Arbitration Bill [HL]

Debate between Lord Thomas of Cwmgiedd and Lord Beith

Committee stage
Wednesday 11th September 2024 Lords Chamber

[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.

Public Order Bill

Debate between Lord Thomas of Cwmgiedd and Lord Beith

Committee stage
Tuesday 13th December 2022 Lords Chamber

[Lord Beith (LD)]

My Lords, the noble Lord, Lord Rooker, has done a service to the House in focusing such clear attention on the Delegated Powers Committee report, and the issue that it raises. I simply want to pursue one of the points that he mentioned, which is one of the features of the guidance to which this power relates:

“guidance about identifying persons in respect of whom it may be appropriate for applications for serious disruption prevention orders to be made”.

What does the Secretary of State know that the police do not know about who it would be appropriate to make serious disruption prevention orders about? On what basis does the Secretary of State know what the police do not know and therefore have to be advised about?

The only basis I can think of is not a helpful one for the Government. It is that there is a political reason here and that what the Government want to do is say, “Never mind those people who are protesting about this, go after those people who are protesting about that.” This is the very kind of power which we have always tried to avoid giving, in the form of direction to the police, to anybody, including police and crime commissioners. There has been a very necessary reluctance to have the police directed in a way which could become political, and in which the choice of where to deploy resources was based on whom the authority concerned—in this case, the Government—disliked and wanted to see penalised in some way.

I cannot see any respectable argument for the Secretary of State saying to the police “You do not realise what I realise; this is the guidance I am giving you about identifying appropriate persons.” It is the sort of thing that even the affirmative procedure would not give us a very good chance to deal with, because you cannot amend statutory instruments, even under the affirmative procedure. But to leave it simply to the negative procedure, which is so limited and so inadequate, particularly in the other Chamber, is simply not satisfactory. The Government’s response to the Delegated Powers Committee has been wholly inadequate so far.

[Lord Thomas of Cwmgiedd (CB)]

My Lords, I wish to make one or two brief observations in respect of the way these amendments tie together. The amendment in the name of the noble Lord, Lord Coaker, which I support, sees a good precedent in what Parliament sometimes does, which is to pass successive pieces of legislation without having in mind all the complexities of the earlier legislation. We saw this most clearly in my experience in relation to search warrants of premises, and I will come back to that in a moment. There is a huge advantage in having up-to-date guidance, and the best people to produce it are those who have practical experience—namely, the police institutions—so I warmly welcome that.

But its importance goes to Clause 30, because the question I ask myself is: why is Clause 30 there? Why can it not be dealt with in two other ways? One is the use of guidance given by independent police to other police, to get uniformity; and secondly, do not forget these are applications to a court, so can we not do what we did in relation to search warrants? That is, to provide in detailed form, through the Criminal Procedure Rule Committee, working closely with the police and other organisations, the information that needs to be put before a court to make the decision on the order. Now, if the Home Secretary feels that there are areas that you need to specify—for example, about the kind of person who should be asked to supervise or do something—why can the detail of what is required, the kinds of considerations, not be put properly and openly through an independent process of rules and forms? This worked for search warrants.

We ought to bear in mind the experience of ASBOs. It is not the time at this hour of night to go back to that rather unhappy chapter, but trying to supplement un-thought-through legislation of this kind with guidance is not the way forward; there are better mechanisms.

It seems to me, when one looks at Clause 30, one asks oneself, “What is it for?” In Clause 30(2)(c), the guidance is about

“providing assistance to prosecutors in connection with applications for serious disruption prevention orders.”

Is the intention that somehow the Home Office believes that the police do not help prosecutors? What guidance do they need? These are independent people and their independence should not be called into question. In most countries, the independence of the prosecution service, as in our country, is critical, and so is the independence of the police.

I do not want to go into the constitutional points under Clause 30, because I entirely agree with what has been said. I think one ought to look at this from a practical experience point of view to say that the clause is completely unnecessary. It should be possible to deal with the practical consequences of these orders in a way that takes into account experience. This is a criticism of the way in which the modern Civil Service is structured. There are probably few people in the Home Office who remember what I have just gone through. I thought a few grey hairs might remind people that there is a better way forward than this constitutional aberration, constituted by Clause 30.

Police, Crime, Sentencing and Courts Bill

Debate between Lord Thomas of Cwmgiedd and Lord Beith

Committee stage
Wednesday 24th November 2021 Lords Chamber

[Lord Thomas of Cwmgiedd (CB)]

May I add a more hopeful note? It has been wonderful to see this Government bring forward Professor Ormerod’s work on the Sentencing Code and bring it on to the statute book, and in this Bill—this is a good point—the code is being amended rather than there being any new proliferation of legislation. So one ought to say thank you for that.

However, the Sentencing Code shows the problem. I do not know how often the Minister looks at it but it is a fiendishly complicated set of sentences that we have accumulated over the years. Although we have seen a lot of criticism of the 2003 Act, I would say in its defence that an awful lot of thought was given to it. It may not have been quite right, and there was one area which has gone badly wrong. As I complimented one side, I now compliment the other: when we looked at the 2012 reforms to sentencing, a huge amount of thought went into that. A lot of sentences that were thought to be apposite were brought forward or modified, but at least there was some thinking.

We have now reached a stage where we need—on, I hope a nonpartisan basis—to think again. Is it too complicated? The answer must be yes. Have we got the sentencing regime right in terms of its outcomes and, equally importantly, its cost and whether the money can be spent better? There can be no better mechanism for that than a royal commission. I would hope that the initial thoughts of those who drafted the manifesto could be taken forward, at least in that respect. I would hope, though maybe I am being optimistic, that when it was all laid out what an awful state our sentencing regime is in, logic would prevail and we would see some reform. However, that is just an expression of hope by a person who is not a politician.

[Lord Beith (LD)]

My Lords, I support the amendment. My support goes back to the time when I served as chairman of the Justice Committee in the House of Commons. I became utterly convinced that the absence of a coherent strategy or policy for the use of custody and other disposals was extremely damaging and distorted the use of resources in the criminal justice system to an amazing extent, leading to unsatisfactory outcomes in reducing reoffending and many other respects.

If I had not been so convinced, even during the passage of this Bill we have seen further examples of an incoherent approach to sentencing. In the course of the Bill, it was announced in the press, but by a Minister, that there would be a mandatory life sentence for the manslaughter of emergency workers. The Daily Mail reports today that that provision will be included in the Bill, although it is not clear to me how that can be accomplished—it is not even in the government amendments tabled for today—but that would be a very significant change.

We are also told that the Government intend to provide for an offence of the theft of a pet animal with a sentence of up to five years’ imprisonment. So you could get up to five years for stealing your neighbour’s cat by putting out a dish of milk and some bread because the cat seems a little underfed because your neighbours do not look after it as well as you think you would. It is absurd that we should get into that situation of sentence inflation—and there will be sentence inflation, as my noble friend referred to, because then you have arguments where legitimate organisations come to us and say, “There should be at least seven years for this offence because you get five years for stealing your neighbour’s cat.” That is how the parliamentary and political side of sentence inflation works. My noble friend has pointed to how it influences the judiciary as well, when minimum sentences cast—I was going to say “a shadow” but, rather, a particular colour of light on decisions about offences that fall short of the maximum sentence.

The reason I think a royal commission would be appropriate—notwithstanding the belief of the noble and learned Lord, Lord Falconer, that no one in government would take any notice of what it said, whoever had appointed it—is that there are different kinds of issue that need to be considered. Some are philosophical issues and issues of principle while others are practical, but they all affect sentencing and all lead to the misuse of custody, either in its extent or, in some cases, in its use at all, when other disposals could be more effective in preventing crime and dealing with offenders.

Police, Crime, Sentencing and Courts Bill

Debate between Lord Thomas of Cwmgiedd and Lord Beith

Lords Hansard - part one & Committee stage
Wednesday 10th November 2021 Lords Chamber

[Lord Thomas of Cwmgiedd (CB)]

It was a privilege to add my name to this amendment, which has been so ably moved by the right reverend Prelate the Bishop of Durham, speaking the words of the right reverend Prelate the Bishop of Gloucester. I associate myself with everything that has been said and particularly with the work being done by Revolving Doors and the Centre for Justice Innovation.

This particular amendment raises a problem with this part of the Bill. One can understand why putting in a condition or requirement in relation to the victims might appeal to a certain type of politician, but they forget that, if you are legislating, you need balance. Why put something in about victims without putting something in about the whole point of this, which is to try to deal with offending?

The reason that I put my name to this amendment goes to the way that the Bill has been structured. I apologise again for not being in my place last Wednesday. I am extremely grateful to the noble Lord, Lord Paddick, for moving the amendment that I put in. This point raises exactly the same problem: we have a framework Bill. We do not have the draft regulations or, more importantly, the draft code of practice.

I entirely support this reform, but I do not think that many people realise what a critical role cautions play in the operation of the criminal justice system and, as the noble Lord, Lord Paddick, has said in relation to an earlier amendment—I did not rise then because I thought that I could make the point now—the incredibly important constitutional and rule-of-law issues, which I underline. These relate to the relationship between the legislature, and how much detail it should go into on this, and the Executive—because the police are part of the Executive branch of government—and to what extent they should be allowed to punish, which has generally been the province of the courts.

I welcome these reforms because this is an important part of the sentencing regime—and it is part of it, whatever epithet one wishes to apply. But it seems to me that a much better approach to the Bill would be if this was brought together as a whole, so that we could say, “This bit ought to go into the Bill. That is dealt with in regulations. This should be dealt with in the code of practice”. We should have it all before us, so that we can make a sensible decision. I do not understand why this has not been done, but I hope that, before the Bill comes back on Report, we see draft regulations and a draft code of practice. Otherwise, we will all be plagued on Report with this type of really serious concern.

There are many more issues—the noble Lord, Lord Paddick, has raised some of them this morning—such as the point that the Minister made very eloquently this morning about being able to alter levels of fines. Of course, in an age where we are perhaps going to see a lot of inflation, that is important, but why alter the number of hours? The gravity of the sentence with which a particular person should deal ought to be fixed.

Therefore, I hope that the Minister will look at, first, putting this amendment into the Bill and, much more seriously and importantly, at bringing the draft code of practice and the draft regulations, so that we could review the whole thing and do a proper job, as Parliament, consistent with the rule of law.

[Lord Beith (LD)]

My Lords, I am very glad to support the right reverend Prelate and the noble and learned Lord who has just spoken. The right reverend Prelate gave us a very careful analysis of the reasons that such an amendment would improve Clause 88 of the Bill, and the noble and learned Lord, the former Lord Chief Justice, reminded us of the constitutional context and the fact that the way that the Bill is structured, and the sheer complexity of it, are not really very satisfactory, especially when so much related material is not available to us at this stage. I hope that note will be taken of what he said on that latter point.

My feeling was that, as drafted, Clause 88 does not cover the ground properly, and that the inclusion of the requirement in this amendment—that consideration should be given to what provisions can be made for the “offender to desist” from crime in the future—would give the clause a necessary balance; a phrase that the noble and learned Lord used. The clause’s emphasis is very much on finding the victim’s views, which is entirely appropriate but limited in scope.

It is of course relevant to remember that, very often, one of the strongest views that victims have is that no one else should have to suffer what they have and that something should be done to make sure that the person who has done it does not do anything like that again and cause that sort of harm in the future. So these two things are not in opposition to each other: it is a complementary requirement for the clause to include a direct reference to measures to try to make it possible for the individual to desist from crime. There is a wide range of measures, but, in the context of this clause, the right reverend Prelate mentioned drugs and drug treatment. Of course, alcohol is also a very significant factor in many of the sorts of crimes that we are talking about.

This brings back memories of an incident that occurred during my time in the House of Commons, when some teenagers pulled down and stole the union flag from outside my office. They then made the mistake of exhibiting it around the pubs of the town, which led to the police catching them pretty quickly. The sergeant rang me up and said, “I do not really want to issue a formal caution because one of them wants to go into the Army, and that may prevent him doing so. I suggest that they club together, pay for its replacement and all write to you to apologise”. That was the kind of practical policing that, nowadays, is so surrounded by rules and requirements that it is often more difficult to do. But it was the right solution. I had some delightful letters, most of them insisting that their families had always voted for me. But it made a sufficient impact on the individuals—it was just a minor thing—making them less likely to commit crimes in the future. That is the emphasis that we need to add into this clause—an emphasis on trying to ensure that that individual commits no further crimes in the future.

Release of Prisoners (Alteration of Relevant Proportion of Sentence) Order 2019

Debate between Lord Thomas of Cwmgiedd and Lord Beith

Wednesday 22nd January 2020 Lords Chamber

[Lord Thomas of Cwmgiedd (CB)]

My Lords, I will make one brief point. It is clear from what has been said, both in the impact statement and from the many points made by noble Lords, that what will be required is a very significant amount of further money for the prisons. My noble friend Lord Thomas of Gresford has described Berwyn; it is clear that much more money is needed, but that is one example.

The question I ask the Minister is: where is this money coming from? This is a critical question. The rule of law depends upon the proper provision of courts and of legal aid—legal aid not merely in criminal matters but in family matters, where it is denied to a huge number of people; in civil matters; and for really important things such as disputes relating to social services entitlements and to employment. It is not generally available there at all. Can the Minister assure us that what happens will be through new Treasury money and not, as has happened over the last few years, through gradually denuding the other parts of the Ministry of Justice, particularly the courts and legal aid, to prop up the Prison and Probation Service? The two are plainly interlinked because there is emerging evidence to show that if you do not deal with people’s legal problems, you often set them off on the road to criminality. I hope the Minister can assure us that this is new money, because that is not what has happened in the past.

[Lord Beith (LD)]

My Lords, perhaps I may follow the noble and learned Lord on the resources point. Prison is an extremely heavy user of resources. It is not possible to have a political argument about the stance a party wants to take on the use of prison while ignoring those substantial resource implications. Those resources are denied to other things which will stop people committing crimes or make it less likely. Here, we are confronted with one piece of a quite large jigsaw puzzle. It is one measure which will go alongside the sentencing Bill and the rhetoric which effectively urges judges and magistrates to pass longer sentences. All these things act together to create sentence inflation. Not merely will we then have the 2,000 extra places by 2030, which the Government’s own impact assessment says is the central estimate of the effect of this statutory instrument; we will have all those other increases as well. All of that claims money which is effectively denied to probation and to local authority services, which are necessary if we are to steer young people away from crime. Therefore, it is money diverted contrary to the interests of public safety.

The impact assessment refers to “crowding”. This is Ministry of Justice code for what the rest of us call overcrowding, but we are apparently not allowed to use “over” any more. Overcrowding is not simply prisoners living in uncomfortable conditions because there are three to a cell; it is having more prisoners than one has the staff or facilities to rehabilitate. That is the consequence of prisons having more people in them than they are supposed to have. You do not rehabilitate your prisoners because you cannot do the courses, and you do not have the custodial staff to take people to the courses they are supposed to be taking. You even sometimes have instructors unable to do their job because the prisoners cannot safely be brought to carry out the courses. We will increase overcrowding by this series of measures.

There is no claim in the impact assessment that there will be a valuable deterrent effect. We all know that there will no such effect; people carrying out the offences that we are talking about do not calculate whether they will be released at half or two-thirds of the custodial part of their sentence, so that is not even claimed. However, there is of course the admission that shorter periods on licence could affect reintegration. The points that a number of noble Lords have made add up to a pretty strong case against a measure for which a serious positive case is difficult to put forward.

Courts and Tribunals (Online Procedure) Bill [HL]

Debate between Lord Thomas of Cwmgiedd and Lord Beith

Committee: 1st sitting (Hansard): House of Lords
Monday 10th June 2019 Lords Chamber

[Lord Thomas of Cwmgiedd]

I accept that, but I think it is part of the terminology used. That is why, in the intervention I made earlier, I said that it is important to appreciate the difference between a simplified procedure and the way the court works. Unfortunately, despite everything the noble and learned Lord, Lord Woolf, did to try to simplify civil procedure, the White Book has grown from 2,000 to 3,000 pages.

We need to go back. It is an unfortunate tendency of lawyers to ossify everything. This is an attempt, using electronic means, to make access to justice easier and to simplify it, but we plainly need safeguards. I am sure the best safeguard of all is the concurrence of the Lord Chief Justice, which I am sure would solve most of these problems yet allow access to justice to use 21st-century methods to make it cheaper and—if I may, with some trepidation, say so in this House—to conduct litigation without the need to deploy expensive lawyers.

[Lord Beith]

My Lords, the weakness in this part of the Bill seems to be that there are no limitations on or barriers to the total extension of the online procedure to all civil, family and tribunal proceedings. Nobody is actually suggesting that, but the absence of any barriers means that we can stray into that territory before there has even been a serious debate about how we could use online procedures in some of these areas. It is fairly obvious for small money claims and promising in a number of other areas, but the Bill is so wide that its lack of any specified criteria or other limitations is worrying.

--- Later in debate ---

[Lord Beith]

My Lords, the noble and learned Lord has reminded me that it is well known that the application system for the US ESTA visa waiver scheme has a number of such sites which exact charges, to which people are not liable because of the very modest charge on the official site itself. I will simply point out that HM Courts & Tribunals Service is already working on this sort of thing. There are 18 locations in which it is providing face-to-face digital support, or at least is said to be providing it. The Government have been working this up on the pilot schemes, so it seems to me another ideal opportunity, which the Minister should not neglect, to accept that the Government are actually on the right lines on this.

It would be rather more reassuring if the Bill contained some obligation to provide this kind of support. If it is not there, the Bill will be open to the charge from many people that it is creating a new system without ensuring that people can use it. The means are beginning to be developed by the Government, so I hope that they provide some statutory basis for them.

[Lord Thomas of Cwmgiedd]

I make two brief observations. First, I support the introduction of the amendment by the noble Lord, Lord Marks, and emphasise that HMCTS provides a lot of advice on various areas and, because it is now jointly accountable to the Lord Chief Justice as well as to the Minister, its independence ought to be seen. Secondly, if Amendment 13 is adopted, I would hope that due regard is paid to the provisions of the Welsh Language Act; subsection (5) does not do so properly at present.