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.

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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.

--- Later in debate ---

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

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

[Lord Ponsonby of Shulbrede (Lab)]

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

[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.

Approved Premises (Substance Testing) Bill

Lord Ponsonby of Shulbrede Excerpts

2nd reading
Friday 25th March 2022 Lords Chamber

[Lord Ponsonby of Shulbrede (Lab)]

My Lords, I congratulate the noble Baroness, Lady Sater. She is a former magisterial colleague of mine; we sat in the same youth court together for many years and we have both seen the types of cases to which she referred in the opening part of her speech. We in the Labour Party broadly support the Bill and welcome in particular the attempts to identify substance abuse in approved premises. This will allow the Government to respond effectively and flexibly to the changing patterns of drug misuse.

In my 15 years as a magistrate, I have seen the types of drugs coming to both youth courts and adult courts change multiple times. I understand that there is a constantly changing landscape and that testing regimes need to change to reflect that reality. We are happy to see that this Bill is about providing assistance with rehabilitation first, and prosecution second. Residents who test positive for drugs will be directed to appropriate substance misuse organisations first; if their behaviour continues, punitive sanctions could be implemented. However, this should not be seen as a substitute for what the Government must do: namely, invest in treatments, harm-reduction initiatives and supportive policies to reduce the prevalence of substance misuse in the community.

The noble Baroness—I might say “my noble friend” in this context—talked about urine testing. We welcome the introduction of urine testing alongside oral fluid testing. She spoke also about the greater range of substances that need to be tested. I have certainly been on a number of prison visits over the years where we have been told of the ever more imaginative ways of getting psychoactive substances into the prison. It is a constant battle for prison officers to try to reduce the number of these substances getting into the premises. She also spoke about anonymous sample testing. This is a reality of the situation, if I can put it like that. I have certainly heard the argument that, if the sample testing is anonymised, it is more likely to give a realistic reflection of the drug use in the institution being tested.

I shall say something about the background statistics, as I know the Minister is very keen on his statistics. The figures that I have are that, between September 2012 and August 2017, there were 46 deaths in approved premises and 29 of those were linked to drugs. In 2018-19, there were 20 deaths and, in 2019-20, there were 21. It is unclear how many of those are linked to drugs, but those were deaths in approved premises.

In 2017-18, the annual report by the Prisons and Probation Ombudsman and the Probation Service said the use of synthetic drugs and psychoactive substances was getting out of control and that the problem was spreading to removal centres as well as approved premises, so it is a widespread problem. I think testing is part of the solution to that, but the real key is that the ministry has a realistic understanding of the extent of the problem. I support the noble Baroness’s Bill.

Coroners (Determination of Suicide) Bill [HL]

Lord Ponsonby of Shulbrede Excerpts

3rd reading
Friday 25th March 2022 Lords Chamber

[The Lord Bishop of St Albans]

My Lords, I shall make just one or two brief comments. I am sure everybody is greatly relieved that the timing is going so well this afternoon, and I really shall not delay your Lordships for too long, but this gives me an opportunity to say one or two brief things and then give some thanks.

The reason behind the Bill is that, seven or eight years ago, a couple came to see me, sat in my study and told me how their son had taken his life because of a gambling problem. The sad thing about that story was the way they talked about the fact that they could see what was happening. He had gone in and out of treatment, but they just could not reach out to him. They knew what was going to happen, and they watched as he slowly spiralled down until that fateful day when he took his life. That led me on a journey. Eventually, we managed to get a Select Committee here. As your Lordships may be aware, Peers for Gambling Reform is now, I think, the largest lobbying group in the House of Lords.

That is what inspired me to work on this; that is the background. It is a very human story. The Bill has what sounds a rather calm, dispassionate title. The issue before us is that, whenever we try to grapple with this, we are told by the Government that we simply do not know the nature and size of the problem. Last year, Public Health England gave the most comprehensive estimate to date of the number of annual gambling-related suicides: 409 in one year. That accounts for 8% of all suicides in 2020.

In the recent inquest into the tragic death of Jack Ritchie, the coroner’s conclusion was that warnings, information and treatment of problem gambling had been “woefully inadequate” and failed to meet Jack’s needs. The coroner said that he could not be blamed for his gambling problem. That brought home to many of us something that we already knew: that many of these online products have been designed to be addictive and are having a devastating impact on people. The suicide headline is just the tip of the problem, but it is the most dreadful part of it.

I have learned an awful lot from putting the Bill forward. I am grateful for the help I have had from other Members of the House, but particularly from the Minister, who very kindly met with me. He has been very honest about the problems he sees with it, and I understand that. If we had had time, I would have brought amendments to address some of those points. I intend to put another Private Member’s Bill in the ballot for the next round, which will be a much broader Bill that will pick up many of the concerns of coroners, some lawyers, and indeed the Government.

Fundamentally however, my motivations behind the Bill have not altered. Suicide is a terrible thing and the best way to tackle it is to identify the underlying causes and put in strategies to address them. So I am grateful for all those who have helped it get this far and I will be returning to this later on. However, with those final words I draw to a close.

[Lord Ponsonby of Shulbrede (Lab)]

I too have no wish to delay the House, but I will say a couple of words to congratulate the right reverend Prelate on the progress he has made with the Bill and on his expressed wish to take the matter further with a further Private Member’s Bill. My experience of Private Members’ Bills is certainly that it is an attritional process that he is engaged in, and I am glad to hear that he is working constructively with the Minister. As we heard in the earlier debate, the Minister is very keen on data and he will no doubt be focusing his question—if I can put it like that—on how the coroners’ service can address the concerns which the right reverend Prelate has quite rightly raised.

The right reverend Prelate told a very moving story when he introduced the debate today and gave some statistics on the reality of addictive online gambling products. I have to say that anyone who has had anything to do with young men will know that such products are absolutely ubiquitously used, and there are all sorts of ways of enticing people into gambling further. So I wish the right reverend Prelate—and the Minister—well with future Private Members’ Bills.

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

My Lords, I too have no wish to delay the House but, like the noble Lord, Lord Ponsonby of Shulbrede, I also thank the right reverend Prelate the Bishop of St Albans for highlighting this important issue and enabling us to have the time in the House today. I thank him for giving me his time earlier in the week. With all respect to other meetings which I had during the week, that was one which I found really interesting and from which I learned a lot.

I will say word about the legislation and, as the right reverend Prelate indicated, the Government’s approach. The legislation would require a coroner or inquest jury to record gambling addiction and any other relevant factors in a conclusion of death by suicide. Of course, the Government endorse the sentiment behind the Bill and recognise the importance of gathering quality information on the circumstances leading to self-harm and suicide, including the role that gambling can play. However, the Government do not agree that these proposals are the appropriate way to tackle the issue. As my noble friend Lady Scott set out at Second Reading, they would result in a significant expansion of the coroner’s jurisdiction to identify the perceived reason—the “why”—behind an individual’s suicide death, and we do not consider this to be appropriate for the fact-finding summary process of a coroner’s investigation, which is really focused on the hard factual questions of who, where, how and when. We also have a concern that information gathered in this way would likely be both incomplete and inconsistently obtained and therefore would not provide a sound basis for delivering the interventions needed to secure improved outcomes in this important area.

Covid-19 and the Courts (Constitution Committee Report)

Lord Ponsonby of Shulbrede Excerpts

Wednesday 23rd March 2022 Grand Committee

[Lord Ponsonby of Shulbrede (Lab)]

My Lords, I thank my noble friend Lady Taylor of Bolton for this extremely interesting report. As she said in her introduction, it may be a year old, but it deals with issues which we are still dealing with today, and it addresses the context, if I can put it like that, of the way in which the criminal justice system went into the pandemic. She very fairly gave the historical context of the underinvestment in our criminal justice system.

The speech which I had prepared was to go into the statistics of it all—the backlogs, the appalling statistics particularly for sexual-related offences taking a long time to court—but a number of noble Lords have rehearsed those statistics, so I shall not go through them again now.

I thought I would go through the speeches we have heard and draw out the points that were of particular interest, and offer my experience on those matters. I just remind the Committee that I sit as a magistrate in London and deal with adult, youth and family law matters.

My noble friend talked about the digital challenge, as we went into the pandemic, and the uneven picture between the higher and the lower courts, which did not respond as immediately. I sat as a family magistrate throughout the pandemic. We did not stop. Within a week, I was personally operating from my dining room table, originally doing cases by telephone and then eventually by MS Teams. We found a way of working around the cases.

Just to give a bit more background, I am currently chairman of the Greater London Family Panel of 300 family magistrates in London. The panel responded to the Nuffield Family Justice Observatory report, to which my noble friend referred. I am aware of the shortcomings that that report highlighted. Sir Andrew McFarlane encouraged us to respond and we did so. It is difficult not being defensive, given the shortcomings that were identified, but I will just say that there was no alternative but to hear the cases that we did, because children’s safety was at stake. I literally took children away from their parents by telephone in the early days of the pandemic. I think we did the right thing, although there were shortcomings in the system.

My noble friend went on to say that some aspects of working remotely are beneficial. She cited domestic abuse cases, which is fair. I also deal with domestic abuse cases, in different formats and in different jurisdictions, and it is now part of the working process to think about what is best for each particular case.

I also know about the National Police Chiefs’ Council saying it would stop using remote remand hearings. My understanding is that it is a resourcing issue for the police in police stations, and it is a matter of regret to the court system that we were not able to do remote remand hearings and that prisoners actually had to be brought to court. Literally only a couple of years ago, we were able to deal with remote remand court cases when people were still in police stations.

The noble and learned Lord, Lord Hope, also gave some statistics, the experience of Scotland and some historical context, if I can put it like that. The different approaches taken in Scotland were interesting. In my experience of the differences between England, Wales and Scotland, people are very open to looking at alternative ways of working. I occasionally talk to colleagues in Scotland about the way they are addressing similar issues to us.

The noble Lord, Lord Faulks, spoke very effectively about how Covid in courts is a constitutional issue. I agree. He also said that, for some people in various parts of the criminal justice system, justice seems an unobtainable goal. I agree with that as well. He asked the Minister, and I would be interested in his response, about preparations for a future outbreak, if that were to happen.

The noble Lord then went into a greater exposition, if I can put it that way, about the various alternatives to jury trials that had been considered. I thought it might be worth telling an anecdote, speaking as a magistrate and a Labour Party member, about speaking to the then shadow Justice Secretary, David Lammy, about why the Labour Party was supporting jury trials over the alternatives. His response was simple: he said that people trust jury trials more than any alternative. The second point he made was that disproportionality—the make-up of the people taking the decision—is more likely to be accommodated with 12 people than it would be if there was some alternative arrangement. Those were the two points that David Lammy made to me about why the Labour Party supported jury trials continuing through the pandemic.

I thought an interesting point was made about fraud cases. I realise that is a much bigger debate, which is not really for today.

I was pleased that my noble friend Lady Drake spent some time going into the situation in family courts. She quoted Sir Andrew McFarlane and spoke about her experience on the All-Party Group on Kinship Care, citing the concern that there is effectively a rationing of family courts. The piece of jargon which we sometimes use in the family court system is that the local authorities are encouraged to “hold the risk” within themselves, rather than passing the cases on into the court system. The consequence is that cases which do turn up in the family court system are more serious, more advanced and more difficult to deal with. That is a policy decision and partly resource driven. Nevertheless, it has a very real effect: although the numbers of cases are going up, their actual complexity and seriousness are going up as well.

My noble friend Lady Drake also talked about kinship carers not joined to public law cases. She must be a mind reader. I was in a family court earlier today in Holborn and we were dealing with exactly that issue: whether to join some grandparents in private law proceedings to look after their grandchildren while, in parallel, there was a public law case for the children to be potentially taken away into care. It was a little example of the difficulties that the court faces because, although I was physically sitting in court, we were doing it remotely and the connection was extremely poor. The grandparents were not prepared for the case we were hearing. In fact, it had been wrongly listed in the first place, so it was an administrative problem. It did not work very well; I hope it works better next time.

My noble friend Lord Howarth of Newport gave an awful lot of background. I will not repeat the points that he made, because it was a tour of the horizon. Similarly, I endorse the tribute of the noble Lord, Lord Thomas, to court staff and prison staff. They behaved absolutely heroically, in my experience, and kept things working. I will not go into the other points that the noble Lord made because he made them from a source of greater authority than I would be able to match. However, I will be very interested to hear the Minister’s response to the various questions which have been put to him.

Prisons: Releasing Women into Safe and Secure Housing

Lord Ponsonby of Shulbrede Excerpts

Monday 21st March 2022 Lords Chamber

[Lord Ponsonby of Shulbrede (Lab)]

My Lords, the Minister in answer to my noble friend’s question said that his vision was that no women prisoners should be homeless. We have seen from the questions of noble Lords, and from the noble Baroness, Lady Sater, my former colleague, the breadth of the problems that women prisoners face when they come out of prison. Can the Minister say something about how he will monitor the impact of the Government’s policy to see that this integrated support, which is the only way in which to prevent reoffending, is actually working?

[Lord Wolfson of Tredegar (Con)]

My Lords, integrated support is absolutely key—I agree with the noble Lord on that. We have done a number of things; we have set up a scheme to offer 12 weeks’ accommodation to prison leavers with support to move to settled housing and, by 2024-25, we will be investing £200 million per year to transform our approach to rehabilitation. But of course we need to be held to account on this, and we hold the Prison Service to account on this. We publish data, and the data is meant to be clear and transparent. There has been an improvement in the figures, and I want to see them improve even more.

Early Legal Advice Pilot Scheme Order 2022

Lord Ponsonby of Shulbrede Excerpts

Thursday 10th March 2022 Grand Committee

[Lord Thomas of Gresford (LD)]

An evidence base? The clue to these proceedings was in the Minister saying that they are looking for savings to the public purse. I think the Treasury is definitely behind this.

When I was a humble solicitor in the 1960s, I used to fill in a green form for people to give them advice. In 1973, a simple green form scheme was introduced and in 1994 the noble and learned Lord, Lord Mackay of Clashfern, then Lord Chancellor, described it as

“an important means of access to legal advice for people on low incomes. In 1993/94, over 1,600,000 people received help from the … scheme.”—[Official Report, 3/11/1994; col. WA 73.]

I fail to see why we now need a highly expensive two-year study to find out whether there is a need for such advice. It is obvious. It was in 2013 that the coalition Government, I am afraid, reformed the scope of civil legal aid in the LASPO Act, including, as the memorandum tells us,

“the removal of funding for early legal advice and support for most social welfare law.”

Some reform that was.

As for research, the Explanatory Memorandum states in paragraph 7.3:

“While research by organisations such as Citizens Advice, Shelter, the Law Society and the Equality and Human Rights Commission was persuasive in suggesting a link between early legal advice and downstream benefits, officials in the department concluded that their findings did not robustly quantify the financial savings for government, nor did they account for the costs of individuals whose problems would not be resolved with early legal advice”.


So there has been considerable research by NGOs, all pointing the same way.

The Government produced their review in 2019, and it has been knocking about for three years before anything was done under it. There will now be a two-year pilot scheme, very limited to 1,600 individuals in Manchester and Middlesbrough. Some five years will elapse from the review that the Government themselves carried out.

The Government describe the pilot scheme in this way:

“the Ministry of Justice is commissioning a process, impact, and value for money evaluation to support the effective delivery of the project, and the generation of robust impact evidence. An initial phase ahead of pilot delivery will be an in-depth feasibility study to fully assess and recommend a robust, practical research pilot and evaluation design”.

It is

“the gold-standard approach to assessing impact, highly novel in the Access to Justice policy area.”

These very helpful answers were provided to the Secondary Legislation Scrutiny Committee, whose questioning of the Ministry of Justice was admirable and full and produced a lot of information that I need not go into. But there we are: gold-plated research, which means that people whose needs were seen in 2019 will have a five-year wait before anything happens, and we do not even know whether it will happen then because it will depend on the evaluation of the gold-plated people of the project.

We currently face a great rise in deprivation that will happen to people in this country. The situation as we know it is dire and will get worse, with price rises and additional taxes. Now is the time for the people in this category—the people I used to advise in those far-off days when we did not live in a very rich area—to be given support, not in 2024 and thereafter. This is a disgrace.

[Lord Ponsonby of Shulbrede (Lab)]

My Lords, the noble Lord, Lord Thomas, has given us an historical context for what we are receiving through this statutory instrument. We of course support it, because it goes some way to ameliorating the position we have had since the massive cuts in 2013 with LASPO. The noble Lord has made the broader points, with which I agree.

I want to focus on two particular questions, one of which was asked by my honourable friend Afzal Khan when this matter was debated in the House of Commons. He contacted the Greater Manchester Law Centre and the Law Society there, the only two welfare benefit and legal aid providers in Manchester city and the only two debt legal aid providers in Middlesbrough, one of which also advises on welfare benefit law. He made the point in the House of Commons that the scheme will undoubtedly create an increase in demand. There was scepticism, from that limited number of providers, whether the three-hour limit is enough in itself and whether the pay is enough for those three hours. How, given that there is very likely to be an increase in demand, will the ministry respond?

The Minister used a couple of phrases that I thought were appropriate when he talked about the problem of the clustering of cases around a multitude of different contexts—housing, welfare and the like—and about the problem of escalation. From different parts of our working lives outside this House, we all know that both of those things are right and true, both in the housing context and the criminal justice context as a whole—something I know from my work in magistrates’ courts.

The Minister said that there was limited evidence of financial benefit from early intervention. The noble Lord, Lord Thomas, expressed extreme scepticism, and I agree with him: there is a multitude of reports about the benefits of early intervention, and I have lost track of the number of early-intervention pilots that I have seen on the criminal justice side that have fallen by the wayside for various reasons.

I will raise another question, which comes from the Secondary Legislation Scrutiny Committee report’s appendix 2:

“Further information from the Ministry of Justice on the draft Early Legal Advice Pilot Scheme Order 2022”.


Question 1c is as follows:

“The wording of the SI indicates that those who are selected but receive no advice will also be informed that they are part of the pilot—will that control group also be required to fill in any evaluation or description of their experience? Otherwise, they will be just like any other Housing benefit claimant—what marks them out?”


That is to say, what marks them out as different in the data collected? The answer is:

“The pilot is seeking to develop robust quantitative impact evidence, and so how to best collect control or comparison group evidence is a priority issue to be examined. The specific criteria and process for identifying and engaging the control or comparison group is to be determined based on feasibility work to be undertaken by the independent evaluator.”


I did not read that out very well, but I understand what it means. My experience on the family court side is that a large number of people drop out of the system. Advice is made available and people start accessing it, but then the process becomes difficult and tiresome and people just stop engaging.

So, arising out of that question and answer, my question to the Minister is: will there be an evaluation of people who start the process but do not finish it? That is part of the overall cost, and it is also a demonstration of the impact or otherwise of these schemes. As I say, from my experience in a different context—family law—a very big part of the overall picture is the people who do not pursue the advice and support that are available to them because doing so is just too burdensome.

[Lord Wolfson of Tredegar (Con)]

My Lords, I am very grateful for the contributions from the noble Lords, Lord Thomas of Gresford and Lord Ponsonby of Shulbrede. I will pick up a few points in response. On the Treasury being behind it, I say that this is not a Treasury-driven measure, in the sense that the sole focus is not the public purse. But we have to recognise that the Treasury is ultimately behind the legal aid system: it is funded by the public purse, and we have to make sure that we get value for money.

One of the things that we are doing here is trying to answer this question—we all feel this instinctively, perhaps, and, as the noble Lord, Lord Thomas, said, there are lots of people in the market, so to speak, who say, “Spend some money now; you’ll save more money later on”. But we want to have some robust evidence to see to what extent that is actually the case—and also to see to which particular groups it applies more and to which it applies less. We have a very diverse population, and one of the things that we will be able to do in the pilot is look at people with different backgrounds and needs and see the extent to which the early legal advice actually helps. Although I am well aware of the research by the various NGOs that the noble Lord mentioned, that is not empirical evidence. We do not have the robust, quantitative evidence that we will get from the pilot.

I will pick up the points made the noble Lord, Lord Ponsonby, who asked a few questions around time limits and associated points. First, on the appropriateness of the fee, I explained the 25% uplift. To obtain the figure for the underlying fee, we used the existing non-London hourly rates for housing and family matters; that generated the baseline fee for the work. We added the 25% uplift to increase the extra costs. We are confident that that will mean that we get proper take-up from providers.

Judicial Review and Courts Bill

Lord Ponsonby of Shulbrede Excerpts

Committee stage
Thursday 24th February 2022 Lords Chamber

[Baroness Jones of Moulsecoomb (GP)]

I am struggling to remember as far back as Second Reading of this Bill, but I did say at the time that Clause 3 was designed to save money in the courts system, and that the main savings would arise from people who pleaded guilty but who should have pleaded not guilty. The risk is so obvious that I am surprised that there are no safeguards or legal protections included in Clause 3. People need to have legal advice; they need to know whether they have a valid legal defence prior to deciding whether to plead guilty or not guilty. Whether someone has a legal defence is not obvious or straightforward; if it were, we would not have lawyers and judges—including lawyers of the huge talent that we have here in your Lordships’ House. The mishandling of all those Covid prosecutions shows how badly the system can get it wrong when things are not clear: there were thousands of wrongly issued fines and wrongful convictions by magistrates.

Defendants need independent, quality legal advice prior to deciding their plea, and the lack of any such safeguards in Clause 3 makes me wonder how it has got so far without this problem being exposed by the Minister, because the risks are even greater for vulnerable groups, such as those with learning disabilities. The pressure of avoiding going to court might make pleading guilty online feel like the safer option, and the cost of getting a lawyer might make the online guilty plea seem like the best option. There is nothing in these proposals to ensure that vulnerable people are supported in making informed decisions. So the potential for disaster is huge, and there should at the very least be signposting by the Government to independent legal advice, screening for vulnerabilities, and checking whether people are eligible for legal aid. I ask the Minister whether the Government are going to bring amendments along these lines on Report. It is potentially a sensible idea, but I would like to see it work well for defendants, and for that there will have to be some changes.

[Lord Ponsonby of Shulbrede (Lab)]

My Lords, I agree with the final sentence of the noble Baroness, Lady Jones. We all want to see this system work well, and we all want to see adequate safeguards. It seems to me that the safeguards may be built into the regulations, but of course we can build in further regulations and safeguards through the process we are going through now. We are not hostile to these procedures as such; we are just concerned that proper safeguards are built in, either through primary legislation or the regulations.

The noble Lord, Lord Marks, set out fully the broad gamut of issues relating to these types of online convictions, where people plead guilty and receive a computer-generated sentence based on certain summary, non-imprisonable and relatively minor offences. All noble Lords who have spoken raised the point about the ramifications of people making guilty pleas because it seems easier to just get it out of the way, and that the possible consequences of having that criminal conviction, even though it is a non-recordable conviction, are not readily known.

I spoke about this point when I had a meeting with the Minister last week. The wording in the Bill is “recordable offences” and I made the point that there are plenty of offences which are recorded, but they are not recordable in the sense of going on the Police National Computer. For example, when I sit in court as a magistrate and deal with people who have non-recordable offences such as evading train fares, the information is available to me that they have previous convictions for avoiding train fares. I am aware of that information, even though it is not a recordable offence, and that will obviously have an impact on the sentence I give to the person who has not paid their train fare for a second or third time. So there is a distinction between offences which are recorded and offences which are recordable.

I will briefly run through the amendments in my name. As the noble Lord, Lord Marks, said, they are trying to mitigate the possible problems with this approach, to which all noble Lords have spoken. Amendment 26 would require all accused persons considered for automatic online convictions to be subject to a health assessment and that only those who do not have any vulnerabilities or disabilities are given the option of being convicted online. Under Amendment 27, the automatic online conviction option would be available only if the prosecutor is satisfied that the accused has engaged a legal representative. Amendment 28 would exclude any recordable offences from the automatic online conviction option. Amendment 29 would raise the age of eligibility for written procedures for entering guilty pleas from 16 to 18 years old.

As the noble Lord, Lord Marks, said, those four amendments in my name attempt at this point to probe the Government’s response to the potential pitfalls of this approach, to put in adequate safeguards for vulnerable people and children and to make sure that people do not plead guilty out of a sense of convenience. I was particularly taken by the argument used by the noble Lord about ensuring that, when people plead guilty, they know the full ramifications of the possible costs of their guilty plea. As he said, there is the cost of the fine itself, the cost of the prosecution and the cost of the victim surcharge, and all those numbers add up. When one sits as a magistrate, one has discretion over the fine and the costs but no discretion over the victim surcharge, so it is not a straightforward calculation. Depending on the means of the person one is dealing with, one would make a suitable adjustment.

After one has put the fine in place, one puts in place a collection order. This is where you give a specific and direct warning to the person you have just fined that, if they do not pay the money, there is a power for debt collectors or bailiffs to come to their house to collect goods to the same value. I go on and warn them that that makes things more expensive because the bailiffs also charge their costs. So there is quite a bit of procedure that one can adjust when one is sentencing, according to the nature and means of the person in front of you. The noble Lord, Lord Marks, asked a good question: how will this online procedure have the flexibility that the in-court procedure has to make sure that a fair disposal is reached?

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

My Lords, I will first deal with the general argument for Clause 3, not least because the noble Baroness, Lady Chakrabarti, gave notice that she would oppose the Question that Clause 3 stand part of the Bill.

As we have heard, Clause 3 creates an alternative new automatic online conviction and standard statutory penalty procedure for some single justice procedure cases. I should say at the outset that it comes with a number of safeguards. I assure the noble Baroness, Lady Jones of Moulsecoomb, that, as the noble Lord, Lord Ponsonby, fairly said, we all want to see the system work well. This is about putting in place a system that is appropriate and fair.

The procedure would provide defendants aged over 18 and companies that wish to plead guilty to specified offences the additional option of accepting a conviction and pre-agreed standard penalty online without the involvement of the court. Importantly, prosecutors will offer this to defendants only in cases that they consider can be dealt with appropriately through this procedure. It is unlikely even to be offered in cases where, for example, there are aggravating factors or the defendant is a habitual offender.

The procedure is entirely optional on the part of the defendant. Defendants can choose to have their case heard in court at any time before they accept a conviction. Defendants who opt in to using this procedure will be guided through the process and provided with all the information they need to make an informed decision, including—the noble Lord, Lord Marks, made this point—the consequences of accepting a conviction and the full details of the prospective fine. I will say a little more about that in a moment.

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Moved by

[Lord Ponsonby of Shulbrede]

30: After Clause 5, insert the following new Clause—
“Review of the single justice procedure
(1) 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.(2) A review under subsection (1) must consider—(a) the transparency of the single justice procedure in line with the principle of open justice,(b) the suitability of the use of the single justice procedure for Covid-19 offences,(c) prosecution errors for Covid-19 offences under the single justice procedure and what redress victims of errors have.(3) The Secretary of State must lay a copy of the report before Parliament.”

[Lord Ponsonby of Shulbrede (Lab)]

My Lords, in introducing this group, I thought I would tell the Committee about my experience of sitting as a single justice magistrate dealing with Covid emergency legislation about a year ago. I dealt with fixed penalty notices handed out to people who broke the emergency legislation. The fine was £60, but if it was paid within 14 days it was £30. If that was not responded to the defendants received a letter saying that they should either turn up to court or respond to the letter or the matter would be dealt with by the single justice procedure.

I sat at my dining room table as a magistrate and I dealt with 30 trials in the morning. I convicted 29 of the 30. The prosecution case was the police officer’s note, which I had up on my screen so I could read it. There was no defence case because the defendant had not turned up. I then went on to sentence, which was a £100 fine, £100 in prosecution costs and a £34 victim surcharge, so £234 to pay and a collection order. That is what I did 29 times out of 30 last summer. It was a special time. It was a difficult procedure to go through, but we need to be very conscious of the difficulties and potential pitfalls with these types of procedures. Having said that, and given that example, I believe there are occasions and types of cases where it is appropriate.

Both my amendments make the same point in trying to build in suitable reviews of the procedure to ensure it acts fairly. Amendment 30 states:

“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.”


My noble friend will speak to her Amendment 37. Amendment 54 says:

“Before section 43 may be commenced, the Lord Chancellor must—


(a) undertake a consultation with relevant stakeholders regarding the proposed abolition of local justice areas under that section, considering in particular the impact on the principle of local justice,


(b) lay before Parliament the Report and the findings of such consultation, and


(c) provide a response explaining whether and how such issues which have been identified would be mitigated.”


To say a few words on Amendment 54, magistrates arrange themselves in local justice areas. There are nine local justice areas in London. It is a historical way of organising magistrates, if I can put it that way. I understand that there are arguments on both sides. I also understand, from talking to the Minister and his officials last week, that there will be extensive consultation and further legislation on this matter if it is taken forward. Nevertheless, I beg to move.

[Baroness Chakrabarti (Lab)]

My Lords, before I speak to Amendment 37, I should like to congratulate my noble friend Lord Ponsonby on everything that his public service outside this Committee and your Lordships’ House brings to our deliberations about criminal justice. The Committee needs no reminders from me of all that the eminent silks, retired Law Lords and former members of the senior judiciary bring to your Lordships’ House. The magistracy is a very important part of the criminal justice system. My noble friend brings an experience, a humility and an anxious scrutiny of the system to our deliberations which is incredibly helpful and always illuminating.

Amendment 37 is purely a probing amendment, and I hope the Minister received that message via his office. I have unashamedly taken this opportunity to put issues concerning women and girls in the criminal justice system on the map. As the Committee and the Minister will know, this is ultimately a shared responsibility with his noble friend Lady Williams of Trafford and her department. These two great departments of state—the Home Department and the Ministry of Justice—are responsible for the whole system, including matters well beyond the scope of this Bill, such as the police and the CPS. They also have responsibilities that are dealt with in this Bill, such as for the court system.

Just last year, both Secretaries of State felt the unprecedented need to issue a public apology to women and girls for their experience of the handling of sex offences in our criminal justice system. To some extent, that has led to the resignation of the Commissioner of Police for the Metropolis. Perhaps more importantly still, it has led not just to terrible attrition rates for sex offences in particular, but to a real crisis of trust and confidence in the system on the part of women and girls that none of us on either side of your Lordships’ House wants to see.

I do not want to say that there should be an inquiry on the narrow grounds that happen to fit into the scope of this Bill. Rather, I want to give the Minister the opportunity to update the Committee and therefore the country on where the Government are and where they propose to be, and how quickly they can rebuild trust and confidence in relation to sex offences in particular and criminal justice in general for slightly more than half of the population.

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[Lord Wolfson of Tredegar (Con)]

First, the legislative architecture, so to speak, is not just Clause 43: I have already mentioned other statutory provisions that require consultation. There has been consultation on this, although I do not have all the details of it to hand. If I may, I will drop the noble and learned Lord a note setting that out.

I was just about to thank my noble and learned friend Lord Mackay, and I apologise for standing up when he was about to speak. I respectfully say that he summed up perfectly the balance that is required between the need for a local link and for flexibility when it is useful.

Finally, as the noble Baroness, Lady Chakrabarti, explained—I received the message—Amendment 37 essentially a probing amendment for me to explain what is going on. It would formally require an inquiry into the adequacy of the criminal courts in relation to women and girls. We are doing significant work in this area, both to improve the experience of women and girls in the criminal justice system—or, in some instances, the justice system more broadly—and to better scrutinise the agencies involved. As she said, a number of agencies are involved, and this is a cross-government issue.

We are already taking specific actions. I shall set out some of them now, although it is a non-exhaustive list. We know that pre-recorded cross-examination can help to improve the experience of victims, so we are rolling out the use of this measure, known as Section 28, for sexual violence and modern slavery complainants to all Crown Courts nationally. We have introduced a single source of 24/7 support for victims of rape and sexual violence. We are working with the police and the CPS to reform approaches to disclosure, and I am sure that the noble Baroness has heard the DPP talk about that in particular. In July last year we launched a violence against women and girls strategy that contained a number of commitments to keep women and girls safe. I will not read those into the record, but I know the noble Baroness is familiar with them.

On a cross-government basis, we have cross-system governance structures to hold criminal justice system partners to account. We published the first criminal justice system scorecard for adult rape in December last year. Publishing and monitoring that data will enable us to improve how adult rape cases are handled at each stage of the criminal justice system, focusing on key metrics such as—I apologise for using this phrase because I hate it, but it is the phrase that is used—“victim attrition”. It sounds terrible but we know what it means.

Finally, there are reviews and inquiries, similar to the one proposed in this amendment, already in place. On 5 October last year the Home Secretary announced the Angiolini inquiry to investigate the issues raised by the conviction of Wayne Couzens for the murder of Sarah Everard. Among other issues, the inquiry is looking at what police forces are doing to identify and deal with misogynistic and predatory behaviour.

In October last year, the Metropolitan Police announced that it had commissioned the noble Baroness, Lady Casey, to lead an independent review of its culture and standards following Sarah Everard’s murder. The review will assess the extent to which the force’s leadership, recruitment, vetting, training, communications and other practices effectively reinforce the standards that the public should expect. Finally, the Victims’ Bill consultation, which recently closed, explored how to amplify victims’ voices, improve the accountability of criminal justice agencies and generally improve support for victims, and we will of course be responding to that in due course.

I am very grateful to the noble Baroness for raising the issue. I hope she will forgive me for not mentioning everything in response, given that her amendment is a probing one, but obviously I can assure her that this is right at the top of our priorities across government. Formally, though, I respectfully ask noble Lords not to press their amendments.

[Lord Ponsonby of Shulbrede (Lab)]

My Lords, I thank all noble Lords who have spoken in this debate. I have to admit that Amendment 54 provoked more comment than I was anticipating. I particularly thank my noble and learned friend Lord Falconer for his observations about the importance of local justice areas, and my noble friend Lady Whitaker for her experience of local justice areas. The same point was made by the noble and learned Lord, Lord Mackay.

I understand that there needs to be a balance between getting rid of artificial boundaries and recognising the importance of locality. While the point made by the noble Lord, Lord Beith, about rural local justice areas is absolutely right, where people have to travel a great distance, in a big conurbation such as London I personally feel very much connected to the area where I sit as a magistrate.

I want to add one extra point to this debate, which I understand will be going on, about the importance of the pastoral role of the Bench chairman. I sit as a chairman for the Greater London Family Panel, and quite literally every day I deal with pastoral matters for my magistrate colleagues. It is a very important role and one that my colleagues appreciate. I think it is important that that role should continue in some way, because it is a way of maintaining the morale of magistrates within a particular area. I beg leave to withdraw the amendment.

Amendment 30 withdrawn.

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Moved by

[Lord Ponsonby of Shulbrede]

31: Clause 6, page 11, line 13, at end insert—
“and has received the advice of a legal representative prior to submitting a plea.”

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[Lord Ponsonby of Shulbrede (Lab)]

My Lords, in this group of amendments we are dealing with offences triable either way and determining the mode of trial. I will go through all the amendments one by one and then make some rounding-up comments at the end.

In Amendment 31, the provisions in Clause 6 would apply only to persons charged with an offence who had received the advice of a legal representative prior to submitting a plea. In Amendment 32, the provisions in Clause 6 would apply only if the court had been provided with a physical and mental health of the accused, confirming that the written procedure would not impede the ability of the accused to understand or effectively participate in proceedings.

Amendment 33 would ensure that an accused person was informed about not only the consequences of giving or failing to give a written indication of a plea but the potential legal and practical consequences of pleading guilty. Amendment 34 would remove cases involving children and young people from the provisions of Clause 9. In Amendment 35, Clauses 6 to 9 would expire two years from when the Bill was passed, unless Parliament passed a resolution to retain those clauses.

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Finally and briefly, I turn to the proposal that Clauses 8 and 14 should be removed from the Bill. Clause 8 would provide a defendant under 18 years of age with the option of indicating a plea and determining mode of trial in writing online. Clause 14 would require the involvement of a parent or guardian. I have already set out the various safeguards for children, and, where a child chooses to provide an indication of plea online, courts will have to make sure at the first hearing that the child has understood the decision and confirms a written indication of plea before proceeding any further with that case. That is an important safeguard at the very first court hearing. I hope that I have set out why the Government believe the amendments are unnecessary, and I invite noble Lords not to press them.

[Lord Ponsonby of Shulbrede (Lab)]

My Lords, I find myself in a somewhat invidious situation regarding Amendment 36. I thank the Minister for defending the position of the Government and I speak against my noble friends who questioned the increase in magistrates’ sentencing powers. Having said that, I accept the more general point—or more principled point, if I can put it like that—of the noble Lords, Lord Deben and Lord Marks, and my noble and learned friend Lord Falconer, that the changes should be done by primary legislation rather than in the way in which the Government are proposing to do it here.

I shall just make a couple of points regarding magistrates’ sentencing powers. Magistrates in youth courts sentence up to two years. I have done that once in 12 years as a youth magistrate. Magistrates in adult courts, for more than one either-way offence, can currently sentence up to 12 months. The difference is that it is on multiple offences that you get to the 12-month maximum, rather than on the single offence, which is the proposed amendment. I do that very infrequently: I could probably count on the fingers of one hand in 14 years as a magistrate when I have sentenced 12 months on multiple charges. It really does not happen that often. Nevertheless, the Minister made a fair point when he said that the Government will monitor the impact of this proposed change. I am sure that people will keep a very close eye on whether these sentencing powers are being used in any inappropriate way, but I really cannot see it happening. Nevertheless, I am happy for the Government to monitor the change. I beg leave to withdraw Amendment 31.

Amendment 31 withdrawn.