Civil Jurisdiction and Judgments (2005 Hague Convention and 2007 Hague Convention) (Amendment) Regulations 2022

Lord Ponsonby of Shulbrede Excerpts

Tuesday 14th December 2021 Grand Committee

[Lord Stewart of Dirleton (Con)]

I am obliged. This draft instrument is made under the Private International Law (Implementation of Agreements) Act 2020, which I will refer to as the PIL Act. The Act currently gives force of law to these conventions and ensures that they are read together with any reservations and declarations made at the time of approval. It also sets out, in new schedules to the Civil Jurisdiction and Judgments Act 1982, the text of the conventions. To ensure that the information is complete and readily accessible, this instrument will insert the text of the reservations and declarations alongside the convention texts in new schedules to the 1982 Act.

This draft instrument is technical in nature and does not alter the UK’s status as a party to either the 2005 Hague Convention on Choice of Court Agreements or the 2007 Hague Convention on the International Recovery of Child Support and Other Forms of Family Maintenance. It also brings into domestic legislation the texts of the UK’s reservations and declarations to those conventions. The UK has participated in the 2005 and 2007 Hague conventions since 2015 and 2014 respectively. Previously, we were bound by the conventions by virtue of our membership of the European Union—a status that continued to apply throughout the transition period in accordance with the withdrawal agreement. In September 2020, the United Kingdom took the necessary steps to join the two conventions as an independent party, as part of preparation for leaving the EU. This included depositing the necessary instruments of accession and ratification.

To be able to make this instrument, the PIL Act requires the Secretary of State to consult with such persons as they think necessary. To meet this requirement, the Ministry of Justice, on behalf of the Secretary of State, consulted key stakeholders in England and Wales, Scotland and Northern Ireland, as well as legal practitioners, academics and judges specialising in private international law, with whom the Ministry of Justice engages regularly. No objections to this instrument were received. In addition, as this instrument will apply to all UK legal jurisdictions, the consent of Scottish Ministers and the department of the Northern Ireland Executive has been obtained.

When rejoining these conventions as an independent party, the declarations and reservations by which the UK had been bound as a member of the European Union were not amended. This instrument will not make any changes to those reservations and declarations. While the existing reservations and declarations have been retained, this will not prevent the United Kingdom from changing them to either or both these conventions in future or withdrawing reservations to the 2007 Hague Convention if at any time it should to Parliament seem appropriate so to do.

Overall, as I have noted, this instrument is technical in its nature and will not alter the application of the conventions, nor their respective declarations and reservations. None the less, it is important to have the text of these declarations and reservations readily available in domestic legislation and alongside the text of the conventions for ease of reference for practitioners. I hope that the Committee will join me in supporting these regulations.

[Lord Ponsonby of Shulbrede (Lab)]

My Lords, in his introduction, the Minister said that that was his maiden speech in the Moses Room. I remember having a discussion upstairs about a year ago on some similar legislation, also to do with reciprocal enforcement of maintenance orders—the 2007 Hague Convention, to which I shall refer later in my contribution. As the Minister says, this instrument is technical in nature. We on our side support the Government on it.

The 2005 and 2007 conventions were transferred to domestic law as part of the package of the private international law Act last year; this instrument seems to transfer the definitions within the conventions over to UK law. I open with what may be a simplistic question to the Minister: will the definitions under the 1996 Hague Convention be transferred by secondary legislation in the new year? Is that an additional piece of process that we should expect?

The 2005 Hague Convention on Choice of Court Agreements ensures the effectiveness of exclusive choice of court agreements between parties to international commercial transactions. These clauses are common, particularly in high-value commercial contracts. The UK previously participated in the 2005 convention by virtue of EU membership, as we have heard; the EU ratified the 2005 convention, and it entered into force from 1 October 2015. On 28 September 2020, the UK deposited its instrument of accession to the 2005 convention to ensure that it continues its independent participation in the convention. The Minister set all that out in his introduction to today’s debate.

The 2007 Hague Convention on the International Recovery of Child Support and Other Forms of Family Maintenance provides for rules for the international recovery of child support and spousal maintenance. Both the 2005 and 2007 conventions ensure legal co-operation across jurisdictions to provide certainty and fairness for those involved in cross-border litigation. The Labour Party supported the transfer to domestic law of both conventions during the PIL Act 2020, as referred to by the Minister.

Finally, I return to my personal issue—I remember that the noble Baroness, Lady Scott, was there last year when I raised it; I see her nodding her head—with my hat on as a family magistrate. One of the most excruciating things that I do in that role is try to enforce the reciprocal enforcement of maintenance orders. The Minister wrote me a letter, which I have in front of me, in which he fairly set out the legal processes whereby reciprocal enforcement should be done. I accept that my assertion—that there are insufficient powers to enforce maintenance orders reciprocally—was wrong.

The point I wanted to make to the noble and learned Lord is that, whether I was right or wrong, it is still an excruciating process. It is very difficult to do. Very often the reciprocal enforcement of maintenance orders fails. I accept the point that he makes in his letter that it is not because of a lack of powers; maybe it is a lack of administrative will. It is absolutely an excruciating process for me as a magistrate and with the administration process around it. The parties we see in court are often in despair about trying to resolve these issues.

Nevertheless, I understand that we are talking on a more general basis today. I welcome the instrument that the noble and learned Lord has put forward. I am also in direct contact with the relevant Minister, the noble Lord, Lord Wolfson, on the family court, so he does not need to introduce me to him. I will fight my own battles on this front.

[Lord Stewart of Dirleton (Con)]

My Lords, I am grateful to the noble Lord for his contribution. I well remember the opening of my account in the Room upstairs. I also remember the noble Lord’s close questioning, informed, as today, by his valuable experience on the Bench of magistrates in the family area of law, if I might put it like that.

The noble Lord posed a question about the 1996 Hague convention. The United Kingdom joined that instrument in its own right rather than through the European Union, so as I understand it no further action on that convention will be necessary.

I note with concern the noble Lord’s observations concerning the excruciating nature of the treatment of these matters in his capacity as a magistrate. I will do what I can, along with my noble friend Lord Wolfson in the Ministry of Justice, in order to assist.

At this stage, I register my appreciation and that of the Government for the assistance we received from stakeholders who engaged in consultation with us in the preparation of these instruments, and for the co-operation of our colleagues in the Scottish Government and the Northern Ireland Executive. With that, I commend the instrument to the Committee.

Police, Crime, Sentencing and Courts Bill

Lord Ponsonby of Shulbrede Excerpts

Lords Hansard - part one & Committee stage
Monday 22nd November 2021 Lords Chamber

[Lord Thomas of Gresford (LD)]

My Lords, I am disappointed that the noble Lord, Lord Pannick, did not refer to the opinion of the noble and learned Baroness, Lady Hale, in the case of J. She dissented—notwithstanding Lord Bingham’s inability to change the law—in these words:

“In short, the 1956 Act was a mess when it was enacted and became an ever greater mess with later amendments. It is not possible to discern within it such a coherent Parliamentary intention as to require it to be construed so as to forbid prosecution for a “mere” act of sexual intercourse after 12 months where that act properly falls within the definition of an indecent assault. Although we do have to try to make sense of the words Parliament has used, we do not have to supply Parliament with the thinking that it never did and words that it never used.”


I think we can see which side the noble and learned Baroness, Lady Hale, was on in that case.

The restriction has had an interesting history. Non-consensual sex was, and is, of course, rape, but consensual sex was a different matter. A girl was protected until the age of 10 under Queen Elizabeth I, to the age of 12 under George IV, 13 in 1875 and finally 16 in 1885. The time limit for bringing proceedings was at first within three months in 1885, which was increased to six months in 1904 and to nine months in 1922, and a provision of the Criminal Law Amendment Act 1928 increased the time limit to 12 months. It was anomalous then, and it is anomalous now, and I fully support the amendment in the name of the noble Baroness, Lady Kennedy of Cradley.

Amendment 292C in the name of the noble Baroness, Lady Newlove, seeks to extend normal time limits imposed on summary proceedings in the magistrates’ court and suggests that an offence of common assault may be brought within a period of six months from the date of reporting, rather than the date of the incident, with an outside limit of two years where it comes within the ambit of domestic abuse. This is an issue that might well have been discussed in the recent passage of the Domestic Abuse Bill. Summary proceedings are really intended to be summary. Assault and battery are attacks or threats of attack on the person. If significant injuries are caused, they should be tried on indictment in the Crown Court as ABH—assault occasioning actual bodily harm. So where is the dividing line between common assault and ABH?

The noble Baroness, Lady Newlove, referred to the CPS guidance Offences Against the Person, Incorporating the Charging Standard, dated 6 January 2020, which states that common assault is charged

“where injuries amount to no more than … Grazes; Scratches; Abrasions; Minor bruising; Swellings; Reddening of the skin; Superficial cuts.”

By contrast, ABH includes

“damaged teeth or bones, extensive and severe bruising, cuts requiring suturing”

and injuries

“that result in loss of consciousness.”

ABH is appropriate where

“the victim is vulnerable or intimidated”,

including

“a pattern of similar offending against the victim”,

and if a person suffers mental stress, that can also be seen as ABH. Your Lordships will appreciate that if the case is brought for ABH on indictment, this procedural limitation of the magistrates’ court does not apply.

Therefore, it is arguable that injuries of the nature that require interfering with the customary time limit applied in summary proceedings may not demand a change. I think the protections which are contained in the Domestic Abuse Act 2021 should deal with the problems in the area referred to by the noble Baroness, Lady Newlove. If a domestic abuse protection order is issued, breach of it is a criminal offence, which can be triable either way. A summary conviction may lead to a sentence of 12 months’ imprisonment, while conviction on indictment may lead to a term of imprisonment not exceeding five years.

This is the important point: a protection order can be made where the court is satisfied on the balance of probabilities. The prosecution does not have to prove beyond reasonable doubt that the victim has suffered. It is on the balance of probabilities for a protection order: simply that the person concerned has been abusive towards a person aged 16 or over to whom he or she is personally connected, where it is necessary and proportionate to protect that person from domestic abuse or the risk of domestic abuse. No time limits are set. I think we have moved on from common assault at common law in this field, and it may well be that this amendment is unnecessary.

[Lord Ponsonby of Shulbrede (Lab)]

My Lords, I support both these amendments. My noble friend Lady Kennedy of Cradley is seeking to get rid of time limits relating to having sex with girls aged between 13 and 16 before 1 May 2004. As she said in her comprehensive introduction to the amendment, it is not known whether this anomaly, which a number of noble Lords have described, affects thousands of girls or fewer. It is simply not known. Nevertheless, from my understanding of the way she presented the case and the other comments on the amendment, it clearly seems to be a loophole which could be closed.

The noble Baroness, Lady Newlove, explained why common assault is different in domestic abuse cases from general common assault. As I think I have said in other Committees, I fairly regularly sit in domestic abuse courts in magistrates’ courts, and I have to say that I disagree with the concluding comments of the noble Lord, Lord Thomas of Gresford, that we seem to have moved on from common assault with domestic violence protection orders. Certainly, the way I view them, and I do those courts as well, they are very different because they are dealing with the civil standard. You can have cases where people have simply been abusive to each other and you are dealing with a very different type of case, in my experience, from common assault cases which you see in a more standard domestic abuse court.

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

My Lords, I have put my name to this amendment for all the reasons put forward by the noble Baroness, Lady Coussins, in opening. She has campaigned for this change for a long time and has a great deal of knowledge and experience on the subject. We have also heard from the right reverend Prelate the Bishop of Leeds, the noble Lord, Lord Hogan-Howe, and my noble friend Lord Thomas, who still supports this reform despite the success of his experience with the Polish testator. I will therefore add little.

There is an answer to the points made by the noble and learned Lord, Lord Falconer of Thoroton, about the availability of interpreters and the need for speed in getting them to court, and by the noble Lord, Lord Berkeley of Knighton, about there being enough registered interpreters. I accept, as I expect would the noble Baroness, that there would be a need to transition the introduction of these proposals and to take steps to ensure that there were enough registered interpreters. We also have to consider the availability of interpretation in the very unusual languages that she mentioned.

This amendment is important. The duty of an interpreter in courts and tribunals is limited and specific. It is a duty to act as a conduit and only as a conduit; accurately to convey the meaning of the court’s proceedings to the non-English speaker; then, if and when that non-English speaker gives evidence, to convey the court’s and counsel’s questions to that non-English speaker; and lastly, and most importantly, to convey the non-English-speaking witness’s evidence to the court. That all demands accuracy, and to provide that accuracy requires a great deal of skill.

However, it is a duty to act as a conduit only, the aim being to overcome the language barrier. It is decidedly not to render assistance of a more general kind to the non-English-speaking participant in legal proceedings, still less to provide some kind of informal independent advice service. Yet, in spite of those very clear principles, many of us who have practised in courts and tribunals have seen how interpreters, often motivated by the best of intentions, can fail in their task. The inadequacies have been extensively and well highlighted by the noble Baroness, Lady Coussins.

There are two main reasons for such a failure. The first is that some set out to act as interpreters when they lack the necessary linguistic skills and they simply get the translation wrong. Sometimes the inaccuracy is noticed by someone in court who understands and speaks the language concerned who can then ensure that the witness’s meaning is further explored, but on other occasions it is not, and when it is not then injustices occur.

The second problem is that some interpreters overreach themselves. Again, often they are not motivated by an improper wish to intervene in the proceedings with ideas of their own, yet they do precisely that. They discuss evidence with the witness and act as assistants and advisers as well as interpreters. The noble Lord, Lord Hogan-Howe, pointed out that on some occasions the integrity of the witness and of the proceedings is called into question. That is wrong, and it subverts the proceedings of the court or tribunal concerned. The way in which we must deal with these issues is quite simply by training and minimum standards, and that is exactly what the amendment seeks to achieve.

I add this final point: I hope that, in order to maintain registration, it would be necessary to have adequate programmes of continuing education. Interpretation is a difficult skill that requires specialist and professional training and needs constant maintaining. I hope the Government will bring a positive response to this amendment.

[Lord Ponsonby of Shulbrede (Lab)]

My Lords, this has been a very interesting debate and I thank the noble Baroness for moving her amendment; in general terms we support it. The question marks would be about the standards, which she dealt with very fully, whether emergencies could be covered, and the potential costs. As the noble Lord, Lord Marks, said, there needs to be a transition to harmonising and raising standards in general.

I want to pick up a couple of points made by noble Lords. The noble Lord, Lord Hogan-Howe expressed surprise that there was not already a common standard and I was surprised as well. He went on to talk about there being written records in courts, but that is not the case in magistrates’ courts; they are not a court of record. As a sitting magistrate, I regularly have interpreters in court. In the 14 years I have been a magistrate I can think of three or four occasions when the magistrate colleagues I have been sitting with have told me that the interpretation was wrong. They knew the language and were able to inform us, and we were able to deal with the situation. But, as other noble Lords have pointed out, that will not always be the case. It is not that unusual for interpretations to be wrong.

I want to make a more serious point, which the noble Lord, Lord Marks, also made, about interpreters overreaching themselves. As I mentioned in an earlier group, I regularly sit in the domestic abuse court and I have done various bits of training on that. One of the points the training makes is that you have to be careful with interpreters and translators when dealing with domestic abuse cases in minority languages. It has been recorded that the interpreters overreach themselves and what the witness or the victim is saying in court will get back to that minority group. It is something that the court needs to be very aware of and handle sensitively to prevent that happening—and it does happen. Nevertheless, in general terms, we support this amendment.

[Lord Stewart of Dirleton (Con)]

My Lords, Amendment 280 would restrict the Ministry of Justice to appoint in our courts and tribunals only interpreters who are registered on the national register of public service interpreting—the NRPSI—and possess a level 6 diploma in public service interpreting, or who comply with the NRPSI’s rare language status protocols.

The Ministry of Justice commissions the services of interpreters for our courts and tribunals in England and Wales through its contracted service providers, thebigword and Clarion Interpreting. These interpreters are sourced from the Ministry of Justice’s register, which is audited by an independent language service provider, the Language Shop. All interpreters are required to complete a justice system-specific training course before they are permitted to join the register.

The contract has a clearly defined list of qualifications, skills, experience and vetting requirements interpreters must meet, which have been designed to meet the needs of the justice system. It covers a vast range of assignments, from simple telephone interpreting to deal with a user query to the facilitation of interpretation in a complex criminal trial. The qualifications and level of experience required will depend on the complexity of the assignment and the highest complexity level has qualification criteria comparable to those set by the national register of professional service interpreters.

It is in dealing with that vast range that the noble Baroness’s rhetorical analogy broke down. Of course I would expect my heart surgeon to have the relevant qualifications and experience to fulfil that role. At the same time, if my car developed a minor technical fault, I would not necessarily want to pay out for a consultant engineer to fix it, as opposed to taking it to the local garage.

Complaints about the quality of interpretation or the professional conduct of interpreters are carefully monitored and independently assessed by the Language Shop. The complaint rate remains low at less than 1%.

Counter-Terrorism and Sentencing Bill

Lord Ponsonby of Shulbrede Excerpts

Report stage & Lords Hansard
Wednesday 3rd March 2021 Lords Chamber

[Lord Ponsonby of Shulbrede (Lab) [V]]

My Lords, the noble Lord, Lord Marks, set out his amendments clearly, and concentrated on the fact that the decision about a terrorist connection is made by a judge at the sentencing stage, not by the jury when they are assessing guilt or otherwise.

The noble Lord said that prior to the Bill, a limited number of offences were included. Those were serious offences, so his argument was that it did not make that much difference if there was a terrorist connection. He gave the example of ABH, for which the maximum sentence is seven years’ custody, although the penalty for low-level ABH may be some type of community order. His argument was that putting a terrorist connection on a wider range of lower-level offences would have a much larger effect on the likely sentence.

The noble Lord also spoke about activating notification requirements, and early release provisions. He prayed in aid the noble Lord, Lord Thomas of Gresford, who previously raised the possibility of Newton hearings. I am much more sympathetic to that possibility than that laid out in the amendments tabled by the noble Lord, Lord Marks, which would mean that either somebody admitted in open court that there was a terrorist connection or there would be a trial of the issue.

Surely that determination should be made by the judge. A judge could make a determination that a Newton hearing was the right way forward. Perhaps the Bill should be amended to enable the judge to make a determination for a Newton hearing, or to take it on himself or herself to make a determination of whether there is a terrorist connection. For that reason, we will abstain on these amendments—but if, at a later stage, amendments along the line that I have just suggested, giving the judge discretion to order a Newton hearing, are tabled, we may well be in favour of those.

[Lord Parkinson of Whitley Bay (Con)]

My Lords, I am grateful to all noble Lords who spoke in this short debate. The amendment would require a trial of the issue as to whether there is a terrorist connection to an aggravated offence. I am grateful to the noble Lord, Lord Marks, for the way in which he set out his amendment, but I am afraid we feel that it would represent a fundamental departure from existing processes—a significant divergence from practice within the wider criminal justice system—and it is therefore not an amendment that the Government consider necessary or appropriate.

It may be helpful if I first briefly recapitulate why the Government are making the changes that we propose in the Bill. The noble Lord, Lord McCrea, gave a good summary. Clause 1 will expressly require the courts, in cases where it appears that any non-terrorism offence with a maximum penalty of more than two years was committed in the course of an act of terrorism, or for the purposes of terrorism, actively to consider whether the offence was committed with a terrorist connection and should be aggravated as such. At present only specified offences can be so considered. Closing this loophole will make for more effective and flexible legislation, reflecting the fact that terrorist offending takes a wide variety of forms.

The noble Lord, Lord Marks, gave some examples of offences that are and are not covered. It might be helpful to include further examples. Various offences under the Firearms Act 1968 are not currently covered, including possessing a firearm with an intent to endanger life; as are offences under the Criminal Damage Act 1971, including destroying or damaging property with an intent to endanger life, and arson. There are many more, but I hope that provides an illustration of some of the offences that we think ought to be considered, if needed.

These changes will also ensure that the consequences of a terrorist connection are applied consistently to all offenders. The identification of a terrorist connection by the courts has a wide-ranging impact, as the noble Lord noted. It must be treated as an aggravating factor when sentencing, helping to ensure that terrorist offenders receive punishment befitting the severity of their offending and the risk that they pose to public safety. It will also result in offenders being subject to the registered terrorist offender notification requirements following their release from prison, which supports the police to manage their risk more effectively.

Finally, under the Bill, these offenders will be subject to a minimum of 12 months on licence following their release and will be eligible to have certain licence conditions imposed on them to assist in the effective management of their risk. I emphasise that both the Independent Reviewer of Terrorism Legislation, Jonathan Hall QC, and the Crown Prosecution Service expressed their strong support for this change. In fact, Mr Hall stated in his oral evidence to the Public Bill Committee in another place that this change, out of all the measures in the Bill, would make the most substantial difference to public safety.

Having set out the background, I will address the substance of the noble Lord’s amendment, which proposes a significant change to the process by which the courts in England and Wales, and in Northern Ireland, determine a terrorist connection at the point of sentencing. This process is well-established, having been in successful operation for more than a decade since the provisions of the Criminal Damage Act 1971 came into force. It is also consistent with the wider criminal justice system.

Under the existing process, courts are required to apply the criminal standard of proof—beyond reasonable doubt—when determining whether an offence has a terrorist connection. The court will make this determination on the basis of the usual information before it for the purposes of sentencing—that is, the trial evidence or evidence heard at a Newton hearing, if necessary, following a guilty plea—and take into account any representations by the prosecution or defence, as well as any evidence heard.

Furthermore, in England and Wales, and in Northern Ireland, it is the standard approach for the judge, rather than the jury, to determine the presence of aggravating factors as part of the sentencing function. To provide one example, Section 66 of the Sentencing Act 2020 requires the court to aggravate a sentence for an offence if it was motivated by hostility based on certain protected characteristics, such as race or sexual orientation. The judge will determine such a finding as part of the sentencing. The terrorist connection provision works in exactly the same way. This very issue was debated by your Lordships’ House in 2008, when the terrorist connection provisions were first enacted. It was concluded then that the existing process is appropriate and the reasons that I will now outline still stand.

During the passage of the Counter-Terrorism Act 2008, the then Government set out that, as part of their consultation on that Bill, they considered whether the determination of a terrorist connection should be made by the jury, rather than the judge at sentencing. That included discussing the option with experienced prosecutors in this area. It was concluded, however, that there were significant practical issues in taking that approach. For example, having to prove the terrorist connection as part of the trial would lead to lengthy diversions, were the defence to argue that the action of the suspect did not fall within the definition of terrorism. Such an approach would divert the prosecution from its primary aim to secure swift justice for the substantive offence—that is to say, securing a conviction or freeing the individual on trial—and would unnecessarily create significantly longer terrorism trials.

Alternatively, if the jury were to be responsible for determining whether there was a terrorist connection as part of a sentencing exercise after the trial, it would have to be summoned to make such a determination following a guilty plea. This would be entirely novel and run counter to well-established sentencing procedure. We therefore strongly believe that it would not be right to put it in the Bill. It was concluded then, as we maintain now, that sentencing is properly a function for the judge.

That is why the Government cannot accept the amendment of the noble Lord, Lord Marks: it would impose unusual requirements on the finding of a terrorist connection, deviate significantly from well-established practice and, in doing so, put that process out of kilter with the courts’ considerations of other similar aggravating factors. The current system provides adequate safeguards against the erroneous finding of a terrorist connection. A judge who has determined that the offence was committed with a terrorist connection is required to state in open court that that is the case. That determination is capable of being appealed to the Court of Appeal. For the reasons outlined, despite the noble Lord being minded to do otherwise, I hope that he will see fit to withdraw his amendment.

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

My Lords, it is a great privilege to follow the noble Lord, Lord Carlile of Berriew, particularly given his deep and long experience in counterterrorism and the legislation in this area, along with his wide experience of the workings of the Parole Board.

Clause 27 was the subject of considerable controversy in Committee because as it stands, it would remove the role of the Parole Board from the determination of whether, and at what stage, a terrorist offender should be released from custody. Without wishing to repeat the arguments that were canvassed in the debate on the clause at that stage, many of us felt then and continue to feel strongly that the Parole Board has had, and should continue to have, an important part to play in determining whether and at what stage even dangerous terrorist offenders should be released on licence.

The amendment of the noble Lord, Lord Carlile, refers to prisoners who are serving extended sentences and applies after they have completed their custodial term, thus changing the architecture of extended sentences, as he has put it. Such prisoners’ release would be contemplated only after the custodial term, at which stage their cases would be referred to the Parole Board for consideration, as they then would on every further anniversary of the completion of that custodial term.

As the noble Lord, Lord Carlile, has explained, before the board could direct release, it would have to be satisfied that two important conditions had been met: first, the prisoner did not represent a grave risk to the public, and secondly, it was no longer necessary for the protection of the public that the prisoner should be confined. We would have preferred that the amendment went further and applied more widely for the reasons that we expressed in Committee, but we regard the work of the Parole Board, whose members are specialists in the field, as extremely valuable. We are firmly of the view that a full hearing before the Parole Board is the best way to determine whether a prisoner should be released after a suitable minimum custodial term, having regard to the elimination of the threat that the prisoner posed to public safety and to such progress as might have been made in the prisoner’s deradicalisation, rehabilitation and reform.

I should emphasise that throughout our approach to this Bill, we have maintained the position that hope of rehabilitation should always be part of the process of punishment, even in severe terrorist cases, and that sentences which offer no hope are counterproductive. We recognise that all prisoners are likely to be released one day and that rehabilitation is more achievable in the context of a release on licence than it is in the context of continued incarceration. That is a position that was rightly taken and recognised by the experts who briefed a number of Peers at the Joint Extremism Unit drop-in session that was arranged for us by the Ministry of Justice. Those who attended found it to be interesting and informative, and we are all very grateful. For my part, however, I confess to remaining perplexed that the Government have decided to cut the role of the Parole Board in the way set out in Clause 27. This amendment would reduce the impact of that particular cutting axe, and I therefore support it.

[Lord Ponsonby of Shulbrede (Lab) [V]]

My Lords, Amendment 2 in the name of the noble Lord, Lord Carlile, sets out an alternative possible architecture for assessing terrorists and the possibility of extending sentences. In speaking to the amendment, the noble Lord and the noble Lord, Lord Marks, expressed their faith in the Parole Board and the view that it should play a much fuller role in assessing terrorist prisoners who are coming towards the end of their sentences. I too joined in the very useful expert panel held last week with presentations from Home Office experts as well as senior psychologists who have an overview of this work.

The probation service itself employs around 350 psychologists, some of whom are specialists in this work. The message I got from that meeting last week is that it is very complicated work and there is no guarantee of success. However, that does not mean that there should not be efforts—indeed, very strenuous efforts—made to try to rehabilitate these offenders.

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[Baroness Hamwee (LD) [V]]

My Lords, Amendments 24 and 25 struck me as setting out a number of concerns that we would like to have seen in the Bill now. I agree very much with what the noble Baroness, Lady Jones, had to say, except that I do not think that they amount to post-legislative scrutiny. Both highlight concerns that we expressed at an earlier stage, although not all those concerns. My noble friend’s Amendment 12 is rather different in that after a year’s experience of the Bill—an Act, as it will then have been—it would assess its impact. Like him, I have had a similar impression: a kind of inconsistency between the words that we see on paper in the Bill—the impression that is given about responding with even tougher sentences, which is supported by some of the debate that we have had—while privately we have had much more nuanced conversations which have encouraged me, even though I am somewhat depressed by this legislation.

I want to say a word—well, several words—about Amendment 13, which would provide for a review of the use of polygraphs. The amendment came out of amendments in Committee, not our own but those proposed by the noble and learned Lord, Lord Falconer, when he called for a pilot and a report to Parliament, including on specified matters. I understand that, with a relatively small number of terrorist offenders to whom the polygraph condition will apply, it is quite hard to undertake a useful pilot, but that does not negate the importance of an assessment of the polygraph condition which is published in the public domain.

Crucially, the review that we propose in Amendment 13 would be an independent review. Its report would include data, as set out in the amendment’s subsection (3), on the number of terrorist offenders subject to the polygraph condition and on the number of terrorist offenders recalled to custody following a test. I should mark those sentences as copyright of the noble and learned Lord, Lord Falconer—I think I lifted them wholesale. It would also cover regulations, rules and codes of practice, and make recommendations regarding those, and the report would be made to Parliament. We have included the caveat that any material that the Secretary of State considered might prejudice public safety should be omitted.

The review would be within three years of the Section 32 polygraph condition coming into force. I understand, though I could not quite pin it down, that the Government are intending a review after a couple of years, which would essentially be the same; after two years is more or less the same as within three years.

I take this opportunity not only to argue for a review but to ask the Minister to confirm what is planned by the Government. not only as to the timing but as to the four elements that I have listed.

[Lord Ponsonby of Shulbrede (Lab) [V]]

My Lords, I have one amendment in this group, Amendment 25, and my noble and learned friend Lord Falconer of Thoroton put his name to Amendment 24. I was very pleased that the noble Baroness, Lady Jones of Moulsecoomb, said that she had read our amendments and that they seemed sensible; I think that is a good start. The general point made on this whole group is that there is an appetite for reviewing different aspects of this legislation, and the amendments referred to go into particular aspects of that.

I want to make a slightly more general point. It is important that the general case for this sort of legislation is made regularly. I have had the opportunity in recent days of talking to young people who are becoming more politically active and engaged. They are very interested in terrorism legislation as a whole, particularly in how Parliament seeks to review it, change it and make it more effective. Particularly in our House, we have a duty to make sure that those arguments are remade and heard by the general public.

The specific amendment that I have put my name to concerns looking at particular impacts on prison capacity, the National Probation Service and offenders convicted of terrorist offences, as well as levels of bad behaviour in prisons—a point that I made on an earlier group. Also within my amendment are financial matters, because there is a very significant financial impact of the review of extended sentences and licence periods.

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[Lord Ponsonby of Shulbrede (Lab) [V]]

My Lords, this has been an extremely brief debate and quite a blunt one. The noble Lord, Lord Paddick, was very clear: during the passage of a previous Counter-Terrorism Act this House voted for a deadline and this current legislation is seeking to remove it. The Government commissioned an independent review back in January 2019, which has been repeatedly delayed and postponed, and the initial statutory deadline of 12 August 2020 will now be missed. The Government have said that they intend to have a report ready by summer 2021. Indeed, as the noble Lord, Lord Paddick, said, he has been very generous by putting in his amendments a deadline of the end of this current calendar year.

In the contribution of the noble Lord, Lord Anderson, to this short debate I noted a tone of exasperation, and I do not blame him or the noble Lord, Lord Paddick, for using such a tone. I really do not see why the Government cannot reaffirm their commitment to a deadline and I will be very interested to hear the Minister’s response to both noble Lords.

[Lord Parkinson of Whitley Bay (Con)]

My Lords, this amendment, in the name of the noble Lord, Lord Paddick, and the noble Baroness, Lady Hamwee, would add a new statutory deadline of 31 December this year for the completion of the independent review of Prevent. I am happy to say once again that we share the noble Lord’s and noble Baroness’s commitment to a successful independent review and the opportunity that it provides to learn lessons from what is and is not working—as well as to listen to a wide range of voices about how best to safeguard those who may be vulnerable to being drawn into terrorism.

The review restarted on 26 January, with the appointment of William Shawcross as the new independent reviewer. As I undertook to do in Committee, I am pleased to say that my noble friend Lady Williams of Trafford has had a conversation with Mr Shawcross about the timescale for his review. He certainly agrees with the need to complete it as swiftly as possible, while affording it the consideration that it requires. He hopes to complete his work well before the end of 2021, and of course there will then need to be time for a government response to be prepared and laid before Parliament. However, it is out intention to set out the date of his report and, indeed, the Government’s response in the revised terms of reference, when they are published shortly.

The noble Lord, Lord Anderson of Ipswich, referred to the remarks of my right honourable friend James Brokenshire, made in his first stint as Security Minister, about government responses being swift and timely. I hope the greatest reassurance to the noble Lord is the fact that my right honourable friend is back in that important post, albeit currently recuperating from his operation, from which we all wish him a speedy recovery. I am sure his remarks then stand now, as they do for my noble friend Lady Williams of Trafford, who is covering while he recuperates.

We all agree that it is necessary to have a thorough, evidence-based review that engages communities and sees Prevent delivery in action and that has practical recommendations for improvement at the end of it. We fear that, at a time when fleetness of foot is vital, a statutory deadline could limit this. We referred in Committee to the ongoing pandemic; alas, it continues now we are on Report, and I hope noble Lords will all be mindful of the need for flexibility in light of it.

Mr Shawcross is keen to proceed at pace, as I say, but reintroducing a statutory deadline for the completion of his independent review would mean that, if he encountered a challenge to his timeline because of the pandemic, we would have to revisit the legislation or he might be forced to compromise in how he meets his objectives. Of course, we hope that there will not be any difficulties, but there remains a risk of further or ongoing restrictions, with all the unpredictabilities of the pandemic and the implications that that could have for Mr Shawcross, his team and those who wish to provide their input into the review. As such, we think that that remains sensible.

We believe that it is achievable for Mr Shawcross to complete his work quickly, while undertaking a thorough and robust piece of work—but it is important for the legislation to retain the flexibility for the reviewer, should he need it, to ensure that the valuable work of his review is not undermined. I hope that the noble Lord, Lord Paddick, will agree and, therefore, withdraw his amendment.

Divorce

Lord Ponsonby of Shulbrede Excerpts

Wednesday 6th January 2021 Lords Chamber

[Lord Stewart of Dirleton (Con) [V]]

The noble Lord’s question addresses aspects of detail as well as recent case law. I do not have the detail and the material with me to permit me to provide the noble Lord with a satisfactory answer. Again, I shall ensure that I correspond with him and put down in writing the answer to his question.

[Lord Ponsonby of Shulbrede (Lab) [V]]

My Lords, in November, the Children and Family Court Advisory and Support Service, Cafcass, triggered its prioritisation protocol in South Yorkshire and the Humber region, which means it is allocating only the highest priority cases there due to severe understaffing. The trade union Napo has described this as a crisis. What steps is the Minister taking to prevent this prioritisation protocol being triggered in other areas, and what estimate has he made of the extra resources necessary to stabilise Cafcass in this region and to prevent a similar protocol being triggered elsewhere?

[Lord Stewart of Dirleton (Con) [V]]

The question covers some of the ground posed by an earlier question but I am happy to answer it. Approximately £3.5 million of additional funding has assisted Cafcass in increasing staffing levels. Her Majesty’s Courts & Tribunals Service has recruited approximately 900 additional support staff across jurisdictions and around 700 further appointments are currently sought. Your Lordships will be aware that Her Majesty’s Courts & Tribunals Service has established 17 Nightingale courts across England and Wales. These give 32 additional courtrooms to alleviate the pressure on courts and tribunals. These courts are hearing, as well as family cases, civil, tribunal and non-custodial criminal work. I can advise that judicial sitting days in the family court have been increased. Current projections are that a level of nearly 96,000 sitting days for 2020-21 may be accomplished—5,000 more than allocation—and the courts sat for record numbers of days in June and July 2020.

Jurisdiction, Judgments and Applicable Law (Amendment) (EU Exit) Regulations 2020

Lord Ponsonby of Shulbrede Excerpts

Tuesday 8th December 2020 Grand Committee

[Lord Ponsonby of Shulbrede (Lab) [V]]

My Lords, I thank the Minister for explaining in some detail this statutory instrument. This SI fixes the defects in civil regulations, family regulations, mediation regulations, Rome regulations and even the rules of regulations. Is the Minister satisfied that all the problems have been ironed out? With only 24 days until we leave the EU, how many more instruments can we expect to see before the House before we go? Can he confirm that none of the amendments in this statutory instrument are in any way being discussed in Brussels today as part of the negotiations for when we finally leave?

I move on to an issue that I raised with the Minister when we had a private talk with the Minister in another place, Alex Chalk, on a specific concern of mine. I remind the Minister that I sit as a family magistrate in London and deal with the reciprocal enforcement of maintenance orders, which come under these regulations. The issue that we have in our courts is with the question of enforcement of these orders. As the Minister said, they will principally move to being enforced under the Hague conventions of 1996 and 2007. However, the issue that we have in our courts is that we have no powers, as far as I am advised by legal advisers, to enforce these maintenance orders.

[Lord Thomas of Gresford (LD) [V]]

I have been overlooked and it has gone straight to the noble Lord, Lord Ponsonby.

[Lord Ponsonby of Shulbrede (Lab) [V]]

I was just concluding my comments, but I think that the noble Lord, Lord Thomas, is after me on the list.

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

When I am in the chair, there is no possibility of the noble Lord, Lord Thomas of Gresford, ever being overlooked. I call him now.

European Union (Withdrawal) Act 2018 (Relevant Court) (Retained EU Case Law) Regulations 2020

Lord Ponsonby of Shulbrede Excerpts

Wednesday 25th November 2020 Grand Committee

[Lord Ponsonby of Shulbrede (Lab) [V]]

My Lords, the Labour Party does not support these regulations. When responding to the government consultation, both the Bar Council and the Law Society expressed a strong preference for the power to depart from retained EU case law to be reserved only to the Supreme Court and the High Court of Justiciary in Scotland. In its response to the proposed changes, the Law Society clearly stated that

“the power to depart from retained case law should not be extended to UK courts … beyond the Supreme Court ... Any change from this position constitutes a major shift in the administration of justice. This could result in a lack of legal certainty through the emergence of novel judgments that are either not binding on other courts or are inconsistent with precedent.”

Those serious concerns should not be overlooked by the Government.

On 2 July this year, the Government launched a consultation on whether the extension would be the right thing to do. The noble Lord, Lord Thomas, went through the findings of that consultation, and he teased the Minister about his wry Scottish sense of humour, because of course the results of the consultation were very different and far more negative than he intimated.

My honourable friend Alex Cunningham, when speaking in the other place, explained that granting the power to depart from retained EU case law to the lower courts is likely to encourage litigation by parties who hope to overturn an earlier judgment that relied on EU case law, and subsequently will increase the volume of cases. That will inevitably put additional pressure on the courts, which already face a significant backlog due to both the pandemic and the cuts that we have seen in the courts system over the past 10 years.

Both the legal sector and trade unions expressed their opposition to the Government’s proposals. Unions are hugely concerned about the impact that a mass departure from retained EU case law would have on workers’ rights. Unions were also clear that the Government should not go ahead with the plan because it would undermine the doctrine of precedent and cause significant uncertainty and disruption to both employers and employees.

We accept that the courts should have the power to divert from EU case law vested in UK law, but that power should remain exclusively with the Supreme Court. We request that the Minister address all the concerns expressed by the legal profession and the trade unions. Will he outline why the Government have chosen to proceed with these regulations? Can he help outline what they plan to do to ensure that the courts under the Supreme Court are able to operate effectively, and to ensure that the changes do not simply result in increased litigation and, ultimately, in even more appeals to the Supreme Court? What reassurance can he give to trade unions that their fears are unfounded and that workers’ rights will not be compromised as a result of the changes proposed in this statutory instrument?

We believe that, based on current evidence, the Government cannot truly justify the changes brought in by the statutory instrument. The Labour Party has sought to work constructively with the Government as they have embarked on their programme of introducing necessary secondary legislation across all areas for use after the transition period. However, on this occasion, we do not feel that the changes to be implemented by these regulations are justified. We will not vote against the regulations, but we do not support them.

Integrated Communities Strategy

Lord Ponsonby of Shulbrede Excerpts

Tuesday 17th November 2020 Lords Chamber

[Lord Stewart of Dirleton (Con) [V]]

My Lords, I agree with the noble Lord’s point. As my predecessor, the noble and learned Lord, Lord Keen of Elie, has remarked in your Lordships’ House in the past, the matter is a social and educational question as much as it is a legal one. It is in order to establish the extent of the problem that the Government are continuing to await the findings of the Law Commission and to look in detail at the meticulous research being carried out.

[Lord Ponsonby of Shulbrede (Lab) [V]]

My Lords, does the Minister understand that it is relatively common for couples to come to family courts in England and Wales saying that they are married under sharia law, only to be told that the court does not recognise this status of marriage? The Government plan to support awareness programmes arising out of Dame Louise Casey’s review of marriage published in 2015. Can the Minister tell us what steps have been taken to provide such educational material in the citizens advice bureaux and in the family courts across the country?

[Lord Stewart of Dirleton (Con) [V]]

My Lords, sharia law is not part of the legal system of England and Wales, and that has been made clear in the past. In relation to the provision of material via the citizens advice bureaux, to which the noble Lord refers, I will write to him about the availability of that material and how it is being promulgated through these bodies.

Rehabilitation of Offenders Act 1974 (Exceptions) Order 1975 (Amendment) (England and Wales) Order 2020

Lord Ponsonby of Shulbrede Excerpts

Thursday 10th September 2020 Lords Chamber

[Lord Ponsonby of Shulbrede (Lab)]

My Lords, I welcome the introduction of these two amendments to existing pieces of legislation. The Minister fully set out the reasoning behind the amendments and their effects. Two Acts are being amended by the orders. The first is the Rehabilitation of Offenders Act 1974, which will be amended in two respects: by removing the multiple convictions rule in certain circumstances and also by removing the requirement, in certain circumstances, that the sections order apply to any spent youth cautions. The second is the Police Act 1997, to which the second order makes various amendments, which the Minister fully explained.

I have a few questions for the Minister which arise out of his introduction. I was pleased to see that the Chartered Institute of Personnel and Development welcomed the changes, particularly on youth convictions, but it warned that, too often, employers routinely carry out DBS checks, even when they are unnecessary for the job that is to be undertaken. Does the Minister share this concern? Also, with unemployment rising and the difficult situation we are currently facing, what else are the Government doing to help offenders? They find it very difficult to get work.

When the Minister was explaining this, he referred to cautions but he did not explicitly refer to conditional cautions. Can I assume that all the provisions he has referred to apply to both youth cautions and youth conditional cautions? He made it clear the provisions apply to both the regular certificates and the enhanced certificates, but when judges or magistrates are sitting in court and looking at the police national computer, will that have a full list of cautions, conditional cautions, warnings and all the other out of court settlements? Will that still be recorded in the PNC, which is seen by magistrates and judges when they are sentencing?

The noble Lord, Lord Paddick, noted that I was a member of the independent parliamentarians’ inquiry chaired by the noble Lord, Lord Carlile, but more significantly Robert Buckland was on that commission, and as far as I remember, he agreed with everything that commission said, and that commission went far further than today’s amendments. Therefore, I look forward to the Lord Chancellor’s continued support for the work of the commission of the noble Lord, Lord Carlile.

The noble Lords, Lord McCrea and Lord Thomas of Gresford, and the noble Baroness, Lady Sater, talked about a wider review of how criminal records and orders are dealt with. I was particularly pleased to hear the contribution of the noble Baroness, Lady Sater, to today’s debate. I sat as a youth magistrate with the noble Baroness for many years, and I know she talks with huge experience from her work as a youth magistrate and on the Youth Justice Board, and I agree with the sentiments she expressed.

I will close with a personal observation. Last night, my son, who is a part-time cricket coach, was filling in the form for his DBS check. I have to say that I find it odd that, when filling in that form, the onus was on him to diclose any convictions or cautions, rather than on the system to have the data available. There was no problem in his case, but it seems to me that is a strange system. Nevertheless, I support these amendments and am happy to do so.

Probate Service

Lord Ponsonby of Shulbrede Excerpts

Monday 27th July 2020 Lords Chamber

[Lord Keen of Elie [V]]

My Lords, in fact, we have taken steps to simplify the probate process. We are replacing affidavits with a statement of truth, accepting electronic-type signatures on probate forms, and allowing legal representatives to sign legal statements on behalf of clients. These steps will simplify and accelerate the process.

[Lord Ponsonby of Shulbrede (Lab) [V]]

My Lords, there has clearly been a lot of adverse press and we have heard from other noble Lords about personal experiences where the probate service has not performed as we would all wish. What confidence does the Minister have that the probate service is performing as well as he claims it is? What monitoring does he think is appropriate to put in place so that we can all have confidence that the probate system is fit for the present large increase in Covid-related deaths that we have seen?

[Lord Keen of Elie [V]]

My Lords, in late 2019 we saw a very clear and discernible improvement in the turnaround of probate applications and probate grants. As I indicated, in January to March this year the average waiting time for a grant of probate was about four weeks. Some, of course, are simpler than others. Indeed, where written rather than digital applications are made, there is greater room for error and therefore of delay in respect of these matters. However, we are monitoring the system. That is why we can give figures on the turnaround on probate grants. We are training additional staff as well. We appreciate that this will be required, given that there will be an increase in probate applications over the summer, reflecting the increased death rate as a result of the Covid pandemic.

Competition Appeal Tribunal (Coronavirus) (Recording and Broadcasting) Order 2020

Lord Ponsonby of Shulbrede Excerpts

Wednesday 15th July 2020 Lords Chamber

[Lord Ponsonby of Shulbrede (Lab) [V]]

My Lords, the Coronavirus Act 2020 made provisions for the use of video and audio technology in courts and some tribunals. However, these do not apply to the Competition Appeal Tribunal. As a result, remote CAT hearings using videolink arrangements are effectively operating on a closed basis, with access available only by invitation to the parties and other persons who have been notified. This is contrary to CAT’s rule of procedure number 99, which requires hearings to be in public. These hearings therefore run the risk of challenge because they have not been conducted according to the rules. The order removes that risk by granting the CAT temporary power to broadcast its proceedings. The order applies to England and Wales and will expire on 25 March 2022, as we have heard—the same day as the Coronavirus Act expires.

This has been an interesting debate and I thank the Minister for his clear exposition of the reason for the order. The noble Lord, Lord Thomas, spoke very clearly about the threat of a loss of leadership by British courts in competition law because of our withdrawal from the EU. He outlined the wide scope of the tribunals and that there is a large interest by specialist groups that can lead to up to 100 people wanting to view and be attendees at court hearings. He also made the interesting point that the CAT’s workload is likely to increase because of coronavirus, leading to more mergers and issues to do with competition.

The noble Baroness, Lady Anelay, also supported the order. She raised an interesting question about how this differs from CVP, which currently operates in the criminal courts. I remind noble Lords that I sit as a magistrate in London, so I use CVP quite often, but in the family courts we use a mixture of technologies, including Skype for Business and Microsoft Teams, and we will be using CVP in the very near future. So a variety of technologies are available. Can the Minister say anything about the appropriateness of having the flexibility to use the most appropriate technology? It differs for different legal encounters, if I can put it like that.

We heard about the trailblazing role of the noble and learned Lord, Lord Hope, in the Scottish courts. He and a number of noble Lord asked about the potential permanence of these types of arrangements. I thought that the noble Lord, Lord Marks, made a very interesting point when he summed up that this should be used as an opportunity for a wider review of giving better access to justice in our courts system up and down the country.

The noble Lord, Lord Wei, raised a number of interesting points. He asked who would own the feeds and the information. My understanding is that the copyright holder will be the tribunal itself. He also raised questions about using computer technology to look at facial expressions, and raised concerns about emotionally vulnerable people appearing at these hearings. I am very concerned about this in my work in the family court. It might not be so relevant in the CAT, but it is certainly a very relevant question in the family court. We have to consider the appropriateness of giving judgments to people who are remote. They might be alone when we reach decisions in the family court. So it is a very relevant question in the judicial environment in which I operate.

The noble Baroness, Lady Ritchie, also asked interesting questions about what the parallel arrangements in Scotland and Northern Ireland would be and whether they would be retrospective and start from the same point that the Coronavirus Act started in early March.

This has been an interesting debate. Some real questions have been raised and there are some real opportunities for further reform in the coming years. I look forward to the Minister’s response.