute of Human Rights and Amnesty International, which were also very disappointed.

First, the Minister said that this clause is not about disapplying the Human Rights Act. Well, of course it is not about disapplying the whole Act—but not just Amnesty, the BIHR and the Howard League, but also the EHRC, the chair of the JCHR and the Law Society take the view that it is disapplying Section 3. It feels like one of those occasions when the Government is the only marcher in step.

The BIHR challenges a number of the Minister’s arguments—first, his reassurance that it is still possible to plead any breach of human rights in the usual way and to seek a declaration of incompatibility. It points out that the point of the Human Rights Act was to bring rights home and provide an accessible, practical and immediate remedy. The excision of Section 3 makes access to human rights harder. He said it was a “difficult section to apply”. The BIHR argues the opposite, pointing out that it is used by lay front-line workers who see it as having given them a clear legal framework for arguing for the protection of people’s rights.

--- Later in debate ---

[Lord Bellamy (Con)]

My Lords, that is not by any means the Government’s position; nor can that inference be drawn. The Government’s position on this clause is, as I understand it, in effect, that which the noble Lord himself is reported as expressing to the independent review on human rights because Section 3 requires the judge to perform a remedial function which legislation does not on its proper construction conform to convention rights. Such a role is inappropriate under our constitution and unnecessary because Section 4 provides an effective means by which Ministers and Parliament can amend the legislation. That is the Government’s position on this provision.

So, totally hypothetically, if anything in the legislation from which Section 3 has been disapplied was found to be incompatible, it would be for the court to make a declaration of incompatibility under Section 4. It would then be up to Parliament to decide how to rectify it, rather than the intermediate rewriting process of the courts. It does not remove or limit convention rights. It is simply saying that in this case that is the right balance between Parliament and the courts. That is the Government’s position on that.

This group of amendments also seeks to remove Clause 52, which sets out that, when considering a challenge, the court must give the greatest possible weight to the importance of reducing risk to the public from the offender. Of course, the courts already consider risk to the public. This clause does not mean that public protection will be the exclusive or only factor to be considered. The matter will be up to the judges, who are very capable of doing their independent part in construing the legislation. What the clause does is to ensure that due weight is given to the important consideration of public protection.

So, on behalf of the Government, I beg to move that Clauses 49 to 52 stand part of the Bill.

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

My Lords, I beg leave to withdraw Amendment 150.

Amendment 150 withdrawn.

--- Later in debate ---

[Lord Pannick (CB)]

My Lords, I need some guidance. Today’s list indicates that in this group are contained the government amendments to Clauses 55 and 56, which are the amendments relating to marriage and civil partnership. Today’s list also indicates, in the next group, that we have already debated my opposition and that of other noble Lords to Clauses 55 and 56. I am very happy to delay my comments on Clauses 55 and 56 until the Minister deals with them, but I thought I should just mention where we are.

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

If I may help advance this, our understanding is that the Clauses 55 and 56 stand-part debates are the subject of group 6. I do not know whether that is the Minister’s understanding.

--- Later in debate ---

[Lord Meston (CB)]

My Lords, I associate myself with those remarks. I stayed late, expecting to debate the question of the marriage of long-term prisoners, and was a bit concerned to see that the amendment from the noble Lord, Lord Pannick, appeared to be described as “already debated”, which I do not think it can possibly have been.

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

My Lords, I will try to help once again, because I have in front of me a copy of the groupings that were sent out. The noble Lords, Lord Pannick and Lord Meston, are absolutely right that some of the consequential government amendments have been put into group 5, but group 6 certainly includes—as we were told by the Government Whips’ Office—Amendment 165ZDA and Amendment 156ZI, which is the prisoner marriage substantive stand-part amendment. If we could proceed, that would be most convenient.

[Lord Pannick (CB)]

I am very happy to proceed on the basis that group 6 will deal with these matters.

--- Later in debate ---

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

My Lords, I am grateful to the Minister for explaining his amendments, which accept a number of points made in Committee. On the point raised by the noble and learned Lord, Lord Thomas, about the position of the chair of the Parole Board—he raised this with me a little earlier, so I have not considered it in great detail— I am bound to say that I take the view that he is exactly right: you cannot possibly proceed with a selection procedure and take it to a conclusion when you have completely changed the job description. I hope the Government will take that point away.

I will speak to my Amendment 156ZAA, which remains on the Marshalled List and remains unresolved. It is intended to reduce the trauma caused to bereaved families and victims by repeated unmeritorious applications to the Parole Board for parole by the perpetrators of crimes who are serving life sentences. The restriction of such applications would be implemented without in any way diminishing access to the Parole Board for applicants who have a genuine reason for making, after an earlier refusal, further applications that may, in the right circumstances, be made as little as a year after a refusal. I am grateful to the London Victims’ Commissioner for her help with this amendment.

The present provision in Section 28(7)(b) of the Crime (Sentences) Act 1997 provides that a prisoner serving a life sentence may not require the Secretary of State to refer the case to the Parole Board until after they have completed their minimum tariff and after the lapse of two years after any previous reference was completed. However, in practice, the Parole Board can, and frequently does, consider parole more often than every two years. Indeed, in the case of Chris Cave, stabbed to death at the age of 17 in 2003, there have been nine parole hearings after the earliest release date. His mother describes the repeated trauma of facing those parole hearings for her son’s murderer as torturing and as sometimes allowing only six months’ respite before the family has to prepare psychologically for the next parole hearing and prepare further victim impact statements.

This amendment would enable the Parole Board to direct a waiting time of between 12 months and four years before a further reference could be made—so the Parole Board could make the direction. However, if there were a direction for a waiting period of more than two years, the Parole Board would have to have a reasonable belief that the prisoner’s release prospects were unlikely to change over the period, and that decision would be reviewable.

The parole process is lengthy and is a potential time of stress for bereaved families and for victims and their families. Although such victims and bereaved families appreciate the opportunity to make impact statements and have them considered by the Parole Board, the strain of making them often is considerable and can often be retraumatising. This amendment is primarily aimed at preventing victims being subjected to that frequent stress when it is clear that nothing has changed.

We have considered concerns, which the Minister raised in Committee, that the rights of prisoners to reviews of their detention under Article 5(4) of the convention might be infringed. But we are satisfied that the flexible provisions in this amendment, including the review provision, are compliant with the convention and strike a fair balance between the rights of prisoners and those of their victims and their families.

At the same time as making this relatively modest change, we invite the Minister to say a bit more about what extra support can be offered through a perpetrator’s parole process to make that process more manageable and less frightening for the victims and bereaved families. With more public parole hearings and the trialling of victims’ attendance at closed hearings expected, the need for that support—and for sufficient resources to be allocated to providing it—is increasingly important.

The provision of further information to families is also very important and we would be grateful if the Minister would say something about the future provision of information to victims and bereaved families, either through the victim contact scheme or otherwise. Better information about the parole process is important, but such information is also needed about moves of prisoners to open conditions and their progress towards rehabilitation. That information would make the perpetrators’ process towards release much less painful for the families of their victims. I look forward to hearing what the Minister has to say about that.

[Baroness Thornton (Lab)]

My Lords, I am very glad that we have managed to sort out which are the right amendments in the right place through a collective effort across your Lordships’ House.

Noble Lords will recall a discussion on this matter in Committee, which is presumably what has led to these government amendments. Like the noble and learned Lord, Lord Thomas, I welcome them, but his questions about the appointments process are absolutely legitimate and feed into what we said in Committee—that the Government need to recognise the independence of the Parole Board and understand the risks of politicisation. The original Bill seemed to be government proposals in search of an actual problem to solve. The decision on the composition of the board should be a decision for the board.

The 2019 Ministry of Justice review of the Parole Board Rules stated:

“Restrictions on which panel members can hear particular types of case have gradually been lifted over time … to allow greater flexibility and timeliness in listing the right cases for the right panel members and we do not wish to undo the improvements this has achieved”.


That was echoed by Martin Jones, the chief executive of the Parole Board, when he gave evidence to the Commons committee.

So we are in a better place than we were at the beginning of this Bill, but the issues raised by the noble Lord, Lord Marks, are very legitimate and require the Government’s attention and an answer. The noble Lord, Lord Jackson, raised some very interesting points about how the board operates and its accessibility. That is a difficult issue, because it sometimes deals with sensitive and controversial matters. I will be interested to hear what the Minister has to say about that, because its decisions by their nature are sensitive and controversial and the Government should keep the new additional power in sub-paragraph (2C) inserted by Clause 54 under review. Removing the chair because a decision in an individual case is unpopular, as the noble and learned Lord, Lord Thomas, said, would influence the panel’s decisions and I think is not the way the committee and the House wish to see this go.

Parc Prison

Lord Marks of Henley-on-Thames Excerpts

Tuesday 14th May 2024 Lords Chamber

[Lord Bellamy (Con)]

I thank the noble Lord for those questions, which are entirely relevant and reasonable. The Government and, indeed, the country must face the fact that we have a very considerable problem arising from the increased availability of synthetic opioids in the community. Noble Lords will be aware of how widespread this problem has been and still is in the United States, and we are now seeing that problem in this country. The difficulty is that such drugs are approximately 500 to 1,000 times stronger than heroin and it is particularly easy to overdose on them, so there is a very high risk of prisoners almost accidentally causing themselves great harm or even of giving rise to fatal incidents.

This is a very considerable challenge of which the Government are aware. We are redoubling our efforts to stop these drugs entering the prison, bearing in mind that, once the drugs are in the community—and they are in the local community in various areas around a number of prisons—that is not a very easy thing to do. Obviously, one must have searches—that must include staff searches, due to the risk that staff may be importuned to carry these drugs—as well as on-site drug testing. Handheld devices are particularly effective in this area and body scanners play an essential role. I agree with the noble Lord that body scanners should be fully manned. If they are not being fully manned, that must be addressed.

In addition to those measures, particularly at HMP Parc, drug amnesties have been used from time to time, especially recently, to persuade prisoners to surrender their drugs. There is a national operational response plan; I will not go into detail but it is supported by the national substance misuse delivery team. The use of intelligence in the local community to identify weak points—particularly, again, in relation to those who may be deliberately or inadvertently carrying drugs into prison—is also important.

I gather that HMP Parc is currently rated green/amber on the issue of security, which is not a bad rating in the circumstances. However, I fully agree with the noble Lord that we have to work as a society to combat this. I pay particular attribute to the Gwent Police, NHS Wales and the Welsh Government for their very close collaborative working on these tragic matters.

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

My Lords, deaths in custody are always a tragedy, and we join with the noble and learned Minister in extending our deep sympathy to the families and friends of the deceased.

Such deaths represent a failure of the prison system to keep prisoners in its care safe, so we need to take them very seriously indeed. I am not saying that the Government are not taking this seriously—the Minister’s answers show that they are—but with nine deaths in 10 weeks at one prison, Parc, the failure can properly be described as catastrophic. No one wishes to pre-empt the outcome of the coroner’s inquests, but it seems abundantly clear that a number of these deaths—at least four—were caused by the use of drugs, notably Spice. As the Minister pointed out, this is a significantly dangerous drug and capable of causing harm accidentally to prisoners who use it.

In a supplementary question in the other place, Stephen Crabb MP, himself a former Secretary of State for Wales, pointed out that there was evidence—of which we are all well aware—that the largest source of drugs entering prisons was staff, who were bringing them in. He asked why it was that staff were not routinely scanned for drugs. In answering, the Minister of State, Edward Argar MP, pointed out that we have body scanners for visitors—as the Minister here pointed out—and for others coming into prisons, as well as handheld detectors for use in the cells, but he did not address the direct question about the routine scanning of staff on entry. The noble and learned Minister mentioned the use of body scanners for staff but did not address that question either.

In the light of the serious and increasing effects of drug importation into prisons, is it not time for the MoJ to consider the routine scanning of staff on entry to prisons? I accept that that may not be popular with everyone, or with prison officers, as it may be said to betoken a lack of trust. However, as the Minister pointed out, the vast majority of prison staff are law-abiding and careful, and do not bring drugs into prison. Such staff have nothing to fear. What consideration is the MoJ giving to the routine scanning of staff on entry? Of course, it would have to be carefully and tactfully considered, after a period of consultation. Nevertheless, it seems to me that the time is now right to give that consideration, given the really serious effects of the drugs that we are now seeing imported into prisons, of which these are nine terrible examples.

[Lord Bellamy (Con)]

My Lords, I again associate myself and the Government with the condolences we have already extended to the families of all those affected. We recognise that we are dealing with a very tragic situation.

On the noble Lord’s direct question about body scanners, the Government are considering all possible measures to reduce this problem. The issue of body scanners for all staff as a routine matter is clearly one that needs to be taken under advisement and given the most careful consideration. I think that is as far as I can go today.

I should add, in case your Lordships are wondering, that despite this very unusual situation at HMP Parc, the Government consider that the prison is fundamentally sound. It has more than 1,800 inmates. The youth offender institution, which is separate, is recognised as one of the best in the land. The prison has strengths in supporting, in particular, neurodiversity and autism; it has rehabilitation and resettlement functions, as well as a remand population. There are many positives, and I would not want to give the impression that everything at Parc is going wrong; it is not.

Arbitration Bill [HL]

Lord Marks of Henley-on-Thames Excerpts

Lords Special Public Bill Committee
Wednesday 27th March 2024 Other Business

[Lord Thomas of Cwmgiedd (CB)]

My Lords, I will briefly make a few observations. First, I thank the clerk of the Committee, who has been invaluable to us all and extremely diligent in the work that he has done. One will have the opportunity no doubt to thank him again at a further stage of the Bill, but I wanted to put that on record. I thank the Committee Members, some of whom are absolutely expert in the law and some who found this an amusing and, I hope, interesting excursion into an important part of our law. I am also deeply grateful to the Minister and his private office for the assistance that they have given us.

The people who deserve the most thanks, however, are those—I prefer not to use the modern term “stakeholders”, because I do not think that it is an accurate description—who came to give evidence to us, who are expert in this highly technical area of the law. They gave us of their wisdom and their experience—not only practitioners, but those who ran the important institutions of arbitration and those who used it. We are immensely grateful for their diligence.

As the Minister said, this is an important Bill for arbitration. Having seen the achievement of the 1996 Act, particularly the work of Lord Mustill, Lord Steyn and Lord Saville in producing a readable document for those whose first language is not English, we have not been complacent. We have grasped the need for change and faced up to the increasingly severe competition for this desirable legal and dispute resolution business. It has been particularly helpful to have had the input of the judges on at least one of the clauses in ensuring that we keep up with the tradition of expert judicial input into this highly technical area of the law. I also thank Professor Sarah Green and her team for their work. Although, as will become apparent, we have concentrated on one or two points, the vast bulk did not need any review by us or the experts who assisted us.

The first of those issues that we have to consider today relates to this amendment. Although other forms of wording were suggested, there cannot be any doubt as to the intention of Parliament. I hope that, if this matter is ever litigated in the future—and I hope that that never arises—there will not be the kind of misunderstanding that occurred in the course of the judgments in Enka about Parliament’s intention.

I want to raise one point. The Law Commission was not adverted to the issue in respect of arbitrations under treaties. This was raised with us at a time, unfortunately, when we had completed the taking of evidence. I still think that there is a difficult issue that needs to be confronted and I hope that, between now and Report, it can be. I am not persuaded at present that this is not an issue that needs addressing. However, as it came up at a late stage, and as the Bill needs to be progressed as soon as possible, it is something to which we can return on Report after those concerned in government have had a chance to take advice from experts in this area—they are simply not “stakeholders”, which is a term that I find discourteous, although I am sure that the Minister intended no discourtesy to people who spend their lives in this kind of business and who in this area are far more expert than the Law Commission itself.

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

My Lords, I want to add to what the noble and learned Lord, Lord Thomas, has just said, and I add my thanks to everyone that he thanked. I express the deep gratitude of the Members of the Committee that he so ably led for his chairmanship throughout, his inspired leadership, his understanding of difficult issues and, perhaps even more important, his ability to explain difficult issues that challenged the experts—that is, witnesses, those who were listening to the Committee and those Members of the Committee who are not lawyers. We are all grateful to the noble and learned Lord. We are also grateful to the clerk, who kept us well-informed throughout, to the Law Commission for its work and to Professor Green in particular.

I shall say a word or two about the witnesses. We heard from many witnesses and read the written evidence of many more. The degree to which, although there were disagreements, they were conducted and expressed carefully and with regard to the opinions of others was notable. In particular, I and others were grateful to the witnesses who gave evidence orally —I too prefer “witnesses” as a word to “stakeholders” in this context, and “experts” also—for their engagement with our questioning and, in the case of the amendments today, for effectively achieving unanimity on the need for the amendments that were discussed.

I shall say a word or two about Amendment 1. It was, and I think is, common ground that Enka and Chubb left the law on the choice of arbitration law in an unsatisfactory and unclear state. The Bill as originally proposed included the words “of itself”. To put this on the record, without the amendment new Section 6A(2) would have read: “For the purposes of subsection (1), agreement between the parties that a particular law applies to an agreement of which the arbitration agreement forms a part does not, of itself, constitute express agreement that that law also applies to the arbitration agreement”. For the lawyers among us, that raised a red flag, or rather rang a bell signalling danger. The words “of itself” suggested that if there were more then there might be such an express agreement, because of the agreement between the parties that a particular law applied to the agreement. In our view, the deletion of the words “of itself” subtracts nothing and adds clarity. For that reason, we support that deletion and this amendment entirely.

[Lord Ponsonby of Shulbrede (Lab)]

My Lords, I too thank the noble and learned Lord, Lord Thomas. I have indeed had an amusing and interesting excursion into the world of arbitration. I sit on this Committee as a layman and it has been interesting to hear through various submissions the expert views of so many of the witnesses. I thank Mr Topping for his support to me and other members of the Labour Party who have taken part in this short Bill.

To round up on the Bill, the single most important message that I got through the whole process was the need for the arbitration process to be up to date and effective and to maintain its competitive advantage in the international arena. I know from my previous business experience that it is a competitive world and that other jurisdictions are developing fast. I understand the necessity for this Bill and am glad that the House has dealt with it expeditiously. I hope and expect that this will be to the benefit of the arbitration process. Having said that, I thank our Chairman and the Minister for the way in which this Bill has been handled within the House.

--- Later in debate ---

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

My Lords, I agree with everything that the noble and learned Lord, Lord Thomas, has said. I have one or two small points to add. The first concerns his allusion to the need to be clear. We heard earlier from him and the noble Lord, Lord Ponsonby, about how important the Bill is to maintaining our competitive position in international circles in the field of arbitration. It is in that context that clarity is crucial.

When potential parties to arbitration determine where they are going to have the arbitration, which law will apply and all those questions, clarity is to be highly valued. In that context, it seemed to me, to the committee and to all the experts who gave evidence to us that it should be clear that the court would remain the ultimate arbiter of the arbitral tribunal’s jurisdiction. That was part of the need for these amendments.

To deal with the point about rules of court first, and slightly out of order, the potential problem with the Bill as drawn was that new subsections (3B) and (3C) of the new Section 67, which provided for rules of court, could have appeared too prescriptive. They could have made it look as though that is what the rules of court will say, and that would have two damaging effects. First, it could have been seen to limit the power of the rules committee to set up fair rules in the first place.

Another point that certainly seems important to me is that the rules committee has always had the power to change and adapt rules in the light of experience. If the statute governing the powers of the rules committee looks too prescriptive, that power to change and adapt could be threatened. An amendment along the lines of Minister’s Amendment 7, making it clear that the power of the rules committee would not be limited, is therefore very desirable.

The other point that the noble and learned Lord has made is that there should always be the power for, and indeed an obligation on, the court to act in accordance with the interest of justice. The committee felt, and I feel, that where the interests of justice were mentioned only in new subsection (3C)(c), that suggested that it would not be applicable to new subsection (3C)(a) and (b). The overriding provision in Amendment 3 that

“subject to the court ruling otherwise in the interests of justice”

applies to all three paragraphs was extremely desirable. It also seems important that that renders the clause as a whole entirely consistent with the overriding objective to deal with cases justly by making it clear that that applies consistently with the subsection as drafted and adds to the clarity for those coming to this legislation afresh and determining whether English law will retain its pre-eminent position in the world of arbitration.

[Lord Bellamy (Con)]

My Lords, I thank noble Lords for their support for these amendments, which I commend to the Committee.

Victims and Prisoners Bill

Lord Marks of Henley-on-Thames Excerpts

Committee stage
Tuesday 12th March 2024 Lords Chamber

[Lord Moylan (Con)]

I am somewhat crushed by the fact that the noble Lord is able to bring before your Lordships’ House a point he recalls, after 14 years, simply from memory but which I had to spend a large part of this afternoon looking up so that I could get the wording correct, and which I was about to turn to imminently. Because I was about to say that this amendment is not in any sense radical: it simply builds on a power that the Secretary of State already has, and makes it a duty.

My noble friend is referring—I am sure he recalls this better than I do—to Section 128 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012, which was, indeed, his legislation. That section gives the Secretary of State the power, by statutory instrument, to amend the Parole Board’s release test for IPP prisoners, not excluding the manner in which this amendment would oblige the Secretary of State or the Government to change the current provisions.

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

I heard what the noble Lord, Lord Clarke, had to say and I know that if my noble friend Lord McNally were in his place, he would say that when he, as a junior Minister, and the noble Lord, Lord Clarke, were at the Department of Justice, they were of the view that it would be a matter of a short time only until Section 128 would be implemented. It is a matter of great disappointment to my noble friend that it has taken until now—and indeed not yet—for that section to be implemented reversing the burden of proof.

[Lord Moylan (Con)]

I am very grateful. Again, my speech is being shredded in advance by points that I was about to make. Really, we are making it extremely easy for my noble and learned friend the Minister to agree with us. What we can all agree on, as a matter of fact, is that Section 128 of LASPO has not been implemented, 14 years on. It is for that reason that this amendment is being brought forward, leaving the Government with no choice but to oblige them, in effect, to deal with IPP prisoners in the manner that my noble friend has indicated was always the hope and intention.

In fact, I was going to make reference at this point to a remark made by my noble and learned friend Lord Clarke at an earlier stage when we were discussing IPP prisoners: he said that nobody at the time—in 2012—believed that there would still be IPP prisoners in confinement 14 years later. It is this point that I am trying to address. Very simply, this is a very small shift in a power that already exists for the Government. It is therefore, in effect, a very modest amendment and one that I hope both my noble and learned friend the Minister and the Opposition Front Bench will feel able to support.

Victims and Prisoners Bill

Lord Marks of Henley-on-Thames Excerpts

Committee stage
Wednesday 31st January 2024 Lords Chamber

[Lord Meston (CB)]

My Lords, I also support Amendment 18, which would require the code to provide for interpreting and translation services and, more importantly, for the standards to be expected of the professionals supplying those services.

Good and reliable interpreting and translation is an increasingly necessary part of the justice system in all areas. It is also an expensive part of the system, for which value for money should be important. Most interpreters are good and efficient, but others, regrettably, are less so. A long time ago when in practice, I recall a particularly impatient interpreter helping me and my client who pulled me aside and urged me to get my client to plead guilty, which I politely declined to do. That completely undermined the confidence that either of us could have in that particular interpreter.

At present, as I understand it, court interpreting services are obtained through agencies used by the Courts & Tribunals Service. If this amendment or something like it is enacted, I would assume that the same agencies would be used. In any event, I would hope that care is taken to stipulate, ensure and review the efficiency of the agencies used and the quality of the work they do.

Finally, I would also hope and expect that this amendment, if approved, would be understood to be wide enough to help those requiring sign language and lip-reading assistance. If not, will those requirements be expressly covered by the code?

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

My Lords, I also apologise for being unable to be present for Second Reading. I will speak very briefly in view of the comprehensive opening speech on this group of amendments by the noble Baroness, Lady Coussins, and the speeches from all other noble Lords. I pay tribute to the noble Baroness, Lady Coussins, for a sustained campaign on the need for professional interpreting and translation services. We have travelled this road before in other contexts, but I hope that the Government will pay the closest attention to her arguments and her justification for these amendments.

The first point is an obvious and a human one. Just as for witnesses, complainants and defendants in formal criminal justice proceedings, so for victims in understanding the code and in securing, receiving and understanding services, the experience of being a victim is extremely traumatic, emotional, often unique in the victims’ experience, and it is very difficult for the victim to comprehend what is happening to them—in short, it is difficult to understand in a human way. These problems are all the more acute for victims whose first language is not English.

However, the main point that the noble Baroness, Lady Coussins, made, and the point of these amendments and the conclusion, while in the context of that initial human point, is thoroughly supported by her arguments. Complete understanding of the language is vital. What is needed, therefore, is a service that as closely as possible diminishes and removes language barriers, so what is written and stated in English is understandable to the victim, and what is written and stated in the victim’s native language is understandable in English. That can be reliably achieved only if the translation is full, accurate and direct.

The stress the noble Baroness places on the distinction between “interpreting” and “interpretation” is of the greatest importance. It is crucial that, just as in courts, when evidence, submissions or judgments are delivered, in the context of victims’ needs the translator’s or interpreter’s view must not be interpolated between the service provider and the victim or between the code and the victim. Translation and interpretation should convey exactly and straightforwardly what is said or written to and by the victim.

There is a risk, which is well known in courts and other contexts, that when non-professional, unqualified or inexperienced translating or interpreting services are involved, the directness and accuracy are compromised, not just because mistakes of meaning may be made but because the translator’s or interpreter’s own ideas and understanding colour, embroider or develop the meaning of what is written or of what is being said. This process may, and often does, reflect the best of intentions on the part of the interpreter—the intentions of those who are genuinely trying to help.

We should not underestimate the temptation for people, including professional service providers, looking for understanding or expression in order to seek or accept help when that is well-meaning but unprofessional, and the risk that those good intentions may involve. That risk, whether well-intentioned, or, as in the example of the noble Baroness, Lady Newlove, of the interpreter in the police station who was effectively on the other side, always needs to be minimised, and these amendments offer a good chance of achieving that minimisation.

--- Later in debate ---

[Baroness Newlove (Con)]

Unfortunately, there are no rooms available to do that. I would love that—and I welcome my noble and learned friend the Minister’s warm tone in hoping that there were—but there are not. I went past two rooms in the murder trial that were video-link rooms. There are no rooms in our court buildings for families, witnesses or anyone else to watch privately and be taken care of. That is why it is so important that we try to assist them by giving them these scripts, so they can reflect on the proceedings whenever they want to.

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

That would be enormously helpful in many civil and family cases as well, and it simply is not available.

[Lord Bellamy (Con)]

I am very grateful for those interventions. I have personally seen this in operation in Manchester, but it may have been that the court had particular availability of rooms that is not generally the case.