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.

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[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.

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[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.

Judicial Review and Courts Bill

Lord Marks of Henley-on-Thames Excerpts

Committee stage
Thursday 24th February 2022 Lords Chamber

Moved by

[Lord Marks of Henley-on-Thames]

24: Clause 3, page 4, line 28, at end insert—
“(1) Before this section may come into force, the Secretary of State must—(a) commission an independent review of the potential impact, efficacy, and operational issues on defendants and the criminal justice system of the automatic online conviction option and penalty for certain summary offences;(b) lay before Parliament the report and findings of this independent review; and(c) provide a response explaining whether and how such issues which have been identified will be mitigated.”Member’s explanatory statement
This amendment would require a review of the potential impact of Clause 3 before it can come into force.

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

My Lords, Clause 3 of the Bill sets out a new code, which is to become new Sections 16G to 16M of the Magistrates’ Courts Act 1980, which provides for a new procedure. I will summarise it relatively briefly. First, it enables those accused of certain summary non-imprisonable offences to be offered an automatic online conviction option; secondly, it enables such an accused to plead guilty online; thirdly, it provides for such an accused to be convicted as a result of such an online plea; fourthly, it provides for the penalty for such a conviction to be determined at a figure to be specified in regulations; fifthly, it provides for the endorsement of a driving licence with points, as appropriate; sixthly, it provides for compensation to be payable up to a maximum specified figure, the amount to be determined by the prosecutor; and finally, it provides for the payment of prosecution costs and a surcharge of the amount specified for the offence. That is not defined but is to be specified in regulations and could vary for different offences and circumstances. As to the question of appeal, it is intended by new Section 16M that a magistrates’ court may set aside a conviction or penalty under the procedure if it is unjust.

My Amendment 24 calls for an independent review of the potential impact, efficacy and operational issues on defendants and on the criminal justice system of these provisions. That is not prompted by unqualified hostility to the idea of a simple, streamlined online option to deal with low-level offences that are voluntarily admitted by offenders. On the contrary, if that is properly introduced, with suitable safeguards, I see considerable benefits to these provisions.

Rather, my amendment is an expression of concern that the full personal consequences for people likely to be convicted and penalised by these new means have not been sufficiently considered. They need to be fully considered before the new procedures come into operation.

There have been several impact assessments on the Bill, one of which was targeted on its criminal procedure measures, including these—but it is limited in scope. That is not a criticism of the MoJ; it is in the nature of such impact assessments that they explain what the measures proposed will do and consider what they call the “monetised” and “non-monetised” costs and benefits of the measures proposed. But the assessment is, if I may so describe it, extremely clinical.

The non-monetised costs of measures in Clause 3 are described in the impact assessment in fairly stark terms. The first part of the measures, the online pleas, are described as having the following non-monetised costs for legal aid agencies:

“There is a cost for the LAA associated with changing their service design to ensure that legal representation is available for defendants indicating a written/online plea, where duty solicitors will no longer be engaging with defendants at the first magistrates’ court hearing. Currently this cost is not monetised, as the LAA are exploring a number of different change options.”


For the CPS:

“There may be additional administrative costs … as the new processes will mean more activities are moved online. However, until the future service design model for the CPS has been finalised, these costs cannot be quantified.”


On the online conviction and sentence provisions, the assessment states:

“There will be IT costs to HMCTS for the development, operation and maintenance of the online system. However, as it is not possible to isolate these costs from the wider costs of digitisation and modernisation under the HMCTS Reform programme, they cannot be monetised … There may also be a perceived lack of fairness in the new system insofar as it is no longer means-tested, allowing those with higher incomes to reduce the imposition they receive.”


That last paragraph is the only real mention of the personal non-monetised costs of these provisions.

Right at the outset, I accept that a great deal of the impact will depend on the regulations and the way in which the system operates in relation to offenders. The amendments from the noble Lord, Lord Ponsonby, pick out some of the possible pitfalls. He addresses the difficulties faced by disabled and unwell defendants; those with vulnerabilities or disabilities. He addresses the need for legal representation, which might of course mitigate many of the difficulties for defendants involved in this procedure. But will simple legal representation and its availability address not just the question of cost but the difficulty in accessing legal aid? There is also the rather more nebulous question of whether defendants will take the trouble to get representation or land themselves in difficulties by proceeding without it until it is too late. They may decide not to get representation because the new procedures are online and relatively simple.

There are also wider problems of the defendant’s understanding of not just the process but its consequences. How will digitally excluded offenders deal with the process? Later, we will come to the question of digital assistance in civil proceedings, but those who are unable to access online proceedings easily will find this extremely hard. How many people will be accused and plead guilty for convenience only, because they are faced with an online procedure, when they might not plead guilty were they better informed? How far will defendants understand the consequences of the online conviction that will follow a plea of guilty, and how far will they be aware of the financial consequences? At the moment, it is entirely unclear how far defendants pleading guilty will do so without knowing the financial implications of conviction. It would be helpful if the Minister could indicate whether the regulations will require that all the financial consequences of conviction will be spelled out when the option of online conviction is offered, given that penalty, prosecution costs, compensation and surcharge are likely to be determined only after the plea.

There are other consequences that need consideration, which online processes may make more difficult. The court will lose the opportunity, which I regard as valuable, to identify and address problems for the defendants it penalises. In personal proceedings, justices can see the defendant and can consider for themselves any difficulties and consequences. How do we address that?

There will also be problems with how fines, compensation and costs will be paid. How far have the consequences for families been considered? The impact on defendants and their families of having to pay even relatively small sums can sometimes be underestimated. Another issue that arises is the effects on families of enforcement measures when fines have been levied and compensation and costs have been ordered to be paid. These can amount to quite significant sums which, for people in want of means, are very difficult to raise. Enforcement measures can be far more severe than the financial penalties originally imposed.

How far will the convictions, penalties and consequences reduce or eliminate the opportunity for defendants to get assistance from local authorities and other agencies for them and their families? Perhaps the Ministry of Justice has in mind to ensure that these issues are thoroughly addressed before the regulations come into force, but I fear that they may not be addressed at this stage or even then, and this work needs to be done. I invite the Minister to address these issues not just in his response now but over the period pending Report.

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For those reasons, I urge noble Lords not to press the various amendments.

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

Before I consider our position, can I just ask when the cooling-off period is likely to kick in. In other words, does it start immediately upon the indication of a plea of guilty or will it be following the conviction that is a consequence of the online plea?

[Lord Wolfson of Tredegar (Con)]

My Lords, I will give an answer, but I will check it and if I get it wrong I will write to the noble Lord. I think the way it works is that it will be immediately after conviction. The conviction is almost instantaneous with submitting the online form because it is an online procedure. Therefore, the cooling-off procedure would start immediately after conviction and would run from that time. Indeed, I have just received a message to say that that is correct.

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

I am grateful to the noble Lord for that clarification; I will consider it.

I will of course withdraw the amendment at this stage, but I see the process that we have had today as calling for continuing discussion. Although it is helpful to know from the Minister that the financial consequences will be spelled out precisely in the offer, he did not address the non-financial consequences—the personal consequences—in enough detail. Of course I take his point that, at this stage, this procedure will apply only to travelling on trains without a ticket, what used to be called riding on trams without a ticket or unlicensed fishing. In those circumstances, limited to those three offences, the consequences might not be as serious as they otherwise might be, but since the statute refers to all summary-only, non-imprisonable offences, it potentially goes very much wider. It would be very helpful if, during continuing discussions, we were assured about the criteria that would be applied in much more detail for its application to future offences because one can see the distinction simply from the offences that he mentioned and we cannot be sure what will happen.

The amendment tabled by the noble Lord, Lord Pannick, seems to have a great deal to commend it. He raised it as a query to the Minister. If there were an amendment to that effect on Report I rather expect that it would have a lot of support in the House. Having said that, I beg leave to withdraw the amendment.

Amendment 24 withdrawn.

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[Baroness Whitaker (Lab)]

My Lords, as a former magistrate, I warmly support the first point made by my noble and learned friend. The differences in offences, their nature and conduct vary enormously in general, from area to area and region to region. To understand not only the offence but its cause and, therefore, what a suitable disposal might be is really important.

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

My Lords, the amendments in this group seek reviews or consultations in three quite disparate areas. The first, in Amendment 30 tabled by the noble Lord, Lord Ponsonby, concerns the single justice procedure. The second, in Amendment 37 from the noble Baroness, Lady Chakrabarti, concerns a call for an inquiry into the treatment of women and girls in the criminal justice system. The third, in Amendment 54 in the name of the noble Lord, Lord Ponsonby, concerns local justice areas.

First, as to the single justice procedure, there is no reason in principle to oppose Clause 5, which is the related provision in the Bill. It simply extends the procedure to corporations—and it is probably an anomaly that it did not apply to corporations in the first place. Many of the points that I made during consideration of the first group, relating to a review of the new online procedure, also apply in respect of the single justice procedure. It would be sensible for the single justice procedure to be the subject of the same review, consultation and consideration as the new online procedure.

I join the noble Baroness, Lady Chakrabarti, in thanking the noble Lord, Lord Ponsonby, for his helpful account today, and the help that he gives to the House generally as a practising magistrate and with his very important experience in the magistrates’ court. The magistracy is an extremely important part of our criminal justice system. I forget the precise statistic, but magistrates’ court deal with some 96% of all criminal cases. They are a crucial point of disposal.

I accept, as he did, that the single justice procedure has been of considerable use in minor cases generally, but he also pointed to the impersonality of that procedure and the lack of flexibility that it has in dealing with particular cases. It is valuable in minor cases and in cases such as television licence evasion, which I understand is one of the areas for which it is used. It has been particularly helpful with Covid regulations during the pandemic. However, we should not forget that imposing financial penalties remotely—for example, in the case of television licence evasion—can end up with people being severely penalised for failure to pay and even sent to prison. There is also significant evidence that that particular offence and its enforcement affect women disproportionately.

This brings me to the second area in which a review is sought in this group, Amendment 37, tabled by the noble Baroness, Lady Chakrabarti, which seeks a judicial inquiry into the criminal courts’ treatment of and service to women and girls. The noble and learned Lord, Lord Falconer, spoke to it too. In debates on the Police, Crime, Sentencing and Courts Bill, now back in the other place for further consideration of our amendments, I moved an amendment seeking the establishment of a women’s justice board. It had significant and widespread support around the House, and for me it is a matter of great regret that despite having the personal support of the noble Baroness, Lady Chakrabarti, and the noble Lord, Lord Ponsonby, the Labour Party was not prepared to vote for the measure. If the measure had been supported by the Labour Party, we might have succeeded on that Division. That is a major reform for which I will continue to press. I hope that the support of those who supported it across the House in that Bill will continue to be forthcoming in future attempts, because it is one way to have a significant effect on addressing the difficulties of women and girls within the criminal justice system. Meanwhile, I of course support the noble Baroness in her Amendment 37.

Amendment 54 mandates consultation with relevant stakeholders about the abolition of local justice areas before that abolition under Clause 43 can come into effect. I see the merits of abolishing local justice areas. It will remove the boundaries between such areas, which—as the Explanatory Notes suggest—are largely artificial. That ought to enable magistrates’ courts to work on a more unified or at least a more collaborative basis and manage their work more logically. However, I listened with care to the note of caution introduced by the noble and learned Lord, Lord Falconer. If it is intended by the abolition of local justice areas to destroy the local base of the magistracy, that would be a great step backwards. It is very important that magistrates are dispensing, are seen as dispensing, and understood as dispensing, local justice. While I am completely understanding of the proposal to alter the artificial boundaries so that courts can collaborate on wider areas or narrower areas as appropriate, so that the artificiality is removed, it is very important to preserve the local justice principle. I expect that we will hear more from the Minister about the consultations that have already taken place on this issue in response to the amendment, and I look forward to hearing what he has to say. I hope that he will address that point with care.

[Lord Mackay of Clashfern (Con)]

I strongly agree that the magistracy is essentially a local service built up by knowledge of the area in which magistrates are asked to administer justice. It would be an extraordinary development to cut that out, because the knowledge of what is going on in their area is a source of strength to the magistracy in issuing judgments which, as has been pointed out, are a very high proportion of the total number dispensed throughout the country. On the other hand, I can see that sometimes a technical relief from the particularity of the boundary may be important. Perhaps that can be done without losing the principle of the locality of the magistracy.

I support what the noble Baroness, Lady Chakrabarti, said about the help that we are getting in this respect, having here a practising magistrate who knows the difficulties that arise and can be dealt with by personal experience. I also support the idea that we must have some system for noticing what the difficulties of different people are in relation to the courts, particularly women and girls. I imagine that this has to do with the treatment given by the courts, not particularly the question of certain types of crime that may not always be getting the result that we might expect in various situations.

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

My Lords, the first two amendments in this group, Amendments 31 and 32 from the noble Lord, Lord Ponsonby, would add requirements that an adult accused should have received legal representation and had a physical and mental health assessment confirming their capacity to understand the meaning and consequences of a guilty plea in order to participate in proceedings before the court seeks an indication of a guilty plea in writing. Amendment 33, also from the noble Lord, Lord Ponsonby, would require information to be given to the accused as to the consequences of a guilty plea. These are similar to some of the issues we have canvassed before this afternoon. But, again, I support the principle of these amendments. They are directed at the proposition that before a court proceeds to accept a guilty plea, it must be satisfied that the accused has full capacity and understands the consequences.

These are complex proposals, and the consequences of a guilty plea are challenging to understand. They may, for example, include the consequence of being committed to the Crown Court for sentencing under new Section 17ZB of the Magistrates’ Court Act 1980. It is important to understand how these points are going to be addressed in practice, and I hope the Minister will help us with that.

As for the next amendment from the noble Lord, Lord Ponsonby, I agree with him that taking a guilty plea from children, as proposed by Clause 8, is unacceptable, and I support him in opposing that clause and, consequently, in opposing Clause 14, which would, independently as well as consequently, water down the involvement of parents and guardians in child cases. That involvement is, I suggest, extremely important. There are two principal reasons for my opposition. First, it is extremely difficult to guarantee that a child of whatever age under 18 will fully understand the proceedings or consequences before giving an indication of a guilty plea. Secondly, a criminal charge often brings matters, risks and difficulties that are faced by particular children to the attention of the court when they attend court. That gives the court and other agencies an opportunity to address those difficulties, and that opportunity ought to be available and taken as soon as possible and before any question of indicating a guilty plea arises. For the same reasons, I support Amendment 34 in relation to Clause 9, which would permit allocation hearings in respect of children or young people to proceed in the absence of the accused. That does not seem appropriate.

These are difficult provisions for indicating a guilty plea in writing, and as I have said, it is difficult to see how they will work in practice. While they may prove to be inoffensive if introduced, the sunsetting provisions in Amendment 35 are surely sensible. If our concerns turn out to be groundless, Parliament can revisit the procedures on the basis of evidence of how they have worked out in practice and make them permanent or extend them. Otherwise, they ought to lapse after two years, as is suggested in the amendment.

I turn next to Clause 13, permitting the extension of a magistrate’s sentencing powers. I cannot, at the moment, for the life of me see why the noble Lord, Lord Deben, and the noble and learned Lord, Lord Falconer, are not right to say this is a matter that ought to be considered discretely and independently by Parliament, rather than having delegated powers enable the Secretary of State to increase magistrates’ sentencing powers at a later date by executive action. That does not seem appropriate, and no good reason has been advanced for why that should be right.

As to the threat to jury trial considered by the noble Baroness, Lady Chakrabarti, I share her belief that increasing sentencing powers is likely to lead to more, rather than fewer, defendants opting for jury trial. The greater sentencing powers of magistrates would lead only to defendants taking their chances with a jury trial rather than staying in a magistrates’ court, and forfeiting what has been traditionally the incentive to stick with the magistrates—that they are likely to impose a shorter sentence and unlikely to commit for sentence.

As a matter of principle, I am instinctively opposed to increasing the sentencing powers of magistrates. At the same time, along with many who have considered the evidence, we are strongly opposed to short prison sentences. Against that, there is a serious risk that a move to permit 12-month sentences, when previously six-month sentences were the maximum that could have been imposed, will increase the use of custodial sentences of a longer period where community sentences would be more appropriate. I find that a difficult issue to face. We should be concentrating on increasing the use of community sentences; and increasing magistrates’ powers to 12 months for a single offence is entirely wrong. But I wait to see how the Minister approaches this change and justifies it.

[Lord Wolfson of Tredegar (Con)]

My Lords, I am grateful to all noble Lords who have taken part in this debate. It covers a number of different points, but, essentially, it focuses on the procedure for triable either-way cases and the recent announcement that the Government intend to extend magistrates’ courts’ sentencing powers from six months to 12.

Let me start with amendments to Clause 6 —Amendments 31, 32 and 33. They all seek to add further safeguards to Clause 6, but I hope to explain why the Government consider them to be unnecessary. I share the concern of the noble Lord, Lord Ponsonby, to ensure that defendants are able to seek legal representation in criminal proceedings at the earliest opportunity. The central point here is that a defendant is unable to proceed with the new online procedures without the support of a legal representative. That is because the online procedures we are dealing with here are made possible through the common platform, which is currently not accessible by individual defendants. So, as currently, legal representatives would be needed to access the platform, and they will then be able to help identify whether a defendant has particular vulnerabilities or does not understand the process even after explanation.

Defendants, as in a previous group, will be under no obligation to accept an invitation to proceed online. They can choose to discuss these matters at a traditional court hearing if they should so wish. Where a defendant fails to take up the offer of engaging online, the proceedings will simply default back to a normal court-based procedure. Furthermore, the court itself will be able to stop an online proceeding and call an in-court hearing if it has any concern or would like the defendant, for whatever reason, to attend court in a contested case. That would include cases where, for example, the court had concern about a defendant’s mental health or mental capacity, or where, for any other reason, the court considered online proceedings inappropriate.

Amendment 33 would require that defendants are informed about the real-world consequences of pleading guilty to a crime at court and what it could mean to get a criminal record. Of course, getting a criminal record is not something that should ever be taken lightly, but Clause 6 already ensures that the court must provide important information about the consequences of giving or failing to give an online indication of plea.

Where a defendant does decide to proceed with the online procedure, all the communication that would take place between the parties and the court to facilitate effective case management, which would otherwise take place in court, can take place online. A defendant will, for example, still be able to seek an indication of whether a custodial sentence would be likely if they were to plead guilty and were dealt with at the magistrates’ court. Further, any online indication of plea—and that is what we are dealing with, an indication of plea—will remain just that, an indication. A defendant is able to withdraw it at any time before their first appearance at a hearing in court. They will still need to enter a binding formal plea before the court at that hearing and any online indication of plea cannot be admitted as evidence in later proceedings. So I suggest that we have enough safeguards in place to ensure that defendants are appropriately supported.

Given that there has been some recent press coverage of the online procedure, I reiterate the important point I made earlier: the principle of open justice will be maintained for cases dealt with under this new online procedure. Magistrates’ courts will publish the result of these proceedings in the usual way and, and I said earlier, various measures in the Bill will actually mean that the press get more material here than they would from a traditional format.

Amendment 34 to Clause 9 would prevent the courts having a power to proceed with trial allocation decisions for children who fail to appear at their hearing without an acceptable reason and where it would have been in the interests of justice to progress the case. It is important that all cases, but particularly cases involving children, are progressed as expeditiously as possible, so that interventions to tackle offending are not delayed. This provision recognises that with the increased vulnerability of child defendants there will need to be additional safeguards.

Clause 9(5) creates a new, but clearly defined, set of circumstances that would enable a court to allocate a child’s case in their absence. A point to underline is that these conditions are far more stringent than those prescribed for adults, even though children cannot elect for jury trial.

There are essentially five conditions. The first is that the child has been invited, but failed, to provide an online indication of plea and that, in accordance with Clause 14, the court should, where appropriate, have made sure that the child’s parent or guardian was aware of the written proceedings. The second condition is that the child has then also failed to appear at the subsequent allocation hearing. The third is that the court must be satisfied that the child was served with adequate notice of the hearing or had previously appeared at a hearing and was therefore aware of the proceedings. The fourth condition is that the court does not consider that there is an acceptable reason for the child’s failure to appear. The fifth is that the court must be satisfied that it would not be contrary to the interests of justice to proceed to allocate the case in the child’s absence. There are a number of other existing safeguards—I will not go through them all—for example, when a child is arrested, the law requires that a parent or guardian must be notified as soon as possible. For prosecutions initiated by summons or postal requisition, the notice is also sent to the child’s parents or guardian.

Amendment 35 would add a sunset clause, which would essentially switch off the provisions in Clauses 6 to 9 two years after Royal Assent, unless Parliament passed a resolution to prevent it. I understand that the intention is to ensure that defendants are not disadvantaged, but I suggest it is unnecessary for three reasons.

First, as the Committee will appreciate, magistrates’ courts already have powers to allocate in the defendant’s absence. The online procedures are already used effectively in magistrates’ courts; we are simply extending the circumstances in which these powers can be used. Secondly, these measures do not replace current tried and tested procedures; they offer more options to defendants to save time and reduce the number of unnecessary appearances at court. If a defendant does not want to go online, the proceedings simply default to the usual court-based proceedings on their allotted hearing date. Thirdly, as I have said, there are safeguards to protect defendants who need protection, particularly children but also others, recognising that we have a distinct youth justice system.

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

My Lords, I will speak first to government Amendment 38, which makes provision for pre-action dispute resolution services and procedures to be taken into the overall procedure within the Online Procedure Rules. In principle, we particularly welcome this recognition of the importance of alternative dispute resolution procedures in the civil justice context. We accept the Government’s point that it is even more important in the context of online procedures, where modernisation and simplicity of approach are at the forefront of the Government’s aims, than it is in the context of conventional procedures to make provision for online alternative dispute resolution procedures to be brought into the overall picture.

However, what is proposed is a power only; it is not even really a template, as the noble and learned Lord, Lord Falconer, pointed out, although not in those words. We simply stress how important it will be, in the context of the Online Procedure Rules, to integrate the arrangements to facilitate ADR into online procedures in a clear way. The noble and learned Lord pointed out particular areas where the provisions were very unclear about who would be responsible for those procedures and how they would be authorised, but I would welcome clarification from the Government as to how they propose to proceed in that regard.

Amendment 39 on online procedural assistance in the name of the noble Lord, Lord Ponsonby, which was moved by the noble Baroness, Lady Chapman of Darlington, and to which I have added my name, is comprehensive. At its heart is the aim in proposed subsection (1) of introducing a statutory duty to provide assistance to those who need help navigating online procedures. That is an adjunct to the importance attached to them in the Bill itself. We of course accept that the Government intend to ensure the availability of assistance with the new procedures and we welcome the introduction of these online procedures. We were also reminded by the noble Lord, Lord Pannick, of the limitations of the procedures that the noble and learned Lord, Lord Keen, promised when he was Advocate-General and we last debated these procedures. Our concern is that what the Bill proposes is very much wider and could, as the noble Lord, Lord Pannick, pointed out, cover family proceedings, proceedings for injunctive relief—almost any proceedings of whatever magnitude. However that might be, the importance of online assistance becomes greater with the importance of the proceedings to the parties.

The noble Baroness, Lady Chapman, talked about digital exclusion by virtue of skills, but it is not only a question of skills. She is absolutely right that many people are unable to handle digital technology through age, disability or vulnerability, as well as, of course, through lack of education or simply not having kept up with advances in technology. There is also the lack of availability of fast broadband and an inability to access the internet in the way those of us who live in areas of fast broadband are becoming completely used to. There is the availability of technology and computers. The answer might be that people can go to their local library, but for many people in rural areas, local libraries are very distant and lacking in decent equipment. It is not enough to say that anybody can access a computer.

That ties in with the financial abilities and means of people who may be litigants. If they do not have the equipment, as well as not having the skills, they cannot access it. For us, the cardinal principle is that no one, however unable to access digital procedures without help for whatever reason, should be disadvantaged by the new procedures. That can only be answered by a duty upon the Lord Chancellor to provide digital and online assistance. There needs to be assistance to a sufficient level that every litigant understands the procedures and how they are to be implemented and is able to have personal, telephone or remote appointments, whatever is necessary, to enable them to participate in procedures at every stage online. As per our amendment, this also means assistance with language in terms of interpretation or translation for those for whom English is not their first language.

An important part of our amendment is the prescription of an annual evaluation of online procedural assistance and the collection of information about how it is proceeding. I add only this: we are concerned to see that it will remain possible to take all steps in proceedings by paper means. This has been promised by the Government, as the noble Lord, Lord Pannick, pointed out. I am confident that the number of those requiring step assistance by paper proceedings will reduce as time passes. However, the ability to take all steps on paper, at any stage, must remain. This is essential to honour the fundamental principle of our justice system that we preserve universal access to enable people to enforce and defend their rights.

[Lord Wolfson of Tredegar (Con)]

I will first say a word about the amendment which I have put before the Committee. Dispute resolution is fundamental, and it is becoming ever more important. Although the noble Lord, Lord Marks, referred to alternative dispute resolution, as he may have heard me say before, we have sought to drop the “A”. We do not call it ADR anymore, we call it DR, because we do not see it as alternative, like alternative medicine. I can see my postbag about to grow, but I am going to say it anyway: alternative medicine is sometimes seen as somewhat outré and whether it actually works is questionable. Dispute resolution is not unusual; it is now a central part of resolving disputes and we know that it works. We want to ensure that people who engage in dispute resolution can do so online and—I will come to the point made by the noble Lord, Lord Pannick, in a moment—that they can also vindicate their legal rights online when it is appropriate to do so. I give the example that I have given before: there is a small trader who has a debt of £13,000 and the hearing is going to last for 90 minutes. Do we expect that person to take a day off work and go to the local county court and hang around when, instead, they could continue their job and—I was going to say “dial in” for the benefit for the mystery person on the Opposition Front Bench—go online, engage in the court hearing and vindicate their legal rights.

I will come back to the safeguards in a moment. Properly used, the online procedures are a way of enabling people to vindicate their legal rights. In justice, like in many other parts of our society, we have been forced to go online more during the pandemic and we have seen that it can work. The noble Lord, Lord Pannick, talked about when I was previously at the Bar. Before I joined your Lordships’ House, I had to take a three-week trial entirely online. That trial could not—and probably would not—have taken place five years ago, but it took place online. I accept that it was a commercial case, and I will come to the points about family and other cases a little later. However, these proceedings and the Online Procedure Rule Committee are focused on ensuring that the civil justice system can respond to, and is appropriate for, the sort of world in which we now live.

Having said that, the noble Baroness—

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

I am sorry to interrupt the noble and learned Lord and am grateful for him giving way. May I draw him back to Amendment 38? I completely accept and take on the chin his criticism of my use of the word “alternative”, but I used it as a distinction from procedures by court. I understand his Amendment 38 to be concerned with out of court procedures, with what I used to call “alternative dispute resolution” procedures, but never will again. Nevertheless, it is concerned with integrating, as I understand it, dispute resolution procedures organised by third parties, which are not applicable to the example that he gave of having your rights vindicated by reference to the procedures that are allowed by Clause 19 of having court procedures online, which is slightly different.

[Lord Wolfson of Tredegar (Con)]

The noble Lord is absolutely right, but I was seeking to make the point more broadly. I will come to the court procedures, but the noble Lord is right: Amendment 38 seeks to ensure that, when people go to pre-court dispute resolution—I think everybody in the Committee wants to encourage that—if the case does not settle in whole or even in part, they can seamlessly transition to the online court procedure. They do not have to repopulate forms or send in new documents. Of course, I emphasise the mediation bit of it remains without prejudice, obviously, that is fundamental to mediation. Amendment 38 is to ensure that there is a set of protocols, essentially, to make sure that we can have that seamless transition. It is part of enabling people to vindicate their legal rights, either by way of an out of court settlement, with which they are satisfied, or by migrating into the online court space.

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[Lord Etherton (CB)]

As I foreshadowed at Second Reading, I have tabled this amendment to enable tribunals to make pro bono cost orders, as is currently the position in the civil courts and the Supreme Court. I am very grateful to the Minister and his officials for their positive engagement on this issue. I know that the Minister himself, as he was at Second Reading, remains genuinely sympathetic to the principle embodied in the amendment.

We have not received so far any amendment proposed by the Government to match what I have tabled, but this morning those representing the Access to Justice Foundation, which is the prescribed charity and will be the recipient of any pro bono award, received notification that the Attorney-General and the Solicitor-General support this change, with the Solicitor-General, who has general responsibility within the Government for pro bono, expressing strong support for it.

On that basis, I am cautiously optimistic that a government amendment will emerge in due course. The main issue of concern at the moment relates to the width of the tribunals that will be caught under the amendment. I know that work is going on regarding that. It would be useful for those who are interested in this issue to have the Minister’s current position recorded in Hansard. I beg to move.

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

My Lords, we fully support the amendment moved by the noble and learned Lord. There is nothing that I wish to add. It is plainly sensible. There is no distinction between the civil courts and tribunals, and it is an obvious case for orders in respect of costs.

[Baroness Chapman of Darlington (Lab)]

Similarly, I indicate our hope that the Government will bring something forward. Should that not be the case, we will happily play our part in doing whatever we must to move this on.

Judicial Review and Courts Bill

Lord Marks of Henley-on-Thames Excerpts

Committee stage
Monday 21st February 2022 Lords Chamber

[Lord Hope of Craighead (CB)]

I recommend that the noble and learned Lord refers to Treasury 2 because I made exactly the point that he was trying to make and I was overruled by the others. They said, “You can’t do that”, and they would not make the suspended order. We are in Committee and we cannot prolong the discussion, but that is the problem that I was faced with. I tried to do exactly what the noble and learned Lord suggested but I was overruled. That is the problem that I think the Government are trying to address; the Minister will correct me if I am wrong.

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

My Lords, I enter this discussion with some trepidation. Nevertheless, it raises very important points of principle, which have been essentially analysed in the last few minutes and the last few exchanges. As we have heard, the effects of Amendments 1, 4 and 5, in my name and those of the noble Lords, Lord Pannick and Lord Ponsonby, would be to remove from the Bill the power to make a quashing order prospective only. That is the problem: it is prospective only. We are not arguing for the removal of the power to delay. I will come back to that in a moment, but I start from the position that I agree entirely with the analysis of the noble and learned Lord, Lord Falconer, that a (1)(a) order could solve all the problems outlined by the noble and learned Lord, Lord Hope, and the noble Lord, Lord Anderson.

I venture to suggest that it is significant that when the committee chaired by the noble Lord, Lord Faulks, considered its recommendations for this type of order, it recommended only the power to delay, not the power to validate past unlawful action in the way that a quashing order made prospective only would do. Our amendments are premised on the proposition that, when the courts find that an Act, or a decision or regulation of any organ of government, is unlawful, it should not then be able to decide only to quash it with future effect. As the amendment’s explanatory statement puts it, and as the noble Lord, Lord Pannick, explained, the proposed power would thereby validate

“what would otherwise be quashed as unlawful”,

and unlawful for all purposes. The noble and learned Lord, Lord Falconer, emphasised the provisions in proposed new Section 29A(4) and (5) for the all-embracing effect of a prospective-only quashing order.

New subsection (4) makes it absolutely clear that the impugned act—which is ex hypothesi an unlawful act because a quashing order is being made—is to be upheld in any respect in which the provision under new subsection (1)(b) prevents it being quashed. That has no flexibility. If the noble Lord, Lord Anderson, and the noble and learned Lord, Lord Hope—as well as the noble Lord, Lord Faulks, as referred to in his speech—are seeking flexibility, a (1)(a) order is not the way to do it. Our Amendments 1 and 4 do not seek to debar a court on judicial review from permitting either officials to put right a decision taken unlawfully by remedying the unlawfulness or, as the noble Lord, Lord Pannick, pointed out, Parliament to alter unlawful regulations without the need to wield the blunt instrument of a quashing order immediately.

We suggest that the power to suspend by delaying the quashing order eliminates that risk. It mitigates the risk that a quashing order would have the effect of indiscriminately overruling all government action, for example a regulation, without distinguishing between what was lawful, or ought to be lawful, and what was unlawful. We say that enabling a decision to take effect on a delayed basis would enable the law or the government action to be corrected so as to regularise the unlawful government action. So, the quashing order, if it took effect immediately, would be senseless, but it must stand once the delay is over, to deal with the past unlawfulness. It deals with the Ahmed point, as suggested by the noble and learned Lord, Lord Falconer, and it is a far cry from the courts permitting past unlawful action to go uncorrected.

The prospective-only quashing order power undermines the central principle on which judicial review jurisdiction is based: government action is required to be in accordance with law, and if it is not in accordance with law, it will be corrected. The noble Baroness, Lady Jones of Moulsecoomb, sensibly conceded in her speech that there may be conditions or limits but they can all be dealt with by the power to delay. A crucial point that a prospective-only order ignores is that “corrected” means corrected for everyone; that is, all litigants, future and potential, even those who have not yet brought cases.

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[Lord Faulks (Non-Afl)]

I am most interested in the way in which the noble Lord analyses this. Is he essentially saying that this Bill is giving too much power to judges—power that ought to be vested in Parliament—and that a judicial review reform of this nature goes far too far and that judges should not be allowed to have these powers in case they exercise them inappropriately?

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

It is a two-pronged attack. I do not believe that the judges should have the power to make lawful what they have already found is unlawful with retrospective effect. That means that prospective-only orders are, in principle, wrong. However, if there were a case for changing regulations or for altering government action so as to bring it within the limits that Parliament wanted, that is for Parliament; that is for legislation, as the noble and learned Lord, Lord Falconer, argued. It is not for the courts to say, “We find the act unlawful, but it is only going to take effect as unlawful for the future.” It is, in the example of the noble and learned Lord, Lord Brown of Eaton-under-Heywood, an ex tunc approach; but an ex tunc approach, frankly, is right, whereas the removal of flexibility by ruling out the Part A power—the power to delay—would be a removal of flexibility, which would be unnecessary, and we support that. We do not support the presumption, but that is a different point.

The real important point, about retrospective charges and the points in Amendment 6, in the name of the noble Lord, Lord Ponsonby, is that they accept the unlawfulness—if that was the only amendment that was passed—but would go on to say, “You can rely on the unlawfulness as a defence in criminal proceedings and you can still apply for other financial remedies for judicial review, but the quashing order will only take effect prospectively.” That, in my respectful view, is to fudge the whole point of unlawfulness, and the universality and the universal application of judicial review, which lies at its heart.

[Lord Ponsonby of Shulbrede (Lab)]

My Lords, I agree with the opening remarks of the noble Lord, Lord Marks—I too enter this discussion with some trepidation. I will first set out the Labour Party’s overall view, since the debate on this group has been fairly wide-ranging. We believe that the proposals for judicial review in Clauses 1 and 2, which we will come to in group 4, are regressive and uncalled-for. More especially, when many aspects of the justice system are in crisis, we do not believe that there is a need for this review in the first place. The Ministry of Justice is trying to fix something that is not broken, a point made by the noble Lord, Lord Beith. We believe that overall, the Government’s changes to the judicial review process will have a chilling effect on justice, deterring members of the public from bringing claims against public bodies and leaving many other victims of unlawful actions without redress. These are proposals that will make it harder for individuals to hold this Government to account. As a result, unlawful decisions made by this Government, or by any government or public body, will go unchallenged.

I put my name to Amendments 1, 4 and 5. The noble Lord, Lord Pannick, as ever, introduced those amendments very fully. The noble Lord, Lord Anderson, asked me about Amendment 3. In my brief, I am embarrassed to say, it says that Amendment 3 is consequential on Amendments 1, 4 and 5; I have had a look at it while the debate has been progressing, and I cannot add any more to that. It may be that what I have been provided with is wrong in that respect.

Amendment 6 would, as set out in the explanatory statement,

“protect collateral challenges by ensuring that if a prospective-only or suspended quashing order is made, the illegality of the delegated legislation can be relied on as a defence in criminal proceedings. This would prevent individuals from being criminalised under defective and illegal ministerial powers.”

The noble Lord, Lord Faulks, said that he did not think that the problem existed. It would be very useful if the Minister could confirm that he too does not think that the problem exists, because, in a sense, it is an inquiry about whether there is any potential for this problem existing. It would be helpful if the Minister were to confirm what the noble Lord, Lord Faulks, has said.

My noble and learned friend Lord Falconer entered into a very interesting debate with the noble and learned Lord, Lord Hope, about the development of suspended quashing orders through common law and whether that was appropriate. My noble and learned friend was very much against proposed new subsection (1)(b); he thought it was quite wrong to give power to judges to, effectively, change the law unilaterally and retrospectively. He argued very strongly that that was not the case.

That point was dwelled on by a number of noble Lords. It is not the point, really, that comes out in this group. We may return to some of the elements which were discussed on that point, but as I said, I enter this discussion with some trepidation, as I understand the amendments in my name—Amendments 1, 4 and 5—much more clearly. We will be debating further amendments to quashing orders in the next group, where we can further look at other prospective amendments. For now, I lend my support to the amendments in the name of the noble Lord, Lord Pannick.

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[Lord Brown of Eaton-under-Heywood (CB)]

I hesitate, my Lords, to speak again. I feel that so much of what has been said has been dancing on the head of a pin. I have to say that I have come to see new subsections (1)(a) and (1)(b) in new Section 29A in Clause 1 not as dramatically different things but rather as a continuum. They cover a spectrum; indeed, there is an overlap in between them, in the middle. There is no question here of subsection (5), to which the noble Lord, Lord Pannick, objects so strenuously—the one about being treated, and so forth. It is always subject, be it noted, to new subsection (2) of new Section 29A. Any of these orders under new subsection (1)—in other words, whether it is an order under new subsection (1)(a) or (1)(b)—can be made subject to conditions. Those conditions clearly would control the extent to which there is to be any degree of retrospectivity or retroactivity, call it what one will.

I am a huge admirer and respecter of the noble Baroness, Lady Chakrabarti, but I do not see this as being, so to speak, comparable to Parliament infinitely rarely passing legislation retroactively. We must always remember, must we not, that judicial review is, at the end of the day, a discretionary remedy; you do not actually have to make these orders anyway. I still see this, as the Minister would urge, as a tool in our toolbox, giving us the maximum flexibility and discretion to do what justice requires to all—which includes, of course, to those who are not in the courtroom, who do not have legal aid, and all the rest of it. With criminal convictions—taxation and things—one trusts and assumes that the court is going to behave correctly. In the Percy and Hall case, with the good lady trespasser and PC Hall who was being sued for damages for having arrested people who on the face of it were invading this territory, contrary to apparently valid by-laws, I pointed out in the judgment that, if and insofar as she had actually had criminal convictions, of course they would be set aside. But that is merely an aspect of judges behaving, as one hopes and believes they will, in a judicial manner.

So I respectfully continue to support this clause. I said at Second Reading that I was agnostic or entirely relaxed—I think that was the term used by the noble Lord, Lord Anderson—as to whether it is “may” or “must” in new subsection (9), and I remain so. “Must” simply urges the judges to give attention to this new tool in their armoury or toolbox. But they do not have to, and they will not, unless by all the conditions that they wanted to impose, they have made it clear that what they are doing will not be contrary to justice.

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

My Lords, this group of amendments, tabled by the noble Lord, Lord Ponsonby, is designed to take the sting out of the provisions in Clause 1, both as to the circumstances on which suspended or prospective-only quashing orders may be made and as to the way in which the discretion should be exercised. If passed, the amendments would each mitigate the damage which in my view is inflicted on the rule of law inherent in Clause 1. However, if all were passed, they would still by no means eliminate it. As has been pointed out, the worst part of Clause 1—in a sense, the elephant in the room of the first two groups—is the presumption, which we shall come to in the next group, which has been spoken to by the noble Baroness, Lady Jones of Moulsecoomb, and the noble and learned Lord, Lord Falconer, and which is, I suspect, opposed by the overwhelming majority of those who have spoken. The noble Lord, Lord Anderson, spoke to it in the last group, and said that his support for the prospective quashing-order power was conditional on the removal of the presumption.

I suggest that there is also a flavour to Clause 1 that is inherently offensive. We are faced with a proposal that not only permits the suspension of a quashing order and the retrospective validation of unlawful acts—and we accept the power of suspension—but dictates to the court, by new subsections (8), (9) and (10), how the court should exercise its discretion. Once again, I have to say that I am impressed but dubious about the optimism expressed by the noble and learned Lord, Lord Brown of Eaton-under-Heywood, that the Government are concerned only to give judges tools in their toolbox which they would not use, and that they can exercise their discretion in any way that they wish, because that is not actually how these new subsections work—and they are wrong in principle to dictate the way in which the discretion is exercised. The court when considering judicial review—

[Lord Faulks (Non-Afl)]

I thank the noble Lord for giving way. Of course, new subsection (8)(f) refers to

“any other matter that appears to the court to be relevant.”

So a court can decide that there are other matters that it thinks are important. This is not restricting or fettering the discretion of the court. Why is it so offensive?

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

It is absolutely right that the court can consider any other matter, but it must consider all the factors in new subsection (8)(a) to (8)(e). That is mandating the court where some of those factors may not be of any interest to the court at all. The noble and learned Lord, Lord Falconer, was right to point out that there is a potential conflict between the factors in subsection (8)(c) and (8)(d). For Parliament to be telling judges how they should exercise their discretion and what factors they should have regard to without giving them the option of disregarding some factors is wrong.

The court is exercising, as we all know, a supervisory jurisdiction over executive action or the claimed abuse, or excess, of delegated powers. The noble Baroness, Lady Chakrabarti, was right to argue that the way in which judicial review has worked in practice—and I suggest that it is the most important development in civil or administrative law over the past 50 years, above any other development that we have had—is that the judiciary, the Executive and Parliament work not exactly together but in balance, so that the powers are exercised in accordance with the law. With respect to what the noble Lord, Lord Faulks, says, it is inappropriate and regressive for the Executive to tell Parliament what factors they should consider when performing that supervisory role. The courts should be left to consider executive action in accordance with the law passed by Parliament and to grant remedies accordingly. They do not need, and should not be tied down by, restrictive provisions that prevent them doing justice taking into account factors that they think are important.

Amendment 2, moved by the noble Lord, Lord Ponsonby, would at least limit the exercise of the provisions in Clause 1 to powers where the court was satisfied that it would be in the interests of justice to do so. I suspect that that amendment will be opposed on the basis that it would introduce an unnecessary fetter on judicial discretion—and I suggest that that is entirely ironic, because the whole of new subsections (8), (9) and (10) are precisely targeted at fettering the courts’ discretion, and it is to that that we object. It is also ironic that, if passed, this would be the only mention of the interests of justice in the clause.

Amendment 7 would make the new subsection (8) factors permissive, rather than mandatory. Therefore, it removes the point that I made in answer to the intervention of the noble Lord, Lord Faulks, that the court must consider factors which have an inherent conflict.

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[Lord Wolfson of Tredegar (Con)]

Yes and no, in the sense that this gets us into the argument about the presumption, because the presumption applies to only these two remedies. To that extent, the point made by the noble and learned Lord is correct: that is the nature of the presumption, which we will get to in the next group. We want the court to specifically consider whether these remedies are appropriate and to use them, as the ending of new subsection (9)(b) says,

“unless it sees good reason not to do so.”

Because these are new remedies, we have set out a list of non-exhaustive factors which the court must consider. These are the factors in new subsection (8)—and it is expressly non-exhaustive in new subsection (8)(f). I agree with the noble and learned Lord that, as he put it, these are important considerations. However, we want to encourage consideration of their use; we are certainly not mandating their use in any case.

The other thing we want to do, by putting these factors in the Bill, is to provide consistency in the jurisprudence from the start as to how the remedies are used in the cases which come before the court. I remind the Committee that we consulted on the sort of factors that should be included in the list. We received some very useful contributions in response to that consultation. However, the “must” in new subsection (8)—which is contrary to the proposal in Amendment 7 before the Committee—requires the court to consider each of the factors in the list. Coming to the point made by the noble Lord, Lord Marks of Henley-on-Thames, the “must” does not require the court to find that every factor in the list applies. It does not require the court to say that all the factors are relevant in the instant case. The court may consider that some of these factors in the case before it are not relevant at all; some might have very limited weight or only marginal relevance. All the court must do is to consider them. As the noble Lord, Lord Faulks, pointed out, the court may add to its consideration absolutely anything it wants under new paragraph (f).

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

I am grateful to the noble Lord for giving way, but is that right in relation to new subsection (8)(c) and (d)? The court must have regard to the interests or expectations of persons who would benefit from the quashing and of persons who have relied on the impugned act. There is nothing voluntary about that. Those interests may be in conflict. Is it right that the court should always need to have regard to those interests?

[Lord Wolfson of Tredegar (Con)]

First, they may not apply at all, because there may, in a particular case, not be any person who would benefit from, or has relied on, the quashing. Secondly, the court must have regard to it, but only having regard to it, the court can give it such weight as it deems appropriate. Absolutely, some of these matters may be in conflict. That, as we have heard, is nothing novel in the field of judicial review when the court must consider what remedy to issue in every case. Indeed, it goes beyond judicial review. There is nothing new in principle here at all. What we are doing is setting out factors which the court should have regard to. The court can place such weight as it wants on any of these, and the court can have regard to any other factors as well.

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[Lord Judge (CB)]

My Lords, I had no intention of intervening in this debate, but the question that seems to arise is this: why are we giving a presumption which is in favour of the wrongdoer?

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

My Lords, I entirely support the removal of the presumption. I will never try to achieve the brevity of the noble and learned Lord, Lord Judge, but he is absolutely right: this is a presumption in favour of the wrongdoer.

The only reason my name is not on Amendment 13 in the name of the noble Lord, Lord Anderson, is that I failed to secure a place among the first four supporters who were rushing to support the amendment. There is no getting away from the fact that, by new Section 29A(9), the Bill proposes making the exercise of the Clause 1 powers, prima facie at least, mandatory. If the “adequate redress” condition is met, and unless the court sees good reason not to do so, it must exercise both powers—not just one of the powers, according to the statute—both to suspend to suspend or delay the quashing order and to make it prospective only.

I agree with the noble and learned Lord, Lord Etherton, that this presumption colours the approach that is required to be taken by judges. I believe that understates the position. He was also right to say that it was dangerous and wrong in principle.

The Minister’s position on behalf of the Government is that the court is not bound to exercise these powers if it sees good reason not to do so. It follows from that that these are therefore wide discretionary powers and that any judges worth their salt—if I may paraphrase what he was saying at Second Reading—would find ways of not applying the presumption. If that is right then the noble Lord, Lord Anderson, is right that subsection (9) is entirely unnecessary. If the judge were to be entitled to exercise a wide discretion, there would be no reason to mandate the exercise of the powers in any particular way and we would be back to the position taken by the noble Lord, Lord Pannick, that the Government should trust the judges. I fear that the only reason the Government want to have the powers exercised on a mandatory basis is to ensure that there is a default position. That is why it has been correctly labelled a presumption. My noble friend Lord Beith’s analogy is absolutely right: if you have a toolbox, you should not be bound to use any particular tool, whether it is right or wrong for the job in hand.

My noble friend Lord Beith was also right on the question of “adequate redress” as an unsatisfactory and difficult-to-interpret test. Not only would it encourage unnecessary appeals, as the noble Lord, Lord Pannick, said, but it is also entirely unclear for whom the redress has to be adequate. The natural meaning of the words would be adequate for the applicant, but that is wrong in a public law case; it has to be adequate for every person materially affected. That is the point made in the amendment put forward by the noble Baroness, Lady Chakrabarti, although she modified her position on it slightly in addressing it today. Other parties affected need to be protected, not just because that is at the essence of public law but because those other parties are, by definition, not before the court and not personally represented when the judicial review application is made.

The Minister’s approach that judges will not regard themselves as bound by the presumption because they have this wide discretion, I suspect, underestimates the loyalty to the law felt by judges. Where there is a paradigm case that calls for the exercise of the power, under the compulsory wording of the Bill judges will strive to give effect to the will of Parliament and the principle that the law is there to be obeyed. That is embedded in their DNA. Therefore, the Government’s view that judges will bend over backwards to find ways around the presumption so as to avoid legalising unlawful acts of government is deeply cynical. It may shed significant light on the Government’s view of the rule of law, but it is completely inaccurate about the approach of the judges, who will apply the presumption if it becomes law lawfully and in so doing will considerably weaken the effect of judicial review.

[Lord Ponsonby of Shulbrede (Lab)]

My Lords, I open by noting that my noble friend Lady Chakrabarti said that Amendment 14, to which I have my name, is a probing amendment and I think that she rightly said it is less preferable to Amendment 13 if we can clear up the element of new Section 29A(1)(b) about removing retrospective quashing. I agree with her point on that.

I want to address a different point. It was actually raised in the House of Commons by the government Minister at the time when he talked about unintended consequences. I will read out the briefing I have on this. In Committee, the Minister suggested that limiting the retrospective effect of remedies could mitigate the potential negative and unintended consequences that some public interest judicial reviews could have. For example, if a statutory instrument concerning social security is quashed, immediately it could remove all the social security protections provided for in that statutory instrument because they would no longer have any legal effect. But the argument is not convincing. The mere fact that some judicial reviews could potentially produce unintended consequences does nothing to argue in favour of a presumption. I was amused by the noble Lord, Lord Anderson, picking up that the noble Lord, Lord Wolfson, referred to a so-called quashing order. In the vast majority of cases, a court will not issue a quashing order in any event. In most cases, a court merely declares a statutory instrument to be unlawful and leaves it to the Government to amend the instrument in a way thought necessary by the Government. Indeed, even where human rights were violated between 2014 and 2020, the courts have quashed only four statutory instruments out of 14 successful challenges.

So we are not talking about very many cases and the points made by the noble Lord, Lord Anderson, and in support of his amendment, I think, are absolutely right. I shall listen with interest to the Minister’s response.

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

My Lords, if I may, I shall speak first to my Amendment 20, to create an exception to the ending of Cart JRs in cases where the refusal of permission to appeal the decision of the Upper Tribunal

“is likely to lead to the deportation of the applicant to a country where the applicant is likely to be tortured or subjected to inhuman or degrading treatment”.

In such cases, the Cart JR of that refusal is the last hope that an applicant has. If the refusal of permission is wrong in law, I argue that in such a case the decision to refuse permission should not be exempt from review.

These cases are not academic; the injustices are very serious. In the case of G and H against the Upper Tribunal and the Home Secretary in 2016, reported in EWHC 239, Mr Justice Walker considered the case of a Nigerian woman, G, who was a victim of FGM and sex trafficking, who also had a child, H.

The Home Secretary’s decision to deport G and H was appealed to the First-tier Tribunal. It was common ground that, before coming to the UK, G had been the victim of FGM and sex trafficking. The Upper Tribunal dismissed an application for permission to appeal the FTT’s decision. That decision was challenged on an application for JR and the High Court gave permission for a review and found that the decision refusing permission should be quashed, both on grounds of a failure of procedural fairness in the Upper Tribunal decision and that the Upper Tribunal’s refusal of permission to appeal

“involved a material misunderstanding or misapplication of the law.”


In a Scottish case last year of CM v Secretary of State for the Home Department—2021 Court of Session Inner House Cases 15—the Inner House of the Court of Session, on a judicial review application, overturned a decision of the Upper Tribunal refusing permission to appeal an order of the FTT. In that case, the petitioner was a Venezuelan who came to the UK with his wife and young son in 2017, seeking asylum after his friend had been shot in the face by members of the Venezuelan armed forces while they were protesting together. The petitioner had been a witness to the shooting and the security services who had shot his friend knew he had been a witness and had threatened him with dire consequences if he reported their involvement in the shooting. In overturning the refusal, the Court of Session held that the Upper Tribunal had misapplied the law and misunderstood the effect of the evidence.

We know that the vast majority of Cart JRs—92.4% from 2013 to 2020—involve immigration and asylum cases. We also know that a very high proportion of those involve deportation orders and that those orders are often to countries where the country guidance issued by the UK Visas and Immigration section of the Home Office indicates that there is a very high risk of maltreatment on return, not necessarily by the authorities—although often they may be the source of the danger or condone it—but often by traffickers or criminal elements within the countries concerned.

The Government’s arguments—and those of the noble Lord, Lord Faulks, and his committee—in favour of Clause 2 rest largely, first, on the high resources in money and judicial time said to be consumed by Cart JRs and, secondly, on their apparent low success rate. The noble and learned Lords, Lord Falconer and Lord Etherton, have answered conclusively both the points relating to money and judicial time.

As to success rates, it is true that there have only been nine High Court decisions in favour of the applicant on Cart JRs. However, there have been only 13 decisions made at hearings over the relevant period, so 70% of those that have gone to a hearing have succeeded. That puts into perspective the level of success or failure of these JRs. The high failure rate overall is, of course, a reflection of the very high bar that applicants must surmount as a result of the decision in Cart before they get permission to apply for JR.

That explains why, of the balance of nearly 6,000 applications that reach the permission stage, only 6% of 366 were granted permission. The other 94% were refused permission, almost all on the papers. Of the 366 granted permission, 336—approximately 92%—were closed without a hearing, and many of those will have been settled. We do not have the exact statistics on settlement, but I invite the Minister to write to me before Report setting out how many of the applications where permission has been granted have been settled, how many have involved deportation orders, and in how many cases such deportation orders have not been implemented as a result of a challenge being lodged.

I have also added my name to Amendment 19 in the name of the noble Lord, Lord Pannick, which would permit Cart JRs where the Upper Tribunal acts in reliance on a fundamental error of law. I agree with him that there is no justification for a distinction between a fundamental procedural defect and a fundamental error of law. The noble and learned Lord, Lord Thomas, put the same point forcefully when he explained how judges often ignore a fundamental point of law or at least lead themselves to the belief that it does not exist when the facts are strongly one way.

No doubt the Minister will argue that the use of “fundamental” is elastic and that there will be cases where it is open to argument whether there is an error of law which is fundamental. That may be, but judges are very used to considering and determining questions of degree, and it is not hard to leave this one to them. I draw support for that point from the preceding exception in the subsection where

“the Upper Tribunal is acting or has acted … in such a procedurally defective way as amounts to a fundamental breach of the principles of natural justice.”

If the judges are to determine what constitutes a fundamental breach of natural justice, they can properly be asked to consider what constitutes a fundamental error of law.

Before I turn to the question of whether Clause 2 should stand part of the Bill more generally, I mention that I support the amendments spoken to by the noble Lord, Lord Ponsonby, for the reasons he gave.

I oppose the clause altogether for two fundamental reasons. First, I am simply not persuaded that the reasons for removing the Cart supervisory jurisdiction, limited as it has been by the decision in Cart itself—as pointed out by the noble Baroness, Lady Jones—justify this step. The Government’s argument starts by accepting that the ending of the jurisdiction will cause injustice in some cases. That is not acceptable. I repeat that these are serious cases. What is more, they involve an important principle that decisions should be made lawfully. The limitations on the Cart jurisdiction fully take account of the fact that the Upper Tribunal is an independent specialist tribunal, often presided over by a High Court judge, and that its jurisdiction should not be lightly usurped by interference from the High Court. But usurpation should not be confused with supervision, and I believe the decision in Cart got the balance right. Even if the Government’s presentation of the figures on cost and success rates are exaggerated, they are presented in a one-sided way that does not give sufficient weight to the importance of the issues of principle at stake.

Secondly, as I indicated at Second Reading, I fear that the Government are using Clause 2 as a stalking horse for other ouster provisions in future; this point was taken up by the Minister when I made it. On any view, this is an ouster clause. I see that the Government are trying out new categorical and, they assume, bomb-proof—or at least judge-proof—drafting for this clause in subsections (2) and (3). I note that the Government’s press release indicated that they see these subsections as a template for ouster clauses in the future.

With a few limited exceptions, such as proceedings in Parliament, we on these Benches are against ouster clauses, because they hand power to the Executive to act contrary to law and outside the limits of what the law permits the Executive to do. In that way, they are inimical to the rule of law. In this Bill, I see the Government as having picked a soft target, because this concerns, they say, the ending of challenges to decisions of senior tribunals refusing permission to appeal. However, the drafting of subsections (2) and (3) could be used to frame other exemptions from challenge to Executive action, more unprincipled and more dangerous, in the future. This Bill would then be available to be relied upon as a precedent in the future for such ouster clauses. We should not underestimate the power of precedent. It is a useful tool for lawyers and drafters alike, but in the wrong hands and in the wrong place, precedent can be dangerous for principled lawmaking.

That is why I am attracted to Amendment 23 in the name of the noble and learned Lord, Lord Etherton, which proposes a compromise which does not risk future use as a template. The noble and learned Lord’s proposal that there should be no appeal from a decision of a supervisory court on a Cart JR, but that supervisory jurisdiction should be retained, has much to commend it, but I agree with the proviso proposed by the noble Lord, Lord Trevethin and Oaksey, and supported by the noble Lord, Lord Pannick. That formula would be far less amenable to misuse in later legislation to exempt government action or decision-making from judicial supervision. That protection is not afforded by the present Clause 2.

Judicial Review and Courts Bill

Lord Marks of Henley-on-Thames Excerpts

2nd reading
Monday 7th February 2022 Lords Chamber

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

My Lords, it is always a great pleasure to follow the noble and learned Lord, Lord Judge. He told me yesterday that he would speak briefly, but he says in a brief moment what most of us would take a great deal longer to say. It has been a fascinating debate, enlivened by the returning maiden speech of the noble Lord, Lord Hacking —at once entertaining and instructive—as well as by the powerful speeches of the many noble Lords who have spoken. However, I believe that the significance of this important Bill has been underplayed by the Government. The Minister described the provisions in Part 1 as just sensible tidying-up measures; additions to the judicial toolbox, as he put it. It is on those that I will concentrate.

It is not always easy to express concerns that reflect not only what a Bill actually says but, just as much, what it might lead to—its direction of travel. However, we on these Benches have always been concerned that the Government do not like JR, that they see it as an unwarranted interference with the Government’s right to govern, and that they resent the courts stepping in to constrain government action on grounds of unlawfulness. We saw that in the two Miller cases, over triggering Article 50 without parliamentary authority and the unlawful prorogation—the latter mentioned by the noble and learned Lord, Lord Garnier, and both objected to in round terms by the noble Lord, Lord Howard.

For us, the rule of law is paramount and, in response to the noble Lord, Lord Howard, that generally means the law as passed by Parliament. When the Administration exceed their powers and get it wrong, the citizen is entitled to have the error put right, and, most importantly, so are others who have in the past been affected by the same error. We saw considerable risk in the Conservative manifesto commitment to ensure

“that judicial review is available to protect the rights of individuals against an overbearing state, while ensuring that it is not abused to conduct politics by another means or to create needless delays.”

It was that commitment that led to the Faulks review, specifically tasked to consider what powers should or should not be justiciable. To the credit of the noble Lord, Lord Faulks, who has spoken eloquently today, he and his panel produced a careful and well-balanced report, which effectively gave judicial review a clean bill of health, but recommended that the court should have the power to suspend the operation of quashing orders and the ending of Cart JRs—hence Part 1 of this Bill.

The Clause 1 power should be limited to suspending the operation of quashing orders to enable the Government or other authority to put defective decisions right before a quashing order takes effect. The argument goes that it is unnecessary and sometimes unjust for the court to have to resort to the somewhat blunt instrument of a quashing order when the authority could, and should, instead be given the opportunity to put right its flawed decision first.

Along with the noble Lord, Lord Anderson of Ipswich, and the noble and learned Lord, Lord Hope of Craighead, we would not in principle oppose that possibility. There is nothing wrong in principle with the High Court, on judicial review and on finding that an authority has acted unlawfully, having the power to give that authority an opportunity to correct the unlawfulness rather than quashing the decision altogether. But the power of suspension in the Bill is more extensive than that, as the noble Lord, Lord Pannick, pointed out.

Clause 1 goes much further. It is entirely retrograde to propose that a quashing order may remove or limit the retrospective effect of a quashing, and it is not just an option, as my noble friend Lord Beith and others pointed out. New subsection (9) imposes an obligation on the court to suspend a quashing order and remove or limit its retrospective effect if the modified order offers what the Bill styles “adequate redress”. The court must then exercise its powers to suspend and remove or limit retrospective effect. Yes, there is a qualifier, in the words,

“unless it sees good reason not to do so”,

but that does not relieve the court of its proposed primary obligation—a point made by numbers of noble Lords. As the noble Baroness, Lady Whitaker, argued, the Bill fetters judicial discretion. I fear that the agnosticism of the noble and learned Lord, Lord Brown of Eaton-under-Heywood, on this wording is overoptimistic.

I see the danger that the effect of a JR may, in time, come to be limited to the immediate complainant, and that others affected by past unlawful action will not be able to bring cases arising out of their unlawful treatment. They will be too late to bring JR proceedings of their own, but it may become too easy for Governments to say: “It’s too late to change it now. It’s water under the bridge. There are too many people potentially affected. It would be too expensive to give them all relief”. Let us consider a small unlawful charge levied by a department which may affect a wide class of people, most of whom will have no idea of the unlawfulness. How far would the court, now or in the future, decline to make a quashing order retrospective in those circumstances—a point persuasively made by my noble friend Lord Thomas of Gresford? The concern is that this legislation could be—or could become—a dangerous shield for unlawful action. The noble Baroness, Lady Chakrabarti, expressed similar concerns about the future.

Turning to Clause 2, the proposal to do away with Cart JRs, the Government’s argument is that a JR by a divisional court of the High Court to set aside a decision of the Upper Tribunal, generally also presided over by a High Court judge, is irrational, unnecessary and also wasteful of resources, because it is, or should be, a last resort and rarely ever used successfully—a success rate of 0.22% was originally quoted, now revised to 3%-plus.

As against the Government’s argument, the overwhelming majority of Cart JRs—some 92%—are immigration and asylum cases. The stakes are often very high: deportation is frequently involved, often to very hostile countries where there is a serious risk of torture or maltreatment, as mentioned by the noble Lord, Lord Hacking. There is no exception in the Bill for such cases, and the cases that give rise to Cart JRs are often paradigms of circumstances that affect hundreds of other cases, so a low number of successful JRs may have a disproportionately broad effect.

The low success rate of Cart JRs is unsurprising, but the overwhelming majority of cases are weeded out as hopeless at the permission stage on the papers. Large numbers of others are either settled by the Government or reheard by the Upper Tribunal by agreement. The proposal of the noble and learned Lord, Lord Etherton, to limit the process deserves serious consideration, but with this provision and its dangers, as so often, the sting is in the drafting. My noble friend Lord Thomas mentioned new subsection (2), which states:

“The decision is final, and not liable to be questioned or set aside in any other court.”


New subsection (3) says:

“In particular … the Upper Tribunal is not to be regarded as having exceeded its powers by reason of any error made in reaching the decision”—


any error. The exceptions in new subsection (4) cover a tribunal acting “in bad faith” or

“in such a procedurally defective way as amounts to a fundamental breach of … natural justice.”

But what is fundamental in this context, and does the exception cover a tribunal acting in a way which is tainted by apparent bias—that is, where although not actually biased, a fair-minded and informed observer might well believe that the decision was influenced by bias?

I believe this is an ouster clause, pure and simple—the effect of which, bluntly, is to put government above the law. In that, I disagree with the noble Lord, Lord Sandhurst. I say that in particular because of the precedent it sets. I suggest to the noble Baroness, Lady Jones of Moulsecoomb, who made some very powerful points, that we should avoid complacency about the puniness of the Bill.

In a Cart JR, the impugned decision is that of an Upper Tribunal chairman, often a High Court judge, and the abolition of review of such a decision may be of restricted effect. But the danger is far wider. As my noble friend Lord Beith pointed out, the Government’s press release stated, chillingly, that

“the legal text that removes the Cart judgment will serve as a framework that can be replicated in other legislation.”

In other words, the Government intend to use the wording in subsections (2) and (3) as a template to outlaw judicial review in other legislation when they do not want the courts to interfere with their legislative purpose. That is a threat of a direct and permanent attack on the rule of law. It was not foreshadowed, still less sanctioned, by the report of the Faulks review. It should be a cause of grave concern to this House.

I have spent some time on JR, and I will not spend time considering the other parts of the Bill. We broadly support the modernisation proposals in it. We are determined to see that the move to greater use of online procedures maintains protection of those who are digitally excluded for whatever reason, be that lack of equipment, of broadband or of digital skills. We appreciate the Minister’s assurances in that regard given today, and to me in a meeting the other day, for which I was grateful.

My noble friend Lord Beith has voiced concern about the proposals for coroners’ proceedings. We have other concerns about a number of other details in the Bill, but I look forward to coming to those in Committee.

Police, Crime, Sentencing and Courts Bill

Lord Marks of Henley-on-Thames Excerpts

3rd reading
Tuesday 25th January 2022 Lords Chamber

[Lord Cashman (Lab)]

My Lords, as other noble Lords have said, the Bill has been much improved. I pay particular thanks to the noble Baroness, Lady Williams of Trafford, for working over six years with me and my friend, the noble Lord, Lord Lexden, in widening the pardons and the disregards for historical homosexual offences, including in the Armed Forces. It is truly historic when a state apologises for what it has done and reaches back over 500 years. It is the end of a six-year campaign that the noble Baroness, Lady Williams, has been an active part of. I cannot thank her and the Bill team enough, and indeed colleagues and the team in the Armed Forces. I also put on record our thanks to Professor Paul Johnson, the country’s leading expert on this. Finally, it might have been a six-year campaign, but some of us have campaigned for more than 33 years, not for ourselves but so that injustices can at last be put right.

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

My Lords, I will try not to repeat too much of what my noble friend Lord Paddick said. He pointed out—it is not a new point—that this has been a long and difficult Bill. I am bound to say that we must all hope that such a mammoth Bill, with such a wide range of diverse topics shoehorned into a single piece of legislation, will never be put before Parliament again. It has taken too many days, with too little time for the content involved and too much pressure, not just on MPs and Peers but on parliamentary staff, officials and those many organisations that seek to brief us about legislation. For us here, there have been too many early starts and too many late nights. It has been a very difficult experience.

None the less, I completely agree that the House has done its job well. We are very grateful to the ministerial team and their officials. On justice issues, I am, of course, particularly grateful to the noble Lord, Lord Wolfson, for the care, courtesy, approachability and engagement, not to say humour, that he has shown in our discussions. We have had some significant successes, from our point of view, on breastfeeding voyeurism and common assault in the context of domestic abuse. We have had some limited progress—my goodness, it is limited—on IPPs. That is clearly not the end of the story.

On Home Office issues, we are grateful to the noble Baroness, Lady Williams, for her care and the comprehensively courteous way she has dealt with the House, although I am bound to say that I share my noble friend Lord Paddick’s view that we have felt that she has not been able, on behalf of the Government, to make the concessions she perhaps might have liked to have made in some areas.

These Ministers illustrate the pressure there has been on all of us. In this context, I mention the tireless and efficient work of my noble friend Lord Paddick, who has borne the brunt of days and weeks of debate over many hours and days of sitting, and there have been many more days of preparation.

Before the Bill finally passes, we on these Benches regard it as largely profoundly regressive. On human rights issues, the House must expect Liberal Democrats and others in the Opposition to continue robustly to defend individual liberty in a way that we do not believe the Bill does. On justice, we will keep the pressure up for a humane sentencing system dedicated to rehabilitation and reform, combined with increasing use of community sentences. We will continue to work on women’s justice, where it seems that we are accepting very slow progress when we should be looking for dramatic improvement.

[Baroness Jones of Moulsecoomb (GP)]

I realise that I ought to be gracious, but I have hated almost every minute we spent on this Bill over the days, weeks and months. I deeply regret that it will pass. I wish it had not been presented in the first place and I wish we had not been forced to let it through, but it has been historic. One of the things that has been historic is the united opposition to some of its worst parts. That is something the House can be proud of. I look forward to many more days, weeks and months of arguing with the noble Baroness and the noble Lord on the Benches opposite.

Police, Crime, Sentencing and Courts Bill

Lord Marks of Henley-on-Thames Excerpts

Report stage
Wednesday 12th January 2022 Lords Chamber

Moved by

[Lord Marks of Henley-on-Thames]

104: After Clause 172, insert the following new Clause—
“Royal Commission on criminal sentencing
(1) Within six months of the passing of this Act, the Secretary of State must establish a Royal Commission to carry out a full review of criminal sentencing.(2) In particular the Commission must make recommendations on—(a) how to reduce the prison population;(b) how to reduce violence and overcrowding in prisons;(c) addressing the particular needs of young people in custody;(d) addressing the particular needs of women in custody;(e) how to ensure that sentencing for offences is focussed upon reform and rehabilitation of offenders and reducing reoffending;(f) how to reduce the over-representation of people from Black, Asian and minority ethnic backgrounds in prison;(g) the imposition and management of non-custodial sentences; and(h) the abolition of some mandatory or minimum prison sentences.”Member’s explanatory statement
This amendment would establish a Royal Commission to review criminal sentencing.

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

My Lords, this amendment seeks the establishment of a royal commission to carry out a full review of criminal sentencing. The urgent need for such a review arises in particular because this Bill continues and worsens an alarming trend towards sending offenders to prison for ever-longer periods. These Benches have consistently argued that we need to reduce the prison population, not increase it. This country imprisons more people than any other in western Europe, without any evidence that there is more criminality here than elsewhere or that prison works.

As has been said repeatedly in our debates, we have seen our prison estate fall into disgraceful disrepair. Gross overcrowding is standard and, although the Government are committed to providing more new prison places, the increase in prisoner numbers to be expected from longer prison sentences threatens to use up all that extra space. In any case, the new space will not become available for some time. Meanwhile, the overcrowding and squalor get worse.

Understaffing means that prisoners are stuck in their overcrowded cells for very long periods, bored, fractious and angry without relief. Even though recruitment levels aim to increase staffing, it is by nowhere near enough to do more than relieve a little of the pressure, without improving the overall standards of welfare in our prisons. All this breeds violence, of which we have seen appalling levels over recent years. Lack of opportunities for education, work and recreation, attributable at least in part to the lack of staff to deliver them, has made all this worse, so there has been little progress on rehabilitation.

Against this background, the Bill will introduce minimum sentences, longer sentences and later release dates. All this will fuel sentence inflation because, unsurprisingly, sentences will seek to ensure some kind of fairness in comparisons between them across the board, causing them to rise generally. The Bill will have a far more far-reaching effect on sentences than even its draconian provisions suggest. Yet, in our consideration of the Bill to date, we have been unable to deflect the Government from this unswerving and one-sided course. There is little in the Bill about community sentences, rehabilitation, the role of the probation services, or keeping people out of the criminal justice system or altogether out of custody. That is why we need an overall review of sentencing: to consider the topics mentioned in proposed new subsection (2) in the amendment.

So far, I have concentrated on reducing the prison population and reducing violence and overcrowding in prisons, but the other topics crying out for review include: addressing the needs of young people and women in custody; reducing the effect of what is undoubtedly an in-built discrimination against people of minority-ethnic backgrounds within the criminal justice system; keeping people generally out of custody where possible; and refocusing custodial sentences on rehabilitation and reform, not just keeping prisoners locked away from the public to address the perceived threat they present. This is not least because, in fact, the threat they present on release is exacerbated by the appalling conditions in which we incarcerate them. In short, we need to redress the manifest and politically driven imbalance inherent in this legislation.

The Government’s position and their answer to our criticisms were expressed in Committee. I am grateful to the Minister for meeting me last Friday and for his comprehensive email to me last weekend, setting out the Government’s perspective on this and other matters. The Government maintain that their intention in the Bill is to introduce a range of measures aimed at the most serious and dangerous offenders. However, they maintain that this is offset by an intention to focus, at the other end of the spectrum, on community sentencing measures aimed at diverting low-level offenders away from crime, addressing issues of mental health, drug and alcohol abuse, and making more use of electronic monitoring or problem-solving approaches.

--- Later in debate ---

[Baroness Scott of Bybrook (Con)]

I am sorry, but the Minister had already sat down. We can only take a question if it is very short.

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

My Lords, in those circumstances I think that it is for me to respond. I do not know whether the Minister wishes to respond to any question—although there has not really been a question.

[Lord Faulks (Non-Afl)]

My Lords, I believe this is in order, because I did not suggest for a moment that it was for the Government to send people to prison or to make up their mind. Ultimately, the policy that is reflected in this amendment is something that a Government would have to decide upon.

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

My Lords, at the end of this interesting debate, I say first that I am very grateful to all who have spoken and to the noble Lord the Minister for his careful response. Two things strike me: first, this amendment enjoys overwhelming support and, secondly, there has been a distinct theme to the contributions to the debate from noble Lords from all around the House, expressed perhaps by the noble and learned Lord, Lord Thomas of Cwmgiedd, when he talked about a comprehensive and strategic approach. Others have talked about a holistic approach.

The aim has been to address the failures of the criminal sentencing system, as part of the criminal justice system, identified by, among others, the noble Lords, Lord Cormack and Lord Ponsonby. It is a rethink that is required—to use the expression of the noble Baroness, Lady Jones. Another important matter was identified by two dissimilar figures in general approach. The noble Lord, Lord Macdonald of River Glaven, talked about taking the political sting out of issues arising on sentencing. This was put in a similar way by the noble Baroness, Lady Fox of Buckley. I share the slight surprise of the noble Lord, Lord Cormack, at being told that she was a bleeding-heart liberal, but I take the point.

I do not intend the royal commission that we have described in this amendment to prejudge the issues. What we are calling for overwhelmingly is an evidence-based approach to sentencing, rather than a politically based approach or one that simply responds to public opinion or the perception of public opinion. I completely agree with the noble Lord, Lord Faulks, that the question is not one where the Government are excluded from making decisions. The point about the royal commission is, as he put it, that the royal commission recommends and the Government then act on those recommendations. What distinguishes a royal commission, I suggest, is that its recommendations are widely seen by the public, the Government and the Opposition as authoritative. It is that quality of being authoritative that I believe gives the royal commission its weight.

It is a question not of outsourcing the decision-making process but of setting up a process to advise and direct the future. This Bill does none of that. It contains sentencing in its Short Title, yet it is piecemeal and bitty and lacks a philosophy. The Minister set out a philosophy that is two-sided, but only one of those sides is reflected in the Bill. We believe that a royal commission would address that, which is why I would like to see this amendment agreed. That said, however, what the noble Lord has said about the Royal Commission on Criminal Justice as a whole is of some encouragement, because I take criminal justice to include criminal sentencing. I hope I see him nod in agreement with that. I am waiting—he is not going to commit to the terms of reference, but it seems to me that that offers some hope for the future.

I am concerned about the use of the word “paused”. It should not be paused; it is urgent. If the Government take anything from this debate, I hope they will take the feeling around the House that this is an urgent matter requiring urgent attention and will revisit it. That said, and in the confidence that they will approach it in that way and that the royal commission will proceed, I beg leave to withdraw the amendment.

Amendment 104 withdrawn.

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[Lord Paddick (LD)]

My Lords, my noble friend Lord Marks of Henley-on-Thames is leading for us on this group, but I want to speak on Amendment 107C. I was commissioned by the then Commissioner of the Metropolitan Police, now the noble Lord, Lord Blair of Boughton, to conduct a review of rape investigation in the Metropolitan Police, working together with Professor Betsy Stanko OBE.

At that time, the Metropolitan Police had specialist rape investigation units. Their performance was mixed, but they were considerably better than the experiment in community policing that was being conducted in one part of London. Small teams of detectives were allocated to each part of the borough to investigate all crime there, including rape and serious sexual offences. In addition to being overwhelmed by large numbers of more minor criminal investigations, they lacked the experience and expertise of officers who specialise in rape and other sexual offences.

I know from practical experience on the ground within the police service that specialist rape and serious sexual offences units provide much better outcomes for the victims and survivors of these types of crime. I doubt that legislation such as this amendment can override the operational independence of chief constables, but the principle is right and the Home Secretary, the College of Policing Limited—we will come to that in an upcoming group—HMICFRS and police and crime commissioners should all exert pressure on chief constables to ensure that they are established.

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

My Lords, we support all the amendments in this group. First, I will consider Amendment 104B. As explained by the noble Lord, Lord Ponsonby, this amendment would authorise a special measures direction to enable videorecording of cross-examination of complainants in criminal proceedings for sexual offences or modern slavery offences, in order to enable their evidence to be given remotely.

This is a sensible measure for the protection of witnesses not only from alleged perpetrators but from the trauma of giving evidence in these difficult and painful cases. We have heard many times in debates on this Bill and on the Domestic Abuse Act how painful an ordeal giving evidence is likely to be. In the absence of a special measures direction, complainants who are witnesses have to give evidence before strangers, often in the presence of their assailants or exploiters and often under hostile questioning, to relive some of the most painful experiences of their lives. Nor should we forget how, in these cases, recording the evidence of complainants might well be the very best way of securing truthful and accurate evidence so that courts might be better placed to do justice than if they had to rely on the live oral evidence of very frightened and intimidated witnesses.

We also support Amendment 104C in the names of the noble Lord, Lord Ponsonby, and the noble Baroness, Lady Jones of Moulsecoomb, because we have heard that Section 41 applications, if granted, permit the most intrusive and personal questioning of complainants about their previous sexual history. Such questioning might sometimes legitimately be regarded by a court as necessary in the interests of justice, but even when that is the case it nevertheless involves a gross invasion of the privacy, the sense of decency and the perceived rights of the complainant. The noble Lord and the noble Baroness are entirely right to seek the protections for the complainant that the amendment involves: the right to take part in the application or not at her choice, because it is generally a woman’s choice; to be legally represented; and to have a right of appeal against a direction admitting questioning or evidence of previous sexual conduct.

These Section 41 applications and the fear of the questioning they involve have been a reason for the large numbers of sexual offences going unreported or unprosecuted, as complainants are not prepared to go through the hell of facing such cross-examination and they pull out of cases for fear of it. They should be entitled to significant legal protection, just as if they were parties, when such an important issue for their personal integrity is considered by the courts. The protections proposed in the amendment are fully justified.

Finally, we support Amendment 107C on rape and serious sexual offences units—the so-called RASSO units—for the reasons given by the noble Lord, Lord Ponsonby, on behalf of the noble Lord, Lord Coaker, and by my noble friend Lord Paddick. I will try not to repeat the points he made.

Historically, there has been a problem, which we should not seek to deny, in ensuring that police forces treat rape and serious sexual assault with the importance these offences merit. It might be that the situation has improved, and I have no doubt it has. In most forces, victims are treated sympathetically, with tact and care, and derive support from the officers handling their case. However, the public, and women in particular, still lack confidence in the treatment they are likely to and do receive from the police if they are victims of sexual assault. This is one of the factors again driving the low rate of reporting and prosecutions, and the high rate of the withdrawal of complaints. The noble Lord, Lord Ponsonby, gave us the figures, with which we have become familiar.

Specialist units are likely to concentrate expertise and experience of dealing with rape and serious sexual offences in the hands of those who really know about them. This amendment concentrates on the specialist training of the staff in such units. That is critical. Such units have the potential to improve the evidence-gathering process and ultimately, one would hope, the reporting and the prosecutions of offences and the conviction rates, which, as we know, are appallingly low.

All the amendments in this group identify serious issues and propose practical, worthwhile and achievable solutions. In respect of each of them, I suggest it would be helpful for the Government simply to accept them or to come back with alternatives to similar effect at Third Reading.

[Lord Wolfson of Tredegar (Con)]

My Lords, I recognise that behind all these amendments is a dedication to improving the way in which the criminal justice system handles sexual offences cases and supports victims. On both those points, that dedication is shared by the Government. It is absolutely right that we do as much as we can to support all victims, including those of sexual offences, and help bring to justice those guilty of those very serious crimes. I know that there is no disagreement between us on the need to continue to improve the victims’ experience of the criminal justice system, and of the important role that special measures, such as Section 28, can play in supporting victims and witnesses to provide their best evidence.

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

My Lords, the effect of Amendment 104D would be to increase the maximum sentence for criminal damage with intent to destroy life-saving equipment from 10 years’ imprisonment to life imprisonment. I listened very carefully to the noble Baroness, Lady Chapman of Darlington, and her harrowing accounts of the vandalising of life-saving equipment and the damage and consequences of that. I also listened to the noble Earl, Lord Attlee, and the noble Baroness, Lady Jones of Moulsecoomb, and it is very clearly necessary that the Government make it clear how they will respond to the issue of vandalising life-saving equipment.

The behaviour comprising the offence is extremely serious because it carries the risk that life will be endangered by the damage caused. However, if I may adopt a slightly lawyerly approach to the amendment, I question whether it is necessary. The scheme of the Criminal Damage Act, as amended, is that under Section 4 an offence of criminal damage generally carries a maximum sentence of 10 years. However, Section 1(2)(b) of that legislation states that where the offence is arson or, as stated, is committed by a person

“intending by the destruction or damage to endanger the life of another or being reckless as to whether the life of another would be thereby endangered”,

the maximum sentence is increased to life imprisonment. That is the combined effect of that subsection and subsection (4).

I understand that the intention of the noble Baroness in moving the amendment on behalf of the noble Lord, Lord Ponsonby, would be to cover criminal damage to life-saving equipment with the intention of endangering life. However, given that by Section 1(2)(b) the offence is committed where a person commits criminal damage recklessly as well as intentionally in relation to endangering life—which means where the offender deliberately takes a risk that the damage he causes may endanger the life of another—I cannot at the moment see that such behaviour does not cover intentionally destroying or damaging life-saving equipment without lawful excuse. Nor can I at the moment see how, in the absence of such an intention or recklessness as to life being endangered, a maximum sentence in excess of 10 years would be justified on normal principles.

Consequently, I await hearing from the Minister with interest. He may or may not accept the slightly lawyerly approach that I put, but I hope that he will give some reassurance about how the Government propose to respond to the problem of vandalising life-saving equipment.

[Lord Wolfson of Tredegar (Con)]

My Lords, this amendment was debated just a few weeks ago when the Government set out why we believed it was unnecessary, given the scope of the Criminal Damage Act 1971. I will come back in a moment to what the noble Lord, Lord Marks, called a lawyerly point.

However, it is right first to remind ourselves, as the noble Baroness, Lady Chapman, did, of the very real consequences of this sort of behaviour. On the death of Sam Haycock in Ulley reservoir, can one begin to imagine what his parents Simon and Gaynor went through and are, no doubt, continuing to go through? One only has to say it to try to grasp to enormity of that. The noble Lord, Lord Marks, used the word “harrowing”. That is spot on. This relates to the appalling behaviour of the people vandalise equipment, which results in the requirement of having to make a telephone call to get hold of a life ring, defibrillator or whatever life-saving equipment it happens to be.

I turn to the legal position, as I am afraid we have to, given that we are considering an amendment to a Bill. The noble Lord, Lord Marks, is correct. I explained that it is already an offence intentionally or recklessly to damage or destroy property, including life-saving equipment. Section 1(2) of the Criminal Damage Act 1971 makes a specific provision for an aggravated offence of criminal damage where the defendant intends to endanger life or is reckless about such endangerment. To that extent, it goes beyond the scope of the amendment, which relates only to intention and does not include recklessness. As the noble Lord said, that offence already attracts the possibility of life imprisonment.

Of course, I understand that part of the reason why it is proposed to add a specific offence is to put beyond doubt that the law will punish those who damage and destroy vital life-saving equipment, whether they intend to do so or are reckless as to the risk. The concern was raised in Committee that it is not well known that causing damage to life-saving equipment means that Section 1(2) of the Criminal Damage Act 1971 could be in play and therefore carry a potential life sentence. However, if the concern is that that is not well known, I would question whether it would make a real difference if this Bill were amended essentially to repeat that point of law. The ordinary citizen, particularly the people who carry out this appalling behaviour, is still as unlikely to understand or perhaps care about the consequences and penalties associated with the crime. Therefore, I suggest that the ultimate problem here is not a question of a gap in legislation or a lacuna in the criminal law but people knowing what the law is and bringing home to people the likely criminal consequences of their actions.

In response to my noble friend Lord Attlee, as I suggested in Committee, if the law is not enough of a deterrent, we must focus on those responsible for water safety, health and safety, and law enforcement to come together to find out what is not working and identify workable solutions that might include sign- posting more clearly on the equipment the consequences of damaging that equipment. That might be a way forward. However, I share with the noble Baroness, Lady Chapmen, that these are abhorrent acts of criminal damage that should be prosecuted. The sentence must fit the crime. There is a potential maximum sentence of life imprisonment.

The noble Baroness, Lady Jones, put the question: why are the Government making destroying statues a criminal offence if destroying life-saving equipment is not a criminal offence? The problem with that question is that destroying life-saving equipment is a criminal offence. So far as statues are concerned, the next instalment is due on Monday, so I will leave the matter for then.

However, so far as today is concerned, while sharing very much the sympathies behind the amendment, I invite the noble Baroness to withdraw it.

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[Baroness Kennedy of Cradley (Non-Afl)]

My Lords, I speak briefly in support of Amendments 104E and 104F, in the name of my noble friend Lord Ponsonby of Shulbrede. In doing so, I declare my interest as director of Generation Rent.

Predators online attempt to coerce men and women to exchange sex for a home by exploiting their financial vulnerabilities. They have used the economic effects of the pandemic as a marketing technique. This is already a crime, and it is not a new crime, but there has only ever been one charge for this offence, and that was in January last year. However, back in 2016, Shelter found that 8% of women had been offered a sexual arrangement. Two years later, its polling estimated that 250,000 women had been asked for sexual favours in exchange for free or discounted rent, and its more recent research showed that 30,000 women in the UK were propositioned with such an arrangement between the start of the pandemic in March 2020 and January 2021.

This is a crime that goes on, openly and explicitly, through adverts on online platforms. Despite the adverts being clear in their intention, they go unchecked, are placed without consequence and are largely ignored by law enforcement and the online platform providers. The fact that there has only ever been one charge for this crime shows how inadequate the law and CPS guidance are in this area.

The victims of this exploitation have been failed. As my noble friend said, for a victim to get justice, they need to be defined as a prostitute for a criminal case to progress, which is a huge deterrent that has to be changed. The online platforms—that is what I believe is meant by “publisher”—allow this crime to be facilitated, and they must have action taken against them. That is why I very much support the amendments tabled by my noble friend.

In closing, I pay tribute to the honourable Member for Hove in the other place for his campaigning on this issue, and the many journalists who have kept this issue on the agenda, including the team at ITV, whose research I understand helped to lead to the one charge for this crime that there has ever been. No one should ever be forced by coercion or circumstance to exchange sex for her home. There is a housing emergency in this country. It continues to hit new lows—so low that sexual predators can deliberately take advantage of people’s desperation to find a home. For me, Amendments 104E and 104F are an opportunity to protect some of the country’s most vulnerable renters.

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

My Lords, I shall be brief because we have a lot to get through. I should have preferred Amendments 140E and 104F, the sex-for-rent amendments and the facilitating amendments, to be rather more tightly drawn. I note that the points I made in Committee were taken by the noble Earl, Lord Attlee. However, I have been persuaded by re-reading the speech made in Committee by the noble Baroness, Lady Kennedy of Cradley, and what she said today, with her extensive experience as director of Generation Rent—that there is a serious need for criminal legislation to stop what is a particularly nasty form of predatory behaviour. I also took the points made by the noble Lord, Lord Pannick, on the interpretation of Amendment 140E, implicitly supported by the noble and learned Lord, Lord Hope, so we will support those amendments. We will also of course support the amendment calling for a review of the criminal law relating to exposure offences and spiking offences, for the reasons given by the noble Lord, Lord Ponsonby, and which we supported in Committee.

[The Minister of State, Home Office (Baroness Williams of Trafford) (Con)]

My Lords, as the noble Lord, Lord Ponsonby, explained, these amendments relate to three matters we debated in Committee: namely, whether there should be a bespoke offence to tackle so-called sex for rent and whether the police, prosecutors and courts are doing enough to tackle offences relating to spiking and exposure. If I may, I shall take each issue in turn.

Amendments 104E and 104F are intended to address the so-called sex-for-rent issue, whereby exploitative landlords, and others, require sexual relations in return for housing or accommodation. This is an abhorrent phenomenon, which takes advantage of very vulnerable people, as noble Lords have said, and it has no place in our society.

Under the Sexual Offences Act 2003, there are existing offences which may be used to prosecute this practice, including the Section 52 offence of causing or inciting prostitution for gain and the Section 53 offence of controlling prostitution for gain. Both offences carry a maximum penalty of seven years’ imprisonment. They can capture instances of sex for rent, depending on the circumstances of the individual case.

In 2019, the Crown Prosecution Service amended its guidance on prostitution and exploitation of prostitution to include specific reference to the availability of charges for offences under Sections 52 and 53, where there is evidence to support the existence of sex-for-rent arrangements. In January of last year, the CPS authorised the first charge for sex-for-rent allegations under Section 52. The individual against whom these allegations were made has pleaded guilty to two counts of inciting prostitution for gain. To better protect tenants from rogue landlords convicted of certain criminal offences, banning orders were introduced through the Housing and Planning Act 2016. A banning order prohibits named individuals engaging in letting and property management work. The Government have been clear that housing associations and local authorities should use these orders if needed. Action will be taken against landlords who exploit vulnerable people. This behaviour simply is not tolerated.

I thought I might say something about a victim having to identify as a prostitute for the Section 52 and 53 offences to be used. I must stress that anyone making a report to the police would benefit from the anonymity provisions in the Sexual Offences (Amendment) Act 1992. The Section 52 offence applies when an identified victim has been caused to engage in prostitution or incited to do so, whether the prostitution takes place or not. The Section 53 offence applies whether the victim has, on one or more occasions, provided sexual services to another person in return for financial gain.

Moving on to Amendment 104F, I definitely agree with the noble Lord, Lord Pannick, about the woolly terminology of “arranging an offence”, and the point made by the noble and learned Lord, Lord Hope of Craighead, about “publisher”, but on the amendment itself, the forthcoming online safety Bill will require companies to put in place systems and processes to remove certain types of illegal content as soon as they become aware of it.

I move on now to spiking, the subject of Amendment 114A. This would require the Secretary of State to review

“the prevalence of, and the response of the criminal justice system to, the offence of administering a substance with intent under section 61 of the Sexual Offences Act 2003”.

I share the concerns expressed by the noble Lord about this offence, particularly the recently reported phenomenon of spiking by needles. This is understandably causing considerable anxiety among young people, especially in our university towns and cities, but there is no need to create a statutory obligation on the Government to review the operation of Section 61 as this issue is already very much on the Government’s radar. Indeed, a statutory requirement setting out a specific agenda risks hindering the Government’s ability to respond flexibly to the problem.

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[Lord Hogan-Howe (CB)]

My Lords, I support the noble Baroness, Lady Coussins, as I have from the beginning, as a layman who does not understand an awful lot about interpreting standards but does understand the importance of evidential matters going through tribunals needing to be of a high standard.

What has confused me from the beginning—as I think the noble and learned Lord, Lord Hope, suggested —is that the Government’s response is that they do not prefer the standard that the noble Baroness, Lady Coussins, offers and that they therefore want to rely on the standards that are in the contract. However, it is not at all clear what that standard is, because the easiest response would be that the standard in the contract is far better than the standard she offers, but no one is saying that. There is clearly a differential standard for different acts; the Minister mentioned something of the order of a thousand different scenarios leading to different qualities of interpretation, but I am not sure that that would lead to a thousand different standards.

It is clear from the Metropolitan Police’s experience that, broadly, there is a split between face-to-face contact and other types, but the real split is whether the material interpreted is going to be evidential. Often, a person who is arrested needs to have a conversation with the charging sergeant about who they are and whether they need medical attention—all the common tactical things that people need to talk about—or the police may need to talk with a victim at the scene of a crime. That can be achieved by telephone. That immediate conversation has some value, of course, but not in the context of an evidential test. When it comes to an interview, a prosecution decision and, obviously, attendance in court, it is vital that that standard is of the highest level.

Therefore, I support the amendment of the noble Baroness, Lady Coussins, but if it cannot be achieved in this Bill, I think the proposal for an independent inquiry is a reasonable next step.

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

My Lords, I spoke at length on this amendment in Committee and attended the meeting with the noble Lord, Lord Pannick, the noble Baroness, Lady Coussins, and the right reverend Prelate the Bishop of Leeds, who also signed the amendment. It has led to a full and thorough response from the Minister, and we expect him to announce a full and independent review. If that is right, that is extremely welcome news. I join the noble Baroness, Lady Coussins, in saying that it would be extremely helpful to have an indication of the timescale of such a review—if that is to be announced—because of the imminence of the renewal of the contracts. It would also be extremely helpful for us to have an indication of how the independence of the review will be assured, because independence is a relatively flexible word, and it is an extremely important part of this.

For all the reasons given by the noble Lord, Lord Hogan-Howe, the standard of interpretation is incredibly important to the maintenance of justice where there are litigants, parties or witnesses for whom English is not their first language. We talked about the importance of having the undisguised and unchanged evidence of the witness before the court in an evidential case without the interpreter’s view of matters intervening. That calls for the very highest standards of quality and for any review to be completely independent.

[Lord Berkeley of Knighton (CB)]

My Lords, I too spoke in Committee, and I have been copied in on the very helpful response from the noble Lord, Lord Wolfson. I felt he was trying to embrace this important subject. To extend the point made by the noble and learned Lord, Lord Hope, a little, one has to understand that when people are in court, it is not just a question of interpretation; quite often, it is case of compassion and being able to communicate with a witness or a defendant. If there is a language barrier, those are the first things that tend to go out of the window.

Just to lower the conversation slightly, I mentioned in Committee an occasion on which the word “cow” was confused with the word “car”—a cow was observed travelling at 90 miles an hour.

I think it would be good to finish my brief contribution to this debate by repeating the explanatory statement of the noble Baroness:

“This amendment would establish minimum standards for qualifications and experience for interpreters in courts and tribunals, along the lines of the Police Approved Interpreters Scheme.”


I find it very hard to see why the Government would not want to embrace that.

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

My Lords, we welcome the Government’s decision to accept the force of the amendment pursued by the noble Baroness, Lady Hayman, and supported by the noble Lord, Lord Pannick, to outlaw this unpleasant practice and introduce this amendment.

Over recent years, we have achieved considerable progress in the area of taking, procuring or disclosing what I would generically call voyeuristic images. Revenge porn was outlawed under the Criminal Justice and Courts Act 2015, and this was finally extended to threats to disclose intimate images in the Domestic Abuse Act last year. The unpleasant practice of upskirting was outlawed by the Voyeurism (Offences) Act in 2019.

Recording images of breastfeeding mothers is another example of voyeurism. It is easy to forget, certainly when the practice is made light of, that this is demeaning, embarrassing and humiliating for a breastfeeding mother. It is also frightening, because the mother is in a uniquely vulnerable position. A mother who is breastfeeding, if she is being photographed, is left in the entirely invidious position that she can either stop, in which case she has to close or adjust her clothing, giving more subjects to the photographer and depriving her infant of food, or go on and continue the agony of being photographed. That is a horrible position for a mother to be in.

We agree that this is a serious issue. These amendments are directed at an arrogant and frankly misogynistic practice. It is right to criminalise it for the protection of the women affected and we fully support the two amendments.

[Baroness Chapman of Darlington (Lab)]

We wholeheartedly welcome this, and we welcome how the Minister can laugh at himself and bring good humour to this. I think it is okay to have a sense of humour about this issue; what matters is that we are finally dealing with it. This really is important. Encouragingly, breastfeeding rates are improving in this country; over 80% of women start to breastfeed their baby when they are born, but the rates fall quite dramatically, with around 25% continuing at six weeks. There are lots of reasons for that, but one of them is about feeling uncomfortable breastfeeding in public. We should be doing everything we can to normalise breastfeeding and make breastfeeding mothers feel welcome and supported, wherever and however they choose to feed their babies.

There are two amendments in this grouping: one is the government amendment, which we completely support, and there is also the issue about needing to show intent for sexual gratification or humiliation. It was thoughtful of the Government to include that word, and I just want assurance that the perception of humiliation that ought to matter is that of the woman breastfeeding and being photographed. That ought to be sufficient to prove that there was an intent to humiliate. I would welcome some clarification from the Minister on that point.

We warmly welcome this measure. Breastfeeding women will be very pleased that the Government have come to a place where they see things in the way that they do.

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[Lord Russell of Liverpool (CB)]

My Lords, I thank the Minister for what he has just said and for the actions he has taken. I thank his colleague in the other place, Victoria Atkins, for having given the original commitment, and I thank the noble and learned Lord, Lord Stewart, who responded in a very positive way to the amendment from the noble Baroness, Lady Newlove, in Committee.

I also particularly thank Yvette Cooper in another place because the beginning of this was when one of her constituents came to her who had suffered an assault and had been timed out. That was really the first time that Yvette Cooper had come across this; it was one of those problems that was hidden in plain sight. It took a series of freedom of information requests to try to get the necessary information to understand the nature of the problem and, indeed, the scale of it. If this was not a government amendment and we were still trying to persuade the Government, I would have stood up to say, “I do not rise to speak briefly, because I am going to make 12,982 different points”, as that is the number of cases of alleged common assault that were timed out within a five-year period. That was revealed by the freedom of information requests, albeit only 70% of the police forces that received the FoI requests actually bothered to respond, so that number is probably an underestimate.

I am extremely grateful for this. The noble Baroness, Lady Newlove, would have been here, but she was sitting at the back earlier, doing her impression of the young noble Lord, Lord Young of Graffham, in his usual place, with a large cushion behind her, because her back has been giving her a lot of problems, so she has gone back to her hotel to rest it. On her behalf, I pay tribute to the work that she has done and thank her for having put it forward in Committee.

In a very helpful online call with the Minister, in which he explained what the Government were intending to do, we discussed how it is one thing to have laws, and laws which are well intended, but laws which are well intended, even forensic, are of little use if they are not applied properly and understood effectively. The issue we must focus on is when the police start responding in a different way to some of these allegations of assault. The ability to understand the exact nature of what is required and the ability to move very quickly to get it into a form where it is prosecutable within the six-month time limit is extremely important. I thank the Minister and the Government for this amendment, but can the Minister ensure that the combination of the Ministry of Justice, the Home Office, the College of Policing and the National Police Chiefs’ Council will keep a really close eye on the enactment of this new legislation, to ensure that what we hope and intend should happen is happening, and that if it is not proceeding as we hoped and intended, to keep that under review and, if necessary, adjust it? Again, I thank the Government very much for bringing this amendment forward.

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

My Lords, we add our thanks to the Minister to those of the noble Lord, Lord Russell of Liverpool, for his approach to changing the time limit for common assault prosecutions in the context of domestic abuse, and for engaging with us on this and other issues over the last few weeks.

It is clearly a sensible compromise for the six-month time limit to start from the first formal step in criminal proceedings of taking a witness statement or a formal recorded interview. We understand the reason for retaining the overall time limit of two years. It is a compromise in these cases between the need for finality and recognition that it frequently takes some time for victims—generally women in these cases—to report assaults formally, even though, as the noble Lord said, they may have some sort of informal interaction with the police at an earlier stage. We warmly support this amendment and thank the Government for coming to this view.

[Lord Ponsonby of Shulbrede (Lab)]

My Lords, I was sitting in the City of Westminster magistrates’ court yesterday with our Bench chairman, Jane Smith, who was aware of this government concession. We had a very constructive discussion about how welcome it was. In Westminster magistrates’ court we have a specialist DA court, which is not that common among magistrates’ courts. While the noble Lord, Lord Russell, described the problem cleverly—in the best sense; I mean that as I say it—as being hidden in plain sight, it is a problem that we see regularly in that court. It shows that when the Government listen and move quickly, that does get wider recognition. This was certainly recognised and appreciated by my Bench chairman.

Police, Crime, Sentencing and Courts Bill

Lord Marks of Henley-on-Thames Excerpts

Lords Hansard - Part 1 & Lords Hansard - part one & Report stage
Wednesday 15th December 2021 Lords Chamber

[Baroness Jones of Moulsecoomb (GP)]

My Lords, it is a pleasure to rise to support government amendments. There are cases of child abuse and neglect that cannot be adequately punished under the current maximum sentences. It is rare for me to urge more punishment; I always try to focus on rehabilitation, deterrence and restitution, but here I see more punishment as appropriate, simply because protecting a child is our natural human response.

A few years ago, a grave was found in Italy containing a 10,000 year-old skeleton of a tiny baby girl, just a few weeks old. She was buried with what would have been quite precious things: an eagle owl talon, shell pendants and some precious stones. This showed us that, first, 10,000 years ago people cared about their children even when they were of a very young age, and we did not necessarily know that—burials from the Mesolithic period are quite rare—and, secondly, the fact that she was a girl showed that it was an egalitarian society and they did not have our western attitude of women being rather less than men.

There is, however, no deterrent effect required from criminal law because if the only thing stopping someone hurting a child is that it is illegal then there is something deeply wrong with that person. We have an innate reaction to child abusers—a natural hatred towards anyone who would do something so vile. However, that is not to say that every single case of child abuse or neglect is the same, so I am pleased that this is an increase in the maximum sentences and that the Government are not messing around with mandatory minimum sentences.

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

My Lords, we also support these amendments. There has been a ghastly spate of tragic cases of cruelty to children, both those mentioned by the Minister and others. We agree that increasing the maximum sentence from 10 years to 14 in cases of serious harm, and from 14 years to life in the case of death, is both acceptable and to be supported.

Along with the noble Baroness, Lady Jones, we note that the proposals in the government amendments, as the noble Lord, Lord Wolfson, has fairly pointed out, are for an increase in the maximum sentences, and there is no proposal for a mandatory minimum sentence. Nor is there any proposal for a judge to find exceptional circumstances before departing from a minimum, as was the case with the “Harper’s law” amendment to the Bill, made by the Government earlier in these proceedings, and as there is in the proposals to be discussed in the next group.

We agree with the Government that the offences targeted by these amendments are of the most grievous kind. We fully understand that the severity of the proposed penalties is warranted, and we therefore support the amendments.

[Baroness Chapman of Darlington (Lab)]

My Lords, we support the amendments. I read with interest the debate on Report in the Commons, where there was clear support for them across the House. The concern to protect children and vulnerable adults is felt particularly keenly at this point. We have all been deeply shocked and moved by the recent cases, and by the voice of Arthur Labinjo-Hughes—I cannot bear to repeat his words. It is little wonder that the Government feel moved to act on this issue. Our justice system should reflect the public’s disgust and concern at what has happened.

However, I want to say something about the impact of these amendments. As hinted at by the noble Baroness, Lady Jones, increasing sentences will not prevent these crimes. These measures are the right thing to do and we support them, but they will not prevent these crimes. The Government have systematically undermined early intervention and prevention services, which have largely been delivered by local government, along with health in schools, which have combined to protect children and vulnerable adults. I ask the Minister to speak to his colleagues about working urgently and strategically to deal with the now well-understood and reported problems of poor communication, lack of curiosity, excessive case loads and inadequate co-ordination of services that put child services under so much strain and children at risk. Addressing those issues would do far more to safeguard children and vulnerable adults. For today, though, we support these changes, insufficient though they are.

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Moved by

[Lord Marks of Henley-on-Thames]

71: Clause 102, page 88, line 20, leave out “there are exceptional” and insert “such a sentence would be contrary to the interests of justice having regard to”
Member’s explanatory statement
This amendment, along with Lord Marks’ amendment to page 88, line 23, would remove the requirement for the circumstances to be exceptional before a judge was empowered to decline to impose the minimum sentence (for offences of threatening with weapon or bladed article) and would entitle the judge to do so where in the circumstances the judge concluded that such a sentence would be contrary to the interests of justice.

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

My Lords, of the amendments in this group, Amendments 71 to 78, to which I speak now, replicate the amendments I spoke to in Committee, which were also in my name and the name of the noble Lord, Lord Pannick, whom I thank for adding his support to them. Noble Lords will remember that in Committee we had significant and powerful support across the Chamber, including from noble and learned Lords and two former Lord Chief Justices, among them the noble and learned Lords, Lord Thomas and Lord Judge.

These amendments raise an important point of principle concerning judicial discretion. The proposed provisions in Clause 102 impose mandatory minimum sentences and permit judges to depart from those mandatory minima only in “exceptional circumstances”. That amounts to a serious attack on judicial discretion in sentencing and is likely in many cases to give rise to significant injustice. That is true for all four of the minimum sentences proposed: six months in custody for adults threatening with a weapon or bladed article, and four months for 16 and 17 year-olds; seven years for a third class A drug trafficking offence; three years for a third domestic burglary; and six months, or four months for 16 and 17 year-olds, for a repeat offence of carrying an offensive weapon or possessing a bladed or pointed article in a public place or on educational premises.

I am grateful to the Minister for considering our arguments on this topic and for meeting me to discuss them. However, my understanding is that he is likely to maintain the position he took in Committee. He is likely to argue that the judge’s power to depart from the minimum sentences if they find they are exceptional circumstances allows a judge some latitude. Yet he maintains the position that “exceptional circumstances” is a phrase well known to the law as a threshold and should not be changed.

The reality is that the phrase “exceptional circumstances” allows a judge very limited latitude indeed. It is true that the noble Lord, Lord Ponsonby, with his long experience as a magistrate, has said that magistrates’ courts are in the habit of treating the requirement for “exceptional circumstances” with a degree of flexibility. Perhaps that is true of exceptional hardship in relation to disqualifying people for acquiring 12 points on their driving licences. However, the reality is that, properly applied and precisely because this is a threshold phrase well known to the law, as the Minister says, the requirement for exceptional circumstances is far more rigid and far stricter than that experience of magistrates’ courts would imply. Courts have regularly held the phrase to mean that the circumstances must be completely out of the ordinary for exceptional circumstances to be found. Indeed, it is patently obvious that that is the reasoning behind the proposed provisions in Clause 102. The Government are concerned to ensure that more severe custodial sentences are imposed in the cases to which these minima would apply.

Our amendments, on the other hand, would allow for judicial discretion to depart from the minimum sentences where the judge decides that it would be contrary to the interests of justice to impose such a minimum sentence, having regard to circumstances relating to the offence or the offender. Under our amendments, the prescribed minimum sentences would remain the default position—the default sentences—but judges would have the power to depart from them if they thought that the minimum sentences would be unjust. We believe that if only the Government could trust the judges to apply the law and to do what the interests of justice require in particular cases, they would simply accept these amendments.

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[Lord Wolfson of Tredegar (Con)]

As we found in Committee, it is very tempting for Ministers to start parsing or glossing the term “exceptional circumstances”, and I hope the noble Lord will forgive me if I do not do so. That phrase has been used in statute and considered at the very highest level by the judiciary. The application of statute is properly a matter for the judiciary. In these circumstances, it is not helpful for a Minister on his feet to start parsing or glossing what has been said by the Court of Appeal. With genuine respect, I will leave that matter there and leave it for the Court of Appeal to explain what “exceptional circumstances” means. However, I repeat that the noble and learned Lord, Lord Hope of Craighead, said in terms that he found that test not a difficult one to apply—indeed, he found it an easier and more straightforward test to apply than the interests of justice.

Amendment 82A, tabled by the noble Lord, Lord Ponsonby of Shulbrede, with the support of the noble Lord, Lord German, would require a court imposing a custodial sentence of six months or less to state its reasons for being satisfied that neither a fine nor a community sentence could be justified.

The noble Lord, Lord German, reminded us of the Government’s position set out in 2020, which, of course, I stand totally by. There are plainly issues of rehabilitation and reoffending when it comes to short sentences, and that is why, as I explained in Committee, provisions in the Sentencing Code already ensure that custody should be a last resort in all cases, and for the shortest term possible. Even where the custodial threshold is met, courts retain discretion to impose non-custodial sentences after taking into account wider considerations. The code also places a duty on the court to explain its reasons for passing any sentence, and this can include an explanation of the factors the court has taken into account in making its sentencing decision.

This amendment also sets out a series of principles for courts to have regard to when imposing a custodial sentence of six months or less. For the most part, these are included in the independent Sentencing Council’s Imposition of Community and Custodial Sentences guidelines. As courts are already under a statutory duty to follow any sentencing guidelines relevant to the offender’s case, the Government do not consider it necessary to put these principles on a statutory footing.

As the noble and learned Lord, Lord Hope of Craighead, said, if an alternative sentence to custody can properly be handed down, it should be. While I do not propose again to gloss the sentencing guidelines, I respectfully agree that that is a useful summary of them. Again, as the noble Lord, Lord Ponsonby, said with his own experience, it is often only when community sentences have failed that a custodial sentence is handed down. That, again, is in accordance with the approach set out in the sentencing guidelines.

Of course, I listened very carefully to what was said by the noble Lord, Lord Bradley, with whom I have had discussions on this and other issues, and by the right reverend Prelate the Bishop of Gloucester—I was going to say the “campaigning” Bishop of Gloucester, but I will leave out the adjective, although she might like it. I hope that they will each be satisfied with—and certainly understand—what I have said and the reasons for the Government’s position on these amendments. For the reasons that I have set out, I urge the noble Lord to withdraw his amendment.

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

My Lords, I am very grateful for the support that I have had for my Amendments 71 to 78 from Members of the House and for all the contributions to this important debate. I am also grateful to the Minister for his response. However, when one analyses it, what he was saying about discretion cannot survive a proper reading of what is meant by “exceptional circumstances”. Certainly, it is the case that authorities have analysed exceptional circumstances, including the Court of Appeal authority of Nancarrow that he mentioned.

Nevertheless, the nub of it is that “exceptional circumstances” means circumstances that are very unusual, and what the Minister did not address was my point that there are many situations which in general experience are commonplace, and the circumstances are common- place, but where it would nevertheless be unjust—contrary both to the judges and to any normal sense of justice—to impose the minimum sentence. Because the circumstances are not exceptional, the judge would be bound to impose that sentence.

In answer to the points of the noble Lord, Lord Faulks, of course it is the case that judges are daily addressed on the basis that they should take an exceptional course of leniency, and it is not surprising that, as a recorder, he has been asked to take that course many times. However, that does not mean that he has been asked to find that circumstances are exceptional. It is interesting that the test for the sentencing guidelines and departing from them is “contrary to the interests of justice”, and not a requirement that there should be exceptional circumstances.

On the matter of policy, I respectfully suggest that the answer to the Minister’s point was comprehensively expressed by the noble and learned Lord, Lord Garnier. He used the word “wise”. It may be that the Government are entitled to legislate in this way, but is it wise? The Minister said that there was a difference between “wise” and “constitutionally proper”. The point I am making is simply that, although it may be a matter of policy in the sense that the Government can have the policy and can legislate—as the noble and learned Lord, Lord Garnier, said, Parliament can do what it likes—the question is: is it bad policy? We say that it is bad policy because it forces judges to do what they would not otherwise do, having regard to the interests of justice.

In respect of the point made by the noble and learned Lord, Lord Hope, of course it is right that it may be easier to apply a test of exceptional circumstances, because the authorities are so clear, but the point about the interests of justice, as the noble and learned Lord, Lord Judge, picked up in Committee, is that sentencing decisions are difficult.

[Lord Hope of Craighead (CB)]

I am grateful to the noble Lord for giving way. My point is that I would be drawn into arguments with myself about policy in deciding whether to do what Parliament has asked me to do. I am afraid that, as a judge, the constitutional position is that I have to accept what Parliament has laid down. I do not like minimum sentences; they are a very blunt instrument, and I can think of cases where I would not want to be driven down that road. But that is not my position as a judge. I have to follow what Parliament has said, but I have leeway with the phrase which has been inserted in the Bill. That is my point.

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

My Lords, I understand that point. It is very rare that I disagree with the noble and learned Lord, but it is still the fact that what Parliament decides, judges must implement. If they decide that there is an exceptional circumstances test, that is far more limiting than an interests of justice test. That is my point and I will close on it—except to say that the default position under my amendment is to accept minimum sentences and simply to allow the judges to depart from those sentences where it is just to do so, having regard to all the circumstances. I do not believe that there has been any answer presented to that central position, on which I therefore wish to test the opinion of the House.

--- Later in debate ---

[Lord Faulks (Non-Afl)]

The noble Lord, Lord Sandhurst, identifies the need for consistency, and he is right. I wonder whether this amendment was not provoked by the appalling case of Phillip Leece, who not only committed rape but named the victim and posted grossly insulting material on the internet. That is something that was probably outside the scope of those who drafted this legislation. Newspapers are regulated—as I know, as the regulator of newspapers—but social media remains wholly unregulated. There is significant work to be done in this regard, which Parliament will grapple with when looking at the online safety Bill. This is just the sort of matter that a duty of care should deal with, in a proper system to prevent this sort of posting taking place.

I am sure that the Attorney-General is thinking carefully about contempt of court aspects. Of course, there is a power on the part of the judge to deal with the matter much more seriously than with the derisory fines that are currently imposed, but it is something that has to go to the administration of justice, and it is not always predictable or easy to identify what cases will or will not constitute contempt of court—so I welcome that.

Although I wholly understand why this amendment has been proposed, it seems that it would be stark and inconsistent with other provisions—but it addresses a mischief that very much needs to be addressed.

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

My Lords, I shall speak briefly to this group of amendments. First, I turn to the minimum sentence for rape of seven years, subject to an exceptional circumstances disregard or permitted departure. We acknowledge and endorse everything that has been said to the effect that rape is the most appalling crime. The terribly low success rate of prosecutions of which the noble Baroness, Lady Chapman of Darlington, spoke is acknowledged by everyone and has been the subject of a great deal of research by parliamentarians, policymakers and the Government. It needs addressing. The problems that she talked of, of low reporting rates and very high withdrawal of support, along with very low conviction rates, all need addressing. However, I am not convinced that a minimum sentence would address any of those things. Furthermore, for all the reasons, which I shall not repeat, I believe that the use of an exceptional circumstances test for the ability of judges to depart from a minimum sentence is simply wrong.

I also agree with the noble Viscount, Lord Hailsham, when he pointed out that, as anybody who has dealt with rape cases in criminal courts knows, rapes are so very different, the one from another. He was right to point to the very wide range of sentences endorsed in the sentencing guidelines, which mean that courts treat rape very differently, from the milder cases to the very serious cases that merit life imprisonment. I also have some concern that, in some cases, it would make juries even less likely to convict if they knew that there was a minimum sentence of seven years. I cannot support, and I do not think that we cannot support generally, the proposition that this seven-year minimum sentence should be legislated for.

By contrast, Amendment 78B, which would increase the sentence for publishing the identity of sexual offences complainants, is one that we do support. I suspect that it is not often realised quite how serious an offence this is. Sometimes there is a substantial risk of further harm when the identity of a complainant is published. There is very often significant fear on the part of the complainant if her name—as it is usually, although it may be his name—is published. There is almost always really significant distress caused by an unlawful publication. It is of course open to complainants to waive anonymity if they wish. But if they do not wish their identity to be published, to have the law flouted in the way the offence requires seems to me to justify a sentence of imprisonment in some cases. It is important to hear that these are only maximum sentences that we are dealing with.

I agree with the noble Lord, Lord Sandhurst, that there are other cases of unlawful disclosure that should be considered and reviewed but, that being the case in an ideal world—and we all know that these things do not happen as fast as they should—that is no reason for not doing anything at all. So we support Amendment 78B.

For all the reasons given by my noble friend Lady Brinton and, no doubt, to be given by the noble Lord, Lord Ponsonby—the noble Baroness, Lady Chapman, has already spoken to it—we support Amendment 78D on the duty to inform under the unduly lenient sentencing scheme, as well as the extension of the time limit for complaint in respect of unduly lenient sentences. In Committee we went through the reasons for the whole-life order to be taken as a starting point in cases of abduction, sexual assault and murder, and we do support that—again, because it is only a starting point—and this ranks right up there with the other serious offences for which a whole-life order is appropriate.

We support for the reasons given by my noble friend Lady Brinton her amendment on home detention curfews as well.

[Lord Wolfson of Tredegar (Con)]

My Lords, these amendments, introduced by the noble Baroness, Lady Chapman, on behalf of the noble Lord, Lord Ponsonby, include those aimed at increasing penalties for sexual offences, those focused on enabling victims to challenge a sentence perceived to be unduly lenient, and those aimed at restricting additional offenders from release on home detention curfew. We debated these at some length in Committee, and we listened carefully to the arguments put forward by noble Lords in support. There are obviously some emotive and important issues here, and I welcome the opportunity to set out the Government’s position again this evening. But while the sentiment behind the amendments is fully supported by the Government, we do not consider them to be either necessary or the right course of action.

Let me start with a point on which I think there is common ground, as was set out by the noble Baroness, Lady Chapman. Victims must feel that they are put right at the heart of the criminal justice system. They must be supported so that they can engage properly at every step of what can be an incredibly difficult journey. As the noble Baroness, Lady Brinton, set out and referred to, last week we launched a package of measures to help achieve this: a consultation on a new victims’ law; a national rollout of provision of pre-recorded cross-examination for sexual and modern slavery victims; national criminal justice and adult rape scorecards; and a progress report on the end-to-end rape review action plan. We believe that those initiatives, individually and collectively, will raise the voice of victims in our criminal justice system and give them the justice they deserve. That especially includes the victims of often horrendous crimes of sexual violence.

I will address first the amendment regarding minimum sentences for rape. There is no dispute across your Lordships’ House that such crimes should be punished with sentences that match the severity of the offence. But the noble Baroness, Lady Chapman, is proposing that a court be required to impose a minimum custodial sentence of seven years for a rape offence committed under Section 1 of the Sexual Offences Act 2003,

“unless … there are exceptional circumstances … which justify it not doing so.”

Rape offenders already receive very significant sentences. The courts can, and do, pass sentences of life imprisonment. In 2020, of those who received a custodial sentence of less than life for a Section 1 rape offence, the average sentence was almost 10 years—117.5 months—an increase of almost 15% over the last decade. More than two-thirds of adult offenders sentenced for a Section 1 rape offence received a custodial sentence of over seven years, which is the minimum proposed by the amendment.

In this Bill, and in legislation introduced last year, the Government are ensuring that serious violent and sexual offenders, including rape offenders, sentenced to over four years now spend two-thirds of their sentence in prison, as opposed to having automatic release at the halfway point. However, the nature of this offence and the wide range of circumstances which the court may need to take into account are complex, as my noble friend Lord Hailsham pointed out. I also agree with the noble Lord, Lord Marks of Henley-on-Thames, although, while I know what he meant, I am not sure I would use the word “mild” for any case of rape. I know he did not mean it in that way. What we are dealing with here is different degrees of seriousness of an offence, and I know he meant that.

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

May I confirm that? It was the wrong word to use, and I apologise.

[Lord Wolfson of Tredegar (Con)]

I was keen to help the noble Lord out, because I think we all knew what he meant, but it is important in these areas to make sure that the record is really clear. I think we all agree that it is especially important, therefore, because we are dealing with different degrees of seriousness in a complex offence, that we maintain judicial discretion for the courts to consider the full facts of a case before them and decide on the appropriate sentence.

Although the sentence lengths for rape have increased, we have long recognised that the decline in the number of effective trials for rape and serious sexual offences is a cause for significant concern. Let me take a moment to mention some of the wider action we are taking: we have introduced legislation to tackle crimes including stalking, forced marriage, FGM and the those set out in the Domestic Abuse Act; we have committed to more than doubling the number of adult rape cases reaching court; we published the end-to-end rape review on 18 June; and we want to improve the number of rape cases being referred by the police, being charged by the CPS and reaching court. I have already mentioned the victims Bill. In July, we published the tackling violence against women and girls strategy, and we hope that also will help us better target perpetrators and support victims of these crimes, which disproportionately, although not exclusively, affect women and girls.

I turn to Amendment 78B, which would increase the maximum penalty for publishing the identity of sexual assault victims—currently a summary, non-imprisonable offence—to two years in custody. We do not dispute that the current maximum penalty is too low. Our concern, however, is that it would not be right to legislate, as the amendment does, only for the Sexual Offences (Amendment) Act 1992.

The naming offence in Section 5 of that Act protects complainants in sexual assault cases and was later extended to cover human trafficking cases as well. The effect of this amendment would be that the penalty for breaching these restrictions would be markedly different from the penalty for other offences also involving the breach of anonymity. Two of these, in relation to female genital mutilation and forced marriage, are modelled on the 1992 Act, and it therefore would be difficult to impossible to justify treating these identical offences differently from the 1992 Act offence.