Divorce, Dissolution and Separation Act 2020 (Consequential Amendments) Regulations 2022
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Lord Stewart of Dirleton
That the draft Regulations laid before the House on 11 January be approved.
Relevant document: 27th Report from the Secondary Legislation Scrutiny Committee. Considered in Grand Committee on 8 February.
Divorce, Dissolution and Separation Act 2020 (Consequential Amendments) Regulations 2022
Lord Stewart of Dirleton Excerpts(2 years, 2 months ago)
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Lord Stewart of Dirleton
That the Grand Committee do consider the Divorce, Dissolution and Separation Act 2020 (Consequential amendments) Regulations 2022.
Relevant document: 27th Report from the Secondary Legislation Scrutiny Committee
The Advocate-General for Scotland (Lord Stewart of Dirleton) (Con)
My Lords, the draft instrument before us makes consequential amendments to primary and secondary legislation relevant to the Divorce, Dissolution and Separation Act 2020, ahead of its planned commencement on 6 April this year. The purpose of these measures is twofold: first, to introduce a new jurisdiction ground for joint applications for divorce—namely, either applicant’s habitual residence; secondly, to update the terminology relating to divorce proceedings consequential on the language changes made by the aforementioned divorce Act.
I will speak first to the amendments in paragraphs 1, 4, and 8 of the schedule to the regulations pertaining to the introduction of a jurisdiction ground for joint applications for divorce: namely, the habitual residence of either applicant. Jurisdiction grounds, in this context, are the grounds on which a divorce can be applied for and/or granted in the jurisdiction of England and Wales. The ground we are discussing sets out that, provided either applicant is habitually resident in England or Wales, a joint application can be made by both applicants within this jurisdiction.
This instrument amends a number of measures, including the Domicile and Matrimonial Proceedings Act 1973, the Civil Partnership (Jurisdiction and Recognition of Judgments) Regulations 2005 and the Marriage (Same Sex Couples) (Jurisdiction and Recognition of Judgments) Regulations 2014. To each of these pieces of legislation, it brings in the same ground to which I have just referred.
An equivalent jurisdiction ground appears in article 3 of EU Regulation 2201/2003, known as Brussels IIa. Until the end of the transition period, the Brussels IIa regulation jurisdiction ground applied to all cases of opposite sex divorce, legal separation and annulment in England and Wales. The United Kingdom is no longer governed by Brussels IIa, which was revoked by Statutory Instrument 519 of 2019. However, the choice was then made to replicate the applicable Brussels IIa jurisdiction grounds into domestic law by amendment to the Domicile and Matrimonial Proceedings Act 1973.
All the jurisdiction grounds in article 3 of Brussels IIa were replicated save for the ground that we are now discussing, that of habitual residence in joint applications. The sole reason why this ground was not replicated upon exit from the EU was because at that time it was not possible to make a joint application for divorce in England and Wales. With the commencement of the divorce Act, this will now be an option for the first time, so it would be remiss not to replicate this final ground now that the opportunity presents itself.
The same ground is also being introduced into the following measures: the Civil Partnership (Jurisdiction and Recognition of Judgments) Regulations 2005 and the Marriage (Same Sex Couples) (Jurisdiction and Recognition of Judgments) Regulations 2014. This ensures equality in all legislation relating to ending a partnership or marriage, regardless of whether these are between same or opposite sex couples.
The other amendments in this instrument amend language in the Domicile and Matrimonial Proceedings Act 1973, the Civil Partnership (Registration Provisions) Regulations 2005, the Pension Protection Fund (Provision of Information) Regulations 2005, the Financial Assistance Scheme (Provision of Information and Administration of Payments) Regulations 2005, the Civil Legal Aid (Merits Criteria) Regulations 2013, and the Civil Legal Aid (Remuneration) Regulations 2013.
The amendments update the terminology in relation to divorce consequential upon the language changes made by the divorce Act. The divorce Act amended terminology in the Matrimonial Causes Act 1973—for example, by the replacement of terms such as “decree nisi”, “decree absolute” and “petitioner” with “conditional order”, “final order” and “applicant”. This means that the same terms will now be used in legislation relating to both divorce and dissolution. It simplifies language too, making terms more recognisable and readily accessible to members of the public. This supports the aim of the divorce Act in supporting citizens representing themselves in divorce proceedings. This instrument consequentially replicates those language changes across relevant legislation.
By making the amendments I have outlined today, the intention is that we will standardise and update language across all relevant pieces of legislation and amend jurisdiction grounds to add a specific relevant ground for joint divorce applications. This instrument is consequential on the divorce Act, reflective of the ultimate aims of the divorce Act, to reduce conflict between couples and families. I beg to move.
Lord Thomas of Gresford (LD)
My Lords, we support this instrument. I have just a couple of questions. I am surprised that the question of jurisdiction was not dealt with in the Act itself. Perhaps the Minister has some explanation for that, which I have not perceived.
My second question relates to paragraph 7.7 of the Explanatory Memorandum, which says:
“The Government’s policy intention behind the reformed law”,
which in turn has resulted in the consequential amendments contained in this instrument,
“is that the decision to divorce should be a considered one, and that separating couples should not be put through legal requirements which do not serve their or the state’s interests”.
I find that a bit puzzling, and I wonder whether the Minister can help me with what it is directed to. However, as I say, we support the amendments.
Baroness Chapman of Darlington (Lab)
My Lords, we, too, support the regulations. The provisions are primarily to reflect the new terminology associated with the reformed divorce, dissolution and separation proceedings in the Act, as well as to add a jurisdictional ground for the newly created joint applications.
The Act has not yet come into effect, but we hope that it will soon and that there is no further delay. I think I heard the Minister confirm that the date will be 6 April 2022—he is nodding, so I take that as an indication that that is correct—which is very pleasing. My party fully supports that Act and the changes to divorce, dissolution and separation that it will introduce. As a result of this Act, it will be much easier for couples to divorce in cases where the relationship has irretrievably broken down.
We hope that this will end some of the adversarial system currently in place. A spouse will no longer be able to object to or oppose a divorce, and couples will no longer have to apportion blame for the breakdown, leading, we hope, to less conflict and acrimony for all involved. A simple statement that the marriage has irretrievably broken down should be sufficient for proceedings to commence. I am very pleased to welcome the measures that the Minister has outlined today.
Lord Stewart of Dirleton (Con)
My Lords, I am grateful to participating Peers for their contributions to the debate. The noble Baroness on the Labour Front Bench acknowledged that I had tacitly confirmed that 6 April was the commencement date—so I was able to answer that question without saying anything.
As to the two questions raised by the noble Lord, Lord Thomas of Gresford, on behalf of the Liberal Democrat Benches, I regret to say that I do not have ready answers to either—I beg the Committee’s pardon. I undertake to provide answers in writing to the noble Lord as soon as I am able.
Beyond that, I think I have registered agreement from both noble Lords who spoke that these merely consequential amendments are not contentious and bring about changes to standardise the approach to language and to jurisdiction grounds for divorce—ensuring, I hope, that legislation surrounding divorce is clear, simple and consistent across the board. I commend this instrument to the Committee.
Power of Attorney
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Baroness Greengross
To ask Her Majesty’s Government what steps they are taking to tackle power of attorney being used as a form of economic abuse that disproportionately affects older people.
The Advocate-General for Scotland (Lord Stewart of Dirleton) (Con)
My Lords, lasting powers of attorney—LPAs—offer vital protections where someone lacks the mental capacity to make their own decisions. While abuse is concerning, thankfully it is rare. Some 5 million LPAs are registered with the Office of the Public Guardian and in the year 2020-21, that office investigated 1,971, taking action in 675 cases. We cannot be complacent with older people at increased risk of abuse and we recently consulted on modernising LPAs to improve safeguards. The response to that consultation is due in the spring.
Baroness Greengross (CB)
My Lords, unless stated, there is no obligation to tell family members that a power of attorney has been created and there are no publicly searchable online databases of registered powers of attorney. It can be hard to gain the information from the Office of the Public Guardian concerning powers of attorney in a timely fashion. This facilitates, perhaps, harm and abuse. The charity Hourglass, of which I am patron, supports victims of abuse and last year 144 of its cases reported having a power of attorney in place. What assessments have been made of proposals to introduce a national register of powers of attorney?
Lord Stewart of Dirleton (Con)
My Lords, I begin by acknowledging, on behalf of the House, the great work that the noble Baroness has carried out in this very important field, not only as patron but as founder of the charity to which she made reference. The OPG is responsible for maintaining the register of LPAs in England and Wales; that is one of its statutory functions. That register can be searched by any member of the public or third party, using a service called OPG100. Additionally, donors and attorneys can provide third parties with access to OPG’s “Use a lasting power of attorney” service, which allows third parties to check instantly the latest information and status of an eligible LPA. Modernising that process presents us with great opportunities, but we must also bear in mind obligations of confidentiality.
Lord Mackenzie of Framwellgate (Non-Afl)
My Lords, I have come across several cases recently where elderly people have been taken advantage of, often by their own relatives, being relieved of thousands of pounds of hard-earned savings as a result of granting power of attorney. As solicitors are involved in this process, is the Minister satisfied that they are sufficiently aware of their duty of care to vulnerable clients during the discussion periods prior to such powers being granted?
Lord Stewart of Dirleton (Con)
My Lords, the OPG is working with solicitors, other professional bodies and other bodies within the community to make sure that persons considering becoming donors and taking out powers of attorney are aware of these protections.
Baroness Kramer (LD)
My Lords, as an MP I had the case of an elderly and very wealthy lady afflicted with dementia who was removed from the luxury home that she had chosen and could afford by her attorneys, who were also her heirs. She was put in a much cheaper home in order to protect their inheritance. The lady was so traumatised that she died within weeks. The Office of the Public Guardian could do nothing, because the new home met CQC standards. Is there a way to give it powers and to look at the misuse of the power, rather than just acting in cases of clear illegality?
Lord Stewart of Dirleton (Con)
The OPG currently has powers to make reference to the police, in terms of fraud, to instigate investigations, including using other bodies such as local authorities or the National Health Service. Again, on the reference to the consultation that is to report in the spring, we look to strengthen the ability of the OPG to intervene in such cases.
Baroness Ritchie of Downpatrick (Lab)
My Lords, could the Minister outline what further measures are contemplated to monitor the misuse of the power of attorney, sometimes by relatives of the person involved?
Lord Stewart of Dirleton (Con)
The noble Baroness poses the question of monitoring the situation. Again, the consultation procedure has been invited to take views as to the use of identification procedures in relation to people becoming attorneys, and there is a range of measures in contemplation to assist banks and other institutions to properly investigate persons taking out such schemes.
Baroness Finlay of Llandaff (CB)
My Lords, the Office of the Public Guardian has changed its processes so that it writes to donors at their home address to inform them that an LPA is being applied for, but in the consultation on modernising the LPA do the Government anticipate that they will need to bring forward new legislation to strengthen the powers of the Office of the Public Guardian to strike out people who hold an LPA who abuse those powers, as outlined in the question from the noble Baroness, Lady Kramer?
Lord Stewart of Dirleton (Con)
My Lords, new legislation will be required. To put matters into perspective, in 2021 there were more than 5 million LPAs on the OPG register, and only nine have been removed from the register because of concerns about fraud by false representation during their creation.
Lord Morrow (DUP)
In Northern Ireland, the Commissioner for Older People can speak on behalf of older victims of economic abuse. The same role exists in Wales, and the Scottish Government have in place a Minister for Equalities and Older People. Can the Minister identify an equivalent here in England, so we can bring these parties all together?
Lord Stewart of Dirleton (Con)
I am grateful to the noble Lord for his question, and I can answer it by saying that in England it is a function of local government to carry out those tasks.
Lord Ponsonby of Shulbrede (Lab)
My Lords, I too would like to acknowledge the lifetime’s work done by the noble Baroness, Lady Greengross. There are things we take for granted until we no longer have them: our ability to choose; our ability to make decisions; and our ability to express ourselves. When these abilities fade, we need to have confidence that legal processes will protect our interests. We are all bombarded by attempts at fraud, almost on a daily basis, and more vulnerable people are more vulnerable to those attempts. The Government’s stated aim is to create a lasting power of attorney service for the digital world. My stepfather is 97. He does not live in the digital world. How will his interests be protected?
Lord Stewart of Dirleton (Con)
My Lords, I agree with everything the noble Lord outlined, and I can assure the House that a paper means of setting up these mechanisms will continue, even after digitisation.
Baroness McIntosh of Hudnall (Lab)
My Lords—I am looking around carefully to make sure it really is my turn—I wonder if the Minister would agree with me that, while we have to be very concerned about the incidents of fraud and the misuse that has just been revealed in the questions he has been asked so far, there is none the less great virtue in lasting powers of attorney. They are very important ways in which all of us can protect ourselves against the things that may happen to us in the future. People should be encouraged to make lasting power of attorney arrangements early enough, while they still have capacity to understand fully what they are committing to, and to inform the people who will be their attorneys how they wish their wishes to be carried out. Would he agree they are not yet encouraged enough?
Lord Stewart of Dirleton (Con)
I do agree with the noble Baroness, and I can advise her that even very recently OPG carried out engagement with specific groups in society identified as being less likely to avail themselves of the protections offered by LPAs—specifically, people from socioeconomic groups and within ethnic minorities who have been identified as less likely to take up these protections, which, I agree with the noble Baroness, are of enormous importance for the whole of society.
Baroness Hussein-Ece (LD)
My Lords, could I ask the Minister about the increase in predatory marriages, whereby fraudsters target elderly people, usually with dementia, in order to swindle them out of their inheritance, usually by getting into marriage when they do not have the capacity, normally, to make such decisions. Could he say what the Ministry of Justice and his department are doing to put registrars on a statutory training course to ensure that, when they are approached by people who want to get married, they have the capacity to do so according to their own free will?
Lord Stewart of Dirleton (Con)
I can say, under reference to the Question from the noble Baroness, Lady Greengross, which concerned lasting powers of attorney, that the OPC has, after certain recent cases, instituted increased training schemes within its number and introduced a buddying scheme so junior members of staff can learn from senior members of staff. As to the specific question the noble Baroness poses on predatory marriages, I regret to say it is not within my department, but I will speak to the Minister in charge, and it may well be, if the noble Baroness is willing to wait, that we will express ourselves in writing.
Rape Trials
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Lord Ponsonby of Shulbrede
To ask Her Majesty’s Government what steps they are taking to increase the proportion of rape allegations that go to trial.
The Advocate-General for Scotland (Lord Stewart of Dirleton) (Con)
My Lords, the rape review action plan has committed to transforming the criminal justice system to tackle systemic failures on rape. In that, we demonstrate our commitment to transparency and public accountability throughout. Our aims are to improve victims’ experience of the criminal justice system, to increase the numbers of victims who stay engaged in the process and to build better and stronger cases so that more people are charged and, ultimately, more rapists go to prison.
Lord Ponsonby of Shulbrede (Lab)
My Lords, I thank the Minister for that Answer. I will just remind the House how appalling the statistics are: only 1.6% of reported rape allegations result in a court case. As the Minister said, the Government’s response has been to put in place the rape review action plan. On 22 January the CPS published its latest statistics regarding the handling of rape. Five categories of data were published; they showed either a flatlining of the data or a modest improvement. Is the Minister happy with that improvement, or does he think he should put in place some targets?
Lord Stewart of Dirleton (Con)
My Lords, I acknowledge the data that the noble Lord has placed before the House. I suggest that it is not so much a matter of imposing targets as one of following through on the Government’s approach, which will see an increase in spending over the lifetime of this Parliament and involve more special training for police officers and prosecutors in this area. Finally, although, as I have said, I acknowledge the statistics that the noble Lord has placed before your Lordships, it is important to recognise that the data is necessarily retrospective and relates to times before the Government’s actions, as set out in the action plan, commenced.
Lord Carlile of Berriew (CB)
My Lords, will the Minister assure the House that, in the Attorney-General’s regular meetings with the Director of Public Prosecutions, she will hold the director to account for the chilling effect of recent changes in CPS charging guidance in relation to rape? Surely it is in the hands of the DPP that the awful statistics can be improved and victims given a proper hearing.
Lord Stewart of Dirleton (Con)
My Lords, I can give the noble Lord that assurance. I remind the House that, of course, as the noble Lord is well aware, we are dealing not simply with the role of government but with necessarily independent bodies, upon which our constitution relies—it relies on the independence of the judiciary and of prosecutors—but I can give the noble Lord the assurance that he seeks.
Baroness Hussein-Ece (LD)
My Lords, the End Violence Against Women Coalition reported that, as a result of funding cuts in recent years, two-fifths of police forces in England and Wales no longer have a specialist rape and serious sexual offences unit, thereby losing vital expertise in investigating and prosecuting sexual violence. At a time when rape prosecutions remain at their lowest level on record and rape survivors face some of the longest delays to their cases reaching trial of any victims of crime, are the Government serious about prioritising tackling sexual violence against women and girls?
Lord Stewart of Dirleton (Con)
My Lords, this Government are indeed serious about addressing the matters that the noble Baroness has placed before the House. I am able to give the noble Baroness some assurances in relation to figures. We are on track to recruit a further 20,000 police officers by the end of this Parliament. Over 100 prosecutors have undertaken induction training on rape and serious sexual offences—RASSO as it is known—while 674 prosecutors have been trained in a suspect-centred approach; that means focusing the investigation on the suspect and shifting away from the idea that it is the function of the police somehow to challenge the complainer’s account of events. Furthermore, by the end of this financial year, 176 prosecutors will have been trained and skilled in the assessment of the impact of trauma on memory. All these measures will enhance the ability of the system to address these extremely serious crimes.
Baroness Chakrabarti (Lab)
My Lords, I am grateful to the Minister for acknowledging the issue of resources in relation to sexual offences, in particular, and for the other commitments that he has made, but does he agree that the culture of misogyny in our police service is leading women not to have the confidence they need to come forward? I refer noble Lords to reporting overnight of the case of the Nottingham academic who was strip-searched in police custody in circumstances that can be described only as a sexual assault.
Lord Stewart of Dirleton (Con)
My Lords, the expression “misogyny”, and the extent, meaning and parameters of that expression, are currently under consideration. Beyond that I do not intend to provide any further answer.
Lord Hogan-Howe (CB)
My Lords, what are the chances of investigating and prosecuting serious sexual offences when 70% of victims are regarded at the time of the attack as vulnerable, sometimes due to alcohol and sometimes to age or mental illness? This means that the prosecution decisions can be quite difficult when the account of the victim is regarded as inconsistent. We never know how juries accept their evidence, and we never have any research into how juries reach their verdicts. I wonder whether this area is something on which the Government would consider instigating proper research to find out what it is that influences a jury. It is not always the things that we believe make a difference.
Lord Stewart of Dirleton (Con)
I can tell the House that there is work currently under way by the Law Commission to address misconceptions in this field. The expression often used is “rape myths”, although I am not sure that I am especially fond of that. I think “misconceptions” better addresses and refers to the topic raised by the noble Lord.
Lord Mackenzie of Framwellgate (Non-Afl)
My Lords, does the Minister accept that modern technology has, ironically, made rape a more difficult crime to investigate because it depends on victims having confidence in the process? Many young women are not prepared to allow their cell phones to be seized and trawled through for months on end by the police. What are the Government doing to address this dilemma without compromising justice?
Lord Stewart of Dirleton (Con)
My Lords, the noble Lord makes an extremely important point. In relation to the end-to-end review and action plan, which the Government have published, we have set up a means by which people coming forward with complaints of rape can be confident that they will receive mobile telephones, so they will not be deprived of their use or their contacts and data. At the same time, we will be doing our best to strengthen the investigation of crimes so that complainers do not feel that their personal lives are being unduly pried into or that their rights to privacy are disturbed.
Baroness Blower (Lab)
My Lords, would the Minister like to have another go at answering the question put to him by my noble friend Lady Chakrabarti, leaving aside the question of misogyny but answering the question about culture?
Lord Stewart of Dirleton (Con)
The culture of the police is an extremely broad topic. I regret if I seemed to have ducked the point raised by the noble Baroness, Lady Chakrabarti, but these are extremely wide issues, which lie beyond the remit of my ability to answer today.
Civil Jurisdiction and Judgments (2005 Hague Convention and 2007 Hague Convention) (Amendment) Regulations 2022
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Lord Stewart of Dirleton
That the Regulations laid before the House on 16 November be approved.
Considered in Grand Committee on 14 December.
Civil Jurisdiction and Judgments (2005 Hague Convention and 2007 Hague Convention) (Amendment) Regulations 2022
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Lord Stewart of Dirleton
That the Grand Committee do consider the Civil Jurisdiction and Judgments (2005 Hague Convention and 2007 Hague Convention) (Amendment) Regulations 2022.
The Advocate-General for Scotland (Lord Stewart of Dirleton) (Con)
My Lords, I begin by saying how much of an honour it is to serve under the chairmanship of the noble Lord, Lord McNicol. This is my maiden outing in this Room; it is a melancholy reflection, given that I took up office more than a year ago, but here I am in the Moses Room for the first time.
The Deputy Chairman of Committees (Lord McNicol of West Kilbride) (Lab)
You are welcome.
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
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(2 years, 5 months ago)
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Baroness Chakrabarti (Lab)
My Lords, I am sorry to find myself intervening at this point but there is no bigger policy than the right to a fair trial. Of course that goes for complainants—and I agree with much of the thrust of what my noble and learned friend says—but there must also be justice for someone accused of any matter, but particularly such a serious one as a sexual offence. The example given by the noble and learned Lord, Lord Judge, warranted more of an answer, and one could conceive of others.
I say that while acknowledging that for decades, too much sexual history has been admitted; there is no doubt in my mind about that. That was why Section 41 had to be enacted in the first place. Scholars in this area will be able to look back at the Hansard of the passage of Section 41 and its various iterations at the time. The section was actually more tightly drafted to begin with but noble Lords in this place, including on the Benches behind me, came up with compelling exceptional circumstances where it would do a grave injustice to a defendant for startling similar fact-type evidence not to be admitted.
I understand that even since the passage and enactment of Section 41, a lot of complainants—and, with all respect to the noble Baroness, Lady Bennett, quite possibly women in particular—have felt that there has still not been enough sensitivity on the part of certain judges. However, it cannot be right that if I as a complainant, of whatever sex, assert that a particular type of sexual activity is something I would never and could never consent to and have never consented to, and yet I did the day before—how can it be anything but an injustice to the defendant for that not to be admitted? If I am a man and I say I have been raped by another man because I would never have consented to sex with a man, and yet there is ample evidence of a third party saying that there has been consensual sex —that cannot be fair to the man in the dock who says, “Yes, we had consensual sex” and then the complainant, because he is embarrassed due to his family, his faith or whatever reason, now says that it was non-consensual. That cannot be right.
I agree that we must do more so that juries, judges and indeed society do not assume that past sexual history is determinative of consent, but in my view to say that it is always absolutely irrelevant would not comply with Article 6 of the convention and therefore the Human Rights Act. I do not mean to be difficult but I could not possibly have potential injustices of that magnitude on my conscience, and I do not think this Committee could either.
The Advocate-General for Scotland (Lord Stewart of Dirleton) (Con)
My Lords, in replying, I preface my remarks by commenting on points made by noble Lords. The first was made by the noble Lord, Lord Thomas of Gresford, at the outset, while the Benches opposite were still thrashing out the batting order. If I may summarise the noble Lord’s position, I think it emphasised the importance of judicial discretion. A judge seized fully of the law and of the particular facts and circumstances applying to any case will most often be best placed to decide what should be done. I know that the noble Lord will recognise that my remarks cut both ways, and that he will hold me to them in the course of today’s debate. However, I fully accept what he had to say about the importance of judicial discretion.
Lord Bach (Lab)
My Lords, I also agree absolutely with the principles behind these amendments. It seems as though the Committee has been unanimously supportive up till now.
My question to the Minister is: why have we waited so long for something to happen in the area of inquests? I had hoped that there might be something in what has been rightly described as a Christmas tree Bill to help us along the way, but there is not. It has needed the amendments from my noble and learned friend Lord Falconer and others, including the noble Baroness, Lady Bennett, to raise this issue. I was privileged enough to chair a Fabian commission on legal aid, which reported more than four years ago. We considered this urgent—as I think the world did—then and for many years before. At one stage, Hillsborough was a classic example which aroused public interest in this issue.
Is there work being done at the moment within the Minister’s department to look urgently at this issue to see whether some solution cannot be found? Never mind the rest of civil legal aid—though my noble friend Lady Chakrabarti knows I agree with her absolutely on that—is there not something that can be done in this area as a matter of some urgency?
Lord Stewart of Dirleton (Con)
My Lords, I hope that the Committee will accept my words when I say that the Government are sympathetic to the difficulties facing all bereaved families. At an earlier stage in the consideration of this Bill, my colleague, my noble friend Lord Wolfson of Tredegar who has ministerial responsibility for this matter, referred to the powerful feelings he had, as a resident of Liverpool, as the Hillsborough tragedy unfolded. For my part, I speak as one who has acted for a relative of someone killed in an accident which was sufficient to warrant the convening of a fatal accident inquiry in relation to the helicopter crash at the Clutha Vaults public house in Glasgow. I was funded by legal aid, and I hope that means I was at least competent, while at all times striving towards the excellence of the noble Lord, Lord Pannick. The Government believe that bereaved and otherwise affected families should be at the heart of any inquest and inquiry process that follows a disaster.
Amendments 269 to 274 seek to establish an independent public advocate. This is a call to which the Government have been sympathetic, but I echo the reservations expressed, I think by the noble Lord, Lord Pannick, as to whether the superstructure envisaged by the noble and learned Lord’s amendment is the appropriate way forward.
Lord Paddick (LD)
My Lords, I have given evidence at numerous criminal trials, in the magistrates’ court and the Crown Court, but the most vicious, adversarial cross-examination was at the inquest into the death of Jean Charles de Menezes, an innocent Brazilian shot and killed by the police following the 7 July 2005 bombings. There is no way that process could have been described as inquisitorial. Indeed, part way through that proceeding, the coroner had to advise the barrister representing the police not to proceed in the way that he had up until that point. While in some cases it may be simply a neutral, inquisitorial search for the truth, that is not how a lot of inquests turn out.
Lord Stewart of Dirleton (Con)
I am grateful to the noble Lord for giving the Committee the benefit of his experience. Perhaps it is that experience which informed, or helped to inform, the remarks of the Chief Coroner, his honour Justice Thomas Teague, who has said publicly that one of his key objectives in his role is to ensure that the inquisitorial ethos of the inquest process is maintained. I hope that demonstrates a resolve within the system to address the failings or, at best, the over-eagerness, of counsel whose conduct the noble Lord described.
The amendment to increase the scope of legal aid at inquests would run counter to the approach of retaining their inquisitorial character. There is a risk that additional lawyers present at an inquest would not provide an overall improvement for the bereaved, that being something which ought to be a primary consideration, for the reasons expressed by my noble friend Lady Newlove. It is foreseeable—I think this is the point raised by my noble friend Lord Sandhurst—that the presence of additional lawyers could have the unintended consequence of turning an inquisitorial process into a complex exercise—
Baroness Chakrabarti (Lab)
I am grateful to the Minister for giving way. I do not doubt the sincerity of his concerns about trying to maintain informality in inquisitorial process. However, can it ever be conscionable for an inquest to involve a totally unrepresented core participant or bereaved family in circumstances where those whom the bereaved family suspect of being responsible for their loved one’s death are represented by professional lawyers, counsel and QCs? Can that basic inequality ever be conscionable, not least when we are dealing with lay people, with public concern and with public money that is all going to some parties and not to the bereaved?
Lord Stewart of Dirleton (Con)
I am grateful to the noble Baroness for her intervention.
I was going on to say that, for bereaved families who need legal help, advice and assistance are always available under the legal aid scheme, subject to the means and merits test. This can help preparation—
Baroness Newlove (Con)
I take on board what my noble and learned friend says. I come from a victim’s perspective in all this. While it is all rule of law and whatever, victims’ families do not feel any of what my noble and learned friend is saying, because it feels like the professionals are dealing with all the processes. Victims’ families see all these high-end QCs and whether the other person is competent—I think that also gives a two-tier process for the victims’ families. Why should competency be at one end? I take on board what the noble Lord, Lord Pannick, said. The whole point is that they do not get that advice because there is nobody there to advise them.
I have worked with the Chief Coroner. He has no powers to control coroners across the country. Inquests are so poorly funded that there is no advice for victims in all this. We are missing all the pieces of the jigsaw. I say it with no disrespect, but it does not happen on the ground. Families want respect and dignity. All they see is the other side building all the towers, but not for them. They feel irritated, upset and disrespected. Most importantly, they feel that it is all political window-dressing. Once again, the law does not represent the families, who are the ones who are hurt and traumatised.
Lord Stewart of Dirleton (Con)
My Lords, my noble friend’s personal experience and her service as Victims’ Commissioner lend force to her eloquence.
I shall go on to address the funding available for attendance at inquests, but in answer to the points just raised and to reiterate, in the vast majority of inquests the simplicity of the four questions which the coroner is obliged to seek to answer is such that legal representation and legal aid will not be necessary. In circumstances such as those my noble friend described, where there is complexity or where the competing interests are such that lawyers are briefed on behalf of agencies perhaps seeking to lay down defensive positions in the face of future litigation, it is right that there is a mechanism whereby bereaved families or bereaved individuals might be represented.
Baroness Bennett of Manor Castle (GP)
I thank the Minister for giving way. He said that it is right that families should be represented, but surely he would acknowledge that that has not been the case, as in the case I cited, as well as in many others where families have not been able to be represented.
The noble Baronesses, Lady Chakrabarti and Lady Newlove, focused on the families being represented and having a voice, but would not the inquisitorial process, which is supposed to arrive at the truth, be improved and more likely to get to the correct conclusion if there was a balance of arms—a balance of forces—as we have been talking about?
I apologise to the Committee: I probably should have declared my position as vice-chair on the All-Party Parliamentary Group on Legal Aid.
Lord Stewart of Dirleton (Con)
Ultimately, my Lords, arrival at the truth is the objective of all legal process in this area, but the inquest convened under the coroner is but a part of that overall inquiry. That the truth is the ultimate objective does not, with respect to the noble Baroness’s point, confirm that in every case there must be legal representation. I maintain that for the vast majority of inquests the questions posed—the circumstances—are not such as to oblige in the interests of justice that there be representation for all parties. The amendment to increase the scope of legal aid at inquests would run counter to that approach.
Lord Mackay of Clashfern (Con)
Before the noble and learned Lord sits down, I made a mistake earlier in not referring to the noble Lord, Lord Rosser, properly. That was my error; I am sorry for it, and I am sure he will forgive me.
Lord Stewart of Dirleton (Con)
Before the noble and learned Lord, Lord Falconer of Thoroton, replies, I should say that I did not make reference specifically to the point raised by my noble friend Lord Mackay of Clashfern, in relation to the proposal that he and the noble Lord, Lord Rosser, advanced for the funding of representation in these areas. I will undertake to have the department of my noble friend Lord Wolfson of Tredegar look into the response that was made to the proposal which my noble and learned friend and the noble Lord put forward at that time and see if an answer can be given to the Committee at some appropriate stage as to how that was considered and what conclusions were reached.
Lord Falconer of Thoroton (Lab)
I am very grateful to everybody who has spoken in the debate. Everybody apart from the Minister supported the principle. There were various specific suggestions as to how the proposal could be improved, which I certainly take on board. As ever, the noble and learned Lord, Lord Mackay of Clashfern, put forward an incredibly sensible proposal. Amendment 269 says that if a public authority is designated an “interested person” or a “core participant”, then legal aid should provide funding proportionate to that to the families. I think the noble and learned Lord, Lord Mackay, is saying, “Let the relevant interested party or core participant from the public sector pay for it”, and I would not have any objection to that.
I have to say that the Minister’s response was awful—and this is not in any way intended to be an attack on the noble and learned Lord, Lord Stewart of Dirleton, who delivered, as ever, a very careful answer. It was awful because it indicated that the Government are going backwards. It represented a degree of complacency about the problem that was entirely unwarranted. The noble Baroness, Lady Newlove, very effectively expressed what the problem was. The noble Lord, Lord Beith, indicated, quite rightly, that this problem has existed for a very long time.
The problem was exemplified by the Hillsborough case. The families, having had a very fair hearing from Lord Justice Taylor in the public inquiry, then attended an inquest, day after day, having to cross the Pennines to get there, where they saw the findings of Lord Justice Taylor, as he then was, eroded by representatives of public authorities able to take advantage of their total inequality of arms, aided and abetted by some elements in the press—not all the press, but some elements—which used the process to denigrate those who had died. It was absolutely appalling.
The issue is not just the suffering of the individuals but the disrepute into which it brings our legal system. If our legal system is unable to come to an appropriate answer because of the inequality of arms—all the public authorities are represented by all the lawyers in the world and the families, who have a cause and are right, cannot get their position across—then what good is our legal system? That is the point that everybody in the debate has been talking about, and the Minister’s answer showed absolutely no appreciation whatever that that is the problem.
We will not have another opportunity to come back with something. Amendment 269 and the schedule to be put in after Schedule 20 deals with it by ensuring that where there is a public authority in the firing line, the families should be represented. I note what the noble Lord, Lord Sandhurst, says, but all too often long-running problems with particular health bodies never get properly recognised because ultimately the health body is properly represented and the families are not. We will be back. In the meantime, I beg leave to withdraw the amendment.
Lord Stewart of Dirleton (Con)
My Lords, I thank the noble Baroness, Lady Kennedy of Cradley, for her amendment.
For the victim of a crime to be told that the culprit cannot be prosecuted because a time limit has elapsed would doubtless be the cause of, at the very least, dissatisfaction and, at the very worst, anguish, and may very well lead to a loss of confidence in the criminal justice system. That is why, in respect of offences that are serious enough to be capable of being tried in the Crown Court, such time limits are virtually unknown in our system of criminal law in England and Wales. That differentiates England and Wales from many other jurisdictions, where time limits apply even to the most serious offences.
In England and Wales, the only exceptions are certain customs offences and offences of unlawful but consensual sexual intercourse, which I shall refer to as USI, with a girl aged 13 to 15 years committed before 1 May 2004, when the Sexual Offences Act 2003 came into force. The statute which that Act replaced, the 1956 Act—I extend apologies to the noble Lord, Lord Ponsonby of Shulbrede, for yet further legal history here—included a requirement that a prosecution for USI with a girl aged between 13 and 15 must be commenced within 12 months of the offence. That requirement was highly unusual even when it was enacted, and it was duly removed by the 2003 Act. I am sure that members of the Committee will echo the words of the noble and learned Baroness, Lady Hale, quoted by the noble Lord, Lord Thomas of Gresford, in relation to the 1956 Act.
That was an anomaly, as the noble Baroness, Lady Chakrabarti, and other noble Lords have described it in our discussion today. However, when it was removed in 2003 it was done so only prospectively, from the point when the Act came into force; in relation to offences that would fall to be charged under the 1956 Act, the time limit remained.
As your Lordships are aware and have heard again today, Parliament usually acts on the principle of non-retroactivity. Removing the time limit in circumstances where a prosecution was already time-barred, while it would not have amounted to substantive retroactivity in the sense of criminalising conduct that was not previously unlawful, would have exposed a person to criminal liability where there had been none before. Thus, Parliament’s aversion to retroactive legislation also applies to fundamental procedural preconditions for the bringing of charges against an individual. In relation to that—the point was canvassed by the noble Baroness, Lady Chakrabarti—I make reference to the case before the European Court of Human Rights called Antia and Khupenia v Georgia. Oh, for a Lord Russell of Georgia, that I might be corrected for any mispronunciation of the names of any plaintiffs in that matter.
For that reason, we do not consider it would be right to disregard the time limit in the increasingly rare cases in which it would apply. Since the changes in the 2003 Act were not made retrospective at that time, I submit that it would be difficult to justify now extending them to cases in which prosecution has been time-barred for at least the intervening 17 years—even allowing for the development in our understanding of sexual crime, as referred to by Members of this Committee who contributed to the debate.
I join the noble Baroness, Lady Chakrabarti, the noble Lord, Lord Russell of Liverpool, and others in acknowledging the skill and humanity with which the noble Baroness, Lady Kennedy of Cradley, presented her amendment to the Committee. I am grateful to the noble Baroness for expressing a willingness to meet. I would be delighted to meet her at any time, but I think it would be more convenient for her, for the purposes purely of this amendment, to meet with my noble friend Lord Wolfson of Tredegar, the Minister in charge. I have taken steps by electronic means during the discussion in the Committee to arrange that my noble friend is made aware of her desire to meet, and an appointment will be fixed.
Baroness Chakrabarti (Lab)
Obviously I will go and read the Georgian case—I will call it “the Georgian case” so as not to repeat my earlier offence in relation to my noble friend—but, before any meeting, I will just say one thing. The Georgian case is now being cited as the reason why the Government will not move in my noble friend’s direction. I repeat my concern that we are currently in breach of the convention on human rights, not in relation to an Article 7 point but in relation to an Article 3 violation in relation to any woman, of whatever age, who now says “My statutory rapist will not be dealt with”. The Georgian case is up against cases such as X in the Netherlands and all the other cases where people were barred from getting redress in the criminal courts. That needs to be considered by the Minister as a senior law officer in Her Majesty’s Government.
If our positions were reversed and I had to face these two potential challenges in the European Court of Human Rights—a man who says “I had the opportunity to run Lord Pannick’s arguments about delay but none the less I was convicted of a historic statutory rape and I say that is a violation of my Article 7 rights” versus a woman who says “My rapist was not dealt with because of this time limitation”—I know which of those challenges I would rather defend as Her Majesty’s Government.
Lord Stewart of Dirleton (Con)
My Lords, I acknowledge the long-standing interest and expertise of the noble Baroness, Lady Chakrabarti, in this field. Her words will have been noted by the Bill team listening in on this, and I assure her and the Committee that that matter will be examined.
My intention was to turn now to the terms of Amendment 292C. Again, I am grateful to my noble friend Lady Newlove and the noble Lord, Lord Russell of Liverpool, for raising this issue in the Committee and, in so doing, raising a matter that, as your Lordships have heard, the Government have acknowledged in the other place to be an important one. The amendment would have the same effect as one tabled during the passage of the Bill through the other place, both in Committee and on Report—that is, to alter the period of six months allowed for bringing
“summary proceedings for an offence of common assault or battery involving domestic abuse”,
as defined by the Domestic Abuse Act 2021, so that it ran not from the commission of the alleged offence but from its being reported to the police within two years. I sense that the Committee will be as one in agreeing that it is essential that victims have confidence in the justice system—confidence that it is a fair, impartial system that will support them when they come forward.
A number of noble Lords who have given their views on this amendment have spoken of the context of domestic violence, in which these matters take place. We know it may take many attempts before victims of domestic abuse finally leave the abusive relationship, and that this may cause delay in reporting crimes to the police. When the Bill was in the other place, we acknowledged the concerns about the possible effect of the six-month time limit for prosecuting summary-only offences—common assault in particular—in domestic abuse cases. Again, there is no disagreement between us about the importance of domestic abuse victims being able, practically, to seek justice. They should not be frustrated in so doing by the standard time limits set by Section 127 of the Magistrates’ Courts Act 1980, should the evidence indicate that this time limit is too short in this context.
We were clear in the other place that this is an issue that must be looked into. The Home Office has been working to obtain data on cases that appear to have been brought to an end through the operation of the current time limit. I am also aware of the media coverage, to which the noble Lords, Lord Russell of Liverpool and Lord Hunt, referred. I note the concern expressed that, for whatever reason, it would appear that matters are being submitted to the press in advance of proper scrutiny by Parliament. Being aware of those concerns, I will relay them to the appropriate quarters.
I can confirm to the Committee today that we agree that there is a problem here and that domestic abuse-related crimes are disproportionately likely to be timed out. The Domestic Abuse Act demonstrated clearly this Government’s determination to address domestic abuse, and throughout its passage we showed our willingness to listen and take additional steps to address this abhorrent crime. It is important that we develop a proportionate response to this issue, so I ask for the patience of the Committee while we complete consideration of the matter and finalise our proposals. As the previous Minister for Safeguarding at the Home Office—now Minister of State at the Ministry of Justice—the Member of Parliament for Louth and Horncastle, Victoria Atkins, has stated, that might include an amendment. We will complete our consideration shortly, and I assure the Committee that we will return with a proposed course of action on Report.
I hope all Members of the House with an interest in this subject, including the noble Baroness, Lady Greengross, who spoke on it on Second Reading, will be reassured by what I have been able to say. Therefore, on the clear understanding that we agree there is a problem to resolve and that we will be able to return to the issue with our conclusions on Report, I urge the noble Baroness to withdraw her amendment at this stage.
Baroness Kennedy of Cradley (Non-Afl)
My Lords, I am grateful to all noble Lords and noble and learned Lords who have spoken in today’s debate and supported my Amendment 277 and Amendment 292C in the name of the noble Baroness, Lady Newlove, and others. I am heartened by the debate. I thank the Minister for his reply; however, I am disappointed that the retrospective argument is the main one being given for not moving ahead to change this legislation. But I am hopeful and grateful for the agreement to meet the noble Lord, Lord Wolfson, to discuss this issue further before Report. I thank my noble friend Lady Chakrabarti for potentially giving me another reason—Article 3—for this legislative change. I will go and read the case cited around the article and discuss this directly with her to add the argument to my armour.
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%.
Lord Marks of Henley-on-Thames (LD)
I take it the Minister would accept that legislation could quite easily disapply those regulations in the case of the use of registered interpreters, if that legislation were correctly worded and addressed to do so.
Lord Stewart of Dirleton (Con)
Hypothetically, yes, but I hesitate to give the noble Lord a definite commitment on that, as my information on these points is substantially in answer to the point raised by the noble Baroness. But, if the noble Lord will permit me, in exploring these important points, I will make sure that the Ministry of Justice writes to him and that there is a meeting with the noble Baroness, as she sought, to discuss with her the future of this amendment. I hope that that answer will satisfy both the noble Baroness and the noble Lord.
Just to continue on that point, it is important to bear in mind that we are reviewing and engaging in consultation with various bodies. But we need to take into account the broad-ranging needs of the Ministry of Justice and to ensure that we have a service appropriate for the wide range of circumstances and the various commissioning bodies to which I have made reference. There are concerns that mandatory NRPSI membership may give unnecessary control over the supply chain, and the police interpretation contract does not require interpreters to be NRPSI registered. We need to complete a full and objective assessment of MoJ needs across the board and not to introduce NRPSI standards when we do not know what impact they might have on the overall justice system.
The Ministry of Justice is looking constantly to improve the service for users and to work collaboratively with interpreter membership organisations and language service providers to ensure that the short, medium and long-term service needs of the criminal justice system are met. Her Majesty’s Courts & Tribunals Service is starting up a language services future pipeline working group, which will focus on the issue of securing suitably qualified interpreters in the long term.
I will develop that point. As the single biggest public sector user of language services, we believe it is important for the Government to encourage new entrants into the interpreting profession and to provide them with appropriate opportunities to build up their experience levels and to maintain standards of excellence. We have an independent quality assurance supplier, which has recently developed a subsidised trainee scheme, encouraging qualification in languages that are in high demand in our courts. We will continue to work with it, and with other organisations, to improve our service and to ensure it provides access to suitably qualified interpreters in the future. The arrangements that we have in place are designed specifically to ensure that our courts and tribunals are supported by high-quality language service interpretation that meets the needs of all our court users, both now and in the future.
I turn now to some of the submissions made by your Lordships in Committee. I fully accept the point made by the right reverend Prelate the Bishop of Leeds on the distinction between translation and interpreting. But on the submission made by the right reverend Prelate and the noble Lords, Lord Marks and Lord Hogan-Howe, I return to the point that there is a wide range of functions which interpreting has to carry out. With the greatest of respect, each of those noble Lords answering on this point predicated their submission on the fact that we were talking about translation at the very highest level—at the most important level of translating a potentially complex criminal trial.
In response to point made by the noble Lord, Lord Marks, again I accept that the single function of an interpreter in these circumstances is to act as a conduit by which English may be rendered into a foreign language and the foreign language rendered as accurately as it may be into English in order to assist the court. Again, that is at the very top end of the spectrum. Lower down, in simpler and more straightforward functions that I identified—the most elementary part of the range of needs that I discussed—it may well be that some well-meaning attempt to intervene and to assist, such as the noble Lord, Lord Marks, discussed, might be appropriate. I am thinking of the simple telephone inquiry that I referred to.
Lord Hogan-Howe (CB)
There are just two points that I would like to have clarified. First, the noble Baroness, Lady Coussins, proposes a consistent high standard. I was not sure from the Minister’s response what the equivalent is in the contract. I hear that there is one, but I do not know what it is.
The second point is that there might be a spectrum of quality of interpretation. I understand that in a broad sense, but if that was to include the magistrates’ court, there are two issues there. First of all, someone’s liberty is at risk for six months and, in any case, they could be committed to a higher court for a more substantial penalty, should the magistrate decide to do that. Finally, as we have heard only today, if we look at things such as inquests, they can have very substantial consequences both for the people who apply to them and for the people who might be judged by them.
I am not quite sure about either of those points. First of all, what is the standard? Secondly, is it true to say it is always such a wide spread of necessity, given the importance to the victim, the suspect or the witness, in each of these cases?
Lord Stewart of Dirleton (Con)
As I think I have said, the contract provides that, at the highest level, the standard is commensurate with that of the NRPSI. In answer to the noble Lord’s second point, of course none of that interrupts anything that I have said about the importance of identifying the point at which interpretation facilities suitable for the most complex case is to be found. Simply because a matter is not being tried at the Crown Court does not mean that it would not engage the need for the most detailed, able and comprehensive of interpreting facilities.
In closing, I can, as I said earlier, indicate that my noble friend Lord Wolfson of Tredegar, the Minister dealing with this matter, will meet the noble Baroness, Lady Coussins, who is proposing the amendment. In the circumstances, I ask her to withdraw the amendment at this stage.
Baroness Coussins (CB)
My Lords, I thank the Minister for his detailed reply and all noble Lords who have contributed to the debate and supported the principle, if not every detail, of the amendment. Some very good ideas have emerged; I am particularly taken with that of a transitional period.
A couple of questions were asked. The noble and learned Lord, Lord Falconer, referred to family courts. In a family court where an interpreter might be needed at very short notice, it strikes me as even more important, if we are talking about families and children who may be in very vulnerable circumstances, to have an interpreter who is properly qualified. Rustling up somebody at very short notice might not serve the interests of those vulnerable families and children, but I agree that it is a complex situation.
On the point raised by my noble friend about courts sometimes finding it difficult to find interpreters, that is partly to do with the fact that so many interpreters—thousands, I believe—left public service when the MoJ system was contracted out to private companies, because those companies have sustained appallingly low levels of pay and poor conditions. The Minister referred to the need to get new interpreters on board. Yes, of course, that is right, but there are also a lot existing, qualified, experienced interpreters out there who need to be brought back into public service. I believe that if their status was raised and their contribution and professionalism more readily acknowledged by having these minimum standards, which they all complied with, they would be attracted back into public service.
The Minister referred to the fact that the MoJ system is audited by the Language Shop and that complaints were very low. Yes, that is true, but the Language Shop also failed 50% of the interpreters on whom it conducted spot checks, so it is clear that qualifications without experience are not good enough.
I am grateful for the promise of a further meeting with the noble Lord, Lord Wolfson, to discuss the amendment, and I look forward to discussing this issue further on Report. With that in mind, I am happy to withdraw the amendment at this stage.
Queen’s Speech
Lord Stewart of Dirleton Excerpts(2 years, 11 months ago)
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Lord Bates
That an humble Address be presented to Her Majesty as follows: “Most Gracious Sovereign—We, Your Majesty’s most dutiful and loyal subjects, the Lords Spiritual and Temporal in Parliament assembled, beg leave to thank Your Majesty for the most gracious Speech which Your Majesty has addressed to both Houses of Parliament”.
The Advocate-General for Scotland (Lord Stewart of Dirleton) (Con)
My Lords, it is a privilege and pleasure to open the second day of debate on Her Majesty’s most gracious Speech. I am delighted to be joined by my noble friend Lord True, who I know will do a brilliant job of closing what promises, as ever, to be a debate packed with lively and robust contributions. I look forward greatly to the maiden speeches of my noble friend Lady Fraser of Craigmaddie and the noble Baroness, Lady Merron, and to all the wide-ranging contributions from noble Lords, which I am confident will reflect the breadth and wealth of knowledge and experience represented on all sides of the House.
With our focus on our great union and constitutional affairs, we have the opportunity to explore some of the overarching themes of the gracious Speech, including the proposals to restore tried and tested constitutional arrangements to the Dissolution and calling of this Parliament, and the vital job of protecting our democracy. Before I introduce the specific elements of legislation for our debate, however, I will briefly go back in time to events shortly before the pandemic and provide some vital context, in my view, for today’s discussions.
While the impact of coronavirus has inevitably monopolised the nation’s attention for a little over a year, let us not forget how proceedings in this House and the other place were previously dominated by wrangling over the United Kingdom’s departure from the European Union. It was a long, fraught process, not without moments of rancour, yet for those of your Lordships who savour the idiosyncrasies of parliamentary affairs it would be hard to think of a more rewarding period in our recent history. In the context of democracy, though, the referendum vote was the largest democratic exercise ever conducted in the history of this country. The British people voted for change in 2016, and again in the 2019 election to make sure that change was delivered. Now, as we look to recovery and renewal, and to tackling longer-term, cross-cutting challenges such as climate change and the road to net zero, we can enjoy the fruits of our freedom and flexibility outside the European Union’s institutions, the single market and the customs union.
The UK’s independent vaccine programme is leading us out of lockdown. Outside the common agricultural policy, we will reward sustainable farming practices so that, in England, farmers can produce healthy food at a profit without subsidy, while also taking steps to improve the environment, reduce carbon emissions and improve animal health and welfare—win, win and win again. Outside the common fisheries policy, we can revive our coastal communities around the United Kingdom and take steps to improve our marine environment. Under the EU-UK Trade and Cooperation Agreement, the UK secured tariff-free access for fisheries products and a substantial transfer of quota equivalent to 25% of the value of the EU’s historical catch in UK waters, worth £146 million over five years. Last but not least in respect to our Brexit dividend, we can send our money not to Brussels but to the parts of the country where we know it is needed most to help citizens and communities come back from Covid and to improve productivity in all parts of the United Kingdom.
It was evident during the pandemic that the interests of people across the country were best served when we worked together as one United Kingdom. Now that we are turning the corner, the same is true: we are learning from one another to achieve the best outcomes for all the people of our great nation. Now is not the time to stoke old divisions, but to throw ourselves into what unites people across the UK—recovering from the pandemic. People want their politicians focused and working together, improving people’s lives as we engineer a sustainable recovery, building back better, fairer and greener, ensuring communities and businesses have the support they need and making the levelling-up agenda a reality.
The union of the United Kingdom is the most successful political union in history, the foundation on which all our businesses and citizens can thrive and prosper, standing up for, and embodying in its institutions, liberty under the law, respect for all, fair play, free trade, parliamentary democracy and material progress. This Government are committed to protecting and promoting the strengths of this union, building on the hundreds of years of partnership between the regions of our country to ensure that the institutions of the United Kingdom are used in a way that benefits people in every part of our country, from Aberdeen to Aylesbury, Belfast to Brecon. We are committed to strengthening that union and the common prosperity it brings, but even more important than the material wealth that can flow throughout the union is recognising and, where we can, fostering the deeper strength of our partnership. It is a strength that arises out of the millions of relationships that bind together people of good will throughout the union: yes bonds of trade and common endeavour, but more fundamentally yet the ties of affection, of common heritage, of friendship, of love. These ties are countless in number and increasing all the time.
When we work collaboratively as one team UK we are safer, stronger and more prosperous, and far better able to tackle the shared challenges that all parts of the UK face together, from defending our borders and our waters and fighting national cybersecurity threats, to delivering the furlough scheme and ensuring that every part of the United Kingdom has received its fair share of one of the world’s largest and most diverse vaccine portfolios. That is why the Prime Minister has invited the First Ministers of Scotland and of Wales, and the First and Deputy First Ministers of Northern Ireland, to a summit meeting in the coming weeks to address the shared challenges of recovery from the pandemic. In March, the Government also published a status update on the joint review of intergovernmental relations. The significant progress made has been well received by academics and experts alike, reflecting closely, as it does, the recommendations of my noble friend Lord Dunlop in his excellent report. We are committed to seeing new structures established at the earliest possible opportunity.
In addition to the Government’s £2.9 billion commitment to fund 20 city and growth deals across Scotland, Wales and Northern Ireland, Brexit means that we can put more money into communities that might hitherto have felt overlooked or left behind. In 2021-22 that means the £4.8 billion levelling-up fund and the £220 million UK community renewal fund being invested in local areas, both of these using the financial assistance power in the United Kingdom Internal Market Act passed last year, ahead of the launch of the UK shared prosperity fund in 2022. Yes, for the first time in decades the Government can provide the kind of direct financial support that people can see and feel transforming their daily lives, regenerating town centres and high streets, improving local transport links and infrastructure, and boosting cultural, sporting and economic development to help level up the whole country. The Government will, of course, continue to work closely with the devolved Administrations, as well as with other public authorities and stakeholders across the country, to ensure that money is targeted to deliver the maximum impact and benefit for all citizens.
I now move on to the constitutional elements of the gracious Speech, providing increased legal, constitutional and political certainty around the process of dissolving Parliament, while providing flexibility for exceptional circumstances. The Dissolution and Calling of Parliament Bill will deliver the Government’s commitment to repeal the Fixed-term Parliaments Act 2011. The Bill makes express provision to revive the royal prerogative powers relating to the dissolution of Parliament. We will return the country to tried and tested constitutional arrangements, where the Prime Minister is able to request a dissolution from the sovereign.
In repealing the Fixed-term Parliaments Act, we will restore the essential link between confidence and dissolution, enabling critical parliamentary votes once more to be designated as matters of confidence. The Government are grateful for the thoughtful and meticulous work of the Public Administration and Constitutional Affairs Committee, the Lords Constitution Committee and the Joint Committee on the Fixed-term Parliaments Act in considering how that Act operated and for the scrutiny of the Government’s draft Bill. We have listened to the advice of the Joint Committee, and your Lordships will see that it has informed our approach.
I turn now to the elections Bill, which will deliver the Government’s commitment to protecting our democracy, as promised in the 2019 manifesto. We have a world-leading democratic heritage and the Government have a unique role to play in respecting and sustaining it, ensuring that it continues to flourish. The measures introduced by Her Majesty’s Bill are guided by the Government’s determination to ensure our democracy is secure, fair, modern, inclusive and transparent. These measures seek to encourage participation by British citizens in our elections by increasing transparency, strengthening protections for those who participate, and better supporting voters with a disability to cast their ballot.
Respect for our democracy is also rooted in the public having confidence in our systems and approach. That is why the potential for voter fraud in our current system strikes at a core principle: your vote is yours, and yours alone. Any breach of this is inexcusable, as is any suggestion that voter fraud is a victimless crime. Any instance of, or potential for, electoral malpractice damages the public’s faith in our democracy. Allegations must be taken seriously and acted upon.
The introduction of voter identification, therefore, is the best, common-sense way to prevent voter fraud and strengthen public confidence in the integrity of our elections. This will bring the United Kingdom into line with Northern Ireland, which has required voters to show paper identification since 1985 and photographic identification at polling stations since 2003, without adverse effect on participation. I can absolutely assure the House that everyone eligible to vote will have the opportunity so to do.
The overarching themes set out in Her Majesty’s gracious Speech underpin this Government’s ambition to seize the opportunities arising since leaving the EU as they build a sustainable recovery from Covid. The constitutional integrity of the United Kingdom is vital to the long-term prosperity and security of all its parts, and increases opportunities for everyone to succeed. The steps we are taking to protect our democracy will strengthen our resilience and enhance our reputation and international standing. Over the coming weeks and months, I look forward to debating with your Lordships the many measures I have outlined today.
Crown Courts: Outstanding Cases
Lord Stewart of Dirleton Excerpts(3 years ago)
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Lord Ashton of Hyde (Con)
My Lords, we ought to allow the Minister to reply.
The Advocate-General for Scotland (Lord Stewart of Dirleton) (Con)
My Lords, in relation to the Question posed by the noble Lord on behalf of the noble Lord, Lord Beith, we spent more than a quarter of £1 billion on recovery in the last financial year, making court buildings safe, rolling out new technology for remote hearings and opening 60 Nightingale courtrooms. Although there is further to go, this has made a difference. In the Crown Courts, we are completing around 2,000 cases each week, which is the same as before the pandemic.
Lord Thomas of Gresford (LD) [V]
My Lords, my apologies. Given that physical accommodation has at last been made available for Nightingale courts in football grounds, hotels, theatres and even the ballroom in Chester Town Hall, how are these being manned by trained court staff? Given the fact that very few have custody facilities, to what extent are serious cases being held back and periods of remand in custody thereby lengthened?
Lord Stewart of Dirleton (Con)
My Lords, at the Nightingale venues, we use experienced court staff who are trained to deal with the type of work heard on site. While Nightingales deal with non-custodial cases, by taking this work away from the main court estate, custody cases can be heard in our specialist facilities faster than would otherwise be possible. To expand further our capacity to hear complex cases, we have also modified around 70 courtrooms to increase the capability to hear multi-handed trials of up to 10 defendants. In addition, work has begun on a super-courtroom in Manchester, which will further increase capacity for multi-handed cases. For those on remand in custody, our systems show that the majority of such cases had their first hearing in February 2021, and those who have pleaded not guilty have been listed for trial prior to September 2021. I acknowledge the courtesy shown by the noble Lord, Lord Thomas of Gresford, by intimating to my department the terms of his supplementary question in order that a specific answer could be given to this important point.
Baroness Jones of Moulsecoomb (GP)
My Lords, the Minister must be well aware that this problem has been going on for much longer than just the pandemic. The big problem is the Government’s savage cuts to court processes. The solution is not Nightingale courts but better funding. Will the Government do that?
Lord Stewart of Dirleton (Con)
My Lords, prior to Covid, the outstanding case load in the Crown Court was 39,000, which is well within the range of 33,000 to 55,000 over the last decade. At its lowest point, it was even as low as 33,000, in 2018-19. Immediately before the pandemic, the Government were increasing sitting days in the criminal courts to address rising demand.
Baroness Rawlings (Con) [V]
My Lords, on 25 January, I tabled a Written Question to my noble friend Lord Wolfson regarding the closing, selling and standing empty of courts. My noble friend’s swift, detailed reply was that around 110 had been closed since 2015 but 21 new Nightingale courts, which have just been mentioned, had been made. Have these courts had what the Minister feels is the desired effect of reducing the backlog in the Crown Court as well?
Lord Stewart of Dirleton (Con)
My Lords, I am obliged to my noble friend for her question. The recovery steps taken have made a difference, allowing us to complete around 2,000 cases each week—the same figure as before the pandemic. I assure my noble friend that the decisions taken to close courts were not, and are not, taken lightly; they are taken alongside public consultation.
Lord Singh of Wimbledon (CB) [V]
My Lords, the Covid pandemic has led to a surge of cases awaiting trial in the Crown Court. While the setting up of special Nightingale courts to help clear the backlog is welcome, delays to effective hearings are leading to additional stress and anxiety, particularly for vulnerable victims. Does the Minister agree that, in looking to greater efficiency, we need to look harder at cutting the considerable time spent on cases that do not move to trial?
Lord Stewart of Dirleton (Con)
My Lords, we are keenly aware of the need to improve timeliness for both defendants and victims, and to mitigate the impact of delays on complainers and witnesses in such cases. To that extent, I agree with what the noble Lord asked in his question.
Lord Browne of Ladyton (Lab) [V]
My Lords, in a Written Question on 17 December, my honourable friend Alex Norris asked the Secretary of State for Justice
“what assessment he has made of trends in the level of defendants offending while awaiting delayed court dates.”
On 15 January, the dismissive one-sentence reply was:
“We do not hold any data on offences committed by offenders.”
Is data about the number of offences committed on bail no longer held on the police national computer? Why have this Government apparently lost interest in trends of the criminal behaviour of offenders awaiting trial?
Lord Stewart of Dirleton (Con)
My Lords, I repeat the answer given previously: the department does not collect specific data on the level of offending by defendants on court bail. However, as the noble Lord is aware—and as Members present may not be aware—the commission of a crime on bail is itself an aggravation, which will be reflected in the sentence.
Baroness Ludford (LD) [V]
My Lords, the recent Constitution Committee report pointed out that, because of delays to the courts reform programme, improvements to IT systems had not been sufficiently implemented by the time of the pandemic, meaning that remote hearings relied on antiquated systems and participants in the criminal and family courts in particular struggled with virtual hearings. How do the Government intend to supply adequate investment in training in IT while also guaranteeing fairness for all through physical participation for those for whom remote hearings are not a solution?
Lord Stewart of Dirleton (Con)
My Lords, we acknowledge that, in many cases, participation by way of remote hearings is valuable for people in such positions. None the less, we also appreciate that it is not appropriate for all such people, whether they be witnesses or complainers in cases.
Baroness Altmann (Con)
My Lords, I am delighted that the Nightingale courts are being expanded. Can my noble friend comment on any plans that the Government might have to extend the serving period for, or bring back, retired judges so that we can deal with the backlog more rapidly—perhaps by extending court hours—and deal with ongoing ageism in the workplace, which seems to write off older people when they are too young?
Lord Stewart of Dirleton (Con)
My Lords, prior to retirement, judges below the High Court are already able to have their appointments extended on an annual basis up to the age of 75 where there is a business need. After retirement, salaried judges are already able to be authorised to sit beyond the current retirement age of 70, on an ad hoc basis, up to the age of 75. We are using our fee-paid judges, as well as salaried judges who wish to sit following retirement, to ensure that we maximise judicial capacity.
In answer to the second part of my noble friend’s question, we are looking at more flexible working. Temporary Covid operating hours have been piloted at seven Crown Court sites to test whether even more could be done, and we are looking at the extension of the working day as a short-term—I emphasise “short-term”—tool and aid to managing recovery. Magistrates’ courts also sat on at least 100 additional Saturday courts per month between September and December.
Lord Morris of Aberavon (Lab) [V]
My Lords, justice delayed is justice denied. Is not the root cause of the delays the reduced finance that the Justice Department too speedily agreed to long before the pandemic? Have the Government given up on the alternatives that I have canvassed to speed up trials—for example, a reduction in the size of juries or trials of less serious offences decided by judges alone, with the consent of the defendant?
Lord Stewart of Dirleton (Con)
My Lords, I repeat the figure that I gave earlier: over a quarter of £1 billion has been spent on a range of measures to increase Crown Court capacity. With respect to the additional measures that the noble and learned Lord outlined, I regret that I do not have to hand details of consultation and discussions, but I undertake to write to him on behalf of my noble friend Lord Wolfson in the Ministry of Justice.
Lord Hain (Lab)
My Lords, does the Minister accept that this mountainous backlog impacts most upon victims, witnesses to crime and members of the public waiting for years to see justice done? Does he also accept that this backlog began well before Covid and is directly because of this Government’s savage funding cuts in courts and tribunals and even more punitive cuts in legal aid? Is it not high time that the Conservatives started investing in increased court capacity, qualified staff and victim support instead of cuts, cuts and still more cuts, benefiting only criminals?
Lord Stewart of Dirleton (Con)
My Lords, I do not accept the adjectival premises on which the noble Lord’s questions were based. I refer to my earlier answers about the spending that has been identified in relation to these matters.
The Senior Deputy Speaker (Lord McFall of Alcluith)
My Lords, all supplementary questions have been asked, and we now move to the fourth Oral Question.
Counter-Terrorism and Sentencing Bill
Lord Stewart of Dirleton ExcerptsWednesday 3rd March 2021
(3 years, 1 month ago)
Lords ChamberRead Full debate Counter-Terrorism and Sentencing Bill 2019-21 View all Counter-Terrorism and Sentencing Bill 2019-21 Debates Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: HL Bill 169-I Marshalled list for Report - (26 Feb 2021)
“(a) a sentence of imprisonment imposed under section 205ZA of the 1995 Act (serious terrorism sentence),(b) a sentence of imprisonment imposed under section 205ZC of that Act (terrorism sentence with fixed licence period), or(c) an extended sentence imposed under section 210A of that Act in respect of a terrorism offence.”Member’s explanatory statement
This amendment expands the scope of new section 26ZA of the Prisoners and Criminal Proceedings (Scotland) Act 1993 by making it applicable also in relation to a person who is serving an extended sentence under section 210A of the Criminal Procedure (Scotland) Act 1995 in respect of a terrorism offence.
The Advocate-General for Scotland (Lord Stewart of Dirleton) (Con)
My Lords, in order to ensure that terrorist offenders in Scotland serve the appropriate custodial period of sentences for terrorism offences when they are imposed consecutively to other sentences, we introduced several amendments in Committee. Following these changes, we are now making a series of minor, technical amendments to provide further clarification and to ensure that the legislation will operate as intended.
The amendments have a variety of complementary effects but, taken together, they ensure that new Section 1B, which was introduced in Committee, operates effectively within the Scottish jurisdiction. Given the complexity of the amendments, we have continued to consider their effect with the Scottish Government, resulting in these final amendments, which have been agreed by all parties.
Many of the amendments simply insert the relevant terminology into the new clauses and deliver consequential changes to ensure the smooth operation of Section 1B. The overall effect is to ensure that terrorist offenders in Scotland serve the appropriate custodial period when they are serving multiple sentences, including for non-terrorism offences, and that offenders who receive multiple sentences for terrorist offences—and therefore multiple licences—will serve only one, aggregated licence period.
I draw your Lordships’ attention specifically to Amendment 31, which ensures that the sentence calculation provided for in Section 1B will apply retrospectively. This will provide clarity in calculating release dates where sentences for both terrorism and non-terrorism offences are imposed, ensuring the effective application of the Terrorist Offenders (Restriction of Early Release) Act 2020 in all cases.
Should noble Lords wish to see an individual breakdown of these amendments and their effect, I would be happy to place in the Library a letter in terms similar to the one I issued following Committee to explain the purpose of each one. I beg to move.
Lord Paddick (LD) [V]
My Lords, as the noble and learned Lord has explained, most of these amendments are technical in nature. The first group relates to a person who is serving an extended sentence in respect of a terrorist offence.
Amendments 27 to the end of the group amend Schedule 13. As the noble and learned Lord has explained, in Scotland—unlike in the rest of the UK—multiple sentences being served concurrently or consecutively are amalgamated into one sentence with one release date. This is known as “single terming”. Part 7 of Schedule 13 disapplies single terming for individuals where one of the offences is a terrorism offence, to ensure that the provisions of the Bill apply correctly. The noble and learned Lord did not exactly say that, but that is what he meant.
I had two questions for the Minister. The noble and learned Lord has already answered the first—on Amendment 31. The second is about Amendment 43, which makes changes to Section 24 of the International Criminal Court (Scotland Act) 2001. Can the noble and learned Lord give the House some idea of the extent of this change? How many prisoners serving sentences in Scotland have been sentenced by the international court, and what is the effect of these changes on them?
I gratefully acknowledge the support of the noble Lord, Lord Thomas of Gresford, in advising me on these matters.
Lord Falconer of Thoroton (Lab) [V]
My Lords, I am grateful to the noble and learned Lord, Lord Stewart of Dirleton, for explaining these measures. It would probably be helpful for a similar letter to that provided in Committee to be placed in the Library of the House so that we can have a clear view about it.
We do not object to any of these amendments. They have a quite significant effect on a very small number of cases, because the consequence for people convicted of a serious offence and a serious terrorist offence is that they may stay in prison for years longer. But that is the policy decision and the consequence of the Bill, and I accept that.
I am slightly anxious that this has happened so late in the process and that what the Bill contains depends on when the music stops. The Bill was introduced in the Commons in May 2020. Ten months have gone by. There has been this quite massive change of effect on a few cases. Can the noble and learned Lord explain how that has happened? I was struck by the noble Lord, Lord Wolfson, saying to the noble Lord, Lord Carlile, that he was happy to continue discussions on the issues. This is good and nice, but the Bill has a cliff edge. I worry that it is very late in the day to make these sorts of changes but, as I said, we do not object to them.
Lord Stewart of Dirleton (Con)
My Lords, I am grateful to both noble Lords for their contributions to this very short debate. The noble Lord, Lord Paddick, asked about the number of prisoners affected by this in relation to the International Criminal Court. I do not have that information to hand, but I undertake to supply it to the noble Lord.
The noble and learned Lord, Lord Falconer of Thoroton, raised the lateness in the stage of proceedings at which this amendment has been tabled. I acknowledge the complexity of the statutes involved and the alertness of those in my office, the Advocate General’s office, and in the Scottish Government who are monitoring the position. There has been useful and effective collaboration between them. I will look into the matter raised by the noble and learned Lord and see whether I can provide any further detail as to why these points were identified only at this stage. If I can identify anything specific, beyond my general answer relating to the complexity of the relevant provisions, I will provide it to the noble and learned Lord in writing.
Member’s explanatory statement
This amendment excludes sections 1AB, 1A and 1B of the Prisoners and Criminal Proceedings (Scotland) Act 1993 from the scope of new section 26ZA(3) of that Act.
Lord Stewart of Dirleton (Con)
My Lords, the amendments in this group would all require the Secretary of State to commission independent reviews into various aspects of the operation of the Bill and to lay the resulting reports before both Houses of Parliament. I welcome the considerable appetite for scrutiny of these measures and for the accumulation of data—the facts and statistics that the noble Baroness, Lady Jones of Moulsecoomb, sought. I acknowledge the appetite for review, to which the noble Lord, Lord Ponsonby of Shulbrede, referred. However, while I welcome these things, I must respectfully disagree that the amendments are necessary.
First, as acknowledged within the amendment of the noble Lord, Lord Marks of Henley-on-Thames, the Government already have an Independent Reviewer of Terrorism Legislation, Jonathan Hall QC, whose remit covers this Bill. Indeed, he has announced his intention to conduct a review of matters within prisons, which we welcome. The benefit of an independent reviewer is that he will not be constrained by the specifications of government and can decide what is most appropriate for his consideration. We have every confidence that he will continue to provide valuable and independent scrutiny following the Bill’s enactment and through the prisons review that he will be undertaking. I remain of the view that there is no need to appoint another reviewer to focus on just some of the provisions of the Bill.
The amendments indicate some areas of particular concern, which I shall seek to address with greater specification. On Amendment 12, the noble Lord, Lord Marks of Henley-on-Thames, has noted a particular interest in the rehabilitation of terrorist offenders while in custody. As he told your Lordships’ House in relation to an earlier group of amendments, he and others, including the noble Lords, Lord Ponsonby of Shulbrede and Lord Carlile, attended the briefing held by officials in the Joint Extremism Unit. I have heard that at least some noble Lords found that a helpful exercise, and I hope others did as well. I understand from engagement, and from the contributions made from the Floor today, albeit electronically, that there was a healthy discussion and a recognition that there is no simple cure or metric for this matter; indeed, that was acknowledged in a contribution by the noble Lord, Lord Carlile of Berriew, on an earlier group of amendments.
It is very difficult to measure the effectiveness of intervention programmes in changing behaviour for any offenders but especially within such a small cohort. Efforts in our prison system to deradicalise and rehabilitate offenders in custody are ongoing, and techniques are developing constantly. However, while rehabilitation will remain central to the work undertaken with terrorist offenders in custody, that goes hand in hand with risk management.
The noble Lord, Lord Marks of Henley-on-Thames, has again raised the question of the Government’s ability to protect other prisoners from radicalisation within the prison estate, and the use of separation centres to this end. The risk was identified that such persons might otherwise become kingpins, looked up to by other persons in the prison estate. We have a set of specialist operational controls for managing counterterrorism risk in custody, as well as a number of population-management controls available for use across the entire prison estate.
I assure the noble Lord and the House that most extremist prisoners can, and should, be managed in the mainstream prison population with appropriate conditions and controls. That having been said, we take the risk of radicalisation within the prison estate seriously and, where deemed necessary, we have used, and will use, the separation centres available to us to prevent persons spreading malicious ideology to other prisoners.
In bringing to a close my submissions on this amendment, I acknowledge on behalf of the Government the anxious and thoughtful concern expressed by the noble Lord and others, following a very constructive series of engagements.
Amendment 13 would require the Government to commission an independent review and publish a report into the use and operation of polygraph testing in the licence conditions of terrorist offenders. Today and, more importantly, in Committee, we discussed in some detail the matter of polygraph testing. As I am sure noble Lords now understand, it is not intended to be used as a stand-alone measure but as part of a package to provide a further source of information to test offenders’ compliance with their conditions of licence. It is not to be used as something to catch an offender out in breach.
That said, I recognise that the use of polygraph testing as a licence condition is a novel matter for the House, which is why the Government have committed to conducting and publishing a review of polygraph testing on terrorist offenders after a two-year period, which will provide more meaningful results and report on most of the criteria outlined by the terms of the amendment. I hope that that will satisfy the noble Baroness, Lady Hamwee, who dwelt specifically on this material in the course of her submission.
I will make one further point on this amendment. The terms have specified that the review may make recommendations on
“regulations, rules and codes of practice”.
Clear rules governing the use of polygraph examinations in a licence condition will be laid by statutory instrument. We currently anticipate that these will be those already in place for the use of polygraph testing in licence conditions for sex offenders, as set out in the Polygraph Rules 2009, which specify the qualifications expected for polygraph examiners, how a polygraph examination should be recorded and how those examinations will be reviewed.
Our review will of course inform whether these require amendment or tailoring in light of factors presented by the specific cohort, so I assure the noble Lord, Lord Paddick, who moved the amendment, and those noble Lords who spoke on it that our plans for the introduction of polygraph testing already account for this concern.
Amendment 24, in the name of the noble and learned Lord, Lord Falconer of Thoroton, would introduce a new clause requiring the Secretary of State to
“commission a review and publish a report”
into a number of measures, most of which are not directly addressed by provisions in the Bill, in the first year of it coming into force. While I recognise the desire to test for unintended consequences of the Bill, I politely disagree that a review on these terms and within this timeframe would be either necessary or add to what is already under way.
I want to set out briefly why, taking each part in turn. Proposed subsection (1)(a) would require a review into
“the effectiveness of current strategies to deal with lone terrorists”.
There is a great deal of work under way to target the terrorist threat, including that of lone terrorists. I point the noble and learned Lord to the Security Minister’s speech at the Royal United Services Institute in November 2020.
The Government’s response to the recent terrorist attacks has been comprehensive and informed by the Independent Reviewer of Terrorism Legislation’s analysis. The Government will shortly bring forward policing and crime legislation to implement a number of recommendations from Jonathan Hall QC’s independent review of the effectiveness of the Multi Agency Public Protection Arrangements—MAPPA—when it comes to the management of terrorism, matters connected with terrorism and offenders of terrorism concern within the community.
The Government recognise that independent analysis can be useful in terms of challenging existing practices and processes. That is why the noble Lord, Lord Anderson, QC, was asked to oversee the operational improvement reviews following the attacks in 2017. I submit that now is not the time for another review.
As part of the constant, ongoing review and improvement of our counterterrorism systems and processes, the CONTEST unit, based in the Home Office, undertook an internal review of lone-actor terrorism last summer, working with operational partners and departments from across government. The review’s findings are sensitive and will not be published, but they have been shared with Parliament’s Intelligence and Security Committee.
Proposed subsection (1)(b) refers to
“the effectiveness and availability of deradicalisation programmes in prisons”.
As I have said, it is difficult to measure their effectiveness, but the primary intervention, the Healthy Identity Intervention—HII—has been accredited by a panel of experts and is informed by the best available evidence. We have also conducted an evaluation of the HII pilot study to assess implementation and delivery. This is publicly available on GOV.UK, and a short-term outcome evaluation of the HII is under way. Although this has been delayed due to the impact of Covid-19, we are committed to publishing it once it has concluded.
We remain committed to keeping our interventions under review and developing the evidence base, which is what so many of your Lordships who have spoken on this matter have sought. As I have said, we will establish a new counterterrorism assessment and rehabilitation centre, which will not only help us to develop knowledge and evidence but will bolster our capacity to deliver interventions by recruiting more specialist psychologists and trained chaplains.
The Government plan to make an oral Statement that will explain more fully the important work to rehabilitate terrorist offenders in prison, including an overview of the new centre’s strategy and programme of work. I hope that noble Lords will agree that these demonstrate this Government’s commitment to transparency and sharing as much as we can.
On proposed new subsection (1)(c) in the amendment, in relation to the polygraph, as I mentioned earlier in this group, we will be conducting an evaluation of its use after two years. This will add to our evidence of its effectiveness and value, which has already been established through independent evaluation, and I submit that a further review is not needed.
Baroness Hamwee (LD) [V]
My Lords, on that last point, I take it that the post-legislative scrutiny referred to is separate from the review of polygraph testing after three years, to which the Minister referred. On that, while I take his point about parliamentary scrutiny of regulations, codes of practice may not be statutory and therefore not subject to that sort of scrutiny. Might the Minister take back the suggestion that, following the very helpful sessions that the MoJ arranged during the course of the Bill on a number of matters, for which we were very grateful, Ministers might consider communicating with—and possibly even consulting—noble Lords in framing the review in three or so years’ time? I do not expect him to make a commitment now, but I would like to put that idea in his and his colleagues’ heads.
Lord Stewart of Dirleton (Con)
My Lords, I assure the noble Baroness that that suggestion has lodged in my skull and will have been noted by others, and we will come back to it in due course. On her specific question on whether the post-legislative scrutiny of the Bill is distinct from the review of polygraph testing, I am happy to confirm that that is the case.
Lord Marks of Henley-on-Thames (LD) [V]
My Lords, this has been a helpful debate as it has moved forward the process of keeping these new provisions under parliamentary scrutiny. I am very grateful, as I expect all noble Lords are, to the noble and learned Lord, Lord Stewart, for the comprehensive and careful way in which he set out the work of evaluation and research into the evidence concerning the treatment and punishment of terrorist offenders, and the arrangements for them within the prison estate.
The noble Baroness, Lady Jones of Moulsecoomb, expressed the need for constant review. She warned us of the possible dangers of long-term imprisonment and the risk of radicalisation. As well as making a number of points and raising questions about polygraphs, my noble friend Lady Hamwee stressed the distinction between the “talk tough” language of the Government and the more considered, balanced and careful language of officials and Ministers that we hear in private. My noble friend called it “nuanced”. I add that the careful and cautious language she spoke of is also the language of nearly all the professionals in the system to whom we speak, be they in the Prison Service, probation service, inspectorates or elsewhere.
The important point is that longer sentences, while they may be necessary, are neither the only answer nor a complete answer. The “talk tougher” approach, leapt upon with enthusiasm by the press, has struck many of us as having had too little consideration. In his response, the Minister demonstrated that he certainly is determined to take an evidence-based and cautious approach to the issues raised by the Bill, including polygraph testing.
I accept the Minister’s point that the inclusion of these amendments in the Bill is not essential to provide that the work, which he described to us in some detail, is consistently explained to parliamentarians in both Houses. The important point about reviews, which I invite him and others to bear in mind—though not to lodge in their skulls—is that reviews which report to Parliament enable noble Lords here and MPs in the other place to consider and weigh up the evidence as it becomes available.
The Minister was completely right that there is no simple cure, but it is an important part of the role of Parliament to consider the evidence as it develops. The Bill puts before us a set of new and radical measures of particular severity. They need to be kept under constant attention. On the basis that they will get that attention because of work done by the Government and promulgated to Parliament, I beg leave to withdraw my amendment.