Holding the Line Against Tyranny and Anarchy (Constitution Committee Report)

Lord Thomas of Cwmgiedd Excerpts

Thursday 9th July 2026 Lords Chamber

[Lord Thomas of Cwmgiedd (CB)]

As the first person to speak this afternoon who can claim no part whatever in the production of this report, I independently express my view, and the views of many to whom I have spoken, on its excellence and that it needed doing and that what it said needed saying. All those who produced it deserve a great thank you. Having said that, I want to deal with one topic, partly to reinforce the strength of this report in one minute area. I will draw on what I have observed happening elsewhere in Europe, and on how steps have been taken to undermine the rule of law; we must learn from that. The central lesson we learn is that those who seek to undermine the rule of law make the judiciary the prime focus of their plans and actions.

I will give your Lordships three examples. First, you weaken public confidence, primarily through attacking judges through the media, exploiting inefficiency in the courts or delays, and attacking what might seem incautious decisions or incautious extrajudicial statements. The second is undermining the self-governance and unitary structure of the judiciary. The third is appointing compliant candidates to high judicial office and then using disciplinary proceedings and other measures to remove strong judges. These are the means that are used, of which there are readily available examples, particularly in Hungary and Poland, of what has happened in neighbouring countries in the last few years. It has all been done, as the noble Lord, Lord Foulkes, pointed out, subtly, and in some cases with considerable success.

Now, why should we bother to learn from elsewhere? We have our long traditions and our conventions. We have the Constitutional Reform Act; its author, the noble and learned Lord, Lord Falconer, is here. So we say, “Why bother?”, but I think we should. I will look at four matters.

First, the area where we really do need action, and where the report underlines the need for action, is communications. The Judicial Office’s press office was set up by the noble and learned Lord, Lord Woolf, with the help of Sir Hayden Phillips, just as the Act came into existence. But there is a need to keep it up to date. The media has changed beyond all recognition and therefore I strongly endorse what is said at paragraph 123 of the report in the message it sends to government and the judiciary. The Government, it appears from paragraph 36, have got the message. I hope the judiciary will get it too, because it must appreciate that if it does not take responsibility for the way it communicates, someone else will do it for it. It is an important lesson that must be learned.

The second is the effective and timely running of the courts. Resources play an immense part in the way in which you can administer justice. But judges have a responsibility too—a responsibility from which they cannot run away. They need to put right things that are wrong or systems that do not work. Here, the Constitution Committee, maybe not in this report, but generally, has played an important role by holding judges to account for anything that has gone wrong in the courts. That holding to account is extremely beneficial because it enables the judges, in a neutral forum, as Parliament is for them, to point out what the problems are, which so often are a lack of adequate resources. Here is an important role of the Constitution Committee.

The third matter to which I wish to refer is protection against attacks on judges. The report is more than 100% correct—if there is such a concept—at paragraphs 112 to 114 in drawing attention to this. But it is important that restraint is shown by everyone concerned. The judges have to be as careful as media magnates and Cabinet Ministers should be. It is a very important principle. If there are mistakes made, you put things right quickly, as has been done so successfully by the Lady Chief Justice in recent weeks, and people can see that. Those are things where the Constitution Committee sends an important message and has an important role.

I will touch briefly on other areas where I think we should be careful. First, on appointments, the JAC is extremely important, but its role is not properly understood, and the first step of any Minister who wishes to subvert the judiciary is to get control of appointments. We need to make certain that the appointments commission is strong. Secondly, on discipline, by the system that was devised for disciplining judges, we have shielded ourselves from the accusation that people such as Mr Berlusconi could make—that the judges look after themselves. But the operation of the system needs careful monitoring. The third is self-governance of the judiciary. I strongly welcome what is in the Bill, which I hope will be taken forward at least in this respect, to bring together the courts and the tribunals. It is important that the judiciary is unified.

What conclusion should we draw as to the role of the Constitution Committee? I hope it can, over the years, keep an eye on the examples we see elsewhere and on the matters on which we need to keep an eye. It is very important that, when the heads of the judiciary and Ministers come, a health check is made of each of the aspects that safeguard the independence of the judiciary. Perhaps I could persuade the noble Lord, Lord Strathclyde, and his successors to take up this role, because vigilance, as has been said so strongly, is absolutely essential. We need not merely to say it, we need a mechanism, and that mechanism should be the Constitution Committee.

King’s Speech

Lord Thomas of Cwmgiedd Excerpts

Monday 18th May 2026 Lords Chamber

[Lord Thomas of Cwmgiedd (CB)]

My Lords, in the gracious Speech, there are two matters where constitutional principle relating to our justice system requires particular scrutiny, and they also require scrutiny in relation to the strength of our union.

First is lay participation in our Crown Courts. The jury and the magistracy have been an essential part of our constitutional structure for centuries: they date back in statute to the 13th and 14th centuries. They are a hallmark of our system of justice, underpin its worldwide reputation and give the public confidence in the administration of justice. There is nothing I have seen that can possibly be taken as an excuse for dismantling that constitutional principle.

If you read carefully the report of Sir Brian Leveson’s second volume, you will see that the causes of the problem are multifaceted but that each of them is capable of remedy. One of those issues is productivity, with which we are all familiar. The decline in the productivity of the Crown Courts, measured by the time of sitting days over the last 10 years, has been 16%. We are used to remedying this and must do so. I am glad the Government are committed to making more resource available, and I hope I can have confidence in the Minister and the Government in taking these necessary steps, so we do not destroy what underpins our justice system, namely lay participation.

Second is constitutional principles relating to the police and the great reform that is now being undertaken. There are two of particular importance: that the police are operationally independent from local and central government—just as the prosecutor, the justices and the judges must be—and that the police have and must continue to have a discretion as to the way in which they enforce the law. I hope very much that the Bill will underpin those two principles, just as principles are underpinned in the Constitutional Reform Act 2005 in respect of the judiciary. I also hope that, when we look at police reform, we will look with particular care at the way in which the police have been governed over the past century or two and learn from the mistakes that have been made.

As to Wales and the strength of our union, I hope the Government will now see what, on occasion, I have raised in this House: the need for the devolution of justice to Wales. Wales is a small country, it has effective and efficient courts, and it certainly had them before this Parliament abolished them in 1830. Secondly, I have no doubt that, if policing is to be properly reformed in Wales, it must be tied very closely to the way in which the rest of the government of Wales is conducted.

Victims and Courts Bill

Lord Thomas of Cwmgiedd Excerpts

Consideration of Commons amendments and / or reasons
Wednesday 15th April 2026 Lords Chamber

Motion E would mitigate the injustice of an unduly strict 28-day time limit on seeking such a referral. As the Minister said, the Motion would enable an extension of time where the interests of justice so require, while the six-month long stop would respect offenders’ right to finality in knowing the sentence that they are to serve. I am very grateful to the Minister for her acceptance of our suggestion that six months should be the time limit, and the gracious way in which she dealt with that today. These amendments will make the unduly lenient sentence scheme a much more effective and just protection for victims and their families than the scheme as it has operated to date. We are very grateful for what the Government have done to ensure that happens.

[Lord Thomas of Cwmgiedd (CB)]

My Lords, on the Motion that has been proposed as regards private prosecutions, it is very urgent that this is brought into effect as soon as possible. If the proposal goes ahead for an extensive consultation of the kind envisaged, together with impact assessments and responses, I fear this would be a regrettable move, given the tremendous impact on the criminal justice system of the loss of funds.

[The Deputy Speaker (Baroness McIntosh of Hudnall) (Lab)]

My Lords, I now call the noble Baroness, Lady Brinton, to make a virtual contribution.

Victims and Courts Bill

Lord Thomas of Cwmgiedd Excerpts

Report stage
Tuesday 10th March 2026 Lords Chamber

[Lord Russell of Liverpool (CB)]

My Lords, I will comment briefly on Amendment 29. During the passage of the Sentencing Act, we discussed the concern about early release schemes for those categories of offenders in some detail. As a result, about two weeks ago, the Minister, the noble Lord, Lord Timpson, kindly had a meeting after the passage of the Act. The Domestic Abuse Commissioner, the Victims’ Commissioner and the noble Baroness, Lady May of Maidenhead, were there to talk to the Minister about our concerns.

The outcome of that—had I thought of it, I would have spoken to the noble and learned Lord, Lord Keen, to inform him—is agreement by the MoJ to form a working party with the offices of both the commissioners and their teams to review the scheme and the training of the Probation Service and start using some of the expertise of the third sector and its knowledge of the perpetrators and experience of the victims. That will be fed into the training of the Probation Service. There is a very positive move going on within the MoJ which I hope and think will directly address the concerns the noble and learned Lord mentioned when he was speaking to Amendment 29.

[Lord Thomas of Cwmgiedd (CB)]

My Lords, I have a brief observation about Clause 12. The costs of private prosecution mean that money disappears from the overall Treasury contribution to the justice system. I think we should pause long and hard before we remove the power of the Government to control those costs. My own experience is that the costs of private prosecutions can, in many cases, be excessive. They are not subject to the rigorous discipline of CPS costs. If we deny the Government the power to regulate, we will come to regret it.

Public Office (Accountability) Bill: Exclusion

Lord Thomas of Cwmgiedd Excerpts

Thursday 26th February 2026 Lords Chamber

[Lord Thomas of Cwmgiedd (CB)]

I too welcome the obtaining of this debate by the noble Baroness, Lady Jones, and want to return, as we often should, to the actual Question in the debate. We shall have plenty of time to look at the Bill when it gets here. We are not on the Bill but on this very narrow point. Narrow though it is, it is important. Although what the Government have proposed—excluding MPs and Peers—is probably right, because it is the Government and the Executive who are dealt with in the scope of the Bill, it is worth while considering the implications of this. We can take two things by way of some help in examining the question, because the acuteness of this issue will arise primarily when we get close to an election or when political tensions are high.

It is quite interesting to see what we did in the Representation of the People Act, or to go back to what was originally enacted in 1895, in distinguishing between untruths in relation to people’s personal characteristics and untruths in relation to all other matters. Looking at the debates in 1895, it seems remarkable to me that that distinction, which was carefully made, has stood us in good stead, because we addressed a particular problem in elections.

When you look at the debates, you can see what was worrying politicians in 1895. One was worried about the fact that, during an election, he had been on a Bench of magistrates and was said to have sent a man to prison for a month, with hard labour, for stealing three pennorth of oats; he had dissented from the decision of the others. Another was accused of his yacht being used to poach salmon with a net on a Sunday in Scotland. It was a concern that untruths were being told about people’s personal characteristics, for which there was no effective remedy because you could not bring an action for slander during an election. Therefore, in 1895 it was decided that one ought to focus on what the problem was, what the remedy was and whether it should be enacted. It was enacted then and has been re-enacted successively, as recently as the 1983 legislation.

Why has it been restricted in this way? Looking at the case law that has elucidated these provisions, it seems that Parliament then thought—it is, to my mind, a very tenable position—that whereas it is wrong to be allowed to tell lies about someone’s personal characteristics, because it is very difficult to disprove those, do you leave the good sense of lying about politics to the public? That has served us well for over 130 years, but the question is: should we continue that distinction?

It is useful to look at a second matter, which is the proceedings in Senedd Cymru where, in relation to elections in Wales, it is proposed that there be an offence, similar to what is envisaged in the Bill, applicable during elections: namely, telling untruths of any fact or matter completely. The report of the examination by the Senedd committee is useful reading because it had evidence from the Electoral Commission, the Bar in Wales, Transparency International, Professor Horder and others, in relation to the problems that you create by having a wide-ranging offence of this kind.

The way forward, it seems to me, is to look at what the problem is in this House and in the other place. Is there a remedy that should be brought, and in what circumstances? The one thing that would be very undesirable is to create a huge amount of potential for people to complain to the police, saying “X or Y is lying about this” and seeking to engage in political prosecutions of that kind. That is a real worry.

However, I go this far in supporting the noble Baroness, Lady Jones: we simply ought to look at the difficulties and see what the problem is—but it is a difficult problem on which there is an awful lot of experience, and we need a proper examination. On what I have read so far, I regret to say that I agree with leaving their Lordships—I should say “your Lordships”, including myself—and others out of the scope of this Bill, because there is a logic to confining the provision to the Executive and not opening the door to lengthy and politically inspired prosecutions. However, it is a question that should be examined, and that is why I am so grateful to the noble Baroness, Lady Jones, for raising this very difficult point.

Victims and Courts Bill

Lord Thomas of Cwmgiedd Excerpts

Committee stage
Wednesday 11th February 2026 Lords Chamber

[Lord Sandhurst (Con)]

My Lords, I oppose the Question that Clause 11 stand part of the Bill. This clause seeks to extend the right to prosecute to those with different qualifications from solicitors or barristers.

As my noble friend Lord Gove highlighted at Second Reading, the Crown Prosecution Service faces constraints in whom it can employ, and the criminal Bar is facing a retention crisis. Last year, a national survey by the Criminal Bar Association found that one in three criminal barristers intends to quit. It is obviously crucial that we have enough Crown prosecutors for cases, and we fully appreciate on this side the challenge that the Government face. However, I do not believe that this clause is an appropriate solution. Rather than carefully addressing the causes of those pressures and looking for proper solutions, this clause simply moves the goalposts. It redefines who is qualified to undertake what is highly serious work. That is not good enough.

While it has been argued that allowing CILEX members to prosecute will help to increase diversity, this argument should not be used as a smokescreen for what could potentially dilute standards. I dare say that is not what those truly calling for diversity want either, on their part. Genuine diversity in the legal profession is not achieved by lowering thresholds or by altering qualifications to fill gaps. It is achieved by facilitating pathways and by supporting structures within the profession, so that people from all backgrounds can succeed on an equal footing. To suggest otherwise risks turning diversity into a box-ticking exercise. It does not demonstrate an authentic commitment to broadening access to the profession.

We cannot risk lowering the quality of prosecution. This would not be fair on the defendant, and certainly not on the victim, and it is definitely not in the long- term public interest. Victims and defendants rely on the competence of the prosecutor. A victim must have confidence that their case is being handled by someone who is suitably qualified. Those who prosecute murders today will some years ago have prosecuted in the magistrates’ courts; they start at the lower level and they move up, gaining their experience moving from level to level as proportionate to their skills.

A defendant whose liberty may be at stake is entitled to proper assurance. These are not minor concerns; they go to the heart of our justice system. More widely, any weakening of our standards risks undermining public confidence in the justice system as a whole and weakening the supply, I suggest, of future prosecutors of serious crime. Can the Minister please explain what assessments were undertaken previously of the impact of this proposed change?

If we are to expand the pool of prosecutors, we must be absolutely sure that this shift is backed by sufficient evidence of good quality, and that any necessary safeguards are in place to ensure that standards will not drift or diverge over time. The Committee deserves clear evidence that this reform will enhance, and not diminish, the quality of prosecutions. We have not been shown that evidence. Without it, this clause risks creating more problems than it solves. I urge the Minister please to reflect carefully on these concerns and to ensure that any change to the thresholds is supported by robust, transparent evidence and proper safeguards. I beg to move.

[Lord Thomas of Cwmgiedd (CB)]

My Lords, I will make one or two brief observations about this, if I may. First, I must declare an interest, in that about 10 years ago I was made an honorary vice-president of CILEX. In case it is thought that I am speaking with the interests of CILEX in mind, I wanted to make that absolutely clear.

My first observation is this: the transformation of the way in which the legal profession operates and its financial position has been enormous over the last 20 or so years. Sometimes, I think we forget the huge difference there is in remuneration for those who practise in areas such as commercial and administrative law and those who practise in the criminal sphere. This is having a very serious effect on the ability.

How that problem is solved is a matter for Her Majesty’s Government, not for me, but it seems to me that, in looking at what the state can afford, it is necessary to look at the way in which an organisation such as CILEX has transformed itself, the qualifications that are given and the reality of many cases. As a judge, one sometimes feels that the best experience for being a good prosecutor is having done a lot of prosecutions, not necessarily where they had a first-class degree from a great university or whether she had done extremely well in the solicitor’s or Bar finals; experience is important.

--- Later in debate ---

We must also reflect on the fact that once the power is conferred, it would not be limited to the present Government. It would sit on the statute book, available for future Ministers to exercise in future fiscal or political circumstances, and without further primary legislation. Parliament should be cautious about granting wide executive powers that alter long-established constitutional arrangements, particularly where the case for change has not been made—we await the review —and the potential consequences for access to justice are so grave. For those reasons, we do not believe that Clause 12 should stand part of the Bill.

[Lord Thomas of Cwmgiedd (CB)]

My Lords, the issue of costs in private prosecutions is an extraordinarily serious one. The noble Lord, Lord Sandhurst, has spoken of the position of charities, the RSPCA being one example. One can well understand the position of a charity conducting a prosecution through a small solicitor where costs are modest. On the other hand, one must recall that for good reasons of public interest, there are private prosecutions by large corporations to protect intellectual property. The consequence of the change in the market for solicitors and barristers has produced a problem, because what the CPS pays prosecutors to prosecute is completely out of line with what a large, industrial conglomerate that wants to enforce its intellectual property rights can pay. This is a problem that has to be grappled with.

One of the reasons why the CPS cannot prosecute more than it does is the Government’s constraint; both the last Government and this one are responsible for that. There is not enough money in the system to enable the CPS to prosecute where it should be doing so. More than 10 years ago, the change in the market and the constraint on the finances of the CPS, arising out of the 2008 financial crisis, began to manifest themselves in the contrast between what happened in private prosecutions by large conglomerates, or associations of those interested to protect their economic position, and in the CPS. The courts have tried to do something about it through a number of cases, but it is an extraordinarily difficult area.

For example, in a commercial case—many of these cases go to solicitors—there did not used to be the idea that you would have to get a tender before you prosecuted, but the courts now require it. The courts have made a number of very important changes to try to bring this cost under control, because, although it cannot be shown that if you pay a large sum—several hundred thousand pounds—to defer the costs of a private prosecution it will directly come out of any bit of the overall justice budget, anyone who has had to deal with the Treasury knows that that is the case. The Treasury looks at a pot for justice and, if you take large sums out of it by paying for private prosecutions, the other part of the justice system suffers.

This is a matter that has to be grappled with, and the right people to grapple with it are the Government. It is not a very good position for judges to be in to be making these very difficult decisions because of the gross inequality between what you pay private lawyers, which many may think is far too much but that is not for me to judge, and what you pay the Crown Prosecution Service, which may not be enough—again, that is not for me to judge. The problem of what I might call public penury and private affluence is absolutely illustrated by the problem of paying for private prosecutions. It is for the Government to grapple with, and setting rates is one of the ways to do it. I think it is probably the right way, but all I am saying is we that cannot run away from this problem that has arisen because of changes in the market and the constraints on public expenditure.

[Baroness Hamwee (LD)]

My Lords, the noble and learned Lord has inevitably given us a very brief tour d’horizon of the problems of the costs and charges of the legal profession getting out of hand. Looking at the Bill over the weekend, I had to turn up the 1985 Act and write into it the changes that would be made by the Bill. It seems that the one to focus on is making the provisions subject to regulations, which boils down to the Lord Chancellor setting rates—at least that is how I read it. It is not much of a stretch to think that those are going to be linked to legal aid rates, and one can see the problem.

The noble Lord, Lord Sandhurst, who explained some of the problems very clearly, mentioned consultation and rather dismissed it as being helpful, but it is important that the Committee should know what is planned by way of consultation. I hope the Minister can help us on that, because so much turns on its outcome.

--- Later in debate ---

I ask the Minister: what has been the outcome of all this sympathy, all these reviews and all this time? Ultimately, I agree with other noble Lords that this has to be the Bill: this has to be the moment, because it is about not only the grave injustices we have already seen, but those coming up the pipe.

[Lord Thomas of Cwmgiedd (CB)]

My Lords, I support the principle behind Amendment 61. The real question is: how quickly can this be done?

I want to give an illustration of a problem that has arisen in civil courts across the world: the ability of artificial intelligence to hallucinate—to create cases and precedents for lawyers to use that do not exist. All civil courts across the world, including those in this country, have realised that this is an immense problem. It is being dealt with by practice direction—in some cases, very quickly indeed—because it is corrosive to the proper conduct of litigation, and it seems to me that there is no reason why, when this comes back on Report, it cannot be dealt with. It is not a difficult problem, and if it has been around for two years, that is 18 months too long.

The other point I want to address, in a slightly different manner, is Amendment 62. This is a much more difficult problem and has arisen because of the way in which drill music, and similar music, has been used in the prosecution of cases. The admissibility of such evidence is quite complicated.

What is very worrying—as can be seen by the attendance here today of one of the counsels involved in these cases—is that the way in which this evidence has been used in some cases has caused a lot of deep misunderstanding and suspicion about the way our criminal justice system operates for certain minorities. The thought that you will be found guilty because of the music you listen to is deeply troubling.

However, it seems to me that what we need to do first is look at the cases where this has been used. I looked at the case of the Manchester 10 and, coincidentally, in that case, the evidence had been admitted by agreement, and the Court of Appeal upheld the way in which it had been used for certain purposes.

It seems to me that this is a more complicated problem, and it would be helpful if the Minister was able, between now and Report, to put before the House a short letter explaining what the problem is. I think it would be easier to look at the amendment in the light of a better understanding. The last thing I want to do is to bore the Committee by explaining the ways in which evidence can and cannot be used legitimately. It is much better that members of the Committee have the benefit of reading that on a piece of paper.

[Baroness Brinton (LD)]

My Lords, I have two brief points on Amendment 61, and I thank the noble Baroness, Lady Chakrabarti, for tabling it. It is really wrong that computers or systems have ever been deemed to be reliable, let alone infallible. My husband is a research and design engineer who has worked in Cambridge Science Park for well over 40 years. He and his friends have a phrase that they use among themselves and about themselves: “Garbage in, garbage out”. When we started hearing about the Post Office Horizon scandal and Fujitsu, the first thing he said to me was, “Garbage in, garbage out”. The problem we have is that too many people, the courts and the court of public opinion believe that computer systems are infallible.

I also want to touch very briefly on AI because we are seeing cases in the courts now. Facial recognition cases are coming up. Big Brother Watch reported on one last June. I notice that not quite weekly, but quite frequently, an individual is arrested as they go into a store and are accused of taking something very small and then evidence is produced of them on a facial recognition watch list. It then transpires some time later that they are not that individual. One particular firm’s name keeps coming up—I will not go into that —but the reaction of the shop is exactly that: it is infallible. I support the amendment, and I urge the Minister and the Government not to pause on this at all. It is needed, not just for the legacy of Post Office Horizon, but for cases in our courts right now.

--- Later in debate ---

[Baroness Levitt (Lab)]

I do not accept that. My noble friend should think carefully about making accusations such as that.

The point is that we are looking at the evidence that we have received in order to evaluate it to ensure that we make evidence-based and informed changes. The Government are considering this matter carefully. I am not announcing another review or another consultation; I am simply saying that we are looking at the evidence that we have.

I hope that my noble friend Lady Chakrabarti will hear the words that I am using. She knows that I understand the problem and that I am not unsympathetic, but we need to find a way that does not create a lot of unintended consequences.

[Lord Thomas of Cwmgiedd (CB)]

My Lords—

[Baroness Kidron (CB)]

My Lords—

[Baroness Kidron (CB)]

I would never compete with the noble and learned Lord.

[Lord Thomas of Cwmgiedd (CB)]

The Government have had nine months. Normally, if you went to a competent lawyer and said, “This is the evidence. We need a solution”, you would be horrified if you had to wait nine months. Why is there not an answer? Can we have one when this comes back on Report? There is no excuse for delay.

[Baroness Kidron (CB)]

My Lords—

Victims and Courts Bill

Lord Thomas of Cwmgiedd Excerpts

Committee stage
Monday 9th February 2026 Lords Chamber

[Lord Keen of Elie (Con)]

My Lords, Amendment 39 in my name would require the Secretary of State to issue revised guidance on victim personal statements, clarifying what victims may include and ensuring that the courts appropriately disregard prejudicial material.

Victim personal statements are a valuable and important part of our criminal justice process. They allow victims to articulate in their own words the impact that a crime has had on them and on their families. This personal element is often deeply cathartic and can provide a sense of agency in a system that victims have described as otherwise procedural and somewhat distant. However, as this Bill was scrutinised in the other place, it became clear that many victims and practitioners find the current approach to personal statements unclear and, in some cases, unnecessarily restrictive.

Members spoke of victims feeling that they were sometimes advised to omit heartfelt and deeply personal material from their statements. These omissions were not for any legal reason, but appeared to be due to an overly cautious interpretation of the guidance. There is also a concern that victims do not always understand what is and is not permissible, and that this lack of clarity can undermine their confidence in the entire process.

One recurring theme from previous debates is that victims should not be left uncertain about what they can and cannot say, nor should they feel that their legitimate expressions of harm are being suppressed for procedural reasons. At the same time, the amendment acknowledges the equally important principle that personal statements must not be vehicles for

“allegations of untried criminal conduct”,

or material that is contrary to

“statutory limitations on free speech”

or due process. It is designed precisely to strike the appropriate balance. It would not remove any existing safeguards. It simply asks the Secretary of State to revisit and clarify the guidance governing the content of personal statements in a way that gives victims clarity and a genuine sense of voice.

The amendment would require revised guidance to be issued within six months of the Bill passing. The revised guidance must stipulate that, when making a victim personal statement, the victim should be able to say

“anything they wish about the defendant”,

so long as it does not go beyond lawful free speech, make untested allegations of new criminal conduct, or contain “disorderly language”. These are sensible and well-established legal boundaries.

The amendment also states that the court must disregard any

“prejudicial comments made during a victim personal statement”.

In practice, this would simply enshrine what is already understood by judges: that victims may express themselves freely, while judges continue to confine themselves to factors that are legally relevant and admissible. Placing this in the Bill would reassure victims that greater freedom of expression in their statements will not be misconstrued as diminishing the fairness of proceedings, or indeed as providing a basis for an appeal. This would not mean that victims would be able to litigate matters that fall outside the scope of the case before the court, nor would it mean that victim personal statements would supplant other evidence or judicial reasoning. It would mean that victims would know where they stand, and that they would not be discouraged from expressing the full impact of their experience simply because the existing guidance is interpreted excessively cautiously.

The importance of clarity in this area cannot be overstated. Victims and their families often report that they do not know what is expected of them when making a personal statement, or that they are told they must temper their comments in ways that feel artificial or perhaps insensitive. That undermines public confidence in the system and risks denying victims a meaningful voice at a critical moment in the justice process. This amendment offers a proportionate way forward. It respects judicial integrity and would preserve the lawful limits on personal statements. At the same time, it would provide victims with the clarity and the dignity that they deserve. It would ensure that they can say what they need to say without fear that well-meaning but over cautious guidance may curtail their voice.

I present the amendment in a constructive spirit. I look forward to the Minister outlining how the Government believe that the current guidance is operating—whether it achieves its objectives, and whether there is an appetite for revision that reflects victims’ legitimate expectations—and speaking to the points raised by Members on both sides of the House and in the other place. I beg to move.

[Lord Thomas of Cwmgiedd (CB)]

My brief observations draw on my experience of what happened about 20 years ago when the statements were being developed. For more serious cases, such as murder and manslaughter, there was an attempt to give the victim’s family an advocate. It had transpired that drafting these statements was not easy, and so this was trialled for a few years. It proved to be an extremely expensive way forward, and the scheme came to an end with the financial crisis of 2008.

That left us with the problem, in all these cases, of how you formulate what was then called a victim impact statement and is now called a personal statement? They are extraordinarily difficult to formulate. Those with experience of civil cases will know that, if you ask a witness to produce something in his own words, or you ask the claimant in a case to do the same, you get something you could never put before the court, because it would never really convey what had to be put forward. Therefore, the way in which progress was made was along the cautious lines of developing guidance. I think such guidance always needs to be kept under review. You need consultation with the Crown Court judges, who see this all the time. Clarity in the guidance is essential, but I greatly caution against allowing a victim to do more than explain to the court the way in which the crime has affected the victim, his family and the community. Going beyond that seems to raise all sorts of problems, and the last thing one wants to do is to revictimise a victim by saying, “You shouldn’t say that in court”. Clarity is essential, but I say, with respect to the noble and learned Lord, that his formulation goes too wide of the mark.

[Baroness Brinton (LD)]

My Lords, I shall add a couple of very brief points. First, from my own experience, also nearly 20 years ago now when I was a victim of stalking, as were some of my colleagues, I found that the police encouraged me to make a victim statement, but we were advised quite specifically to talk not about what the stalker had done but solely about the effect on us of what he had done: in other words, to completely avoid making any comment about him or his actions. That was quite difficult. I was advised very heavily not to get involved and show how emotional many of us were as a result of his actions, and I chose not to do that at all.

However, I talked last week to Glenn Youens, the father of a four year-old who was killed. He and his family were asked if they wanted to do a victim impact statement, and the police advised them not to use certain language because the court had advised them not to. They were told that bluntness might upset the perpetrator, they could not call him a child killer; they were not allowed any props in court, such as their daughter’s teddy bear; and the CPS advised them not to appeal the unduly lenient sentence, because it might actually make the Attorney-General get less for him in the long run. So, this particular family’s experience of making a statement was the exact opposite of what it was intended to be. While I have some sympathy with some elements of the amendment from the noble and learned Lord, Lord Keen, I think I am more with the noble and learned Lord, Lord Thomas, on the grounds that we would have to design it so carefully to make sure that a victim is doing it willingly and that they are able to say what they want without jeopardising the court process. I am afraid that that would also mean very strict guidance on the officials helping them not to do so in a way that prevents victims speaking in their own voice.

Victims and Courts Bill

Lord Thomas of Cwmgiedd Excerpts

Committee stage
Monday 9th February 2026 Lords Chamber

[Lord Keen of Elie (Con)]

My Lords, this group of amendments in my name relates to Clauses 1 and 2. I start by observing that we on these Benches are broadly supportive of most of the provisions in the Bill. Many of the amendments tabled in my name, save one or two exceptions, have the aim of strengthening the Bill’s existing provisions rather than removing them. The use of reasonable force to compel attendance at sentencing hearings was a measure first proposed by the previous Conservative Government in the Criminal Justice Bill, which fell at the Dissolution of Parliament. It is, therefore, a policy that we on these Benches strongly support.

As the Government have consistently said, victims and their families deserve to see justice done. They deserve to hear directly those remarks which explain the court’s reasons for the sentences that are being imposed, and they deserve the chance to face their offenders and have their own voices heard in open court. In that spirit, many of the amendments in my name probe details of Clauses 1 and 2, and question how they would operate in practice. These clauses set out the statutory powers for judges to order an offender to attend court for their sentencing hearing, by reasonable force if necessary. As we have heard previously, offenders who refuse to attend their sentencing hearing thereby insult their victims. Offenders should not be able to undermine the final moment of justice in such a way. The amendments in this group ask the important question of why the Government are not taking this opportunity to expand the applicability of Clauses 1 and 2, given their upcoming and substantial court reforms.

I understand that the application only to the Crown Court in these clauses is the same as the approach taken in our Criminal Justice Bill, but I point out a crucial difference between the positions of the last Government and this Government. When this clause was originally proposed, there were no plans to alter the sentencing powers of the magistrates’ courts. However, this Government are now proposing to increase magistrates’ sentencing powers to three years, thereby shifting a large number of cases away from the Crown Court towards magistrates. As such, magistrates will hear a much greater proportion of increasingly serious cases, which surely throws into question the application and scope of Clauses 1 and 2.

In fact, this is a different contextual background from not only that of the previous Government but that of this Government. The Bill was introduced in the other place before the Government announced their court reforms. So, as published, Clauses 1 and 2 would have permitted the compulsory attendance of an offender for sentences between one year and three years. Now, however, if the Bill is unamended, and the Government’s court reforms go ahead, a person convicted in a magistrates’ court for an offence that would have previously been heard only before a Crown Court will not be required to attend their sentencing hearing.

If it was previously the Government’s view that offenders facing between one and three years’ imprisonment should be subject to compulsory attendance at their sentencing hearing, why have they not made the necessary amendments to the Bill? Perhaps that is because they have changed their mind, in which case the Minister should be clear about that. If it is the Government’s position that the scope of offenders who should be compelled to attend their sentencing hearing should remain the same as when the Bill was introduced, they must surely accept these amendments. The question that then arises is: why stop at the Crown Court, when extending these powers to other courts could make a meaningful and positive difference to the victims of other crimes?

We should not dismiss the experience of victims of, for example, burglary. Requiring an offender to attend their sentencing hearing may give those victims just as much closure. Conversely, an offender refusing to attend could cause just as much insult, if this series of amendments is not accepted. If anything, by reserving these powers for the Crown Court only, we risk playing down the significance of other crimes by signalling that offenders do not have to face their victims. Extending these powers to other courts would not only provide greater consistency but show that no crime is more permissible than another, or that one victim’s experience is not more or less important than another’s. If the rationale is one of practicality or resource, the Government should make that case. If, however, there is no compelling reason, whether it be legal, procedural or financial, the Bill presents an ideal opportunity to address a gap, rather than requiring further primary legislation later on down the line after court reform has been implemented.

If the Government’s intention is to strengthen victims’ confidence in the criminal justice system, surely consistency must be at the heart of that ambition. Victims do not experience crime through the lens of jurisdictional boundaries. They experience the indignity of being wronged and they rightly expect the justice system to deal with offenders in a manner that recognises that harm each time, regardless of which court is sentencing. It is for these reasons that I believe the Government should revisit the decision to confine these powers solely to the Crown Court; otherwise, the Bill risks creating a two-tier system, where the victims of some crimes are afforded the closure of seeing justice done in person, while others are denied it for reasons that are administrative rather than principled.

I would be grateful if the Minister could also clarify what consideration has been given to victims’ expectations and their confidence in the justice process when limiting these powers to the Crown Court. I hope that the Minister will reflect on these points and consider whether there is scope for a more ambitious and comprehensive approach. I look forward to her response and to working to strengthen this legislation for the benefit of all victims. I beg to move.

[Lord Thomas of Cwmgiedd (CB)]

My Lords, I will make a brief observation about the amendment. The exercise of this power by a judge is never going to be easy, and we should be very cautious about the way this is introduced. Let us first see how it works with people who have the experience of handling what, in the circumstances, will be a very difficult position before we move on to doing it in all courts. This power must be confined to those cases where it is really necessary, because I think that a number of us who have had experience of this would be very worried indeed if this power came to be routinely deployed.

--- Later in debate ---

[Lord Sandhurst (Con)]

My Lords, the amendments in this group, in my name and that of my noble and learned friend Lord Keen, seek to ensure that the Bill lives up to its purpose in the name of victims.

Clauses 1 and 2 set out how offenders can in future be compelled to attend their sentencing hearing. But, as currently drafted, they contain no mechanism to involve the victims directly in the process. This is contrary to the Bill’s purpose to make provision for an enhanced experience for victims within the criminal justice system. Indeed, it is unclear in what situation a judge would be minded to make such an order without the request of the prosecution and what the criteria for such a decision would be in that instance.

If, in the absence of a request by the prosecution, the court’s power to compel attendance is not automatic, I look to the Minister to say why that is the case. Further, I ask her to clarify whether published guidance will be provided to judges as to what factors should be considered when making an order, beyond the practical considerations of officer safety.

The amendments which we advance, on the other hand, would overcome some of our concerns. They would enable the victims to have a say and to request that the offender be ordered to attend. As the Minister set out at Second Reading, the reasoning behind this Bill’s provisions is to compel attendance in the first place and to provide an opportunity for victims to look the defendant in the eye and explain exactly how a crime has affected them. The sentencing remarks are often their last opportunity for this. Why, then, should victims not be given a say whereby they can expressly request that an offender is ordered to attend? This would both give the victim a greater voice and give the judge greater clarity on how to proceed.

The second two amendments in this group, Amendments 4 and 9, would also require the courts to consult the victims if the judge is minded not to make an order compelling an offender to attend sentencing. If a victim is deceased or incapacitated mentally or physically, our amendments would allow family members or another appropriate representative to be consulted in their place. Justice should not stop when the victim cannot speak for themselves. This would put victims at the centre of the process. It would ensure that such decisions are taken not behind closed doors but in consultation with those victims whom these decisions affect.

We cannot treat these issues as merely procedural. For a victim, a sentencing hearing can be a profoundly significant moment, and it is an opportunity for closure. I am sure that the last thing noble Lords would want is for a victim to feel disconnected, sidelined or unheard by the courts in the run-up to a hearing. This amendment would also give judges a chance to explain and justify their decisions. If the offender will not be in attendance or the judge will not exercise their powers to compel attendance, victims or their representatives deserve an explanation of why that is the case. This should happen both where a victim has made a request for an offender to be ordered to attend and where they have not. We do not consider this to be a heavy burden on the courts. It should instead be considered best practice. These steps would ensure that the judge’s decision-making process is consistently transparent. It would make our system more accessible and demonstrate to victims that they are a priority, not an afterthought, particularly at the point of sentencing.

This Bill was presented to Parliament as an opportunity to address these very concerns. Our amendments would fill real gaps in drafting. I am sure the Minister will want to reflect carefully on them. I look forward to hearing the contributions of other noble Lords to this debate. I beg to move.

[Lord Thomas of Cwmgiedd (CB)]

My Lords, I shall make two observations. The first relates to the remark made by the noble Lord, Lord Sandhurst, in relation to how judges will exercise these powers and whether guidance will be given. No doubt the Lady Chief Justice will consider whether to give guidance, or such guidance might be given by practice direction or be the subject of discussion at the Judicial College, but the handling of this is entirely for the judiciary. It is difficult enough, and it certainly would not be in any way appropriate for the Ministry of Justice to give guidance. It seems to me that the exercise of this judicial power must be for the judicial branch of the state and it alone—unless, of course, Parliament in its infinite wisdom decides that it wants to set down the criteria. I strongly urge Members not to do that.

The second relates to a more practical point, and that is the ability of the victim to intervene in the decision and to be able to make a request. It is sometimes forgotten that a transformation occurred during the 2000s and the next decade in the way in which the Crown Prosecution Service dealt with victims. There was a time when the victim was regarded as peripheral to the way in which the courts operated and to matters that had to be taken into account. That position changed remarkably and for the better. I think it is appreciated that the judicial power to have someone brought into court has to be exercised with the greatest degree of thought. If the Crown Prosecution Service were to request this to happen, I would be astounded if it had not consulted the victim. In my experience, that is what often happens in these difficult circumstances. There is a discussion as to the best way of proceeding and it is very important that this is approached in that sort of way.

If the victim was to be allowed to make the request directly, this raises the question as to how. Is this to be done in open court with the discussion of the various issues? Is it not best left to the wisdom of the Crown prosecutor and the judge’s ability to ask questions as to the victim’s views? It seems to me this is a much more efficacious way of dealing with the matter rather than bringing the victim in personally—because there is no suggestion of a victim’s advocate for this—to what will be, if this power is to be exercised, an occasion of great difficulty. The last thing anyone wants to happen is to provide secondary victimisation by an awful scene in court. I urge the Government to exercise very considerable caution in considering this amendment.

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

My Lords, once again I am extremely grateful to the noble and learned Lord, Lord Thomas, for his note of caution about Amendment 3—and Amendment 8 in the case of service personnel—which would allow victims to request that an order be made. I completely agree with him that it is a matter for the judiciary to exercise its discretion as to whether orders are made. I am not entirely sure that the noble Lord, Lord Sandhurst, took into account quite how difficult it is going to be to make these orders. I suggest that the caution of the noble and learned Lord, Lord Thomas, about bringing the victim in as effectively a party to such an application is a point well made. But I accept that it is right that the victim’s voice should be heard. I also agree with the noble and learned Lord, Lord Thomas, that the victim’s voice in court now is heard in a way that it certainly was not decades and even years ago. But a formal position whereby the victim was entitled to make a request is probably undesirable, though it is quite clear that the victim’s voice should be heard and that guidance to and from the judiciary should reflect that.

Amendments 4 and 9 are effectively seeking a very serious conflict:

“If the court is minded not to make an order under subsection (2), the court has a duty to consult the victim, or, where the victim is deceased or is unable to be consulted … a family member or other appropriate representative”.


That would put the victim in a wholly invidious position of effectively making the victim compulsorily a party to the application for an order. That is likely to stoke up hostility between the victim and the offender, which we are trying to avoid or at least reduce, and even possibly between the victim and the court, which would be a thoroughly undesirable position. Far better, I suggest, to leave it to the judge to decide how the victim’s views should be sought and taken into account, without imposing any duty on the court to consult the victim at any stage. It would be much better for the Bill to remain silent on how the victim’s views should be sought, but the expectation will be that they will be sought, and I have no doubt that that is how the judiciary would approach this exercise.

--- Later in debate ---

[Lord Hacking (Lab)]

As my noble friend will recall, I raised this issue at Second Reading. I support Amendment 14, in the names of the noble and learned Lord, Lord Keen, and the noble Lord, Lord Sandhurst, and Amendment 15, in the name of my learned friend, if I may refer to him in those terms, the noble Lord, Lord Meston. I add that I have sympathy towards the drafting of Amendment 13, tabled by the noble Baroness, Lady Brinton.

As I say quite frequently in this House—the issue of sexual offending arose in the passage of the Children’s Wellbeing and Schools Bill, and I said it then and I repeat it now—sexual offences in the family environment are appalling. The offence of a father—it is often the father, rather than the mother—sexually attacking, which I think is the right word, his own son or daughter, who are as young as 14 years-old, is absolutely appalling. It is beyond most of our comprehension that any father would do that—it is certainly beyond my comprehension.

The important thing here is the value of the prohibited steps order made in the family court, because that can be carefully fashioned to the particular needs of a family. Therefore, it is welcome that the family court has this provision. The use of this prohibited steps order is most valuable for the protection of children and spouses in the family.

I am a little puzzled by the provision in Clause 3, and I ask my noble friend the Minister to reply to this, under which it is obligatory, within the circumstances set out, for a prohibited steps order to be made. I would be grateful for guidance—I am sorry I have not researched this—on whether the power to make a prohibited steps order is a matter of discretion by the Crown Court, or whether it is the situation that a prohibited steps order can be brought into force only under the drafting of Clause 3? I would be grateful if my noble friend the Minister could answer that.

[Lord Thomas of Cwmgiedd (CB)]

My Lords, I will make a few observations. No one can doubt the revulsion towards sexual offenders who have attacked their own children or have the potential to do so, but there are two practical points that we must bear in mind.

First, the criminal justice system and the criminal courts, and the family justice system and the family courts, have been starved of resources by both Governments—there is no doubt about that. When sentence lengths are increased by both parties, we end up with a situation in the prisons that is a crisis. In deciding what orders to make in this kind of case, it is of paramount importance to have regard to the resource implications. It is no use saying that there is money for this. There is not. The courts system is starved, and the result of that is victims suffering in a whole host of other cases by the tremendous backlog. Both this Government and the last Government are responsible for the position into which the courts have been placed. When we look at this, please have regard to resources.

The second point, a point made by the noble Lords, Lord Russell of Liverpool and Lord Meston, is that it is important that we get correct the balance as to what the Crown Court is to do and what the family court is to do. I am not sure, having listened to this debate, that that is a matter that has been sufficiently addressed. The one thing you cannot have—because it is a waste of resources and does not deploy expertise correctly—is the lines not clearly drawn. I hope very much that, before this comes back, there will be the opportunity for those who have day-to-day responsibility in the judiciary and the Courts Service, together with the ministry, to be sure that we have got the most effective and efficient use of resources and the right kind of drawing the line. It is very difficult, but we cannot ignore the bankrupt state of the courts. It is a regrettable fact, and we must not make the mistake we have made in relation to sentencing.

[Lord Sandhurst (Con)]

My Lords, I apologise for organising my notes here—I have been listening hard. I am grateful to all noble Lords who have spoken in this group, which concerns the operation of Clause 3 and the use of prohibited steps orders for the safeguarding of children where a parent or individual with parental responsibility has been convicted of serious sexual offending. The group rightly raises profound questions about thresholds, discretion, safeguards and consistency, and indeed, as the noble and learned Lord, Lord Thomas, has pointed out, the balance between the two wings of the court system—the family and the criminal courts. I thank noble Lords for their searching and constructive contributions to this debate, all of which are motivated by a shared desire to protect children from harm.

I begin with Amendment 13, tabled by the noble Baroness, Lady Brinton, Amendment 14, in my name, and Amendments 15 and 19, tabled by the noble Lord, Lord Meston. All these amendments concern and probe the four-year custodial threshold that currently triggers the duty on the Crown Court to consider making a prohibited steps order. I thank the Government at the outset for the constructive manner in which they have already engaged with the clause. They accepted, during the Bill’s passage through the other place, that the original scope of Clause 3 was too narrow. As drafted on introduction, it applied only where the offender had committed sexual abuse against their own child. Following sustained concern, the Government rightly expanded that clause, so that it applies where the offender has abused any child. That change was welcome and necessary.

However, while the class of victims has been widened, the custodial threshold remains set at four years. It is here that noble Lords have expressed deep unease. A four-year sentence is an extremely high bar. There are numerous sexual offences involving children that may result in sentences well below four years yet would plainly justify the imposition of a prohibited steps order to safeguard a child, such as sexual communication with a child, causing or inciting a child to engage in sexual activity, certain forms of indecent assault or online grooming behaviours. These may, depending on the facts, attract sentences of significantly less than four years. Yet it would be surprising to suggest that an individual convicted of such conduct should automatically fall outside the scope of a safeguarding measure which has been designed to prevent them from exercising parental responsibility without scrutiny.

I think all noble Lords accept that there is a balancing exercise here. The state should not intervene lightly in family life. We must be careful not to construct a regime which is too blunt and results in unnecessary or disproportionate separation of children from parents. However, equally, Clause 3 as drafted risks being too narrowly drawn and failing to engage precisely in those cases where concern is most acute. The current threshold risks excluding serious and dangerous individuals because the custodial term imposed falls short of an arbitrary figure. We look to the Minister to explain why four years was chosen, what evidence underpins that decision and why a lower threshold or an offence-based approach was not chosen.

Amendments 22 and 27 raise an issue of rather different but also troubling nature—the power of the Secretary of State by regulation to amend the list of offences to which Clause 3 applies. As drafted, that power is not limited to expansion. It allows the list to be amended. That necessarily includes the possibility of reduction. It is difficult to conceive of a principled reason why a future Government would wish to remove sexual offences from the scope of a safeguarding provision of this kind. That prospect should concern the whole House. We accept the need for flexibility. The criminal law evolves. New offences may be created, particularly in the online sphere, as was illustrated by the recent Grok AI scandal and by non-consensual deepfakes of women and children in particular.

I recognise that Parliament cannot foresee every future risk. Recent controversies involving emerging technologies only underline that reality. It is therefore sensible that Ministers should have the power to expand the list where gaps emerge. However, it is not at all clear why the power should run in the opposite direction. Our Amendment 22 seeks to ensure that the Secretary of State would be able only to expand the list of relevant offences rather than shrink it. Opposition to what is modest drafting would raise serious questions about the Government’s intentions. We hope that the Minister will reflect carefully on that.

In that context, we are grateful to the noble Lord, Lord Meston, for Amendment 27, which would add Section 15A of the Sexual Offences Act 2003, on sexual communication with a child, to the schedule. This offence criminalises the deliberate sexualised communication with a child for the purpose of sexual gratification. A technology-enabled form of abuse can be profoundly harmful. It often forms part of a wider pattern of grooming. Its inclusion in the schedule would materially strengthen the safeguarding framework, particularly if the threshold under Clause 3 were to be revisited.

Finally, Amendment 34, tabled by the noble Lord, Lord Meston, seeks to extend Jade’s law to cover attempted murder. This amendment raises an important principle. While the law recognises that certain conduct is so grave that parental responsibility should be curtailed automatically, it is difficult to see why the distinction between murder and attempted murder should be a point of difference, particularly given the catastrophic harm that attempted murder can cause.

This has been a thoughtful and serious debate. The amendments in this group are aimed at strengthening Clause 3 to protect children from harm while respecting the practical policy constraints which the Government face. We have no doubt that the Minister will engage constructively with the issues raised and provide the House with the assurances and explanations that these amendments request.

--- Later in debate ---

[Lord Meston (CB)]

My Lords, I begin by commenting on two parts of the noble Lord’s amendments. I find it difficult to understand how his Amendment 16 would work in practice. These orders have to be made at the point of sentencing; they cannot come later on as an afterthought or at a later hearing. More importantly, I question how the Crown Court would be in a position to assess what is or is not in the interests of the child, and, certainly, how the Crown Court could do it without a report that typically, in the family court, might be available from Cafcass or a local authority.

Moreover, what would the Crown Court do if the suggestion of not making the order to remove or restrict parental responsibility is strongly opposed by the other parent, as would quite likely be? That other parent, certainly in the Crown Court, would not have party status and would probably not have legal representation.

On the face of it, the Crown Court might face the prospect of a contested hearing on the question of whether to restrict parental responsibility. Clearly, that is much better dealt with by the family court in the appropriate way. Having said that, I of course understand the force of the noble Lord’s Amendment 33, which seems to present a sensible solution to a potentially difficult problem.

I move briefly to my amendments in this group. They are procedural and evidential amendments. Amendment 23 would provide for the Crown Court that is required to make the prohibited steps order to be supplied with all necessary information to make the order, enabling it to make the order in appropriate terms, covering all the children to whom it might apply and enabling it to be provided to the other parent and others holding parental responsibility. As it appears from the very length of Amendment 23, parental responsibility can be acquired by a number of different people in a considerable range of situations. It almost goes without saying that the convicted offender may not be a reliable source of information about the children for whom he has parental responsibility, or the basis on which he might hold it. The Crown Court therefore cannot be expected simply to make a blanket, generic order referring to all or any children for whom the defendant holds or might hold parental responsibility. That would be of little use to anyone. The court therefore has to be in a position at the point of sentencing to make an order that should refer to specified children. For that, accurate and reliable information should be provided. As the amendment suggests, that would be best done by the Probation Service as part of the pre-sentence report.

Once that order has been made, it is also important that those who are affected by the order are notified of it. Hence, Amendment 17 would provide for notification by the Crown Court to the relevant local authority and the provision of a copy of the order, with a duty on the local authority to convey that information by onward notification to all persons who hold parental responsibility for the child or children concerned. Clearly, they need to know what has been ordered and to understand the effect of it. The local authority is best placed to provide that information.

Finally, Amendment 29 would ensure that in rape cases the victim is promptly and properly informed that the order has been made, with an obligation on the court to notify the relevant local authority within seven days of the order being made and an obligation on that local authority within 14 days thereafter to notify the victim of rape. Without this, there is a risk that the other parent or holder of parental responsibility for the child or children concerned, and the victim of the rape, are not made aware of the order or of its implications. They may be aware if they attend a sentencing hearing, but that is not certain. In any event, a local authority, particularly one involved with the family, would be best able to explain the effect of the prohibited steps order, its duration and other implications.

[Lord Thomas of Cwmgiedd (CB)]

I shall again make one very brief observation. It is obvious that what is to be provided is a short, speedy, summary step to protect whatever range of offence is decided on. I agree completely with the noble Lord, Lord Meston, that the Crown Court cannot be the appropriate place to start debating what is in the interests of the child. We need to see whether a form of order can be devised, and an exchange of information put forward, that does not impinge on resources, say for the Probation Service, which is probably going to be in a worse position than the courts, that can give the speedy remedy that is needed simply and transfer, for the making of the final order, to the family court, which is obviously the right place to do it. I am not sure we need all these complicated pieces of legislation to do that: rather, it should be something probably very much simpler, with a power for the Minister to make regulations once a proper, simple procedure has been worked out. I fear we are getting ourselves into a degree of complexity that is not desirable.

Sentencing Bill

Lord Thomas of Cwmgiedd Excerpts

Report stage
Tuesday 6th January 2026 Lords Chamber

Moved by

[Lord Thomas of Cwmgiedd]

76: After Clause 23, insert the following new Clause—
“Provision for the Parole Board to direct release on licence of an IPP prisoner at a specified future date(1) Section 28 (duty to release certain life prisoners) of the Crime (Sentences) Act 1997 is amended as follows.(2) In subsection (5)(b), at the end insert “or, in the case of a prisoner in respect of whom the Parole Board has made an order under subsection (6B), the prisoner has served the period ending on the future specified date,”.(3) In subsection (6)(b), at the end insert “or the Parole Board has made an order under subsection (6B)”.(4) In subsection (6A), at the end insert “but do not apply to a prisoner in respect of whom the Parole Board has made an order under subsection (6B)”.(5) After subsection (6A) insert—“(6B) In the case of a prisoner serving one or more preventive sentences as defined by section 31A(5), and not serving any other life sentence, where the Board does not direct his or her immediate release under subsection (5), the Board must fix a date for the person’s release on licence (“a specified future date”) and may issue such directions to facilitate the prisoner’s release on licence at the specified future date as it considers necessary having regard to its duty to protect the public.(6C) Any date fixed under subsection (6B) must not be later than—(a) the second anniversary of the date on which the decision is taken in the case of a prisoner serving a sentence of imprisonment or detention in a young offender institution for public protection under section 225 of the Criminal Justice Act 2003 (including one passed as a result of section 219 of the Armed Forces Act 2006);(b) the first anniversary of the date on which the decision is taken in the case of a prisoner serving a sentence of detention for public protection under section 226 of the Criminal Justice Act 2003 (including one passed as a result of section 221 of the Armed Forces Act 2006).(6D) A prisoner in respect of whom a direction has been made under subsection (6B) may apply for the specified future date to be varied once six months have passed from the determination of the release date.(6E) At any time before the expiration of an order for release on licence or direction made under subsection (6B) or an order for release on licence or direction made under this subsection, the Parole Board shall on the application of the Secretary of State, or as the Parole Board may otherwise determine, reconsider any order for release on licence at a specified future date or direction then in force and may direct that the order for release on licence or direction made be set aside and in its place extend the specified future date or order a new specified future date or make any further directions as to the licence conditions it considers necessary.”.”Member’s explanatory statement
This amendment requires the Parole Board to release on licence at a fixed future release date post tariff IPPs (who has not been released on licence immediately), after the successful completion of directions designed to ensure the public will be adequately protected upon release, with residual powers for the Secretary of State to apply to the Parole Board to vary its Orders.

--- Later in debate ---

[Lord Thomas of Cwmgiedd (CB)]

My Lords, the last Government and this Government have done a great deal to help those who were sentenced to imprisonment for public protection and released on licence. I welcome the amendments tabled by the Government and other noble Lords in relation to the position of those on licence. But we have done nothing to deal with the problem of those who have never been released. In moving the amendment, I seek to provide a measure of real justice in the Bill for what is otherwise largely a Bill to deal with the prison crisis and to ensure that the prisons can run in an orderly manner. The amendment deals simply with justice.

I need not tell your Lordships the current position; it is well known. There are more than 940 prisoners who have never been released and some 200 more in secure mental accommodation, again who have never been released, even though this sentence was abolished in 2012.

Nor is there any need for me to set out the human stories of what these people who have never been released have been subjected to: short tariffs, yet many, many years beyond their tariffs. No one has really tried to address this. Suggestions have been put forward, including resentencing, but each Government have said no, so the Howard League decided it would set up a small group of experts to try to come up with a solution and bring justice at long last.

The key element of that solution, which is embodied in Amendment 76, is that the Parole Board ought to be asked to modify its position and to determine what steps would be necessary to ensure the release of those who have never been released within a two-year window. At the time this amendment was put forward in Committee, it did not contain what I would call a fail-safe clause, but, with the very great help of the noble Viscount, Lord Hailsham, it now contains a clause that modifies the original proposal and enables the Government—or HMPPS—to go back to the Parole Board and say that this two-year window cannot be met. So there is therefore a complete fail-safe.

The real question is: having left the decision in the hands of the Parole Board, and having tried to ensure that we give these prisoners hope and that we provide for the safety of the public, why will the Government not accept this? It is difficult to find an answer, because accepting it would bring justice as far as the public are concerned, and certainly as far as victims are concerned: many of these crimes were committed at least, by their very nature, more than 13 years ago. Above all, it would ensure justice for the offenders.

I summarised in Committee the reasons why we needed to do something. There was no conceivable justification for keeping people in prison under a sentence that is universally and without exception regarded as a mistake. Most people are flabbergasted when you say we are still imprisoning people 13 years after we concluded that the sentence under which they were imprisoned was wrong in principle. There can be no justification. More seriously, if you had the position where you committed an offence before 2005 or committed an offence after 2012 of exactly the same kind as one committed by those who are subject to the IPP, you would be automatically released at the end of that determinate sentence. There is no conceivable justification for discriminating against those who happened to be sentenced during a period of mistaken penal policy.

Worse still, the effect of the sentence, particularly on those who have never been released, is that it has severely damaged them mentally. To the extent that they may pose, or be thought to pose, a risk of danger, that is something that the state has helped create. Normally when the state makes a mistake, the state is sorry and tries to do something for the victims of its mistakes. Why not here?

Then, as is clear from the other provisions of the Bill, and as the Minister made very clear when dealing with an amendment just before the break, the prison capacity is in such crisis that we have to send, for example, foreign national offenders back to their own country, and we have to release serious offenders under what is described as the earned progression model. Why, therefore, can we not, in the middle of this calamity, see whether we could achieve some balance in prison capacity by addressing this problem?

--- Later in debate ---

I hope that the Government’s amendment and our wider work assure noble Lords of our determination to support all those in prison to progress towards a safe and sustainable release. I will continue to work closely with noble Lords towards this goal, but I urge the noble and learned Lord to withdraw his amendment.

[Lord Thomas of Cwmgiedd (CB)]

I am grateful to all noble Lords who have spoken in this debate, in which the views, save that of the Minister, have been unanimous across the House. The unanimous view is that something needs to be done in the interests of justice.

It is justice that lies at the heart of this debate. One of the cardinal principles of justice is treating everyone equally before the law. If you stole a mobile phone from someone in 2005 or 2014, you ought to be treated in exactly the same way if you committed that offence during the period of this misconceived sentence. Failing to do that is to condemn people to injustice and to perpetuate it. It is no excuse to say, “Well, they were under a sentence passed by the courts”, when everyone has agreed that that sentence was wholly misconceived; nor is it an excuse to say there is a risk that they are more dangerous, because the psychiatric evidence is unanimous in the view that the form of sentence has made that danger greater.

On the amendment and what it tries to deal with, I am very sorry that those who provided the briefing to the Minister did not understand the change that had been made to the proposals I and the noble and learned Lord, Lord Garnier, put forward, because neither required a two-year release. There was a safeguard put in. What we proposed would have protected the public to the extent that they are and must be protected.

I would hope that we could give people hope. I do not believe, from what I have seen—as the noble Baroness, Lady Chakrabarti, said and the noble and learned Lord, Lord Garnier, has said, from the files he reviewed—that this can be solved administratively; it needs legislation.

I, therefore, with deep regret, feel it necessary to test the opinion of the House. In doing so, it is important to bear in mind what Lord Lloyd of Berwick reminded the House of in 2014: Winston Churchill said many years earlier that

“one infallible test of any civilised country is the way it treats its prisoners”.—[Official Report, 20/10/14; col. 456.]

I hope we will not fail that test. We need to do justice to those in prison. I therefore would like to seek the opinion of the House on Amendment 76.

--- Later in debate ---

Moved by

[Lord Thomas of Cwmgiedd]

88: Clause 32, page 59, line 27, at end insert—
“(ba) after subsection (5), insert—“(5A) The Secretary of State must not exercise the power to remove a prisoner under this section where the prisoner—(a) is a fixed-term prisoner sentenced to a term of imprisonment of more than three years, or(b) is detained in accordance with subsection (4)(b) after returning to the United Kingdom following a previous removal.(5B) The Secretary of State must not exercise the power to remove a prisoner under this section unless he or she is satisfied that the interests of justice are not defeated by the removal, having regard to the gravity of the offence and the impact of the offender’s criminal conduct on those affected by it.”;”Member’s explanatory statement
This amendment is intended to add certain limits to early removals to ensure that the interests of justice and those of victims are taken into account.

[Lord Thomas of Cwmgiedd (CB)]

My Lords, I shall move this amendment on behalf of the noble Lord, Lord Verdirame, who unfortunately cannot be present. I wish to express first his appreciation of the time the Minister has taken to speak to him about the issue raised by this amendment. I can explain it very briefly. In the independent review conducted by Mr David Gauke, he considered whether foreign national offenders should be removed to reduce pressure on capacity and ensure that punishment was served for crimes committed in the United Kingdom. Under the then existing law, foreign national offenders had to serve 50% of their sentence but could then be removed and returned to their own state, where they would get no further punishment. The review recommended that the 50% rule be reduced to 30%—this was accepted and brought in by a statutory instrument—and that those who were sentenced to three years or less could be removed without serving any part of their sentence here. Clause 32 proposes the removal of the three-year time limit, so that any offender, however serious the offence is, can be removed without serving any part of their sentence whatever.

The amendment proposed by the noble Lord, Lord Verdirame, seeks to do three things. First, it seeks to restore the position recommended by Mr David Gauke: to ensure that people who receive sentences of more than three years could not be removed without serving part of their sentence. Secondly, it would make it clear that it is inapplicable to a person who has been deported and returns. That is to stop the revolving door of committing a crime, being deported, coming back, committing a crime and going round and round. Thirdly, it would require the Secretary of State to be satisfied, in the case of serious crimes,

“that the interests of justice are not defeated by the removal, having regard to the gravity of the offence and the impact … on those affected by it”.

There is a change from the amendment put forward in Committee in one respect, in that it drops the requirement that the offender serve his term overseas.

The most important of the three points raised by this amendment is the first: restoring the recommendation of the Gauke review. As I understand it, there are about 3,000 such offenders and it costs about £61,000 a year to keep each of them in prison here. I can see no objection to sending them back if they are to serve the remainder of the term in their own country, but it is evident from the figures that only a tiny proportion would serve such a term. The Bill as it stands, therefore, will send back at our own cost a very significant number of people who have committed crimes that deserve at least three years’ imprisonment.

It seems that the Government have said that they are not prepared to accept the amendment partly because they cannot agree to anything that will effect a reduction in prison capacity. Secondly, they are determined to make sure that the public Exchequer is relieved of the burden of paying for the imprisonment of foreign national offenders.

The purpose of this amendment is to try to reverse what can only be described as the interests of short-term expediency over the principles of sentencing, because the amendment infringes three of those principles First, if a person commits a wrong that merits three years’ or more imprisonment, that person merits equivalent punishment. Being sent back to his own country at taxpayers’ expense is not a punishment. Secondly, the purpose of sentencing is to deter crime. What deterrence is there in making it clear that, if a person comes to this country to commit a crime, he will be sent home free, without punishment? Thirdly, and most importantly, proper punishment retains public confidence in the system. If, for example, someone commits a series of shoplifting offences to go to the lower end of the three-year limit or, more seriously, comes here deliberately to commit a crime, paid for, what deterrence is there if that person knows he can go back? We hope that the Government will think again on this point.

However, on the second and third points—that is to say, dealing with the revolving door problem in the first place, while requiring the Secretary of State to be satisfied that the interests of justice are not defeated by removal, having regard to the gravity of the offence and the impact on those affected by it—why can the Government not accept them? I hope the Minister will be able to say, “Well, we’ve got to have a framework to deal with those kinds of issues” and will make it clear that, among the issues to be contained in the policy framework that governs the way in which foreign national offenders are dealt with, those two points, namely the revolving door and maintaining and examining each case to ensure that the gravity of the offence and the effect of the offender will not be that which casts doubt on the integrity of the criminal justice system, will be looked at and properly included within it. I beg to move.

[Lord Keen of Elie (Con)]

My Lords, we are grateful to the noble Lord, Lord Verdirame, for the carefully framed amendment and to the noble and learned Lord, Lord Thomas of Cwmgiedd, for the very careful way in which he presented the amendment. We agree with all the points made by the noble and learned Lord, Lord Thomas, without qualification.

When the previous Secretary of State for Justice first intimated this policy last year, I referred to it in this Chamber as being “completely mad”. I have not deviated from that opinion, I have to confess. The idea that someone coming from a safe country in Europe will commit a series of robberies and then, when caught, will be returned to their country of origin at public expense in order to pick up a different set of identity papers or a different passport and then return yet again strikes me as quite absurd. That is the revolving door point that has been touched upon, but the other points are equally important.

Of course, they may not have come from a safe country, in which case we cannot deport them, but no accommodation has been made for that either. It is going to be optional, essentially. You may seek to argue that you have not come from a safe country and therefore you cannot be deported, so you prefer to stay in prison. It is a quite extraordinary proposal that somehow punishment lies in the fact that you have been returned to your country of origin after committing a serious offence in this country. We have a foreign national who rapes a child and flees back to his country of origin, and presumably we no longer make any efforts to extradite him because as far as this policy is concerned, he has been punished. He has gone home. What is that going to do for public confidence in the justice system? It will damage it, but I cannot see any upside. It is an impossible proposal.

David Gauke proposed, very sensibly, that there should be a minimum term of punishment, and that is necessary because it is not just punishment; it is also deterrence. Without that, we end up in the strange situation in which people commit a crime, leave for their home country at public expense and return as and when they wish to do so. We have had instances of that already. I will not go into the detailed cases at this stage in the evening, but it is not uncommon for those who have been arrested and convicted of offences to return to their country of origin and then return to these islands in due course. There have recent instances of that. We strongly support the idea that there has to be a minimum term of imprisonment in these cases, while understanding the pressure on our prisons. Does the Minister truly believe that public confidence in the justice system will be improved or even maintained as and when the full implications of this proposed policy become public?

--- Later in debate ---

With those observations about the limits on deportations soon after conviction, I hope that the noble and learned Lord will feel able to withdraw his amendment.

[Lord Thomas of Cwmgiedd (CB)]

I am grateful to the noble and learned Lord, Lord Keen, for his strong support for this amendment, and to the noble Lord, Lord Lemos, for his response.

It is a pity that the discretionary nature of this scheme is not more clearly set out. I am sure that a number of the issues that have been dealt with by the noble Lord could be more clearly dealt with if we were able to see in writing what the parameters are for the exercise of the discretion. It is not enough just to leave it to individual governors. In particular, when dealing with the revolving door and with crimes which are of gravity where there is an effect on the victim, these are the kind of things that need to be built into such a scheme. I understand from the noble Lord that there is going to be developed such a scheme. On that understanding, I will not press this amendment further.

Amendment 88 withdrawn.

Sentencing Bill

Lord Thomas of Cwmgiedd Excerpts

Report stage
Tuesday 6th January 2026 Lords Chamber

[Lord Farmer (Con)]

My Lords, I thank the noble and learned Lord, Lord Thomas, for giving way. I rise to speak to Amendment 70, which my noble friend Lord Jackson, who cannot be here today, led on in Committee, and which I have signed. It would require the Secretary of State to lay a report before Parliament on how the Act has affected reoffending rates. I appreciate the Minister’s encouraging introductory remarks.

The amendment would also create a feedback loop into the policy-making process by halting various provisions in the Act if certain metrics are not achieved. On the data, I am aware that reoffending statistics which differentiate between custodial and community or suspended sentences are routinely collected and published every quarter, as the Minister reminded us just now and in Committee. I am also aware of the evidence that those given a community or suspended sentence order reoffend less. Indeed, I am grateful to the Minister for responding at very short notice to my request for data.

To rehearse the compelling arguments for the presumption of non-custodial sentences of less than a year, the one-year proven reoffending rate for adults starting a suspended sentence order with requirements in quarter 3 2023 was 25%. Of those released from a custodial sentence of 12 months or fewer, 62% reoffended within a year. Importantly, robust analysis that compares like offenders with like also shows that suspended and community sentences are more effective than short custodial sentences, with a difference of four percentage points. Even where offending has been prolific, they pack a greater punch in reducing reoffending and promoting rehabilitation. All this is to say that I, like many other noble Lords, really want this presumption to bear more of the above fruit, because a large body of research shows that even where short custodial sentences are the only recourse, they often fail to rehabilitate.

We are also aware that we cannot build our way out of our long-standing prison capacity crisis, and that requires keeping people out of prison where a non-custodial sentence is the most effective disposal, despite public demand for punishment to mean deprivation of liberty. Many simply, and understandably, want offenders to be removed from our streets, not least so that victims know where they are and are unlikely to see them at large—hence this amendment is in a group concerned with transparency of the criminal justice system.

We do need to finesse the wording. I agree that referring to

“the impact of this Act on re-offending”

presents a minefield for researchers as reoffending is affected by many factors. However, there needs to be a proper stocktake in the aftermath of introducing a presumption that will make a custodial sentence far less likely.

My main point is that I, and the public, will assume it is more likely than not that this presumption will de-risk crime for offenders. Knowing they will receive a community or suspended sentence order will surely be a less fearful outcome than imprisonment. We are all aware of how prolific shoplifting has become, now that police are not even attending. Hence and crucially, previous data might not be reliable in this new sentencing world. Therefore, the public need to know not only that this experiment will be evaluated and reported on, as the Minister has assured us it will be, but that it will be called off if necessary.

On this amendment, we also need to finesse whether these reforms are given only two years to bed in, and if the 10% reduction in reoffending pass or fail rate is appropriate. However, the fact that these details need ironing out should not preclude amending the Bill so that there is clarity for the public that steps will be taken to roll this presumption back if it proves ineffective or even harmful. I will not be pushing this to a vote.

[Lord Thomas of Cwmgiedd (CB)]

It was indeed a pleasure to give way to the noble Lord, Lord Farmer, after all the work he has done in relation to prisons.

Noble Lords may wonder why this amendment about Wales is in in a group about transparency. I wondered too but I think there is an answer, to which I shall come. I had first thought it was just Wales an afterthought—“We’ll just put it in somewhere where it doesn’t really matter”—but there is a reason why it is there.

I am very grateful to the noble Lord, Lord Timpson, for the discussion I had with him in relation to the amendment I tabled in Committee, which was designed to achieve the devolution of just probation and related services. Then, when that amendment was debated, I was extremely grateful to the noble Lord, Lord Lemos, who, in his usual extraordinarily courteous and perceptive manner, pointed out the fallacy of what I was suggesting; namely, that one was devolving part of an entire system of offender management. Probation and prisons have to run together. The Welsh Government had thought they should just take probation. The commission I chaired took the view that actually there were two integrated parts. I entirely agree with the noble Lord, Lord Lemos, and am grateful for him having made transparent the objection to the Welsh Government’s proposal; namely, that you cannot devolve part.

Therefore, I put forward this amendment, which seeks to devolve the whole of probation and prison services. I did so on the basis that at least that gets over one objection of Her Majesty’s Government to the devolution of the justice system to Wales—or part of it. Normally, the objection is, “Well, we know how to do things in Whitehall, they don’t know how to do things in Cardiff, let’s leave it here”. However, it is now quite clear that there was now another very substantial objection. That is, if you devolve offender management, both probation and prisons, you are devolving just part of the criminal justice system, so you cannot do that either. So I am very grateful to the noble Lord, Lord Timpson, for making transparent that objection.