Property (Digital Assets etc) Bill [HL]

Lord Sandhurst Excerpts

Report stage
Wednesday 30th April 2025 Lords Chamber

I must therefore disappoint the noble Lord. I know that he was just being provocative by tabling these amendments, so that he could make a jolly good speech about digital assets.

[Lord Sandhurst (Con)]

My Lords, traditionally, English common law has recognised two forms of property: tangible things in possession and intangible things in action, such as debts and shares. However, as we have heard, with the rise of digital assets such as crypto- currencies, tokens and non-fungible tokens we encounter items that do not fit neatly into either category. These assets are becoming essential in modern commerce, and it is vital that English law remain at the forefront of international trade, safeguarding London’s position as a legal and financial hub.

The Law Commission looked at this and proposed a third category of property to accommodate such digital innovations, allowing for legal evolution without imposing rigid definitions that might exclude future technologies. The commission emphasised that statutory intervention must not undermine the existing legal clarity or introduce unnecessary complications. The flexibility of English common law is a strength; it has already adapted to address key questions in the digital sphere. The current regime offers a balance of predictability and adaptability, making our jurisdiction well positioned to lead in this space.

The Bill the commission drafted, which is now before us, does just that. We have tested it thoroughly in Committee. I have listened carefully to the concerns raised by my noble friend Lord Holmes of Richmond, and while I recognise them, the Bill has been carefully drafted and it is not necessary to amend it—save for Amendment 6, which we will come to later.

Addressing Amendments 1 and 2 in a little more detail, it will be for the courts to develop the law on the treatment of this category or to widen existing categories—whichever way one wishes to look at it. The proposed wording of Amendment 1 goes too far. The Bill’s wording is elegant and encompasses digital assets, which are not easily categorised in the conventional classifications. It also encompasses other things not yet contemplated or in our imagination but which, when they do come into existence, will be thought by the courts to deserve rights. That is what the Bill is doing; it is expressly not limited by over-definition. It achieves protection for these as yet unimagined things, while making it clear that existing digital assets will be protected.

We would be bold to depart from the views of Professor Green, chair of the Law Commission report, who is very hostile to this sort of amendment. When asked about one such suggested amendment, she said:

“That would really take away the whole bite of the Bill … the whole mischief that it addresses is that we no longer have to be stuck with these categories”.


Therefore, we cannot support Amendments 1 and 2.

Turning to Amendment 3, on codes of practice, we follow the reasoning which I have outlined. Any code of practice risks definitions which do not accommodate a new type of activity or entity outside its scope, but which is worthy of protection. Equally, the code might suggest that property rights be given to an activity which, after the detailed investigation that a trial can give, a court rightly decides should not be so protected. It is best left to the courts, which will receive evidence, hear arguments from competing parties and be able to resolve those matters. The six-month period is too soon. If the Law Commission had thought this a good idea, it could have said so. It is contrary to the tenor of its lengthy report. If the Act would, in five years’ time or whenever, benefit from amendment, it should be done with the benefit of hindsight and experience. Meanwhile, such amendment is premature.

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

My Lords, I thank the noble Lord, Lord Holmes, for raising these issues. They get to the heart of the Bill: whether there is a need to recognise a further category in statute, and whether it is helpful to provide further guidance to the courts on the attributes to consider.

On the first of these points, the Government’s firm view is that the Bill’s current approach is the right one. Some stakeholders hold to the two-category view and say that there can be no further category beyond things in action and things in possession. This view is understandable but has its roots in history, including in an influential statement in a 19th-century case. That statement was made at a time when assets such as crypto tokens simply could not have been conceived of. The world has moved on, and the law needs to move on with it.

The Special Public Bill Committee heard from stakeholders who would prefer to see these emerging assets categorised as things in action, on the basis that their approach would give more legal certainty. However, the need for new solutions is the result of the unique features of these assets and not of their categorisation. For example, the existing rules on transfer of things in action, or on remedies for interference in things in action, are simply not adequate for assets such as crypto tokens. Either way, the law, through the courts, will have to respond to their new features.

The Bill is the result of a three-year project by the Law Commission during which all arguments, including the arguments in favour of this amendment, were considered in full. A strong majority of consultees to both consultations undertaken by the commission expressed a preference for a further category. Most respondents to the committee’s call for evidence also supported this approach. This approach came from a wide range of stakeholders—from legal professionals to industry bodies and academics.

Another advantage of the Bill’s approach is that it is technologically neutral. As the noble Lord, Lord Sandhurst, excellently put it in Committee, the Bill

“encompasses other things not yet contemplated or in our imagination”.—[Official Report, 3/2/25; col. 16.]

The Bill future-proofs our law in the way the other two categories do not. As Professor Green put it in her evidence, as quoted by the noble Lords, Lord Holmes, Lord Clement-Jones and Lord Sandhurst,

“the whole mischief that it addresses is that we no longer have to be stuck with these categories”.

By removing any uncertainty around a possible further category, we will give the courts the freedom to develop our common law. This approach allows them to consider and respond to the unique features of digital assets, and other assets that we cannot yet foresee.

This flexibility is also relevant to the question raised by Amendment 3: whether the Secretary of State should publish codes of practice about the attributes of digital things that confer personal property rights. The Government’s view is that requiring the publication of codes of practice could undermine the flexibility that the current drafting affords the courts. The Law Commission considered the features of assets that have characteristics of property but do not fit into the existing categories. However, City law firms, senior barristers, financial industry groups and crypto industry groups gave clear feedback that a more detailed statutory provision incorporating these features could be counter- productive.

The Government are concerned that the same issues could stem from publishing a code of practice. It could create unhelpful boundary challenges, lead to undue complexity, and prevent the common law being able to respond flexibly and dynamically to new technologies and unforeseen challenges. This feedback was reflected in some of the written evidence submitted to the Bill Committee.

As noble Lords will remember, the Bill Committee was firmly in favour of maintaining the Bill’s current approach. My noble friend Lord Stansgate got to the heart of the matter when he said:

“The whole point of the Bill is to set out something relatively simple, to take into account new technology and to enable judges to develop common law”.—[Official Report, 3/2/25; col. 19.]


As the noble Lord, Lord Sandhurst, so eloquently put it:

“The relative silence of the current Bill is golden”.—[Official Report, 3/2/25; col. 20.]


The Bill deliberately does not try to define the types of assets that may fall within its scope. Rather, it unblocks the common law and leaves it to the courts to develop the appropriate principles, building on centuries of world-renowned common-law development. By doing this, English and Welsh and Northern Ireland law can remain dynamic, globally competitive and a useful tool for those in the digital asset market. I ask the noble Lord to withdraw his amendment.

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[Lord Clement-Jones (LD)]

My Lords, I can be extremely brief because I agree with much of what the noble Viscount, Lord Stansgate, has had to say. The noble Lord, Lord Holmes, is nothing if not consistent. We had data centres brought up in the Data (Use and Access) Bill and in this Bill, and I am sure he will ruthlessly bring up data centres on every possible occasion. Of course, the Government need a data centre strategy but the primary purpose of this Bill is very specific: to resolve the Colonial Bank v Whinney issue that the Law Commission wished to do. That is what we should be focused on today.

The Bill does not make digital assets property. It removes a legal barrier to their recognition as such by confirming that the traditional twofold classification is not exhaustive. That is all the Bill does, so I think that requiring a comprehensive economic impact assessment does not flow directly from this very narrow but useful Bill. I feel the same way about Amendment 5, which proposes a review within six months. Again, that goes way too far. Framing the review as being triggered

“due to any such digital assets being treated as property by virtue of this Act”

suggests that the Bill creates the property status, which is misleading.

I think the noble Lord, Lord Holmes, already knows all the arguments against his amendments so I shall carry on no further.

[Lord Sandhurst (Con)]

My Lords, an impact assessment is not practicable, whether in six months’ or three months’ time, we respectfully suggest. It would be premised on too many uncertainties. What we know is that the Bill will do no harm and is likely to do good. We have, if you like, the theoretical impact assessment of the Law Commission, which looked at all the issues in great detail. So, I suggest that we do not need this amendment, and we would not support it.

As to Amendment 5, six months’ time is, again, with respect, too short. I would suggest in parentheses that a review in five years’ time to see whether it is useful, whether it needs further amendment, how it is operating and what the effect is on the London market and litigation in London, could well be of value. Whether it needs a formal assessment or not is something that can be looked at four years down the road, but this is early days. We simply do not know enough. With respect to my noble friend, a review in a few months’ time will not help us at all. We do not support the amendment.

[Lord Ponsonby of Shulbrede (Lab)]

My Lords, at the outset, I acknowledge the long-standing advocacy for technological innovation of the noble Lord, Lord Holmes. I also pay tribute to his deep commitment to ensuring that our regulatory framework is fit for purpose in an increasingly digital world.

These amendments would mandate reviews of the impact of digital assets being treated as property by virtue of the Bill’s provisions. One amendment requires the Government to publish an economic impact assessment of the Bill on the day the Act is passed. As noble Lords will know, the Government published an impact assessment when introducing the Bill. I hope it will assist and reassure noble Lords if I highlight some of the most salient points.

As the impact assessment sets out, the Bill is expected to bring clarity to personal property law, reduce uncertainty for businesses and ensure England, Wales and Northern Ireland remain leading locations in which to innovate. Due to limited data, it is very hard, if not impossible, to quantify these benefits. However, we think the Bill will help ensure our laws remain competitive on an international stage.

The impact assessment considered the potential for the Bill to encourage the use of digital assets. However, this impact is highly debateable, given the Bill merely confirms the position that has been gradually emerging through case law in recent years. It is not expected or intended that the Bill will cause a significant increase in uptake of digital assets.

The same amendment calls for the impact assessment to cover the estimated change in demand for, and use of, digital assets. The assessment would also have to cover data centre power usage, the current level of data centre power provision and its ability to meet any increase in demand for digital assets. This follows on from the points the noble Lord, Lord Holmes, made in Committee. He mentioned that he would like to hear that the Government are committed to data centres being fuelled through renewable energy and a discussion around where data centres would be located, given the value they can bring to the country. Although these are important points, they sit outside the remit of the Bill.

I say to my noble friend Lord Stansgate that whether a data centre is in space or not is also outside the relevant part of the Bill.

Furthermore, it would likely be impossible to accurately estimate the long-term effect of the Bill on data centres. There are many greater influences on these areas, such as cloud computing, AI and general data storage. This will make it extremely difficult to assess the impact of the Bill. Therefore, such a review could result in speculative or misleading conclusions.

The other amendment calls for reviewing the

“need for further regulation of stablecoins and tokenised deposits”

within six months of the Act passing. Here, I reiterate that the Bill does not specify how the courts will treat these particular digital assets. If they were considered personal property under the Bill, this would not affect the need—or not—for regulation. The Bill deals only with a discrete matter of private law. Therefore, the proposed review is unlikely to yield any meaningful conclusions.

Moreover, issues around regulating stablecoins and tokenised deposits are already being addressed. The Government’s forthcoming financial services regulatory regime of crypto assets will include a new regulated activity for stablecoin issuance in the UK. Overseas-issued stablecoin will be regulated in the UK in line with other crypto assets. This will ensure that the Financial Conduct Authority can properly manage stablecoin-specific risks.

In addition, the Prudential Regulation Authority has published its views on the risks associated with tokenised deposits and how it expects banks to address those risks. Where tokenisation does not change the underlying economics and fundamental nature of a depositor’s claim, the PRA’s prudential regulatory framework will treat a tokenised deposit similarly to a traditional deposit. Where banks intend to take tokenised deposits from retail customers, the PRA expects this to be done in a way that meets the PRA’s rules for eligibility for depositor protection under the Financial Services Compensation Scheme.

The Bill takes a minimalist approach to achieve the specific aim of unblocking the common law on personal property. While I am very pleased that I have had the opportunity to debate these amendments, the Government fear that they could cause unnecessary bureaucracy and regulatory duplication, which could increase uncertainty rather than alleviate it.

As set out already, we think there are significant benefits of the Bill, such as bringing clarity to English, Welsh and Northern Irish law and keeping it world leading. We will, of course, monitor those benefits closely in the future. Given that, I ask the noble Lord to withdraw his amendment.

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[Lord Clement-Jones (LD)]

My Lords, I, too, add to our congratulations to the noble Lord, Lord Anderson, who was a very good chair. It was a very harmonious committee, as these Law Commission Committees tend to be. I am delighted to support the noble Lord, Lord Holmes, for a change, but it is very lucky we did not pass Amendment 1, that is all I can say.

[Lord Sandhurst (Con)]

My Lords, we support this amendment, for the reasons advanced by my noble friend Lord Holmes. I, too, add my thanks to the noble Lord, Lord Anderson of Ipswich, for all the hard work which he put in and to our excellent clerk, Matthew Burton. It is a pleasure now to see this Bill reach a happy conclusion, I hope.

[Lord Ponsonby of Shulbrede (Lab)]

My Lords, this amendment seeks to restate the Long Title of the Bill, and I have put my name to it as the noble Lord, Lord Holmes, said. The amendment was tabled by the noble Lord but was suggested by Adam Temple, a senior barrister who specialises in financial services, when he gave evidence. This amendment addresses a slight discrepancy between the wording in the Long Title and the Bill’s operative clause. This discrepancy in wording came about following the Law Commission consultation on the draft Bill, which led to Clause 1 being amended to address concerns that it could be read as providing that any thing was capable of being personal property. That is not the intended effect of the Bill. Therefore, the wording changed from saying that a thing may be capable of being an object of property rights to instead saying that a thing is not prevented from being the object of personal property rights merely because it does not fit into the traditional categories of things in possession or things in action.

At the time of drafting, the Law Commission did not feel it was necessary to make a corresponding change to the Long Title. However, several noble Lords raised concerns about this discrepancy during our Committee debate and asked the Government to consider it further. Having reflected carefully, we are satisfied that making this change will not have any substantive effect. We are therefore content to accept this amendment so that the Long Title is consistent with the operative clause of the Bill. I end by thanking the noble Lord for his constructive discussions on this point. As for thanking noble Lords, I will leave that to the last stage of the Bill.

Crown Court Criminal Case Backlog

Lord Sandhurst Excerpts

Thursday 20th March 2025 Lords Chamber

[Lord Sandhurst (Con)]

My Lords, I declare my interest as a former chair of the Bar Council and recorder of the Crown Court. I congratulate the noble Baroness, Lady Longfield, and welcome her to this House.

The context today was set for me by the survey just published showing that one in three criminal barristers is considering leaving criminal work because they say they work too hard for too little. That will only make things worse.

From 2009-10 to 2022-23, the last year we have, public funding for justice in England and Wales had declined by over 22% in real terms. It is worth noting that the Ministry of Justice budget is about 1% of the health budget. Obviously, some backlog in the Crown Court is inevitable. Cases waiting to be tried need time for proper preparation. The issue is not the backlog but the deficit—the failure—in the system to properly cope with it.

The backlog, we have heard, is caused by many different factors, but especially, I suggest, reduced court sitting days and too few criminal barristers and those with the right certification and approval to take serious criminal cases, such as rape cases and so on. I welcome the Government’s recent decision to raise the sitting-day cap to 110,000 in the next financial year, but there must be adequate funding to ensure that these new available sitting days are properly used.

The number of cases coming into the Crown Court routinely exceeds disposals. In the third quarter of 2024, over 31,000 cases were received into the Crown Court—a 12% increase on the previous year. This rising tide must be controlled and reversed. The number of cases in the backlog, as we have seen, has continued to rise over time.

What are we going to do to tackle that backlog? We have had a number of suggestions. One made by the Bar Council was that the CPS must give more consideration to the better use of cautions and conditional cautions for low-level offending by those of relatively good character who are not likely to receive prison sentences. The CPS should also consider whether a summary charge, with the consequences of summary trial, may be sufficient for many cases, particularly now that the jurisdiction of the magistrates’ courts has been increased.

I endorse the suggestion of the noble and learned Lord, Lord Burnett, with his experience as Lord Chief Justice, that we should look very seriously at an intermediate court of a judge sitting with justices.

The court estate must be used to full capacity. The cap on sitting days for the Crown Court must be removed. Better fees must be paid to criminal and defence barristers to ensure that we have enough to meet the demand. Some 20 years ago, as chair of the Bar Council, I urged the then Department for Constitutional Affairs to pay properly for pretrial case management—nothing was done, and we have the current mess because of that.

There we are. Delay damages victims, witnesses and defendants, and it destroys this country’s reputation for justice. We must do better.

Data (Use and Access) Bill [HL]

Lord Sandhurst Excerpts

3rd reading
Wednesday 5th February 2025 Lords Chamber

[Baroness Bertin (Con)]

My Lords, I back 100% my noble friend Lady Owen’s amendments and pay tribute to the powerful contributions to this debate. I have spent the past year working on a pornography review, which I hope the Government will publish as soon as possible. I back these amendments 100%. This is an industry that is out of control and growing. There are so many victims—there are victims in the past and there will be many victims in the future. If these amendments are not backed, the Government will be falling short and failing those victims. I do not believe that this Government want to fall short; I have huge faith that they want to meet their targets on halving VAWG over the next few years. They will not meet that target, however, if they do not act bravely and take thorough, proper decisions on these kinds of crimes. We must back these amendments.

[Lord Sandhurst (Con)]

My Lords, I can be very short; there are three points. First, it must be right to include solicitation; it is integral to the success of this Bill, and it is necessary to do so. Secondly, to omit “reasonable excuse” is obviously right. It would be incompatible with the Bill to include it. Thirdly, it must be right to have imprisonment as a sentencing option in appropriate cases. What about someone who has done it before, particularly in respect of the same victim?

[Lord Butler of Brockwell (CB)]

My Lords, I want to say just one thing. In light of what has been said, I urge the Government to accept these amendments. They will do themselves no credit by resisting them, and I am certain the amendments will be passed.

Legal Aid: Social Welfare and Family Law

Lord Sandhurst Excerpts

Monday 18th November 2024 Lords Chamber

[Lord Ponsonby of Shulbrede (Lab)]

I pay tribute to my predecessor, the noble and learned Lord, Lord Bellamy. When I was in opposition, he made a point of encouraging me to visit a pathfinder court in Dorset. I was very impressed by what I saw, and the Government are pleased to carry on that initiative. Again, I am afraid the further rollout of pathfinder is also subject to those allocation discussions, which are ongoing, but I absolutely endorse the point my noble friend makes about the importance of pathfinder, not least because it is a way of highlighting and cracking down on domestic abuse in the court system.

[Lord Sandhurst (Con)]

My Lords, until 2012, there was funding for the excellent support scheme for specialist providers of social welfare and housing law. What consideration are the Government giving to its revival? If the Minister is not aware of plans, will he undertake to look at this?

[Lord Ponsonby of Shulbrede (Lab)]

I will undertake to look at that. I am not aware of it in detail; I know that various pilots have been undertaken. I will write to the noble Lord.

Property (Digital Assets etc) Bill

Lord Sandhurst Excerpts

Second reading committee
Wednesday 6th November 2024 Grand Committee

[Lord Sandhurst (Con)]

My Lords, this has been a most interesting debate. I am grateful, as are others, to the Minister for his careful opening.

On this side we welcome the Bill. It may be small in size but it is big in importance, and we may yet find that it is perfectly formed. The last Conservative Administration deserves credit, I suggest, for having asked the Law Commission in 2020 to review this field of law. It is also very timely that we are debating this during the presidential election, because I see from my phone that bitcoin has risen over 7% in value today. So, this is an important, real topic for many people.

--- Later in debate ---

[Lord Sandhurst (Con)]

My Lords, the Law Commission has produced two admirable reports. The Bill, we suggest, is a necessary but appropriately constrained measure. I shall be interested to hear the evidence in Committee, but it is plain that such a Bill is necessary to clarify the definition of what is capable of being property and to give enforceable rights where there might otherwise be doubt.

The English common law has given property rights to two categories of thing, as we have heard: so-called things in possession, which are generally tangible, visible objects, and so-called things in action, such as debts, and the rights to sue for breach of contract and company shares.

However, the world moves fast, and we are now confronted with digital assets. These sit less easily in our current definitions. They can include crypto tokens, cryptocurrency and non-fungible tokens. They are increasingly important to modern society, whether we personally like them or not. It is important that we keep the strong position that English common law holds in international trade, as the noble and learned Lord, Lord Thomas of Cwmgiedd, reminded us. We need to enforce the position of the City of London and the role of its lawyers in the important commerce that they bring to this country, and the tax and other benefits which flow from that.

There is a need for action to enable ongoing innovation growth in the sector. This has given rise to the Law Commission’s definition of a third category of property. It should take account of recent technological developments without creating hard boundaries which exclude or misdescribe future categories of property as yet unimagined.

The Law Commission is of the view that the common law of England is the better vehicle for determining those things that properly can and should be the object of personal property rights. They need not necessarily even be digital things. It points out that they could include, for example, carbon emission allowances. The world moves fast, and the law must keep up, but it cannot anticipate everything. As the Law Commission points out, an overprescriptive definition will leave things frozen in time.

In chapter 2 of its July report, the commission explains that the common law is in general sufficiently flexible and already able to accommodate digital assets. It agreed with Sir Geoffrey Vos, Master of the Rolls, who, speaking extrajudicially, said:

“We should try to avoid the creation of a new legal and regulatory regime that will discourage the use of new technologies rather than provide the foundation for them to flourish”.


The Law Commission concluded that it should take a tripartite approach to law reform. First, the common law is in general sufficiently flexible and already able to accommodate digital assets, so any law reform should be through further common law development where possible. Secondly, it recommended targeted statutory law reform and no more. That should confirm and support the existing common law position or fill a gap where common law development is not realistically possible. Thirdly, it said the making of arrangements for the provision of further guidance from industry experts should occur. We are not concerned with that third category.

So, the commission concluded, the law in England and Wales is now relatively certain. Most areas of residual legal uncertainty are highly nuanced and complex, in part because both the digital asset markets and the technology that supports them continue to evolve. Although some digital assets are not easy to place in traditional categories of things to which personal property rights can relate, this does not prevent them from being capable of attracting personal property rights.

The commission has said that it is clear what should take place in common law. It was persuaded by consultees that it would be helpful to express in legislation that certain digital assets are capable of attracting personal property rights and, therefore, to support the existing common law and take away any uncertainty. It set out certain principles that are beyond argument, I suggest. We should champion and support the inherent flexibility of the common law; it is already sufficiently flexible to accommodate most, if not all, digital assets. We should seek by statute only to confirm the existing common law position or to reform it where the common law cannot develop the legal certainty that the market requires. We must ensure that there is consistency with other legal and regulatory regimes where possible.

English common law has already proved resilient in the face of new technology. It has been flexible enough to answer legal questions concerning digital assets. It is developing a sophisticated regime that recognises and protects the newest features. It provides the market with a good balance of certainty and flexibility. Our English jurisdiction is well placed to provide a coherent and globally relevant legal regime for existing and new types of digital asset. As the noble Lord, Lord Freyberg, said in his interesting speech, if the Bill leaves gaps—particularly in respect of non-fungible tokens in the art market—we should examine the potential remedies, if there are any, in Committee. However, intervention by statute should not undermine the high level of existing certainty, lead to undue complexity or create a significant risk of boundary issues—the Law Commission was clear on that—because the wrong sort of statutory intervention might not be capable of distinguishing between different implementations of similar technology in the way the common law can.

The Bill, with its one simple clause, is the product of much deliberation at the highest level. The definition has been drafted with great care. I note the subtle differences between the version now before this Committee and the earlier draft, produced in February. The Committee will hear evidence about whether that balance is now right and whether there are appropriate additions or amendments, but, to me, at the present time, it is plain that the draft before us should not be amended without compelling reasons. I commend the Bill to the Committee.

Prisoners: Early Release Scheme

Lord Sandhurst Excerpts

Monday 21st October 2024 Lords Chamber

Asked by

[Lord Sandhurst]

To ask His Majesty’s Government what steps they are taking to prevent criminals who have been released under the prisoner early release scheme from reoffending.

[The Minister of State, Ministry of Justice (Lord Timpson) (Lab)]

After inheriting a prison system on the brink of collapse, we had no choice but to introduce emergency measures, releasing some prisoners a few weeks or months early. Unlike the end of custody supervised licence scheme, or ECSL, introduced by the last Government, SDS40 had an implementation period that allowed prison and probation staff properly to prepare for release, helping us to reduce the risk of reoffending. Planning for release includes having temporary accommodation for those at risk of homelessness; access to employment; and continuity of mental health and substance misuse provision. Those released under SDS40 will also be subject to strict licence conditions. If offenders break those conditions or commit further crimes, they will be punished and could be immediately recalled to prison.

[Lord Sandhurst (Con)]

I thank the Minister for his Answer and welcome him to Question Time. More than 3,000 prisoners serving terms of more than four years for serious offences are due to be released this week, starting from tomorrow. Martin Jones, the Chief Inspector of Probation, told the BBC that it was a certainty that around one-third would reoffend. Of those released in the first batch in September, how many have been recalled to date in connection with a subsequent suspected offence of violence?

[Lord Timpson (Lab)]

We do not yet have all the exact figures but, when they are verified, we will publish them in the normal way. However, the noble Lord is correct that we have inherited a system that is very difficult, in which far too many people are recalled. For the second SDS40 stage, we are as ready as we can be. Victim contact data is very reassuring but, as in a lot of areas that we are dealing with in respect of full prisons, it is not as straightforward as I would like.

Community Sentences (Justice and Home Affairs Committee Report)

Lord Sandhurst Excerpts

Friday 26th July 2024 Lords Chamber

[Lord Sandhurst (Con)]

My Lords, I am delighted to respond to this debate from this side of the House. I was and indeed remain a very happy member of the committee. I am also the executive chair of the committee of the Society of Conservative Lawyers.

As others have noted, if it is properly managed through rigorous sentences served in the community, crime can be reduced. With proper investment, intensive community sentences can more often succeed where short custodial sentences too often fail. Only this week, the Secretary of State for Justice observed that

“too often our prisons create better criminals, not better citizens”.—[Official Report, Commons, 25/7/24; col. 835.]

Nearly 80% of offending is reoffending.

These important points were acknowledged by the previous Government at the end of February this year in their response to the committee’s report. The previous Administration was working to improve the quality of community sentence delivery, from the earliest stages of advice to the court through to the delivery of requirements and supervision. They were seeking to ensure the delivery of robust community sentences and had recognised that there was more work to be done. So too, the previous Government acknowledged the persuasive evidence that community sentences can be more effective than custodial sentences in reducing reoffending and rehabilitating offenders.

I shall now highlight the committee’s more significant proposals, together with the synchronicity of the previous Government’s responses. I note the approving remarks of the noble Baroness, Lady Hamwee, in that respect.

Custody, while sometimes necessary, is expensive and fuels reoffending, as others have said today. Community orders are a sound alternative in many cases—not all, of course, but many. Mechanisms to deal with breaches mean that offenders are now being held to account. We know too that over 50% of people sentenced to custody for up to 12 months go on to reoffend within a year. However, for those on community orders, the figures are different: the reoffending rate is 36%. Where there has been a suspended sentence order coupled with requirements, the reoffending rate is lower still: only 24%. That is significant; it is a pointer to the way forward.

The last Government acknowledged the persuasive evidence that community sentences are, in certain circumstances, more effective than short custodial sentences in reducing re-offending. Policy should therefore build on what the last Government started. We should now have more sentences that do not result in immediate short-term prison terms. But identifying the right candidates for non-custodial sentences is crucial. The public must be won over and must have confidence in what is being done. So, what steps will government take to work with the Sentencing Council and the Probation Service to identify criteria to help guide the judges to move in the direction of fewer short-term prison sentences?

Since 2020, under the last Government, over 4,000 trainee probation officers have been recruited. The judicial forum now meets quarterly at a senior level to share information about new projects and to get feedback on probation performance. The last Government deserve credit. The Sentencing Bill of 2023 would have imposed a duty on courts to suspend short sentences of 12 months or less. That Bill was lost with the Dissolution. Like community orders, suspended sentences are available for courts as a robust community-based sentencing disposal and an alternative to immediate custody. So, as there is no mention in the gracious Speech of the Sentencing Bill, which was lost, do the Government intend to revive it? If not, why not?

The committee was clear that government should invest in the services that underpin community orders, and there should be an emphasis on intensive treatment whose effectiveness is established. The previous Government had already invested over £500 million in the treatment and recovery provisions in the first three years of the drugs strategy plan. The committee concluded that a greater proportion of people on probation should be serving sentences with “one or more” treatment requirements. This policy has already been pushed forward, and more orders of this kind are being made, with drug rehabilitation, alcohol treatment or mental health treatment requirements being attached. We have made a start, and it must be carried through, as other noble Lords have said. Will there be further investment in community sentence treatment requirements, which the committee believed should be a priority and key to reducing re-offenders, putting offenders on a path away from crime and protecting the public?

Pilot schemes to incentivise offenders, such as that for deferred sentencing, can encourage offenders to engage in probation and to change their behaviour. The pilot schemes for these and for intensive-supervision courts, started by the last Government, should be pursued and developed where they show promise. Monitoring will be important.

Young offenders bring a subset of problems of their own. As we have heard, there is a cliff edge when they move from the youth justice services to the adult Probation Service. It is not straightforward. They are young adults—often young males, who do not reach psychological maturity until around 25. The last Government acknowledged this and had it very much in mind. Age-appropriate solutions must be implemented to smooth the transition. So, what proposals do the Government have to address the transition of young offenders to adult probation services at 18?

Local entities are key to securing meaningful unpaid work placements and to fostering public support for community sentences. That means that we have to ensure that smaller organisations are enabled and helped to bid for contracts and offered administrative support. To date, the Probation Service has not always made the most of partnerships with local organisations outside the formal commissioning process. Government can spur this on and encourage. There has been a start; the Probation Service must do more in this respect.

The provisions which I have outlined, taken as a whole, are crucial to the management and disposal of lower-level offenders. Supervision of lower-level offenders is essential to the mission of the Probation Service. If people are properly managed, we all benefit.

To conclude, the unification of the Probation Service has been successful. There have been praiseworthy increases in recruitment. Progress has been made in absorbing the new recruits. Now is the time, as others have said, to educate the public that locking up relatively—I emphasise “relatively”—low-level offenders is often not the answer. The previous Government recognised this in their helpful response given in February of this year. They were moving energetically to implement change and to drive the Probation Service and the judiciary forward in this respect. It is vital that our new Government do not give up on this. I have every hope that this new Minister will give serious weight to our report. If not, we are watching.

Recognition and Enforcement of Judgments (2019 Hague Convention etc.) Regulations 2024

Lord Sandhurst Excerpts

Friday 24th May 2024 Lords Chamber

[Lord Hacking (Lab)]

My Lords, I do not know whether my noble friend Lord Ponsonby is going to intervene, but I would just like to endorse entirely what the noble and learned Lords, Lord Thomas and Lord Hope, have just said. I speak as a member of the Public Bills Committee, which was so well chaired by the noble and learned Lord, Lord Thomas, and I hope my side of the House or the Minister’s side of the House will quickly bring back the Arbitration Bill, for all the reasons given by the two noble and learned Lords.

[Lord Sandhurst (Con)]

My Lords, I too welcome this measure, but I want to take this opportunity to echo the very generous words of praise from my noble and learned friend Lord Thomas of Cwmgiedd. My noble and learned friend Lord Bellamy has been a tremendous Minister. He has worked absolutely tirelessly under great pressure and it is no fault of his that we are losing the Arbitration Bill, which really is important. I think it is important that this point is made and it is very important that whoever wins the election understands that this Bill is important for the City of London which, whatever one’s political views, brings enormous sums of money into this county and generates a lot of tax.

In the same breath, I am also very sorry that the litigation funders Bill, which I think was effectively uncontested—although it could probably do with a minor tweak—has also been lost. I very much hope that that is brought back and sent through quickly in the autumn. That Bill is also very important for the London legal market. I am not talking about small sums here and cases in the Competition Tribunal and so on could be taken elsewhere. It is really important that they stay in the United Kingdom and that we keep our top legal services.

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

My Lords, I add the support of these Benches for everything that all noble Lords have said, particularly the noble and learned Lord, Lord Thomas of Cwmgiedd, who led the special committee on the Arbitration Bill. I agree with him and other noble Lords about the Hague convention regulations, but I also express considerable concern about the loss of the Arbitration Bill and the Litigation Funding Agreements (Enforceability) Bill.

With others, I pay tribute to the work of the noble and learned Lord, Lord Bellamy, generally, and to the noble Lord, Lord Roborough, and the noble and learned Lord, Lord Stewart of Dirleton. We had the three government Ministers involved in this House on a delegation yesterday to try to save those two Bills. We have not succeeded, which is a great shame. I hope that we can unite to bring some pressure on the powers that be to improve the wash-up procedure so that Bills of great importance to the British economy can be taken through during the wash-up where there is absolutely no controversy about them, as is the case with both these Bills. They both could have been dealt with last night and today before Prorogation and they have not been. That is going to cause a big delay and it is a great shame. I hope the delay will be kept as short as possible.

Coroners (Suspension of Requirement for Jury at Inquest: Coronavirus) Regulations 2024

Lord Sandhurst Excerpts

Friday 24th May 2024 Lords Chamber

[Lord Bellamy (Con)]

My Lords, I cannot answer for individual coroners, but I would venture to suppose that such a circumstance would have great weight with most coroners.

[Lord Sandhurst (Con)]

My Lords, I welcome these regulations. It is very important that backlogs are reduced. It is very damaging to the families and, very often, to the witnesses who may have been involved in a very serious matter that has caused them grief even if they are not a direct victim. The sooner these things are resolved, the better. It is important also that, where a jury is properly required, it is not passed to one side simply for administrative convenience.

I also take this opportunity to remind the House that, as of this date, coroners are still the responsibility of local authorities. That does not lead to efficiency or proper funding and resources. I hope that it will not be too long, as senior coroners in the past have urged, before the coronial system is put on a proper national basis within the courts service.

[Baroness Hodgson of Abinger (Con)]

My Lords, I too welcome these regulations. I am very pleased to hear that measures are being taken to try to clear the backlogs and that the bereaved are put at the heart of the coronial cases. However, I would like to ask my noble friend a question. I have heard that, in some cases, where there have been long backlogs and families have been waiting for an inquest, unable to move forward. They have then been told that the inquest is not being held in person; it will be done on paper. I ask that the wishes of families are taken into account very seriously.

One person who contacted me about this was desperately upset. She had been waiting for an inquest and hoped that she would get answers to some of the questions she had about why her mother had one minute been coming home from hospital and, the next minute, was on an end-of-life pathway due to having picked up coronavirus. She felt that, having waited for two years and having really agonised about this, she was being brushed aside because it was being put into a paper inquest.

So I welcome these regulations, because clearly the shortest time possible between a death and an inquest is desirable. As my noble friend Lord Sandhurst said, for some of the witnesses as well it is better to close these things. However, where there have been long waits, to suddenly hear there will be a paper inquest, which the person who contacted me would not be able to be party to except to hear the results, is far from satisfactory.

Victims and Prisoners Bill

Lord Sandhurst Excerpts

Committee stage
Wednesday 31st January 2024 Lords Chamber

[Lord Sandhurst (Con)]

My Lords, I declare my interest as a member of the justice committee, and I endorse everything that has been said by speakers in this debate. I do not need to repeat their reasons; I shall be expanding on them in the same vein when we debate Amendment 51.

We have to give teeth to this. There has to be cultural change and it has to be a change that affects those in the Crown Prosecution Service and police at ground level because those above them will know that, if they default, something not so nice—a failure to get promotion or something practical—may happen because they will have a black mark against them by having failed to implement the victims’ code. We need teeth.

[Baroness Brinton (LD)]

My Lords, I agree with everyone who has spoken so far. I say to the Minister that, given the mentions earlier today about putting the victims’ code on a statutory footing, the brevity of this debate is in inverse proportion to the importance of the amendments. We appreciate that the Government have not come as far as us. I am grateful to my noble friend Lady Hamwee, who helpfully set out the concerns of the committee that she quoted about this not being strong enough to get compliance.

I want to go back over a little bit of history. When I joined your Lordships’ House in 2011, a number of inquiries were going on relating to victims of crime. I became vice-chair of the all-party group on victims of crime. That group introduced the stalking inquiry report, which led to stalking law reform. Between 2011 and 2019, this House debated the role of a victim’s code and the victims of crime on many occasions. I had a Private Member’s Bill on the issue which had its Second Reading in July 2019. Not only did the Conservative manifesto of 2019 mention it but there was more detail about it in an addendum to it. I have no doubt that that was due to the work of the then Victims’ Commissioner, who is the Victims’ Commissioner again, sitting on the opposite Benches.

All that was because the current system does not work; it is quite simple. Until the services that have to provide the victims’ code are made to do so, there will be no incentive for them to deliver it if they have other pressures. It is the old thing: if you have to do something, then you will. You will have targets and you will be judged by your performance. Without that—if this is just a “thing too much—it will not happen.

As we come to the end of this Parliament, I want to say that it was a key tenet of the Conservative manifesto to make sure that a victims’ code was enshrined in law, but what we have seen is not what was spoken about during that general election campaign.

--- Later in debate ---

[Baroness Chakrabarti (Lab)]

My Lords, this group is about giving teeth to the toothless tiger that is the victims’ code. To be clear, currently in law, and as proposed by the Government’s scheme in this Bill, the only indirect enforceability would be that if anybody has any other kind of proceedings against a relevant public authority, the victims’ code can be taken into account. That is it. That is not an enforceable right in any usual sense of the concept, because enforceable rights require duties that must be enforced.

Various options have been proffered by noble Lords in the Committee in the various amendments in this group. Mine is Amendment 31, on which I am grateful for the support of my noble friend Lord Ponsonby of Shulbrede and, once more, the noble Baroness, Lady Brinton. I propose here that the teeth, to some extent, go to the Victims’ Commissioner. As I said in the debate on the previous group, the Government appoint the Victims’ Commissioner; this is not some dangerous person who will be litigating everywhere. This is an appropriate person who has been appointed by the Government of the day.

I am not suggesting that victims should be able to sue directly in the courts on the victims’ code. Frankly, there is no legal aid for them to do so anyway, and I do not want them to be traumatised by more litigation when they have been so traumatised by the principal proceedings in which they have had such a bad experience. But I do want them to have real rather than illusory rights, which can be enforced.

The thing about enforceable rights is that they become more real just because they exist, because the public authorities concerned will take note. I believe they will take greater note when they know that down the road, in extremis, there is a potential reckoning if they continue to ignore victims in the way that they have, to deprioritise them or to do whatever it is that has led to some of the stories we have heard in Committee this evening.

My proposed scheme is to replace the current Clause 5, the toothless tiger, with the following enforcement procedure. Incidentally, this is not about specific cases. It is not about the Victims’ Commissioner doing something that she does not do at the moment and getting involved in this criminal case or that; there would be obvious problems with that. This is about general practice. When, for example, it comes to the notice of the Victims’ Commissioner that women are being treated appallingly when they report rape and have their mobile phones taken or are not allowed to speak to counsellors—clearly things that would never happen in real life; I am just hypothesising for a moment—the Victims’ Commissioner in the first instance would do what she does already, which is to try to engage with the public authorities at length and persuade them that there is a problem in general that needs to be dealt with.

However, there are measures in the proposed new Clause 5(4) for when that is not being complied with. In the first instance, in Clause 5(4)(a), the Victims’ Commissioner would be able to issue a notice of general guidance. It would not be about a specific case but would be general guidance to the relevant public authority about its practice that, in her view, was not complying with the code. Whether it is about separate rooms in the Crown Court or the information being required, the victim is not being treated according to the code, so the commissioner issues the notice, initially in private.

If that is not complied with within a reasonable period of time, under Clause 5(4)(b), the next tool in the armoury—which is still pretty modest—is that the Victims’ Commissioner would be able to publish that notice. In my view, that public notice is another tool for accountability in relation to the intransigence of public authorities that are simply not complying with the code.

There is then a further step. One would hope that it would very rarely happen, but maybe sometimes it would need to. This is not about specific cases and would not involve individual victims having to go through legal proceedings, but in extremis the Victims’ Commissioner would be able to start proceedings in an appropriate court or tribunal, defined in rules by the Government, to seek enforcement of the code. That would be only the Victims’ Commissioner, not any litigant in the land who was being mischievous with their money, or lefty human rights lawyers and all that stuff. It would be the Victims’ Commissioner, who is trusted and was appointed by the Secretary of State in the first place.

I think that is a pretty modest and balanced scheme for giving the toothless tiger not great big scary teeth but just some milk teeth so they can nudge these public authorities, which have had all this time and all these years with the current code and the current scheme, which is going to be replicated in the Bill proposed by the Government. It would get the Victims’ Commissioner a little bit more by way of a power to deliver for the victims that she serves.

[Lord Sandhurst (Con)]

My Lords, I hope I can do this in the time allotted, as they say.

I shall speak to Amendment 51 on training in relation to support for victims. Very simply, Clause 6 directs that criminal justice bodies must take reasonable steps to promote awareness of the victims’ code to victims and other members of the public, but the Bill does not mandate that professionals within these bodies receive any training in the code. There is no point in this provision in Clause 6 if those who are to carry it out—those who are acting on the ground within the agencies, under the chief constable or within the prosecution service—are not aware of their duties or trained properly to deliver them. This part of the Bill risks being a fig leaf. To make it effective, those responsible for it must be trained in delivery. Is this not just common sense?

The evidence base is that there is a need to provide training and that it is clear that there is a widespread lack of awareness of victims’ rights. I take you back to two surveys. In 2019, the London victims’ commissioner conducted a review into compliance with the victims’ code of practice. She heard from over 2,000 victims of crime. The review revealed examples of unacceptable service. It showed that a proportion of those who work in the criminal justice service lack the skills or training to understand and respond to victims’ needs effectively. Victims suffer the consequences of those problems time and again; they simply were not informed of their rights. In short, the code was not delivering.

Let me give some examples. Fewer than a third of the victims reported being told about the code of practice. Of course, some of them may have forgotten, but certainly a large proportion were not told. As a result, they did not know what their rights were—they did not know they had any rights. It is no use giving the victims rights if they do not know about them. Largely, the police and the Crown Prosecution Service are not trained to do this. It is not because they are wicked people; they just do not know about it. There are many other deficiencies. Read the review if you want to know more.

More recently, in June 2022 the office of the Victims’ Commissioner launched the Victim Survey, an online survey of victims of crime in England and Wales that asked them about their experiences as a victim of crime. I will give a few examples. Fewer than a third, only 29% of respondents, were aware of the victims’ code. The same percentage said that they were offered the opportunity to make a victim personal statement. In other words, if that is right, 71% were not offered that opportunity. Again, allowing for some people not being very capable or bright, it shows a large proportion, on any basis, were not informed of really basic information.

Data from the user satisfaction survey in London shows that only 25% of victims were made aware of the victims’ code. In the same period, the answers showed that 50% were offered victim support services—in other words, half were not; and 59% were given the opportunity to make a victim personal statement, so around 40% were not. It is the “nots” we are interested in here. Only 12% were offered information on compensation. Again, making allowances for the fact that it may not have been appropriate or necessary and that some people are forgetful, a large proportion were not told about possible compensation and how to claim it, and that is important. Even a small amount of compensation can make an individual who has been the victim of crime feel a bit less disgruntled. I speak as someone who sat as a recorder in the Crown Court for 20 years.

Those are all rights in the victims’ code. They are all failures; just read the survey for more. It is plain that there is no training. We need it and it should made part of the statute. So, I commend this amendment to the Committee.

Debate on Amendment 30 adjourned.