Online Procedure Rules (Specified Proceedings) Regulations 2025

Lord Ponsonby of Shulbrede Excerpts

Thursday 20th March 2025 Lords Chamber

Moved by

[Lord Ponsonby of Shulbrede]

That the draft Regulations and Order laid before the House on 29 January and 6 February be approved.

Relevant document: 18th Report from the Secondary Legislation Scrutiny Committee. Considered in Grand Committee on 17 March.

Motions agreed.

Crown Court Criminal Case Backlog

Lord Ponsonby of Shulbrede Excerpts

Thursday 20th March 2025 Lords Chamber

[The Parliamentary Under-Secretary of State, Ministry of Justice (Lord Ponsonby of Shulbrede) (Lab)]

My Lords, this has been a fantastic debate. It has been wide-ranging and extremely well informed. My noble friend Lady Longfield made an excellent maiden speech. I very much look forward to working with her and learning from her in the future as we discuss youth justice and young people. I also thank the noble Lord, Lord Carlile, for securing this debate. There is no doubt that the Government face a profound challenge in the Crown Courts. Our ability to provide justice to the public is of utmost importance and I am very glad that we have had this debate here today.

I will rehearse some of the statistics, even though other noble Lords have given them. When the Government came to power, we inherited a record and rising courts backlog which today stands at over 73,000 cases. It was around half of that figure five years ago.

The issue is more difficult to tackle than just rising numbers. Receipts are increasingly high and the outstanding case load is different from before the pandemic, as it is made up of a greater proportion of more serious and complex offences. Those offences take up more court time and tend to have a lower guilty-plea rate.

In July, the Lord Chancellor made an immediate decision upon entering office to increase Crown Court sitting days by 500 on top of the allocation provided by the previous Lord Chancellor in the previous Government. This was followed by a further increase of 2,000 sitting days in December of last year. We also increased magistrates’ courts’ sentencing powers for a single triable either-way offence: previously, they could only impose a six-month prison sentence for these offences; that has now been increased to 12 months and, in doing so, we have freed up capacity in the Crown Court to hear more of the most serious cases. The capacity that will be freed is equivalent to an extra 2,000 sitting days in the Crown Court. We did not stop there. Earlier this month, we announced funding for a record high allocation of 110,000 sitting days in the next financial year to deliver swifter justice for victims. This is 4,000 more days than the previous Government funded.

However, we are aware that increased capacity alone is not enough and only fundamental reform will tackle the issue. That is why we appointed Sir Brian Leveson, one of our most distinguished judges, to conduct a wholesale review of our criminal courts and propose long-term reforms. Tackling the outstanding case load in the Crown Court is a top priority for this Government, and we will look to act on recommendations from the report as soon as possible.

I want to touch on other jurisdictions. The department has been focused on tackling demand within the Crown Court, but it is important to recognise that it is part of an interlinking court system and we must work to tackle demand across the whole system. More than 90% of all criminal cases are dealt with in magistrates’ courts, where cases continue to be completed swiftly. Although the case load rose from 72,151 cases to 333,349 cases between September 2023 and September 2024, the timeliness in getting through that increased case load within magistrates’ courts has remained stable. That is a real achievement, which we should acknowledge, of the MoJ in managing the issue and of the magistrates’ courts themselves.

To deal with increased demand, we continue to invest in the recruitment of more magistrates. On the point made by my noble friend Lady Hazarika, we are aiming to recruit 2,000 new and diverse magistrates this year and similar numbers in the next couple of years. But we need to increase that figure, and one of the things I spend my time doing is working out how we can increase the recruitment of magistrates. When I started as a magistrate about 20 years ago, there were 30,000 magistrates in England and Wales; there are now 14,000. We need to get the numbers back up to over 20,000, and then up again, depending on what Sir Brian recommends.

In family courts, the case load in both public and private is reducing a bit, so that is a good story. There are other problems within the family court arena, which I am very aware of, but there is not the emergency situation in family courts which we are seeing in the Crown Court.

To return to the issue of the Crown Court backlog, many noble Lords, including the noble Lord, Lord Marks, asked about the impact of delays on the reliability of evidence. This affects victims and witnesses, and of course many witnesses are victims as well. There are measures in place to support them in giving their evidence.

The right reverend Prelate the Bishop of London asked about support for victims. We regard that as important and we accept that victims tend to drop out the longer that a case is delayed. The criminal justice system already works together to give vulnerable and intimidated victims an earlier opportunity to provide their evidence after a not guilty plea is entered. Under Section 28 of the Youth Justice and Criminal Evidence Act 1999, eligible victims can have their cross-examination pre-recorded, enabling victims or witnesses to give evidence at an earlier stage, when their recollection of events is likely to be better. In addition, the police, the CPS and HMCTS employ a joint protocol to expedite cases involving witnesses under 10 years old, thereby maximising the opportunity for them to provide their best evidence and minimising the stress and emotional impact of the criminal justice system.

Prosecutors have guidance on allowing witnesses to refresh their memory. This usually involves the witness rereading their witness statement on the day of the trial. The department’s funding of the national Witness Service means that crucial emotional and practical support is provided to both prosecution and defence witnesses in all criminal courts in England and Wales, to enable them to give best evidence.

I wish to address the undeniable impact that court backlogs have on victims. The human cost of these delays is considerable, and witnesses—who are often victims as well—play a crucial role in ensuring that justice is served. Indeed, as the Victims’ Commissioner mentioned in her report, the delays in the court system can have a particularly adverse impact on victims of rape and serious sexual offences. To ensure ongoing communication with victims in the pretrial period, every CPS area now has at least one dedicated victim liaison officer in its rape and serious sexual offence unit, and pretrial meetings are offered to all adult victims of these crimes. This Government have committed to introducing free, independent legal advice for victims and survivors of adult rape across England and Wales to help them understand and uphold their legal rights. We aim to begin a phased rollout of that service later this year.

The Government have committed to implementing the Victims and Prisoners Act 2024. The Act contains a package of measures that, once implemented, will improve victims’ experience of the criminal justice system and offer better access to information. The first tranche of victim-related measures from the Act commenced in January this year. They simplify the complaints process for victims and enhance the Victims’ Commissioner’s ability to hold criminal justice agencies to account. We are implementing provisions to ensure that local commissioners collaborate on support services for certain victims. We will consult on a new victims’ code, so that every victim of crime knows the rights they should receive under the code.

Lastly, on support to victims, I agree with the Victims’ Commissioner that support services have an important role in keeping victims engaged with the criminal justice system, and that this can help mitigate the impacts of court delays. That is why, in the upcoming financial year, we have protected dedicated spending in the department by maintaining this year’s funding levels for ring-fenced sexual violence and domestic abuse support.

Moving on to the fairness of proceedings for defendants, we recognise that the prolonged uncertainty of waiting for a trial can be overwhelming for some defendants, and we do not underestimate the impact that this has on the defendants and their families. The judiciary and the Crown Court are responsible for ensuring that cases are heard as promptly and efficiently as possible. They continue to work to prioritise cases, including those involving custody time limits. Custody time limits safeguard defendants by preventing them being held on remand in prison for an excessive amount of time prior to their trial. If the trial cannot be heard before the limit expires, the court must release the person on bail, unless the prosecution successfully applies to extend it.

Fairness is integral to the criminal justice system. While miscarriages of justice are, thankfully, rare, it is important that our appeal system, including the possibility to apply to the Criminal Cases Review Commission, functions well. Last month, the Law Commission launched a public consultation on the law relating to criminal appeals, aimed at ensuring that the system is fair and effective. We look forward to receiving the final recommendations from the Law Commission once the consultation exercise has concluded.

Reducing the Crown Court backlog and improving the experience of victims through the process of seeking justice continues to be the priority of this Government. I thank the noble Lord, Lord Carlile, for raising this subject.

I turn to contributions from noble Lords in the debate. Both the noble and learned Lord, Lord Bellamy, and the noble Lord, Lord Meston, expressed scepticism about the judicial function of listing. The noble and learned Lord argued that general listing was a legitimate subject for debate in Parliament and generally. He said that specific listing of specific cases should remain a matter for judges. That was an interesting point—I suspect the noble Lord, Lord Meston, agrees with it—and I will make sure that it is fed back to colleagues.

The noble Lord, Lord Thomas, spoke about the time for action. We agree with that, of course, and we are acting: we have these two extremely important reviews under way. I can assure the noble Baroness, Lady Porter, that we think daily about dovetailing these two reviews and how they will work together, because this is an integrated system—a point that the noble and learned Lord, Lord Keen, made. You really need to look at the whole system to try to get the benefits we hope to achieve through the reforms.

The noble Lord, Lord Faulks, pointed out that there are a number of areas where jury trials have stopped and the world has not stopped turning. We wait to see what Sir Brian recommends, but there may be a recommendation for an intermediate court for cases up to, say, two years’ sentencing—or maybe five years, as the noble and learned Lord, Lord Keen, suggested. We wait to see on that matter.

The noble Baroness, Lady Coussins, asked about interpreters. There is of course an absolute requirement in the code for professional translators. The Government will consult on a new code in due course. I recognise her point about the importance of interpreters to enable fair trials and fair hearings in courts.

I particularly thank the noble Lord, Lord Meston, for raising the Lammy review, which quite rightly pointed out the trust that people have in jury trials, particularly people from ethnic minorities. I and the Government recognise that it is a gold standard. However, it does not necessarily mean that all trials, or the same proportion of trials as now, will continue to be jury trials. The point was well made and is one that we need to reflect on as we consider proposals as they come forward. I add that magistrates, of course, are more diverse than the rest of the judiciary, particularly here in London. We—I was a magistrate—were a pretty diverse bunch within London. Nevertheless, I thank the noble Lord for making that point.

My noble friend Lord Lemos spoke with great authority about the problems of overcrowding. Of course I aspire to great investment within the whole system, but his points about the knock-on problems of overcrowding in the Prison Service were absolutely right.

The noble Lord, Lord Stevens, made a number of detailed proposals. I am sure the officials will read them with great interest, but I will not comment on them individually now. I thought they were points well made.

The noble Lord, Lord Sandhurst, spoke about there being too few criminal barristers. That is obviously right. There is no shortage of trade unionists for the criminal barristers in this House, I have to say, although that does not mean it is not merited. The noble Lord also advocated for the increased use of out-of-court disposals. It is worth reflecting that one of the great successes over the last 20 years is the reduction in the number of youths in custody. That is very much driven by the increased use of out-of-court disposals for youths.

When I started as a youth magistrate, there were 3,000 youths in custody; now, it is a matter of a few hundred, and out-of-court disposals were a part of that transition, if I may put it like that.

My noble friend Lord Hacking gave me one of his usual history lessons, for which I am very grateful. The point he made about trials getting longer and longer were of course absolutely right.

There are other points I would like to make. My noble friend Lady Levitt and the noble Lords, Lord Thomas and Lord Marks, spoke about the Judicial Attitudes Survey and asked what the Government are going to do with it. One thing the Government will do, obviously, is continue to invest in regular recruitment and recognise the factors that have come up through that survey. There will be a major review of judicial pay, which has been commissioned, and it will look at the issues affecting judges and particular judge types. So, we recognise the point that my noble friend made.

The other point, which was made by the noble, Lord Carlile, was about prisoner transport and how—as I know from my own experience—this is often a source of delay. I can confirm that, in respect of the transport supplier, when the delays are unacceptable and there is performance failure, then direct action can be taken by the MoJ. That is done occasionally, and it is recognised that a completely unreasonable number of delays are caused by prisoners or defendants simply not getting to court on time—I absolutely recognise that point.

I have already welcomed my noble friend Lady Longfield, but I want to say that I am very glad she will be joining my colleague the honourable Nic Dakin for his round-table discussion on the topic of youth in the criminal justice system. My office is literally next door to Nic Dakin’s, so I am sure I will hear all about it.

The big point to close on—this has been accepted by all noble Lords who have spoken—is that that we really have a very profound challenge in front of us. As a Government, we are taking bold actions to try and address the two main problems that affect our criminal justice system, which are Crown Court backlogs and prisoner overcrowding. These two problems are hugely interlinked, and we are determined to address these problems and turn the tanker around. But there are many aspects to this, and I look forward to the interest of noble Lords as we continue along this road.

Online Procedure Rules (Specified Proceedings) Regulations 2025

Lord Ponsonby of Shulbrede Excerpts

Monday 17th March 2025 Grand Committee

Moved by

[Lord Ponsonby of Shulbrede]

That the Grand Committee do consider the Online Procedure Rules (Specified Proceedings) Regulations 2025.

Relevant document: 18th Report from the Secondary Legislation Scrutiny Committee

[The Parliamentary Under-Secretary of State, Ministry of Justice (Lord Ponsonby of Shulbrede) (Lab)]

My Lords, this instrument will specify proceedings for which the Online Procedure Rule Committee can make rules. The OPRC, established under the Judicial Review and Courts Act 2022, aims to modernise the civil, family and tribunal jurisdictions by developing rules governing the practice and procedure for specific types of online court and tribunal proceedings. These rules are intended to be simple, accessible and fair. They will streamline online processes and enhance the overall efficiency of the system. The OPRC cannot make any online procedure rules until the proceedings are specified in regulations.

I shall explain the proceedings for which this SI will allow the OPRC to make rules. In the civil jurisdiction, the OPRC will be able to make online procedure rules for property proceedings. The Ministry of Justice and HM Courts and Tribunal Service are working closely with MHCLG to ensure that the justice system is fully prepared for the implementation of the Renters’ Rights Bill. As part of this, HMCTS will digitise the court process for landlords to regain possession of their property, introducing a digital service for both landlords and tenants. Procedure rules will be required to allow use of this service. Parliamentary approval of the statutory instrument will enable the OPRC to make these rules. The digital service, and the rules, will reflect the renters’ rights measures as and when they are brought into force. The introduction of the digital service, and the rules which underpin it, are not, however, tied to the timelines for bringing the measures in the Renters’ Rights Bill into force. The OPRC will also be able to make online procedure rules for property proceedings in the First-tier and Upper Tribunal. This will allow certain cases currently dealt with by the Property Chamber or the Lands Chamber to be included in online procedure rules as and when HMCTS introduces digital systems that mean that those cases are managed online.

In the family jurisdiction, the OPRC will be able to make rules for financial remedies. This will include contested financial remedies and financial consent orders, for example, following a divorce. Online procedure rules for these proceedings will be designed to support the existing online services provided by HMCTS, which are currently governed by practice directions made by the Family Procedure Rule Committee.

The extent of this instrument is UK-wide. Its territorial application is England and Wales in respect of civil and family proceedings and UK-wide in respect of tribunal proceedings.

We believe that the digitisation of court and tribunal processes requires the development of procedure rules that are suitable for the digital age. They must be concise and straightforward to understand. They must support HMCTS and the judiciary to deliver online processes and keep adapting to advances in technology. These aims will be met by the transfer of these specified proceedings to the OPRC, a cross-jurisdictional rule committee whose members include experts in the law and in the development of user-focused digital services. I beg to move.

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

My Lords, I am grateful to the Minister for his helpful introduction to these proposed regulations. We on these Benches support the introduction of digital procedures, certainly where they can be introduced without any adverse impact on the fairness, transparency and user-friendliness of the procedures as a whole. We agree that digital procedures have the potential to streamline court proceedings, cut delay and costs and, to use the Minister’s words, produce a straightforward and concise procedure that will be more accessible. We supported the introduction of online procedures when the Judicial Review and Courts Act was debated in the House in 2022.

We also welcome the introduction of the Online Procedure Rules Committee. It can only be helpful to have a specialist committee to establish rules for online procedures across several fields. There will be scope for cross-fertilisation between different areas utilising the various digital skills that are available for the development of sets of rules in different fields, and that can only be of considerable advantage.

--- Later in debate ---

Subject to seeking that assurance and that caveat for the future, we support these proposed regulations.

[Lord Ponsonby of Shulbrede (Lab)]

I thank the noble Lord for his support. I am able to give him the assurances that he is looking for. He is right to say that the OPRC will continue to make rules as the use of digitisation in the court system continues to develop. The point that he made about cross-fertilisation between different areas and different jurisdictions was a good one; the committee will continue to work on that basis.

The noble Lord sought assurance on access to the courts for people who are adversely affected in whatever way. I am happy to give him that assurance, whether it be through paper or through other ways of supporting people to access the court system. This is an issue that I absolutely recognise through my former work in the court system.

I hope that, through my earlier introduction, I have been able to demonstrate the fundamental aim of this instrument, which is primarily to grant the OPRC rule-making powers in civil proceedings in England and Wales relating to property, family proceedings in England and Wales relating to financial remedies and First-tier Tribunal and Upper Tribunal proceedings relating to property. This instrument will define those proceedings, enabling the OPRC to achieve its objective to advance the modernisation of the civil, family and tribunal justice systems.

Motion agreed.

Civil Proceedings and Magistrates’ Courts Fees (Amendment) Order 2025

Lord Ponsonby of Shulbrede Excerpts

Monday 17th March 2025 Grand Committee

Moved by

[Lord Ponsonby of Shulbrede]

That the Grand Committee do consider the Civil Proceedings and Magistrates’ Courts Fees (Amendment) Order 2025.

Relevant document: 18th Report from the Secondary Legislation Scrutiny Committee

[The Parliamentary Under-Secretary of State, Ministry of Justice (Lord Ponsonby of Shulbrede) (Lab)]

My Lords, this draft instrument makes a technical amendment to three court and tribunal fees to ensure that they can continue to be charged at their current level by His Majesty’s Courts & Tribunals Service. This forms part of a wider set of amendments to 27 fees whose latest estimated costs have fallen below their current value. The 24 fees not included in this affirmative instrument will be reduced by a negative SI, which will be laid before Parliament shortly.

No one will be required to pay a higher fee as a result of the changes made by this affirmative instrument. Rather, it simply changes the legislative power under which the three fees in question are set without amending the amount charged to HMCTS users. The amendments will protect at least £3.5 million in income a year to help ensure that the courts and tribunals remain efficiently and effectively resourced, reducing the overall cost to the taxpayer. A properly funded and functioning HMCTS is critical to upholding the Lord Chancellor’s statutory duty to protect access to justice.

Fees act as an essential source of income for the funding of the courts and the tribunals, with over 300 fees charged for a variety of administrative and judicial services provided by HMCTS. In line with the principles in HM Treasury’s Managing Public Money, most court fees are set to recover no more than the underlying estimate of what it costs HMCTS to run the corresponding service. Others are set deliberately below the cost of the service to ensure that access to justice is protected, such as in proceedings concerning domestic abuse.

A minority of HMCTS fees are set under what is known as the “enhanced” power via Section 180 of the Anti-social Behaviour, Crime and Policing Act 2014. Enhanced fees can lawfully over-recover their underpinning cost to cross-subsidise HMCTS services for which low or no fees are payable.

Following a substantial review of my department’s costing methodology in relation to court processes, the newly estimated costs of 27 fees were found to have fallen below previous estimates. The revised costing methodology is an improved, more nuanced model that relies on data sources that were not available to the previous methodology. The powers under which the 27 fees are currently set allow them to recover a maximum of their underlying cost. This means that the 27 fees must either be reduced to their estimated cost or kept as they are but restated under the 2014 Act in order to become enhanced fees.

In line with the Treasury principles, it is prudent for the 2014 Act to be used sparingly in setting fees that over-recover their cost. My department’s position is therefore that the enhanced power should be reserved for fees that can generate substantial levels of income to cross-subsidise under-recovering parts of HMCTS, provided that doing so has a minimal impact on access to justice. This is why the majority of the 27 fees in question will be reduced in line with their newly estimated cost by an upcoming negative instrument, with only three enhanced by this affirmative instrument.

I shall now refer to each of the three fees in turn, with a view to explaining the service to which they are attached and why my department deems it appropriate that each is enhanced for the purpose of cross-subsidisation. The first is the 50p fee charged for a council tax liability order. This is payable by local authorities to legally demand payment of council tax arrears. HMCTS receives high volumes of CTLO applications each year which raise significant levels of income to support the running costs of courts and tribunals. In 2022-23, 2.1 million CTLOs were made, resulting in £1.1 million in fee income. Enhancing the fee will not only ensure that this crucial income is retained but remove the cost to the taxpayer of adjusting the fee in line with its regularly fluctuating cost.

The second fee is charged at £22 for a warrant of entry. These warrants are mostly applied for by utility companies to gain legal access to private premises. Similarly to CTLOs, high volumes of these warrants are made each year, generating £7.2 million alone in fee income for HMCTS in 2022-23. Reducing the fee to cost would place a significant pressure on my department at a particularly challenging financial time.

The third fee relates to ships or goods which have been seized in the event of a breach and are then sold off at auction. The Admiralty Court charges several fees which are payable upon sale of a vessel or goods, but the amount payable varies depending on the value of the ship. The fee relevant to this instrument is that charged for ships valued over £100,000. Unlike the flat CTLO and warrant of entry fees, this fee is £1 for every £100 of the ship’s value up to £100,000 and increases by a further 50p for every £100 of the ship’s value above £100,000, with a minimum fee of £205. Although this fee does not attract as many applications as those for a CTLO or warrant of entry, it still provides an important source of income for HMCTS. This is because some ships are sold for several million pounds, meaning that even low levels of annual volumes can result in notable overall income generated.

I reiterate that this instrument merely maintains the status quo by not increasing the value of any of the three fees it restates under the 2014 Act. As a result, there is no anticipated impact on users of the courts and tribunals specifically deriving from this instrument. The negligible bearing this SI will have on HMCTS users was echoed in the responses to the 2023 consultation, undertaken by the previous Government, regarding a series of updates made to court and tribunal fees. Included within this consultation was a proposal to enhance the CTLO fee. The other two fees in question had not yet been identified as over-recovering at the time of the consultation. Of those who responded to this proposal, 63% had no view and no further comments to share, while 17% of respondents agreed with the proposal, stating that enhancing the fee would not negatively impact users given that its current value of 50p would be retained. The two respondents who disagreed had incorrectly assumed that the fee was being increased.

I reassure Members that the number of variations between costs and fee values that are corrected through this instrument and the accompanying negative SI is considered higher than usual. This is because of the revisions brought about through my department’s updated costing methodology. Although the costs underpinning HMCTS fees will be reviewed annually, I do not anticipate the need to amend this many fees year on year, thanks to the improvements made by the new methodology.

The three fees in question are charged in England and Wales only. This instrument will therefore create no effect on the court fees charged in Scotland and Northern Ireland.

This instrument can be seen as a corrective SI which simply delivers minor updates to the statute book for continuity purposes. As such, it does not bring about any practical changes to those affected by court and tribunal fees, and in fact ensures that the fees payable by the relevant court users remain the same. I believe that the amendments affected by this SI and its accompanying negative instrument represent the most pragmatic approach in keeping my department’s fees legislation up to date. I beg to move.

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

My Lords, once again I am grateful to the Minister for his introduction to this instrument. It is difficult to say much about this amendment order in that, as he pointed out, it does not alter the existing fees at all, as far as I can see. Also, the possibility of enhanced fees is restated in relation to the fees covered by the order, there already having been that possibility in legislation.

Having read the Explanatory Memorandum and listened to the Minister’s introduction, it appears that the level would have gone down on the introduction of what I think he called the new methodology, which I thought was an attractive word in relation to this instrument. In the interests of transparency, it would be interesting if he could say how much lower the fees would have been on the introduction of the new methodology had this instrument not been brought into effect.

In general, we are of the view that the level of court fees should be assessed by reference to the recovery of the costs of administration, rather than being treated as a kind of profit centre for either the department or the Courts & Tribunals Service. Therefore, we do not see it as sensible to set fees at a level that produces a substantial profit for the administration, although I can see an argument for the cross-subsidisation that the Minister mentioned where there are other areas that are loss-making for the Courts & Tribunals Service which are covered by some excess income on some of these very high-volume fees. I do not suppose that anybody will be too worried about the commission-type fee for the sale of goods and shipping.

We simply state that, in general, there should be a good reason for enhanced fees, which I think is a principle that the department accepts. We accept that some fees will exceed the costs of administration, but that needs to be justified. We do not see the fees charged by courts as an appropriate way of raising extra funds for the public purse.

[Lord Ponsonby of Shulbrede (Lab)]

I thank the noble Lord for his comments, and I agree with the way he set out the objectives of raising fees. It is not the objective to make a profit on them. The vast bulk of fees are set at a level to recover their administrative cost. However, occasionally there are these enhanced fees. For reasons which the noble Lord will understand, there is some limited extent of cross-subsidisation for certain fees which are set much lower or at zero. But the general principle is that the fees should cover the cost of the application itself.

The noble Lord asked what the fees would be if this order was not in place. In the case of the council tax liability order, the fee is being maintained at 50p, but it would go down to 23p if this SI was not put in place. In the case of the warrants of entry, it is currently being maintained at £22 but would go down to £12.09, for the same reason. It is more difficult for me to give the equivalent value for the sale of ships or goods because it is a different calculation and I cannot give a single number to give a comparison. However, I hope that answers the noble Lord’s questions. I commend this order to the Committee.

Motion agreed.

Courts and Tribunals: Sitting Days

Lord Ponsonby of Shulbrede Excerpts

Tuesday 11th March 2025 Lords Chamber

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

My Lords, the Statement describes the Government’s inheritance from the last Administration on Crown Court capacity as little short of disgraceful. It was worse than that: it was an utter disgrace. Sadly, even with the measures announced in the Statement, an utter disgrace it remains. A once great system of criminal justice, admired internationally, has sunk to a level of service that has produced unpardonable delays; decrepit courts—and not enough of them; and underpaid and demoralised staff and lawyers. Offenders are in custody on remand for unacceptable periods and prosecutions are dropped on many occasions because victims and witnesses lose heart and abandon cases, lacking the confidence that they will ever see justice. When trials eventually happen, they are bedevilled by lapse of time and witnesses’ failing recollection. Overall, the level of public trust in our criminal justice system as a whole is rightly, abysmally low.

Furthermore, the system would be even worse were it not for the tireless commitment of those who work within it, mostly underrewarded staff, lawyers and, in particular, our committed, indefatigable and independent judiciary, who struggle to keep the courts working with some semblance of order against overwhelming odds.

This Statement represents a move in the right direction. To that extent, we welcome it, but it is not enough. The Secretary of State and Lord Chancellor recognise that. As the noble Lord, Lord Cameron, said, she has acknowledged that, even with the funding and measures she has announced, the backlog will grow. She pins her hopes on more radical measures of structural reform that may or may not be proposed by the Leveson review. These will take place only when the review has reported and its recommendations have been implemented. Far more extensive measures are needed now to bring down the backlog.

There is, after all, no significant saving of resources in keeping people hanging around for long periods—often running to years—with their lives largely on hold because we cannot get cases to trial. I do not question the Government’s recognition of the seriousness of the crisis they inherited and we now face, but I do question the lack of urgency.

I have a number of questions for the Minister. Why is it that, at a time of catastrophic shortage of sitting days, a progressive Government, dedicated to the delivery of justice, should simply accept that the concordat process of agreeing a number of court sitting days should be a negotiation between the Government and the judiciary? The Lady Chief Justice, a judge widely admired for her level-headedness and good judgment, sought agreement to an extra 6,500 days a year. She advised the Government that that many extra days were available to address the court backlog of 73,000 cases within the system as it stands. Why have the Government not simply accepted that? Why have they not agreed to all the extra days for which she sought sanction and arranged to provide more? Those extra cases would make a significant difference.

In its report published last Wednesday 5 March, the House of Commons Public Accounts Committee described the MoJ as

“tinkering at the edges, reacting to each new issue that affects the courts, without planning for long-term solutions.”

How is it that the Government have not made swifter progress with initiating a comprehensive programme of necessary repairs to our courts? Of course, the increased funding for repairs is very welcome, but why is the urgency lacking? This was a known problem way before last July’s general election. Might some of the Nightingale courts not have been retained in use to clear part of the backlog? Have the Government considered evening and weekend sittings for uncontested cases, leaving more court days available for trials?

I know that the Government are well aware of the disproportionate effect of long delays on cases of rape and serious sexual violence. Victims withdraw from prosecutions under the psychological pressure that these cases entail. The average wait for serious sexual offence cases, not from report or charge but from arrival at Crown Court to completion, is now 356 days. This is a shocking figure. Many cases wait far longer. Have the Government considered according an enhanced status to these cases because of the particular difficulties they face in order to get them on more quickly?

We agree that there is a need for long-term reform and we trust that Sir Brian Leveson’s review will make recommendations that will help restore our criminal justice system. There is much that we can do now and I invite the Minister to take back to his department an invitation to the Government to do much more, more quickly.

[The Parliamentary Under-Secretary of State, Ministry of Justice (Lord Ponsonby of Shulbrede) (Lab)]

My Lords, first, I welcome the noble Lord, Lord Cameron, to his current role. This is the first time I have encountered him speaking from the Dispatch Box.

The Government inherited a record and rising backlog that now stands at 73,000 cases—twice the figure of five years ago. As the noble Lord, Lord Marks, said, there is a human cost to these delays. Victims are waiting years for justice and the attrition rate in rape cases has more than doubled in the last five years, from 2.9% in 2019 to 7.5% now—so I recognise the figures he quoted. This Government are funding a record allocation of Crown Court sitting days to deliver swifter justice for victims—110,000 sitting days next year, which is 4,000 more than the last Government funded.

The noble Lord, Lord Cameron, asked me a number of questions. Basically, the question was why we were not maximising the number of sitting days and taking up the Lady Chief Justice’s offer, as he put it, of sitting at capacity in the Crown Court system. There are two simple answers to that. One is a cash constraint—and I think we need to acknowledge that the Lord Chancellor has wider responsibilities than the courts and has to balance how the money is spent on the whole criminal justice system. We acknowledge that there are serious issues, and we have increased the number of sitting days. The second point is that it is wise to keep some headroom within the Crown Court system. We saw the benefit of that when we had the riots last year and were able to deal with them really quite quickly, in part because of the policy of keeping some headroom within the Crown Court system.

The noble Lord, Lord Marks, rightly said that trials are bedevilled by delays, and he was right when he said that victims drop out of the system and there are many problems because of the many delays within our system. The noble Lord mentioned the concordat process. It is worth noting that that process has been accelerated this year; it has been resolved much earlier in the year than in many previous years, which will give more certainty to the judges when they are planning and allocating their sitting days between the various courts. That is the benefit of the system that the Lord Chancellor has introduced.

I reject the charge that we are tinkering at the edges. The fundamental point, which I think the noble Lords, Lord Marks and Lord Cameron, acknowledged, is that ever-increasing sitting days will not solve the problem. We need more radical reforms, and we are looking to Sir Brian Leveson to present reforms. A number of things are being constantly talked about in the papers. We do not know exactly what he is going to recommend, but we are absolutely clear that there needs to be a much more radical change in how we deal with trials in the magistrates’ courts and Crown Courts. We have obviously gone some way within the magistrates’ courts by doubling magistrates’ sentencing powers to 12 months—but, again, that is a marginal benefit, and there need to be other changes. We are looking forward to Sir Brian’s recommendations.

The noble Lord, Lord Marks, spoke about repairs to the courts. As I think he acknowledged, there has been an increase in court maintenance, up to £148 million from £120 million—but of course we are trying to catch up on many years of underinvesting in our court estate. I have personally seen a number of courts that are in dire need of emergency maintenance. I acknowledge the point that the noble Lord made, but we are taking steps in the right direction to try to increase the quality of our court estate—and there are a number of Nightingale courts still operating, partly for that reason.

The noble Lord, Lord Marks, made another point about the sexual offences or RASSO cases, and how people are waiting far too long. Some courts, including Bristol Crown Court, I believe, are using a different approach—I hesitate to use the word “specialist”—to how they bring on RASSO-related cases. I believe that a couple of other Crown Courts are looking at this as well. Nevertheless, I acknowledge the point that the noble Lord made about the importance of doing this—otherwise, you will get a higher victim drop-out, which is not in the interests of justice.

[Lord Carlile of Berriew (CB)]

My Lords, before abolishing any element of trial by jury, does the Minister accept that the Government should prioritise improving the effectiveness of the Crown Court by swift progress of cases and by appointing a cadre of procedure judges to ensure that the number of hearings per case is reduced dramatically, thereby saving a great deal of time?

[Lord Ponsonby of Shulbrede (Lab)]

I thank the noble Lord for giving me notice of that question. I absolutely recognise the point on the importance of cases coming on in time. One hears far too many stories of cases having to be abandoned, often because of poor administration of the case. We have a number of pilot courts—I think it is about 10—where we are introducing case co-ordinators. They are people whose only job is to go over the cases to make sure that all the different elements are in place and to make sure that the case gets on. I realise that that is not exactly the point that the noble Lord made, but it is acknowledging the importance of making sure that these cases get on and are not abandoned for any reason.

[Lord Thomas of Cwmgiedd (CB)]

I have a couple of questions. First, it is very clear that if you get a backlog in the system, people will plead not guilty. That was my experience with the magistrates’ court in Gloucestershire in 2006, and I do not believe that anything has changed. Therefore, my first question is: what are the Government’s projections, going forward over the next 12 months, as to the likely increase in those awaiting trial? The real problem is that if you do not clear the backlog, it makes it worse because it is always tempting to put off facing reality; it just gets worse and worse.

Secondly, in a court system time is always lost during the day. One problem that we have relates to prisons and the difficulty of bringing prisoners to the courts on time. What is being done to ensure that is improved? I remember this being a problem more than 20 years ago, and it really required extraordinarily tough contract management. I took some of the job on myself, as the Ministry of Justice did not seem capable of doing it. What is being done to manage the contracts so that they are managed as a commercial contract should be managed, and there are penalties or other stern action taken if a prisoner is late? I hope that the contracts are tough enough to ensure that.

In connection with prisons, when I chaired the Commission on Justice in Wales, it was obvious that there was a problem in funding the criminal justice system. I do not think that there can be any real doubt that the financial problems arise from the overall fiscal constraints, which I completely understand, on what money is available for justice—but you are driven to the conclusion that if the Exchequer will not provide more money, the only place it can come from is reducing the prison population. When are we going to find out not how we avoid the crisis that will come in the early part of next year but what is being fundamentally done to reassess our policy of sending people to prison for a very long time? That, I believe, is at the heart of the problem.

The Lord Chancellor spoke very eloquently—and I commend her on this—of dealing with the question of an intermediate court, but the much more difficult political question is dealing with the sentiment that was impressed on us some years ago that “prison works”. I do not believe that is true, but it works to undermine all the rest of the justice system by there not being enough money for paying lawyers to do their job properly and funding the administration of justice.

I am sorry—I took my second question in two parts. I commend the Lord Chancellor on what she has done, but there are other problems to which we need to face up.

[Lord Ponsonby of Shulbrede (Lab)]

I agree with the concluding sentence of the noble and learned Lord—there are indeed other problems which we need to face up to, and reducing the prison population is one of the most fundamental of them. In many ways, that problem goes hand in hand with the problem of the Crown Court backlog. The noble and learned Lord will know that my noble friend Lord Timpson went to Spain to see their prison system, and my right honourable friend the Lord Chancellor went to Texas, looking constructively at other ways of dealing with these issues. Of course, as he said, reoffending rates are crucial in trying to reduce the backlog and there will be legislation on this coming forward in due course.

The noble and learned Lord opened by talking about the incentive to plead not guilty because of the lengthy backlogs. That is undoubtedly true; I have heard that point made many times. It is an added incentive for us to try to reduce the backlogs. There will be a number of benefits to this, and the noble and learned Lord has pointed to one in particular.

Regarding intermediate courts or giving magistrates more sentencing powers, it is my understanding that magistrates’ courts work about five times more quickly than Crown Courts. I do not know what Sir Brian is going to recommend, but, if more work could be done within magistrates’ courts, that would help as well.

The noble and learned Lord spoke about bringing prisoners to court in a timely way. I of course agree with that point. The last mini-campaign I did when I was still a sitting magistrate was to try to allow prison vans in London to use the emergency service lanes to get people to court. It was a minor battle I had with the Mayor of London and I am afraid that I lost it. Nevertheless, the point he makes is a good one. It is very important that everybody gets to court on time, so that the whole process can be properly managed, which is of benefit to everybody involved in it.

[Lord Thomas of Cwmgiedd (CB)]

Perhaps I could ask a supplementary question. Has the Ministry of Justice got a really tough contract manager? All of one’s commercial experience shows that, if you contract out a service, you have to be tough in the performance of it. I need not raise the problems that have arisen. In the past, contract delivery companies did not have a good record, if one might say this.

--- Later in debate ---

[Lord Ponsonby of Shulbrede (Lab)]

What I can say is that I have been in meetings with the Permanent Secretary and the Lord Chancellor and I would not like to be on the wrong side of them when they are talking directly to contractors—which they do every now and again.

[Baroness Hamwee (LD)]

My Lords, following the points made by the noble and learned Lord, does the Minister agree that it is about not only contract management but the design of the contract from the very beginning, so there can be break clauses or a contract may be terminated if it is not properly performed? Also, following the noble and learned Lord’s comments, does the Minister agree that what will be far more helpful to justice proceeding more speedily is to suggest not that pre-sentence reports are a bad thing but that well-designed pre-sentence reports can assist in the appropriate sentences being applied as part of the attempt to reduce reoffending?

[Lord Ponsonby of Shulbrede (Lab)]

Yes, I agree with the points the noble Baroness makes. The aspiration is to move towards a greater proportion of offenders having pre-sentence reports before they are sentenced. To me, that seems an obvious state of affairs. So, I agree with the point that the noble Baroness made on that. Regarding the contracts, I understand that they do have break clauses and can be terminated: that is a possibility within current contracts, as far as I understand it.

Strategic Lawsuits Against Public Participation

Lord Ponsonby of Shulbrede Excerpts

Thursday 6th March 2025 Lords Chamber

[Lord Black of Brentwood (Con)]

My Lords, in begging leave to ask the Question standing in my name on the Order Paper, I declare my interest as deputy chairman of the Telegraph Media Group and note my other interests in the register.

[The Parliamentary Under-Secretary of State, Ministry of Justice (Lord Ponsonby of Shulbrede) (Lab)]

My Lords, the Government are committed to tackling SLAPPs. Our immediate focus is on implementing the anti-SLAPP provisions in the Economic Crime and Corporate Transparency Act 2023, and their operation will inform any future action. We are determined to take the necessary time to consider this complex issue carefully and ensure that we do not risk upsetting the delicate balance between access to justice and free speech.

[Lord Black of Brentwood (Con)]

My Lords, SLAPPs are an unacceptable infringement on free speech; their sole purpose is to empower the powerful and corrupt to silence journalists and bloggers and to shut down legitimate scrutiny. In opposition, the Prime Minister and the Government strongly backed legislation to end their continuing abuse, but now they have gone back on that commitment and said that changes to civil procedure rules will be enough. Is the Minister aware that free speech campaigners such as Article 19 and Transparency International, backed by studies from the universities of Birmingham and Leeds, have said that these rules will be wholly ineffective in stopping pernicious lawsuits and that what is needed is full-throated legislation? Rather than hiding behind piecemeal legal tweaks, will the Government look at this again, stick to their unequivocal promises and set out a timeline for the development of a robust anti-SLAPP Bill?

[Lord Ponsonby of Shulbrede (Lab)]

My Lords, the statutory definition of an economic crime SLAPP was within the previous Act, and the Civil Procedure Rule Committee has introduced rules. My honourable friend Minister Sackman signed the rules to come into law in January this year, and those measures will be implemented later this spring. The Government want to see how those measures will work before deciding on more legislation.

[Lord Thomas of Gresford (LD)]

My Lords, in 2023 the Conservative Government formed a task force to deal with SLAPPs under the direction of DCMS, with a wide representation of government officials, solicitors, barristers and journalists, and with terms of reference requiring bi-monthly meetings. Four reports were produced, the last in March 2024; there has been nothing since. Have the current Government abolished the task force? If not, what is it doing, and how and when will we hear from it?

[Lord Ponsonby of Shulbrede (Lab)]

I do not know the answer to the noble Lord’s question, so I will write to him.

[Lord Cromwell (CB)]

I had quite a lot to do with getting a SLAPPs element into the economic crime Act as a beachhead, but it was always seen as just that: a beachhead. A far more comprehensive law was to follow, covering all the other sectors beyond economic crime. Why have we not seen anything further? Will we see something further during this Parliament to cover the other areas? I am sure the Minister will be aware that law firms that profit from this will be lobbying hard against it. I hope he will resist that.

[Lord Ponsonby of Shulbrede (Lab)]

I remember the interventions from the noble Lord, Lord Cromwell, in the debates on that Act, in which I took part as well. I am going to give the noble Lord the same answer as I have just given. We want to see how the changes to the rules will change the actions of the courts. SLAPPs are covert and they need to be identified. We want to enable the judges to identify them appropriately.

[Baroness Kennedy of The Shaws (Lab)]

My Lords, I too am concerned that this is slipping down the legislative agenda, because this issue is serious. Whistleblowers in the Post Office scandal, for example, were silenced early on when they wanted to go public and received letters telling them that they would be sued for defamation if they pursued their claims. We have seen many journalists being silenced and intimidated with expensive lawsuits by the rich and the powerful. It is identifying those cases and having specific legislation that is effective.

I remind the Minister that a lot of these cases are directed against women, often exposing things to do with powerful men misbehaving and their conduct towards women being highly concerning. Those women are silenced. Given that the Government have committed to protecting women and girls, are they going to do something to protect those who are most vulnerable in this area?

[Lord Ponsonby of Shulbrede (Lab)]

I absolutely recognise all the points my noble friend made in her question. We do not believe that this issue is slipping down the legislative agenda. We want to see how the 2023 Act will work in practice. That will be happening imminently. The new rules will become active later this spring. The point my noble friend makes about intimidation through this procedure is absolutely right. Women, journalists and women journalists are all victims of this, and it is something we will certainly keep an eagle eye on.

[Lord Keen of Elie (Con)]

My Lords, does the Minister agree that we should not confuse the issues surrounding non-disclosure agreements, which can be pernicious in themselves, with the issue of strategic lawsuits against public participation? Does he also agree that because the public profile of SLAPPs has so increased recently, regulators have taken a far more positive approach to dealing with the matter, as recent evidence from the Solicitors Regulation Authority and the Bar Standards Board illustrates? It might be better to see how the civil rules implement the perception against SLAPPs and allow those regulators to discharge their functions with regard to the legal profession.

[Lord Ponsonby of Shulbrede (Lab)]

I thank the noble and learned Lord for that question, and I agree with the points he made. It is indeed true that non-disclosure agreements can be pernicious in themselves, and they are not to be confused with SLAPPs. The new regulations will come into place imminently, and we should see how they go before considering future legislation.

[Lord Foulkes of Cumnock (Lab Co-op)]

My Lords—

--- Later in debate ---

[Lord Foulkes of Cumnock (Lab Co-op)]

My Lords, I think the Minister is aware that the Council of Europe has done a great deal on this matter, particularly the parliamentary assembly committee on culture, media and sport. I think the Minister said in a previous exchange that he would look at the Council of Europe recommendations and take account of them in taking action on this. Has he had the opportunity to do this yet? If not, will he do so soon?

[Lord Ponsonby of Shulbrede (Lab)]

Yes, I remember our previous exchange on this matter, and I have looked at the work done within the Council of Europe, the parliamentary assembly and its culture, media and sport committee. This is a cross-Europe issue. There are groups measuring attempts at SLAPPs across European jurisdictions. We will continue to look at how legislation is developed across Europe. We will keep an eye on this within the UK. The point that my noble friend makes is a good one.

[Baroness Stowell of Beeston (Con)]

My Lords, I refer the Minister to the letter from the SRA, which it sent me this week and I have published on X this morning, detailing why it has not taken action against the lawyers representing Yevgeny Prigozhin, who pursued the journalist Eliot Higgins for tweeting that he was a Russian mercenary and the leader of the Wagner Group. In that letter the SRA is clearer than it has ever been that, in its view, legislation is needed to prevent SLAPPs. Can the Minister please think again about the urgency of this matter? What with not moving on this, yesterday’s complacency on the Telegraph and the Government’s position on copyright, there needs to be a different kind of response from the Government on matters concerning the freedom of the press.

[Lord Ponsonby of Shulbrede (Lab)]

I thank the noble Baroness for sending me a copy of that letter yesterday. The first point to make is that it is for the courts to decide whether a case is indeed a SLAPP. The second is that the case referred to in the SRA letter preceded the legislation that is now in place. The focus of the Government is to see how the new regulations will bed down before we consider new legislation.

[Lord Fox (LD)]

My Lords, the Minister may not be aware that the Georgian oligarchy is introducing SLAPPs laws into its own country now, justifying that by saying that they are British laws. Is the Minister not embarrassed that this is being used to suppress the press and protest in Georgia? Does he not understand that we need to take this out of our laws so that people are not using it as justification elsewhere?

[Lord Ponsonby of Shulbrede (Lab)]

I was not aware of the point that the noble Lord has just made, but of course there is a balance to be struck between Article 6 rights of access to justice and Article 10 rights of freedom of speech, and it is very important that we get that right.

Non-Consensual Sexually Explicit Images and Videos (Offences) Bill [HL]

Lord Ponsonby of Shulbrede Excerpts

3rd reading
Friday 7th February 2025 Lords Chamber

[Lord Mann (Lab)]

My Lords, the noble Baroness, Lady Owen, has had to run a gauntlet online of Corbynite malcontents, misfits and misogynists. Her courage in taking this forward with such persistence and skill should be commended additionally in that context. Those people ought to give a public apology to her today; they will not, of course, but that is on them, because the country is with her on this.

When I came into this place, I was a relative youngster. It is appropriate to note that this place does not simply require people of my generation—free bus pass people—bringing great wisdom and experience; it can benefit equally, and sometimes more, from younger voices bringing a different and more modern perspective. Perhaps that points some direction for the future of this place.

[The Parliamentary Under-Secretary of State, Ministry of Justice (Lord Ponsonby of Shulbrede) (Lab)]

My Lords, I personally agree with all the speakers so far. I say to the noble Lord, Lord Davies of Gower, that I absolutely agree that the Government should and do stand with the victims; it is the victims who are the main beneficiaries of the changes we plan to put through. I agree with the noble Lord, Lord Clement-Jones, that this is part of a wider battle, which we will continue to fight through other pieces of legislation that will be before us. I also agree with my noble friend Lord Mann that the country, as he said, supports the noble Baroness, Lady Owen. It is worth noting that I joined this House when I was about the same age as she is now. You can make changes, and the House is a welcoming place. The noble Baroness has certainly used her seat in this House for the benefit of victims, and I think there is no higher compliment that I can make.

The Government have set an ambitious target of halving violence against women and girls within a decade. We know that the majority of victims of intimate image abuse are women and girls, and we will do all we can to tackle it. Although we cannot support the Bill, I assure your Lordships that we continue to work tirelessly to tighten our laws to give women and girls the protection they need. As the House knows, we are bringing forward a package of offences to tackle the taking of intimate images without consent in the crime and policing Bill, which will be in the other place very shortly.

Our provisions tackling the creation of purported intimate images without consent, as amended on Wednesday, have now moved to the other place for further consideration. We intend to table further amendments there to strengthen the provisions and ensure that they can be applied effectively. I know that the noble Baroness, Lady Owen, is concerned about further issues, such as the definition of “intimate image” and the inclusion of wider types of images, such as semen images, and I confirm that we are looking closely at these issues as our provisions progress. So I thank the noble Baroness for her work on this matter.

Bill passed and sent to the Commons.

Data (Use and Access) Bill [HL]

Lord Ponsonby of Shulbrede Excerpts

3rd reading
Wednesday 5th February 2025 Lords Chamber

Moved by

[Lord Ponsonby of Shulbrede]

2: After Clause 139, insert the following new Clause—
“Creating purported intimate image of adult(1) The Sexual Offences Act 2003 is amended in accordance with subsections (2) and (3).(2) After section 66D insert—“66E Creating purported intimate image of adult(1) A person (A) commits an offence if—(a) A intentionally creates a purported intimate image of another person (B),(b) B does not consent to the creation of the purported intimate image, and(c) A does not reasonably believe that B consents.(2) “Purported intimate image” of a person means an image which—(a) appears to be, or to include, a photograph or film of the person (but is not, or is not only, a photograph or film of the person),(b) appears to be of an adult, and(c) appears to show the person in an intimate state.(3) Subsections (5) to (9) of section 66D (person in an intimate state) apply for the purposes of this section as if references in those subsections to a photograph or film were references to an image.(4) References in this section to creating a purported intimate image of a person do not include doing so by modifying a photograph or film of the person where what is created by the modification is an image which—(a) appears to show the person, but(b) does not appear to show—(i) something within section 66D(5)(a) to (e) (read with subsections (6) and (7) of that section) which is not shown in the photograph or film, or(ii) a person who is not shown in the photograph or film.(5) It is a defence for a person charged with an offence under this section to prove that the person had a reasonable excuse for creating the purported intimate image.(6) A person who commits an offence under this section is liable on summary conviction to a fine.66F Creating purported intimate image of an adult: further definitions etc(1) This section applies for the purposes of section 66E.(2) “Consent” to the creation of a purported intimate image includes general consent covering the particular act of creation as well as specific consent to that particular act.(3) Whether a belief is “reasonable” is to be determined having regard to all the circumstances, including any steps A has taken to ascertain whether B consents.(4) “Photograph” includes the negative as well as the positive version.(5) “Film” means a moving image.(6) A reference to an “image”, “photograph” or “film” includes data stored by any means which is capable of conversion into an image, photograph or film.(7) An image of a person appears to be an image of an adult if—(a) the impression conveyed by the image is that the person shown is aged 18 or over, or (b) the predominant impression conveyed by the image is that the person shown is aged 18 or over (even if some of the physical characteristics shown are those of a person under 18).”(3) In section 79(5) (meaning of references to image of a person), after “a person” insert “(except in sections 66E and 66F)”.(4) In the Sentencing Code, after section 154 insert—“154A Purported intimate images to be treated as used for purpose of certain offences(1) This section applies where a person commits an offence under section 66E of the Sexual Offences Act 2003 (creating purported intimate image of adult).(2) The purported intimate image to which the offence relates, and anything containing it, is to be regarded for the purposes of section 153 (and section 157(3)(b)) as used for the purposes of committing the offence (including where it is committed by aiding, abetting, counselling or procuring).””Member’s explanatory statement
This clause makes it an offence to create a purported intimate image of an adult without consent and provides that deprivation orders can be made under the Sentencing Code in connection with the offence.

[The Parliamentary Under-Secretary of State, Ministry of Justice (Lord Ponsonby of Shulbrede) (Lab)]

My Lords, I am grateful for the opportunity to continue this debate on the intimate image deepfakes within the context of this legislation. We have heard the concerns raised by Members of this House and, as I committed to on Report, I am pleased to move a government amendment that will ensure that those who create an intimate deepfake of an adult without their consent, or a reasonable belief in their consent, are held accountable under the criminal law. This is an important step forward in itself, and one which shows how carefully the Government have listened. However, as I made clear last week, and as I will come on to, we will table further amendments as the Bill progresses through the House of Commons.

Before turning to the specifics of the amendment, I take this opportunity to express my sincere gratitude to the noble Baroness, Lady Owen of Alderley Edge. She has shown unwavering commitment to supporting the victims of online abuse, which has been invaluable. Her tireless efforts have significantly shaped policy in this critical area. I also thank the noble Lords, Lord Clement-Jones and Lord Pannick, and my noble friend Lord Browne of Ladyton, who have given much of their time to support the noble Baroness and meet me and my ministerial colleagues and officials as we work through the policy on this important issue.

Technological advancements have progressed at such a tremendous pace, making it increasingly easy for individuals to create a realistic intimate image of a person without their consent. This is unacceptable. We recognise the risk posed by the creation of these images, both to the individuals depicted in them and to society more widely. Victims report feeling embarrassed, violated and unsafe, and the images undermine the fundamental principle of consent—something we as a society hold in the highest regard. As such, we must act now.

As noble Lords will recall from last week’s debate, the Government committed to tabling an updated amendment at Third Reading reflecting the views heard in this Chamber. Amendment 2 will make it an offence to intentionally create

“a purported intimate image of another person”

without their consent or reasonable belief in their consent. Importantly, there will be no additional mental elements for this offence, which adopts a consent-based approach to better protect victims from harm. This recognises that creating such images, whatever the perpetrator’s purpose, should be considered a criminal violation of a person’s privacy. The scope of this offence will be limited to images of adults, as existing legislation already provides for a number of very serious offences involving similar images of children.

We have carefully considered the concerns raised regarding the types of images involved. We are grateful to the noble Baroness for her constructive collaboration. We have defined the images in the amendment more broadly than originally proposed, by reference to Section 66D(5) to (9) of the intimate image abuse framework in the Sexual Offences Act 2003. This offence will therefore cover the creation of the same types of images as are covered by the sharing intimate images offences, an approach which we intend to replicate in the proposed taking offences. Consequently, the criminal law will be comprehensive and consistent on this issue.

It will be a criminal offence to create, take or share an image which shows, or appears to show, someone engaged in sexual acts, or where the most intimate parts of the body are exposed or covered with underwear, or where the person is, for example, using a toilet.

The Government’s amendment includes a defence based on reasonable excuse, which would apply in the exceptional circumstances where there is a reasonable excuse for creating such an image. The defence places the legal burden of proof on the defendant, so it will be for the defendant to convince the court, on the balance of probabilities, that they had a reasonable excuse for creating the image, rather than for the prosecution to prove that they did not have such an excuse.

It is right that such a defence is available. The law in this country regularly includes a range of defences, including defences of reasonable excuse, and this defence is also available in many other offences, including intimate image offences. This is particularly so with such a new type of offence, where we simply cannot know all the circumstances, now and in the future, as technology develops, where it may be committed. That is another reason for the reasonable excuse defence.

We are confident that the courts would consider very carefully evidence of any such excuse, and how reasonable it was, on the facts of every individual case. That is something the courts are used to considering, and the CPS is used to interrogating, in many offences, and we believe this strikes the right balance between protecting victims and respecting individual rights.

--- Later in debate ---

[Viscount Camrose (Con)]

My Lords, I too support my noble friend Lady Owen in her amendments. Thanks to her tireless and frankly inspiring work, we have an opportunity to make a real difference now—today. She made a powerful and disturbing case for her amendments, and we have heard in Committee, on Report and now today how important these changes are to the many women who have already been victims of deepfakes. This is clearly something we need to address urgently to protect others from being victims in future and to bring perpetrators to justice. Deepfakes can ruin lives, and now is the time to act. In this, my noble friend has our full support.

I congratulate the Government on having travelled some way in tabling their amendment today. We are disappointed that they have still not been able to deliver including solicitation in the proposed offence. My noble friend’s amendments would ensure that it is an offence to solicit—I, too, rather prefer that term—or commission the creation of these kinds of images, and we support her inclusion of solicitation in the new offence.

Of course, I understand that the Government plan further amendments, but for now we are also disappointed that they have decided not to give the courts the option of imposing a custodial sentence on those who commit this new offence, and have chosen not to remove the “reasonable excuse” defence when a defendant has intentionally created an image of this type. Given the seriousness of the new offence and its significant impact on the lives of victims, this new law must have more teeth. We support my noble friend in bringing Amendment 6 to the House, and we will vote with her on this and her other amendments if she chooses to test the opinion of the House. Like others, I rather hope she will.

I conclude by once again paying tribute to my noble friend, who has assembled such a distinguished and respected group of signatories to and supporters of her amendments. Her approach to the Bill is in the highest traditions of your Lordships’ House, and I am proud to support her today.

[Lord Ponsonby of Shulbrede (Lab)]

My Lords, this has been both a wide-ranging debate and a specific debate on the noble Baroness’s three amendments. I will deal first with the solicitation point. We have heard the strength of feeling, and the Government will not oppose the noble Baroness’s Amendments 3, 4, 7 and 10. As I said, we had wanted to do it another way, but we recognise the strength of feeling expressed in this debate.

--- Later in debate ---

[Baroness Butler-Sloss (CB)]

Before the noble Lord sits down, may I ask him about the aspect of deterrent? You may have someone—or a company—who is inordinately rich, or someone who is extremely poor, for whom, as he knows, a fine will not work because they do not have any money. There will be instances where a fine would not do but the deterrent would be the possibility of prison.

[Lord Ponsonby of Shulbrede (Lab)]

The noble and learned Baroness makes a fair point. In practice, this offence is very likely to be charged with the threat to share and other offences, which are of course imprisonable in their own right. As I said, there is no limitation to the number of offences that can be charged. We think it more appropriate that this be a fine-only offence, given the plethora of other offences which can be charged in this field.

[Baroness Owen of Alderley Edge (Con)]

It is important to clarify that someone can be in a relationship with a partner who creates a sexually explicit deepfake, which presents a very real threat to that person even if their partner has not actually threatened to share it. That is what campaigners and victims believe: if you are in this kind of relationship and you know that someone has developed these sexually explicit deepfakes without your consent, that presents a very real threat. We believe that should be imprisonable.

[Lord Ponsonby of Shulbrede (Lab)]

My Lords, in a sense, this will be tested in the courts. If the woman knows that the images have been created, the threat is there; that is what she is worried about. Of course, that is a separate offence, as I have already said. On the offence where there is no threat and it is just the creation of the image, we believe that a fine-only sentence is appropriate.

Amendment 3 (to Amendment 2) agreed.

--- Later in debate ---

Moved by

[Lord Ponsonby of Shulbrede]

8: Clause 142, page 174, line 22, at end insert—
“(c) section (Creating purported intimate image of adult) (creating purported intimate image of adult) extends to England and Wales only.”Member’s explanatory statement
This amendment provides that the new Clause “Creating purported intimate image of adult” extends to England and Wales only.

--- Later in debate ---

Moved by

[Lord Ponsonby of Shulbrede]

9: Title, line 18, after “services;” insert “to make provision about the creation of purported intimate images;”
Member’s explanatory statement
This amendment is consequential on the amendment inserting the new Clause “Creating purported intimate image of adult”.

[Lord Ponsonby of Shulbrede (Lab)]

I beg to move.

Amendment 10 (to Amendment 9)

Moved by

Humanist Weddings

Lord Ponsonby of Shulbrede Excerpts

Monday 3rd February 2025 Lords Chamber

[Baroness Thornton]

To ask His Majesty’s Government what is the timetable for legalising humanist weddings in England and Wales.

[The Parliamentary Under-Secretary of State, Ministry of Justice (Lord Ponsonby of Shulbrede) (Lab)]

My Lords, I am aware that humanists have long campaigned to be able to conduct legally binding weddings and fully appreciate why my noble friend is asking this Question. However, I am afraid I must repeat my previous Answer. As a new Government, we must take the time properly to consider our marriage law and the Law Commission’s review on weddings before publicly setting out our position, which we will do in the coming months.

[Baroness Thornton (Lab)]

My Lords, I had two responses prepared: “hurrah” and this one, which basically says that my noble friend the Minister has disappointed those who see this as a priority and who have for the last 11 years been asking the previous Government and now my own Government to take action. I would be grateful if he could meet me to discuss how best to take this matter forward; then, perhaps, I will not need to keep asking this question—which I will do until the matter is resolved.

[Lord Ponsonby of Shulbrede (Lab)]

I am very happy to meet my noble friend—any time, any place. As I said, I am aware that a number of noble Lords have extremely strong views on this matter. The Government want to do this in a measured way. Other factors are in play, about which I have informed my noble friend; nevertheless, I am very happy to meet her.

[Lord Birt (CB)]

My Lords, more Scots now choose a humanist wedding than those who marry in all other religious ceremonies combined, yet we deny that option to those who wed in England. The Minister emphasised, as he has previously, that England’s centuries-old legal framework is more complex. If we want to align England’s framework with contemporary belief and manifest social demand, can he identify any impediments in the way that cannot be easily and speedily overcome?

[Lord Ponsonby of Shulbrede (Lab)]

I thank the noble Lord for his question and the letter he wrote to me recently, which I answered. Complexities were identified in the Law Commission report a number of years ago which are real and need to be taken seriously. The Government are set on doing that, and on giving themselves the time so to do.

[Baroness Berridge (Con)]

My Lords, I have previously raised with the Minister another issue with our marriage law with which he is familiar. There are cases where people—mainly women—go through a religious ceremony thinking that they have got married but they have not actually done so under UK law. They find that out only when things break down. Can the Minister outline the solution to that? Are the Government considering making it an offence to conduct such a ceremony without first having seen a civil certificate of marriage?

[Lord Ponsonby of Shulbrede (Lab)]

I thank the noble Baroness for her question. I do not know the answer, but I will write to her, because she raises a very important point. When she asked a similar question a few weeks ago, I made the point that I regularly came across those types of scenarios when I sat as a family court magistrate. I add that the myth of common-law marriage exists not just in particular sectors of our society but across it. It includes the idea that women—it is usually women—get rights, but that is absolutely not the case. That is why the Government are undertaking to look at how the rights of people who have been in long-standing, cohabiting relationships can be addressed when those couples split up.

[Baroness Burt of Solihull (LD)]

My Lords, the Minister referred to various difficulties, but Liberal Democrats and humanists do not see them. I echo the request of the noble Baroness, Lady Thornton: can those of us with a special interest in this area meet and put some new ideas forward, to make sure that we can move this along?

[Lord Ponsonby of Shulbrede (Lab)]

I am very happy to meet the noble Baroness.

[Baroness Whitaker (Lab)]

When this House heard the last of the very frequent and not very satisfactory Questions on this topic, my noble friend the Minister committed to conducting an equality impact assessment to evaluate the impact that this current ongoing delay is having on different groups. When will the Minister be able to share this with the House? Will he bring it to the meeting which has just been agreed?

[Lord Ponsonby of Shulbrede (Lab)]

I cannot remember making that commitment, so I will need to write to my noble friend about that matter.

[Lord Meston (CB)]

My Lords, the House should recognise that the Minister’s answer of “in the coming months” is rather better than we have had before. Humanists and others simply want a marriage ceremony that reflects their beliefs, whether religious or not, and that will be legally recognised without unnecessary obstacles. Can the Minister confirm that the Government are now actively looking at comprehensive reform, in line with the Law Commission’s 2023 recommendations, to help not just humanists but other similarly disadvantaged groups, even if that may take more time than we would want?

[Lord Ponsonby of Shulbrede (Lab)]

I thank the noble Lord for that question. The Government are indeed looking at comprehensive reform. There are many anomalies within our current marriage law and a number of disadvantaged groups. We believe that we need to take our time on this matter to get the answer right, so I thank the noble Lord for his question.

[Lord Lilley (Con)]

Can the Minister explain to those of us who do not know what either of them are like the difference between a registry office wedding and humanist wedding?

[Lord Ponsonby of Shulbrede (Lab)]

I can answer that for the noble Lord, Lord Lilley. A registry office wedding is legally binding in the eyes of the law in England and Wales. A humanist wedding which is not conducted in a registry office would not be legally binding in that sense. A humanist getting married in England or Wales would essentially have to go through a two-stage process to be married in the eyes of the law in England and Wales.

[Baroness Blackstone (Lab)]

My Lords, I congratulate my noble friend on dropping the rather meaningless phrase “in due time” and telling the House that this is going to be done in the coming months. By that, I assume that it will be within 12 months, because he said in the coming “months” and not in the coming “years”. Can he assure the House that we will have legalised humanist marriages within the next year—in other words, in 12 months?

[Lord Ponsonby of Shulbrede (Lab)]

I am very glad that noble Lords have noticed the change in wording since the last time this matter was discussed at Oral Questions. The commitment is that in the coming months we will review the situation in the light of the Law Commission submission, and we are well aware of the Labour Party’s commitment in the manifesto.

[Lord Dobbs (Con)]

The Minister must be feeling that it is Groundhog Day yet again, and it will continue, as the noble Baroness says, until we get a response on this—please. The Minister keeps talking about the complexities of these issues, but it is a complexity which has been resolved in Scotland, Northern Ireland, Jersey and the Isle of Man. It is not as though government should have come as a great surprise to the party opposite—it had plenty of time to plan for it. What is required is not more discussion and more complexity but a decision. Will the Minister please bring forward a decision at the earliest possible moment?

[Lord Ponsonby of Shulbrede (Lab)]

My Lords, I have to disagree with the noble Lord. There is genuine complexity here, and there are other groups who are not bringing their cases to this House who are also disadvantaged, and we want to look at the complexities in the round. He talks about Scotland, but there is a different system in Scotland, and there are anomalies within Scotland as well. This all increases the complexity of the overall situation in England and Wales. We have taken a very small step forward, and I hope that we can fulfil the commitment to look at this matter as we said that we would.

Rape: Prosecutions

Lord Ponsonby of Shulbrede Excerpts

Thursday 30th January 2025 Grand Committee

[The Parliamentary Under-Secretary of State, Ministry of Justice (Lord Ponsonby of Shulbrede) (Lab)]

My Lords, I thank all noble Lords who have taken part in this important debate, particularly, the noble Baroness, Lady Jones, for bringing this debate here today. One main theme in the debate has been the issue of trust: trust within the criminal justice system and, particularly, trust in women when they report rape. That underlies all the speeches made here this afternoon.

Rape and other sexual offences are among the most serious crimes that can be committed. It is right that we work hard to ensure that survivors receive the swift and compassionate response from our criminal justice system that they deserve. This Government were elected on a clear, landmark pledge to halve violence against women and girls over the next decade. Improving the criminal justice system’s response to rape is central to that pledge. Although our pledge necessarily focuses on the disproportionate impact of these crimes on women, we recognise that men and boys can also be victims of sexual offences, including rape. Noble Lords might note that I introduced the relevant amendment for male rape in the Sexual Offences Act 2003, and that has changed the perception of male victims of sexual offences.

As we have heard, if you are a victim of rape in this country today, your chances of seeing your case reach trial are low, despite the courage it takes for survivors to come forward. Only a fraction of reported cases end in prosecution and, if charges are brought, it may take years for your case to come to trial. While the number of rape prosecutions has increased over recent years—now at the highest level since 2010—they continue to fall short of what victims, and the wider public, would expect. This Government are determined to transform the response to rape in this country, so that victims are supported and perpetrators brought to justice swiftly. That is our goal. It is a simple one, even if the task itself is not.

Let me set out the factors that have led us to this point. In 2019, charges and prosecutions for rape had fallen to an historic low, prompting the previous Government to carry out an end-to-end review of the criminal justice system’s response to adult rape offences. This review found that the system had, in fact, faltered from around 2016 onwards—a year that saw a sharp decline in rape prosecutions, coupled with a decline in convictions. The reasons for this drop are varied but well documented.

The first concerns systemic issues. When this Government took office, we inherited a justice system under intense pressure and a growing backlog of cases in the courts. The volume of outstanding cases in the Crown Court now stands at over 70,000—a record high. When the justice system is under this level of strain, everyone feels the impact; it is a sad fact that this includes victims, particularly victims of sexual offences. For many victims, the wait they might face is simply too much to bear. As it stands, around 55% of rape complainants, despite coming forward, eventually withdraw from the criminal justice process. Understandably, they want to focus on their own mental health and rebuilding their lives.

Rape cases also require specialist expertise; this point was made by both previous commissioners, who gave, if I may say so, some interesting ideas. The noble Lord, Lord Hogan-Howe, talked about group police work as the way to tackle this issue; he compared it to terrorist offences and the like, and I found it an interesting idea. Of course, this is a resource issue. These resource issues include the challenge of having enough specialist barristers, both prosecuting and defending, willing to take on these highly sensitive and difficult cases.

For prosecution volumes to improve, victims must also have the confidence to come forward and report what has happened to them, knowing that they will be taken seriously and, crucially, be given the support they need. Sadly, this is not always the experience of rape victims. This means that improvements in training, culture and local policing practices must all come together in a seamless and consistent manner. Victims will have confidence in the system only if they see it working effectively and compassionately.

I have set out some of the systemic issues. Now let me briefly highlight the challenges particular to this category of offences. First, many rapes are committed by someone known to the victim—often a current or former partner. Estimates suggest that more than 40% of adult rape victims are, or have been, in a relationship with their attacker. This complicates the investigative process.

Secondly, it is widely acknowledged that sexual offences, in particular rape, are often under-reported. Many victims fear the stigma of speaking out. Others lack confidence in the criminal justice system itself, feeling as though they are not being listened to or taken seriously—and, indeed, that they are the ones under scrutiny, not the perpetrator. During an investigation, it is not unusual for the police to request a victim’s personal records. Noble Lords will know that these requests have, at times, gone too far, causing unnecessary upset to victims, compounding their trauma and causing them to drop out of their case altogether.

I have outlined some of the challenges; now let me set out some of the commitments that this Government have made to begin addressing them. First, we have committed to ensuring swifter justice for victims and reducing the wait times that contribute to so many withdrawing from the process. One of the most vital steps in addressing this is reducing the time it takes from a charge being laid to the actual trial; we are working with the judiciary on how we can best fast-track rape cases through the courts.

More broadly, we have taken decisive action to drive the outstanding case load down, such as funding extra sitting days, which will see courts sit for a total of 108,500 days this financial year—the highest number in almost a decade. We have also increased the sentencing powers of magistrates’ courts from six months to 12 months for a single triable either-way offence. We expect this to free up around 2,000 sitting days and allow judges to deal with the more—indeed, the most—serious cases.

However, if victims are going to see justice done more swiftly in this country, we cannot simply do more of the same. We must go further. It will take once-in-a-generation reform, which is why the Lord Chancellor has commissioned Sir Brian Leveson to carry out an independent review of the criminal courts. Sir Brian will consider the merits of longer-term reform, as well as how our courts can operate more efficiently. I am sure that noble Lords will await the review’s findings with interest.

The Government’s second commitment is that every victim of adult rape should have access to a free, independent legal adviser. Later this year, we will introduce new independent legal advisers, who will offer free legal advice to victims of adult rape at any point from report to trial. These advisers will help victims understand their rights, including in relation to the use of personal information, as well as offering clarity about the court process, timelines and what to expect. These advisers will not undermine the right to a fair trial or prevent evidence coming to light. They will simply help victims understand and, if needed, take steps to protect the rights that they already have.

Our third commitment is that specialist rape and sexual offences teams will be introduced into every police force, ensuring that the right capabilities are in place properly to investigate these offences. Victims must have a positive experience when dealing with the police, which will in turn increase reporting and deliver better outcomes for victims. We are working closely with policing partners to make this a reality.

Encouragingly, the volume of rape cases being reported to the police has followed a significant upward trend in recent years despite the prevalence of rape remaining flat, as measured by the Crime Survey for England and Wales. This means more brave victims feeling confident to report their offence to the police without increases in the number of incidents of rape.

Those are just three of our commitments. They will be underpinned by a new strategy to combat violence against women and girls, to be published later this year, which will help us transform how government, and the justice system as a whole, responds to these horrific crimes.

Let me emphasise again that rape is an abhorrent crime. It has no place in our society, and far too many survivors have suffered without seeing justice or receiving the support they so desperately need. A combination of factors, including strained court capacity and inconsistent resourcing, have contributed to the level of rape prosecutions we see today, but it is not enough simply to reel off the complexities. We must act, and that is what the Government are doing. We are under no illusion about the scale of the challenge before us, and I thank the noble Baroness, Lady Jones, for raising this issue for debate.

I shall now answer some of the specific questions asked by noble Lords. First, education is a cross-government endeavour that starts with prevention. My colleagues Ministers Davies-Jones and Phillips are leading on this issue, as are colleagues in the Department for Education. Relationship, sex and health education is now a statutory part of the curriculum, and within that, people are learning about domestic abuse and consent. So there is a cross-departmental approach to this important part of the solution to the problem.

Other noble Lords asked about attrition—women dropping out of the process. The answer to that is in the three specific promises I made: to support women through legal advice, to speed up the process, and to ensure that women understand the reality of the court process they will go through.

Other noble Lords asked about the experience in court. Trauma-informed training has already been delivered at Snaresbrook, Leeds and Newcastle Crown Courts, with over 400 professionals trained so far, including court staff, CPS staff and the police. In addition, witness waiting rooms and in-court technology have been upgraded in selected courts, and Section 28 of the Youth Justice and Criminal Evidence Act also addresses the way victims are treated as they go through these types of cases.

I might say that I have dealt with these matters myself. Very unusually, I have dealt with a youth rape. Magistrates would not normally deal with rape, but on appeals in the youth court a magistrate would sit as a winger. I dealt with one at Harrow Crown Court, and I thought it was handled as well as it possibly could be. Interestingly—I will close on this because I am being looked at by my Whip—the young woman concerned chose to be in the courtroom while the case was proceeding because she wanted to be part of the whole process. The technology was available for it to be done in a different way, but that was her choice, and I thought it was a very powerful one on her part.

If I have not answered noble Lords’ questions, I will write to them.