Property (Digital Assets etc) Bill

Lord Thomas of Cwmgiedd Excerpts

Second reading committee
Wednesday 6th November 2024 Grand Committee

[Lord Thomas of Cwmgiedd (CB)]

My Lords, it is a pleasure and privilege to follow the noble Lord, Lord Holmes, in his exposition of most of the main issues. I thank the Minister for his careful introduction to the Bill and join him in thanking and paying tribute to Professor Sarah Green, who has done so much to bring our law up to date.

Sitting suspended for a Division in the House.

[Lord Thomas of Cwmgiedd (CB)]

My Lords, as I was not using written notes, I rely on the absolute skill of Hansard to make it look as though I have continued at the point where I stopped. I thanked the Minister for his very careful introduction, and I added my thanks and praise to Professor Sarah Green for what she has done, which is important in two respects.

First, it is wonderful to be able to go into the Royal Gallery as a lawyer and say, “You can actually do law on one piece of paper”, because most complain that lawyers do law in volumes. That is an immense tribute to her.

Secondly, the Bill achieves the right balance to making the critical change—which probably has to be made by statute—but not getting ourselves into an area where you cut off development of the common law.

There is one other respect that I hope the Special Public Bill Committee will be able to consider. We live in different times to when the dominance of English law was achieved. We were then a great industrial and commercial power. We cannot claim to be that in the world relating to digitalisation and digital technology. It is important that the solution adopted by the Law Commission is an internationally attractive solution. We must retain at the forefront of our mind the enormous contribution that having contracts governed by English law provides—it is far more important that they are governed by English law than that dispute resolution occurs here, which is a less significant industry—and that people will choose English law on the basis that they like the solution. This is important because the transnational view is emerging that selection of the governing law will almost certainly be the basis upon which most disputes are likely to be decided.

So we want to say, “Look, come: our law is a good solution and, if you’re under our law, you’ll get a solution that is attractive”. I think the answer is probably right. Another tribute to Sarah Green is the acknowledgement that this is not a matter for looking at solely through the eyes of English law. You have to look at what the Americans are doing, and she has looked at what the American Law Institute has done and what the commissioners at UCC have done—and she has also looked at what is incredibly important these days: the work of UNIDROIT. We have to recognise that it is vitally important that our law is seen in this transnational context.

As I understand it, the Law Commission is going to do a project on the proper law to be attributed and on jurisdiction. It is extremely urgent that this is done from the perspective of commercial transactions. It may be important in other areas, but where it is critical from this Bill’s point of view is that we want people to choose English law and put that into the contract—and if it is chosen in the contract, and it is likely that most of the pointers for the selection of the law that governs digital assets will be the law chosen by the contract, people are then happy that our solution is the right one. We simply cannot be little Englanders and just look at this through the narrow perspective of what is good for England. We have to look at it in a much broader context—at what is good for our legal system as producing money in very large amounts from its transnational use. If we lose sight of that objective, in an area that one reads about all the time, and which we were reminded of this morning, which is an area of intense international competition, we will cede away to other people’s legal systems the business that is done here.

I regard that as the paramount task: to see that this is attractive to those who are not British but who dominate the world’s commercial and industrial life. That is our audience—it is not the audience in the UK.

Arbitration Bill [HL]

Lord Thomas of Cwmgiedd Excerpts

3rd reading
Wednesday 6th November 2024 Lords Chamber

[Lord Thomas of Cwmgiedd (CB)]

My Lords, I will briefly add to the thanks, with one exception, that the Minister gave this morning. I give particular thanks to Professor Sarah Green and to the clerk of the Special Public Bill Committee, Joey Topping, who, in the short timescale into which everything had to be compressed, did an outstanding job.

I thank the current Leader of the House and Chief Whip for getting this back when we did not get it through last time, despite their enormous efforts. They really deserve immense commendation, as does the Minister, for having put up with lawyers seeking to build perfection on perfection—something that I am sure many in this House feel inappropriate. I also thank the noble and learned Lord, Lord Bellamy, who really smoothed over some of those difficulties but did not quite get the time for matters I suspect he did not even contemplate, bringing this so speedily to a conclusion.

I will make two more general points. First, as I did not have the opportunity to thank the Senior Deputy Speaker and Duncan Sagar for getting us a bit more time in the Special Public Bill Committee—because the matter moved so quickly—if it is permissible under the rules of the House, I express on everyone’s behalf our thanks for the small change to the procedure. It should make a huge difference, because the more time there is for clever lawyers to think of points in the committee, the speedier it is to get the Bill through the House—something I hope will appeal to the business managers.

Secondly, I have a hope for the future. This morning has reminded us, if we needed any reminding, of the need to remain highly competitive. This is a good day for England, Wales and Northern Ireland—I leave Scotland out because it has its own system. We have brought our law up to date. We must find a means of doing this very rapidly, as we must keep English law— I say English law deliberately—attractive and at the forefront of use internationally, for the benefit of our whole economy.

[Lord Hacking (Lab)]

My Lords, I give personal thanks to the Minister for his very kind words to me and more general thanks to the Government for pressing forward with this Arbitration Bill. It is very befitting that the Government should have championed this Bill through, as they are at the moment, because it was a Labour Government 46 years ago who brought forward the arbitration reform that brought about the 1979 Act.

I join other noble Lords in thanking the prominent members of the Special Public Bill Committee and the prominent Members who took part in debate in this Chamber for all their contributions. I also thank the Ministers, the noble and learned Lord, Lord Bellamy, and—I keep calling him my learned friend—my noble friend Lord Ponsonby. Special thanks to the noble and learned Lord, Lord Thomas, who quite excellently presided over the Special Public Bill Committee, and to all the supporting officials.

Particular thanks should also go to the noble Lord, Lord Wolfson, and I am sorry he is not here to receive them. When he was the Minister, it was he who referred the arbitration issues to the Law Commission. That really was the beginning of the recent story on the Arbitration Bill.

This Bill is not as fundamental as the 1979 or 1996 Acts, but it deals with some very important issues. Perhaps the most important is Clause 7, giving power to arbitral tribunals to make summary awards. Those of us who practise in the courts—I am looking across the House at the moment—are well familiar with Order 14 proceedings, and this introduces into the arbitration world the Order 14 summary judgments.

It also clears up issues relating to the seat of the arbitration, arising after the unfortunate division in the Supreme Court in the Enka Insaat case, with two Supreme Court judges on one side and three on the other. I would have preferred new Section 6A(2) not to have been included, because I believe it complicates that issue, but none the less it is there, and I am very happy to support the Bill in that condition.

However, there is unfinished business. I suggest that the corruption issue should have further consideration. We know that the ICC has a commission on this and we must wait to hear what it says, but it is certainly a matter that needs further attention.

Other matters should have consideration, including expedited hearings and dealing with the length of written submissions, which sometimes stretch over 100 or 200 pages and argue every point under the sun. There is also the use of third-party funding and the question of what disclosures should be made, as well as the power to order parties into mediation, which is used successfully in litigation.

Commission on Justice in Wales

Lord Thomas of Cwmgiedd Excerpts

Monday 7th October 2024 Lords Chamber

[Lord Ponsonby of Shulbrede (Lab)]

The simple answer to the noble and learned Lord’s question is that I do not know the answer to his question.

[Lord Thomas of Cwmgiedd (CB)]

The subject is a complex one; the report was lengthy. Do the Government intend to set out in detail why the report was wrong? It would be very useful to have a chapter-by-chapter explanation of why what was recommended unanimously by a completely apolitical group of experts is thought to be wrong.

[Lord Ponsonby of Shulbrede (Lab)]

The noble and learned Lord’s report was a large piece of work. As I said in my initial Answer, it is for the Senedd to take forward the vast bulk of the recommendations, and the UK Government are acting on some of the recommendations and are continuing to act particularly on the disaggregation of data. The Labour manifesto made clear that the principal objective of the noble and learned Lord’s report is not one that the current Government share. We want to work in practical ways for the benefit of Wales, and the examples that I gave of youth justice and probation are good examples of that.

Arbitration Bill [HL]

Lord Thomas of Cwmgiedd Excerpts

Committee stage
Wednesday 11th September 2024 Lords Chamber

[Lord Hope of Craighead (CB)]

My Lords, I entirely endorse what my noble and learned friend Lord Hoffmann has said, but I would like to say a word about the procedure that the noble Lord, Lord Hacking, has invited the Minister to adopt. Surely the stage of conferring with people as to what they think about this amendment has passed. This matter could have been raised in the Committee of the noble and learned Lord, Lord Thomas —it was not, of course—but now it is a matter for this Committee to decide whether or not to accept the amendment. It is as simple as that. With great respect, I think it is a matter for the Committee and not for anybody else now. I agree with my noble and learned friend Lord Hoffmann that this amendment should not be accepted.

[Lord Thomas of Cwmgiedd (CB)]

My Lords, I agree with both the noble and learned Lords, Lord Hope and Lord Hoffmann, that this amendment ought not to be accepted. However, it seems to me, as the noble and learned Lord, Lord Hoffmann, said, that everyone agrees with the sentiment behind what the noble Lord, Lord Hacking, has proposed.

I had thought that we had agreed how to deal with this matter when the then Minister dealt with it at a hearing of the Special Public Bill Committee. I raised this point by way of an amendment to the old Arbitration Act. The Minister agreed, in response to that, that he would write to the arbitral institutions and we would see what the best practice was. I had assumed that all that would be made public, and I am entirely at a loss to understand why the letters that were written and the responses have not been made public. It would be extremely helpful to have all this information put into the public domain to show, for the benefit of London, what was being done to address this point. As I understand it, these were documents written by the Minister in his capacity of trying to deal with a problem that had arisen and was discussed in this House. It would be very helpful to have a discussion and look into the matter in detail. If something needs to be done—more than is being done—we can return to it. Certainly, we ought not to delay the Bill by this amendment.

[Lord Beith (LD)]

My Lords, in our Second Reading debate on 30 July, I asked the Minister to respond about these consultations that had taken place, which he did in a letter on, I think, 15 August. He set out in some detail the various ways in which the existing system deals with corruption.

It would be beneficial, as the noble and learned Lord has just pointed out, if the documents which the Minister was summarising were themselves made public, with the consent of the relevant organisations, because there is a lot of detail here that needs to be discussed. Indeed, the remarks of the noble and learned Lord, Lord Hoffmann, illustrate that we cannot proceed on the matter of this amendment without some pretty extensive discussion about how it could work and how it affects the role of the arbitrator. Although I am very sympathetic to the amendment, to try to introduce it at this stage would be an unnecessary delay to a Bill that has had quite a lot of delays already, not least because of the general election. That would be an unfortunate consequence.

The most reassuring thing in the Minister’s letter is the reminder that the case to which the noble and learned Lord, Lord Hoffmann, referred, and in which he was directly involved, was of course dealt with in the High Court. The High Court set aside the results of the arbitration, having discovered the corruption that had occurred. This is a demonstration that, even without new statutory provision, our system can deal with corruption of this kind. It is still there, however. There is a lot of corruption about and it is quite likely that it will emerge or be present in matters that are the subject of arbitration, particularly between states and very large commercial undertakings.

I therefore do not think that we should be content simply to set aside the amendment that the noble Lord, Lord Hacking, has introduced, but I do not think that we should attempt to insert it into the Bill at this stage. We should seek to establish whether both the substance of the law and our ability to enforce it would be improved by new statutory provision, and I am not yet persuaded that that is so. We strongly support the Bill and do not want to see its progress delayed.

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

Lord Thomas of Cwmgiedd Excerpts

Friday 24th May 2024 Lords Chamber

[The Parliamentary Under-Secretary of State, Ministry of Justice (Lord Bellamy) (Con)]

My Lords, these regulations form part of the implementing framework for the Hague Convention on the Recognition and Enforcement of Foreign Judgments in Civil or Commercial Matters 2019. The purpose of the convention is to establish a set of rules about whether a civil or commercial judgment made in a court of one country may be recognised and enforced in another. Without such a uniform scheme, each country’s domestic rules determine whether a foreign judgment will be recognised and enforced. This can cause uncertainty and a range of challenges for effective cross-border recognition and enforcement.

Following unanimous support in response to the government consultation, I signed the Hague convention 2019 on behalf of the United Kingdom in the Hague on 12 January this year. Once in force, the convention will apply between the United Kingdom and the existing parties, which include not only the EU but a range of other countries including Ukraine and Uruguay. The legislation now before the House is instrumental and necessary for the UK to proceed to ratification of the convention, which will proceed in due course once these regulations have been approved. Parallel processes will be in train in Scotland and Northern Ireland.

Joining Hague 2019 will provide greater clarity and confidence for businesses and individuals in their disputes, reduce costs, encourage international trade and enhance access to justice. It will also provide greater predictability as to whether a UK judgment can be enforced abroad, encourage businesses to choose the UK’s world-class courts for international litigation in line with convention provisions and further increase the attractiveness of the UK for international dispute resolution. The convention will come into force for the UK just over a year after ratification, so we will be one of the early adopters of the convention and continue to be a leader in private international law. I beg to move.

[Lord Thomas of Cwmgiedd (CB)]

My Lords, I warmly welcome this instrument. It is a singular achievement that we have done this. To an extent, it will remedy the EU’s refusal to allow us to accede to the Lugano Convention. As the Minister said, it is extremely important in making sure that litigants who come to this country know that their judgements will now be much more easily enforceable. I add that the Arbitration Bill which was before this House would have achieved exactly the same objectives. It is extremely important to the international position of London as an arbitration and litigation centre that we keep our law up to date.

I thank all noble Lords—the Minister, in particular, as well as the Whips and the Government Chief Whip, the Leader of His Majesty’s Loyal Opposition and their Chief Whip, and others on their Front-Bench team—and others in the other place for all they did to try to get the Law Commission Bill into the wash-up. A lot of loud noise was made, but it did not succeed.

I want to look forward and say that it is critical that overseas litigants who might choose London to have their disputes arbitrated, whether in contracts now or for the future, realise that this is, I hope, but a temporary hiccup and that we will find the means, with the co-operation of the Government and the Opposition, whichever roles they may be playing, and with the welcome support of those on the Liberal Benches, to go forward without having to go through it all over again. The Bill was agreed. There is one small amendment to be made to clarify something, but I hope we can get it on to the statute book as early as possible. It is a Bill that would help this country make money, and that, I am sure everybody agrees, is an imperative.

I thank the Minister enormously for what he has done while he has been in his position. As a Minister in the Ministry of Justice, he has laboured mightily on many matters, but I thank him in particular for what he has done to ensure that London stays at the forefront in the highly competitive world of dispute resolution in court and in arbitration.

[Lord Hope of Craighead (CB)]

My Lords, I too very much welcome this measure for various reasons, which are set out very well in the Explanatory Memorandum. Some of the features which are set out in it are the care that has been taken to consult at various stages, the response to the consultation, and working together across the various jurisdictions within the United Kingdom to achieve harmony in the way we respond to the challenge that this convention has presented us with. The result is a happy one, and I am very happy to offer my support for this measure.

I join with the noble and learned Lord, Lord Thomas of Cwmgiedd, in his remarks about the Arbitration Bill. For the reasons he has given, it is extremely important that this Bill be brought back at the earliest possible opportunity and with the least possible complication. I know that there are procedures that always have to be gone through for Law Commission Bills, but it was very thoroughly debated at all its stages. It was really ready to go and it is a great disappointment that it has been lost because of the calling of the election. I hope that all those involved can move quickly to bring the Bill back, so that we can get the benefits the noble and learned Lord has identified.

Lastly, I join with him in expressing great appreciation for all that the noble and learned Lord the Minister has done in his position on behalf of the Ministry of Justice. It has been a pleasure to work with him and we wish him well for the future.

Victims and Prisoners Bill

Lord Thomas of Cwmgiedd Excerpts

3rd reading
Thursday 23rd May 2024 Lords Chamber

[Lord Bellamy (Con)]

I am afraid I am not in a position to say why the Senedd has refused consent; only the Senedd can say. The original issue was whether it should have some kind of veto over the appointment of the independent public advocate, or whether it should simply be consulted. One could infer that it was not satisfied with the requirement to be consulted and wanted a stronger role. That is an inference I draw as I have no inside information on the point. In any event, it is vital, in the Government’s view, that these measures apply to England and Wales to bring the benefit to all victims within England and Wales. So that is the devolution position.

[Lord Thomas of Cwmgiedd (CB)]

I do not know whether, in this procedure, it is permissible for me to answer the question which the Minister was not in a position to. If I might explain, it was hoped that in the spirit of the United Kingdom you might be able to agree on a lawyer. There are an awful lot of lawyers and normally parties can agree, but, as the Welsh Assembly sees it, for some extraordinary reason the Government refused to do what normal litigants do, which is to agree on a lawyer. It stuck on that point because it thought it showed how unworkable the union is becoming if you cannot even agree on a lawyer.

[Lord Watts (Lab)]

Quite frankly, there are lots of lawyers in here. I do not know whether, if we put forward everyone’s name, perhaps the Senedd could agree to someone who is already in the House of Lords.

--- Later in debate ---

[Baroness Thornton (Lab)]

My Lords, the noble Lord, Lord Marks, has absolutely nailed it, and I absolutely agree with him about the Arbitration Bill, although my pay grade is much too low to do anything about any of those things.

This is one of those times when we are allowed to say “Thank you” and “Didn’t we do well?” Thank goodness we have this Bill and that it did not fall with the call of the general election. Between us in this House, we have improved the deal for victims across the country. We have given powers to our Victims’ Commissioner which she needs to do her job. I thank everybody we have worked with: my noble friend Lord Ponsonby, who is of course in court today—I do not think he has done anything wrong—the noble Baroness, Lady Brinton, the noble Lord, Lord Marks, and the ministerial team. The noble and learned Lord, Lord Bellamy, has been a model of what you need in a Minister in your Lordships’ House in that he is always prepared to listen, to discuss and to hear what might be needed, and when something is just, he seems to be able to act on it. You cannot ask for much more than that. I thank the Bill team, because I know what hard work it is to be a Bill team. I also thank my own people in our office, who have been backing us up on this Bill. I am just very glad that it has made it through wash-up.

[Lord Thomas of Cwmgiedd (CB)]

I will briefly add two sentences. In respect of the provisions dealing with the Parole Board and the IPP parts of the Bill, I pay a special tribute to the Lord Chancellor and Minister for Justice, and—although I know he will disclaim any responsibility—the Minister in this House. It has been a great pleasure to see the way in which, although we do not agree on everything, we have made huge reforms to the IPP system, and for that we all ought to be truly grateful.

Speaking of what the noble Lord, Lord Marks, and the noble Baroness, Lady Thornton, said, it is of the utmost importance that we should find a means—I do not believe it is precluded by precedent—of at least getting the Arbitration Bill forward, for all the reasons that he put forward. However, I pay tribute to the Minister on that Bill as well—he has worked so hard on it—and to the teams on both Bills for what they have done.

Victims and Prisoners Bill

Lord Thomas of Cwmgiedd Excerpts

Report stage
Tuesday 21st May 2024 Lords Chamber

[Lord Bellamy (Con)]

It is also the Government’s wish and position that we discuss that in the next group.

[Lord Thomas of Cwmgiedd (CB)]

Would it be possible to say something about what I think is common ground in this group—namely, the amendments dealing with the composition and functions of the Parole Board? This is dealt with in government Amendment 153A and Amendments 154, 155 and 156, in my name and those of the noble Lord, Lord Bach, and the noble and learned Lord, Lord Burnett.

I thank the Government for what they have done. I entirely associate myself with that, and thank the Minister and the Lord Chancellor, and anyone else from the Government who accepted all of this. I am very grateful.

However, I now want to be slightly churlish about the new chair of the Parole Board—a very important position. A new chair is to be appointed, and looking at the website I see that the deadline for the applications was 24 February, sifting was 31 March, and interviews are expected to end on 31 May. I assume that the competition is largely done but current. Maybe the Minister cannot answer this now, but the provisions in relation to the Parole Board have been significantly changed as a result of this amendment.

There are two things. I imagine there are a number of people who would never contemplate taking on a quasi-judicial position; they would not touch it with a bargepole on the basis that you could make a decision that the Secretary of State thought affected public confidence in the board. No one would become a judge if you could be removed on the whim of a government Minister; it seems equally clear that no self-respecting person could agree to be chairman of the Parole Board if they could be removed on the whim of a Minister, as was in the Bill when this competition was run.

More seriously, the role of the Parole Board chair was crafted to remove the chair from the core work of the board—that is to say, deciding cases. Everyone knows that if you sit as a judge it is critical that you are not an administrator—you cannot lead and you are not respected. It seems to me very clear that the position of the chairman of the Parole Board has to be looked at in the light of the amendments that we are about to make.

I find it somewhat disappointing that this competition has been rushed ahead with without the position of the chairman being clear. I very much hope that the Minister can give some reassurance that more time will be taken to consider this in the light of the changes to the Bill, and that the competition will not go ahead without a further opportunity for people to apply and a proper assessment made of whether the persons who are in line are competent to deal with sitting on cases.

I do not know how this has happened. I am sure it has absolutely nothing to do with the Minister, but it is very disturbing that an appointment should be made on the basis of something in the Bill which has now been radically changed. I feel very churlish to be raising this point in the light of the Government’s acceptance of these amendments, but it seems to me that, as the chairmanship of the Parole Board is so critical, as the Minister and all of us accept, we must get the right person to do it. I am not certain that it is possible to have the right person without taking into account the new qualifications. I apologise for being churlish and for asking this question, but it is rather important. Otherwise, I warmly welcome this and thank the Government for what they have done.

[Lord Jackson of Peterborough (Con)]

My Lords, I concede that I am the amuse-bouche of this debate, rather than the main course, as alluded to by the noble Lord, Lord Pannick. If your Lordships’ House will allow me a few minutes, I will develop my remarks on Amendment 156ZA, tabled in my name, on Parole Board hearings. I thank my noble friend Lady Lawlor for originally moving this amendment so ably in my absence—I was unavoidably detained on parliamentary business—in Committee on 25 March. Naturally, I read my noble friend Lord Howe’s response on that occasion with great care.

The amendment seeks to establish the presumption that Parole Board hearings will be open to the public, but with exceptions. It endeavours to improve public faith and trust in the criminal justice system. This is both a probing and a permissive amendment. It is a natural progression that consolidates the reforms undertaken by Ministers over the last six years.

As we know, this was prompted by public disquiet over the proposed release of serial rapist John Worboys in 2018, which resulted in a review of the parole system and a public consultation, which was published in 2022. There was a finding in the High Court that the Parole Board’s rule 25—a blanket ban on transparency and details of the board’s deliberations—was unlawful. The Government have rightly moved to address the very serious failings identified by the Worboys case by allowing summaries of Parole Board decisions to be provided to victims and other interested parties, and to allow a reconsideration mechanism introduced in 2019. This allows a prisoner and/or the Secretary of State for Justice within 21 days to seek reconsideration of several decisions taken by the board. Victims are now also permitted to seek a judicial review on the grounds that decisions are procedurally unfair or irrational. Most significantly, the Parole Board’s rule 15 was amended by secondary legislation in 2022 to enable public hearings to be facilitated, upon request to the chair of the Parole Board, “in the interests of justice”—a test utilised by the Mental Health Tribunal.

This amendment is nuanced and heavily caveated in proposed new subsections (5) and (7). It presumes no absolute right to open Parole Board hearings on the most serious cases, but it nevertheless presents a balance between the interests of the victim, prisoners and the wider criminal justice system. It imposes a statutory duty on Ministers to take note of the importance of rehabilitation, reducing recidivism, fairness and due process.

I accept that the Parole Board discharges a quasi-judicial function, but secret justice is not justice as most reasonable people would regard it. Open and transparent judicial proceedings are one of a few fundamental principles in the court system of England and Wales. Furthermore, other jurisdictions across the world, such as those in Canada and the United States, have a more open and transparent hearings regime, especially regarding the right of victims to attend and participate in such meetings.

I am not entirely convinced of the Minister’s comments in the previous Committee debate: that the changes made in the 2022 regulations definitively precluded all but a few hearings from being held in public. My amendment specifically addresses concerns about sensitive evidence, and the concerns of the victims. It permits such matters to be raised as a rationale for proceedings to be held in camera.

Finally, may I respectfully disabuse the Minister of the notion that every one of the 8,000 parole cases would be held in public? This is not the aim of the amendment, the permissive nature of which means that there is an expectation that the powers will be only lightly exercised in a minority of the cases by the Secretary of State, with checks and balances in place to protect the operational independence of the Parole Board, and a requirement to publish a review of the efficacy of the policy as it affects the interests of justice test, as well as public confidence in and support of the criminal justice system.

I look forward to hearing my noble and learned friend the Minister address these issues and explain why it is not possible to go further, in the commendable programme of reforms already undertaken, by allowing public hearings to become the default position. I thank him for engaging so positively on this important issue.

Victims and Prisoners Bill

Lord Thomas of Cwmgiedd Excerpts

Report stage
Tuesday 21st May 2024 Lords Chamber

[The Parliamentary Under-Secretary of State, Ministry of Justice (Lord Bellamy) (Con)]

My Lords, as noble Lords will recall, there is a power created in Clauses 44 and 45 of the Bill that will allow the Secretary of State to refer release decisions made by the Parole Board to the Upper Tribunal. When we debated this issue in Committee, I said that we were satisfied at that time that the Upper Tribunal has the necessary skills and powers to deal with these referral cases, having consulted the Judicial Office on that matter last summer.

However, the Government have listened carefully to the arguments put forward for this amendment by noble Peers in Committee, including by two former Lord Justices, and, in the light of that debate, I asked the judiciary to reconsider this matter. The unanimous view put forward was that, given how the intervention power in the Bill has evolved over the time, the High Court is the most appropriate venue to hear referred parole cases. I therefore tabled amendments that will make that change.

I take this opportunity to put on record my thanks to the members of the Upper Tribunal Administrative Appeals Chamber for their work with my officials on the measures in the Bill and to make it clear that this decision does not, in any way, reflect on the important work of that chamber; it is simply a matter of deciding where this power should best reside within the upper judiciary system.

There are two other technical amendments related to the referral power—my Amendments 122E and 122F —which will ensure that there is clear, lawful authority to detain a prisoner while the Secretary of State decides whether to refer their case to the High Court. As the decision-making process cannot be fully undertaken until the board has directed the Secretary of State to release the prisoner, it is essential to have these interim protections, so that there is a proper authority to detain the prisoner in the meantime. I beg to move.

[Lord Thomas of Cwmgiedd (CB)]

I am very grateful to the Minister for what he said and the amendments he has put forward. For reasons that would be boring to explain, they achieve exactly the same result in practice as the amendments put forward by myself and the noble and learned Lord, Lord Burnett of Maldon. I am delighted that the Government have accepted this and I concede that their amendments are simpler.

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

My Lords, I simply say that we support these amendments; we argued for them in Committee. A view I expressed then was that it was bizarre that the Bill provided for the Upper Tribunal to determine Secretary of State referrals from the Parole Board of release decisions, with the High Court involved only in cases with sensitive material.

We also agree that releases should be suspended pending decisions on such referrals by both the Secretary of State and the divisional court. The only further point I will make is that I hope that the Minister will be able to indicate from the Dispatch Box that such referrals should generally be dealt with as expeditiously as possible, to minimise the anguish of people waiting and the risk of prisoners having their time in custody unjustly extended by the delay.

--- Later in debate ---

Introducing a statutory requirement for six-monthly reviews to take place would remove the flexibility to deliver an approach best suited to the needs of the individual. I thank the noble Lord again for his contribution to the debate on this matter in his amendments. I hope my response and the operational changes made by HMPPS have reassured him and that he will not feel the need to press his Amendment 143. I commend the Government’s amendments to the House. I beg to move.

[Lord Thomas of Cwmgiedd (CB)]

My Lords, I rise to address the amendments that stand in my name. The purpose of these amendments can be briefly stated. It is to try to achieve a measure of justice for those on whom IPPs were imposed during the limited period 2005 to 2012. It is important to bear in mind what Lord Lloyd of Berwick, then Lord Brown of Eaton-under-Heywood, and then Lord Judge all did to try to right the problems that had been caused by this sentence. It was a sentence that Lord Judge described as the most draconian on the statute book, apart from a discretionary life sentence. I am extremely grateful for all that the Lord Chancellor and the Minister have done to try to deal with these issues, but we are side- stepping a fundamental issue: the way in which we release those who are subject to this sentence. We should not do that, and this House has a responsibility.

Of the amendments that stand in my name, in the time available, I wish to speak to only one: Amendment 149A. It is an attempt to compromise; to do at least something to give hope and provide justice. It leaves the release test as it stands but requires the Parole Board to take into account the concept of proportionality and other factors in making its determination. It is designed to give hope and a sense of justice to those who are behind bars under IPPs, and their families. There are three reasons I wish to highlight.

First, although a few were given IPPs who might have been given the most draconian sentence—a discretionary life sentence, under pre-2003 legislation, as a result of decisions of the Court of Appeal in the Kehoe and Wilkinson cases—the vast majority would have been given determinate sentences if the IPP sentence had not been put on to the statute book, or would have been released long ago without any risk assessment. The way our system worked historically and works today is what would have happened to them. Given that the vast majority of those under IPPs would have had that, how can it be just that, eight years later, we have done nothing—that is, in effect, what has happened —to revise this and put the Parole Board in a position to permit their release?

Secondly, if one looks at those who were sentenced in the period up to 2008, some were imprisoned who would have received a sentence of under four years. It is incredible to think that we are now releasing prisoners who have been sentenced to under four years because the prisons are overcrowded. Why can we not have regard to that? Again, this is unjust.

The third reason is that there can be little doubt— I referred to the evidence when I spoke in Committee—that the mental health of many of those who are still detained or have been recalled has suffered as a result of this sentence. The evidence is very strong and the effect on them is a matter on which we ought to reflect. The vital factor here is state responsibility—and, fortunately, we are beginning to live up to our responsibilities as a state. The position can be very briefly explained.

There is significant agreement that, if you do not know when you are going to be released, a long period of detention causes huge mental health problems. It is quite different for those who receive discretionary life sentences for the most serious crimes, described by Lord Bingham as sentences of a

“‘denunciatory’ value, reflective of public abhorrence of the offence, and where, because of its seriousness, the notional determinate sentence would be very long, measured in very many years”.

Such sentences are deserved in those cases—you can understand why people receive them—but how can it be just to keep in prison those who, during this specific eight-year period, committed something for which, before and today, they would have had a determinate term? It is no wonder that they and their families feel injustice.

I am sure that, if this point were put properly to the British public, as it is now being put in the media, they would understand. Therefore, I find it difficult to follow why people cannot go along with a measure of reform.

The crux of this amendment is to require the Parole Board to take into account proportionality—that is, looking at the length of term served as proportionate to the original offence, and some of these offences were not that serious—together with other factors, when determining whether the test of public safety has been met. It is vital to appreciate that the overwhelming majority of these people would have been released without any risk assessment. Looking at the position today, how can it be just that they should be kept there?

Now, the Minister might say that there is a provision in the Act that could be relied on. It is difficult to know precisely what the Minister will say, because he has not said it, but I am sure that is no answer to what I have said, because the difficulty is that what is in the current Bill does not require the Parole Board to do what this amendment requires it to do, which is to have regard to proportionality and other factors that affect the position. To my mind, there is a very simple question. It is 11 years after the abolition and I pay particular tribute to the noble Lord, Lord Blunkett, who has led on, and accepted responsibility for, dealing with this. It is a great shame that others will not do the same. We should, as a state, accept responsibility and bring about at least one step towards reform. It is not what I believe we should do, but I put this forward and support it as a measure of compromise.

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Moved by

[Lord Thomas of Cwmgiedd]

149A: After Clause 48, insert the following new Clause—
“Imprisonment or detention for public protection: release test II(1) This section applies to a prisoner serving a sentence of imprisonment or detention for public protection who has served a period of imprisonment or detention—(a) in excess of the maximum determinate sentence provided by law for the offence or offences for which they were convicted, or(b) 10 years or more beyond the minimum term of their sentence.(2) In the case of a prisoner to whom this section applies—(a) the Secretary of State must by order pursuant to section 128 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (power to change test for release on licence of certain prisoners) direct that, following the prisoner's referral to the Parole Board they will not be released unless the Board is satisfied that, having regard to the proportionality of the term served to the seriousness of the offence or offences of which they were convicted, and any other relevant factors, it is no longer necessary for the protection of the public that they should continue to be confined;(b) section 28ZA of the Crime (Sentences) Act 1997 (public protection decisions) does not apply.”

[Lord Thomas of Cwmgiedd (CB)]

My Lords, I wish to move this amendment. I thank all who participated in the debate we had a little while ago, but I am moving it because it is necessary to confront and deal with the problem that has occurred by reason of the imposition of IPP sentences and the effect it has had on prisoners, particularly their mental health, of which examples were given during the debate.

The Parole Board can be trusted to make proper decisions. The test will remain the protection of the public, but anyone who has experience of judging risk in relation to prisoners knows it is not an absolute and it is right to give the Parole Board guidance to take proportionality and other factors into account. I therefore wish to test the opinion of the House.

Arbitration Bill [HL]

Lord Thomas of Cwmgiedd Excerpts

Lords Special Public Bill Committee
Wednesday 27th March 2024 Other Business

[The Parliamentary Under-Secretary of State, Ministry of Justice (Lord Bellamy) (Con)]

My Lords, in moving Amendment 1 to Clause 1, I extend my thanks and appreciation first to the Law Commission for all the work that has gone into the preparation of this Bill and secondly to the many stakeholders who submitted evidence to the Special Public Bill Committee, as well as all those who have assisted us throughout this Committee process. Although the submissions have been most carefully considered, in the event the Bill is little changed from the version submitted and prepared by the Law Commission.

None the less, the process has been, in the Government’s view, most valuable. We have thoroughly reviewed the Arbitration Act 1996, which has provided our arbitral framework for some quarter of a century and has underpinned the foremost position that we enjoy as a destination for international arbitration. I hope that the Committee and all concerned will accept that we now have a thorough review of the 1996 Act, which is a most important advance in maintaining an up-to-date and effective procedure for arbitration, especially international arbitration, in this country.

Clause 1 provides certainty beyond doubt that the law governing the arbitration agreement will be the law of the seat, unless the parties expressly agree otherwise. By inserted Section 6A(2), any law chosen to govern the main contract does not count as an express choice of law to govern the arbitration agreement. In the Government’s view, that is a much clearer approach than that provided by the common law, notably through the Supreme Court’s decision in Enka v Chubb.

Members of the Committee will be aware that there has been thoughtful input from stakeholders to the Committee on whether the default rule in Clause 1 should be further improved on. Subject to one change, and having carefully considered those views, the Government’s position is that Clause 1 should not be further amended. The Law Commission’s policy was to reverse the decision in Enka v Chubb but not go further than that. The Law Commission’s draft, which was widely consulted on, seeks to balance the views of the sector while not being overly prescriptive.

The Government support preserving Clause 1 as it is, subject to one change, which is the subject of Amendment 1. Amendment 1 will remove the words “of itself” from new Section 6A(2), following observations that those words were likely to cause undue confusion, a point first raised at Second Reading by the noble and learned Lord, Lord Hope of Craighead, and other noble Lords and further supported by stakeholders’ evidence to the Committee. Amendment 1 deletes those words and, subject to that amendment, I hope noble Lords will agree that Clause 1, as amended, should stand part of the Bill. I beg to move.

[Lord Thomas of Cwmgiedd (CB)]

My Lords, I will briefly make a few observations. First, I thank the clerk of the Committee, who has been invaluable to us all and extremely diligent in the work that he has done. One will have the opportunity no doubt to thank him again at a further stage of the Bill, but I wanted to put that on record. I thank the Committee Members, some of whom are absolutely expert in the law and some who found this an amusing and, I hope, interesting excursion into an important part of our law. I am also deeply grateful to the Minister and his private office for the assistance that they have given us.

The people who deserve the most thanks, however, are those—I prefer not to use the modern term “stakeholders”, because I do not think that it is an accurate description—who came to give evidence to us, who are expert in this highly technical area of the law. They gave us of their wisdom and their experience—not only practitioners, but those who ran the important institutions of arbitration and those who used it. We are immensely grateful for their diligence.

As the Minister said, this is an important Bill for arbitration. Having seen the achievement of the 1996 Act, particularly the work of Lord Mustill, Lord Steyn and Lord Saville in producing a readable document for those whose first language is not English, we have not been complacent. We have grasped the need for change and faced up to the increasingly severe competition for this desirable legal and dispute resolution business. It has been particularly helpful to have had the input of the judges on at least one of the clauses in ensuring that we keep up with the tradition of expert judicial input into this highly technical area of the law. I also thank Professor Sarah Green and her team for their work. Although, as will become apparent, we have concentrated on one or two points, the vast bulk did not need any review by us or the experts who assisted us.

The first of those issues that we have to consider today relates to this amendment. Although other forms of wording were suggested, there cannot be any doubt as to the intention of Parliament. I hope that, if this matter is ever litigated in the future—and I hope that that never arises—there will not be the kind of misunderstanding that occurred in the course of the judgments in Enka about Parliament’s intention.

I want to raise one point. The Law Commission was not adverted to the issue in respect of arbitrations under treaties. This was raised with us at a time, unfortunately, when we had completed the taking of evidence. I still think that there is a difficult issue that needs to be confronted and I hope that, between now and Report, it can be. I am not persuaded at present that this is not an issue that needs addressing. However, as it came up at a late stage, and as the Bill needs to be progressed as soon as possible, it is something to which we can return on Report after those concerned in government have had a chance to take advice from experts in this area—they are simply not “stakeholders”, which is a term that I find discourteous, although I am sure that the Minister intended no discourtesy to people who spend their lives in this kind of business and who in this area are far more expert than the Law Commission itself.

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

My Lords, I want to add to what the noble and learned Lord, Lord Thomas, has just said, and I add my thanks to everyone that he thanked. I express the deep gratitude of the Members of the Committee that he so ably led for his chairmanship throughout, his inspired leadership, his understanding of difficult issues and, perhaps even more important, his ability to explain difficult issues that challenged the experts—that is, witnesses, those who were listening to the Committee and those Members of the Committee who are not lawyers. We are all grateful to the noble and learned Lord. We are also grateful to the clerk, who kept us well-informed throughout, to the Law Commission for its work and to Professor Green in particular.

I shall say a word or two about the witnesses. We heard from many witnesses and read the written evidence of many more. The degree to which, although there were disagreements, they were conducted and expressed carefully and with regard to the opinions of others was notable. In particular, I and others were grateful to the witnesses who gave evidence orally —I too prefer “witnesses” as a word to “stakeholders” in this context, and “experts” also—for their engagement with our questioning and, in the case of the amendments today, for effectively achieving unanimity on the need for the amendments that were discussed.

I shall say a word or two about Amendment 1. It was, and I think is, common ground that Enka and Chubb left the law on the choice of arbitration law in an unsatisfactory and unclear state. The Bill as originally proposed included the words “of itself”. To put this on the record, without the amendment new Section 6A(2) would have read: “For the purposes of subsection (1), agreement between the parties that a particular law applies to an agreement of which the arbitration agreement forms a part does not, of itself, constitute express agreement that that law also applies to the arbitration agreement”. For the lawyers among us, that raised a red flag, or rather rang a bell signalling danger. The words “of itself” suggested that if there were more then there might be such an express agreement, because of the agreement between the parties that a particular law applied to the agreement. In our view, the deletion of the words “of itself” subtracts nothing and adds clarity. For that reason, we support that deletion and this amendment entirely.

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[Lord Bellamy (Con)]

My Lords, I again associate myself and the Government with the thanks to everyone that have been enunciated this morning, particularly to the noble and learned Lord, Lord Thomas, for his chairmanship of the Committee. One point that arises from the remarks that have been made is the question that was raised by the noble and learned Lord, Lord Thomas, about the bilateral investment treaty. This was not raised during the Law Commission consultations, the written submissions that the Committee received or the oral evidence. It was raised after the 28-day period for taking evidence was completed. However, the Government are now seized of the point, are reflecting carefully on it and will provide an update as soon as they are in a position to take a view on what should happen next.

[Lord Thomas of Cwmgiedd (CB)]

My Lords, may I say how grateful I am to the Minister for his last remarks? It is a misfortune in the experience of those who are lawyers that sometimes someone only sees a point at the very last minute. It is not unusual and no one is to be criticised for it, but once a point is seen it must be put to rest. I look forward to what the Minister has to say, but I am deeply grateful for his further consideration of the matter.

Amendment 1 agreed.

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[Lord Thomas of Cwmgiedd (CB)]

My Lords, I warmly support the amendments and I thank the Minister for bringing them forward. I commend parliamentary counsel on the elegance with which they have drafted the short amendments needed.

This is by far the most important matter before the Committee because it has been a fundamental principle of arbitration law in England, Wales, Northern Ireland —I leave out Scotland, which in this respect has gone its own way—and a large number of other jurisdictions for the court to determine whether an arbitration tribunal has jurisdiction. Although the arbitration tribunal may reach its own view on jurisdiction, only a court that is competent may decide whether the tribunal in fact had jurisdiction. It is sometimes said—a little brutally, perhaps, but with complete accuracy—that a tribunal cannot pull itself up by its own bootstraps. The clearest expression of that principle was set out by the noble and learned Lord, Lord Mance, in his judgment in Dallah.

It is important that we have made two things clear with this amendment. First, when the matter comes before the court, it is not an appeal but a completely de novo review of the position and a determination. In that connection, it is clear from what we heard from the experts who appeared before us that the commercial court has shown considerable skill in balancing the fundamental nature of the jurisdiction of the court with the fact that the parties may have spent a lot of time exploring this issue before the arbitrator. Therefore, what has come out in the amendments to this clause is a proper and true expression of the position. I am particularly grateful to Mr Justice Foxton and Mr Justice Henshaw for explaining that to us with the clarity necessary to put this clause into language that leaves the position beyond doubt.

I am also grateful for the elegant drafting suggestion to make it clear that, first, the interests of justice must always prevail and, secondly, the rules committee’s powers are not fettered. Experience has shown that it is much better to leave the rules committee with a balancing exercise and a degree of discretion, rather than trying to prescribe that in advance. It has always been the common law’s tradition to approach matters in this way and it was a mistake to try to circumscribe that, particularly given the success of the courts in this matter. I warmly support the amendments and am grateful for the elegance with which they have been produced.

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Debate on whether Clause 15 should stand part of the Bill.

[Lord Thomas of Cwmgiedd (CB)]

This clause seeks to remove the special provisions in relation to domestic arbitration from the Act, and it is entirely right to do so. However, it gives rise to a question that needs to be addressed, particularly because the broad powers of the court are being removed in respect of domestic arbitration. It is therefore opportune to use this occasion to raise the issue that has come before us. It was raised at Second Reading in relation to the problems of fraud, corruption and other related issues in arbitration.

We were greatly assisted by the evidence that we received on this in the light of two recent decisions: that of Mr Justice Knowles in The Federal Republic of Nigeria v Process & Industrial Developments Ltd, which has won worldwide praise; and that of Mr Justice Butcher in Contax Partners Inc BVI v Kuwait Finance House, where he was asked to enforce an award that was completely fabricated.

My own experience means that I would be extremely surprised if this was an extensive problem, but there may be others who take the view that there is a little more to this. Whatever the view, this issue really has to be examined. We are particularly grateful to what Spotlight on Corruption told us in two submissions; they are valuable papers that deserve close scrutiny. The organisation highlighted the problems by reference to some other cases and put forward some solutions. What is important from the point of view of London, and indeed the rest of the UK, is that it drew attention to the position of other states, included information about important international arbitration centres such as Singapore and Sweden, and the work being done by the ICC task force.

We cannot afford to be complacent about this issue. Plainly, it was not examined by the Law Commission and cannot therefore be gone into in the Bill, but there are issues. How do we mitigate the risk that has been seen to arise? What, if any, duties ought to be imposed on arbitrators? These are extremely difficult questions and I hope this is a matter that His Majesty’s Government will consider.

My only suggestion is that this might be best done through the way in which arbitration law was originally brought up to date in this country: a departmental committee. That brings the practical expertise of people who really are involved in this, and the Government would have the benefit of it costing nothing because the private sector is always happy to help on such matters. I hope consideration will be given to this. That is merely a suggestion as to how it should be done, but it really is something that I believe should be.

The second issue that I want to raise is the way that the Special Public Bill Committee works. It has worked well in this Bill, and in another where I had the honour of chairing the committee, but there are three points that it would be useful to examine. The first is the period of time that the committee has to review the evidence. It is extremely discourteous when the Law Commission has taken, say, two years to review a subject if we tell all the people who want to say something that they have 14 days in which to do so. That does not seem an entirely fair balance. I am not saying we should veer away from 28 days, but we ought to be allowed to have a pause to give people time—not what the Government give people and are criticised for, which is six weeks, but, say, three weeks. We should be slightly more generous in our timetable. That would enable us to focus, see what people are concerned about and get witnesses to come without disrupting the lives of busy people.

Secondly, in these technical areas—some highly technical areas are coming along the road as we move to the greater use of digitalisation and artificial intelligence and the effect this has on legal matters—we have to get right the time at which detailed technical expertise is brought to bear. It is sometimes a mistake to see these areas of the law as being a bit like the rest of it. This Bill and the one relating to digital documentation are highly technical, and it is a question of getting expert help at the right stage before the Committee meets.

Thirdly, there ought to be greater clarity about what a Special Public Bill Committee can do by way of looking at the scope of a Bill, what is in it and what is and is not policy without in any way imperilling a procedure that enables us to get Bills on to the statute book quickly. We now have some experience of these Bills. Given the important question of getting our law right on adjustments that have to be made to face the age of digitalisation and artificial intelligence, it might be wise to have a rethink about the precise way in which this procedure works. It has not caused a problem due to the Minister’s helpful attitude towards this whole process, for which I am most grateful, but I foresee that there could be difficulties if we do not think of the problems that have arisen before more come down the line, which will be vital to the prosperity of the United Kingdom.

Having made those remarks, I do not wish to press my opposition to the incorporation of Clause 15 any further. In fact, I wholly welcome that clause as bringing about a much-needed improvement to the law.

[Lord Bellamy (Con)]

My Lords, in view of the noble and learned Lord’s indication that he is not pressing for the removal of these clauses—which, incidentally, have never been brought into effect—I will say a word or two about the important underlying issue that he raised about corruption. This was raised in the Nigeria and Kuwait cases that he referred to. Those cases revealed that there had been serious issues of corruption in the conduct of the arbitrations, and it is greatly to the credit of the Commercial Court of England and Wales that that was properly exposed and that, in the end, the system was seen to work well.

However, it is important that arbitrators navigating complex cross-border disputes are equipped and empowered to safeguard their process against any misuse or abuse and that everyone perceives our jurisdiction as one that facilitates clean and robust arbitration and is not tainted in any way by corruption. Certainly, it has been most important for the committee to have received evidence about that.

On that issue, I am aware that the ICC Commission on Arbitration and ADR has commissioned a task force

“to explore current approaches to allegations or signs of corruption in disputes and to articulate guidance for arbitral tribunals on how to deal with such occurrences”.

I have written to the principal arbitral institutions seeking their assistance in this matter: the Chartered Institute of Arbitrators, the International Chamber of Commerce, the London Court of International Arbitration, the London Maritime Arbitrators Association and the Grain and Feed Trade Association, as well as the Law Society and the Bar Council, many of whose members will be arbitrators or acting as counsel in arbitration. I have asked in particular what measures they have in place to mitigate the risk of corruption in arbitration, whether more should be done in the sector to mitigate corruption in arbitration, the best way to proceed and how the Ministry of Justice and the Government could support the sector’s efforts. Once we have received the responses, the Government will come to a view on what further action, if any, is needed.

Those matters are in train and this is an issue that the Government take seriously, because the reputation of London is crucial. I think that reputation is intact but we cannot be too careful in this important matter. I hope that that goes some way to reassure the noble and learned Lord that this matter has been properly raised, is on the radar and that action is being taken.

The noble and learned Lord also asked about the procedures of the Special Public Bill Committee, the timelines and the framework for dealing with that matter. Those points are well taken. I think it is a matter for the House authorities rather than the Government, so no doubt the House authorities will reflect on the points that have been made. The Government will support any sensible changes to the Special Public Bill Committee procedure in due course.

Victims and Prisoners Bill

Lord Thomas of Cwmgiedd Excerpts

Committee stage
Tuesday 12th March 2024 Lords Chamber

Moved by

[Lord Thomas of Cwmgiedd]

149: Clause 48, page 51, line 10, at end insert—
“(ba) after subsection (3), insert—“(3A) Where—(a) the prisoner has been released on licence under this Chapter,(b) the qualifying period has expired, and(c) if his case has been considered for termination previously by the Parole Board and a period of at least twelve months has expired since the disposal of that application,the prisoner may make an application to the Parole Board under this subsection.””Member’s explanatory statement
This amendment, along with two others in my name to Clause 48, would allow a prisoner whose licence has not been terminated by the Parole Board three years after their first release to make an application annually to the Parole Board for termination.

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[Lord Thomas of Cwmgiedd (CB)]

My Lords, the subject of IPPs is so well known to you all, and indeed to many outside this House, that it is unnecessary to speak at any length about it, save for one remark and one set of common grounds.

When the Minister said that this Bill was about victims, he was in every sense right. In some senses, those who received the sentence of IPP are in fact victims, as I will endeavour to explain by reference to what I think are four areas of common ground, which I think ought to guide what I wish to say.

The first area of common ground is that the 2003 Act which implemented these was a mistake and should never have been enacted. There is now no dispute about that. I pay tribute to the noble Lord, Lord Blunkett, for the candour, statesmanship and exemplary conduct he has shown—which so few do—in admitting error. He is to be warmly commended for that, and my only regret is that he is not here in person for him to hear what we all feel.

The second point of common ground is that the operation and the effect of the IPP system has been a stain on the administration of justice in England and Wales. Again, I do not think that is disputed.

Thirdly, the outcome of imposing sentences of IPP has been problematic in very many ways, and a particular problem has been the effect on the mental health of those who received this form of sentence, particularly those in the initial period from 2005 to 2008.

The fourth area of common ground is the old phrase, “Something must be done!” The real question is: what should be done? These problems have to be addressed; we cannot leave them unaddressed.

In the groups of amendments to be considered this afternoon, the real issue relates to that fourth point of common ground: what is to be done? One should begin by welcoming the leadership shown by the Lord Chancellor—this Lord Chancellor, I underline—in the Bill. He has accepted that there are problems and that they need to be addressed. We have to recognise that he is in some senses constrained by circumstances and by events which may happen later in the year. However, I very much hope that in the course of this debate we can achieve more under his leadership, which has been outstanding in this respect, and see what we can do to try either to solve the problems now or at least to make certain that the basis is there for their solution in the future.

Having said I would say very little by way of introduction, I may have spoken for too long; I now turn to the amendments in the first group. These are amendments to Clause 48 and there are four sets of them. I am extremely grateful to the noble Lords, Lord Moylan and Lord Blunkett, and the noble Baroness, Lady Burt of Solihull, for their support by co-signing these amendments, which all relate to the provisions for release on licence.

I am not sure how well appreciated it is that the licence period after release from an IPP is one of the most draconian aspects of the sentence. After release, the offender is on licence and subject to licence conditions—and, most importantly, subject to recall if they breach them—for an indefinite period presently, unless the Parole Board decides to release or reduce the licence period. At present, it cannot do so until 10 years have elapsed. It is that 10-year period which this clause seeks to address. At the moment, all cases are referred to the Parole Board for consideration—but 10 years is a very long time.

One of the things that is clear on the evidence—and it is always important to proceed on the evidence—is that the indeterminate nature of IPP sentences has created many very serious mental health issues and these are exacerbated by the licence period. It is very difficult for someone who has been in custody for such an indeterminate period, not knowing when they are going to released, to maintain his or her mental stability—and then being subject to 10 years on licence is almost impossible.

So we must warmly welcome the basis of this recall in reducing that period from 10 years to three years, because then the Parole Board can look at the licence period and decide whether it should be terminated then and there. If it is not terminated and if the person is successful and remains on licence, out of custody, for two years, there is a sunset or automatic termination. So, before I turn to the amendments, I think it is right to say that this is a huge achievement and, on almost everyone’s behalf, I thank the Lord Chancellor and the Secretary of State for doing this.

My amendments make changes to this new regime which are minor but important. I hope they are of a kind about which there will be little dispute—because, if there are disputes about these, I dread to think where we shall get to when we go down the list. Four areas are covered by these amendments. The first of these sets of amendments are Amendments 149, 150 and 151, which try to set out a more flexible and just way of terminating the licence period if it is not terminated at the three-year point.

I do not want to go into the technicalities of this too much, because this is typically awful sentencing legislation—most sentencing legislation is awful, as is shown by the fact that the Sentencing Code is about this thick—and I do not think a debate on the language is a good way for us to spend our time. But, in essence, this provides that, if the Parole Board does not at the three-year period terminate the licence, we have to address whether it is right that the person has to wait to have their licence terminated by spending two years without the risk of having their licence revoked and returning to prison.

The essence of this amendment is accepting the mental health problems that this form of imprisonment has caused and for which ultimately the state is responsible, as a result of the enactment of this legislation. This amendment seeks to restore a right of annual review. This would give the Parole Board the opportunity each year to look at the position of the individual and see whether, in all the circumstances, we can terminate.

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[Lord Thomas of Cwmgiedd (CB)]

My Lords, I thank everyone who has participated in this debate. It has proved useful: first, it is very important to set the scene, and I deliberately did not say a great deal. However, it is right to say that we owe a huge debt of gratitude to the Prison Reform Trust, to the noble Lord, Lord Moylan, to the late Lord Brown and the late Lord Judge, who campaigned fiercely on this, and to Lord Lloyd of Berwick, who fortunately is still alive and who has campaigned tirelessly. I just find a sense of deep disappointment—a matter to which I will return at a later stage—at the reluctance to be bold.

We have focused on four little points, and even on reducing the answer was not very strong. It is absurd—and I use that word advisedly—to think any Government would want to take the licence period back up. I very much hope that that amendment can in due course be agreed.

The problem really relates to the way in which the licence period operates. We need to discuss that further to see what the conditions are, and we shall come to that in due course, and to ensure that we bring the licence period to as satisfactory a termination as possible, bearing in mind—as the Minister fails to recognise—that the state has a very substantial degree of responsibility for the mental health problems that have been caused. When you talk of one year or two years, making someone stick to conditions which may not be entirely appropriate for a period of two years is a substantial burden, which can be mitigated by going to one year. But I am glad that the Government have an open mind. We shall see how open it is when we discuss the matter further.

Amendment 149 withdrawn.

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[Lord Bellamy (Con)]

I see the force of the points being made by the noble Lord, Lord Clarke. I respectfully suggest that the fear of the media is not the driving force in the case of this Lord Chancellor or, if I may say so, his Parliamentary Under-Secretary of State currently at the Dispatch Box. We are looking at the real question of public safety.

If I may ask it rhetorically, who speaks for Pauline Quinn? Admittedly, that was not an IPP case. Pauline Quinn was aged 73, was disabled and could not protect herself. She was brutally murdered by a convicted killer released on licence. I respectfully suggest that these risks are very difficult for any responsible Government to take, irrespective of what the media might say.

This raises another point. At the moment the Government are not convinced that this would make a significant difference, because the Parole Board, even under the revised test suggested by my noble friend Lord Moylan, would still have to be satisfied on the issue of the protection of the public. It is perfectly likely that one is simply raising false hopes. It does not change the process that the Parole Board has to go through to look at these very difficult individuals, who are very much at risk of harm and very difficult to manage in the community.

If you read the 2023 report from the Chief Inspector of Probation, you see how difficult it is to manage these individuals—those who have already been released, not the unreleased cohort. This is a very difficult area. At the moment the Government are not persuaded rightly or wrongly that it is a correct approach to make it easier to release dangerous people. That is the Government’s position, and I have explained it as best I can.

[Lord Thomas of Cwmgiedd (CB)]

I want to ask the noble and learned Lord about the word “proportionate”. Is there an objection to that word? It is key, because it enables you, in judging safety, to take into account the responsibility of the state for what we have done to these people.