Judicial Review and Courts Bill

Lord Ponsonby of Shulbrede Excerpts

Committee stage
Monday 21st February 2022 Lords Chamber

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

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

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

[Lord Ponsonby of Shulbrede (Lab)]

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

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

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

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

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

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

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

[Lord Wolfson of Tredegar (Con)]

My Lords, the previous two contributors to the debate noted that they spoke on these matters with some trepidation. In responding to the amendments in this group, I declare a non-interest: unlike so many of your Lordships, I confess that I did not sit on, or even appear in, any of the various cases cited to the Committee. Therefore, with that significant handicap, I will instead start by reminding the Committee of the rationale for including Clause 1 in the Bill. However, in these remarks I will not address the list of factors in subsection (8), or the so-called presumption in subsection (9), because we will deal with those in later groups.

The clause aims to expand the remedies available in judicial review proceedings to provide more flexibility to the courts. As I put it at Second Reading, we want to put another couple of remedial tools into the judicial toolbox so that they can be used when appropriate. I say to the noble Baroness, Lady Jones of Moulsecoomb, that this has nothing to do with dismantling judicial review or an elective dictatorship. The Government and I recognise the importance of judicial review to good government, which is lawful government. But one also has to recognise that, as the noble and learned Lord, Lord Hope of Craighead, reminded us, we have lots of different sorts of cases where we want flexibility of remedy—and that judicial review applies to many decision-makers who cannot sensibly be described as “government” in the way that the noble Baroness was using that word.

The current position is that quashing is typically both immediate and retrospective, depriving the decision of ever having had legal effect. It is as if the decision had never been made; it is a legal nullity. This makes a quashing order something of a blunt instrument, and it can have unintended consequences when applied to nuanced problems.

The clause seeks to give the court a discretion to change quashing orders in two ways, as we have heard. The first is to allow the effects of a quashing order to be suspended for a period, as the court sees fit. The Independent Review of Administrative Law—I listened very carefully to the contribution of its chair, the noble Lord, Lord Faulks—recommended this additional remedial flexibility, and the clause therefore seeks to implement its recommendation. I agree with the noble Lord that the word “may” is critical to the way that this clause operates. The suspended quashing order allows courts to suspend the effect of an order for a period of time to allow the decision-maker to prepare for the effect of the quashing. This could give them time lawfully to make a new decision before the unlawful decision is quashed or to implement some other transitional arrangements.

The amendment in the name of the noble Lord, Lord Ponsonby of Shulbrede, which aims to remove the whole clause, would remove this new remedy, which I had thought was broadly supported. Although I heard the noble and learned Lord, Lord Falconer of Thoroton, say, “If the judges want this power, they can create it”, we have heard that it is far from clear, to put it at its lowest, that the common law would actually enable the judges to do this. More importantly, there are circumstances where suspending a quashing order will allow the court to provide a remedy that better serves the interests of justice, and we should therefore ensure that it is a tool available to the courts.

The second modification, which would be removed by Amendment 1 and the consequential Amendments 4 and 5 in the name of the noble Lord, Lord Pannick, is the ability to make a quashing order prospective only. I accept that that has been more controversial in the Committee this evening, so I will set out some of the parameters of the debate, as the Government see it.

We have heard examples from those in the other place, and indeed from some noble Lords this evening, where, prima facie, a prospective quashing order could cause significant injustice to the claimant, the applicant or third parties. There will be cases where a prospective quashing order could cause injustice, which is why we are not forcing the courts to use the powers in any case where it would cause injustice or, indeed, be inappropriate. Therefore, I suggest that we leave those discussions aside, because there is remedial flexibility, and concentrate on whether prospective orders make sense in principle, given the wide variety of cases that come before the courts. We could therefore answer the question: are there cases in which their use could be appropriate?

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[The Deputy Chairman of Committees (Lord Lexden) (Con)]

Amendment 2, not moved?

[Lord Ponsonby of Shulbrede (Lab)]

No, I am moving Amendment 2.

Amendment 2

Moved by

[Lord Ponsonby of Shulbrede]

2: Clause 1, page 1, line 9, at end insert—
“(1A) Provision under subsection (1) may only be made if the court is satisfied that it is in the interest of justice to do so.”

[Lord Ponsonby of Shulbrede (Lab)]

My Lords, I will speak to my various amendments quite briefly, because while the detail of the amendments has not been covered, the overall debate around quashing orders has.

Amendment 2 seeks to limit the use of any new remedies issued under Clause 1 to where, in the court’s view, it is in the interests of justice.

Amendment 7 clarifies that the factors which the court considers before making a modified quashing order are a matter for the court’s discretion.

Amendment 8 removes one of the factors to be given consideration by the courts when deciding whether to award a suspended quashing order or quashing order with limited or no retrospective effect. The removal of this factor is intended to rebalance the factors to be given consideration so as not to disadvantage the claimant unfairly.

Amendment 9 would make an addition to one of the factors to be given consideration by the courts when deciding whether to award a suspended quashing order or quashing order with limited or no retrospective effect. This amendment would make it clear that the provision of a timely remedy to the claimant is a factor to be given consideration.

Amendment 10 would require the defendant to identify what the interests and expectations of persons who have relied on the impugned act are and to explain these to the court.

Amendment 11 would remove the requirement to take account of actions which the public body proposes or intends to take but has not yet taken. Such actions are too uncertain to form a basis for suspending a quashing order or making it prospective only. Any intentions indicated to the court could change in light of subsequent developments, leaving those affected potentially without any recourse.

The intention behind Amendment 12 is to clarify that the principle of good administration includes the need for administration to be lawful. The Executive and all public bodies are not entitled to act unlawfully. Therefore, in a society based on the rule of law, administration may rationally be categorised as fully good only when it is lawful.

Amendment 15 removes the extra weight which would otherwise be given to subsection (8)(e) by the courts when applying the test created in subsection (9)(b) to establish whether the statutory presumption is applicable.

This range of amendments looks at other aspects of Clause 1. I think we had a wide-ranging debate about Clause 1 in the first group, and I beg to move Amendment 2.

[The Deputy Chairman of Committees (Lord Lexden) (Con)]

I apologise for getting things into a state of confusion—or nearly—by thinking that Amendment 3 was to be moved.

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[Lord Wolfson of Tredegar (Con)]

I am grateful to the noble Lord. I was going to come to interests of justice slightly later, but let me take the point now. I do not want to drift into the presumption, but these issues are related to an extent. If it is not in the interests of justice to make the order, there would be good reason not to do so in new subsection (9). Therefore, the noble Lord’s question answers itself.

Amendments 2 and 9 add further factors to the list, including a condition that the court may use the new remedies only where it is satisfied that their use will be in the interests of justice. In addition to the point I have just made to the noble Lord, Lord Pannick—perhaps I am putting his question in reverse—I struggle to foresee a situation where the court, having considered new subsection (8) and the presumption, would think it appropriate to apply one of the new powers where the court none the less considered it against the interests of justice to do so. Indeed, I am making the same point: you do not get there, because if it is against the interests of justice, there must be “good reason” not to use one of the orders.

Furthermore, coming back to the amendments, if timeliness is relevant to the case, the court can consider that under the current drafting, in particular the factors set out in new paragraphs (c) and (f).

Those amendments sought to add some factors. Amendments 8 and 11 seek to remove a factor from the list and remove an important provision—the need for the court to consider

“any detriment to good administration that would result from exercising or failing to exercise the power”

and the need for the court to consider actions that a public body proposes or intends to take but has not yet taken. The point of clearly specifying that the court should have regard, not only to actions taken but to actions proposed to be taken, is that actions a public body proposes to take could sometimes be a relevant factor. For example, let us say that a government department recognises that regulations may be quashed but has already stated its intention to make new regulations and has announced the date by which they will be in force. This could help a court to reach a decision on whether a suspended quashing order is appropriate in principle and to determine how long the suspension period should be.

Amendment 10 seeks to modify the fourth criterion, paragraph (d), making it so that the defendant is responsible for identifying the interests of those who rely on legislation being quashed. I suggest this amendment is unnecessary. If a suspended quashing order, or a quashing order with limited retrospective effect or none, might be appropriate, it will always be in the interests of the defendant to set out why that is the case. The defendant would want to encourage the court to use that remedy rather than the ab initio quashing order. So, in effect, the onus is already on the defendant or respondent to demonstrate who will be affected if the impugned act is quashed immediately, ab initio; and that would obviously include identifying who has relied or is relying on the impugned act.

Amendment 12 seeks to modify the same factor in paragraph (d) by providing that the principle of good administration includes the need for administration to be lawful. I think I said in the previous group that that really is, if I may say so, motherhood and apple pie. Good administration is lawful administration. We all expect our Government and all decision-makers to abide by a set of lawful principles and duties that are conducive to effective administration. I am therefore not persuaded that legislating to say that good administration is lawful administration adds anything that is not already obvious or, indeed, inherent in the drafting.

Amendment 15 seeks to remove the requirement in subsection (10) for the court to take “particular” account of any action taken or proposed to be taken, or any undertaking given by a person with responsibility, in connection with the impugned act. This is intended to draw the court’s attention to any response the defendant may have already provided, or be in the process of providing, to the relevant defect. We see this subsection as a positive measure which could encourage a defendant to consider how to resolve matters proactively by offering suitable redress where it is appropriate, before the court need order it. It is also aimed at ensuring that the court takes particular care in considering any redress already provided so that defendants do not feel that they have to provide redress twice.

Finally, I come back to the point I was making about tax. I think the noble and learned Lord, Lord Falconer of Thoroton, asked me whether I was satisfied with the phrase “offer adequate redress”. I certainly am satisfied with that phrase, and I think the noble Lord, Lord Anderson of Ipswich, has an amendment in the next group that focuses on it. He certainly raised it at Second Reading, and I will be coming back to that. When I was referring to tax in the previous group, I was saying it would be very unlikely that a court would want to use a prospective remedy in that situation. I did not say “never” for two reasons. First, it is always up to the judge in any particular case. Secondly, one has to consider other effects even in tax cases. There could be cases where, for example, under tax legislation, somebody has not paid, but they have been given a refund, or they have a rebate or a tax credit. In those situations, it may be right, if it is positive to the taxpayer, so to speak, to use a prospective remedy even in tax cases. That is why I do not say “never” but in the case the noble and learned Lord was putting in the previous group, of when people have paid, in no circumstances does it seem likely that a prospective remedy would be appropriate.

I hope I have dealt with all the points raised. For the reasons I have set out, I invite the noble Lord to withdraw his amendment.

[Lord Ponsonby of Shulbrede (Lab)]

My Lords, I thank all noble Lords who have spoken in this debate. As my noble and learned friend Lord Falconer said, this suite of amendments was really an attempt to get clarity. Some of them were probing amendments, and some we may return to at a later stage. As my noble and learned friend said, there are potential conflicts, and he gave the example of that between subsection (8)(c) and (d). Those two elements would need to be considered within the broader context of the whole of subsection (8).

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

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

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

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

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

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

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

[Lord Ponsonby of Shulbrede (Lab)]

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

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

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

[Lord Wolfson of Tredegar (Con)]

My Lords, I begin by responding to the noble Lord, Lord Pannick, to whom I am grateful for his characteristically kind words and his tender concern that I am replying to these matters not so much on my own and without a Leader as on my own and without any juniors. That is, I am without much support from those Peers who also take the Government Whip. I would not want to make this point publicly, but in the undoubted privacy of these discussions I can perhaps venture the suggestion that the undoubted attraction of a debate with the noble Lord, Lord Pannick, and others, about the finer points of judicial review might possibly have failed to outshine the annual dinner—which has now been awaited for a couple of years—of the Association of Conservative Peers. But that is mere speculation.

More substantively, let me turn to Amendments 13 and 14. These amendments seek to remove subsections (9) and (10), which have come to be known as the presumption, but I stand by calling it a so-called, or low-level, presumption, for reasons that I will set out. As I explained in answer to the question put to me in the previous group by the noble Lord, Lord Pannick, if the court regards there as being good reason not to apply either of the new remedies, then it does not have to; the presumption essentially falls away. The question then put to me, which I will come to, is: why have it in the first place? That is the either/or which a number of contributors have put to me this evening.

The aim, as I have said in previous groups, of Clause 1 is to aid good administration and provide greater flexibility to the court in giving remedies. The new remedies are a very useful addition to the courts’ toolbox —to use that metaphor again—and the presumption, we believe, allows the courts to consider their use and will make sure that a body of case law develops quickly around the appropriate use of new remedies.

The policy intention, therefore, behind the inclusion of the presumption is to encourage judges to use the new remedies where appropriate, and for that I really do make no apology. I do not see that as any fetter on judicial discretion or as the Government intruding into places where they should not be. The independent review, as we have heard, recommended that courts should be given a statutory power to make suspended quashing orders, as it thought that they would be beneficial if used appropriately. We believe that the suspended quashing order and the prospective order are useful additions, but they can only be beneficial to the jurisprudence if the court considers their use.

The presumption is therefore phrased in a way which encourages the court to consider their use, but we are not trying to fetter judicial discretion or to steer—I think that was the word used by the noble Lord, Lord Anderson of Ipswich—the courts to a particular decision. As now, it will remain very much up to the court to decide what remedy is appropriate in the individual circumstances of the particular case.

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Moved by

[Lord Ponsonby of Shulbrede]

16: Clause 2, page 3, line 19, at end insert—
“(1A) Notwithstanding subsection (1), subsections (2) and (3) do not apply where the party refused permission (or leave) to appeal by the Upper Tribunal was the appellant before the First-tier Tribunal and—(a) that party was without legal representation and the appeal before the First-tier Tribunal was not within legal aid scope;(b) that party was not of full age or capacity;(c) the appeal before the First-tier Tribunal was not an in-country appeal;(d) the appeal before the First-tier Tribunal was subject to any accelerated procedure;(e) the decision of the First-tier Tribunal was subject to any statutory restriction or direction concerning how that tribunal was to evaluate the credibility of the appellant or the evidence before it; or(f) the application to the Upper Tribunal raises a point of law concerning the construction of any statutory provision for interpretation of an international agreement.”

[Lord Ponsonby of Shulbrede (Lab)]

My Lords, a Cart judicial review is where the High Court can, in exceptional circumstances, review a decision of the Upper Tribunal to refuse permission to appeal a decision by the First-tier Tribunal. The purpose of Clause 2 is to oust, or abolish, this type of judicial review. Cart judicial reviews are mostly used in immigration and social security cases to identify serious errors in law; they have prevented the removal of people to hostile regimes, where they risk torture and murder, and have brought justice to benefits claimants who have been treated unlawfully. Cases where Cart judicial reviews have been used concern matters of life and death and are a safeguard, costing a relatively modest amount of money.

On Report in the House of Commons, the Lord Chancellor moved a new amendment to Clause 2 which would narrow the small number of exceptions to the abolition of Cart judicial reviews even further. In particular, the consequences of the amendment are that a legal error made by a tribunal would be regarded as a fundamental breach of natural justice only if that breach related to a procedural defect. The amendment is problematic, because it would exclude courts from considering issues such as actual or perceived bias in a tribunal, or a tribunal’s failure to assess obviously relevant considerations in its decision-making.

There are a range of arguments why Cart judicial reviews should remain, including arguments about the volume and cost of cases and whether it is a proportionate use of judicial resource. Indeed, there are arguments about the criminal courts’ backlog, and how it would be affected—I think the Government make this argument—if judicial resource was used in this way.

Another argument, which I am calling the “bites of the cherry” argument, and which was referred to by the noble Lord, Lord Faulks, at Second Reading, is where a claimant has already had two separate hearings but wishes—the argument says illegitimately—to have a third hearing. This is not an accurate or fair representation of how the process works. A claimant can only pursue such a judicial review when the First-tier Tribunal has made a serious error of law and when the Upper Tribunal has wrongly refused permission to appeal against that error of law; in other words, the Upper Tribunal has taken no steps to correct a serious error in law by the First-tier Tribunal. This is exactly why the Administrative Court must step in. A Cart judicial review represents a situation where a claimant has not had a proper first bite of the cherry—one might say that the first bite was sour—rather than that they are seeking a third bite. Therefore, the reasons given for abolishing Cart cases proceed on a false characterisation and should be reconsidered. It is for this reason that we are against Clause 2 and believe that it should be removed from the Bill.

Returning to my amendments, Amendments 16 and 21 seek to provide a further list of exceptions to the ousting of the High Court’s jurisdiction under Clause 2. These are examples of circumstances in which there must be particular concern about the capacity of the First-tier Tribunal to deliver an effective appeal for the appellant for reasons beyond the control of the tribunal. Amendment 17 seeks to clarify that to find a breach of the principles of natural justice, the High Court need not focus only on procedural defects. Amendment 18 would change the test to judicially review a decision of the Upper Tribunal to refuse permission to appeal from a “fundamental” breach of the principles of natural justice to a “material” breach of those principles. Amendment 22 in my name would require the Lord Chancellor to carry out and publish a review of the operation and the consequences of the ouster of Cart judicial reviews.

There are a number of other amendments in this group which I support, but the process of this group is to look at the overall intensions of the Government and then to further look at the individual ameliorating effects, if I can put it like that, within the amendments which I have tabled in this debate. I beg to move Amendment 16.

[Lord Faulks (Non-Afl)]

My Lords, I do not want to repeat what I said at Second Reading. Suffice it to say that I referred to what Lord Carnwath said in a lecture, essentially that the decision in Cart was incorrect and needed to be reversed. That line of argument was supported by the recently departed—in the physical sense, I hasten to add—noble and learned Lord, Lord Brown of Eaton-under-Heywood, and by the noble and learned Lord, Lord Hope of Craighead.

The question is whether the decision was correctly reached. If one follows the story of Cart, which we did with some care, looking at the decision of the Court of Appeal, Lord Justice Laws was the first judge to break what had been a consensus that the decisions of the Upper Tribunal should not in any way be subject to challenges by way of judicial review.

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I echo what I said on previous occasions. These are modest suggestions and the Labour Party should not take the view that any change to judicial review is per se bad. It is a change that is welcomed by the judges as a whole—of course, I cannot speak for all of them—and to say simply that this whole section of the Bill should go is not a responsible act of opposition.

[Lord Ponsonby of Shulbrede (Lab)]

Before the noble Lord sits down, just to put the record straight, it is right that David Lammy said that when he was in a previous position. However, what he says now is that he has changed his mind and that he thinks that the whole of Clause 2 should go.

[Lord Faulks (Non-Afl)]

He is in opposition.

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[Lord Ponsonby of Shulbrede (Lab)]

My Lords, I want to comment on Amendment 23 in the name of the noble and learned Lord, Lord Etherton. The amendment retains the Cart supervisory jurisdiction but bars

“any appeal from the court exercising the supervisory jurisdiction or any other challenge to decisions of that court whether by way of renewal or otherwise”,

and the decision of the High Court will be final. As the noble and learned Lord put it, this is a middle way. In a way, it is a shame that it was not degrouped from this group of amendments because, essentially, we have been having two debates in parallel. Also, it might have been more appropriate as a Report stage amendment.

By way of introduction to my comments on the amendment itself, one of the experiences of being a magistrate is that a lot of legal advisors leave magistrates’ courts to go and work in the administrative courts; it is a career progression for a number of them. Some, who I would count as friends, have said to me how utterly hopeless are many of the cases they have to deal with and prepare for the judges; so, interestingly, a number come back to the magistrates’ courts because they prefer the work there. Anyway, that is an aside.

The noble and learned Lord, Lord Etherton, questioned the figures presented by the Minister. I would be interested to hear the Minister’s response to that. A number of noble and learned Lords proposed further amendments. The noble Lords, Lord Trevethin and Oaksey and Lord Pannick, also proposed further amendments, which may come back on Report; we wait to hear. I noted that the noble Lord, Lord Marks, also supports the approach taken by the noble and learned Lord, Lord Etherton. I think that an encouraging statement has been made by all these noble Lords.

As I said earlier, we oppose Clause 2 standing part. I am grateful for the support of the noble Baroness, Lady Jones, and the noble Lord, Lord Evans, on that, but I intend to withdraw my amendment after the Minister has spoken.

[Lord Wolfson of Tredegar (Con)]

My Lords, I will begin by addressing the clause as a whole before dealing with specific amendments, as a number of Members of the Committee have indicated that they believe the clause should be wholly removed from the Bill.

As the Committee is aware, Clause 2 overturns the Cart and Eba judgments, removing the route of challenge known in short hand as a Cart judicial review. Let us be clear exactly what that is: it is a challenge of a decision of the Upper Tribunal to refuse permission to appeal a First-tier Tribunal decision. The claimant has already had a case before the First-tier Tribunal, which the claimant has lost, and the claimant has then been refused permission to appeal by both the First-tier and Upper Tribunal. A Cart judicial review allows an applicant to challenge in the High Court the Upper Tribunal’s refusal of permission to appeal—and that is not the end of the matter. If permission to apply for judicial review of the Upper Tribunal’s decision is refused by the High Court, that itself opens a route to the Court of Appeal, as we heard from the noble and learned Lord, Lord Etherton.

It should not surprise anyone that the Upper Tribunal, which is a senior and specialist tribunal, in some cases presided over by a High Court judge, appears to get over 96% of its determinations on permission to appeal right. In this context, “right” means that, sometimes, another High Court judge sitting on an application for a judicial review did not give permission. That should not come as a surprise because the Upper Tribunal is a senior court with a specialist jurisdiction, with senior judges sitting on it, so it is well suited to determining those questions of law.

I have heard it argued that we are removing a lifeline for claimants, but that argument can be extended to any system that has a limit—and there must be a limit. The question for Government and Parliament is where to draw the line. It is commonplace in our judicial system, so far as applications for permission to appeal are concerned, for that application to be considered by the original judge and the putative appellate judge, but no more. That is what the tribunal system does already.

Some members of the Committee may remember the decision in Board of Inland Revenue v Haddock, a decision of the Court of Appeal, comprising the Master of the Rolls, sitting with Lord Justice Ratchet and Mr Justice Apple, but reported only by one AP Herbert in his collection Uncommon Law. Subtitled

“Why is the House of Lords?”—

referring, I hasten to add, to this House in its former judicial capacity—the report posed the question why there should be three tiers of appeal: judge, Court of Appeal and then what he referred to, somewhat impertinently, as the

“wild wager on the final race”,

as he described the former Judicial Committee of this House. This metaphor meant that the Court of Appeal was relegated to

“a minor handicap taking place at 3.30”.

However, we have moved on since then. There is often now one tier of substantive appeal. If you want to appeal from a master to a judge, and then from the judge to the Court of Appeal, there are very special rules for second substantive appeals, and even showing that the judge was probably wrong is not enough to get you a second appeal. This is not even a substantive appeal; it is a question of permission to appeal where both the First-tier Tribunal and the Upper Tribunal have refused permission.

As I have said, the Upper Tribunal does not err often, with only 3.4% of claimants who were refused permission to appeal being granted an appeal and then having that appeal found in their favour. That can usefully be compared to a general 30% to 50% success rate for judicial review cases. Due to this, and the sheer number of Cart JRs per year—around 750—the IRAL recommendation was for Parliament to legislate to remove the Cart judicial review process.

I obviously listened very carefully to what the noble and learned Lord, Lord Etherton, said about the time and motion study and the assumptions set out therein. I know that he and my officials have had a number of useful exchanges on this. We have striven to count as accurately as possible the days taken at each point in the process, and we set that out in our impact assessment. I think that the noble and learned Lord omitted the time taken by the Upper Tribunal for reconsideration, which is not insignificant. Whatever the number of cases that reach the Court of Appeal, it must be more than zero. Therefore, I argue that there is a risk that we are actually underestimating the judicial time spent on Cart reviews. But, for present purposes, I can say that I am very happy to continue discussion on these matters ahead of Report. I will also write to the noble Lord, Lord Marks, about the data, if there is any—I do not know whether there is—on the settlements and the other points that he mentioned.

The second contention put against me is that the means by which we propose to implement the recommendation is a dangerous one. There are two points here. First, are ouster clauses appropriate in principle? I know that I will not persuade the noble Lord, Lord Marks, on this but, to put it briefly, parliamentary sovereignty means that an ouster clause can be appropriate in principle, I suggest. Legislation can change any aspect of the law and can also include an ouster clause. Although I respect and understand the argument that they are wrong as a matter of principle, I and the Government do not agree with this argument, and we consider that they are appropriate in particular circumstances.

The question now is: in this case, is the ouster clause the proper measure? We say it is: this is the best way to make Parliament’s intention clear vis-à-vis the relative and respective competences of the Upper Tribunal and the High Court. I absolutely accept that the clause’s drafting has been influenced by the arms race, one might say, between Parliament and the courts on ouster clauses in a series of cases. Parliament says X; the court says, “Did you really mean X? Maybe you meant Y.” Parliament says, “No. We are now saying Y.” “Well, what about Z?” You can see that development of the cases from Anisminic through Privacy International and thereafter. That is why the clause must in the form it is: otherwise, the point from Privacy International will be put: “Why does it say ‘purported’?” I think that was the Privacy International point. That is why the clause is drafted in the way it is.

Amendment 23 in the name of the noble and learned Lord, Lord Etherton, creates a procedural bar, providing that the decision of the High Court or any other supervisory court in reviewing an Upper Tribunal permission to appeal decision is final, preventing any escalation of that point to the Court of Appeal. Although I accept that that approach would create some efficiencies compared with the status quo, they would be significantly fewer than the approach we are taking. It also does not address the conceptual issue, with the High Court overseeing permission to appeal decisions of the Upper Tribunal, which is a senior court of record with specialist subject knowledge.

I am also concerned that some of the nuance in the original ouster clause, which still allows review in certain circumstances, has been lost in that revised version. The procedural bar proposed by the noble and learned Lord would seem to be absolute, not only on the refusal of permission point but, as was identified in the debate, in the substantive disposal were permission granted. As the debate went on, it seemed to me that the lid would not be as tight-fitting as he intended. Indeed, it sounded to me that as more additions and exceptions were built into the amendment, we would be back at either square one or, perhaps at best, at square two. Therefore, although I appreciate that the noble and learned Lord seeks a compromise solution, his amendment, especially with the additions accreted thereto, would not meet the Government’s policy intent.

Amendments 16 and 20 in the name of the noble Lord, Lord Ponsonby, and Amendment 21 from the noble Lord, Lord Marks, add a variety of exemptions to the ouster clause in particular cases but, in short, the Upper Tribunal is well placed to know the circumstances. It deals with matters of immigration law on a regular basis, and I therefore see no justification for treating those circumstances as exceptions to the ouster clause.

Amendments 17 and 18 apply to the natural justice exemption. This provision was amended by the Government on Report in the other place to read in the words now in the Bill. That was not, as my colleague James Cartlidge explained, a change of policy. Our intention is for substantial procedural impropriety to remain reviewable but for errors of fact or law within the Upper Tribunal’s remit to be ousted. The new wording is intended to be clearer. The amendments would undo the clarification on that point. As to whether fundamental breach is particularly different from material breach, that is perhaps something of a moot point. The intention is to set a high bar which will not be susceptible to erosion over time or cause an unnecessary number of applications, which would undermine the entire purpose of the ouster.

In that context, Amendment 19 in the name of the noble Lord, Lord Pannick, which would allow the High Court or the other supervisory jurisdictions to carry out a JR of an Upper Tribunal permission to appeal decision where there is a “fundamental error of law”, risks taking us back, I am afraid, almost to where we started. That amendment attempts the same thing the Supreme Court attempted in Cart itself—to create a route for judicial review on errors of law but with a sufficiently high bar not to create a flood of cases. That attempt obviously failed, and I fear the noble Lord’s amendment will take us back and, essentially, repeat the same mistake.

--- Later in debate ---

I therefore consider that Clause 2 is both appropriate and proportionate. It supports the efficiency of our justice system and forms an important part of the Bill. I understand that the noble Lord, Lord Ponsonby, will be withdrawing his amendment, and I invite other noble Lords not to press theirs.

[Lord Ponsonby of Shulbrede (Lab)]

My Lords, it is clear we will return to a number of issues on Report. But for this evening, I beg leave to withdraw Amendment 16.

Amendment 16 withdrawn.

Criminal Justice: Royal Commission

Lord Ponsonby of Shulbrede Excerpts

Monday 7th February 2022 Lords Chamber

[Lord Wolfson of Tredegar (Con)]

My Lords, I am afraid that I cannot go further than what I have already said. We are looking at it, and we want to make sure that we maintain our current programmes. In the last six months we have published a victims consultation, the prison White Paper and national criminal justice scorecards. We have the Judicial Review and Courts Bill this afternoon, and there is a consultation on juries in the consultation on human rights. That is not too bad, for the last six months.

[Lord Ponsonby of Shulbrede (Lab)]

My Lords, a significant proportion of people on community sentences report having mental health or drug addiction issues, yet very few of those community sentences include mental health or drug treatment requirements, partly because these services are simply not available in many areas. This must change if we want community sentences to be fully effective in helping offenders turn their lives around. Will the royal commission on criminal justice include a review of community-based sentencing?

[Lord Wolfson of Tredegar (Con)]

My Lords, I am reluctant to write the terms of reference for the royal commission from the Dispatch Box, but we do know that such services are absolutely essential for people who have come out of prison. My department works closely with the DHSC to ensure proper join-up when people leave prison, so that they can access services in the community.

Judicial Review and Courts Bill

Lord Ponsonby of Shulbrede Excerpts

2nd reading
Monday 7th February 2022 Lords Chamber

[Lord Ponsonby of Shulbrede (Lab)]

My Lords, I open by welcoming back to this House my noble friend Lord Hacking. He last spoke in this House on the Contracts (Rights of Third Parties) Bill. I thought I might read out his final paragraph:

“Finally, some noble Lords have noticed that I am sporting an enormous black eye. As no one appears to have accepted my domestic explanation for it, and as a number of theories have been developed among noble Lords to whom I have spoken, perhaps I may put on record that I have not been whopped by an angry hereditary Peer who failed in the ballot! On the contrary, I believe that all hereditary Peers are seeking to leave this House with great dignity, and I am sorry that my own appearance is a little undignified.”—[Official Report, 10/11/1999; col. 1363.]


I welcome my noble friend’s return to this House.

Although the Labour Party welcomes elements of this Bill, it does not support the judicial review measures proposed in it. We would support removing them entirely. We believe that the Ministry of Justice is trying to fix something that is not broken. The Government should be spending their time tackling the record court backlog, protecting victims of serious crime and strengthening community-based sentences.

The Government’s reforms go beyond what was recommended by their own expert panel, with no evidence to back up this overreach. The Independent Review of Administrative Law, chaired by the noble Lord, Lord Faulks, did not recommend prospective-only remedies, a presumption for suspended quashing orders, imposing on the courts a list of factors to determine their use, or ouster clauses.

Clause 1 creates new powers for courts to remove or limit the retrospective effect of a quashing order. It will also create a presumption that a judge issuing a quashing order should make it suspended or prospective only. As a result, courts would have less power to provide redress or to compensate those affected by past uses of the unlawful decision. On the face of it, that might seem quite a small change to judicial review, but we believe that the effects could be profound and chilling.

Numerous organisations, such as the Public Law Project, Friends of the Earth and the Law Society, are concerned that the statutory presumption in Clause 1 seeks to remove swathes of government decision-making from challenge via judicial review, and to limit the effectiveness of remedies granted to those challenges that are successful. 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.”

I shall also quote some points raised by the Public Law Project, which has said that the statutory presumption would, first,

“place victims of unlawful actions in an unfair position; remedies which are prospective only may leave individuals without redress at all.”

Secondly, it said, these remedies would

“insulate Government from scrutiny and make it more difficult for decision makers to be held to account.”

Thirdly, they would

“make it more—rather than less—likely that judges will be forced to enter the political realm.”

Fourthly, they would remove the current simplicity of quashing orders and make it more difficult, and costly, to bring a judicial review claim. Fifthly, they would shift the scales of justice too far in the direction of the Executive at the expense of the individual.

Clause 2 of the Bill would abolish Cart—or, in Scotland, Eba—judicial reviews. These are most often used in serious asylum and human rights cases. We believe that Cart is a vital safeguard against incorrect decisions made by the Upper Tribunal. There is already a high threshold for bringing them and the proposed saving is tiny compared to the human cost of abolishing them. The Labour Party is also concerned that the Government will use abolishing Cart judicial reviews as a precedent to abolish other types of judicial review in the future.

At the consultation stage of the review of administrative law, the Immigration Law Practitioners Association provided the panel with 57 case studies of when Cart judicial review had been used to put right an incorrect decision made by the Upper Tribunal. Those case studies included parents’ applications to be reunited with their children, a child’s application to remain in the UK to receive life-saving treatment, the asylum claim of a victim of human trafficking and female genital mutilation, and many other deportation and asylum decisions where, if deported, individuals would face persecution or their lives would be put at risk. The same applies to other kinds of cases heard in the tribunal system, such as cases about access to benefits for disabled children. The Government have recognised in their impact assessment that the majority of those affected by this change will be those with protected characteristics.

Part 2 of the Bill consists of five chapters, which contain provisions relating to criminal procedure, online procedure, employment tribunals, coroners and other court provisions. Many of the measures contained here were previously in the 2017 Prison and Courts Bill, which fell at the Dissolution of Parliament. In general terms, we are in favour of measures that make our courts more accessible, fairer and, if appropriate, more cost-effective. I remind the House that I sit as a magistrate in London and, over the past two years, I have done my fair share of remote hearings in the adult jurisdiction, including single justice procedures, and in the Family Division. I have also done youth hearings where we have had to make difficult decisions about the appropriateness—whether for the victim or the defendant—of proceeding with a remote hearing. So, I do understand the practicalities and limitations of working remotely.

The amendments that we will put forward for this part of the Bill will focus on improving safeguards for young people and vulnerable people, and on preventing people inappropriately pleading guilty online without properly understanding the implications of their plea. It is a real fear that, to make life simple, people will just plead guilty to get the issue out of the way. We also support publicly funded legal representation for bereaved people at coroner’s inquests and we will move amendments to this effect at later stages of the Bill. I also welcome the increased sentencing powers for magistrates’ courts for either-way offences, from six months to 12 months for a single charge. I cannot help noting that, if this measure had been introduced at the beginning of the pandemic, it might have partially ameliorated the current Crown Court backlog.

In conclusion, the Government’s proposed changes to judicial review would deter members of the public from bringing claims against public bodies and leave victims of unlawful actions without legal redress. Governments may, at times, find judicial review to be inconvenient, but that is no justification for attempting to avoid judicial scrutiny. As the Opposition, we will oppose Part 1 of the Bill but will work to improve Part 2. I thank the Minister for introducing this legislation.

Social Welfare Law Cases: Legal Aid

Lord Ponsonby of Shulbrede Excerpts

Tuesday 1st February 2022 Lords Chamber

[Lord Wolfson of Tredegar (Con)]

The right reverend Prelate is right: we want to ensure that people do not go to court when they do not need to. During the pandemic we invested £5.4 million in not-for-profit legal support services, to make sure that people can have access to early legal advice so that only those who need the assistance of a judge go to court.

[Lord Ponsonby of Shulbrede (Lab)]

My Lords, it is 10 years since the LASPO Act came into force, which so dramatically reduced legal aid funding. The Government’s review of LASPO, published in February 2019, pointed out that the housing sector was particularly affected by these cuts, and that when housing legal advice was in scope, people were still failing to get access to the relevant legal advice. What will the pilot that the Minister has talked about do to help people get the advice which they are entitled to in any event?

[Lord Wolfson of Tredegar (Con)]

My Lords, the pilot that I was referring to is a general pilot in relation to social and welfare entitlements. Regarding housing possession cases, as the noble Lord knows, there is a housing possession court duty scheme. We are running a specific focus on that, because there are areas where people are not getting the advice that they need. That was paused during the pandemic because we put a complete halt on repossessions, but we are now looking at the best way to make sure that we get focused housing advice to people who need it, when they need it.

Police, Crime, Sentencing and Courts Bill

Lord Ponsonby of Shulbrede Excerpts

3rd reading
Tuesday 25th January 2022 Lords Chamber

[Lord Clarke of Nottingham (Con)]

My Lords, I feel very guilty that I was unable to arrange my diary to take any part in the Bill as it went through because this is the part of the Bill in which I would otherwise have taken an active part. I have already apologised to the noble Lord, Lord Blunkett, outside this House for the fact that in the end I was not able to offer him any assistance.

I add only, as my noble and learned friend just has, my support and simply record that I was the Lord Chancellor who abolished indeterminate sentences in 2011 with the wholehearted support of the noble Lord, Lord Blunkett, who was then in the House of Commons with me and defused any attempts to preserve this stain on the statute book, which he had accidentally introduced without any expectation that it would be used as it was and resolve into a problem.

If you had told me when we abolished this sentence that there would be thousands of people in the position that they are now, 11 years after abolition, because they were left over to be dealt with, I would not have believed it. What I proposed was simply a change to the burden of proof that the Parole Board had to apply when deciding whether it was safe to release somebody, but that was never implemented. The fact that all these years later we face these problems is something of a disgrace. I thank the Minister for making this modest move, but I certainly agree with what everybody has said about the modesty of it. It needs urgently to be addressed by the Select Committee in the other place.

[Lord Ponsonby of Shulbrede (Lab)]

My Lords, I too would like to echo the thanks for the Minister. He has, in a sense, been a lobbyist within the Ministry of Justice to get this modest amendment over the line. The noble Lord, Lord Moylan, summed up the position very well when he described it as the first crack in the wall. I was alarmed by the figures he quoted from his Written Question, where he seemed to indicate that there would be more prisoners in jail because of recalls, so the problem is likely to get worse and not better.

The noble Baroness, Lady Burt, referred to the Minister’s reference to Newton’s second law—that it is easier to move an object that is already in motion. My first degree was in physics, and I would phrase that slightly differently, in a way that is relevant to the politics: the rate of change of movement is proportional to the impressed force. We on this side are certainly interested in increasing the impressed force on this object which is currently under way.

[Lord Wolfson of Tredegar (Con)]

My Lords, I am grateful for the kind words a number of noble Lords have said. This may be a modest start, but it is a start, and I am sure that the conversation will continue. In particular, as I said when we discussed this matter substantively, I am well aware that the Justice Select Committee is looking at this matter. It will be reporting soon and, while I cannot go quite as far as my noble friend Lord Moylan would want me to by saying that, if the committee recommends, for example, changing the qualifying period from 10 years to five years, the Government will adopt it, I can say—which I hope would be obvious anyway—that we will take anything that comes out of the Justice Select Committee extremely seriously and look at it with very great care.

The action plan has been provided to the Justice Select Committee. We will review it again following the publication of its report to take account of our consideration following its recommendations. I hope the House will forgive me if I do not respond to everybody who contributed. I am conscious that we are at Third Reading and there is other business before the House. But I thank everybody who has contributed to this short debate. In particular, I respectfully thank the noble Baroness, Lady Burt of Solihull, for our conversations and the correspondence we have had, which she knows I have been dealing with.

I am conscious that Newton has now been invoked on a number of occasions. I am not altogether sure whether Newtonian physics applies to government action, but I will proceed on the basis that it does. I will try to push things as far as I can, but for present purposes, the only things I will immediately seek to move are these amendments.

Competition Appeal Tribunal (Recording and Broadcasting) Order 2022

Lord Ponsonby of Shulbrede Excerpts

Tuesday 25th January 2022 Grand Committee

[Lord Thomas of Gresford (LD)]

My Lords, the Liberal Democrats have always supported open justice and continue to do so. Therefore, we very much support this instrument. During the lockdown periods, I watched my daughter-in-law, who is a judge of the First-tier Tribunal, conduct her hearings online. She has done so consistently in providing justice in the north-west. I have been very impressed with the way in which justice has been seen to be done in that area. I have nothing further to add.

[Lord Ponsonby of Shulbrede (Lab)]

My Lords, we too support these measures. It seems entirely sensible that they should continue, as they seem to have been operating satisfactorily during the various lockdowns we have been through.

As the Minister said, judicial discretion is retained. I would be interested if he could give an example of when it may be appropriate for the judge to determine that the proceedings should not be made available to members of the public who may wish to hear what is going on.

I have done my fair share of remote hearings in court from my dining room table. I sometimes did hearings in court and then proceedings in Parliament on the same day, from the same dining room chair. It can be done and I have made sure that my colleagues on the magistrates’ Bench have had training on how to behave when doing hearings via MS Teams or Zoom. In fact, we have a retired magistrate who is a former TV producer. It is very interesting to be trained to do this properly, because it is very easy for standards to slip. For the Committee’s information, we are arranging further training entitled “Keep the bar high; don’t let standards slip”, because it is very easy for that to happen when one is working remotely. We support the instrument.

Police, Crime, Sentencing and Courts Bill

Lord Ponsonby of Shulbrede Excerpts

Report stage
Wednesday 12th January 2022 Lords Chamber

[Lord Paddick (LD)]

My Lords, I remind the House that at one stage in my police career I was the lead for the Metropolitan Police on restorative justice, working with Professor Larry Sherman. The evidence from that experience and other academic studies shows that the benefits to victims, in terms of allaying fear and victim satisfaction, and to perpetrators, in terms of engagement with the criminal justice process, and by being confronted, as the noble Lord, Lord Laming, has just said, by their offending behaviour, and in terms of reducing recidivism, are unequivocal.

The only objection to the amendment would be political, because restorative justice is wrongly perceived by those who do not understand the process as going soft on offenders; it is the opposite. I agree with the noble Lord, Lord Laming, about short sentences. However, on the point made by the noble Lord, Lord Cormack, it does not necessarily have to be an alternative to prison in very serious cases. The important outcomes are victim satisfaction and the offender having to confront their offending behaviour.

The Minister may argue that people get a long time in prison in which to reflect on their wrongdoing. However, a colleague of mine did some research on street robbery and went to a young offenders’ institution to interview those who had been convicted and incarcerated for that offence. Many of those he spoke to did not understand why they were in the young offenders’ institution. The process was so detached from them—they just sat at the back of the court while other people spoke and dealt with the case, without their involvement at all. They genuinely did not understand why they were in prison. That is why restorative justice is important.

The question is: are the Government going to be led by the evidence and support this amendment, or are they going to object to it, based on misconceptions?

[Lord Ponsonby of Shulbrede (Lab)]

My Lords, I, too, support the amendment. It is modest and worth while, and is another step down the road.

I remember that the noble Lord, Lord McNally, introduced the phrase restorative justice into the statute book. I cannot remember which piece of legislation it was but at that point he spoke perceptively when he said that it was going to be a long road to get restorative justice embedded within the criminal justice system, whether in terms of probation, YOTs or prison. He was right and the necessity for the amendment proves that because the noble Baroness, Lady Meacher, gave a number of examples, including where the funding or initiatives have stalled and the momentum with restorative justice has been lost. From memory, the initial introduction of restorative justice was through a separate funding stream for YOTs to use these programmes. So I very much support the amendment. It needs constant activity and oversight by a Minister to get the restorative justice programmes embedded in the system as a whole.

One reason why what I am saying is perhaps more relevant than what some noble Lords have said is that I have some scepticism on the issue. I am happy to have a cup of tea with the noble Baroness, Lady Meacher, to express my scepticism. While I support the amendment, it requires a long-term programme, and it is for the Government to make sure that that programme is implemented.

--- Later in debate ---

[Lord Faulks (Non-Afl)]

Before we hear from the Minister and the noble Lord for the Opposition, I shall simply add that of course the aims identified in this amendment are probably shared by everybody in your Lordships’ House but, ultimately, is it not for the Government of the day to decide on these things? I think we can probably predict what most royal commissions would recommend following the terms of reference reflecting this amendment. Ultimately, a Government have to decide whether in certain circumstances, as was the case in the Bill, there need to be mandatory sentences or the prison estate needs more money spent on it. These are matters for government. I will be interested to hear what the noble Lord for the Opposition says about this; during the course of the Bill, I do not think the Labour Party has opposed the increased mandatory sentences in various areas. That is a position it is entitled to take. A royal commission can recommend; a Government have to decide.

[Lord Ponsonby of Shulbrede (Lab)]

My Lords, we support this amendment and every element of what the noble Lord, Lord Marks, said when he was introducing it. It is about criminal sentencing. My noble friend Lord Bach raised the question of a royal commission on the criminal justice system as a whole, and I will be interested to hear the Minister’s response on that.

The noble Lord, Lord Faulks, correctly identified that in this Bill the Opposition have supported some measures that have led to increased sentences. In a sense, the heart of the problem is that the constant inflation of sentences is leading to the overarching problem we have now with overcrowding and squalor in our prisons and a lack of effectiveness in our out-of-court sentences. I understood that to be the main purpose of the royal commission.

I want to give a very simple example of my role as a magistrate sentencing, as I was yesterday, in a magistrates’ court in London. As a magistrate, I have powers to sentence up to six months’ custody for a single offence. When, on occasion, I do that, I simply do not know how long that person will spend in custody. When I first became a magistrate about 14 years ago, I used to say to the offender, “You will spend half your time in custody and then, at the discretion of the prison governor, you will get out”. I do not say that any more because I do not know whether it is true. Sometimes the offender will get out after one-quarter of their sentence, if there are particular reasons and it is a non-violent offence, and sometimes, if they commit relatively less serious offences while they are in prison, they may serve their whole term, so I simply do not say that any more when I am sentencing.

That is a very particular example; there are many examples within sentencing as a whole where any sentencer, including a magistrate, is asked to use fairly obscure phrases which are not simple to understand for the person being sentenced. There is a role for an overall look at this to try to have consistency in sentencing and the words used while sentencing. The noble Lord’s amendment goes further than that as it is looking at community sentences as well. There really is a strong need for an overarching view of criminal sentencing.

[Lord Wolfson of Tredegar (Con)]

My Lords, this amendment, tabled by the noble Lord, Lord Marks of Henley-on-Thames, would require the Secretary of State to establish a royal commission to review and report on criminal sentencing. The amendment was tabled in Committee and I am glad to have the opportunity to further clarify the Government’s position on this matter.

First, let me pick up the direct question put to me by the noble Lord, Lord Bach, which I think was echoed by my noble friend Lord Cormack and mentioned by the noble Lord, Lord Ponsonby of Shulbrede. The 2019 Conservative manifesto did commit, as noted in Committee, to set up a royal commission on the criminal justice system. Work to set up that royal commission was slowed at the onset of the pandemic to focus on the very practical matter of ensuring that the criminal justice system could continue to operate—as it did, thanks to a lot of hard work by staff up and down the country—in a Covid-safe environment. As work on the commission was paused, officials were redeployed to other work and other roles in government.

Significant new programmes of work have now been stood up to support recovery and build back a better criminal justice system. That means that many of the areas the royal commission was due to look at are now being progressed more quickly, for example on efficiency and effectiveness of the system. That includes ensuring that all component parts of the extremely complex system—which we call the criminal justice system but is an amalgam of all sorts of systems—work together to deliver swifter justice for victims. As I said on the last group, on 9 December we announced our consultation on a new victims’ Bill to improve the level of service victims can expect from the criminal justice system. We remain committed to delivering our manifesto commitments. However, we think it is right to continue to pause the work on the royal commission on the criminal justice system while we focus on delivering these priorities over the coming months. We will then revisit what further role there is for the royal commission.

At the same time, let me clarify a point of confusion, which may have been behind the noble Lord’s question— I do not know. To be very clear, the amendment, as drafted, calls for a royal commission on criminal sentencing, not a royal commission on the criminal justice system. For the record and to make it very clear, when my noble and learned friend Lord Stewart of Dirleton previously responded and assured the Committee that a royal commission of this nature was unnecessary, it was the royal commission on criminal sentencing in the amendment that he was referring to. I see the noble Lord nodding and I am grateful; I did not want there to be any confusion on the point.

The sentencing White Paper published last year set out the Government’s proposals for reform to the sentencing and release framework. Work is under way on the non-legislative commitments made there; the legislative measures are being delivered by the Bill. I can assure the noble and learned Lord, Lord Thomas of Cwmgiedd, that we want to adopt a strategic approach here. We believe that the White Paper delivers that, but I am sure that the conversations on these points will continue. I agree with the noble Lord, Lord Beith, that the taxpayer’s pound is an important factor here. We want value for money in this and other areas of government. The rationale of the White Paper is to deliver a smarter, more targeted approach to sentencing. The most serious violent and sexual offenders should serve sentences that reflect the severity of their offending behaviour.

I say to the House in general, responding in particular to the point made by the noble Baroness, Lady Fox of Buckley, that it is crucial that the Government listen when there are issues on which the public feels strongly, and there are some offences that society finds particularly concerning and, indeed, offensive. At the same time, for lower-level crimes, we are making community sentences more effective, so they can offer an appropriate level of punishment and address the underlying drivers of offending. As part of that—to pick up the point made by the noble Baroness, Lady Jones of Moulsecoomb—we do of course look at the particular issues facing women in prison. We have discussed that on a number of occasions, and I intend no discourtesy by not repeating now what I have said before. We have spoken, and we have focused as a Government, on the needs of women in prison and sentencing women to prison, particularly the primary carers issue, which we have discussed and debated.

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Moved by

[Lord Ponsonby of Shulbrede]

104B: After Clause 172, insert the following new Clause—
“Video recorded cross-examination or re-examination of complainants in respect of sexual offences and modern slavery offences
(1) Section 28 of the Youth Justice and Criminal Evidence Act 1999 comes into force in relation to proceedings to which subsection (2) applies on the day on which this Act is passed.(2) This subsection applies where a witness is eligible for assistance by virtue of section 17(4) of the Youth Justice and Criminal Evidence Act 1999 (complainants in respect of a sexual offence or modern slavery offence who are witnesses in proceedings relating to that offence, or that offence and any other offences).(3) This section has effect notwithstanding section 68(3) of the Youth Justice and Criminal Evidence Act 1999.”

[Lord Ponsonby of Shulbrede (Lab)]

My Lords, the proposed new clause in Amendment 104B would bring Section 28 of the Youth Justice and Criminal Evidence Act 1999, which provides for the cross-examination of vulnerable witnesses to be recorded rather than undertaken in court, fully into force for victims of sexual offences and modern slavery offences. When we debated this in Committee, the point was made that there have been a number of pilots of this approach in, I believe, three Crown Courts in England and Wales. A further point was made in the response by the noble and learned Lord, the Advocate-General for Scotland, that it would be judge-intensive to have judges present when recording the evidence. For those reasons, we were invited to reject the amendment.

In response to those points, I ask the Minister when the results of the pilot will come forward, so we can have an informed decision about whether to roll out this approach. I also question the assertion that this is a very judge-intensive process because judges have to be present when the recordings are made. I made this point to the Minister when we met in private a few days ago. I have done this procedure several times within youth court and, as far as I am aware, there was never a judge or magistrate present then. I have also done this process in Crown Court and for an appeal. On that instance, I was sitting as a winger and there was a Crown Court judge in the middle. We heard the evidence by videolink and, again, as far as I was aware, there was no judge present. So I question the assertion that it would be very judge-intensive to use this approach in the adult court for victims of sexual offences and modern slavery offences.

The proposed new clause in Amendment 104C would give the complainant a right of representation with legal aid, if they are financially eligible, to oppose any application to admit Section 41 material about them. It would also give complainants the right to appeal to the Court of Appeal if the application is allowed, in whole or in part. The proposed new clause also provides that the complainant is not compellable as a witness at the application. I am grateful to the noble Baroness, Lady Jones of Moulsecoomb, for putting her name to this amendment.

This issue was again explored at some length in Committee. My noble and learned friend Lord Falconer made the point that it is very sensitive. If there is the possibility of somebody’s sexual history becoming known in a wider context within court, it acts as a cooling method for people making allegations. This is a way around that problem to try to give people the confidence to come forward and make complaints of sexual assaults.

Amendment 107C is in the name of my noble friend Lord Coaker. It would require police forces to have a specialist rape and serious sexual offences, or RASSO, unit. As background, I have three facts to share with the House. First, two-fifths of police forces currently do not have one of these units, which specialise in the prosecution of rape and serious sexual offences and supporting victims of these offences. Secondly, the current prosecution rate for reported rapes is about 1.4%. No matter how many times we hear this statistic, it remains deeply shocking. Finally, Home Office figures show that the number of victims dropping out of prosecutions has increased to a record 41%. In each of these cases, we are failing to deliver justice for a victim and to tackle a dangerous predator.

MPs and noble Lords from across this House have worked, with limited success, to make tackling violence against women and girls a part of this Bill, including explicitly recognising violence against women and girls as serious violence under the serious violence reduction duty. We are in a situation where this Government may pass a flagship piece of criminal justice legislation without including any specific plans to improve the investigation and prosecution of rape and serious assaults. This issue needs to be taken forward in partnership with the police and finally recognised as a priority. I look forward to what I hope will be a positive response from the Minister and beg to move.

[Baroness Jones of Moulsecoomb (GP)]

I reassure noble Lords that I will not be speaking on every amendment today, but I regret that all those that we have discussed so far, including this one, will not go to a vote. That is a real shame, because they are so sensible.

I congratulate the noble Lord, Lord Ponsonby, on tabling the amendment to which I have put my name. I support all the amendments in this group, not just Amendment 104C. The criminal justice system is hugely distrusted by survivors of sexual violence, based on the way they are treated when they come forward to make a complaint. There have been some important steps forward over the years, but trust is still far lower than it needs to be for survivors to come forward, go through the whole criminal justice system and have their lives pored over. Granting the right to complainants to be represented by a lawyer in an appeal to adduce evidence on questions of sexual conduct would be an important leap forward. The complainant is seen as a neutral third party with no particular legal rights, rather than someone deserving legal protection and representation, and this really has to change.

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I hope that I have responded on each of the amendments. Although I appreciate that a few points of difference between us will remain, I hope that the noble Lord will none the less be able to withdraw the amendment.

[Lord Ponsonby of Shulbrede (Lab)]

My Lords, I thank the noble Lord for his assurances, and I beg leave to withdraw my amendment.

Amendment 104B withdrawn.

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Moved by

[Lord Ponsonby of Shulbrede]

104E: After Clause 172, insert the following new Clause—
“Offence of requiring or accepting sexual relations as a condition of accommodation
(1) It is an offence for a person (A) to require or accept from a person (B) sexual relations as a condition of access to or retention of accommodation or related services or transactions.(2) For the purposes of this section, A is—(a) a provider of accommodation,(b) an employee of a provider of accommodation,(c) an agent of a provider of accommodation, or(d) a contractor of a provider of accommodation.(3) A person guilty of an offence under this section is liable on conviction on indictment to imprisonment for a maximum of 7 years.”

[Lord Ponsonby of Shulbrede (Lab)]

My Lords, this group of amendments seeks to introduce new offences to make it illegal to have sex-for-rental accommodation. Currently, sex for rent was affirmed as a sexual offence in 2017 by the Ministry of Justice. Under the current legislation, an individual can be prosecuted for such a crime only under Section 52 of the Sexual Offences Act 2003—causing or inciting prostitution for gain. Only one person has been charged in a sex-for-rent case, and only as recently as a year ago.

The law itself has made it extremely difficult for sex-for-rent victims to seek justice. According to the law, victims must be legally defined as prostitutes, which is a huge deterrent in their access to justice. Another reason why this scandal continues virtually unchecked is that landlords are able to advertise sex for rent in their properties very easily. Landlords still post on sites such as Craigslist, where they talk about free house shares, room shares or even bed shares, and even some of the postings are extremely explicit about the requirement of sex for rent.

Amendment 104E would create a new offence of requiring or accepting sexual relations as a condition of rental accommodation, with a maximum sentence if convicted of seven years. Amendment 104F would create a new offence of arranging or facilitating the requirement or acceptance of sexual relations as a condition of rental accommodation, with a maximum fine of £50,000. That would of course be for those who allow the advertisements on their websites or allow any other form of this type of advertising.

Amendment 114A would put a requirement on the Secretary of State to establish a review into the prevalence of, and the response of the criminal justice system to, the offence of administering a substance with intent under Section 61 of the Sexual Offences Act 2003. This is a separate point, and it is something that has had a lot of publicity recently. What is not known is how much of that has been drummed up by the press, if I can put it like that, and how much is real. Nevertheless, the concern that has been raised is certainly real, and this amendment would put an obligation on the Government to get to the bottom of the matter and see whether it is a real problem that nightclubs and other people need to take action to stamp out.

Amendment 114B would put a requirement on the Secretary of State to establish a review of the offence of exposure under Section 66 of the Sexual Offences Act. Again, this is a separate and wider issue, which has ramifications regarding violence against women and girls and the question of whether it is a step along that road. It is right that it should be viewed in its wider context. As a sitting magistrate I see these cases fairly often; they are highly variable and the perpetrators range completely across the social spectrum. Nevertheless, the impact on the women and girls who are subject to these exposures is real, and I am sure there is sufficient data to see whether people who expose themselves progress to much more serious offences.

However, it is fair to say that the main purpose of this group of amendments is to put in new offences of illegalising sex for rent. I beg to move.

[Earl Attlee (Con)]

My Lords, I am grateful to the noble Lord, Lord Ponsonby of Shulbrede, for tabling Amendments 104E and 104F, because this gives me an opportunity to speak to them as I was not available at an earlier stage.

My first point is that sex for rent is invariably immoral and abhorrent and frequently evil, so I agree with the sentiments expressed by the noble Lord today and by noble Lords the last time we debated it. Unfortunately, I share the concerns expressed by the noble Lord, Lord Marks, in Committee on 22 November last year. Like the noble Lord, I am worried about the unintended consequences. He asked:

“What about the landlady of the bed and breakfast who seduces the potential paying guest and offers him or her a free room in return?”—[Official Report, 22/11/21; col. 684.]


The problem is not so much in the drafting but in the way that the amendment works. For instance, I worry about the use of the word “provider”. Does the proposed offence catch a young, affluent male student who has a spare bed or room to offer a female student, partially or wholly in exchange for sex or an intimate relationship?

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[Lord Ponsonby of Shulbrede (Lab)]

My Lords, I thank all noble Lords who have taken part in this debate. It has been quite quick but focused on the issues raised in this group of amendments.

The noble Earl, Lord Attlee, raised some reservations and talked about the nature of the victims. I advise the noble Earl to read very carefully what my noble friend Lady Kennedy said when she itemised the victims of this offence. It is overwhelmingly women who are victims of this offence. The numbers are very large and it has been going on for years. My noble friend is an expert on this matter and I think his remarks were misplaced, if I can put it like that.

[Earl Attlee (Con)]

My Lords, I have no issue with what the noble Lord said, nor with what the noble Baroness said. This problem has been going on for a very long time and large numbers are involved; I do not disagree with that.

[Lord Ponsonby of Shulbrede (Lab)]

My Lords, I move on to the comments of the noble Lord, Lord Pannick, and the noble and learned Lord, Lord Hope. I am grateful for their support. They raised drafting issues, if I can put it like that, around the word “arranging” in Amendment 104F, and the noble and learned Lord, Lord Hope, questioned the use of the word “publisher”—although my noble friend Lady Kennedy said that she regards “publisher” as including online platforms. Nevertheless, I am not stuck with the specific wording in front of us. I think the purpose of the amendments is perfectly clear, and I am glad that both the noble Lord and the noble and learned Lord are nodding their heads.

I was disappointed with the answer given by the Minister. She made it clear that the Government take these issues seriously and said that they are constantly reviewing the law on these matters, but here is an opportunity to change it right now. There has been a very effective campaign on this issue, and it would have been an opportunity for the Government to change their approach. So I think that we on this side of the House should force the issue and test the opinion of the House, just to see the strength of opinion on this long-standing problem.

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Moved by

[Lord Ponsonby of Shulbrede]

104F: After Clause 172, insert the following new Clause—
“Offence of arranging or facilitating the requirement or acceptance of sexual relations as a condition of accommodation
(1) It is an offence for a person, who may in particular be a publisher, to arrange or facilitate an offence under section (Offence of requiring or accepting sexual relations as a condition of accommodation).(2) A person commits an offence if they intend to arrange or know that their actions would facilitate an offence under section (Offence of requiring or accepting sexual relations as a condition of accommodation).(3) A publisher commits an offence if they—(a) know they are arranging or facilitating an offence under section (Offence of requiring or accepting sexual relations as a condition of accommodation),(b) reasonably should know their actions would enable the arrangement of or facilitate an offence under section (Offence of requiring or accepting sexual relations as a condition of accommodation), or(c) were informed that their actions had enabled the arrangement of or facilitated an offence under section (Offence of requiring or accepting sexual relations as a condition of accommodation) and failed to take remedial action within a reasonable time.(4) A person found guilty of an offence under this section is liable on conviction on indictment to a fine of £50,000.”

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[Baroness Kennedy of Cradley (Non-Afl)]

My Lords, men who seduced girls between the ages of 13 and 16 before 1 May 2004 are effectively immune from prosecution because of a procedural time limit. The law therefore stops historic child abusers from being held accountable for their actions; the law denies justice to women in England and Wales who were groomed for sex as teenage girls before 1 May 2004 as they cannot bring charges against the people who took advantage of them. Let me take a minute to explain why.

Abusers are immune from prosecution because sexual offences committed before 1 May 2004 must be prosecuted under the Sexual Offences Act 1956. Under that Act, the applicable offence is unlawful sexual intercourse, as outlined in Section 6. In the 1956 Act, and there is a time limit of one year from the alleged commission of the offence under Section 6. Proceedings must therefore be instituted within a year from then. This time limit is clear and unambiguous and can be found in paragraph 10 of Schedule 2 to the Act.

Amendment 104FC would remove the time limit and therefore remove the legal barrier which protects abusers of underage girls from prosecution. Some may read this speech and question why I am using the phraseology “girl” and not “child”. This is because, remarkably, the time limit applies only to girls; if the victim were a boy, it would be different, as historical cases of sexual intercourse between men and boys under 16 can still be prosecuted. How can the law deny justice and discriminate in this way, and this House not seek to put it right?

The time limit has to be removed, especially as no such time limit applies to offences of this nature committed after 1 May 2004. If a man had sexual intercourse with a girl aged between 13 and 16 after 1 May 2004, he can be prosecuted for the new offence of sexual activity with a child. That was created by the Sexual Offences Act 2003, where no equivalent time limit is applied. This time limit is therefore a procedural anomaly that clearly stands in the way of justice.

This problem had been going on for some time, since before May 2004, but prosecutors were for a long time able to evade the time limit. Instead of charging for underage sexual intercourse, which could not be done if the offence was discovered or prosecuted too late, they would charge for indecent assault in relation to the same underage sexual intercourse. But in 2004, when this House also acted in its judicial capacity, it considered an appeal by a Mr J, who argued that his charge of indecent assault was a device to circumvent the time limit and was an abuse of the court—and the House accepted his argument. Since that time, therefore, men who procured sexual intercourse from vulnerable and impressionable girls before 1 May 2004 have been immune from prosecution.

Some may say that this may be an unnecessary change and ask how many people it would actually affect—but, as the CPS does not keep a record of how many cases are discounted at an early stage because of issues like time limits, there is no data for us to know whether this is affecting one woman, 1,000 women or more. What we do know is that, sadly, historic sexual abuse comes to light all too frequently. We know that girls can be threatened into silence for long periods of time. It is well known that very many girls, victimised in these ways, only recognise themselves as victims, or only have the confidence to go to the police much later than one year afterwards, or something else comes to light that encourages them to bravely break their silence. There must be hundreds of thousands of cases where men seduced a girl aged between 13 and 16 before 1 May 2004, but those victims for various reasons never told the police during the year.

I do not believe that we should need much evidence of the extent of the problem to justify the removal of this arbitrary time limit and allow justice to be done. Some may argue that you cannot retrospectively make law in this way, but applying that argument to this amendment I believe is incorrect. It is true that you cannot retrospectively create new offences and punish people for them—but here, the relevant offence always existed. This amendment would just change the rules relating to trial for those offences. It has always been understood that rules of evidence and procedure can be amended and have immediate effect in subsequent trials, regardless of when the acts complained of actually happened. Article 7 of the European Convention on Human Rights, as I understand it, applies to the definition of offences and defences; it does not apply to matters of procedure, including time limits.

Finally, some may argue that this amendment risks exposing those who were prosecuted and successfully used the time limit to avoid prosecution to further conviction. That is not my intention with this amendment, which is why subsection (2) of my proposed new clause states:

“Nothing in this section permits the trial of a person who has already been convicted of an offence relating to the sexual intercourse in question.”


I am aware that that this is a complex matter, and I thank Dr Jonathan Rogers, assistant professor in criminal justice at Cambridge University, who has been arguing for a change in the law to address this issue for many years. I thank him for all his advice and support on this issue. I also thank the noble Lord, Lord Wolfson of Tredegar, for meeting Dr Rogers and me last week to discuss this matter. We are conscious that our meeting lasted twice as long as expected, so I thank him for the time that he gave and for the further discussions that were facilitated between Dr Rogers and the Civil Service team. However, my view remains that this issue needs resolving; there are still women who are denied justice for what happened to them in their early teenage years and men who can be fairly tried. This time limit is wrong —the amendment would remove it and, in doing so, close a loophole which protects sex offenders. I beg to move.

[Lord Ponsonby of Shulbrede (Lab)]

My Lords, I support my noble friend, who is quite right in everything she has said. Sexual abuse and rape can quite often take decades to come to light. The anomaly, which she has outlined very clearly, is within the power of the Government to put right, and I urge the Minister to do so.

[Lord Wolfson of Tredegar (Con)]

My Lords, before I turn to this amendment, I begin with an apology. I made an incorrect statement in an earlier group. On Amendment 104B, I said that in September 2019, we rolled Section 28 out to a further four courts” and then I identified them. I should have said “September 2021”, not “September 2019”. I have already sent a written note to the noble Lord, Lord Ponsonby of Shulbrede, correcting the point, but I take this opportunity to correct the record and apologise to the House for that error.

I thank the noble Baroness, Lady Kennedy of Cradley, for tabling the amendment, which is aimed at a narrow but important category of cases that remain subject to a highly unusual time limit—we do not usually have time limits in our criminal law—and I thank her for the very useful discussions that we have been able to have on this topic. The amendment affects offences under Section 6 of the Sexual Offences Act 1956 of unlawful but consensual sexual intercourse with a girl aged 13 to 15 that were committed before 1 May 2004, when the Sexual Offences Act 2003 came into force and replaced the 1956 Act. It was a requirement under the earlier statute that a prosecution for this under Section 6 had to be commenced within 12 months of the offence. There is no time limit for the offences under the 2003 Act that have been chargeable since 1 May 2004, but when the offence was committed before that date, the 12-month limit for commencing a prosecution continued to apply. That, of course, has long since expired.

As my noble and learned friend Lord Stewart of Dirleton explained in Committee, Parliament usually acts on the principle of non-retroactivity. Although removing the time limit in circumstances where a prosecution was already time-barred would not have amounted to substantive retroactivity in the sense of criminalising conduct that was not previously unlawful, it still would have exposed a person to criminal liability where there had not been any before.

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[Lord Pannick (CB)]

My Lords, the noble Lords, Lord Beith and Lord Paddick, make a very strong case. Clause 46 addresses a serious mischief: abuse of trust to gain sexual advantage. Like them, I cannot understand why this is to be addressed only in the context of sport and religion and not in the context of dance, drama and music.

I have one other question for the Minister. I also cannot understand why sport is only to be covered in relation to games in which physical skill is the predominant factor. What if there is an abuse of trust by someone who is training young people in chess or bridge? Why is it not equally objectionable if they take sexual advantage of those young people? Why should that not be included within the scope of the offence?

[Lord Ponsonby of Shulbrede (Lab)]

My Lords, I thank the noble Lord, Lord Paddick, for giving those very good and relevant examples of abuses of trust in dance, music and drama. I remember the points that the Minister made when we had this debate in Committee: he did indeed ask for examples, and I thank the noble Lord for providing them.

Surely, the similarity in everything that we are talking about is the nature of the relationship. It is a trusting relationship where a lot of time may well be spent alone with the young person, and it is open to abuse. The Minister had other arguments about why dance, music and drama should not be included, and I would be interested to hear how he rehearses them, given that there is unanimity in the views expressed in today’s debate. I do not know whether the noble Lord will press his amendment to a vote—I think probably not—nevertheless, I will listen to the Minister’s answer.

[Lord Wolfson of Tredegar (Con)]

My Lords, I am very grateful to the noble Lord, Lord Beith, for again raising this matter for debate. I am also grateful to the noble Baroness, Lady Jones of Moulsecoomb, who is not in her place but who gave up a lot of time last week to discuss this with me and the noble Lord.

I start by clarifying what we mean by a “position of trust” in this context—there may have been some confusion in Committee. The position of trust offences that we are discussing are set out in Sections 16 to 19 of the Sexual Offences Act 2003. They are necessarily narrow in scope and were never intended to apply in all scenarios in which a person might have contact with, authority over or a supervisory role over another person, even those aged under 18. Rather, these offences were created to tackle potentially abusive relationships between those under 18 and adults who were in specific positions of trust.

The existing positions of trust, as set out in Section 21 of the 2003 Act, were so drafted in an attempt to capture situations where the young person had a high level of dependency on the adult involved, often combined with some vulnerability. These included those caring for a young person in a residential care home, hospital, school or educational institution. In these contexts, the power dynamic is such that Parliament considered that any sexual activity should be criminalised.

The law was created, therefore, in recognition of the risk inherent in these types of position and the power the individual could have over the young person, which could impact on and affect the young person’s ability to consent. As such, the offences are committed as soon as the adult in one of these specified positions engages in sexual activity with the young person they are caring for; there is no need to prove any abuse or actual manipulation.

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

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

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

[Lord Ponsonby of Shulbrede (Lab)]

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

[Lord Wolfson of Tredegar (Con)]

My Lords, I am very grateful for the support that the amendment has received across the House. This ought to be a cross-party issue and I am very pleased that it has been. I repeat my thanks to all those who worked with me and my ministerial colleagues to get this amendment before the House this evening. As it is a cross-party matter, it is quite right for me also to thank Yvette Cooper in the other place, who did a lot of work on this issue. Sometimes parties do not matter; it is about the work that we do. I thank her for getting the ball rolling on this very important issue.

We will keep the matter under review, as we do with all legislation, and certainly for something such as this. Again, I do not want to take the House’s time, although this is an important topic. I instead invite the House to join me in supporting the amendment.

Prisons Strategy

Lord Ponsonby of Shulbrede Excerpts

Thursday 16th December 2021 Lords Chamber

[Lord Ponsonby of Shulbrede (Lab)]

My Lords, the prison strategy White Paper can most charitably be described as a missed opportunity to tackle the escalating prison crisis. While presenting the biggest prison-building programme in more than 100 years as a way to improve public protection, the strategy contains next to no credible solutions to the multiple problems plaguing our existing estate, which have made rehabilitation nigh-on impossible and have led to record levels of reoffending.

Unusually for a White Paper, the document contains very few direct legislative proposals and instead asks numerous consultation questions, many along the lines of:

“Do you agree with our … vision?”


Old ideas from previous papers are repeated and recycled, through the 76 pages of vague aspirations and feel-good gimmicks, such as resettlement passports and workforce drug testing. Yet key drivers of violence and instability, such as widespread squalor and the collapse in staff retention, morale and experience, are glossed over and ignored.

Worse, there is no recognition that government policies over the last decade have caused the current crisis, including cuts to staffing and other resources, leading to the degradation of pay, terms and conditions, a haemorrhaging of experience and the surge in violence, especially against prison staff. The paper’s headline pledge to recruit 5,000 new officers seems optimistic in light of the current recruitment and retention crisis and the lack of ministerial interest in the reasons behind the record resignations—from poverty pay to an unrealistic and cruel pension age of 68.

The long-promised prisoner education service gets a few mentions, but with no real detail apart from praise for the potential of in-cell technology. We agree that in-cell technology could be a game changer in rehabilitation and the whole incarceration experience.

One glimmer of hope, however, is the recognition that mass unstructured social time can make some prisoners feel unsafe and inhibit the ability of staff to manage the risks of violence and bullying. This is a key lesson from the pandemic that trade unions have consistently highlighted—as did the then Lord Chancellor Robert Buckland in July, when he insisted that there could be no going back to pre-Covid regimes. However, running smaller-scale regimes with higher staff-to-prisoner ratios will be at the discretion of governors, rather than required by national policy. As far as I can see, the strategy shows no understanding that such initiatives need significant staff investment and will be simply unsustainable with current staffing capacity.

Very little in this White Paper requires primary legislation: only the proposals to bring forward release dates, potentially—we debated this yesterday on the PCSC Bill—and to strengthen the powers of scrutiny organisations. What will all these extra prisoners do all day? The White Paper states that

“opening up the estate to employers”

will deliver a step change in the number of prisoners who work in prison. It seems likely that new legislation may be needed to create a presumption in favour of adapting the prison estate and regime to facilitate work in prison for appropriate prisoners. As important as a sense of satisfaction from doing a proper day’s work must be to prisoners, it seems unlikely that, with a minimum wage of £4 a week, they will earn enough to buy the things they need day to day in prison and also save for their release.

In praising prison officers as “hidden heroes”, the White Paper’s strategy commits to making

“the prison officer role one which is understood and valued in society in the same way that police and other core frontline roles are”.

But it concedes that attrition rates are simply too high, which is

“causing an unsustainable level of turnover in the system”,

leaving

“new staff feeling unsupported, contributing to a vicious cycle of staff dissatisfaction and lack of retention.”

Even the Prison Service’s new retention framework, referenced in the White Paper, admits that poor pay is a key driver to attrition and accepts that there are limits to what governors can do locally to improve pay and rewards. In other words, the solutions to the problem are well known; we are just seeing a lack of political will from the Government.

What about the existing teachers and how they will operate within the new prison education service? We are told that there will be two overriding strategic priorities: improving the numeracy and literacy of all prisoners, and incentivising them to improve their qualifications to increase their prospects of finding work. These are both admirable aims, but involve very different types of teaching, alongside additional resources and a break from the current private commissioning model, which is not recognised in the strategy document that I was reading earlier.

There is at least an admission that the current education system is not fit for purpose. The White Paper insists:

“Despite recent changes, the current quality of education provision is not good enough, with 60% of prisons in England receiving Ofsted grades of ‘Requires Improvement’ or ‘Inadequate’ over the last five years.”


However, the proposed solution is to

“work with our providers to improve the delivery and quality of training in prisons to drive year on year improvements to Ofsted grades, so they are much closer to those achieved by Further Education in the community.”

This is a laudable aspiration, but if it is not backed by new investment it will be an empty promise.

One area that will see a boost, thankfully, is in-cell technology. There is no question but that this could dramatically change learning and rehabilitation more widely, as well as help maintain and improve family engagement, and, of course, promote stability and good behaviour when used as a reward or incentive. Can the Minister say whether virtual visits via in-cell kiosks should be treated and charged as a phone call or as an in-person visit? Of course, in-person visits are free at the moment. Moreover, will Parliament, and indeed the public, get to express a view on this? It is a very specific question that I suspect parliamentarians would have a view on.

In reality, it is the probation service that is responsible for keeping new releases on the straight and narrow. The new strategy makes no mention of Transforming Rehabilitation, which was the failed probation privatisation experiment that caused so much misery.

To address the scandal of homelessness among prison leavers, the White Paper proposes extending

“a new provision of temporary accommodation and support for up to 12 weeks after release”

to all prison leavers, but it is not resettlement passports that new leavers need; it is front-door keys. Where is the commitment to helping them on to housing benefit with deposits paid in advance to trusted landlords?

The understanding that prisons

“cannot support rehabilitation unless they are safe, stable and secure”

is to be welcomed, as is the pledge to

“provide safer working conditions for staff”,

but the proposed

“new ministerial prison performance board that will hold the system and Governors to account for ensuring prisoners and staff are safe”

will have key performance indicators and “appropriate league tables”. The KPIs are

“security and stability; substance misuse and mental health; and resettlement and family ties.”

It is worrying that the crucial metric of staff safety seems to be missing from the KPI list. One simple way for Ministers to send a clear message to staff that they are on their side would be to ensure that all attempts at potting are prosecuted and for the Government to back the amendment from the noble Earl, Lord Attlee, to the PCSC Bill.

Bizarrely, the strategy calls for

“modern desktop computers, devices and software to benefit the people who work in our prisons”,

which

“will allow for increased productivity and a reduction in time wasted by users waiting for systems to boot up”.

Why does it need a White Paper for prison staff to get new PCs? Just how long does it take for their current systems to turn on? This seems ridiculous.

Finally, the strategy looks at rolling out a two-year programme of future regime design to let governors design their own regimes. The highest performing governors will receive “earned autonomy” and

“greater flexibility to deviate from nationally set policies.”

This includes

“greater freedoms to deviate from prison service instructions and policy frameworks”,

as long as KPIs are met. This begs the question: why will governors be rewarded for hitting targets by being given the opportunity to break the rules? That is maybe a rhetorical question, and I approve of giving governors greater flexibility and managed autonomy, but this cannot be allowed to shift responsibility and accountability from Ministers who have put this new regime in place.

[Lord Paddick (LD)]

Forgive me, my Lords, but I understood that it was five minutes for each Front Bench and then 10 minutes for the Minister to respond to our questions. Hopefully, with the leave of the House, we will give the Minister appropriate time to respond despite the Labour Front Bench.

Like the noble Lord, Lord Ponsonby of Shulbrede, we believe that the White Paper is disappointing. The Statement gets off on the wrong foot as far as we on these Benches are concerned. It says:

“Prisons play a vital role in protecting the public by keeping the most prolific and dangerous offenders in custody”—


although, as we see from the Police, Crime, Sentencing and Courts Bill, even peaceful protesters are going to be subject to custodial sentences—

“and rehabilitating those who deserve a second chance.”

Can the Minister explain which prisoners do not deserve a second chance? On what criteria are the Government going to decide who does and does not deserve one?

The Statement says that the Ministry of Justice has secured enough money in the spending review to build an additional 20,000 prison places by the 2020s. The Nationality and Borders Bill intends to criminalise asylum seekers entering the country through irregular routes, with a maximum penalty of four years’ imprisonment —again, not

“the most prolific and dangerous offenders”,

but on current numbers every one of those 20,000 new prison places is likely to be filled by asylum seekers.

When I was a police commander in charge of Brixton, the governor of Brixton Prison told me that illegal drugs were more freely available inside his prison than they were outside on the streets. I am pleased to see that action is being taken to deal with that, but why has it taken over 10 years for this Government to act?

It is also welcome that the Government are going to treat illegal drugs as a health issue, but the probation service has very little financial leverage to secure support to ensure that drug treatment programmes started in prison continue through the gate when a prisoner is released. It is one thing to live without drugs when you are in prison with regular drug testing, but quite another to release prisoners back into the same environment that they came from on release and expect them to continue. What additional resources are being provided for drug rehabilitation and support outside prison specifically for ex-prisoners? Can the Minister specify how much per prisoner compared with 10 years ago, adjusting for inflation and taking into account the increase in prisoner numbers? I am reminded of shops that double the price of things for 12 weeks and then advertise them at 50% off, except that the Government make drastic cuts, put half back and then claim credit for what is in fact a reduction.

There is an increasing prison population compared with proportionately declining staff numbers. Where is the budget to recruit and retain prison officers and the other staff who will be needed to carry out the numeracy and literacy assessments and to deliver the training? I understand that the increase in prison officers outlined in the Statement is to cope with the expansion plans, but who will deliver these enhanced education and skills plans and who will backfill when staff are being “upskilled”?

What pay rises are factored in for prison officers to ensure retention, set against a record increase in inflation not seen for a decade and an increasingly difficult working environment? Wandsworth Prison today has 68 prison officers looking after 1,300 prisoners. Officers are leaving because of poor pay, and applications from new recruits are down 44% because the Prison Service cannot compete with other sectors. How can rehabilitation be delivered in Wandsworth Prison today in such circumstances?

Any measures to find ex-prisoners employment are to be welcomed, but is the limiting factor not that employers will not take them on? A

“new digital tool to match candidates to jobs”

will not help if there are no jobs to match the ever-increasing number of prisoners to. What incentive or encouragement is being provided to employers to employ former prisoners—or at least those prisoners that the Government deem lucky enough to be given a second chance?

Can the Minister explain the “new community accommodation service”? What additional funding or other incentive will local authorities and housing associations be given to provide accommodation and to what extent does this compensate for the devastating cuts to local authority budgets in recent years?

This White Paper appears to shift the balance further towards retribution and away from rehabilitation, with the only realistic, properly thought-through and funded proposals being to build and staff yet more prison places —plans one would expect from a right-wing, authoritarian Government.

Delivering Justice for Victims

Lord Ponsonby of Shulbrede Excerpts

Thursday 16th December 2021 Lords Chamber

[Lord Ponsonby of Shulbrede (Lab)]

My Lords, we welcome the Statement. We hope that the proposed consultation exercise is dealt with rapidly, that people are listened to and that we see legislation as soon as possible. Can the Minister tell us when that is likely to happen? I confirm that we will work constructively with the Government to ensure that the new victims’ law is fit for purpose and is a law of which we can be proud.

The Statement reminds us just how urgently we need a new law. The number of victims who have dropped out of the system has doubled in the last five years. It is concerning that confidence in the justice system is so poor. Three in every five victims do not even report a crime, one-third of victims would not report a crime again and one-third of victims who do go to the police drop out of the process before any case can come to court.

There are steps that the Government could take now that would help the situation. In October 2021 the National Audit Office released a report on the Government’s handling of the court backlog. It found that the Crown Court backlog had already increased by 23% in the year leading up to the pandemic and had increased by a further 48% since. The NAO said that both the Ministry of Justice and its courts agency were not working together properly to solve problems that had their roots in pre-pandemic decisions.

One in 67 rape complainants sees a case come to court, and it can take four years for that process to be completed. The latest data from the CPS shows that the number of rape convictions fell by 6.7% in the last quarter. At the current rate it would take the Government 18 years to return to pre-2016 levels of prosecution. There are 3,357 victims of violent and sexual crime who have already been waiting for over a year for their day in court, and a further 654 victims of these horrific crimes have been waiting for over two years. Can the Minister assure us that the Government are taking all measures necessary to put this right?

We have now had five Secretaries of State for Justice promising a victims’ Bill, and all five have failed to deliver. I have heard victims say that their experience of the justice system is worse than the crime itself. Just 19% of victims believe that a judge takes into account the impact of the crimes on them, and only 18% believe that they are given enough support. Victims do not want consultation; they want action, and the Labour Party has a ready-made Bill to clear the backlog through an increase in Nightingale courts and to fast-track rape and sexual violence cases. Our victims’ Bill would also improve rights, strengthen protections and accountability, improve communications and ensure that victims were no longer treated as an afterthought.

The Statement from the Government is welcome, but they must now match their warm words with deeds and ensure that they put victims at the very heart of our criminal justice system.

[Lord Paddick (LD)]

My Lords, as a victim of the Police, Crime, Sentencing and Courts Bill, I have to say that dealing with this Statement at this time on this day is not delivering justice to victims.

Seriously, though, I should declare an interest as a victim of two crimes in recent years. One was a homophobic hate crime that my Norwegian husband was a witness to. He said to me afterwards that he would never again be involved in the British criminal justice system as a result of his experience in court, where he felt that he was on trial. The other was a burglary where the perpetrator was caught on closed-circuit television but the police refused to investigate further. In a subsequent meeting with a police super- intendent, he admitted that many cases that were solvable were not being pursued because of a lack of police resources. Is it any wonder, as the noble Lord, Lord Ponsonby of Shulbrede, said, that three in five victims do not report crimes, and that one-third would not report them again having experienced the criminal justice system? It seems that my husband and I are not alone.

The Government say that they have strengthened the victims’ code. What improvements have there been as a result? More money has been invested, according to the Statement, but what impact has this had on victim satisfaction? We should be looking for outcomes, not outputs.

The Statement says that it wants victims to

“properly engage at every step.”

Research shows that restorative justice significantly increases victim engagement and satisfaction. What plans do the Government have to fund more restorative justice programmes?

The Statement says that the victim will be consulted before charging decisions are made

“in certain types of case”.

Can the Minister explain what types of case are being referred to?

The Statement says that the Government

“will increase transparency in respect of the performance of our criminal justice agencies.”

What will the Government do when they discover that the reason for poor performance throughout the whole criminal justice system—from the police to the CPS, legal aid and the courts—is that it is underfunded? It is all very well to

“enshrine the victims’ code in law”,—[Official Report, Commons, 9/12/21; cols. 595-6.]

but if the criminal justice system does not have the resources to fulfil its obligations under the victims’ code, how will making it a statutory responsibility help?

The Statement says that the Government will publish a report on progress against the rape review action plan. Research clearly shows that victim satisfaction is the most important outcome measure in rape cases; being believed and cared for are the most important elements of rape survivor satisfaction. Does the report detail changes in victim satisfaction? If not, why not?

The Government are long on words and short on delivery. Trust and confidence in the criminal justice system have declined in the decade or more that the Conservatives have been in power. I can understand that the Government welcome the fact that the police cannot investigate some crimes, despite overwhelming evidence, when it is the Government who stand accused, but for the rest of us, if we cannot trust the police, the CPS and the courts to protect us when we are victims of crime, we are in serious trouble. You cannot get a quart out of a pint pot, which is what the Government appear to be trying to do with these measures.

Finally, I am reminded of colleagues who, when the Government do something we agree with, then go on to question the Government’s motives. I do not know whether the Minister celebrates Christmas, but I hope he enjoys the break, whatever the motivation for having one.

Police, Crime, Sentencing and Courts Bill

Lord Ponsonby of Shulbrede Excerpts

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

It is quite extraordinary that the police are being given the power to be judge, jury and executioner, when, to date, the Government do not know how many conditional cautions have been administered or what sorts of conditions the police have been imposing. Amendment 66B is the least we can do to exert at least some control over what will be the reverse of open justice.

[Lord Ponsonby of Shulbrede (Lab)]

My Lords, speaking first to the amendment tabled by the noble and learned Lord, Lord Thomas, which would make provision for regular reviews of out-of-court disposals, there is a method for this. It is scrutiny panels, which were introduced in previous legislation. They work very unevenly across the country. As a magistrate, I have served on a number of scrutiny panels for the British Transport Police and for a certain area of London, for both adult and youth offences. It is a very interesting exercise because you work with the police, the CPS, probation and some representatives of civil society. We had a rabbi on the scrutiny panel I was on for the British Transport Police, and we reviewed the out-of-court disposals.

The big problem with this approach was that there was no central record of what we were doing with our assessment of the out-of-court disposals. As far as I could find out, neither the Home Office nor the Ministry of Justice collected any of the results of these scrutiny panels. In fact, scrutiny panels do not sit in some areas of the country. Nevertheless, the approach advocated by the noble and learned Lord, Lord Thomas, is a good one. He said that he had held sympathetic discussions with the Ministry of Justice on this matter, so I wish him well with that endeavour.

I too am very sympathetic to Amendments 66C and 66D. As the noble Lord, Lord Paddick, said, simple cautions are quick, simple and, when they work, effective. One of the downsides of being a magistrate is that you see things only when they are ineffective—that is why they have come to court in the first place. Of course, if a simple caution is effective they would not come to court, but the noble Lord makes a very strong point about having something that is quick and simple for the police to administer and which is, for a first-time offender, a salutary experience: they have admitted their guilt, they have got the caution and they are on their way relatively quickly.

It is a similar point for the on-the-spot penalties for littering and other minor offences. A quick on-the-spot penalty will have a salutary effect for someone who is largely law abiding. It seems a pity to lose that from the armoury of the police. If the noble Lord moves his amendment, we will support it.

[Earl Attlee (Con)]

My Lords, the noble Lord, Lord Paddick, makes a very good case for his amendments. I hope that my noble friend the Minister can satisfy the House, but I think that he will struggle a bit.

--- Later in debate ---

[Earl Attlee (Con)]

My Lords, I have no objection to short prison sentences per se. The problem I have is that our current prison system is so hopelessly ineffective at rehabilitation. That is why in Committee I tabled my Amendment 241, a proposal for drastic reform. I am grateful for the response I got from the Committee, and indeed from my noble friend the Minister, and that is why I saw no need to table it on Report.

[Lord Ponsonby of Shulbrede (Lab)]

My Lords, I will speak first to Amendment 82A, to which I put my name, together with the noble Lord, Lord German. It specifies that short periods in custody should not be an inevitable response to someone with a history of relatively minor offending and that sentencers should be required to state the reasons for giving a prison sentence up to and including six months.

A coalition of views has been expressed in support of the amendment. We have, if she does not mind being described in this way, a campaigning right reverend Prelate who consistently talks about short prison sentences, particularly as they affect women, and my noble friend Lord Bradley with his expertise in this area regarding harmful effects on women in particular but also people with mental health problems. I also include myself in the coalition, because I regularly sentence short sentences.

The point I have made in these debates before is that, while the reoffending rate is indeed as bad as the right reverend Prelate said—there are high reoffending rates—in my experience as a sentencer, I sentence short sentences only when a community sentence has failed. I literally cannot remember a time when I have sentenced a short custodial sentence where there have not been—sometimes multiple—failures of community sentences. When I sentence, I am comparing a 100% failure rate for the community sentences of the people in front of me with the 60% failure rate of those who come out of short custodial sentences and reoffend within a year, so I am making a very unfortunate calculation when I give short custodial sentences.

Nevertheless, the noble Lord, Lord German, made absolutely the right point. We are trying to help the Government realise their own policy. The Government acknowledge what I have just said regarding the inevitability, sometimes, of short custodial sentences. The real answer is to come up with a robust, community-based approach that works and that sentencers have some level of belief in. I look forward to the Minister’s response to Amendment 82A.

I turn to the other amendments in the group. As I said in Committee, the Labour Party will abstain—with reluctance—if the noble Lord, Lord Marks, chooses to move his amendments to a vote. The point made by the noble Lord, Lord Faulks, was essentially the point the Minister will make, which is that what we are seeing here is the Government’s response to a particular set of offence types and that it is a policy decision on behalf of the Government, which they are entitled to take and which they see as a response to public demand. Frankly, I am not comfortable with the position I am taking on this, but the view of the Opposition is that we will abstain if the noble Lord, Lord Marks, decides to move his amendments to a vote.

[Lord Wolfson of Tredegar (Con)]

My Lords, this group of amendments broadly covers topics related to custodial sentences. We debated them at some length in Committee. The Government have listened carefully to the arguments put forward by noble Lords in support of these amendments. In particular, I am grateful to the noble Lord, Lord Marks of Henley-on-Thames, and others for discussing them with me. However, the Government remain unpersuaded that these amendments are necessary. I will briefly explain the reasons why and will begin with Amendments 71 to 78 in the name of the noble Lord, Lord Marks.

As the noble Baroness, Lady Jones of Moulsecoomb, reminded us, we had a lengthy debate in Committee on Clause 102 and minimum sentences. For the avoidance of any doubt, this clause does not introduce any new minimum sentences or new offences. Rather, it seeks to ensure that courts depart from imposing the minimum sentence only in exceptional circumstances. We are making sure that in these cases, where a minimum sentence applies, the criteria by which the courts can depart from the minimum sentence are consistent and are set out.

The amendments use the term

“contrary to the interests of justice”.

This term is not itself unusual, indeed at Section 59 of the Sentencing Code courts are directed to follow the relevant sentencing guidelines unless

“satisfied that it would be contrary to the interests of justice to do so”.

However, as the noble Lord, Lord Marks, accepts, these amendments would create a new and different test in respect of which a court can depart from imposing a minimum sentence when sentencing for these specific offences. The noble Lord’s amendment could be seen, as I think he tacitly accepted, as creating a lower threshold at which the courts may depart from imposing the minimum sentence, whereas the Government intend to raise and clarify the threshold.

As I explained in Committee, the necessity for this measure is supported by the data. In 2020, approximately half of all adults convicted for a third-time domestic burglary offence received less than the minimum sentence, even after taking account of the early guilty plea. We should not forget that minimum sentences are, in the main, for repeat offences which have a large community impact.

I know that concerns have been raised that Clause 102 may lead the courts to impose the minimum sentence in situations that they regard as unjust, because they cannot find the circumstances to fall within the ambit of “exceptional circumstances”. Concerns have also been raised that what constitutes “exceptional” might be treated as being subjective, leading to inconsistent application.

I can, I hope, reassure the House that courts are well accustomed to determining whether there are exceptional circumstances. There is a body of case law relating to the minimum sentence for certain offences involving firearms which already applies unless there are exceptional circumstances. This provision aligns the minimum sentence provisions with that test. Without wishing to turn Report stage into a seminar, in R v Nancarrow—the reference is 2019, EWCA Crim 470; old habits die hard—the Court of Appeal established a number of relevant principles, including that circumstances are exceptional if the imposition of the minimum sentence would be arbitrary and disproportionate. The court should also take a holistic approach and consider whether the collective impact of all the relevant circumstances makes the case exceptional. Therefore, judicial discretion for the court to consider fully the facts of the case and decide on the appropriate sentence in light of the statutory regime is retained in this measure.

I respectfully disagree with the noble Lord, Lord Marks, that this is an attack on judicial discretion. It is not a case of the Government not trusting judges; indeed, we have minimum sentences. The noble Lord is not suggesting that we should not have any minimum sentences, so the issue between us is not whether a judge has full discretion or no discretion—I am not advocating no discretion; the noble Lord is not advocating full discretion—but the ambit of that judicial discretion. I suggest that that is a matter of policy and therefore properly a matter for Parliament.