“Hillsborough Law”

Lord Pannick Excerpts

Thursday 24th July 2025 Lords Chamber

[Lord Ponsonby of Shulbrede (Lab)]

I think that is, if I may say so, a similar question to that from my noble friend Lady Chakrabarti. I have heard that the ongoing discussions are in fact reasonably positive, and we are very hopeful of reaching an agreement in the coming weeks and months. It is certainly not the intention to water down recommendations; however, it is our intention to come up with a workable Bill that forms part of a wider work programme. As I think I said in answer to the noble Lord, Lord Alton, we have also put in place this website where people can monitor how the Government are making progress on other recommendations on other scandals, such as the infected blood scandal and the Grenfell scandal.

[Lord Pannick (CB)]

My Lords, can the Minister confirm—I think he said this in answer to my noble friend Lord Alton—that the Bill will guarantee funding for legal representation for families who participate in inquests and other inquiries? Without such funding, families cannot effectively participate.

[Lord Ponsonby of Shulbrede (Lab)]

My Lords, as I said before, it is a manifesto commitment to provide legal aid at inquests for victims of disasters or state-related deaths.

Trial by Jury: Proposed Restrictions

Lord Pannick Excerpts

Monday 14th July 2025 Lords Chamber

[Lord Ponsonby of Shulbrede (Lab)]

I absolutely recognise what the right reverend Prelate has said. As he may know, I sat as a youth magistrate for 17 years and as a family magistrate for a long period as well, and I recognise the general problem of disproportionality. There is not a single way of solving that problem, but a number of agencies within the criminal justice field and the MoJ are looking at the different aspects of disproportionality. He opened by pointing at the care system in particular. Probably well over 50% of all the youths I saw in youth court had come from the care system in one way or another, so I recognise what he is saying, and it is something that we take very seriously.

[Lord Pannick (CB)]

My Lords, does the Minister agree that, in addressing the very serious problems faced by the criminal justice system, it is important not to romanticise the jury, given that 90% of all criminal trials in this country are heard without a jury and relatively speedily—not as speedily as perhaps they could be, but relatively so—and they are heard effectively and with justice.

[Lord Ponsonby of Shulbrede (Lab)]

I agree with the noble Lord—of course I would agree because, as a magistrate, I was among those who hear 90% of all criminal cases. There is no right to a jury trial; however, there is a right to a fair trial. For a fair trial, it must be heard in a timely manner. That is where we are failing. We need these systemic changes to address that fundamental problem, so that people—both victims and defendants—can get a fair trial in a timely way.

European Convention on Human Rights: Protocol 12

Lord Pannick Excerpts

Monday 2nd June 2025 Lords Chamber

[Lord Ponsonby of Shulbrede (Lab)]

I thank the noble Lord for that question. I am not aware of any government initiative to extend the number of protected characteristics. If I am mistaken on that, I will write to the noble Lord.

[Lord Pannick (CB)]

Can the Minister explain why the Government have not joined with other contracting states in their attempt to promote discussion about reform of the European convention, particularly in relation to immigration matters?

[Lord Ponsonby of Shulbrede (Lab)]

I thank the noble Lord for that question. The first point is that the Government were not asked whether they wanted to be a signatory to that letter, which was for all members of the EU—it was they who signed the letter. Nevertheless, we are monitoring the situation very closely. We are sympathetic to some of the sentiments expressed in the letter, so we will continue to monitor that situation.

Data (Use and Access) Bill [HL]

Lord Pannick Excerpts

3rd reading
Wednesday 5th February 2025 Lords Chamber

[Baroness Owen of Alderley Edge (Con)]

My Lords, I rise to speak to government Amendments 2, 8 and 9 and to my Amendments 3, 4, 5, 6, 7 and 10, which are tabled in my name and those of the noble Lords, Lord Pannick, Lord Browne of Ladyton and Lord Clement- Jones. In doing so, I declare my interest as a guest of Google at its Future Forum, an AI policy conference.

First, I thank the noble Lord, Lord Ponsonby, who has taken so much time in the past few weeks to meet me and discuss my concerns. I am very grateful for his patience and work in getting the new government amendment to a much stronger position than the original one. I am grateful for the undertaking to amend the time limit for prosecuting cases so that prosecution can take place even after six months have elapsed from the commission of an offence.

Amendments 3, 7 and 10 relate to my substantive amendment, Amendment 4, on soliciting sexually explicit content. I thank the Minister for his commitment to ensuring that solicitation will be included in the Bill when it reaches the Commons after scrutiny by parliamentary counsel. However, noble Lords will know that I have been urging the Government to tackle solicitation and that I am entirely inspired by the experience of Jodie, whom many noble Lords have met, and many women like her.

I echo the words of the noble Baroness, Lady Morgan, that my concern about solicitation is not new. In fact, I first flagged the issue to your Lordships’ House in July last year, so I cannot help but feel disappointed that, after all this time, the Government are still asking for longer. Solicitation is an integral part of the amendment, and I believe we cannot risk the amendment going to the Commons without its inclusion. I know so many of us, and the survivors watching, will feel far more reassured to send this Bill to the Commons with the wording clearly stating that the offence is committed irrespective of the location of the person or persons solicited, whether or not they are identified and whether or not the creation occurs.

I turn now to Amendment 5, which would remove reasonable excuse. This was an issue first highlighted to me by the noble Lord, Lord Pannick, on Report. The amendment speaks to our concern that reasonable excuse may be interpreted in a way that Parliament has not intended and may allow abusers to escape justice, leaving victims traumatised.

Finally, Amendment 6 gives judges the option of imprisonment as well as a fine. It is vital that the Government take a strong position in standing up to those who abuse women in this appalling way. I am sure that noble Lords will agree that there is no expectation that every perpetrator will end up in prison, but it is vital that the option is open to judges so that, in the most extreme of cases, there is a deterrent to show how seriously, as a society, we take this form of digital violence against women. Campaigners agree, saying that if you do not have prison, abusers will think they are untouchable. There is an attitude of being emboldened. Jodie and Sophie, both survivors, have independently described the Government's proposal of a fine as simply insulting. Jodie said:

“for the most serious cases of deepfake abuse, prison sentences must be an option for judges. The effect of this abuse is devastating, and the sentencing must reflect that”.

Sophie agreed that a fine would not have deterred her perpetrator and described the proposal as an insult to those whose lives are turned upside down.

My understanding is that the Government’s proposed non-consensual taking offence will rightly have the option of a prison sentence. I would be interested to know the Government’s reason for deeming that non-consensual taking can result in prison but non-consensual creation cannot. Internet Matters found that teenagers saw sexually explicit deepfakes as worse than real image-based abuse, for reasons such as lack of autonomy and awareness of the image, anonymity of the perpetrator and the ways in which the images may be manipulated to make the victim appear. I am sure that, like many young women, I am struggling to comprehend a legal system that offers a heavier punishment for fly-tipping than for the violation of my consent. How many more women must suffer before we finally treat VAWG offences on a par with other crimes?

I asked campaigners to share with me some of the language used to solicit this content when men posted clothed images with requests to put women in sexually explicit content. It gives an insight into the mind of the people who inflict this abuse on women. A milder one stated, “I want her done for two reasons. One, she is hot. Two, she has a huge ego and this will humble her”. Another said, “Do whatever you want to this woman. Degrade her”.

The vast majority of the language was far more extreme and left me feeling physically sick. I implore the Government to listen to the voices of survivors and to not close off the option of prison when prosecuting the people who inflict this appalling abuse, ripping away a woman’s consent to degrade her. I urge noble Lords across this House: think of the women in your lives—your daughters, granddaughters, nieces, wives. If someone had abused them in this appalling manner, would we still be saying that prison should not be an option?

For too long, women have had their pain minimised and their experiences belittled. We are at the precipice of a new age of extreme misogyny and I urge noble Lords to please strengthen the hands of the judges to tackle this abuse. I beg to move.

[Lord Pannick (CB)]

The skill and determination of the noble Baroness, Lady Owen, have persuaded the Government to address this important topic in the Bill. She has performed a great service to this House. I thank the Minister, most sincerely, and the Bill team for bringing forward their Amendment 2, and for the amount of time and trouble they have taken on this subject and their patience in discussions on this matter.

The Government have come a long way in their Amendment 2, but I agree with the noble Baroness, Lady Owen, that there are three improvements that this House can and should make to the Bill before it travels to the House of Commons. The first is to add an offence of soliciting a purported intimate image. That is the subject of Amendments 3 and 4 from the noble Baroness, Lady Owen. The people who create the purported intimate image are often outside the jurisdiction, so the law needs to penalise and deter those in this country who solicit such images from people abroad. There is no dispute from the Government. The Minister made it very clear on Report and again today that such solicitation should be an offence. The Government accept that it should be an offence whether the person solicited to create the image is here or abroad. The Government also accept that solicitation should be an offence whether or not the image is, in fact, created. All of that is agreed and Amendments 3 and 4 from the noble Baroness, Lady Owen, do the job.

The Government’s position, as the Minister has said, is that the solicitation offence will be added—he gave this commitment—in the House of Commons. I simply do not understand why a solicitation offence cannot be added in this House, to make it clear to the House of Commons that noble Lords believe that this is of fundamental importance.

Victims and Prisoners Bill

Lord Pannick Excerpts

Report stage
Tuesday 21st May 2024 Lords Chamber

Finally, as the Minister will know, the UN Human Rights Committee in its report on the UK’s implementation of the International Covenant on Civil and Political Rights, while welcoming the abandonment of the wholesale abolition of the Human Rights Act, expressed concern that its diminution has been pursued through other legislation and recommended that any future amendment to the Act be restricted to the strengthening of human rights. This clause does the opposite and it is difficult not to conclude that, like the earlier asylum legislation, it is a backdoor way of weakening the Human Rights Act by undermining the fundamental principle enunciated by so many, including the noble Lord—that human rights are universal and indivisible. Weakening the Act’s application to a marginalised and unpopular group such as prisoners is contrary to that principle, whatever the Minister might say.

[Lord Pannick (CB)]

My Lords, I associate myself with the remarks of the noble Lord, Lord Marks, and the noble Baroness, Lady Lister. I am unclear whether the Government accept, as I think they must, that the reason why they wish to disapply Section 3 of the Human Rights Act is because they recognise that, without such disapplication, the substantive provisions of this Bill would plainly contradict Britain’s obligations under the European Convention on Human Rights.

[Lord Ponsonby of Shulbrede (Lab)]

My Lords, Section 3 of the Human Rights Act requires courts to interpret legislation compatibly with rights under the European Convention on Human Rights as far as is possible. Clauses 49 to 52 would disapply Section 3 to prisoners as a group when it comes to legislation about their release. It is disappointing to see this Government wasting parliamentary time and public money to remove human rights from prisoners.

There is no evidence of the Human Rights Act 1998 limiting the Parole Board from making decisions about prisoners. These clauses appear to be trying to solve a problem that does not exist, while the Government ignore the many critical problems across our criminal justice system. We in the Labour Party are proud that it was a Labour Government who brought about the Human Rights Act in 1998, and a future Labour Government will continue to be a bastion of justice and hope, unlike this current Government, who cannot bring themselves to focus on the real issues affecting the public.

The noble Lord, Lord Marks, and my noble friend Lady Lister spoke about the lack of support from the Labour Party if he were to press this matter to a vote. He said—I wrote it down—that he thought this was “a sad portent for the future”. That is a harsh interpretation of our stance. I have just reiterated our commitment to the Human Rights Act. We would not have chosen to support him if he had pressed the matter, but the statement I have read out reaffirms the Labour Party’s commitment to the Human Rights Act. Having said that, I think the noble Lord, Lord Pannick, has put his finger on the central question. If the Government see no diminution of the Human Rights Act, why are they disapplying Section 3 within this Bill? Do they believe that it would breach the Human Rights Act if they failed to disapply the Act in this case?

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

My Lords, I thank the noble Lord, Lord Marks of Henley-on-Thames, for his amendments, which seek to remove Clauses 49 to 52. I am extremely sorry to disappoint the noble Baroness, Lady Lister, and others, but the Government laid out their position in Committee and nothing the Government have heard since or this evening alters that position.

As I think I have said previously, Section 3 of the Human Rights Act is a procedural, not a substantive, provision. Clauses 49 to 51 effectively disapply Section 3 in relation to prisoner release legislation. Let me start by reiterating that nothing in these clauses removes or limits any convention rights enjoyed by prisoners. If I was asked, as I think I was, to confirm that the full range of substantive rights under the ECHR remain: yes, of course they do. Nothing in these clauses removes or limits any convention rights enjoyed by prisoners. A breach of human rights may still be pleaded before any domestic court or in Strasbourg in the usual way, and we would not want to prevent such action by prisoners where it is warranted.

I respectfully respond to the noble Lord, Lord Marks of Henley-on-Thames, by saying that this provision does not represent either an invitation or still less an instruction to the courts to disapply the Human Rights Act; nor does it imply, as suggested by the noble Lord, Lord Pannick, and perhaps by the noble Lord, Lord Ponsonby, that the Government believe there is any breach of the European convention in relation to this legislation. That is not the case. The Government do not accept that there is any breach whatever in this legislation. It is the Government’s position that a matter as important as the public protection test should be for Parliament and that it should not be open to the so-called writing-in or reading-down provisions of Section 3, which is an interpretive position which means that the courts may be required to go further than usual in interpreting legislation that would otherwise be compatible with convention rights. Although this has happened less often in recent years, it can require courts to stray from Parliament’s original intention, and the Government do not think that that is appropriate in this context. The real issue is the balance between the courts and Parliament from a procedural point of view.

[Lord Pannick (CB)]

I am puzzled by this because it is an unusual thing in legislation to say that Section 3 is disapplied. Is it not the inevitable inference from the inclusion of that provision disapplying Section 3 in this legislation that the Government are seriously concerned, at the very least, that the substantive provisions would breach the substantive provisions of the Human Rights Act?

[Lord Bellamy (Con)]

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

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

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

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

--- Later in debate ---

As I have just said, that is part of our general approach to, among other things, IPP prisoners through the action plan, the Parole Board task force and now the procedures of the Parole Board, so that the whole system works appropriately to ensure the safe release of appropriate prisoners. It would be unnecessary to delay these reforms beyond Royal Assent. I commend these amendments to the House.

[Lord Pannick (CB)]

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

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

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

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[Lord Bellamy (Con)]

My Lords, that is my understanding. I am in a slight panic at the moment—the noble Lord, Lord Pannick, having raised this matter—and I hope I have not proceeded in the wrong order. I think this is group 6, according to my instructions.

[Lord Pannick (CB)]

I am simply referring to today’s list, which is what I am working from. If the Minister looks at today’s list, he will see that this group includes, for example, government Amendment 156ZB, which is an amendment to Clause 55, and government Amendments 156ZC, 156ZD, 156ZE and 156ZF. I do not mind at all whether my amendments are in another group, but I do not want to be told later that I have missed my opportunity.

[Lord Meston (CB)]

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

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

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

[Lord Pannick (CB)]

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

[Baroness Thornton (Lab)]

I have to say that I decided to ignore those and will discuss them in the next group, because they were in the wrong place.

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[Lord Bellamy (Con)]

We are now on what was group 6. In any event, the Government are bringing forward Amendments 156ZB to 156ZD and 156ZE to 156ZH. These are technical amendments and do not change the policy, which remains as set out on previous stages of the Bill. The amendments make minor revisions to the drafting of Clauses 55 and 56. Importantly, they ensure that registrars have all the information they need at the point they consider an application to marry or to enter into a civil partnership. The information needed is whether an applicant or their intended spouse or civil partner is a whole-life prisoner and, if so, whether they have been granted an exemption from the Secretary of State. They also make some minor changes to clarify the procedure and to update related legislation in line with the reforms. For the reasons that I have just given, I ask that Clauses 55 and 56 stand part of the Bill and invite noble Lords to support these government amendments.

[Lord Pannick (CB)]

My Lords, I have tabled my opposition to Clauses 55 and 56, which noble Lords know will prohibit a prisoner serving a whole-life tariff from entering into a marriage or a civil partnership with another person without the written permission of the Secretary of State, with that permission to be granted only if the Secretary of State is satisfied that there are exceptional circumstances. I am very pleased to be joined in my opposition to these clauses by the noble Lords, Lord Bach and Lord German—the latter of whom unfortunately cannot be in his place tonight—both of whom spoke very powerfully on this topic in Committee.

I am also very pleased to be joined by the noble Lord, Lord Carter of Haslemere, whom I first met when he was a legal adviser at the Home Office from 1989 to 2006. We used to travel together to Strasbourg to defend the United Kingdom against allegations that it had breached the European Convention on Human Rights. Our record in court was mediocre at best, but the lunches were excellent, and I have great admiration for his expertise and judgment. I very much look forward to what he has to say on this subject.

Why have we brought this matter back on Report? It is not because I have any expectation of changing the Government’s mind, and it is not because I intend to divide the House, particularly at this late hour. My motive is simply to ensure that we record why this is an objectionable measure which has no conceivable justification. There are three reasons why I express such a critical view of these clauses. First, the Government’s reason for conferring this power on the Secretary of State and imposing this disability is so weak. In Committee, the Minister, the noble Lord, Lord Roborough, suggested that these measures will

“drive up public confidence in the justice system”.—[Official Report, 25/3/24; col. 491.]

I can think of many reasons why confidence in the criminal justice system has been undermined: the unacceptable delays in hearing trials in which defendants are accused of serious offences; the fact that so many courtrooms cannot be used because of their poor state of repair; the low rates of pay for prosecutors; and the low rates of legal aid renumeration for criminal barristers and solicitors, which has substantially reduced the number of lawyers available in criminal cases. What I have never heard anyone say is, “My confidence in the criminal justice system has been undermined because whole life prisoners are able to marry”. It is preposterous.

My second reason for objecting to these provisions is that they are wrong in principle. We all know, and the Minister emphasised in Committee, that whole life orders are reserved for those who have committed the most serious crimes—awful crimes of serial or child murders involving premeditation or sexual or sadistic violence. However, this does not mean that we deny such prisoners basic rights. However repellent their crimes, whole life prisoners are allowed to eat more than a crust of bread; they are allowed to exercise; they are allowed to read books, to watch television and to send and receive letters. The right to marry another consenting adult is also a basic right. National law may limit the exercise of that right—you cannot marry your brother, a 12 year-old or your dog—but what the state cannot do, consistent with human rights, is impose restrictions so extreme that they impair the very essence of the right to marry. That is the test repeatedly stated in the consistent case law of the European Court of Human Rights.

The Minister in Committee suggested that the Government consider that Article 12 of the European convention allows for a restriction on the right to marry to be in the public interest. However, that does not assist the Government because there is a judgment of the Strasbourg court in a case concerned with prisoners. It is Frasik v Poland in 2010. The court recognised at paragraph 91:

“Imprisonment deprives a person of his liberty and… some civil rights and privileges. This does not, however, mean that persons in detention cannot, or can only very exceptionally, exercise their right to marry”.


The court added, at paragraph 93, that the state cannot prevent a prisoner exercising the right to marry because of the view of the authorities as to what

“might be acceptable to or what might offend public opinion”.

That is precisely the basis on which this Government purport to justify Clauses 55 and 56 of the Bill—public opinion, public confidence. I ask the Minister, how can the Government maintain the statement, made by the Secretary of State for Justice on the front of the Bill, that Clauses 55 and 56, like the rest of the Bill, are compatible with Convention rights?

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[Lord Carter of Haslemere (CB)]

My Lords, it is a real privilege to support my noble friend Lord Pannick in this debate on whether these clauses should stand part of the Bill. As he has said, back in the 1990s, in another life, he and I used to travel to Strasbourg together to fight prisoners’ cases on prisons law. It is no exaggeration at all to say that I acquired most of my public law knowledge from working with and learning from my noble friend on these and other issues.

Prisons issues back in the 1990s were at the very cutting edge of the development of human rights law. Here we are again, about 30 years later, discussing basic human rights for prisoners such as the right to marry and to form a civil partnership. But it is about much more than that. It is about how as a society we treat those we lock up. Someone said, it may have been Gandhi, that the way we treat those we imprison is a measure of how civilised we are—

[Lord Pannick (CB)]

It was Winston Churchill.

[Lord Carter of Haslemere (CB)]

It was Winston Churchill; I am corrected—both great names.

If we have progressed at all from the way prisoners were treated in the past, we should be enabling whole-life prisoners to find some meaning and purpose in a life that is certain to end in prison. This includes providing opportunities for them to have some social interaction and build relationships, even though they can never expect to be released—in fact, especially because they can never expect to be released. This reflects the long-standing legal position. It is trite law now that prisoners enjoy basic human rights, such as respect for their private and family life, their religion, freedom of expression and access to a lawyer etc. Under Article 12, prisoners have the right to marry and form a civil partnership.

My noble friend Lord Pannick has already referred to the case of Frasik. I will quote again that passage from the court’s judgement, because it is so powerful. Imprisonment, the court said, does not mean that those detained

“cannot, or can only very exceptionally, exercise their right to marry”.

Yet is that not exactly what Clauses 55 and 56 say? The ECHR memorandum conveniently sidesteps that by saying that marriage by whole-lifers

“undermines public confidence in the Criminal Justice System”.

We have just heard from my noble friend Lord Pannick on that one; it is, in effect, code for “offends public opinion”. But the Frasik judgment, as my noble friend said, says that the Bill cannot do that—it cannot automatically prevent prisoners forming marital relationships.

It is not all about the law either. Compelling legal points, such as those we have mentioned, often arise from a rotten policy, which is what we have here. The Government’s justification seems to be the case of Levi Bellfield. Awful as that is as an example of the right to marry being abused, it is one case of about 70 whole-lifers in the system. They have all committed terrible crimes, but their whole-life tariffs are the punishment for that. Even Ministers have recognised that we send people to prison as punishment, not for punishment. Automatically denying prisoners, even whole-life prisoners, the right to marry or enter a civil partnership amounts to nothing more than the state imposing additional, entirely gratuitous punishment on this cohort of prisoners for no reason other than to show the public that it is tough on crime.

The noble Lord, Lord Ponsonby, expressing his personal views at Second Reading, put it well when he described it as a “petty measure”. The noble Lord, Lord German, who unfortunately cannot be with us tonight, rightly called it cruel. It also punishes prisoners’ partners, who are entirely innocent in all this. It punishes them emotionally, of course, but it may also affect their entitlement to, for example, a widow’s pension on the death of a whole-life prisoner or a spouse’s exemption from inheritance tax. Has any consideration been given to the effects of this policy on partners? I would be most grateful to know the answer to that.

There is a simple solution to the Government’s wholly justified concern about the Levi Bellfield case, which would deal with all the legal and policy objections that have been mentioned. The existing law entitles a prison governor to refuse an application to marry or form a civil partnership only if it would create a security risk to the prison. Why not ditch Clauses 55 and 56 and legislate to widen the basis for refusing such applications to include cases where there are reasonable grounds for believing that the application is not made in good faith but from some improper motive? This could easily be made legally watertight to minimise the possibility of unfounded legal challenges.

In conclusion, and at this late hour, in the dying breaths of the Bill, I urge the Minister to ignore the word “reject”, which is in his briefing notes in capital letters, underlined, in bold type. Why not surprise everybody, not least his officials, by agreeing now to remove Clauses 55 and 56 and adopt the more proportionate, but no less effective, solution that I have just proposed?

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[Lord Bellamy (Con)]

I thank the noble Lord, Lord Pannick, for tabling his amendments, and of course I thank the noble Lords, Lord Carter, Lord Meston, Lord Bach and others for their eloquence. I can well understand the feelings expressed. I of course recognise that the noble Lord, Lord Carter, together with the noble Lord, Lord Pannick, has spent many hours in Strasbourg defending the United Kingdom, and in that context, although the noble Lord, Lord Pannick, was modest enough—probably inaccurately—to say that his results had been mediocre, in fact the United Kingdom has, if not the best, at least one of the best records in Strasbourg of respecting human rights.

The question of the compatibility of this particular provision with Article 12 of the ECHR has been very carefully considered—otherwise the Secretary of State would never have given the certificate in the first place.

The Government’s arguments were set out in Committee and I am not sure it is particularly useful at this late hour—especially as it is 10.01 pm—to repeat them. In the Government’s view, the measures are proportionate and apply to a very small cohort of the most serious offenders who have committed the most serious crimes. As of last December, there were 67 whole-life prisoners in England. Because they will never be released, their ability to enjoy anything resembling normal married life is already lawfully and legitimately restricted in a very significant way.

In the Government’s view, the measures are justified on the basis of public interest, as already set out in Committee. The public’s confidence in, and respect for, the justice system is a matter for which any elected Government must have regard—and that of course includes the feelings of victims. The one cause célèbre that has been mentioned did have an important impact in that regard.

I would add only that the measures do not prevent whole-life prisoners benefiting from supportive relationships while in custody, in the same way as other prisoners. We are simply talking about being married or in a civil partnership, and not being able to do that does not have any practical impact on an individual’s ability to maintain a relationship with a prisoner, and does not provide any additional rights or detriments in terms of visits or communications.

I am very sorry to disappoint the noble Lord, Lord Carter, in particular. I do not have any authority to simply drop these clauses, nor am I able to indicate in any way what my personal views may or may not be. I hope I have provided at least some reassurance and I respectfully suggest that the noble Lord withdraws his amendment.

[Lord Pannick (CB)]

I thank the Minister. I also ask him to give a very modest undertaking this evening that, before Third Reading, he will ask the Secretary of State to consider the proposal from the noble Lord, Lord Carter, as a way of solving the perceived problem, without including in the Bill a clause that so many of us regard as objectionable. I ask him to kindly give that undertaking—with of course no commitment whatever.

[Lord Bellamy (Con)]

I can and will and do give that undertaking.

Amendment 156ZB agreed.

Amendments 156ZC and 156ZD

Victims and Prisoners Bill

Lord Pannick Excerpts

Tuesday 12th March 2024 Lords Chamber

[Lord Bach (Lab)]

My Lords, it is a pleasure to support all three of these amendments. They were tabled by the penultimate Lord Chief Justice, and are supported by the most recent Lord Chief Justice and a distinguished recent Solicitor-General, who spoke just now. I am afraid I can only claim to have been shadow Attorney-General in what was, to use a cliché, a bad year, for a shortish time to make up the numbers. I cannot add to the arguments that have been so persuasively put.

It is wonderful to see the noble Earl the Minister in his place; I did not expect him to take this particular group. I invite him to talk to his noble friend from the Ministry of Justice, who I suspect—I hope the noble Earl does as well—privately has a lot of sympathy for these amendments, because they are commonsensical. I ask the noble Earl to ask the noble and learned Lord, Lord Bellamy, to speak to the Justice Secretary patiently and persuasively about these matters.

I start from the position that the Executive should interfere in individual sentencing as little as possible—preferably not at all. Under our constitutional arrangements, it is not the Executive’s responsibility, nor part of their functions. That is why the independence of the Parole Board is so important, as the noble and learned Lord just said. It is hard not to believe, I am afraid, that these proposals would actually have the effect of reducing that independence.

I have down on the amendment paper that I will oppose Clauses 53 and 54 standing part of the Bill. I will not press that at all tonight, but in this short speech I will talk about why I gave that notice; it may save a bit of time later on. It is really because I have two questions for the noble Earl. I asked the noble and learned Lord, Lord Bellamy, at Second Reading, but quite understandably he was so overwhelmed with the matters that he had to reply to in the minutes that he was allowed that he was unable to answer them at the time. I absolutely appreciate that.

The first question is to ask why, under the Bill, the Justice Secretary will send some cases where he has found the Parole Board has got it wrong to whichever body it is that he eventually sends them to, but not others. It was argued in this House in Committee, I think last week or the week before, that that should be not the Upper Tribunal but another body altogether. If he sends some cases where he thinks the Parole Board has got it wrong but not others, that will not make any sense at all. Surely he must send all of the case that he finds to be wrong to this judicial body or none of them. If he sends some then surely the position is not satisfactory. There may one day be a Lord Chancellor—certainly not the current one—who is less generous and would not send any that he felt was wrong to a court. If that position may develop, why on earth is this part of the Bill being proposed?

My second question is this, and the Committee deserves an answer to it: will the Justice Secretary himself make these decisions, or will they be passed down to junior Ministers or to senior civil servants? I have no objection at all to senior civil servants taking important decisions but it is not appropriate that they—or, in fact, junior Ministers in the department—should take these decisions. What is the answer: will they or will they not? If they will, the problems associated with the Executive interfering in sentencing become much more acute. Does the Minister agree? I would be grateful for an answer to both those questions.

[Lord Pannick (CB)]

My Lords, I agree with all three of the amendments in this group, and I do so for the reasons that have been powerfully explained by the other speakers. It seems that the issue here is very simple indeed. These clauses are designed to reduce the independence and authority of the Parole Board. New sub-paragraph (2C), in Clause 54(5), refers to the necessity of maintaining public confidence in the Parole Board. In my view, public confidence in the criminal justice system depends vitally on the independence and the authority of the Parole Board. I much regret that the Government should apparently think otherwise.

[Baroness Prashar (CB)]

My Lords, I too support the amendments in this group, in particular the points made by the noble and learned Lord, Lord Thomas. As a former chairman of the Parole Board, albeit some years ago, I will underline a couple of practical issues, because I think this is a point of principle about its independence. The job of the chairman of the Parole Board is a very sensitive one, and they need protection, not a kind of sword hanging over their head that they can be dismissed. That is one point.

The second point is that it will be disastrous and have a very detrimental impact on the work of the Parole Board if its chair is not allowed to be involved in cases. As the noble and learned Lord, Lord Thomas, said, involvement means you begin to understand how it is done because the core work of the Parole Board is risk assessment. I know how engaged I was in dealing with the cases, talking to prisoners and getting involved. To me, that was very important when it came to risk assessment. The practical impact of these provisions will be negative, apart from looking at the independence of the Parole Board.

Parole Board Recommendations: Open Conditions

Lord Pannick Excerpts

Thursday 25th May 2023 Lords Chamber

[Lord Pannick (CB)]

My Lords, in March, the High Court held that the previous Secretary of State, Dominic Raab, had acted unlawfully by instructing probation officers not to give the Parole Board their view of the risks of release of particular prisoners if that conflicted with his views. Can the Minister assure me that the new Secretary of State for Justice, Alex Chalk, who I warmly welcome to his post, has a better understanding of the importance of the independence of the Parole Board and its processes?

[Lord Bellamy (Con)]

The Secretary of State will of course abide by the recent decision of the High Court and will entirely respect the constitutional position of the Parole Board. I should add that what we are talking about today in relation to the 76 decisions is 32 prisoners serving a mandatory life sentence for murder, 11 serving a discretionary life sentence for rape and various other sexual offences, eight on an IPP sentence for serious sexual offences and another 25 for serious offences, all involving violence against the person.

Jurors: Mental Health Impact

Lord Pannick Excerpts

Tuesday 28th March 2023 Lords Chamber

[Lord Bellamy (Con)]

My Lords, the latest research was done by Professor Cheryl Thomas in 2020: 81% of those who had served on a jury said that they would be “happy to serve again”; 78% found it “interesting”. At the same time, it is quite true that 42% found the experience “stressful”. It is an issue, and the department is exploring options. What shape those options will take—whether there should be some sort of counselling service, whether it should be authorised by a judge and who would provide it—are all questions currently under consideration.

[Lord Pannick (CB)]

Does the Minister agree that everything depends on the nature of the trial? If you are asking jurors to hear a case involving graphic evidence of sex abuse, it really is not good enough to say that, if they are troubled, they can go to their GP. The same is surely true of the judges who have to hear such cases on a regular basis, it is true of the court staff and it is also true of the counsel and solicitors who specialise in this area. Really, something needs to be done about this.

[Lord Bellamy (Con)]

My Lords, as I say, the Government are exploring options. Sometimes a judge will warn jurors in advance that it is distressing and ask whether any of them wish to be discharged. There is a post-trial leaflet and an interesting video, which I watched yesterday, for jurors after the trial, which suggests what they should do if they feel stressed. Some courts of their own volition make references to local charities, and we are providing further guidance to courts on what to do in those circumstances.

National Security Bill

Lord Pannick Excerpts

Committee stage
Wednesday 18th January 2023 Lords Chamber

[Lord Pannick (CB)]

Perhaps I could press the Minister on this. He said that there will be a policy statement before Report. The noble Lord, Lord Carlile, was asking whether we can see the draft regulations. I entirely understand the Minister’s point that the final version of the regulations will need to await the passage of the statutory scheme, but why can the department not produce draft regulations which will inform discussion on Report?

[Lord Murray of Blidworth (Con)]

At the moment I fear I cannot commit to providing draft regulations. It may be that there are some, but it may be that to draft regulations prior to Report would be too time-consuming.

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Therefore, where a claimant establishes an entitlement to damages that was independent of any wrongdoing, I suggest that it would be an obvious affront to access to justice to deny that claimant the right to go to court to claim damages to which they would otherwise be entitled. That is my justification for my amendment. However, all these amendments are plainly subsidiary to our wholesale objection to all these clauses which restrict access to justice for claimants in these cases on grounds that we say simply do not pass muster. I beg to move.

[Lord Pannick (CB)]

My Lords, I have added my name to many of the amendments in these groups. I declare an interest as a practising barrister in public law cases, occasionally in cases concerning natural security.

I entirely agree with the powerful speech that the Committee just heard from the noble Lord, Lord Marks. The award of damages for civil wrongdoing is one of the primary means by which the court remedies the wrongdoing and deters future wrongdoing. That the award of damages is central to our system of justice is confirmed by Clause 83(6), which recognises that the court may not decide to reduce damages to a claimant under the Human Rights Act. By seeking to allow a reduction in damages for non-human rights cases, these clauses would introduce a lesser standard of justice.

I am very unclear why what is unacceptable for a human rights case should be thought acceptable for other civil litigation. That is especially so when the concerns which the Government have about paying damages when they are found to be liable are most likely to arise in cases which do concern human rights violations: cases where the allegation is made—and for the purpose of this clause we must assume is proved to the satisfaction of the court—that the state has been complicit in acts of torture or murder, perhaps by undercover officers. Such grave acts can be and are pleaded as human rights violations.

I appreciate that the Government are keen to remove legal liability, including human rights liability, for claims based, for example, on UK military action abroad, but if liability were to be excluded for such alleged conduct, there would be no need for provisions on damages. Why deal with this by reference to the remedy rather than to liability?

These clauses are not even concerned with a case where the terrorist’s wrongdoing had a causal connection with the Crown’s conduct, which forms the basis of the Crown’s liability for its wrongdoing. Clause 83(4)(a) makes it clear that there is no need for such a causal connection. In any event, as the noble Lord, Lord Marks, correctly explained to the Committee, existing legal principles would apply in such circumstances. Therefore, I need to be persuaded by the Minister that there is any principled basis for these clauses.

[Lord Purvis of Tweed (LD)]

My Lords, the noble Lord, Lord Pannick, and my noble friend have comprehensively outlined why both these clauses are unnecessary in law but also go far beyond what is necessary and will be damaging in practice. I need not add very much other than to say that I have put my name to the amendments that my noble and learned friend Lord Wallace of Tankerness, who was unable to be with us today, has put down with regard to Clauses 82 to 86 stand part and, as my noble friend indicated, the other amendments that would seek to reduce the impact.

The clauses undermine considerably mechanisms for holding government to account, as the noble Lord, Lord Pannick, said, through civil claims. In addition to seeking a remedy, such claims have been positive in changing policy and practice. Therefore, the impact of the clauses, as Reprieve together with the other bodies referred to by my noble friend have indicated, could be to allow Ministers and officials to avoid paying damages to survivors of torture and other abuses overseas.

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[Lord Bellamy (Con)]

The question asked by the noble Lord, Lord Anderson, highlights the tension I referred to a moment ago. It is very difficult to say on the one hand, as is being said, that the courts have this power already and that they are perfectly capable of exercising it, whether under the 1945 Act or ex turpi causa, et cetera, and on the other hand to say that it puts them in a difficult position and that they will be criticised if they do not exercise it. I think I can say this: the overall intention of this legislation is not to alter or downgrade a principle of law that is already inherent in the common law and in our various jurisdictions; the purpose is to spell out that principle in this legislation so that no one has any doubt that it applies in terrorist cases. That is the main purpose of this clause. We are, to an extent, simply reflecting where we are, but clarifying where we are.

[Lord Pannick (CB)]

Can I press the Minister a bit further on this pivotal point? I respectfully suggest to him that he is asserting two conflicting principles. If I understand him correctly, he is saying, first, that the purpose of these provisions is to convey a message but, secondly, that we do not need to worry about it because it is all a matter of judicial discretion. But the judges will have to decide these cases. How are they to decide? How are they to apply their discretion? What message are they expected to convey? While I am on my feet, I remind the Minister that it was, I think, Samuel Goldwyn who said that if he wanted to convey a message, he used Western Union. That is perhaps a relevant principle for Ministers to bear in mind in relation to legislation.

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[Lord Bellamy (Con)]

The causal connection point is to do with whether there are national security factors in the first place. As to general question of what the court is to do, and whether we should have further guidance or precision in statute, that is perhaps a matter that we will need to come back to on Report to see whether we can get any further clarity.

[Lord Pannick (CB)]

May I test the Minister’s patience by asking him to reflect on one other matter? He said, rightly, that in assessing damages in human rights cases the court is entitled to have regard to the conduct of the claimant, yet this clause does not feel it necessary to provide any message or guidance to judges in human rights cases. I ask him to reflect on why the Government nevertheless think it necessary to send a message to provide guidance in non-human-rights cases.

[Lord Bellamy (Con)]

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

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

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[Lord Pannick (CB)]

I have added my name to the proposal from the noble Baroness, Lady Ludford, that Clause 87 should not stand part of the Bill. I am very grateful to her for so clearly setting out objections to the clause. I declare my interest as a practising barrister acting in public law cases, including representing clients on legal aid.

Noble Lords will know that civil legal aid has been much reduced in scope over many years by successive Governments of different complexions, and many of us regret that that is the case. But where civil legal aid is still available, it helps to ensure the protection of the vital legal rights of individuals and their families; for example, in relation to community care, debt where your home is at risk, homelessness, domestic violence and welfare benefits. It therefore follows that a proposal by the Government to exclude eligibility for legal aid, for reasons that are wholly extraneous both to the nature and merits of the litigation you are seeking to bring and to the financial needs of the individual, need to be very carefully scrutinised.

Under Clause 87, a terrorist conviction, which is a very broad concept indeed, leads to the exclusion of eligibility for legal aid irrespective of whether the court that sentenced the terrorist conviction considered the offence sufficiently serious to merit a lengthy custodial sentence or, indeed, any custodial sentence at all. I appreciate that there are some exceptions in Clause 87, but not by reference to the gravity of the terrorist offence. Clause 87 would also exclude eligibility for legal aid irrespective of the relevance of the terrorist conviction to the legal proceedings for which the individual seeks legal aid.

Can the Minister explain to the Committee why the Government think it is appropriate that a woman who has, some years earlier, received either a non-custodial sentence or a short custodial sentence for a terrorist offence should thereafter be precluded from obtaining legal aid if she claims to be the victim of domestic abuse or if she is homeless? How can that possibly be justified? The Government have previously said that the provisions are justified because they impose consequences for people who have broken their bond with society—that is the phrase used by the Government. Murderers, rapists and paedophiles are not excluded from legal aid for their housing or domestic violence proceedings because of their previous conviction, so how can it be justified to exclude on this absolute basis a person who has been convicted of a terrorist offence, irrespective of the gravity of that offence?

There is a reason why murderers, rapists and paedophiles are not excluded from legal aid and it is very simple: we recognise, and have done so since the legal aid system was instituted by the Labour Government in 1949, that legal aid is vital to the effective protection of basic rights for individuals. I would not normally associate the Minister with crude gestures, because he is far too civilised for that, but this provision is a crude gesture which is inconsistent with basic concepts of the rule of law. It is quite indefensible and has no place in a government Bill.

Rape: Prosecutions and Support

Lord Pannick Excerpts

Tuesday 29th November 2022 Lords Chamber

[Lord Pannick (CB)]

My Lords, in January this year, the Ministry of Justice said in answer to a Parliamentary Question from the shadow Attorney-General, Emily Thornberry, that the typical delay between an offence of alleged rape occurring and the completion of the resulting criminal trial was 1,000 days. That is a shocking statistic. What is the Ministry of Justice doing about this?

[Lord Bellamy (Con)]

There are several steps. There is the reference from the police to the CPS, the CPS charging decision, the CPS bringing a case, the delay in the court and so forth. Delays in the court are still a problem and have unfortunately been made worse by the barristers’ strike. Other delays have been reduced. All I can say to the noble Lord is that we are working as hard as we can to address this problem.