Jurors: Mental Health Impact

Lord Marks of Henley-on-Thames Excerpts

Tuesday 28th March 2023 Lords Chamber

[Lord Bellamy (Con)]

My Lords, I am entirely in agreement with the noble Baroness that in most cases of this kind judges will warn jurors in advance. That should generally be done, and I think it is for the judge to decide.

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

My Lords, the noble Baroness, Lady Berridge, raises a very important issue. We ask citizens to perform this important public service and increasingly, as she said, it can be harrowing and traumatic. At present, as the Minister said, HM Courts & Tribunals Service tells jurors only that they can consult their GP or the Samaritans, who counsel potential suicides. The noble Baroness is right that professional counselling must be available where necessary. Will the Minister arrange such counselling and ensure that its availability is known to potential jurors at the time they are summoned so that they can see what the potential dangers are and consider their position, and have the information available throughout?

[Lord Bellamy (Con)]

My Lords, I do not think that I can add to my earlier Answer that the Government are currently considering all options. Roughly 100,000 people serve on a jury every year; most, as I have just said, find the experience interesting and informative, and the Government will keep this under close review.

Prisoners: Imprisonment for Public Protection

Lord Marks of Henley-on-Thames Excerpts

Wednesday 1st March 2023 Lords Chamber

[Lord Bellamy (Con)]

My Lords, I can give that assurance. The problem is acute; it gets more difficult as time passes. The need for specialised training and proper attention to these matters is growing. The action plan will include a special supervisory board with specific responsibility for IPP prisoners, with a view to tackling this very difficult problem.

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

My Lords, in concert with all who have spoken, I suggest that the continued detention of so many IPP prisoners beyond their tariffs shames the criminal justice system. We have been around this course so many times, but do not the Government now appreciate that their lack of progress on this betrays a complete inconsistency? On the one hand, they agree that the abolition of IPP sentences under LASPO should have happened because continued preventive detention for prisoners who had served their time could not be justified, yet on the other they maintain and defend such a system in failing to release almost 3,000 of those prisoners—including those who have been released once—who were sentenced before LASPO but 10 years after those sentences were abolished.

[Lord Bellamy (Con)]

My Lords, the then Government decided that the abolition of the IPP sentence should not be retrospective. The existing IPP action plan has had a certain degree of success, and the revised IPP action plan will, we hope, fully address the problem.

Domestic Abuse: Defence for Victims who Commit an Offence

Lord Marks of Henley-on-Thames Excerpts

Tuesday 21st February 2023 Lords Chamber

[Lord Bellamy (Con)]

My Lords, the Government are making progress on the whole issue of domestic abuse; we have the 2021 Act and the 2022 Home Office plan for tackling domestic abuse. There is also greater awareness among the police, the CPS and the judiciary of these issues. I cannot commit to introducing a domestic violence register but that is certainly one matter to be considered.

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

My Lords, the Domestic Abuse Act was landmark legislation; it improved national understanding of domestic abuse and its appalling consequences. However, the rejection of amendments proposed by the noble Baroness, Lady Kennedy of The Shaws, the right reverend Prelate and others, which were the context of the commitment from the noble Lord, Lord Wolfson, left serious unfinished business. Successive lockdowns and the cost of living crisis have taught us more about the terror of victims trapped in homes with their abusers. Of course we will await Clare Wade’s report, but surely now the Government can recognise that victims should be convicted of offences of violence against their abusers only if they use force that is grossly disproportionate.

[Lord Bellamy (Con)]

My Lords, I do not wish to pre-empt the contents of the Wade report or the Government’s response. The broad position is that the Government are not yet persuaded that a change in the law is needed in relation to homicide or other offences, but are very much open to further consideration of these very difficult issues.

Probation Service: Chief Inspector’s Reviews into Serious Further Offences

Lord Marks of Henley-on-Thames Excerpts

Tuesday 31st January 2023 Lords Chamber

[Lord Ponsonby of Shulbrede (Lab)]

My Lords, last Tuesday, the Minister Damian Hinds gave a Statement commenting on the Chief Inspector of Probation’s independent review of the probation service’s management of particular cases. In that, he referred to murders in the most distressing of circumstances. While the report rightly draws attention to probation failures in process and practice which led to these deaths, I want to ask the Government how we got to this position.

In 2014, the Government embarked on their disastrous privatisation of the probation service. In 2020, they abandoned this experiment and brought it back under state control. For 100 years, probation had benefited from local connections, a degree of local autonomy and professionalism. Unfortunately, in 2020, instead of reinstating local links, the probation functions were squeezed into the Civil Service. The independence and ability to speak out about local issues has gone. On-the-ground contacts with voluntary organisations and essential services such as housing have gone. The very things that are proven to prevent reoffending are gone. Heavy workloads, high vacancy rates and newly recruited, young and inexperienced staff who lack managers to guide their complex work are all factors that lead to mistakes. Ultimately, they endanger the public. This deterioration only makes more pointless deaths likelier. Does the Minister agree that we should reinstate the links to local government so that housing, health, the police and voluntary organisations can play their part?

I agree that strategic direction and inspection must be a central government responsibility, but local management is the best chance for reviving the probation service. Information sharing across services would improve if data about any individual offender were held in one place. This would allow better-informed risk assessment and supervision. Why have the Government still not introduced this centralised database?

The fact is that the Government knew about the problems highlighted in this report but failed to act on them, so they must shoulder their fair share of responsibility. It is right that the chief probation officer has apologised. Will the Minister accept responsibility and apologise not just for the service’s failure but for the Government’s failure to tackle the severe staff shortages and excessive case loads that contributed to what went so tragically wrong?

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

My Lords, these two appalling cases have shocked and horrified us all. Our deepest sympathies go out to the families of the innocent victims. These reviews record a catalogue of mistakes, miscalculations and failures to act. In view of the Lord Speaker’s ruling, I shall not go into the detail of McSweeney’s case.

In Bendall’s case, against a background of domestic abuse dating back to 2016 and a clear risk of sexual abuse of girls dating back to March 2020, he was assessed in a pre-sentence report in June 2021 as a medium risk of serious harm to the public and, incredibly, as a low risk of harm to partners and children. The so-called fast delivery pre-sentence report was described in the review of his case as “inappropriate”—an understatement, I suggest. As a result, for an offence of arson Bendall was given a suspended sentence order with an electronically monitored curfew requirement that he reside with Terri Harris and her children. The probation service had made no contact with Ms Harris before Bendall’s sentencing and no assessment of the risk to her and her children. In September 2021, he murdered Ms Harris, who was pregnant, her two children and an 11 year-old friend of theirs, raping one of the children.

We can date the parlous state of the probation service to its disastrous privatisation in 2014 and the inevitably challenging attempt to reverse the damage in 2021. However, it is still plagued by a lack of resources and dismally low morale. Of course, we welcome the extra £5.5 million per year for more staff to access domestic abuse and child safeguarding information, but why is it so late? How will the Government ensure that this new investment addresses poor information sharing and the lack of consideration for the welfare of children?

The extra £155 million per year for more probation staff will help, particularly if it really does yield a net extra 4,000 probation officers over three years. However, Andy Slaughter MP pointed out in the House of Commons that more than 50% of probation officer posts in London are vacant. Does the Minister agree that filling the vacancies with suitable candidates is a huge challenge? Retention of experienced officers is also vital; as is high-quality training and building confidence that officers are fully informed and that their decisions are not impossibly pressured. In the other place, Sir Robert Neill, the chair of the Justice Committee, pointed out that these issues had all been highlighted by his committee in April 2021. Will the Minister explain how the Government now plan to tackle all these extremely difficult issues?

[The Parliamentary Under-Secretary of State, Ministry of Justice (Lord Bellamy) (Con)]

My Lords, I am sure the whole House will join me in expressing once again our deep condolences and sorrow to the victims in these two cases. I will not, if your Lordships permit, go into details which have already been set out in the House of Commons and have been mentioned today. However, I repeat unreservedly on behalf of the Government the profound apology for serious failings in probation supervision in these two cases already made by my right honourable friend Damian Hinds MP, Minister for Prisons and Probation, in the House of Commons on Tuesday 24 January. The chief probation officer has also made that apology to the families concerned.

As the noble Lords, Lord Ponsonby and Lord Marks, have already said, the primary duty of the Government now is to do all we can to address these failings and ensure, as far as possible, that this kind of thing can never happen again. As the Chief Inspector of Probation found in his highly critical reports, the central problem in both these cases was that the level of risk was not assessed properly. Both criminals concerned were assessed as medium risk when they should have been assessed as high risk in light of their long and often dangerous criminal histories. However, the questions we have to address, which have rightly been raised, are: what are the Government doing about it and how we can move forward from here?

First, at a very high level, the probation service has been reunified with a view to raising standards. The noble Lord, Lord Ponsonby, mentioned the history of this matter and mention has also been made of the privatisation of the service. The Government believed it right to bring that arrangement to an end, and are currently engaged in restoring, reinforcing and improving the service.

The Government recognise that the probation service needs more staff, and an additional £155 million has been invested in that endeavour. This has led to an increase of 2,500 trainee probation officers over the last two years, and a further 1,500 officers are to be recruited by the end of March 2023. I am advised that that is on track.

More specifically, in relation to the circumstances of these specific cases, the Chief Inspector of Probation has produced two detailed reports which in turn have engendered two action plans by HMPPS published on 17 and 24 January respectively.

In the case of Bendall, the report made 17 recommendations, all of which have been accepted, and most have already been actioned. I will briefly run through the steps that have been taken so that we can understand what is in progress.

First, domestic abuse inquiries must be routinely carried out in all cases where an electronically monitored curfew is being considered, with a detailed assessment of any risk of harm.

--- Later in debate ---

[Lord Bellamy (Con)]

I cannot confirm it at this moment. My understanding is that such information should be available if it is recorded in the police record, and not just if there was a consequence—so if a call-out had occurred, even if there was no further action. I ask the noble Lord to allow me to confirm that to be absolutely sure that I have understood the question and given the correct answer.

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

I am terribly sorry to interrupt again but, to follow that up, because it is a very important point, the Statement talks about this money being spent

“to recruit more probation staff who are specifically responsible for accessing domestic abuse information held by the police,”—

with which the Minister has dealt—

“and children’s safeguarding information held by councils”.

When he goes back, it is important that he finds out whether information held by councils on domestic abuse would also be researched, because that can also be very valuable to the probation service.

[Lord Bellamy (Con)]

My understanding is that that is the case but, again, I will confirm it to make absolutely sure that we have the right information for your Lordships. As the noble Lord rightly emphasised, one of the further recommendations is that a child safeguarding inquiry be carried out in all cases where the person concerned either lives with or is likely to have contact with any relevant child, and there are new training and procedures to achieve that.

There are further specific measures to ensure the safety of children, involving a separate section in the OASys—the offender assessment system; a new child safeguarding policy framework; revision of training in producing pre-sentence reports to improve the quality; more support and mentoring for trainee probation officers, with new learning tools and opportunities; and a better framework to guide senior probation officers when allocating cases to more junior probation officers.

Those recommendations are complemented by the report relating to the case of McSweeney, which has 10 further recommendations. It proposes first a thorough review of the processes for assessing the risk of harm, because what went wrong in these two specific cases was that the risk was underassessed. As I understand it, that was partly because not all the information that was on the system was properly assessed or accessed by the relevant staff. It was also, particularly in one of the cases, partly because relevant information was not properly shared between the various elements, particularly the Prison and Probation Service in the community. The noble Lord, Lord Ponsonby, rightly made the point about how important it is that we have a consolidated system in which all information is available to everyone, so that nothing falls through the cracks or is missed.

That is essentially part of the recommendations, particularly in the McSweeney case, for improved processes to ensure that all information on past behaviour and current risks while in prison is shared in a timely and effective manner, particularly between the prison offender manager—the probation officer looking after the prisoner in prison—and the community offender manager who will be responsible for managing the person concerned in the community. That includes better procedures and allocation of cases before a prisoner is released, so that there is proper communication between the relevant prison offender manager and the relevant community offender manager so that there is continuity and overall management when a prisoner is released. It also includes the tightening up of all recall decisions being signed off by a senior probation officer within 24 hours, which was one of the problems in one of the cases, and close monitoring of the licence conditions. So a range of steps are being taken.

I will briefly turn to the questions that your Lordships quite understandably posed. In his reports, the inspector does not make a link between the effect of the previous privatisation arrangements and these particular cases. I do not think I am revealing any secrets if I say that the Government came to the view that the earlier arrangements were not working properly and the situation had to be reformed, which is why the probation service was reunited.

On the local links question, I have every reason to suppose—but, again, I will clarify this with the service and write appropriately to your Lordships—that, although the emphasis has perhaps moved to more central management, as is probably inevitable in the present modern circumstances, one should not underestimate the importance of local links, particularly with the voluntary sector. I will ascertain and obtain further information on how that particular important aspect is being addressed, in answer to the question of how far the links to local government agencies are being reinstated or used—this is an important question, and your Lordships need to know the answer, so I will endeavour to give more detail on it.

I have addressed the importance of the information on an individual offender being held in one place and combined, which will improve information sharing. In the brief time available, I have done my best to explain how the information sharing will be improved. It is true that filling the relevant vacancies is a large challenge, and it is particularly so in London, where some areas have had particular difficulties—I am sure that noble Lords are broadly familiar with the situation. Some senior management has had to be replaced, and various remedial action plans are in force to address this; it is all taken extremely seriously. I hope and trust that we will see significant improvements as the increasing staff gradually gain experience and come through the system. There has been a remarkable increase in the number of recruits in the last two or three years.

All in all, the Government’s position is that a great number of positive actions are being taken. I have apologised deeply and sincerely for these particular incidents involving these victims, to whom our hearts of course go out. I do not think I am in a position to give a wider apology than that but I will put one matter in perspective. I am sure it is your Lordships’ experience that, within probation services and prison services, we have many dedicated professionals who go the extra mile to ensure our safety and look after their charges. When things go wrong, they are as devastated as the rest of us. I would not want it to be thought that the front-line staff, whom I personally salute, are under undue criticism in these cases. I hope I have explained the steps being taken to improve the system at all levels and to avert future tragedies of this kind.

National Security Bill

Lord Marks of Henley-on-Thames Excerpts

Committee stage
Wednesday 18th January 2023 Lords Chamber

Moved by

[Lord Marks of Henley-on-Thames]

105A: Clause 82, page 55, line 20, at end insert “provided that such evidence or submissions are not merely incidental to the principal issues in the proceedings”
Member’s explanatory statement
This amendment restricts the definition of ‘national security proceedings’ to correspond with the ordinary meaning of that phrase, and not merely because some national security-related evidence has been adduced. It also prevents a public body from avoiding accountability by categorising proceedings as ‘national security proceedings’.

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

My Lords, I am grateful for the explanation that these two groups have been combined. I spent some time today wondering why they could possibly have been separated, since they both concern the topics of a reduction in damages and freezing powers and damages. We are now dealing with all the amendments to Clauses 82 and 83 and the stand part objections to Clauses 82 to 86.

I have Amendment 105A in group two. It is what I might call an exemplar amendment, by which I mean that it is directed at one of the issues on which these provisions on the power to reduce damages under Clauses 82 to 86 are unacceptable. I say at the outset that I fully support the objections to any of these clauses standing part of the Bill, advanced by my noble and learned friend Lord Wallace of Tankerness, my noble friend Lord Purvis of Tweed and the noble Lord, Lord Pannick. I shall therefore speak at this stage on the amendments in group three as well, which relate to the reduction, freezing and forfeiture of damages proposed by Clauses 82 to 86.

I will make three points. First, these clauses are vindictive, because they are not clearly targeted towards achieving the end at which they are aimed but instead represent a far wider knee-jerk attack on the civil rights of those affected. Secondly, they are unnecessary, because existing statutory powers and legal principles are already in place to achieve that end. Thirdly, they would represent an insidious restriction of the rule of law and an unwarranted grant of effective immunity for government from legitimate action taken by citizens to recover damages for proven unlawful actions by government agencies.

I turn to my first point: that the provisions are not targeted at the end which they are intended to achieve. The aim of these provisions is described in the impact assessment. Based on the Conservative manifesto commitment to

“do all we can to ensure that extremists never receive public money”,

the impact assessment says that, to achieve this aim,

“civil damages reforms will address the risk of awards of large sums of damages paid out in civil court claims being used to fund and support acts of terror and whether damages are appropriate where a claim in a national security case concerns a claimant’s involvement with terrorism.”

The first of those aims concerns the use of damages awards, which we say can be addressed by freezing orders under existing legislation, to which I will turn in due course. But the second presupposes a link between the claimant’s conduct and the award of damages.

--- Later in debate ---

[The Parliamentary Secretary of State, Ministry of Justice (Lord Bellamy) (Con)]

I thank noble Lords very warmly for their contributions, which were pertinent and challenging as ever. I shall make three introductory points. First, there is perhaps—and I put this as lowly as I can—a tension between those who say that this approach is wrong in principle and, on the other hand, those who say it is already covered by the general law. If it is covered by the general law, it cannot be wrong in principle. There seems to the Government to be an opposition in those two propositions.

Secondly, it is said that these provisions are intended to introduce a high level of impunity for the security services, generally reduce their accountability and effectively put them beyond the law. That is not the case, because in this legislation the decision is for the court—it is for the court to decide what to do. It does not give immunity to officials, the security services or the Government. It is a matter for the court. Essentially, this legislation is spelling out what the position is in relation to persons who have been involved in terrorist wrongdoing. It is saying in explicit terms that, where that situation arises, the court should consider—and I emphasise the word “consider”—whether damages should be reduced to reflect that wrongdoing. It is perfectly true that, at common law, such an argument could already be made, at least in theory; depending on which Latin tag you chose to use or whether you refer to the contributory negligence Act or other general principles, the argument can be made. But the point of these provisions is to spell that out in very clear terms so that the general public and potential claimants know what the position is, and one is not left to argue what can sometimes be obscure and difficult questions of common law in particular cases.

Thirdly, the overriding purpose—we can discuss the exact wording—is to convey a message. The message is that the United Kingdom is not a soft touch for those involved in terrorist wrongdoing when they come to claim civil damages. That is a message particularly directed to those beyond the seas who may be tempted to bring, and have in the past brought, proceedings in the UK courts when these kinds of situations have arisen. It is to make the civil position clear. By the same token, we have provisions relating to freezing and forfeiture which protect any damages that are awarded from subsequently being used for terrorist purposes. That is the overriding framework, as it were.

On behalf of the Government, I entirely reject the suggestion that these provisions are intended to introduce a high level of impunity for the security services or to avoid accountability, because it is ultimately for the court to decide. This is limited to national security proceedings, and the conduct of any public bodies will still be fully subject to scrutiny by the court.

With that general description, I shall try to deal with the various points which have been raised. I come first to Amendment 105A, put forward by the noble Lord, Lord Marks, which seeks to introduce an exclusion in cases where the evidence or submissions to the court about national security are merely incidental to the civil claim in question. While completely understanding the objective behind the amendment, the Government believe that it is not necessary, for three reasons.

First, national security proceedings are very clearly defined in Clause 82(2), and it is very hard to construe that definition as including a case where national security was for some reason de minimis to the proceedings concerned. Secondly, it is, in the Government’s view, hard to imagine in practical terms a situation in which a person involved in terrorist wrongdoing brings a case against the Crown, and the Crown has presented evidence or made submissions about national security, but national security is merely incidental to the issues in the case. It seems to the Government that it is most unlikely that such a situation would arise. Thirdly—this is a fundamental point that I have already made—

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

The Minister simply has not answered the point that this provision in the Bill refers to “at any stage” of the proceedings, and any stage of the proceedings could be a disclosure stage, an interlocutory stage or an interim stage, where documents are sought to be withheld for reasons of national security that do not go to any major issue in the proceedings and are merely incidental. The Minister has simply not answered that. If he would like to do so, I would be grateful.

[Lord Bellamy (Con)]

I will further reflect on the question, but it seems to the Government that that specific example is unlikely to bite, as it were, on the duty of the court in the particular circumstances that we are considering, because ultimately it is up to the court to consider whether a reduction of damages is appropriate. If it were the case that, technically speaking, you could argue that national security proceedings on the face of the statute were in some way involved because there had been an earlier discovery application but it had no material impact on the remainder of the case, one could reasonably assume, and the Government do assume, that the court would not proceed to reduce damages on the basis of something that had nothing to do with the real issues.

We will always reflect and consider further, because it is very important to get the drafting right, but at the moment the Government are unconvinced that this amendment is necessary and believe that the protections, and in particular the role of the court, are sufficient to deal with the concern that the noble Lord, Lord Marks, has raised. That, I think, is the answer to Amendment 105A.

--- Later in debate ---

[Lord Bellamy (Con)]

I certainly undertake to reflect on what further guidance can be given on how the courts should go about this exercise.

I have taken up too much of your Lordships’ time and am conscious that I have not perhaps dealt with everything I should have. As I think I have said, the overall intention is not in any way to undermine mechanisms for holding the Government to account, or to allow Ministers and officials to evade scrutiny. I fully agree with the noble Lord, Lord Coaker, that we absolutely have to tread carefully. I hope that this package is a balanced one, and I invite noble Lords not to press their amendments.

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

My Lords, we have had a worthwhile and detailed debate in which the Government have been pretty hard pressed on the detail of these clauses. I am bound to say that nothing I have heard suggests to me that these clauses are in fact defensible. They introduce a very important and, we say, objectionable new power. It is not merely a power but, because of their mandatory nature, a duty to consider reduction in damages—the power being to reduce damages where there is no connection required between the conduct of the claimant and the reduction in damages. That is entirely novel.

If I may go on from there to consider a point made by the Minister fairly early in his speech, he said that those of us who criticise these provisions must face the fact that there is a tension between that criticism and the reliance we place on existing law. The reason why his position falls and why there is a tension is precisely that, under the existing law—as in the point made a moment or two ago by the noble Lord, Lord Pannick—it is the claimant’s conduct that leads to the reduction in damages. The point made by the noble and learned Lord, Lord Hope, was that there is express exclusion of the requirement for the claimant’s conduct to be responsible in these provisions before a reduction in damages is ordered. The security factors may be entirely irrelevant conduct, as far as the award of damages is concerned, but nevertheless lead to the requirement to consider reducing damages.

I suspect that the noble Lord, Lord Bellamy, because of his being so conversant with the common law, got into some difficulty when answering my question on disclosure. He said it is unlikely that consideration of evidence that came to light in a disclosure application would have any bearing on the claimant’s conduct and therefore would lead a court to reduce damages. That is to fall into the trap of ignoring the effect of these provisions where no causal connection is required.

In answer to the other central point made by the Minister, that this is not about giving impunity or immunity to the Government because it is for the courts to decide, that leads the Government directly into the difficulty that these provisions are mandatory. As has been said a number of times, if a judge is faced with a mandatory provision that requires him to consider a number of factors and decide whether to reduce damages, he cannot blithely go on to say, “Well, I looked at the factors and I’m simply going to ignore the legislation”. He then either gets into the point the noble and learned Lord, Lord Hope, made—that he is giving no effect to the legislation at all and it is a cypher, because a Court of Appeal might agree with that—or he is simply falling into error because he is not applying the legislation. It is a very difficult conundrum to face.

The central point made where the Government have got into such difficulty is that originally raised by the noble Lord, Lord Faulks. He said that there is no guidance whatever in Clause 83(5) as to how and on what principle the judge is to approach the question of whether damages should be reduced. Ultimately, the Minister was forced into the position of saying, “I’m not quite sure—I’ll take it under advisement and we may come to some conclusion about it”. Frankly, and with the greatest respect to the Minister, that is simply not good enough. This Committee needs to know what principles are to be applied to the exercise of an entirely new and, we say, entirely objectionable power.

The reality is that this point cannot be escaped from, as was said by the noble Lords, Lord Anderson, Lord Pannick and Lord Faulks, and the noble and learned Lord, Lord Hope. My noble friend Lord Purvis has again said that in an intervention. The problem is that this legislation is to be aimed at using damages to fund terrorism. That would be properly achieved, as the noble Lord, Lord Coaker, pointed out, by using the powers to freeze damages in a responsible way when there is an actual intention to use the damages to fund terrorism. It is exactly the point that the independent reviewer, Jonathan Hall KC, made: that it was dealt with by the existing legislation under the 2001 Act.

I cannot for the life of me therefore see why lowering the threshold achieves anything meaningful that is just, because it is unjust and the threshold under the existing legislation is the proper one to apply for something as serious as depriving somebody of damages or even freezing their damages. This legislation is weakening and altering other legislation in an unnecessary way, by introducing new powers that are objectionable, and therefore it ought to go.

The Minister has said that he is going to take this away and think about it. At this stage, therefore, I could not sensibly press my amendment and we would not ask for votes at this stage on clauses standing part. However, I really suggest that the Government are now under an obligation to consider whether any of these provisions are necessary at all or whether they wish to abandon them. In saying that, I beg leave to withdraw my amendment.

Amendment 105A withdrawn.

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[Lord Anderson of Ipswich (CB)]

My Lords, I have very little to add to the powerful speeches the Committee has already heard, but, as a supplement to what the noble Lord, Lord Pannick, has just said, I will remind the Minister of two other facts.

First, terrorist offences are by no means all at the top end of seriousness. Schedule A1 to the Sentencing Code includes offences such as

“inviting … support for a proscribed organisation”

which may no longer be concerned with violence, as a number are not, and

“failure to disclose professional belief or suspicion about”

the commission of terrorist offences by others. Those are offences on which the clauses bite.

Secondly, even for those offences which are serious enough to merit a period of imprisonment, recidivism rates for released prisoners are—I think in most developed countries, and certainly in this one—very much lower than the recidivism rates for ordinary crime. Professor Andrew Silke calculated in 2020 that the recidivism rate was around 3% for those who had committed terrorist offences and been released between 2013 and 2019.

I hope that the question the Minister will address is why that particular category of offence merits the removal of a right enjoyed by everybody else, including people convicted of murder, rape and the other most serious crimes that our law knows.

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

My Lords, there is one simple principle that everybody has referred to in the debate: access to justice. I will be brief.

If the principle still stands that cases that are still in scope of legal aid with sufficient merit ought not to be restricted by lack of means to bring them—that principle underlies the availability of legal aid—it should not be undermined by the removal of legal aid from cases that have merit and ought to be brought. What is particularly invidious about these clauses is that the restrictions on the grant of legal aid apply to all cases that might be brought by an individual to whom the clauses apply. As has been pointed out, that is entirely irrespective of whether the cases have any connection with any past terrorist activity or whether they are good or bad, and irrespective of who might be affected by them; for example, members of an individual’s family might lose their rights in a housing case brought against a defaulting landlord where housing conditions were making that tenant’s children ill. These are blanket restrictions that are entirely inappropriate.

As the Committee will know, eligibility for legal aid is governed by a merits test in every case. If a case does not stand a reasonable chance of success, legal aid is not available. There is a financial eligibility test, which means that legal aid will be available only if an applicant is unable to fund litigation. These provisions are positively designed to deprive of legal aid a claimant who might otherwise secure it. A claimant who, by definition, has a good case, would otherwise be eligible on the basis of the merits test, and who cannot afford a lawyer would be deprived, under these provisions, of any legal representation before the courts, even though, as the noble Lord, Lord Pannick, said, the claimant’s case may be utterly irrelevant to any present or past wrongdoing and vice versa. As the noble Lord, Lord Anderson, pointed out, the gravity of the terrorist offence relied on may be low. That is a denial of access to justice which we simply should not countenance, and I suggest that the Minister should not countenance it either. It is, quite simply, wrong.

[Lord Ponsonby of Shulbrede (Lab)]

My Lords, I will speak briefly to Amendment 115 in this group, where we call for an assessment of the impact of Clauses 87, 88 and 89 to be published before they come into force.

It has been a powerful but relatively short debate. I shall not repeat the points that have been made, mostly by the noble Baroness, Lady Ludford, with her four grounds for opposing the clauses standing part. I wanted to reinforce the point made by the noble Lord, Lord Anderson, when he said that the gravity of the offence may be low. I can talk directly to that because, as a sitting magistrate, I have dealt with terrorist incidents that involved graffiti. The defendant in the case pleaded guilty to graffiti but, because of the nature of the graffiti, was charged under the Terrorism Act. We went ahead and fined that offender, but it was an offence under the Terrorism Act.

We have been relooking at Clause 87. Would that sort of example of a terrorist conviction be caught under the provisions, and would that individual who pleaded guilty to a terrorism offence of graffiti lose his right to civil legal aid in the decades to come?

Probate: Waiting Times

Lord Marks of Henley-on-Thames Excerpts

Thursday 8th December 2022 Lords Chamber

[Lord Bellamy (Con)]

I fully associate myself with the noble Baroness’s remarks. It is completely right that these issues should be raised, and I congratulate my noble friend Lady Meyer on raising them. I have already met her to discuss this problem. In fairness to the probate registry, I simply point out that we are still enmeshed in the aftermath of Covid. Excess deaths are currently running 13% above the five-year average. The first half of 2022 saw 16,000 extra applications above the same period in 2020. So there is a challenge here. I assure your Lordships that, as far as I am concerned, this issue is being monitored closely and everything is being done to correct it.

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

My Lords, the noble Baroness, Lady Meyer, has the sympathy of the whole House. The 10 days mentioned in her Question are a pipe dream, frankly. The Minister’s figures are hopelessly optimistic. My understanding is that eight weeks is generally the absolute minimum, and only if the form is flawless. The Government’s website says that you will usually have to wait 16 weeks from application to grant—that is from now to nearly Easter. Any queries add another month. If there is inheritance tax to pay, that adds another month. It often takes hours, not 10 minutes, for someone to answer the phone, and it often takes weeks for them to respond to emails. This is a wholesale failure of service at a desperately sad time in people’s lives—a time of loss, grief, stress and worry. Are not the Government and the Minister ashamed of this performance?

Prison Capacity

Lord Marks of Henley-on-Thames Excerpts

Tuesday 6th December 2022 Lords Chamber

[Lord Ponsonby of Shulbrede (Lab)]

My Lords, in response to the prison capacity update Statement read in the other place, I draw Members’ attention to my role as co-chair of the Justice Unions Parliamentary Group.

Using police cells and custody suites to house prisoners for any extended period of time is, in my opinion, an admission of failure by the Government. Does the Minister agree that insufficient capacity to hold prisoners is directly linked to the staffing and workload crisis within the probation service? Staff under excessive pressure are more risk averse and therefore more likely to recall offenders to prison. Does the Minister recognise that one solution to the crisis is for probation to be properly resourced and for workloads to be reduced? Does he agree that probation can take the pressure off prisons?

There has been a 13% rise in licence recalls in the last year. This should have indicated to the Government that prison places were not sufficient to meet the current demand. The Prison Governors Association has said that the use of police cells would place extra pressure on the police service and increase risk to prisoners. The association said:

“The use of police cells under these conditions is an exceptional measure and, in our view, should be reserved for unforeseen circumstances where no other options exist. We do not believe the circumstances that sees this announcement are unforeseen and we believe there are other options open to Government.”


Do the Government agree with the Prison Governors Association?

If the cost of Operation Safeguard is to be met from within the prison budget, what will be cut to pay for these prisoners being placed in police cells? What is the cost of using the police estate, and when do the Government plan to end Operation Safeguard?

Prisons are in crisis. Almost every report from HM Inspectorate of Prisons tells a tale of failure. Just two weeks ago, HM Prison Exeter was given an urgent notification, with crumbling estates, dangerous staff shortages, prisoner-on-prisoner violence and rehabilitation all but non-existent. Ultimately, the public pay the price because they are being kept less safe.

In the other place, Sir Bob Neill, chairman of the Justice Committee, pointed out that, even with increased spending on maintenance, there is still a significant backlog and shortfall in the maintenance budget. Many prison cells are therefore out of commission and not usable, when they ought to be brought back into use. What is being done to accelerate the maintenance programme to get more cells back into use?

Finally, the Minister will be aware that many of the people in the criminal justice system are mentally unwell. Can he assure me that these people will not be among those being held in the 400 police cells as part of Operation Safeguard?

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

My Lords, this Statement betrays a panic reaction to a crisis of the Government’s own making. Can the Minister say whether the Government finally accept that their policy of increasing time served in prison and their acceptance of prison sentence inflation have increased the number of prisoners? Do they accept that their policies have failed to cut our appallingly stubborn reoffending rates?

Understaffing and overcrowding have given our prisons revolving doors, reducing the chances of education, retraining and rehabilitation within prisons; yet in this complacent Statement, the Government accept no blame. “More rape prosecutions”, they say. Can the Minister say how many more convicted rapists are in prison now than were in 2019?

Then the Government blamed the criminal Bar strike. For years they have paid scandalously low fees to criminal barristers, who finally felt forced to take action. I remind the House of my registered interest as a practising barrister, although I have conducted no criminal cases for decades. If they had settled six months earlier, on the terms that were ultimately offered, how many police cells would now be unnecessary?

How do the Government plan to create more prison spaces, as they say they do, apart from the building program, without yet more overcrowding or even more shunting of prisoners around the prison estate to wherever space may be found, disrupting training, release preparation, visiting arrangements and family relationships, all of which are essential to rehabilitation?

I say yes to body cams, as mentioned in the Statement, and yes to preventing smuggling, but may we please have an end to short-term, panic responses to increased prisoner numbers, for which the Government’s failures alone are responsible, and have a corresponding increase in concentration on rehabilitation?

[The Parliamentary Under-Secretary of State, Ministry of Justice (Lord Bellamy) (Con)]

My Lords, I thank noble Lords for the points just made. Before I reply to them, I should say that Operation Safeguard is a temporary measure to meet a recent surge in demand for prison places and to keep the public safe. This is due in part to an exceptional number of prisoners held on remand as a result of the barristers’ strike, and the surge in offenders receiving custodial sentences. The prison population rose by over 1,500 in October and November, a highly unusual increase, which has caused pressure on the adult male estate but not the female or youth justice estates.

Operation Safeguard is a long-standing scheme, also used by the Labour Government, which allows about 400 police cells to be made available for prisoners to be held temporarily before they are moved to prison. It enables better management of the reception process, and in the main, it is anticipated that prisoners are held in police cells for only one night before being moved into a reception prison. This operation enables the police to mobilise their operations and work more closely with HMPPS.

Turning to the various points made, the Government do not accept the link made in relation to the probation service by the noble Lord, Lord Ponsonby. We are doing our very best to increase resources for the probation service, to recruit more probation officers and to improve the service to the best of our ability. This extra pressure has been rather unexpected. The Government do not accept that no other options exist; otherwise, we would not have triggered Operation Safeguard, the Government’s primary duty being to keep the public safe. The operation will come to an end as soon as possible, but I cannot give a date.

We are pursuing the prison maintenance programme as far as we can. We have gone around in a circle to some extent: the maintenance work, which was increased recently, has left us with fewer cells. Within the operational possibilities, improving maintenance in prisons is a priority.

As far as mental health is concerned, respectfully, I entirely agree that vulnerable offenders, whether suffering with their mental health or otherwise, should not be part of Operation Safeguard. My information is that those prisoners are not being held in police cells and that prisoners are properly assessed before they move to prison cells.

On the other points raised, the question of sentencing is a matter for the courts. It is right to point out that reoffending is falling, albeit slowly. But it is falling, and we seem to be on a good track in that regard. The Government are fully committed to the rehabilitation of prisoners. On earlier occasions in this House, we have discussed the steps taken, including education in prisons; employment advisers in prisons; accommodation for prisoners being released; and equipping prisoners with an ID pack consisting of a bank account, national insurance number and so forth. That rehabilitation programme is contributing to the steady, albeit slow, fall in reoffending. I hope I have dealt with the main points raised.

Lammy Review

Lord Marks of Henley-on-Thames Excerpts

Monday 28th November 2022 Lords Chamber

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

My Lords, a key recommendation of the Lammy Review was to set a clear national target to achieve a representative judiciary by 2025. The review identified low recommendation rates for black and ethnic minority candidates as a challenge to judicial diversity, suggesting a skewed appointments system. We are now five years through the eight-year target period. The 2022 statistics, published in July, show slow progress for Asian candidates, but none at all for black and other ethnic minority candidates since 2014. Recommendation rates for black and ethnic minority candidates across the board remained far lower than for white candidates. What do the Government plan to do to address this striking lack of progress in a vital area?

[Lord Bellamy (Con)]

My Lords, much effort is being devoted to this problem through the Judicial Diversity Forum. The judicial diversity and inclusion strategy for 2020 to 2025 aims to increase the pool of candidates and attract the best talent. Actions for 2022 include continued MoJ funding for the pre-application judicial educational—PAJE—programme to support lawyers from underrepresented groups to prepare themselves for the judicial application process. There is also a Judicial Appointments Commission—JAC—outreach programme to encourage and prepare applicants for more senior appointments, and a “becoming a judge” scheme especially for ethnic minority solicitors interested in the judiciary. A joint judicial and MoJ programme is in train to improve diversity among magistrates, with an applicant-tracking system to identify ethnic minority candidates. Other professional bodies are also pursuing complementary strategies. In that connection, I pay particular tribute to the Law Society, whose past president, Stephanie Boyce, and present president, Lubna Shuja, are both from ethnic minorities.

Judicial Review and Courts Bill

Lord Marks of Henley-on-Thames Excerpts

3rd reading
Wednesday 6th April 2022 Lords Chamber

[Lord Wolfson of Tredegar]

That the Bill do now pass.

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

My Lords, I will speak very briefly on this issue. I want to say two things. The first is to express our gratitude to the Minister and the Bill team. The Minister has given all of us a great deal of time, both before Committee and on Report, and that has been used very successfully. I would also like to express my thanks to Opposition and Cross-Bench Peers, particularly those with legal and judicial experience, who have done a great deal of work in improving this Bill. The Bill team also has given us all a great deal of help.

The second point I want to make is that we have made a number of changes to this Bill after really serious consideration in Committee, on Report and following Second Reading. It would be nice to think that, when this Bill now goes back to the Commons, those changes will get some serious consideration, rather than simply being returned to this House after cursory consideration. They are important. We have deployed a great deal of expertise, knowledge and effort in making those changes, and they deserve a proper look from the other place. That said, I give my grateful thanks to everyone.

[Lord Ponsonby of Shulbrede (Lab)]

My Lords, I echo the thanks of the noble Lord, Lord Marks. I also thank the Minister and his team for their support and the numerous meetings we have had as the Bill has progressed. I would also like to thank the outside organisations that I have found particularly helpful; I mention the Public Law Project, Justice, Inquest, Fair Trials, Transform Justice, Liberty and Amnesty International—I found their support extremely helpful. I would also like to personally thank Catherine Johnson, who has been of great assistance to me as this Bill has passed through this House.

I reinforce the point made by the noble Lord, Lord Marks, about the importance of the amendments we have passed. We have had a different approach from that taken in some other Bills. We have had only a small handful of amendments that have passed for the House of Commons to consider. They have been Cross Bench-led by extremely senior judges and they deserve serious consideration by the other House.

Judicial Review and Courts Bill

Lord Marks of Henley-on-Thames Excerpts

Report stage
Thursday 31st March 2022 Lords Chamber

Moved by

[Lord Marks of Henley-on-Thames]

1: Clause 1, page 1, leave out line 9
Member’s explanatory statement
This amendment, and others in the name of Lord Marks to Clause 1, would remove the power to include provision in quashing orders removing or limiting their retrospective effect (“prospective only quashing orders”).

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

My Lords, Amendments 1 to 3 in my name remove the power to make a quashing order prospective only or otherwise to limit its retrospective effect. These amendments replicate amendments tabled in Committee by the noble Lord, Lord Pannick, who unfortunately already had commitments abroad for today when I put down these amendments and so cannot be here.

This debate is not about the power to suspend a quashing order, which in some cases, we agree, may be a reasonable step. However, that is a far cry from a court on the one hand deciding that government action or regulation is unlawful, so that the court is going to make a quashing order, but then on the other hand being empowered to say that past unlawful action must stand, just as if it had been lawful. That is the effect of new subsection (4), which says that

“the impugned act is … upheld in any respect in which … subsection (1)(b) prevents it from being quashed”,

and of new subsection (5), which says that

“it is to be treated for all purposes as if its validity and force were, and always had been, unimpaired by the relevant defect.”

That is to validate unlawful action that the courts find expressly contravened the law—usually law made by Parliament.

I do not accept that the principle that unlawful action or regulation should be quashed ought to be abandoned simply because there may be hard cases for those who had relied on the law, as they wrongly believed it to be, and may be wrong-footed by the decision that the Government had acted unlawfully. In that category falls the songwriters’ case in 2015, mentioned in Committee by the noble Lord, Lord Anderson of Ipswich, where those who had innocently copied CDs in the belief that they were entitled to do so were found to have acted on the basis of an unlawful regulation.

Such hard cases may be addressed either by administrative action, where unlawful activity before the law was clarified would go unpunished, or by a suspended quashing order, as the noble and learned Lord, Lord Falconer, and I argued in Committee, giving Parliament the chance to correct any possible injustice, if necessary retrospectively. After all, it is for Parliament to change the law, as the noble Lord, Lord Pannick, and the noble and learned Lord, Lord Falconer of Thoroton, pointed out—not for judges to decide to overlook a failure by government to comply with the law’s requirements.

That completely solves the dilemma described in Committee by the noble and learned Lord, Lord Hope of Craighead, in respect of the case of Ahmed, a terrorist asset-freezing case. The noble and learned Lord specifically suggested in that case that a suspended order would give Parliament the time to introduce fresh, lawful regulations.

Even more important to be weighed in the balance than the risk of hard cases are the fundamental principles that underly judicial review: that government must act within the law, that there must be remedies to correct unlawful action and that judicial review is public law in action. Orders made on judicial review are for everyone, not just the applicant before the court but all affected citizens, past, present and future. Many potential applicants cannot afford to apply for JR or simply do not know they can or how to go about it, yet this proposal would expose them to the consequences of unlawful executive action, even if a later challenge by a better-funded and more savvy litigant succeeded. If enacted, this new subsection would fire the starting gun on an unseemly race for justice.

It cannot be right for judges to be able to find that, for example, a tax was unlawful and in excess of power, yet to hold—after thousands of citizens may have paid that tax—that they will quash the unlawful regulation but that, because the sums involved were low, it would be disproportionate to repay all those who have paid, and so quash it only prospectively, leaving those who have already paid the tax cheated and out of pocket.

That is not the end of it. What about those who have not paid up? The unlawful regulation and the unwarranted demands remain effective for them, treated, in the words of new subsection (5),

“for all purposes as if its validity and force were, and always had been, unimpaired by the relevant defect.”

The Minister’s only answer to this conundrum in Committee was that it was

“almost incomprehensible that a court would use”

the power

“where people have paid taxes that were necessarily unlawfully raised”.—[Official Report, 21/2/22; col. 68.]

That is no answer, especially in the light of the presumption that the courts should generally exercise the power. The only respectable answer is not to give them the power.

In the environmental field, this power would probably put us in breach of our international obligations. We are bound by Article 9 of the Aarhus convention of 1998 to accord to all members of the public with a sufficient interest the right

“to challenge acts and omissions by … public authorities which contravene … national law relating to the environment.”

We are further bound by paragraph 4 of the same article to provide them all with “adequate and effective remedies” for infringement. Environmental law is central to public law and frequently the subject of judicial review. We would not be complying with the convention by denying members of the public who do not get in first the right to enforce the law. That is what prospective-only quashing orders would do. I doubt that such orders can be an adequate remedy.

Furthermore, in a case involving judicial review of unlawful executive action breaching a citizen’s rights under the European Convention on Human Rights, this new subsection seems to run the risk of being a denial of the citizen’s Article 13 right to an effective remedy. That article guarantees that:

“Everyone whose rights and freedoms as set forth in this Convention are violated shall have an effective remedy before a national authority”.


I suggest that an effective remedy is denied to a citizen whose right of action is stymied because some other litigant who was quicker off the mark in the race for a remedy has previously been granted a prospective-only quashing order.

This is not, as it has been described by the Government, a case of a harmless discretionary power in the judicial toolbox. It is a case of handing to judges the power to validate actions of the Executive that the court finds violated the laws passed by Parliament.

I will say very little about the presumption that is the subject of the amendment in the names of the noble Lords, Lord Anderson of Ipswich, Lord Pannick and Lord Ponsonby of Shulbrede, and the noble and learned Lord, Lord Etherton. I add only this to what I said in Committee: the presumption makes the denial of justice inherent in Clause 1(1) that much worse because, however many times the Minister may describe this as a “low-level” presumption and seek to persuade your Lordships that judges will always find ways not to implement it, the fact remains that it sets a default position to which conscientious judges are bound in law to adhere. In the absence of a finding of good reason not to do so, and provided that “adequate” redresses are offered

“in relation to the relevant defect”,

the court must both suspend a quashing order and remove, or limit, its retrospectivity. One is entitled to ask: “adequate redress” for whom? What does that expression mean, especially for the luckless loser in the race for justice which I mentioned? I do not believe that, to date, the Minister has given an adequate response. I beg to move.

[Lord Etherton (CB)]

In the absences of the noble Lord, Lord Anderson of Ipswich, who has unfortunately caught Covid, and the noble Lord, Lord Pannick, I shall speak to Amendment 4. This would remove subsections (9) and (10) of the proposed new Section 29A of the Senior Courts Act 1981. This amendment is supported by the Law Society, the Bar Council, the Bingham Centre for the Rule of Law and the Public Law Project.

Subsections (9) and (10) are not based on any recommendation from the Independent Review of Administrative Law chaired by the noble Lord, Lord Faulks. Subsection (9) is either constitutionally dangerous or unnecessary. It reads like a straightforward presumption in favour of making one of the two new quashing orders—a suspended or prospective-only quashing order. If that is a correct reading, it will be for the courts to say what its proper interpretation is. Subsection (9) is constitutionally dangerous and inappropriate as providing a precedent for interference by the Executive with the exercise of judicial discretion. Furthermore, it is contrary to the rule of law in so far as it limits the remedies which are available to set right the unlawfulness of conduct by the state.

In Committee, the Minister said that subsection (9) is not a presumption in the sense of

“trying to fetter judicial discretion or to steer … the courts to a particular decision.”

He said that it will be

“up to the court to decide what remedy is appropriate in the individual circumstances of the particular case”,—[Official Report, 21/2/22; col. 93.]

and that the court’s choice of remedy will, in this case as in others, be guided by what is in “the interests of justice”.

One must ask what the purpose of subsection (9) is. Is it necessary at all? The Minister explained that its purpose is to encourage the development of jurisprudence applicable to the new quashing remedies by requiring the court to consider those remedies positively. If subsection (9) is not, as it appears to be, a straightforward presumption, there is absolutely nothing in the wording of the subsection to support the Minister’s explanation as to its purpose. It is completely unnecessary, following the Minister’s interpretation, because the court is bound to take into account all the circumstances and remedies available in the case of unlawful conduct by the state, and taking into account all the “relevant” matters is specifically required by subsection (8).

Moreover, whatever the reason for the presence of subsection (9), it will encourage further litigation by way of appeal, as it introduces the hard-edged test in subsection (9)(b) that one of the new quashing orders

“would, as a matter of substance, offer adequate redress in relation to the relevant defect”.

That is a hard-edged test and not a discretion. It plainly raises the possibility of widespread disagreement. In short, no good purpose is served by subsections (9) and (10)—only bad purposes—and they should be removed.

--- Later in debate ---

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

My Lords, before I seek to test the opinion of the House—which I propose to do—I will make two short points. I do not accept that there is no distinction between a suspended quashing order—which we accept is sensible in the interests of what the Minister referred to as remedial flexibility—and a prospective-only quashing order. The remedial flexibility in a suspended quashing order addresses entirely the point made by the noble and learned Lord, Lord Brown of Eaton-under-Heywood, in his article in the Times, and also addresses the point made in the Ahmed case, as explained by the noble and learned Lord, Lord Hope of Craighead, in Committee.

The objection, in answer to the noble Lord, Lord Faulks, to the prospective-only quashing order is not only that his independent review recommended suspended quashing orders, but it did not recommend prospective-only quashing orders. The important objections to prospective-only quashing orders are, first, not that they give the judges too much power, but that the power they give is to validate unlawful action before the date on which the quashing order is made—action that is ex hypothesi unlawful because that is what the court determines. Secondly, they would deprive litigants of a remedy if they have already suffered from the unlawfulness before the date of the quashing order.

The Minister said, incomprehensibly, that he stood by the answer that a quashing order would be made in the tax case. We say that the tax case illustrates the very danger of the court having the power to quash prospectively only. For those reasons, I respectfully seek the opinion of the House.

--- Later in debate ---

Moved by

[Lord Marks of Henley-on-Thames]

2: Clause 1, page 1, leave out lines 15 to 18
Member’s explanatory statement
This amendment, and others in the name of Lord Marks to Clause 1, would remove the power to include provision in quashing orders removing or limiting their retrospective effect (“prospective only quashing orders”).

--- Later in debate ---

[Lord Faulks (Non-Afl)]

My Lords, the IRAL came to the firm conclusion that Cart ought to go. It did so carefully considering the fact that Parliament should be slow before reversing decisions of the Supreme Court. It made the recommendation in relation to Cart and the case of Ahmed only, despite a number of other cases which were drawn to the panel’s attention as being possibly wrongly decided. As I pointed out in Committee, this was also the view of Lord Carnwath, who had specialist knowledge of the genesis of the Upper Tribunal. I believe it is the view of many, though of course not all, judges.

There are, as we have heard from the noble and learned Lord, a cohort of judges who have to consider what are almost always hopeless applications. They consider them very conscientiously. There may be an argument as to how much time precisely is spent and at what cost, but with very great respect, I am not sure that that is the point. The applicants have, in effect, already had three bites of the cherry. In the extremely unlikely event that a specialist tribunal has made an egregious error of law, I am sure the House will be aware of the fact that the qualified ouster clause contained in Clause 2 provides that, if there is a bad faith decision by the Upper Tribunal or one that is procedurally defective in a way as to amount to a fundamental breach of the principles of natural justice, there will still be an opportunity to challenge it. For the most part, there will not be.

Of course, I have enormous respect for the noble and learned Lord, Lord Etherton, and other noble Lords who support this amendment, but I respectfully submit that we need to grasp the nettle. The poor prospects of success have not deterred applicants from making Cart judicial review applications in the past. I accept that this amendment would further reduce the avenues of challenge, but it would not, I suspect, put anybody off. I am sorry to say that this amendment seems to be something of a fudge. It will frustrate the purpose of the Bill. I fear that, if passed, a Cart JR application will continue to be the most popular JR application. The IRAL found that, of all the possible avenues of judicial review, this is the most popular and that statistic has not been challenged. Perhaps that is not surprising. If you are seeking asylum, it is not surprising that you would seek out every avenue in the hope that you would somehow be successful the next time.

On Amendment 6 from the Labour Front Bench, the potential review which this amendment envisages seems almost impossible to provide—although, no doubt, hard-working civil servants diverted from many other tasks would do their best if this amendment were to become part of the Bill. An asylum application will of course usually involve arguments that include references to Articles 3 and 8 and possibly even the Equality Act. By definition, these arguments have been rejected at all stages of the process. What precisely is this report supposed to do? Is it supposed to conduct a quasi-appeal of all those decisions? How will the material be obtained to enable the report to be provided? With great respect, the House really needs to know how this work will help, before committing the Government to an expensive and possibly fruitless exercise.

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

My Lords, I support the amendment in the name of the noble and learned Lord, Lord Etherton, to which the noble Lords, Lord Pannick and Lord Ponsonby of Shulbrede, and I have added our names. I suggest that the amendment is a sensible compromise between abolishing Cart JRs altogether and setting a defensible limit on the prospect of excessive satellite litigation by limiting appeals.

We see and acknowledge the risk posed by large numbers of unmeritorious challenges to decisions of the Upper Tribunal dismissing appeals from the First-tier Tribunal, but believe that risk has been exaggerated by the Government, in terms of both the time and judicial resources expended on Cart JRs, as the noble and learned Lord, Lord Etherton, has explained, and the low success rates, which are contended and relied upon by the Government. In particular, we doubt that the Government’s figures take into account the full overall impact of successful JRs on the judicial review climate as a whole, particularly in the area of immigration, to which Cart JRs generally apply.

The Minister is not alone in overestimating the time and judicial resource that would be saved by the abolition of Cart reviews. I say now what I should have said during the debate on the last group: I am very grateful to the Minister for the time he spent discussing with us the issues arising in this Bill, including on Cart reviews. However, in spite of those discussions, we agree with the noble and learned Lord, Lord Etherton, that any savings achieved by the abolition of Cart JRs are not worth tolerating the injustice that would be caused by their abolition. Every successful Cart application signals an injustice that would be done to a future applicant were this clause to be enacted.

As many of us said in Committee, this clause, unamended, would set an ugly precedent for ouster clauses in future legislation, building on the general purpose template in this clause, which is designed to insulate unlawful executive action from judicial review. I suggest that the amendment moved by the noble and learned Lord, Lord Etherton, elegantly avoids that pitfall and it is very important that we support it for that reason, as well as others.

The bar to launching a Cart review is and will remain high: the applicant for judicial review always has to surmount a difficult hurdle in securing permission to bring an application. That is as it should be, given the nature of the supervisory jurisdiction. Indeed, the conditions set out in the Cart case itself were restrictive and stringent, and they will not change. The provision outlined by the noble and learned Lord, whose amendment would allow for an appeal from a decision of the supervisory court directly to the Supreme Court only, in the most limited circumstances only and subject to very short time limits, is a sensible safeguard—and no more—to ensure that important points of law can be considered by the Supreme Court in appropriate cases. I suggest that the Government should not be concerned about that.

Amendment 6, to be spoken to by the noble Lord, Lord Ponsonby, seeks a review of the operation of the provisions in Clause 2, with particular reference to the consequences for persons with protected characteristics under the Equality Act 2010 and the enforcement of rights under the Human Rights Act 1998. We support it in principle, but of course we await hearing from both the noble Lord, Lord Ponsonby, and the Minister on this.

--- Later in debate ---

[Lord Thomas of Cwmgiedd (CB)]

I wish to speak very briefly to Amendment 17. As I think I said previously, there has been thought of moving sentencing powers up for some 15 to 20 years. It is of paramount importance that we have a proper analysis of the effect of this. The effect could be serious not only for the prison population but for the individuals concerned. I hope, therefore, even if the Minister cannot respond now, that officials in his department will come back with some reliable reporting mechanism so that the effect of this change can be analysed. I warmly support it, but if it goes wrong—and that has always been the worry—there must be proper data. Asking for it now, I hope, will ensure that it is thought through carefully and provided in due course.

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

My Lords, I will add very little to what the noble Lord, Lord Ponsonby, said in moving his amendment. The House has been much assisted and considerably informed, as we frequently are, by his experience as a sitting magistrate and, in particular, by his experience of young people in court.

I do not propose to go through these amendments one by one. I said in Committee, and I repeat, that we are generally supportive of the measures in the Bill, which modernise our criminal procedures, make more use of online access and simplify guilty pleas in low-level cases. The noble Lord, Lord Ponsonby, in what I understand is a series of probing amendments, which he does not propose to put to a vote, spoke of what I might divide into a number of principal themes which we also consider important.

The first is a concern for protections and safeguards for young people in the context of the new procedures. The second is ensuring that all parties understand the new procedures and have full information about the consequences of decisions they have taken, in particular about the effect of guilty pleas, and indeed that they have access to legal advice. The next is a concern that increased sentencing powers for magistrates be monitored and kept under review. I fully endorse what the noble and learned Lord, Lord Thomas of Cwmgiedd, said in that regard. That is very important. We are entering relatively uncharted territory and, although many of us see those themes as significant, nevertheless it is important that they be monitored.

That said, we await the Minister’s response with interest and hope that the safeguards sought by the noble Lord, Lord Ponsonby, will at least be introduced by the Ministry in considering how we go forward with these new procedures after the enactment of the Bill.

[Lord Wolfson of Tredegar (Con)]

My Lords, I am grateful to the noble Lord, Lord Ponsonby of Shulbrede, for putting down these amendments which, as he says, are probing amendments. I am also grateful to him for his time in discussing all of these points, I think, in a number of meetings we have had.

What I will seek to do—and I hope the House will forgive me if I do not go into too much detail—is respond to them point by point. I will try to strike a balance between giving a proper response here and not unduly delaying the House with points of detail. It may be that there will be points on which I might write further, but I will try to get the main points on the record, so to speak, because these are probing amendments.

I will start with Amendment 7 to Clause 3 on the new automatic online conviction procedure. This amendment would limit the application of this procedure to non-recordable offences only. I can assure the House in terms that we have no intention of extending this new procedure to any recordable offences. This is a new approach for dealing with certain minor offences, which is why we have committed to reviewing this procedure before considering whether to extend it to any further offences. Any extension of the procedure to additional offences would have to be both debated in and approved by Parliament.

Amendment 8 would allow the Criminal Procedure Rules to make provision about information that should be made available to the media and public on cases heard under the automatic online procedure. Amendment 13 would make a similar provision to Clause 6 for cases dealt with under the new online indication of plea and allocation procedure. This is already provided for in legislation. In fact, current provision in the Criminal Procedure Rules goes further. Rule 5.7 of the Criminal Procedure Rules sets out the basic open justice principle that courts must—that is a “must”, not a “may” as in the amendment—have regard to the importance of dealing with cases in public and allowing a public hearing to be reported. Rules 5.8 to 5.11 set out the process for providing that information and the types of information that should be provided.

The court will therefore provide the media with information about the outcome of these proceedings via the court media register within 24 hours of the case being dealt with. In the case of the automatic online procedure, this would include the conviction and fine imposed. That extends the arrangements currently in place for the single justice procedure for defendants who choose this new option.

In the case of the online indication of plea and allocation procedures, the information on the register would include the alleged date and details of the offence, the indicated plea and whether the case was being sent for trial. Any subsequent hearings for case management, trial or sentencing would be listed as normal and defendants would still be required to appear at a hearing in open court after they had proceeded with the online indication of plea and allocation procedures in order to confirm and enter their plea. I underline that this is because we are dealing here with an indication of plea.

Amendment 9 to Clause 4 deals with the guilty plea in writing. It seeks to raise the age of eligibility for the Section 12 plea, as it is called, by post procedure from 16 to 18 years. However, in distinction to some of the matters I have just referred to, this is not a new procedure. It has been available as an alternative method of summary-only prosecution for defendants aged 16 and over since 1957. That is rather a long time. As I said in Committee, I am not aware of any particular issues of concern being raised for children. Clause 4 will ensure that prosecutors can also offer this long-established procedure for suitable cases initiated by charge in person at a police station and will, if they do that, maintain the same age criterion that already exists for prosecutions initiated by summons or postal charge. This would provide defendants and prosecutors with the option of resolving more types of less serious, summary-only cases without having to spend time and resources attending a court hearing. It is subject to a range of safeguards, which I think I set out in some detail in Committee; I hope the House will forgive me if I do not repeat them all this afternoon.

Amendment 12 to Clause 6 proposes a new written procedure for indicating a plea to a triable either-way offence online. It would require a written invitation from the court to inform the defendant about the real-world consequences of pleading guilty to a crime and getting a criminal record. So far as that amendment is concerned, Clause 6 already states that the court must provide important information about the written procedure when writing to a defendant, including the consequences of giving or failing to indicate a plea online. Clause 6 will also enable secondary legislation under the Criminal Procedure Rules to require or permit the court to provide additional specified information where it is deemed necessary.

Importantly, any indication of plea provided through the new written procedure will not be binding on a defendant until they appear before the court at a subsequent court hearing to confirm it. They can also change or withdraw their indicated plea and, again importantly, if they do that, the indicated plea of guilty cannot be used against them in the proceedings that follow.

--- Later in debate ---

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

My Lords, we very much welcome this amendment and thank the Minister very much for responding so positively to the suggestion. There was never any justification for a distinction between tribunals and courts in this regard. Also, the House has every reason to be very grateful to the noble and learned Lord, Lord Etherton, for pushing the point and bringing it to such a successful conclusion.

[Lord Ponsonby of Shulbrede (Lab)]

My Lords, I, too, thank the Minister for these amendments and the noble and learned Lord, Lord Etherton, who has had a number of discussions with the Minister on this point. He very generously thought that the Government’s amendment was a more suitable wording, if I can put it like that. I do not know whether that is right, but that is the sense I got. It is good to finish Report on a note of agreement, which it does through these government amendments.