Parole Board (Amendment) Rules 2022

Lord Ponsonby of Shulbrede Excerpts

Tuesday 18th October 2022 Lords Chamber

[Baroness Newlove (Con)]

My Lords, I am here listening because I may shortly be on the Woolsack—although hopefully not—after my friend, the noble Baroness, Lady Fookes. However, I declare an interest. I am a victim, and so are my daughters, of the murder of my late husband, Garry Newlove. Having listened to Members, and with no disrespect, I cannot agree with this regret Motion.

For the last 15 years, I have attended every parole hearing and tariff review hearing and, in my role as Victims Commissioner, I have shadowed parole hearings. I also worked on the review of the Worboys case. Although an appeal system is in place, the bar is so high that it feels like a waste of time. I have been through an appeal. I have been through exactly what anybody else would have to go through, with no favours. That appeal route is not easy. You must explain why you want to do this and why you disagree with the result of the parole hearing. My appeal was sent to the then Secretary of State, Robert Buckland. His team looked at it and worked on it without knowing any of my views, except for what I had written through my victim liaison officer. His office then recommended that it be reviewed.

I want to draw the Chamber’s attention to the information victims receive. In bold letters, the Parole Board says that no matter what goes through, it does not change its mind. For a victim, it is absolutely appalling to see that in bold, even though there is a process for victims to go through. This is not to be disrespectful to the qualified people in this room, but I am speaking up for the many victims who go through a system that says one thing and delivers another. I speak as the mother of three daughters, who witnessed every kick and punch to their father, when I say that the system is broken. I totally agree that the public has no confidence in the criminal justice system where victims are concerned. I am very grateful that the media pick up these stories, because that means that I find out more information about my case than I would have been told personally by the system.

I disagree with this regret Motion. The system needs a good overhaul, and we need transparency. I hear from Parole Board members that it is a courtroom. Well, if it is a courtroom then there should be transparency, so that victims can fully understand why the decision was made. In one of the parole hearings, the Parole Board disagreed with a psychologist from the prison, a representative who knew the situation and went against that decision.

I welcome that we are discussing this, but I cannot agree with the regret Motion. We need transparency and we need public confidence. Victims have a right to know, to understand and to be treated with dignity, as I have for 15 years. They have a right to understand, to be there, to listen. More importantly, this is an opportunity to ask my noble friend the Minister: when will a draft victims Bill be presented, so that our voices can be listened to?

[Lord Ponsonby of Shulbrede (Lab)]

My Lords, I too thank the noble Baroness, Lady Prashar, for tabling this regret Motion, which I support. She made a powerful case. I will not repeat the points she made but, in opening, I put six questions to the Minister.

First, why was removing probation recommendations not included in the root and branch review and why was there no prior consultation with all the stakeholders before the changes were implemented? Secondly, on the removal of probation recommendations, what impact assessments have been carried out regarding black, Asian and minority ethnic prisoners and IPP prisoners?

Thirdly, the National Association of Probation Officers is concerned that removing professional recommendations in parole will lead to inappropriate releases and the non-release of those who otherwise may have been granted parole. Therefore, what impact assessment has been carried out on this issue, and did the Government seek the views of the Parole Board itself about having to make release decisions without expert witness recommendations?

Fourthly, under the changes, what protections are in place for probation staff who are required to attend a public parole hearing? I agree with the noble Lord, Lord Patten, and the noble Baroness that these hearings should be public, but the question is specifically about the protection of parole officers—and, potentially, expert witnesses—when they are taking part in these hearings.

Fifthly, how many responses were there to the root-and-branch review, and how many of those were in favour of the public parole hearings? I echo the question of the noble Lord, Lord Carlile, about whether anyone at all supported the Government’s proposals.

Sixthly, will the Government withdraw these changes if the judicial review finds against them?

In July’s Justice Questions in the other place, Kate Green MP challenged Dominic Raab on the proposed changes. He argued that

“there is a risk that separate reports, whether from psychiatrists or probation officers and those who manage risk, may give conflicting recommendations.”—[Official Report, Commons, 5/7/22; col. 711.]

Sonia Flynn, the chief probation officer, added in September’s committee session that differing recommendations would seem

“quite confusing, given that we are one HMPPS”,

and that the new change

“kind of tidies”

that up. That was the justification.

I must say that I find that explanation very surprising. I am absolutely sure that Parole Board members are well used to assessing conflicting sources of information; it is what people who sit as judges, or in a quasi-judicial capacity, do all the time. In other contexts, such as criminal courts or family courts, it is absolutely routine to get recommendations from probation officers—or in the context of family courts, recommendations from experts—which can indeed be contradictory. That is what the judges or magistrates do when they decide the merits of a case.

I hope that the Minister, who is exceptionally experienced, will bring an open mind to this situation. There have been a lot of changes on the Government and Treasury Benches over the last few months—or days. He is in a position where he can bring an open mind to this, and I hope that he will respond to the noble Baroness’s regret Motion in that spirit.

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

My Lords, I am very grateful to all noble Lords who have contributed to this debate, and in particular to the noble Baroness, Lady Prashar, for tabling this regret Motion.

The principal concern is that the recent changes to the Parole Board Rules prevent prison and probation staff making specific recommendations in the reports that they give the Parole Board. It is said that this has implications for the sentence progression of individuals subject to parole review, and complaint is made that this was done through the negative procedure without consultation. What we are not considering today are other changes, such as changes relating to the move from closed to open prisons, which are, strictly speaking, not the subject of today’s regret Motion.

I will provide some background. The Parole Board of England and Wales is an arm’s-length body which, as has been pointed out, performs a judicial, or at least quasi-judicial, function. It is required by statute to decide whether prisoners serving eligible sentences can be safely released into the community—that is the board’s decision. The statutory test requires that the board must direct release if it is

“satisfied that it is no longer necessary for the protection of the public that the person should be confined.”

--- Later in debate ---

I simply point out that the change that we are talking about is quite limited. It is concerned with the removal of the previous requirement that written evidence submitted on behalf of the Secretary of State must include a recommendation. The previous legislation said that the staff reports must include a recommendation, and that provision is no longer in force. In other words, the reports continue as they did before, but there is no final conclusion that says, “I therefore recommend” whatever the recommendation is.

[Lord Ponsonby of Shulbrede (Lab)]

Is it still open for any expert to give a recommendation if they so choose?

[Lord Bellamy (Con)]

My understanding is that they are not to make recommendations. They can make their risk assessments and say whether there is a valid release plan; they can do all of those things. They can say this man or woman poses no risk to the public, or does pose a risk, or whatever it is, but they cannot express an opinion on the very question that the Parole Board is required to answer: whether the prisoner should be released. This is essentially a change that brings the decision on release back to where it belongs: the Parole Board, not the expert.

European Court of Human Rights

Lord Ponsonby of Shulbrede Excerpts

Monday 5th September 2022 Lords Chamber

[Lord Bellamy (Con)]

We remain a leading force for human rights in the Council of Europe; I will give two examples in response to my noble friend’s question. We are supporting the development of a binding convention to protect the profession of lawyer and the right to practise the profession without prejudice or restraint, and we advocated among other member states for greater awareness of the convention rights among all state parties. This led to a new recommendation in September 2021 on the dissemination of the convention and other relevant texts. In addition, we will shortly participate in the Council of Europe’s Steering Committee for Human Rights, which will start a review of the system for the selection and election of judges to that court.

[Lord Ponsonby of Shulbrede (Lab)]

My Lords, on 14 July in response to the Human Rights Act debate tabled by my noble friend Lady Whitaker, the Minister said he had plans to visit each of the devolved legislatures shortly to narrow the differences between the UK Government and those legislatures. Has he had those meetings, and how did they go in terms of narrowing the differences?

[Lord Bellamy (Con)]

My Lords, the position is that those meetings have not yet taken place. It proved quite difficult to arrange them in the Recess and in the light of the impending change of government. I am due to see the Welsh Government on the 19th of this month, and provisional dates for Scotland and Northern Ireland have been arranged for before the end of September.

Remote Observation and Recording (Courts and Tribunals) Regulations 2022

Lord Ponsonby of Shulbrede Excerpts

Tuesday 19th July 2022 Grand Committee

[Lord Hope of Craighead (CB)]

My Lords, I am sure this instrument will be widely welcomed. As the noble and learned Lord has explained, this builds on experience, which it is good to do, in two beneficial ways: it is making a temporary arrangement permanent and it is spreading the technological discretion right across the whole system, which is a very good idea. One does not want gaps in an exercise of this kind.

I have a point to raise on the detail of Regulations 3 and 4, simply to try to understand how this system will work. As the noble and learned Lord has explained, this will be an exercise of a discretion. Regulation 3 gives two very sensible matters on which the court must be satisfied, particularly sub-paragraph (b) on technological arrangements and so on, before the discretion is exercised. I have no problems with that, because it is very obvious that this needs to be done. I imagine that, if the court is being invited to exercise a discretion, it would be up to the advocate asking for it to provide the material the court needs to be satisfied with the points set out in Regulation 3.

Regulation 4 is trickier. It is a list of very sensible points which we are told the court must take into account. This is another example of something that has been happening over the years; in the Judicial Review and Courts Bill in particular, there was a list of things that the court must take into account, which caused some concern—some said the word “must” was wrong because it opened the door to criticism of the court if it perhaps failed to take something into account that it should have done. That problem lurks under Regulation 4. How will one be satisfied that the court has taken all these points into account without the court going through the entire list and saying that it has looked at sub-paragraphs (a) to (f)? Have the Government any thoughts on how this will work in practice? Is it simply to be assumed when the court exercises discretion that it has done this, or should it be transparent and laid out in some kind of understandable practice that these points will all be addressed and that the public will be told why and how the court has been satisfied on them?

I raise this not to tease the noble and learned Lord; it is just that somebody, somewhere, might start complaining that, let us say, sub-paragraph (a) has not been taken into account because the magistrate or the judge did not say so. One needs to be a bit careful with these lists to be sure how the thing will actually work in practice. I simply throw that out for the noble and learned Lord to consider. Maybe a definitive answer cannot be given today, but somebody needs to think about it, and maybe guidance needs to be given to those who are exercising the discretion so that they do not fall into a trap.

[Lord Ponsonby of Shulbrede (Lab)]

My Lords, we support these provisions. They will replace and extend the temporary emergency provisions included in the Coronavirus Act 2020 which allow for certain proceedings to be observed remotely and recorded. We believe in the principle of open justice and think this goes a step towards that and should be welcomed for that reason. However, we are aware that sometimes legal proceedings are very sensitive and painful, and attending a court or tribunal can be a difficult experience for people. For that reason, decisions regarding which types of proceedings should be broadcast or available to different people to observe should not be taken lightly. I am very aware that different jurisdictions will have different considerations in that respect.

Just for the record, I sit as a magistrate in the family, youth and adult jurisdictions, and I sat all the way through the coronavirus pandemic. I started off in the family jurisdiction doing court hearings by BT MeetMe and we graduated to MS Teams. We were making extremely difficult decisions which we felt we had no alternative but to make because of the circumstances which we found ourselves working in as a court.

Of course I agree with the objectives behind this statutory instrument, but I wanted to make one substantive point on the level of technology in these courts. It is highly variable between jurisdictions. When one is dealing with litigants in person, it is not unusual for them to be trying to do things on their mobile phones. Sometimes they have poor signal and all sorts of handicaps if they are trying to take part in court proceedings remotely. In my experience, when a court is 100% remote —that is, everybody is remote—it can be made to work. However, it is more difficult when it is hybrid—when some parties are in the room and others are not. Whether it is fair to go ahead with a hearing is ultimately a matter for judicial discretion, but certainly in my experience, hybrid hearings in various jurisdictions can be detrimental to people who are not physically in the room, and the court needs to be aware of that when it is deciding whether to go ahead with a case. Nevertheless, having said that, we welcome this statutory instrument and we will be happy to support it when it is put to a vote.

[Lord Bellamy (Con)]

My Lords, thank you. On the point raised by the noble and learned Lord, Lord Hope of Craighead, I am not sure that I have an answer off the cuff that I am able to give, and I entirely understand the point he makes as to the difference between “must” and “may” or similar expressions. I think the presumption, which I do not have the confidence to reproduce in Latin but which is to the general effect that everything is presumed to be regular unless the contrary is shown, would kick in here, and it would be a matter for the Lord Chief Justice to decide whether some further guidance is made necessary. I hope that those two points will at least accommodate the observation of the noble and learned Lord. However, the overall point is understood.

European Convention on Human Rights

Lord Ponsonby of Shulbrede Excerpts

Monday 18th July 2022 Lords Chamber

[Lord Bellamy (Con)]

Her Majesty’s Government, with respect, are not pushing ahead with any reckless decision. The policy of the Government is to remain within the convention on human rights; speculation to the contrary is quite unfounded.

[Lord Ponsonby of Shulbrede (Lab)]

My Lords, the noble and learned Lord has been asked this Question many times and has said that it is the Government’s policy to remain inside the ECHR. However, scepticism and questions persist because a senior government Minister, the Attorney-General, has a number of times over the last week said that she wants to withdraw from the ECHR. What conversations has the Minister had with the Attorney-General in the last few days to resolve this?

[Lord Bellamy (Con)]

I have had no conversations with the Attorney-General, and what the Attorney-General says or may have said in her capacity as a leadership contender is neither here nor there—as an unsuccessful leadership contender, I hasten to add. We need to get this straight. Unless we can define the boundaries of the debate we are about to have, we will be in a very unsatisfactory place. We are talking about the mechanisms of the convention—we are not talking about whether we should be in the convention or not. I remind the House that the UK has the best record of all member states within the convention; we are a party to, I think, seven United Nations conventions on human rights; we are very active in the Council of Europe in a number of respects; we fully support the ICC in its reaction to the Russian invasion of Ukraine; and there is no question of this fine tradition being mitigated, let alone abandoned.

Human Rights Act 1998

Lord Ponsonby of Shulbrede Excerpts

Thursday 14th July 2022 Lords Chamber

[Lord Ponsonby of Shulbrede (Lab)]

My Lords, there have been so many moving and informative speeches today. I think I am right that the only noble Lord who has spoken in favour of the Government is the noble Lord, Lord Sandhurst. All other noble Lords have spoken extremely eloquently against the Government’s proposals. I thank my noble friend Lady Whitaker for the way she introduced some of the practical benefits of the Human Rights Act and some of the myths promoted by parts of the press. I also echo her tribute to Baroness Greengross, who spent a lot of her working life promoting human rights as well.

I open by quoting Stephanie Boyce, president of the Law Society of England and Wales:

“The erosion of accountability trumpeted by the justice secretary signals a deepening of the government’s disregard for the checks and balances that underpin the rule of law. The bill will create an acceptable class of human rights abuses in the United Kingdom – by introducing”


under a new permissions stage

a bar on claims deemed not to cause ‘significant disadvantage’. It is a lurch backwards for British justice. Authorities may begin to consider some rights violations as acceptable, because these could no longer be challenged under the Bill of Rights despite being against the law. Overall, the bill would grant the state greater unfettered power over the people, power which would then belong to all future governments, whatever their ideologies.”

That is the view of the Law Society, but we have heard the views of many other equally respected bodies which provide close to a united opposition to the Bill proposed by the Government.

Over the past two decades, the HRA has given individuals a mechanism to enforce their rights in practice. It was originally introduced to bring rights home by incorporating the ECHR into UK law. As I have said on other occasions, I was a delegate to the Council of Europe at the time that that legislation was going through. It has enabled people to challenge unlawful policies, to be treated with dignity by public authorities and to secure justice for their families without having to go to the European Court of Human Rights in Strasbourg. We have heard from noble Lords, not least my noble friend Lady Kennedy of The Shaws, about the practicalities of getting to Europe before the Human Rights Act was introduced.

The Government are seeking to repeal and replace the Human Rights Act with a new Bill of Rights, a move that exceeds the Government’s manifesto commitment—a point made by the noble Lord, Lord Carlile. The Bill ignores the recommendations of the independent panel of experts as well as other expert groups. Such a change to our constitution—to the rights afforded to individuals across the UK—demands careful analysis and debate, including of its impact on the devolved nations. We have heard particularly informative contributions today from people who have been involved in Northern Ireland, Scotland and Wales. They have asked the noble and learned Lord a question about whether those authorities within the United Kingdom will be asked for an opinion on the Government’s proposal and what sort of consultation there will be with the devolved Administrations.

I have noticed that there is no date for the Second Reading of the Government’s Bill in the House of Commons—at least, that I could see on the parliamentary website. It may well be that the new Prime Minister will not share the current Lord Chancellor’s enthusiasm for the Bill. I was going to make similar points about Suella Braverman and her comments, but my comments are a couple of days out of date. Things have obviously moved forward quickly since then. I hope that the comments from the noble Lord, Lord Carlile, did not precipitate her withdrawal from the Tory party leadership contest.

Nevertheless, when will the Government accept that it is not possible to legislate domestically to change international treaty obligations? These obligations are binding and we are part of the fabric of those international agreements in the first place.

The Lord Chancellor has claimed that 70% of successful human rights challenges are brought by foreign national offenders who cite a right to family life, in the first instance, when appealing deportation orders. This figure is highly contested by legal professionals I have spoken to. They say that the figure is unknowable. What is not contested is that the number of foreign criminals deported by this Conservative Government is down by a quarter on last year. Is it not simply the case that the reason these criminals are not deported has less to do with the Human Rights Act and more to do with the Government’s incompetence in seeing through that process?

The Labour Party is proud of the Human Rights Act. A number of people in this debate played a part in it as it was introduced through this House, and in how it has developed over the last 20 years. The Conservatives’ Bill of Rights divides the nations of the UK and weakens the rule of law during an international crisis. On top of that, it increases red tape for British people seeking justice. The Conservatives are more interested in picking a fight and sowing divisions with this Bill, rather than tackling the cost of living crisis, which we have heard about, and the crisis in our criminal justice system. These are surely the most important issues that we should be dealing with in this Parliament. I understand that the noble and learned Lord is in an impossible situation when I ask him what he thinks will happen to the proposed Bill.

Judicial Review and Courts Bill

Lord Ponsonby of Shulbrede Excerpts

3rd reading
Wednesday 6th April 2022 Lords Chamber

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

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

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

[Lord Ponsonby of Shulbrede (Lab)]

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

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

[Lord Wolfson of Tredegar (Con)]

My Lords, I am conscious that the House has a lot of business before it today, but I will take just a few moments to say a few words to mark the end of the passage of the Bill through this House. Over the last few months, we have had some spirited discussions on our Courts & Tribunals Service and the relationship between the judiciary and Parliament. I am grateful to all noble Lords for their scrutiny of this Bill.

Of course, I was disappointed that the House voted, albeit narrowly, to remove the power for prospective-only quashing orders on Report. I will reflect further on the House’s decision on Report to remove the presumption in favour of using the new remedies from Clause 1. We had detailed debates over the merits or otherwise of the presumption. I can assure the House that I have heard and listened carefully to the arguments made to me both inside and outside the Chamber.

Parole System: Public Protection

Lord Ponsonby of Shulbrede Excerpts

Tuesday 5th April 2022 Lords Chamber

[Lord Ponsonby of Shulbrede (Lab)]

My Lords, I am commenting on the Statement in the House of Commons on the parole system and public protection. The Government have said that they will legislate for a new precautionary approach to the release of a top tier of the most serious offenders. They have said that there will be a more proscriptive release test. In the Labour Party, we support this approach in a broad sense but we have some questions.

First, who did the Government consult and what evidence are their proposals based on? Having looked at it, there seems to be very little, if any, citation in this report, which calls itself a root-and-branch review of the parole system. The Parole Board will be required to apply a precautionary approach in the top-tier cases, meaning that if it cannot conclude that the release test is met, it must either refuse release or refer the case to the Secretary of State. What is the estimate of the number of extra cases which the Secretary of State is likely to receive? What are the cost implications for legal aid, the cost of the new Upper Tribunal appeal model and the cost of internal civil servant resourcing to review the top-tier offender cases?

Another resource question is around the likely increase in time served by this group of prisoners. What modelling has been done on this increased cost? These proposed reforms may well increase prisoner discontent due to the increased difficulties in obtaining parole in a timely manner and the perceived unfairness in the way in which different prisoner categories are treated. Has this potential problem been modelled?

Proposed changes in legislation will increase the number of Parole Board members from a law enforcement background and ensure that such members sit on panels in top-tier cases. Can the Minister confirm that these new members could be serving or retired police officers? Does the Ministry of Justice anticipate any recruitment or retention problems with this new model?

The proposed new Parole Board rules will make it possible for public parole hearings in some cases and, for the first time, will allow victims to apply to attend hearings in full, if they wish. In general, we support this too, but it needs to be very carefully handled.

What about special measures for victims and/or prisoners, or remote attendance via a video link? In my experience of remote and hybrid hearings, they can be effective but need to be managed very carefully. A possible unintended consequence is that the Parole Board may not have a full and frank discussion with the prisoner at the hearing about their likelihood of release if the victim is present. Is this something the Ministry of Justice has factored into its thinking?

There are proposed new processes for the transfer of life and other indeterminate sentence prisoners to open prison conditions. This would deliver greater ministerial scrutiny of cases where prisoners have committed the most serious offences. As the noble Lord will know, there are recent examples where serious offenders have absconded from their open prison, which has been of great concern to the local community. Nevertheless, open prisons can be an important part of an offender’s rehabilitation, especially at the end of a long sentence. Does the Minister agree that transfer to an open prison should be seen as a privilege and not a right? Does he have an estimate for the number of extra prisoner transfers which would be considered by the Lord Chancellor?

Finally, I question whether the Ministry of Justice has sufficiently thought through the implications of a system that has the Secretary of State as the public face of parole and the ultimate arbiter in decisions. One could argue that there is a significant reputational risk to the Government, the Secretary of State and the Ministry of Justice from being put in this position. Does the Minister agree that this is a risk?

[Lord Thomas of Gresford (LD)]

My Lords, the Statement says that

“there is no such thing as a risk-free society; we cannot guarantee that no one released from prison will go on to commit a serious crime. Let us be very clear about that as we have a more honest debate about the assessment of risk”.—[Official Report, Commons, 30/3/22: col. 831.]

Well, let us have an honest debate. In 2020-21, the Parole Board conducted over 6,000 oral hearings and considered over 20,000 paper applications. A record 16,443 cases were concluded, and 4,289 prisoners were released, while 11,437 remained in prison for the protection of the public.

Who made these decisions? The Parole Board consists of over 300 members: 169 independent members from all backgrounds, all jobs and all parts of the country; 61 judicial members such as Crown Court judges or retired judges with a lifetime experience of the criminal justice system; and 68 psychologist members and 35 psychiatrist members with active careers in the prison system. It is, you may think, an experienced pool of people to assess risk.

What percentage of prisoners released by the Parole Board have committed further serious crime? The Parole Board itself said in an earlier report that the percentage of offenders who committed serious further offences in 2018-19 following a release decision or a move to open conditions was 1.1%. Can the Minister give a more up-to-date figure? If that is correct, it suggests that the professional and experienced Parole Board gets it as right as you would expect in its assessment of risk. As the Statement says,

“there is no such thing as a risk-free society”

and it cannot be guaranteed that no one will reoffend.

But the Parole Board, unlike a court or tribunal, is quasi-judicial. That means that politicians can interfere and get their hands on its decisions. That is what is happening here. The Government promise to provide

“further detailed criteria for … the statutory test.”

The statutory test is that the Parole Board

“must not give a direction”—

for release—

“unless the Board is satisfied that it is no longer necessary for the protection of the public that the person should be confined.”

So my second question is: what “further detailed criteria”? Why are we not told today if this is necessary? This Statement, I suggest, is all bluster with nothing thought through.

The Statement goes on:

“In cases involving those who have committed the most serious crimes, we will introduce a ministerial check on release decisions, exercised by the Justice Secretary.”


Well, there have been nine Justice Secretaries since 2005, with an average tenure of 21 months and two of them for less than a year. Five of the nine were non-lawyers. When justice was in the hands of the Lord Chancellor in this House, it was the pinnacle of his career; he did not need to look for further ministerial office. Today, Justice Secretaries move on from their comparatively small departments: consider Liz Truss or Michael Gove, for example, whose political ambitions may not even now have been fulfilled.

The current Justice Secretary is a lawyer. His page on the government website says:

“Dominic started his career as a business lawyer at City law firm Linklaters, working on project finance, international litigation and competition law.”


He later worked in Brussels. You might think that that was not the best training for the assessment of the risk of reoffending by an offender. Let us contrast that experience with that of the Parole Board members, which I have outlined. Has Mr Raab ever been in a criminal court—except to close it down or, if it is new, perhaps to cut the tape—or a prison? Is he the man to second-guess the decisions on risk taken by the highly experienced Parole Board? That is what is being thrust upon us.

The Statement declares that only 5% of the Parole Board come from “a law enforcement background”. Well, they do include a number of retired chief constables and prison governors. What is the Government’s intention? They say it is that members will

“have greater first-hand operational experience of protecting the public from serious offenders.”

The Statement also suggests that one such law enforcement person should sit with two other members on each hearing to form a tribunal. Does that mean that we can now expect a flood of police and prison officers to be appointed? Is the whole purpose of this alleged reform to skew the Parole Board towards negative decisions?

An alternative apparently being considered is that the Justice Secretary should sit as a judge with two assessors when he makes his decision. Is he serious? Personally, I think it would be an excellent use of his time to have direct experience of all the things that he is responsible for: the delays, the listing, the adjournments, the frustrations and the raw emotions of victims and the families of defendants. He would then discover that he is dealing with real people, mostly from disturbed backgrounds—people with problems and illnesses. I think he would then turn for help to psychologists and psychiatrists, and perhaps even to experienced judges. Perhaps he would create his own personal parole board to advise him. “Sit, sit”—I invite him to do so.

So the truth is that this Statement is not oven-ready. It aspires to be half-baked, but the central filling has not been decided on. Still, we are coming up to the end of the Session, and a few headlines for the Justice Secretary are very acceptable when his career has not finished.

Judicial Pensions Regulations 2022

Lord Ponsonby of Shulbrede Excerpts

Monday 4th April 2022 Grand Committee

[Baroness Kramer (LD)]

My Lords, on one level, I do not object to this legislation. In 2015, I think, the Finance Act made yet another round of changes to the various pension rules in our usual, chaotic way because we do not have properly consolidated legislation. Nobody recognised the unintended consequences that would flow from that for a wide range of taxpayers.

I am entirely with the noble Lord, Lord Davies of Brixton, on this: it was not just judges who found themselves in an unacceptable position that made it difficult to recruit and retain. We have had the same thing with senior medics, as he said, and senior people in the military. After ignoring the problem for months—people were constantly trying to raise the issue with them, for perhaps more than a year—the Government finally recognised that something had to be done. They have made different changes in different situations. I suspect that the temporary fixes that were put in place for the medics, military and senior civil servants will now run into serious trouble, given the inflationary pressures that will push up wages and the freezing of various thresholds.

I must say that judges clearly have the ear of those in power in a way that other professions do not. They have done an absolutely brilliant job of managing to carve out a solution that protects them entirely from the impact of those thresholds, which essentially meant that every additional penny people earned required them to pay a huge number of pounds in additional tax—talk about badly drafted legislation that was not thought through. I was particularly involved with some members of the military. We now have almost no three-star colonels as a result of people leaving that profession, and we had so many consultants, even during Covid, going out and working over weekends but knowing that it would have an awful impact on their take-home pay because of tax consequences which were probably never originally intended. I do not have a problem with that, but here is my problem.

The Government say that they have put in place the new scheme to deal with the threshold problem, and that it will cost an initial £20 million a year. That is not that much; what I object to are the other measures that the Government have taken to offset the full cost of the scheme. One change which flows from it is to raise the retirement age of judges from 70 to 75. I am afraid I was involved only in the early stages of the Bill but was then trying to juggle too much legislation and relieved of duties on it.

The Minister said that we must have a scheme that encourages recruiting and retaining the highest calibre of judges. Unfortunately, over many years—this country is like many others on this—we apparently looked at those who were women or people of colour and decided that they did not meet that high calibre, on the grounds of either their gender or race. We have embedded discrimination that has affected the shape of our whole legal system. In this day and age, we find that unacceptable and are attempting to change it fundamentally but it has been a very slow process.

The Government produced a judicial diversity statistics report in 2021. The higher courts in this country in no way reflect our population among their judges—not by a wide margin. That flows out in all kinds of ways. When judges are appointed, an eligible pool is first identified and then there are recommendations for appointment. I read from the Government’s report:

“From the eligible pool, recommendation rates for Asian, Black and Other ethnic minorities candidate groups were an estimated 36%”—


that is for Asians—

“lower respectively compared to White candidates.”

For black candidates, they were 73% lower respectively compared to white candidates and for “Other ethnic”, which I think includes mixed-race people, 44% lower. The report noted:

“All of these estimates were statistically significant.”


It goes on:

“The proportion of Asian and Mixed ethnicity individuals in the judiciary has increased since 2014, while the proportion of Black individuals has stayed the same in that time.”


The number is shocking:

“As at 1 April 2021, 5% of judges were from Asian backgrounds, 1% were from Black backgrounds, 2% were from Mixed ethnic backgrounds and 1% were from Other … The proportion of ethnic minorities is lower for senior court appointments (4% for High Court and above) compared to others”—


that is for the entire cluster. The Minister will know that I could go on and on with similar statistics showing the lack of diversity in our more senior courts.

When the core legislation that sits behind this SI first came to the House, the noble and learned Lord, Lord Judge, gave an estimate that the Government have not challenged: that by extending the retirement age from 70 to 75, producing sets of judges on our courts who reflect the population was put back by 13 years. It is huge, and the report on diversity helps us understand why. It says:

“It is worth bearing in mind that changes in representation will always be gradual due to the relatively low numbers of joiners to and leavers from the judiciary each year”.


The number of leavers from, and therefore joiners to, has been dramatically slowed by that increase in the retirement age.

I understand the concern of many people who become judges. They step away from very lucrative practices and cannot take side business to enhance their income. They are concerned about the impact on their pensions for the rest of their lives, and therefore they are keen to keep working longer. I notice that we have Members of this House, often with friends whose calibre they admire and whose skills they regard very highly—I have no question about that calibre and those skills—who are very supportive of allowing people to extend their working life from 70 to 75. But no one has been able to give me any satisfactory answer on the issue of diversity and courts where the judges reflect the make-up of our population.

I know there are various programmes to get more and more people from different backgrounds into the legal profession, but that is at the beginning of the pipeline. At the end of the pipeline, in effect, a major block has now been put on that progress. The consequence of trying to save them money has driven the impact of this statutory instrument, so I would like to know why the Government did not simply decide to bear the additional cost—I am not sure what that number would have been, but I doubt it is huge—and allow diversity to come into our courts in the way it would have with the retirement age of 70. We need to understand how the Government set their priorities and how much they thought was too much to spend on avoiding 13 years of delay in getting senior courts that reflect our nation, which I think is fundamental in any democracy. There will be a number, and I am sure the Minister is able to give it to us.

[Lord Ponsonby of Shulbrede (Lab)]

My Lords, I thank the Minister for introducing this statutory instrument. The parent Act to it, if I can call it that, is the Public Service Pensions and Judicial Offices Act 2022 and the Explanatory Memorandum states:

“These regulations establish the Judicial Pension Scheme 2022 … a scheme for the payment of pensions and other benefits to, or in respect of, eligible members of the judiciary … The JPS 2022 will be the only judicial pension scheme in which eligible judicial office holders can accrue a pension for service from 1 April 2022, on which date all other judicial pension schemes will be closed to future accrual”.


The scheme is made by the statutory instrument which we are dealing with today.

In his introduction, the Minister rightly said that the objective is to attract and retain excellent judges and to diversify the cohort of judges who apply to the court. The noble Baroness, Lady Kramer, majored on that issue and I will come back to it later in my comments. It is right that the noble Lord pointed out the substantial contribution that the legal services industry makes to the national Exchequer. He mentioned the figure of £29 billion a year and it is clearly right that we should support that. He also gave examples of judges being caught by lifetime tax limits on the amount that they can put into their pension schemes and reiterated the point about getting the best people to apply.

My noble friend Lord Davies made a substantial contribution to the Public Service Pensions and Judicial Offices Bill when we dealt with it relatively recently, for which I was personally grateful. He made a very fair point: it is difficult to constrain unique circumstances. He used those exact words, and it was an interesting challenge for the Minister. I agree that judges are special people in the way that we run our society, but there are other special people as well, as both noble Lords who spoke before me have said. Everybody, including humble citizens who just have an ordinary pension scheme, is suffering from the freezing of the overall pension pot and of the amount of money that one can put in regularly.

Turning to the contribution of the noble Baroness, Lady Kramer, perhaps I might give a brief anecdote. One of my magistrate colleagues has recently been appointed as a judge. His career profile is interesting: he qualified as a barrister and then, when he was in his early 20s, decided to become an airline pilot. He worked as a pilot for nearly 20 years, at the same time as sitting as a criminal and family magistrate. He has just resigned from the magistracy and is sitting as a criminal recorder—in south Wales, as it happens. That is a good example of widening the cohort, which is to be welcomed. But the noble Baroness raised a much more substantial problem about the lack of diversity among judges, particularly senior judges, and gave some stark statistics of which I suspect the Minister is well aware.

The noble Baroness also made the point about the delaying effect of the extension of the retirement age from 70 to 75. I know that she made that point at Second Reading of the Public Service Pensions and Judicial Offices Bill, because I was there. I was very sorry that she could not follow that up in later stages of the Bill because I moved an amendment to make the retirement age 72 rather than 75, partly to mitigate the effects that she talked about. Unfortunately, that amendment was not won. Nevertheless, the substantive point remains: there is a very long way to go to diversify the judiciary, particularly the senior judiciary. I will be interested to hear the Minister’s answer as I know that he is very much aware of that issue.

However, we on the Opposition Benches support this statutory instrument. I suspect that this is not the last we will hear of it, as it seems to be an iterative process to amend public sector pensions and judicial pensions, but we support the instrument.

Judicial Review and Courts Bill

Lord Ponsonby of Shulbrede Excerpts

Report stage
Thursday 31st March 2022 Lords Chamber

[Lord Ponsonby of Shulbrede (Lab)]

My Lords, the Labour Party supports the amendment from the noble Lord, Lord Anderson, to remove the statutory presumption and make it clear that judicial remedies should be restricted in this way only in exceptional circumstances. The clause’s effect would be for courts to have less power to provide redress or to compensate those affected by past uses of the unlawful decision. At first glance, that might seem quite a small change to judicial review, but the effects, we believe, would be chilling.

There is widespread opposition to the clause, and the noble and learned Lord, Lord Etherton, quoted a number of the well-respected groups who oppose it. The noble Lord, Lord Marks, cited in particular environmental groups that are worried about the potential effects of the Government’s proposals. I listened very carefully to the noble Lord, Lord Faulks. It is my understanding that the Independent Review of Administrative Law did not recommend prospective-only remedies; it did not recommend presumption for suspended quashing orders; it did not recommend imposing on the courts a list of factors to determine their use; and nor did it recommend ouster clauses. Even the Government’s own consultation paper conceded that a prospective-only quashing order would impose injustice and unfairness on those who have reasonably relied on its validity in the past.

Suspended and prospective quashing orders offer delayed and forward-only remedies. Such remedies could allow environmentally damaging activities to continue in the period between a contested decision and the taking effect of a suspended or prospective-only quashing order.

I listened to the debate with great interest. It was particularly interesting to hear senior lawyers and former judges disagreeing on the points which we have just heard. The noble and learned Lord, Lord Judge, as is typically the case when he speaks, very simply explained his perspective. I think his point was that judges already have broad discretion. They do not need a presumption. A presumption is the only guidance put in the Bill and it is not necessary. He went on to laud the huge benefits we have seen through judicial review and seemed to think that the guidance of the word “presumption” in the Bill would be disproportionately influential, if I may put it like that. That was contested by other noble Lords, including the noble Lord, Lord Sandhurst, but surely if that serves as guidance in the Bill, it will be followed unless there is good reason not to—that is the way I understand it.

So we will certainly support the amendment in the name of the noble Lord, Lord Anderson. We will also support the noble Lord, Lord Marks, if he chooses to press any of his amendments to a vote. We see the amendment from the noble Lord, Lord Anderson, as a compromise amendment that is more in the spirit of the recommendations of the independent review. Nevertheless, the more profound points made by the noble Lord, Lord Marks, are views which we would support if he chose to press his amendments to a vote.

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

My Lords, I begin by wishing the noble Lord, Lord Anderson, well and the noble Lord, Lord Pannick, a safe trip home.

This clause aims to reform remedies on quashing orders in judicial review proceedings so that more flexibility is available to the courts. As my noble friend Lord Faulks noted in Committee, the key for the Independent Review of Administrative Law was that there should be some flexibility to stop some of the “hard edges” that can arise with a quashing order, which operates ab initio, such that the decision is struck down with retrospective effect. This clause is designed to do just that.

I am grateful to the noble and learned Lord, Lord Judge, for his kind words—dare I say that I wish his cat well?—but I confess that I think he expressed the reasons for the remedial flexibility better than I will. I shall come to the presumption point on which we regrettably differ a little later.

The proposed effect of the clause is twofold. First, it allows for the effects of a quashing order to be suspended, or delayed, for a period. Secondly, the clause enhances the flexibility of the court in allowing it to decide whether the retrospective effect of a quashing order should be removed or limited—that is what we are calling a prospective quashing order. As a number of noble Lords referenced, both in Committee and in indeed in print last week in the Times law section, the noble and learned Lord, Lord Brown, who has not participated for reasons which have been explained, has set out clearly the arguments for this additional remedial flexibility. The way he put it in Committee, where he said that Clause 1 confers on the judiciary a power

“to do justice not just to the claimant in a particular case but on a wider basis”—[Official Report, 21/2/22; col. 57.]

really captures what the clause is intended to achieve.

Against that background, I come to Amendments 1, 2 and 3 in the name of the noble Lord, Lord Marks, which would remove prospective-only quashing orders. The noble Lord made a point which has been made before in this regard, which is that there could be situations where a prospective quashing order could cause significant injustice if used incorrectly. The short answer to that point is that we are not forcing the court to use these orders in any case. Just because a power is capable of being exercised, it does not follow that it will be used inappropriately. That is the short answer to the tax case example. It is the answer I gave in Committee, and I stand by it. I say respectfully that I do not think that that sort of example proves any wider point of principle; it is merely an example of a case where this particular remedial order would be inappropriate—in which case the court would not use it. I suggest that that is a complete answer to the tax case example.

The principle of the matter was also covered in this debate. Where we have reached essentially a disagreement is on the constitutional propriety of a court deciding that an unlawful action should nevertheless have some effect and be treated as if it were valid. The short point there is that a judge does not need to go outside their remit of doing justice to the claimant and to the public interest in deciding to use a prospective quashing order. I set out in Committee how such an order could deliver a much fairer and appropriate result in a range of circumstances. I invite the House to consider whether there is a principled distinction between a suspended order and a prospective order. I suggest that the matter comes down to this: you are either in favour of remedial flexibility or you are not. Both proposed new remedies seek to give the courts remedial flexibility. As I shall mention later in the context of Canadian jurisprudence, what we see there are strong conceptual links between the suspended order and the prospective-only order.

Amendment 4 would remove subsections (9) and (10), known as “the presumption”, the intended effect of which is to ensure that the courts will use either prospective or suspended quashing orders if—and this is an important “if”—doing so would provide adequate redress, and unless the court considers that it has “good reason” not to do so. We have heard in this debate good examples of where these remedies would be useful. Against that, two arguments are put with regard to the presumption.

The first argument is that presumption is harmful because it impinges on judicial discretion, and the second is that it is entirely unnecessary because it does not constrain the court in any material manner. The court will use these remedies anyway when it wants to do so. The first point, which is obvious, is that both those points cannot be right: they are materially inconsistent. If I may so, respectfully, only the noble and learned Lord, Lord Etherton, could have managed, with his customary skill, to put both points against me in the same speech. They are inconsistent; I will, nevertheless, take them in turn.

First, I do not accept that the presumption is in any way dangerous or harmful. It is, I repeat, a low-level presumption. The presumption applies only, according to subsection (9) of the new clause inserted by Clause 1,

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

the court does not have to use these remedies. Therefore, I respectfully disagree that there is any attack here on the rule of law. Indeed, to respond to the point made by the noble Baroness, Lady Jones of Moulsecoomb, the effect of these new remedies—as I think I said in Committee—might be that the Government lose more judicial reviews, because the court might be more prepared to interfere in circumstances where the consequences of the court’s ruling is not a complete ab initio uprooting of the decision. Therefore, far from limiting judicial review in favour of the Government, if anything, this actually helps applicants in their judicial reviews against the Government.

The other argument, that it is unnecessary, does have more force. Here I come back to the point made by the noble and learned Lord, Lord Judge. We heard an example from the noble Lord, Lord Faulks, about washing powder. Dare I say that what follows now is not meant to be “soft soap”, if I can continue that metaphor? The noble and learned Lord, Lord Judge, said that my argument on this point was the least attractive argument that I have ever made either in the court of Parliament or in the Law Courts. I am not sure that he appreciates just how high a bar he set by that test.

The purpose of including a low-level presumption is to do just that: it is to nudge the court to consider and use these new remedies where they are appropriate, and to build up a strong body of case law to increase legal certainty. In Canada, as I mentioned earlier, there are the Schachter categories, which have established guidelines for the use of suspended quashing orders. Their use actually encompasses what we would call prospective quashing orders as well. We envisage that this presumption in subsection (9) will nudge the courts into that more rapid accumulation of jurisprudence.

I think that if I were to say any more, I really would be repeating arguments with which the House is now familiar. For the reasons that I have set out, I invite the noble Lord to withdraw his amendment.

--- Later in debate ---

[Lord Ponsonby of Shulbrede (Lab)]

My Lords, we strongly support Amendment 5, moved by the noble and learned Lord, Lord Etherton, which is really an alternative Clause 2. It offers a much improved and fairer alternative to the Government’s proposal to remove Cart reviews entirely. Cart judicial reviews should not be abolished. These are most often used in serious asylum and human rights cases. Cart is a vital safeguard. There is already a high threshold for bringing them and the proposed saving is tiny compared with the human cost of abolishing them.

There are two principled points to make. The first concerns the constitutional role of the High Court in guaranteeing justice in a tribunal system, and the second concerns the constitutional role of the High Court as the guarantor of the lawfulness of any of the acts in any public body. The noble and learned Lord, Lord Etherton, gave a forensic examination of the figures. I was writing down some of his numbers. The central point was to cast doubt on the benefit which the Minister claimed in Committee.

The noble Lord, Lord Faulks, described the amendment as a fudge. The noble Lord, Lord Marks, described it as a compromise, which I prefer. Many cases come before the court. I recognise that a relatively large number of them are unmeritorious. As I mentioned in Committee, a number of legal advisers who sit in the magistrates’ court go on to work in the High Court—it is a sort of career progression. They will look at those cases when they prepare for the judges to examine the papers. They have told me that a lot of the cases that they deal with are, in their view, unmeritorious, although they use less diplomatic language. Nevertheless, the route is still there. The High Court is the highest court in the country and the compromise put forward by the noble and learned Lord, Lord Etherton, retains that stamp of approval through his proposed amendment, so we support it.

My Amendment 6 would require the Lord Chancellor to carry out and publish a review of the operation of the Cart judicial provisions within Clause 2 not more than two years after the passing of this Bill. The noble Lord, Lord Faulks, said that he thought that this may be an expensive and fruitless exercise. I will not be moving this amendment to a vote. Part of its purpose is to ask the Minister to explain how the Government will monitor the operation of the JR system, including this element of it, because the central point is to retain confidence that the system is working adequately. It is to that end that I tabled this amendment.

[Lord Wolfson of Tredegar (Con)]

My Lords, a Cart judicial review is a challenge of a decision of the Upper Tribunal to refuse permission to appeal a First-tier Tribunal decision. A Cart judicial review therefore gives the losing party another—or yet another—chance to challenge a decision to refuse permission to appeal, this time by way of judicial review to the High Court, which then opens a further route to the Court of Appeal if permission for the judicial review is refused by the High Court.

The long-established precedent in our judicial system is to have two appeal tiers and for a case to be considered for permission to appeal by two different judges. This is seen with the First-tier and Upper Tribunal system that we have. In this example, the applicant will have lost in the First-tier Tribunal, will have been refused permission to appeal by the First-tier Tribunal, and will then have been refused permission to appeal by the Upper Tribunal, and that should be an end of it. However, a Cart judicial review offers the applicant a third attempt to gain, effectively, permission to appeal, an anomaly not seen in the criminal or civil court systems. It is this third bite of the cherry that we seek to remove. The Bill does this through an ouster clause.

In Committee, we had a short debate about the constitutional propriety of ouster clauses which I will not go into again today, since it was not raised in today’s debate. Whatever position we take on ouster clauses as a matter of principle, I would hope that everyone in the House would agree that we must keep the court system efficient. When we think about efficiency, we look at the nature of the courts and tribunals that we have at different levels of our system. The Upper Tribunal is a senior court with a specialist jurisdiction, so it is well suited to determining questions of law authoritatively and accurately. The fact that it appears to get 96% of its determinations on permission to appeal right re-enforces its place as the best jurisdiction to settle those issues.

I remind those Members of the House who might be saying, “What about the other 4%”, that in every other jurisdiction we do not know the error rate because we only allow two bites of the cherry, and therefore do not know how many of those second bites, if I may put it that way, would have tasted different if a third judge had taken a bite. This clause restores balance in the proper functioning of the tribunal system and fixes a serious inefficiency. I welcome particularly what the noble Lord, Lord Faulks, said about the background to it.

Turning to Amendment 6, in the name of the noble Lord, Lord Ponsonby of Shulbrede, I heard what he said about the purpose in tabling the amendment and will try to respond to that. This is the amendment requiring the Lord Chancellor to carry out and publish a review. The Government have committed, in our impact assessment, to monitoring the new system, and in particular, the impact on those identified as affected groups within that document.

While I agree that it is important that the Government do not simply legislate to make changes to the justice system and then neglect to assess the actual effects of those changes to the system, creating a duty in legislation to review and publish the outcome of that review within two years would be disproportionate, particularly given that commitment to monitor the effect of this change. Further, it is unlikely that we would see the full effect of this change just two years after its introduction, as the legislation does not apply retrospectively. For those reasons, I cannot accept the amendment, but I hope that I have explained to the noble Lord, and the House, why.

Turning to Amendment 5, in the name of the noble and learned Lord, Lord Etherton, replacing Clause 2, rather than ousting the High Court’s jurisdiction over the Upper Tribunal, the new clause would essentially move the ouster one step up the court system. It provides that the decision of the High Court or other relevant supervisory court in reviewing an Upper Tribunal permission-to-appeal decision is final, preventing any escalation to the Court of Appeal but introducing a rather unusual, if not entirely novel, appeal path directly from the supervisory court to the Supreme Court in cases involving a point of law of general public importance. That was the tweak by the noble Lord, Lord Pannick, to the amendment, that we saw in Committee.

With or without that tweak, my concern is that the amendment does not address the main problems, which are, first, that approximately 750 Cart cases per year place a burden on the High Court, and, secondly, that the Cart decision and approach undermines the tribunal system and the proper relationship between the Upper Tribunal and the High Court. I recognise that there is a burden on the Court of Appeal at present, as some Cart cases will be appealed to that court. I do not have precise figures, but I understand that those to the Court of Appeal are substantially less than 750 cases of this kind per year. The burden of the current system falls on the High Court and, for reasons of its resourcing and efficiency, that is where we need to concentrate our efforts.

I am very grateful to the noble and learned Lord, Lord Etherton, for his engagement with me and my officials on the underlying data. Although there appear to remain some differences between us, I think we have come to a closer understanding on the data point. Let me clarify just one point for the record, which is that the 180 days of judicial time was always estimated as around 150 days of High Court time and the remaining 30 days or so in the Upper Tribunal.

Turning to one of the other substantive points made by the noble and learned Lord Etherton, he mentioned that his position goes further than mine in limiting the exemptions for onward appeal, and that he is concerned that the exemptions in the current Clause 2 will be insufficient to prevent many applications to the High Court. I understand the genesis of that concern but, with respect, I think it is unfounded. The exemptions are narrow and focused. We have seen from failed ouster clauses in other circumstances that clear words are needed for an effective ouster clause. In this case we think that we increase that clarity by some limited exemptions, appropriate to the proper relationship between the Upper Tribunal and the High Court.

The exemptions create a clear and simple distinction: questions of fact and law go to the Upper Tribunal, which is a senior and specialist court, and review is retained in the High Court for jurisdictional or procedural matters. That is a neat and robust delineation. I respectfully say that the dichotomy that the noble and learned Lord presents—that we should either have Clause 2 with no exemptions or take his halfway house—is a false dichotomy. I suggest that the current Clause 2 is a sufficient and well-crafted approach to the problem.

Finally, the halfway house put forward by the noble and learned Lord would perpetuate the current oddity of Upper Tribunal decisions being reviewed by the High Court on grounds not limited to extreme jurisdictional or procedural matters. We should trust the Upper Tribunal to get these decisions right and, as I have said, it does so, to an extraordinarily high percentage. The halfway house therefore does not satisfy the Government’s policy position of correcting the Cart decision. Cart was, with great respect, a legal misstep. We heard in Committee from the noble and learned Lord, Lord Hope of Craighead, who was party to the decision; he accepted, with hindsight, that it was a legal misstep. We should overturn it effectively, which is what the current Clause 2 does. The halfway house put before us by the noble and learned Lord, Lord Etherton, would, I fear, leave us in a legal no man’s land. For those reasons, I respectfully invite him to withdraw the amendment.

--- Later in debate ---

Moved by

[Lord Ponsonby of Shulbrede]

7: Clause 3, page 5, line 37, at end insert “and
(b) it is not a recordable offence, as specified in the Schedule to the National Police Records (Recordable Offences) Regulations 2000 (S.I. 2000/1139).”Member’s explanatory statement
This amendment seeks to exclude any offences which are recordable from the automatic online conviction option.

[Lord Ponsonby of Shulbrede (Lab)]

My Lords, this whole group of amendments is about criminal procedure divisions. It is not my intention to press any of these amendments to a vote, but to look at the broad sweep—if I can put it like that—of the way the various elements of the emergency legislation for Covid, for example, and other things are being put into criminal procedures on a more permanent basis. I remind the House that I sit as a magistrate and I have personally sat in the Covid emergency-related courts over the last two years.

I will go through these amendments relatively quickly, even though they are important amendments. Amendment 7 seeks to exclude any offences that are recordable from the automatic online conviction option. The existence of a criminal record can, for example, seriously undermine someone’s chances of finding employment, especially in certain sectors and professions, including nursing, social care, childminding and teaching; of accessing educational and training opportunities; of obtaining certain types of insurance; or of having the ability to travel to certain countries. For non-UK citizens, criminal records can affect their right to remain in the country. If the automatic online procedure is introduced, it is crucial that it applies only to those offences for which convictions are unlikely to have an impact on individuals’ rights and opportunities. It is in that spirit that I tabled Amendment 7.

Amendments 8 and 13 are also probing amendments, of which I gave notice to the Minister yesterday, to question to what extent courts will be required to share information with the media and public about cases that have an online or written element. Concerns have been raised that the Bill could damage the principle of open justice and access to the courts’ information. As the Minister knows, this was raised with me only yesterday by the Guardian Media Group; I received a briefing on this matter, which I forwarded to him. I will not go through all the points that are raised in the briefing, but there is a concern that, if the Bill becomes law, it will mean an end to many first appearances in the criminal courts, with the consequential significant reduction in information provided to the media. Various examples are given in the briefing. Although the Minister pointed out in Committee that HMCTS has guidance on this matter, the reality is that there is nothing in the Bill that requires the steps in the guidance to be taken. The purpose of these amendments is to encourage the Minister to give a fuller explanation of the way the media will get access to the courts.

I move on to Amendment 9, under which the accused must have obtained the age of 18 when charged to enter a guilty plea in writing under Clause 4. Children are inherently vulnerable in nature and possess a well-evidenced propensity to plead guilty, notwithstanding the evidence or potential defences—that is in the briefing that I have from Justice. I have to say, talking as a youth magistrate, I think that children also plead not guilty when they are not properly advised. Lawyers need to spend time with youths to get them to explore the impact of whatever their plea is going to be. I have seen ill-considered pleas, if I can put it like that, so I think it is very important that they are properly advised before they make a plea in court. As the chair of the Justice Committee, Sir Robert Neill, pointed out at Second Reading in the House of Commons:

“What is the logic in using the age of 18 in one provision and 16 in a provision that covers broadly similar grounds? We need particular safeguards for dealing with young offenders, to ensure that they do not enter a plea that is not fully informed, either through immaturity or a lack of good advice, as that could have permanent consequences for their future.”—[Official Report, Commons, 26/10/2021; col. 206.]


Amendment 10 proposes:

“Within two months beginning with the day on which this Act is passed, the Secretary of State must commission a review and publish a report on the effectiveness of the single justice procedure.”


As I said, this is a probing amendment to give the Minister an opportunity to commence a review of the procedure to see whether he is satisfied that it is bedding in properly and functioning in an appropriate way. Amendment 11 would guarantee that defendants have access to legal advice before submitting a plea under the provisions of Clause 6. Amendment 12 would ensure that an accused person is informed not only about the consequences of giving or failing to give a written indication of plea but the potential legal and practical consequences of pleading guilty.

Various pressure groups, if I can call them that, have expressed concern about the written procedure of indicating a plea of guilt without proper advice. The Law Society contends that unrepresented defendants will not have the necessary legal knowledge to know whether they are in fact and in law guilty of an offence. Without legal advice, a defendant will likely not understand the full implications of their decision to indicate a plea and the possible consequences of entering a guilty plea. A seemingly innocuous decision made in writing or online could have significant consequences for the defendant.

I know that the Minister’s response to that point will be to say, “They do it in regular courts, so what is the difference here?” But the answer to that point is the ease of doing something by accident. When you physically go to a court, even if you are unrepresented, the environment is such that you know that you are involved in a serious matter, and there is also an opportunity for interaction with judges or magistrates. Certainly, in my experience, they will explore the plea, whether guilty or not guilty, to see whether people understand what they are saying when they respond to the question. The concern is that when this procedure is online there is a temptation to press that button without being aware of the consequences, and that concern is addressed by Amendments 11 and 12.

Amendment 14 would delete Clause 8, thus removing the written procedure for children for indicating plea and determining the mode of trial. Clause 8 would allow children to use the new allocation procedure. That is despite the fact that existing law rightly affords children additional productions and safeguards to reflect their inherently vulnerable nature and well-evidenced propensity to plead guilty—although I question that last point, even though I am reading out that briefing. The point is the same one: people need to be properly advised and understand the gravity of the situation. When dealing with allocation, it is an opportunity for everyone, and children in particular, to fully understand the situation that they are in.

Amendment 15 would delete Clause 9(5), which will introduce a power for the court to proceed with allocation proceedings in the absence of a child defendant. This is a similar point to the one I have just made. We are not convinced that the supposed merits of having a child absent when this decision is made outweigh the risks of disadvantage and lack of safeguards. This is repeating the point I made on the earlier amendments that, certainly in my experience, when a court is deciding on allocation, it sometimes goes into some level of detail on the case itself and it is absolutely right that the young person—and the parents, I might say—should be present when that is being heard. One thing I absolutely always do when I am in youth court is make sure that the parents understand what is being said against the youths, because the youths do not necessarily tell the parents why they are there in the first place. So I think it is an important piece of procedure.

Amendment 17

“would ensure that the new increased magistrates’ sentencing powers would be subject to regular reporting on their impact, including with respect to those with protected characteristics, every four months.”

The noble Lord, Lord Wolfson, argued that the Government already publish data, but I will read out the data that is published. The Government currently collect the following data: first, quarterly data on custodial sentences and average sentence length in criminal courts; secondly, cross criminal justice system scorecards; and, thirdly, criminal justice outcomes data. So, those data which are currently collected will not measure the impact of the increased sentencing powers for magistrates; there needs to be a more specific approach to properly capture those increased sentencing powers, and that is the purpose of this amendment.

Amendment 18 would delete Clause 14, alongside the deletion of Clause 8. I have spoken to this already; it is consequential on the earlier amendment.

Finally, Amendment 37 would provide that, before local justice areas are abolished, the Lord Chancellor must: undertake a consultation with relevant stakeholders; lay before Parliament the report and findings of such consultation; and provide a response explaining whether and how such issues which have been identified would be mitigated. I will say a little more about this amendment. I had thought this was a relatively innocuous amendment. Noble Lords may be aware that magistrates are arranged in local justice areas. My local justice area, for example, is central London, where there are about 300 magistrates. We have a bench chairman, elected by us, and she has a pastoral role and an administrative role in managing all the magistrates within that local justice area.

I understand that this is going to be reviewed, but the argument for doing away with this structure and moving to structure that is more similar to other tribunals is that it would make the process more flexible. But the point I made in Committee, which I repeat now, is that my experience as a current panel chairman of the Greater London family panel—I have about 300 family magistrates who I am currently responsible for—is that every single day I am dealing with pastoral matters. I think it is an important role and I very much hope it will be retained in whatever future structure is landed on, but I understand there will be consultation. I beg to move.

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[Lord Wolfson of Tredegar (Con)]

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

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

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

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

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

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

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

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

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

[Lord Ponsonby of Shulbrede (Lab)]

Just to explore that point a little more, does that mean that somebody who changes their plea to guilty, for example, when they physically turn up in court will get the full 30% discount on any sentence that may be given in the court?

[Lord Wolfson of Tredegar (Con)]

I think that is correct, but let me write to the noble Lord on that point. My understanding is that the indicated plea of guilty cannot be used against them. I appreciate the noble Lord’s point is slightly different. I think the answer to it is yes, but I will write to him so that he is in possession of accurate information before the Bill comes back to this House. He will get a written response from me on that point, unless I get the answer electronically before I sit down—that is a challenge to the team.

Amendment 11 seeks to guarantee that defendants will have access to legal advice before they indicate a plea. As I think I said in Committee, we believe this concern is addressed by the fact that defendants will be able to access the new online procedure for indication of plea and allocation only through their legal representative. This is because the new procedure will be available only through the common platform, which is restricted to qualified legal professionals. I have no objection to making the requirement to seek legal advice clear in legislation, but the right place for this would be in the Criminal Procedure Rules, remembering that this will be a plea indication only, not the entry of a plea at court.

Amendments 14, 15 and 18 seek to remove children from the new written procedures and powers relating to pre-trial plea and allocation proceedings for offences triable either way. So far as Clause 8 is concerned, the same safeguards as apply to Clause 6 apply here. Like adults, children will be able to proceed with the new written procedure for online indication of plea and allocation only through a legal representative, and they will be required to make a subsequent court appearance to confirm their plea. This will provide the same opportunities for the court, as we have heard from the noble Lord’s experience, to satisfy itself that the child has understood the position that currently applies.

Clause 9 creates a new clearly defined set of circumstances that would enable a court to allocate a child’s case in their absence. Again, I explained these conditions in some detail in Committee. The key point is that they are far more stringent than those prescribed for adults, even though children cannot elect for jury trial. Those safeguards guarantee that a child will engage with the court before and during the allocation hearing. Even where that does not happen for some reason, the new power will provide courts with the flexibility to progress the case, but only after they have taken significant steps to confirm that it is appropriate and in the interests of justice to do so.

The new overarching safeguard for written proceedings created by Clause 14 will exist alongside the current legal requirements for a parent or guardian to attend at court during all relevant stages of the proceedings. Therefore, Clause 8, read together with Clause 14, will provide more opportunities to ensure that parents and guardians are involved in children’s cases before the first hearing at court.

Over and above that, the courts have a statutory duty to protect the welfare of children and prevent them offending. Clauses 8, 9 and 14 should help ensure that cases are progressed more expeditiously. That means that interventions designed to tackle offending or reoffending can be made at the earliest opportunity. I also point out that these provisions can help reduce the undoubted stress of travel, with a child having to go to court physically, or the disruption of a child having to miss school to attend preparatory hearings at court, because they reduce the overall number of occasions when the child has to be physically present in court.

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[Lord Wolfson of Tredegar (Con)]

My Lords, I was just about to come to that point. I have heard what the noble and learned Lord has said. We will certainly consider what data we can publish that would go towards meeting that point. I would be happy to drop the noble and learned Lord a note on that. We have to think about how this new data fits in the with the current data sets, and we need to publish things in an accessible way. I absolutely understand the underlying point. It goes back to the point I was making in the previous group, which is that we should not just make changes and not then assess how they are working; equally, we do not want to be chasing our tails on data. There must be a way through that.

Let me now come to local justice areas, on which we heard from the noble Lord, Lord Ponsonby, with personal experience. Amendment 37 would require the Lord Chancellor to undertake a consultation with relevant stakeholders regarding the proposed removal of local justice areas. This provision will ensure that magistrates’ courts have the flexibility to assign cases and magistrates in a way that best meets local needs. Ultimately, it is up to the Lord Chief Justice to determine what new arrangements are to be put in place. He has a statutory duty to ascertain the views of lay magistrates on matters affecting them. Magistrates’ courts already work closely with local justice partners to manage court business. I confirm that they will be fully consulted, along with local magistrates, the Magistrates’ Leadership Executive and the Magistrates’ Association, before any changes are made.

I turn to the single justice procedure: Amendment 10 seeks to introduce a new clause which would require a review of that procedure, including its use to prosecute Covid-19 offences, and the transparency of the procedure. I have previously argued to the House that there is in fact greater transparency for cases under this procedure, rather than those that take place physically in court. The press receives a detailed list of pending single justice procedure cases, alongside the prosecution statement of facts and the defendant’s statement in mitigation. On the fairly rare occasions, these days, when the press turn up to a magistrates’ court hearing, they do not generally get that material, so they do get more material online than they do when they turn up.

I am afraid that there are errors in all courts; courts are run by humans and, while people do their best, errors occur. As far as Covid-19 offences are concerned, the majority of errors were detected by the single justice and their legal adviser, and dealt with appropriately by dismissing the case. There are other safeguards in place to address errors where they occur. I am not aware of any evidence to suggest that the error rate for prosecuting Covid-19 offences was higher under the single justice procedure than any other court procedure, or indeed that this procedure was the cause of the errors. We believe that the primary cause of the errors was not the process used; rather, it was the volume of regulations, combined—as noble Lords will remember—with the speed of introduction. Work was done quickly with police forces and court staff to reduce, and to try to eliminate, those errors. The single justice procedure is reviewed on a regular basis to ensure that it remains open and accessible.

There are some amendments in my name which are all minor and technical in nature. I note that there were no questions on these amendments, so I am not proposing to go through them in any detail, unless noble Lords want me to do so. In the absence of acclamation, I will take that as a “Please get on with it.” However, that means that, in my reluctance to spin it out any longer, my team have not been able to get back in time with the answer to the question from the noble Lord, Lord Ponsonby, on guilty discounts. I will have to write to him on that, and I undertake to do so.

I hope that, for those reasons, I have set out the opposition to the noble Lord’s amendments. I invite the House to support the few government amendments in this group.

[Lord Ponsonby of Shulbrede (Lab)]

My Lords, I beg leave to withdraw Amendment 7.

Amendment 7 withdrawn.

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[Lord Wolfson of Tredegar (Con)]

Keep taking the tablets, my Lords. When we last debated these clauses, a number of noble Lords, including the noble Baroness, Lady Chakrabarti, invited and urged me to meet Inquest. I am grateful for that urging, because I had a very productive and informative discussion with it last week on the measures in the Bill and some wider measures. In fact, Justice also attended the meeting. While it is fair to say that there are differences of opinion between us, I assured them that the Government’s priority remains to make certain that the bereaved are at the centre of the coronial process. The measures in the Bill support this priority. We seek to reduce unnecessary procedures in the coroners’ courts and that will, in turn, reduce delays in the inquest process, and reduce again the distress to bereaved families.

The amendments in my name in this group are minor and technical. They are consequential on Clause 39, which allows a coroner to discontinue an investigation should the cause of death “become clear”, and they remove some obsolete references to post-mortems from existing legislation.

Those are the government amendments. However, I am conscious that the noble Baroness, Lady Chapman, and the right reverend Prelate the Bishop of St Albans have other, more substantive amendments in this group. Perhaps the noble Lord, Lord Ponsonby, will speak on the noble Baroness’s behalf. I will let them propose their amendments before I respond to them.

[Lord Ponsonby of Shulbrede (Lab)]

My Lords, Amendment 21 would ensure that certain safeguards were met before a coroner could discontinue an investigation into a death. Family members and personal representatives of the deceased must be provided with a coroner’s provisional reasons for considering that the investigation should be discontinued, helping to ensure that family members make an informed decision as to whether to consent to the discontinuation.

Amendment 22 would provide that the Lord Chancellor should establish an appeal process for families who disagree with a decision to discontinue an investigation. Amendment 23 would ensure that inquests were not held without a hearing if that was against the wishes of the deceased’s family. Amendment 24 would ensure that certain safeguards were met before a remote inquest hearing is held and that interested persons were provided with the reasons why a remote hearing is to be held. I am glad that the Minister met Inquest and Justice. The amendments, which are in the name of my noble friend Lady Chapman, would address the various perceived shortcomings within the coronial system. I look forward to the Minister’s answer to them.

Amendment 28 would allow coroners to record risk factors relevant in a death by suicide and require the Secretary of State to issue guidance on the risk factors that the coroner must consider and the form in which they are recorded. The right reverend Prelate will speak to his amendment in due course. It is part of his attritional campaign for, often, young men who commit suicide because of gambling habits. I support his intention.

[The Lord Bishop of St Albans]

My Lords, I rise to speak briefly to Amendment 28 standing in my name. I would be grateful if the House would indulge me just for a few minutes. As I explained last week when I was presenting my Private Member’s Bill, Public Health England pointed out that, in just one year, there were 409 suicides related to problem gambling. Your Lordships will be aware that the largest lobby group here in the House is Peers for Gambling Reform. Whenever we have tried to deal with this, one thing we keep hearing back is that we simply do not have the statistics or the data on the various causes of suicide. For some while, I have been trying in every way I can to get at least some data to help us with this so that we can devise strategies to reduce the terrible burden on families who have lost a young person.

The noble Lord, Lord Ponsonby, is right that most of those who have taken their lives are young men, but it is now becoming clear that this is quite a significant problem also among younger women. It is partly because the ubiquitous gambling adverts are now spreading into women’s magazines and so on—it is just all over the place.

I shall be brief, because the Minister addressed some of the concerns in responding to my Private Member’s Bill, the Coroners (Determination of Suicide) Bill, last Friday, but there are some important differences in this amendment, which is my attempt to respond to points that the Minister made. Unlike my Bill, the amendment would permit, but not require, coroners to record factors relevant in a death by suicide. Other differences between the amendment and the original Bill include provisions to ensure that the jury would no longer have any say in the consideration and recording of relevant factors and that the consideration and recording of factors by the coroner would now occur outside the inquest process and not disrupt the traditional remit of an inquest to determine how, what, when and where in relation to an unexplained death.

Finally, the amendment would require the Secretary of State to issue guidance on which factors relevant in a death by suicide could be considered and the form in which they would be recorded by a coroner. Strict data protection provisions are included to prevent the identity of the deceased being disclosed or deduced in any way.

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Moved by

[Lord Ponsonby of Shulbrede]

25: After Clause 44, insert the following new Clause—
“Publicly funded legal representation for bereaved people at inquests
(1) Section 10 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 is amended as follows.(2) In subsection (1), after “(4)” insert “or (7).”(3) After subsection (6), insert—“(7) This subsection is satisfied where—(a) the services consist of advocacy at an inquest where the individual is an interested person pursuant to section 47(2)(a), (b) or (m) of the Coroners and Justice Act 2009 because of their relationship to the deceased, and(b) one or more public authorities are interested persons in relation to the inquest pursuant to section 47(2) of the Coroners and Justice Act 2009 or are likely to be designated as such.(8) For the purposes of this section “public authority” has the meaning given by section 6(3) of the Human Rights Act 1998.””Member’s explanatory statement
This new Clause would ensure that bereaved people (such as family members) are entitled to publicly funded legal representation in inquests where public bodies (such as the police or a hospital trust) are legally represented.

[Lord Ponsonby of Shulbrede (Lab)]

My Lords, this group of amendments is about legal aid provision for bereaved people in inquests. The new clause introduced by Amendment 25 would ensure that bereaved people, such as family members, are entitled to publicly funded legal representation in inquests, where public bodies such as the police or a hospital trust are legally represented. The new clause introduced by Amendment 26 would remove the means test for legal aid applications for legal help for bereaved people at inquests. The new clause introduced by Amendment 27 would bring the Legal Aid, Sentencing and Punishment of Offenders Act 2012 into line with the definition of “family” used in the Coroners and Justice Act 2009.

This is a very important group of amendments and it is my intention to test the opinion of the House on Amendment 25. As Inquest and others have warned, the new coroners’ provisions contained in this Bill could exacerbate the difficulties already faced by bereaved families who are not eligible for legal aid during the inquest process. It is therefore more imperative than ever that an amendment be accepted to finally introduce equality of arms to inquests and provide automatic, non-means-tested public funding for bereaved families and people where the state is an interested person.

The current funding scheme allows state bodies unlimited access to public funds for the best legal teams and experts, while families often face a complex and demanding funding application process. Many are forced to pay large sums of money towards legal costs or represent themselves during this process; others use crowdfunding. The Bill represents a timely opportunity to positively shape the inquest system for bereaved people by establishing in law the principle of equality of arms between families and public authority interested persons. It is no longer conscionable to continue to deny bereaved families publicly funded legal representation where public bodies are legally represented. It is a very simple point, which has been made in numerous previous Bills. We have an opportunity here. I beg to move Amendment 25.

[Lord Thomas of Gresford (LD)]

My Lords, I do not think that the Government should hide behind the fact that an inquest is inquisitorial in procedure and not adversarial—that is a myth. It is not the case that there are no adversarial proceedings at an inquest. I have been in many inquests for trade unions, insurers and families, and each side tries to put forward a particular view of the facts which may impact considerably on questions of liability arising in civil proceedings later. I have nothing more to say, except that this amendment is limited to public bodies. I wish it was extended to more than public bodies and to any situation where a coroner faces a heavily weaponised side arguing one way and the family on the other. At that point, legal aid should be easily available to those who are disadvantaged.

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[Lord Wolfson of Tredegar (Con)]

My Lords, I am grateful to noble Lords for their contributions to this short debate. I am conscious that the fact that the debate has been relatively short is not a reflection of the importance of the issue. On the contrary, as the noble and learned Lord, Lord Thomas of Cwmgiedd, said, this is a long-running issue. It is not quite as long- running as the coronial office, but it has been before the House before and doubtless it will be again.

I start by assuring the House that the Government believe that bereaved families should be at the heart of any inquest process, but we consider that, although there are some exceptions, which I will come to, legal representation and legal aid are not required for the vast majority of inquests. As I said on the previous group, the coroner’s investigation is a relatively narrow-scope inquiry to determine who the deceased was and how, when and where they died. In my meeting with Inquest last week, we obviously discussed the availability of legal aid for inquests. Again, I should put on record that although there are undoubtedly areas where Inquest would like the Government to go further, we had a productive and useful conversation.

Amendments 25, 26 and 27 all seek to expand access to legal aid at inquests. However, the amendments would also make that access to legal aid entirely non-means-tested. That would lead to significant and potentially open-ended cost to the taxpayer. It would also go against the principle of targeting legal aid at those who need it most, because these amendments would provide public funding for those who could, in fact, afford the cost themselves. Over and above that, I am not persuaded, with respect to my former and current colleagues, that having more lawyers at an inquest will provide an improved experience for the bereaved. Indeed, it could have the unintended consequence of turning an inquisitorial event into a complex defensive case, which would likely prolong the distress of bereaved families.

We do, of course, recognise that bereaved families need support and guidance. We have been working on several measures to make inquests more sympathetic to the needs of bereaved people. That includes publishing new guidance on the coroner service for bereaved families, engaging with the chief coroner on training for coroners and developing a protocol. I think this goes to the point made by the noble Lord, Lord Thomas of Gresford, that, where the state is represented, the protocol now is that the state will consider the number of lawyers instructed, so as to support the underlying inquisitorial approach to inquests.

I turn to the availability of legal aid. First, legal help is available under the legal aid scheme, subject to a means and merits test, which bereaved families can access if they require advice and assistance. Further, where certain criteria are met, legal aid for legal representation may be available under the exceptional case funding scheme. Where these criteria are met, we are of the view that that process should be as straightforward as possible. Therefore, as of January this year, there is no means test for an exceptional case funding application in relation to representation at an inquest or for legal help at an inquest where representation is granted.

Thirdly, we considered our approach to initial access to legal help at inquests in our recently published Legal Aid Means Test Review. This is something of an intimidating document, but I invite interested noble Lords to have a look at it. There, we have proposed to remove the means test for legal help in relation to inquests which relate to a possible breach of rights under the ECHR—it is generally Article 2, but not exclusively—or where there is likely to be significant wider public interest in the individual being represented at the inquest. We published that review on 15 March; a full consultation is currently open and will close on 7 June.

For those reasons, which go both to the nature of the inquest and what the Government are currently doing in this area, I invite the noble Lord who is proposing the amendments in the name of the noble Baroness, Lady Chapman, to withdraw them.

[Lord Ponsonby of Shulbrede (Lab)]

My Lords, I thank all noble Lords who have spoken in this debate and have supported these amendments. The opening line from the noble Lord, Lord Thomas of Gresford, was that the Government should not hide behind the inquisitorial defence, if I can put it like that, and that is exactly what we have heard from the Minister today.

He chided me for limiting the amendments to public bodies. I accept that criticism to a certain extent; nevertheless, this is an opportunity for a radical improvement of the inquest system to provide a genuine public service. I absolutely agree with the point made by the noble Baroness, Lady Jones of Moulsecoomb, about the importance of public service, and this is a route to do that to the benefit of people in a distressed situation.

The noble and learned Lord, Lord Thomas of Cwmgiedd, gave a historical perspective, if I can use that expression, saying that coroners have changed and adapted over the years. Here is another opportunity to change and adapt for the public good. I think that if the Government are not willing to make that change, I would like to test the opinion of the House on Amendment 25.

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

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

[Lord Ponsonby of Shulbrede (Lab)]

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

[Lord Hacking (Lab)]

My Lords, I also endorse what was said and support the Bill, particularly because I struggled back from Portsmouth, not for the beginning of Report, alas, but in time to vote. The Minister did say to me—I hope that I am not breaking any confidences—“You’ve just come back to vote against me”, but may I record that I am voting with him on this issue?

Prisons: Death Statistics

Lord Ponsonby of Shulbrede Excerpts

Wednesday 30th March 2022 Lords Chamber

[Lord Wolfson of Tredegar (Con)]

My Lords, without getting into the statistics too much, comparing the 12 months to September 2021 with the 12 months to September 2019—post and pre pandemic—it is 23% higher. On the female estate, which is quite small, we acknowledge that female prisoners are overwhelmingly those who have had significant problems in their lives pre prison, and they are therefore a particularly vulnerable group coming into prison. That is why we focus on the female estate in particular. I am very pleased that, as I pointed out earlier, we had no self-inflicted deaths in the female estate last year.

[Lord Ponsonby of Shulbrede (Lab)]

My Lords, in the 12 months to December 2021, there were 371 deaths in prison, including the suicides referred to earlier. This is despite recent reductions in the prison population. Over about the same period, there were 7,780 assaults on prison staff, which is an 8% reduction on the previous year. Does the Minister think that those two statistics are connected to each other? Does he agree that the key to improving prisoner and staff safety is the recruitment and, crucially, the retention of prison staff?

[Lord Wolfson of Tredegar (Con)]

My Lords, the figures are perhaps connected in this way: we want to make sure that we have as few self-inflicted harm incidents as possible and as few assaults on staff as possible. On staff, we have rolled out body-worn video cameras and we have better drug testing coming into prisons. But I and the Government are far from laid back about the current situation; we want to get these figures down further. But I point out to the House that we have seen some significant improvements in the figures recently.