Commission on Justice in Wales

Lord Thomas of Gresford Excerpts

Monday 7th October 2024 Lords Chamber

[Lord Ponsonby of Shulbrede (Lab)]

The Welsh Government highlighted, in their May 2022 report Delivering Justice for Wales, the progress that they had made in implementing the Thomas commission recommendations that fall to them. They also commented that implementing the recommendation was delayed partly because of Covid-19. The commitment to pursue the case for devolution of justice and policing was included in the Welsh Government’s programme for government for 2021-26. However, as I made clear in the original Answer to the noble Baroness, the UK Government are not pursuing that option of complete devolution. We want to work in a constructive way on the initiatives that I have outlined to try to make the best possible benefit for the people of Wales.

[Lord Thomas of Gresford (LD)]

My Lords, why would it not be sensible and cost-effective at least to have a Welsh division of the High Court of Justice sitting permanently in Wales to monitor and construe the legislation of the Welsh Senedd and the administrative acts of the Welsh Executive, with increasing expertise from both lawyers and judges in Wales?

[Lord Ponsonby of Shulbrede (Lab)]

A lot of matters that are the responsibility of the Welsh Senedd are also cross-border issues. We are talking about police, courts and the way the court system behaves; probation is another example. My understanding is that this matter has been considered and keeping the arrangements as they currently are is seen to be beneficial for both England and Wales.

Strategic Lawsuits Against Public Participation

Lord Thomas of Gresford Excerpts

Wednesday 24th July 2024 Lords Chamber

[Lord Ponsonby of Shulbrede (Lab)]

I agree with the first point that the noble Baroness made. It is not just about economic crime, and that is one of the reasons why we want to have a wider review of potential SLAPPs legislation coming forward. I am not in a position to make the commitment that the noble Baroness has asked for around when any legislation might come forward, but I reassure her that we are taking this matter very seriously. On the Private Member’s Bill that fell at Dissolution, we support the principle behind it. However, we believe that there are outstanding questions that need to be properly balanced. That is to prevent the abuse of the process of SLAPPs, about which the noble Baroness spoke, but we also need to protect access to justice for legitimate claims. It is that balance that needs to be fully worked through. There were live discussions with important stakeholders—for example, the Law Society—at the time of the previous Private Member’s Bill. We have every intention of continuing those discussions as we review any potential legislation.

[Lord Thomas of Gresford (LD)]

The Private Member’s Bill that I produced on the abusive SLAPPs civil litigation, which was given its First Reading in the last Session of the last Parliament, was based on the Ontario model, which was approved in the Supreme Court of Canada as recently as last year and provides a way forward. It was also well received, as I recall, by the Ministry of Justice. Will the Minister take that into account?

[Lord Ponsonby of Shulbrede (Lab)]

My Lords, there are various attempts at dealing with SLAPPs in different legislatures across the world. The Government are currently working with the Council of Europe, with its 46 member states, to try to get a more comprehensive approach. The noble Lord’s experience in Ontario, which he referred to, will be taken into account.

King’s Speech

Lord Thomas of Gresford Excerpts

Wednesday 8th November 2023 Lords Chamber

[Lord Thomas of Gresford (LD)]

My Lords, I must express my sorrow at the loss of Igor Judge. We became friends 50 years ago, when I was trespassing from the Welsh circuit on to the Midlands circuit, in Shrewsbury and Birmingham. We had many a tussle at that time—and I hope to be able to say more about how I feel about Igor.

In his Statement to the House of Commons on 27 October, the Lord Chancellor, Alex Chalk, made some important concessions to common sense on the issue of short sentences. He said that prisons should not ruin the redeemable. A short stint in prison causes offenders to lose their homes, break contact with key support workers and, crucially, meet others inside prison who steer them in the wrong direction. This leads to more than 50% reoffending. The noble and learned Lord, Lord Bellamy, has confirmed these sentiments, and I wholeheartedly support their call for a presumption against short sentences.

However, Mr Chalk has had to balance this sensible reform by throwing red meat to the right wing of his party: he proposes mandatory life sentences for a wider spectrum of offences, removing the discretion of judges to do what they are paid to do—administer justice in a wide variety of circumstances. Further, he intends to abolish sentence remission in serious cases: no automatic reduction of sentence as a reward for good behaviour. I await the reaction of prison governors and the Prisoner Officers’ Association to the removal of the most powerful tool they have for maintaining safety and stability in our overcrowded prisons.

Mr Chalk is keen to build 20,000 new places in modern prisons. The current overcrowding of prisons is due, he says, to an increase in the remand population, amounting to 15,000 unconvicted prisoners locked up awaiting trial. I would welcome new prisons if the policy were joined to a commitment to pull down the 18th-century decaying and filthy jails we still employ. But the Lord Chancellor will burnish his reputation if he tackles the backlog with energy and commitment. Numbers of remand prisoners built up steadily following the austerity cuts of 2012 and reached a peak in mid-2022 of 89,000 cases awaiting trial, with 4,000 of these waiting for more than two years. The Government’s aim is to reduce the backlog from that peak to 53,000 cases by March 2025. That is a snail-like pace, and the reason for it is largely the lack of judges to preside and of barristers both to prosecute and defend. The pace has slowed. A freedom of information request in August 2022 indicated that, on average, fewer than 300 trials were completed per week between April and July 2022, compared with more than 350 per week in the previous year. Getting rid of the backlog is slowing down.

There is a dearth of Crown Court judges. In the last round of appointments, only two-thirds of the vacancies were filled, and as they are appointed, the pool of senior barristers diminishes. Mr Max Hill KC, the recently retired Director of Public Prosecutions, said that 500 trials in the current year could not go ahead on the scheduled date because no prosecuting barristers were available. He said that the CPS sometimes resorts to

“literally ringing round sets of barristers’ chambers, trying to place the brief”,

adding:

“These are difficult times. We do have an overloaded system, it’s not easy”.


The income of the criminal Bar diminished by some 40% in real terms after 2000, driving potential recruits away. My grandson at Cardiff University tells me that the majority of his fellow law students all want to be human rights lawyers. Well, you can starve doing that too. There is nothing more stimulating or exciting than the drama of a criminal trial, where the task on your shoulders is to persuade 12 persons of unknown backgrounds and experience to agree one way or the other to a verdict that will permanently affect the life of the individual and his family. That is a serious task, to be performed within a framework and discipline of strict principles of integrity and fairness, with the advocate’s duty to the court and to the law to the foremost. It calls for a multiplicity of talents.

The Lord Chancellor knows this from his own considerable experience. I urge him to do everything he can to refresh the profession and to recruit students of talent to the criminal Bar. He should encourage them, offer prizes for excellence and speak to them. That is better that than building prisons for people to rot in.

Lord Chancellor and Law Officers (Constitution Committee Report)

Lord Thomas of Gresford Excerpts

Thursday 20th July 2023 Grand Committee

[Lord Thomas of Gresford (LD)]

My Lords, what a delight it is to see the noble Lord, Lord Hennessy, in his place. I have followed his wise counsel on many occasions, and it is great to see him back—not least because he was a very effective member of the Constitution Committee, even though he was at the other end of a television link.

As a member of the Constitution Committee, I first express my thanks to the noble Baroness, Lady Drake, for her calm, careful and considerate chairmanship of the committee, on this issue as on others. I am grateful to the clerk, John Turner, and his team for their invaluable work in putting the thoughts of the committee together in a compelling report.

I want to focus my remarks upon unfinished business: the dual role embodied in the one person of Lord Chancellor and Secretary of State for Justice. I am pleased to find myself again on the same side as the noble and learned Lord, Lord Garnier. This issue was very firmly kicked into the long grass by the Constitution Committee. In paragraph 186 of the report, we concluded that the advantages of separating the two roles were not clear and that we were not in favour of making changes at this point in time, having regard to the burdens inherent in any major machinery of government change. However, we recommended that a new Government, or a Prime Minister embarking on a reorganisation of government, might wish to consider or at least contemplate removing responsibility for prisons from the Lord Chancellor’s remit.

I do not think anyone on the committee wished to resurrect the Lord Chancellor of old as Speaker of this House or as head of the judiciary controlling the appointment of judges. His department had its problems in that regard in the old days. I met an old friend and colleague of mine a week ago. We took silk on the same day in 1979. Some years later, he discovered that, according to his personal but secret file in the department of the Lord Chancellor, he had fought eight general elections as a Liberal candidate, which was not really an advantage for judicial preferment. Unfortunately, his press cuttings had been mixed up with mine. It was not, in those pre-digital days, a perfect system.

Things changed in 2003 when the Lord Chancellor’s Department became the Department for Constitutional Affairs. In 2006, the appointment of judges became the responsibility of a new Judicial Appointments Commission. The Department for Constitutional Affairs morphed into the Ministry of Justice in 2007 and took over responsibility for prisons from the Home Office. Thus, the administration of courts, its staff and its estates merged with the administration of prisons.

In a speech on 24 May last, on the occasion of the swearing in of the latest Lord Chancellor—the excellent and able Alex Chalk—the Lord Chief Justice, the noble and learned Lord, Lord Burnett of Maldon, who has been quoted already many times, said:

“The functions of Lord Chancellor in a modern age might be thought enough to keep a minister fully occupied. The original concept of a Department for Constitutional Affairs did just that. But then along came prisons, bringing with it an obvious potential conflict of interest and problems themselves enough to consume the energies of a superhuman. That marriage may not have been made in heaven. When political breathing space allows, the time may well have come for the role of Lord Chancellor to be looked at again”.


The reason given by a number of witnesses to the Constitution Committee in the course of this inquiry for maintaining the joint responsibilities for courts and prisons in the hands of one Minister was that, unless the Lord Chancellor were given a significant spending department, he or she would have no clout in the struggle for funds from the Treasury. I defer to the experience of the former Lord Chancellors who appeared before us, but the fact is that both the court system and the prison system, which do need money, are starved of resources. I can put it no better than the noble and learned Lord, Lord Clarke of Nottingham, who told us in his evidence: 

“The present Lord Chancellor has the misfortune of presiding over a department both the large chunks of which are in a pretty dire state—worse than I can recall for years ... In both these particular cases, you have a really dire problem of trying to get resources applied to tackling the problem against a background of economic crisis when the public finances are in a dire state”.


The noble and learned Lord, Lord Clarke, was nevertheless the advocate of no change, as was Mr David Gauke, on the basis of the “clout” reasoning, but having “clout” has not prevented the criminal Bar going on strike for lack of funds, the ceiling of the court in Hereford’s magnificent Shirehall collapsing or the general crumbling of our famous Assize Courts and indeed more modern courts. Nor has it prevented the shortcomings in staff, of which I have often spoken, in the large and modern Berwyn prison near Wrexham, my home town. Alex Chalk opened the new Fosse Way prison in Leicestershire two weeks ago as part of the Government’s £4 billion programme to create 20,000 new prison places. He had clout enough to lock people away—I mean, he is part of a Tory Government—but increasing room for prisoners must surely impact on sentencing policies and the courts: build it, and they will come.  

 Meanwhile, the Chief Inspector of Probation, Mr Justin Russell, wrote in his 2023 report on serious fraud offences:

“It is very concerning that assessments for the risk of harm a person on probation may pose remain inaccurate, incorrect, or incomplete. It is clear that reduced staffing levels within local services continue to have an impact on the quality of work we are seeing, both in these serious further offence reviews and the findings from our local inspections. Once again, I call on HMPPS to ensure services have the staff they need in order to manage every person on probation actively and effectively to monitor any risk of reoffending”.


Rehabilitation is not a priority compared with building prisons. On bread-and-butter issues, today we learned that the MoJ missed a statutory deadline by six months for dealing with intestate estates, in a time of inflation.

To my mind, certainly as to the mind of the noble and learned Lord, Lord Garnier, and others, the role of the Lord Chancellor is not to be a nuts-and-bolts mechanic but, as we have described in the report, to be the guardian of the rule of law: the one person of experience, judgment and standing who can say to a Prime Minister, “No, your policy is unlawful”.  What we have seen under this Government is unlawful Prorogation, the unlawful United Kingdom Internal Market Act and now the Illegal Migration Bill, described yesterday by the United Nations High Commissioner for Refugees, Volker Türk, as 

“contrary to prohibitions of refoulement and collective expulsions, rights to due process, to family and private life, and the principle of best interests of children”.

That is the current unlawful way in which this Government act.

 The Lord Chancellor is now a diminished figure. It is not surprising. The noble and learned Lord, Lord Burnett, pointed out that Alex Chalk is the seventh Lord Chancellor he has served alongside in his six years as Lord Chief Justice. There have been 13 Lord Chancellors in the 20 years since 2003. Before then, there had been 13 Lord Chancellors in 64 years. In former days, it was a final destination job to close a distinguished career. Now it is but a stepping stone, with its independent role of guardian of the rule of law marred by hopes of preferment to a more important Ministry.  

 So, there it is in the long grass. I hope a new Government will recognise, as the noble and learned Lord, Lord Burnett, said, that the administration of justice is one of the building blocks of society, and that courts and prisons each require the focused energies of a single Minister to tackle their separate problems.

Sentencing Act 2020 (Magistrates’ Court Sentencing Powers) (Amendment) Regulations 2023

Lord Thomas of Gresford Excerpts

Tuesday 16th May 2023 Lords Chamber

[Lord Ponsonby of Shulbrede (Lab)]

My Lords, in moving this regret Motion, I remind the House that I am a sitting magistrate in London. I thank the Magistrates’ Association for the briefing that it has provided, as well as the Secondary Legislation Scrutiny Committee for its work in asking, the Minister, Mike Freer, to flesh out the reasons for this change to magistrates’ sentencing powers.

The instrument that is the subject of this regret Motion reduces the maximum custodial sentence that magistrates’ courts can impose for a single either way offence from 12 to six months, reversing a change put in place in May 2022. The higher sentencing powers had been in place for only 10 months when they were reversed. The May 2022 change did not alter the maximum sentence for any given offence; it simply changed which court might try cases expected to have a maximum sentence of between six and 12 months.

The justification given by the Lord Chief Justice was that, since magistrates’ courts work faster than Crown Courts, the increase sentencing powers had led to an increase in the prison population that needed to be addressed, and that going back to the previous sentencing powers would slow down the increase in the prison population. The Ministry of Justice is also running Operation Safeguard, which is designed to create a vacancy contingency in the male prison estate. Minister Freer has also said that that would be part of a raft of measures to decrease the prison population. We do not yet know what the other measures will be. I want to put on record that the Minister has said that there will be a six-month review on this change in policy.

In his response to the SLSC letter, Minister Freer spoke of downstream pressures on the prison population, namely the recruitment of extra police officers, tougher sentences, more recalls of prisoners on licence, working through the Covid backlog and the Criminal Bar Association’s strike. All these factors have contributed to the growth in the prison population—about 4,000 prisoners in the past year. We do not know how that figure is broken down between these various pressures. In my view, it is unlikely that the change in sentencing powers has played a significant part in the overall increase.

I shall go through the objections to and the questions raised by this change in sentencing powers, first made by the SLSC and then by the Magistrates’ Association. First, when considering the numbers in custody and on bail, those waiting for their trial in custody will have to wait longer because of the far longer backlog in the Crown Courts. When Mr Freer, the Minister, was asked about the increased risk of reoffending of those who are on bail to Crown Courts, he said there was no available data. The SLSC commented that this was indeed a relevant factor and should have been assessed as part of the policy-making process.

On the costs of the two systems, Mr Freer asserted that the change does not give rise to any direct financial pressure because it does not introduce any new demand into the system but simply transfers some cases to the Crown Court. The SLSC was unimpressed by that point and pointed out that Crown Courts take longer to hear cases, involve juries and are very likely to be more expensive.

An analysis of the May 2022 change was promised by the noble Lord, Lord Wolfson of Tredegar, on Report of the Judicial Review and Courts Bill. The SLSC pointed out that no data had been published and called on the Ministry of Justice to complete and publish its review so that a more informed decision could be taken when considering the effect of changing maximum sentencing powers in magistrates’ courts. It also inquired whether more research could be done to see whether sentence lengths vary between similar cases in magistrates’ courts and Crown Courts.

In conclusion, the SLSC said that using the maximum sentence available to magistrates’ courts as a sort of valve that could be opened and closed in response to wider developments that affected the prison population was not an optimum way of making policy, as it failed to consider other potentially important factors. The SLSC said that maximum sentences in magistrates’ courts should be determined by the overall outcomes for society and should be evidence-based, and it believed that this was not the case with the Government’s decision.

Turning to the Magistrates’ Association, I can do no better than refer to what Mark Beattie, the current chairman of the association, has said: “The reaction of magistrates has been very negative. Magistrates each spent three hours completing a mandatory training pack, totalling over 30,000 hours of our own time on our own equipment. Chairs of training committees personally chased up people who had not done the training so they could complete the training before they sat in court. These chairs are feeling particularly aggrieved, both because of the many extra hours they have spent at this task and because they fear that this sudden reversal will have damaged their ability to persuade people the next time they ask them to undertake extra training. They feel personally undermined, and as this is an essential statutory role, it is especially bad if they feel that their ability to perform their duties has been impacted. ‘Why do the training if the rules can be changed so easily?’ is a message that we are hearing. We know, because we have been told, that magistrates are resigning over this matter, although we don’t know the numbers or the locations.”

Of course magistrates will work conscientiously to deal with the cases put in front of them and fulfil the judicial oath they have all taken. However, it is incumbent on the Government, through the Ministry of Justice, to ensure that the decisions taken are properly evidenced-based and that court users can understand the rationale behind those decisions.

I would be grateful if the Minister could give any indication of a timetable for a review of the current sentencing arrangements, and whether that review will take into account the additional factors highlighted by the SLSC and the Magistrates’ Association. I beg to move.

[Lord Thomas of Gresford (LD)]

My Lords, I am sorry to hear that the magistrates were upset by the introduction of this change.

I was articled as a solicitor in the office of the clerk to the magistrates of the Ruabon Bench in north-east Wales. The chairman of the Bench was Lord Maelor, formerly TW Jones, the Labour MP for Merioneth. He had gone down the pit at the age of 14 for 12 shillings a week and later served time in Wormwood Scrubs and Dartmoor as a conscientious objector, which is an unusual beginning for the chairman of the Magistrate’s Bench. He is noted for being the first and perhaps the last noble Lord to burst into song in the middle of a speech in this Chamber. Once when Mormon missionaries called at his terrace house in Rhosllanerchrugog and asked, “Is the Lord within?”, his wife replied, “No, he’s just gone for his cigarettes.”

Nuptial Agreements

Lord Thomas of Gresford Excerpts

Tuesday 25th April 2023 Lords Chamber

[Lord Bellamy (Con)]

My Lords, I thank the noble Baroness for those birthday wishes. It is often said that life begins at 40 but experience shows that it is very much later than that. I very much hope that we will be able to legislate in her lifetime, if not my own. Prenups are undoubtedly an important issue. Since 2010, the law has been that there is a presumption in favour of enforcing prenuptial agreements unless it is unfair to do so. Secondly, although this is an important question, it affects a relatively small and privileged cohort, and it must take its place in the queue on that basis.

[Lord Thomas of Gresford (LD)]

The Minister refers to a small cohort. Has he any idea how many nuptial agreements exist as a percentage of those people who get married these days?

[Lord Bellamy (Con)]

My Lords, I do not have that information. I will see if I can find it and if I can, I will write to the noble Lord.

Economic Crime and Corporate Transparency Bill

Lord Thomas of Gresford Excerpts

Committee stage
Tuesday 25th April 2023 Grand Committee

Moved by

[Lord Thomas of Gresford]

80: After Clause 176, insert the following new Clause—
“Strategic lawsuits against public participation
(1) It is an offence for a person or entity without reasonable excuse to threaten civil litigation against another person or entity with intent to suppress the publication of any information likely to be relevant to the investigation of an economic crime.(2) A person guilty of an offence under this section is liable— (a) on summary conviction in England and Wales, to a fine;(b) on summary conviction in Scotland or Northern Ireland, to a fine not exceeding the statutory maximum;(c) on conviction on indictment, to imprisonment for a term not exceeding two years or a fine (or both).”Member’s explanatory statement
This amendment introduces a new criminal offence to deal with groundless threats in pursuance of SLAPPS in order to suppress investigations into economic crimes.

[Lord Thomas of Gresford (LD)]

My Lords, I will speak to my Amendment 80, in my name and those of the noble Lords, Lord Cromwell and Lord Agnew, and the right reverend Prelate the Bishop of St Albans, for whose support I am most grateful.

I will give a little background to set the amendment in context. In the 2021-22 Session, I drafted and introduced a Private Member’s Bill on the issue of SLAPPs, based on the Ontario model, as endorsed by the Supreme Court of Canada. Obviously, I had modified that model to suit the procedures of the civil justice system in England and Wales. Through the noble Lord, Lord Wolfson of Tredegar, I met with the Under-Secretary of State in the MoJ, James Cartlidge MP, and his officials, and had a very positive meeting with them.

My draft Bill was basically acceptable in principle, but there was one matter, they told me, it did not deal with: the scourge of pre-action threatening letters, designed to inhibit and intimidate journalistic or academic investigation. However, I was told that the Government were proposing a consultation on the issue, and indeed there was a call for evidence on 17 March 2022. It was wide-ranging; there were 48 questions asked of respondents. As it happens, not one referred to the issue of threatening letters prior to proceedings. However, one respondent suggested that any pre-action letter should require a statement of truth, so that any false allegations in the letter could be treated as a contempt of court.

The consultation finished in May of last year, and the MoJ published a full response in July. Dominic Raab said in the foreword:

“Strategic Lawsuits Against Public Protection, or SLAPPs, are a growing threat to freedom of speech and a free press – fundamental liberties that are the lifeblood of our democracy. Typically used by the super-rich, SLAPPs stifle legitimate reporting and debate”.


This is the point that I want to draw to your Lordships’ attention—he continued:

“They are at their most pernicious before cases ever reach a courtroom, with seemingly endless legal letters that threaten our journalists, academics, and campaigners with sky-high costs and damages”.


At the Second Reading of this Bill, the noble Lord, Lord Sharpe of Epsom, said:

“The Government are committed to tackling SLAPPs”


—I am sure that is right—

“but as the first country to pursue national legislation on such a complex issue”

—he ignored all the states of the United States, Canada and Australia, where such legislation exists, but never mind about that—

“it is right that we take the necessary time to consider this carefully and make sure we get it right. We will introduce primary legislation to tackle SLAPPs—this is where I am going to upset all noble Lords—as soon as parliamentary time allows”.

Now, I have to admit, I was upset. He continued:

“We are in the process of ensuring that we have anti-SLAPPs legislation which properly and comprehensively addresses the problem”.—[Official Report, 8/2/23; col. 1317]


So when will parliamentary time allow? Certainly not in this Session: it is highly unlikely that it will feature in a programme running up to a general election. So we are looking at years before this legislation can come to pass, although I guarantee that a Liberal Democrat-led Administration would deal with the matter as a priority.

I come to the substance of my amendment. I take the view that the endless stream of threatening letters—the “most pernicious” element, as Mr Raab described it, and really he should know—can be dealt with in the context of this Bill by criminalising their use in the investigation of the crimes set out in Schedule 9. I appreciate that may not cover the whole gamut of strategic litigation, and that a wider Bill will be necessary in due course, but investigative journalism is very much involved in turning over the stones of fraud, money laundering, bribery and the rest, and it is certainly in that area that SLAPPs have most frequently been used.

So the new offence that I propose could not be simpler:

“It is an offence for a person or entity without reasonable excuse to threaten civil litigation against another person or entity with intent to suppress the publication of any information likely to be relevant to the investigation of an economic crime”.


I think that is fairly understandable. The prosecution would have to prove a threat; a solicitor’s letter will speak for itself, and it will be for the jury to decide and judge its contents. Evidence will be necessary, of course, to prove intent, but that raises no more problems than in any other case in which intent has to be proved. Again, it will be a matter for a jury. An evidential burden would be placed on the defendant to raise a reasonable excuse for the prosecution to disprove, and the ultimate burden of proof of guilt would, of course, rest with the prosecution.

I believe that an offence of this nature, simply stated, would immediately result in a change of culture among those reputation lawyers who profited from this type of litigation. Their collective response to the consultation to which I referred was, “Nothing happening here, guv. Threatening? Oh, it’s just the rough and tumble of ordinary litigation”. No longer would the young Turk in the office be able to dash out on his laptop ill-considered threats. He would know that he will have a responsibility to interrogate his client thoroughly before committing his firm to intimidating conduct which would land both him and his senior partners in the dock, with all the reputational consequences for themselves. Further, it would be a great relief to threatened investigative journalists if, instead of having to consult their lawyers at considerable expense, they could make a complaint to the police and allow the criminal law to take its course. We can make this change now and let the great stew of reform of the civil procedure system which is slowly cooking in the MoJ follow “when parliamentary time allows”.

I conclude by strongly supporting the other amendments in this group for the same reasons. These are creating the means to tackle the SLAPPs problem of imbalance, as described in paragraph 15 of the Government’s response to the consultation. This is how the Government put it:

“the extreme power imbalance and inequality of arms between, on the one hand, media organisations, advocacy groups, academics, and journalists and, on the other, Claimant corporations or wealthy individuals who typically bring these cases”.

This group of amendments is designed to do something now—action, as the noble Lord, Lord Agnew, called for on an earlier amendment. I beg to move.

[Lord Garnier (Con)]

My Lords—

--- Later in debate ---

[Lord Garnier (Con)]

Before the next contribution, I apologise to the Committee but I must be in two places at once. I hope the Committee will forgive me for not being here when other speeches are made and the Minister winds up. If that is thought to be very rude, I shall sit here, and there we are, but if I may, would it be—

[Lord Thomas of Gresford (LD)]

It is unprecedented.

[Lord Garnier (Con)]

It is unprecedented and very rude of me, but there seems to be rather a lot going on at the moment.

--- Later in debate ---

[Lord Bellamy (Con)]

Absolutely. I will write to everybody after this debate and try to elaborate a little on what I have said. I hope noble Lords understand that in terms of my boss, I recently had a change of personnel, and it takes a little while to allow the dust to settle, if I may put it like that.

The only other thing I would respectfully draw noble Lords’ attention to, and I fully accept there is a certain amount of controversy as to how big this problem is, is that the Solicitors Regulation Authority issued a warning notice on 28 November 2022, which led to that authority undertaking investigations in relation to SLAPP complaints, so we are not without a regulatory instrument to at least hold the line until we are able to legislate. That, as far as one can tell, has had a salutary effect on the practical consequences of SLAPPs. It is not the case that nothing has been done.

[Lord Thomas of Gresford (LD)]

My Lords, the Minister said that the amendment which I have put forward criminalises access to justice. It does not do that; it criminalises a threat of litigation that is unwarranted and known to be unwarranted without reasonable excuse. It is perfectly simple, but I would be very unhappy to leave this Room today with the thought that the Minister has in mind that my amendment is criminalising access to justice.

[Lord Bellamy (Con)]

My Lords, perhaps I expressed myself a little loosely. Let me put it like this: in the Government’s view, this is not an area where we should introduce the criminal law, whether it is in relation to pre-litigation or in any other respect in terms of litigation. One is faced with a very basic question of when is something that is a robust and justifiable approach to litigation in a pre-action letter a threat. That is not straightforward, in the Government’s view. The Government’s view is that this is not a matter where the criminal law should intrude.

--- Later in debate ---

[Baroness Bennett of Manor Castle (GP)]

My Lords, I apologise to the Committee, I perhaps should have declared my position as co-chair of the All-Party Parliamentary Group on Hong Kong in my last intervention.

[Lord Thomas of Gresford (LD)]

My Lords, I am grateful to Minister for his response and look forward to discussing these issues with him. I am grateful to all noble Lords who have spoken, and in particular to the noble Baroness, Lady Stowell. I commend her and her committee for the work they have done in investigation and taking evidence on this issue. I admire the guts and determination of the noble Lord, Lord Cromwell, and the fury of the noble Lord, Lord Agnew, on this issue.

I do not want to speak for too long: we have had a very long debate. The only dissenting voice was that of the noble and learned Lord, Lord Garnier. Your Lordships may recall that I said that, when the results of the consultation were looked at, the claimants’ lawyers were saying, “There’s nothing to see here, guv. It’s all the ordinary rough and tumble of litigation in this country”. The noble and learned Lord, Lord Garnier, referred to his experiences in the bear garden. I remember the bear gardens—I remember appearing in a bear garden for the leader of the Opposition in the Singapore Parliament; it was not an easy position. He was suing the Straits Times for libel, and the application to strike out was made on the grounds that he had no reputation in this country. When he died, some years later, he had obituaries in the Times, the Telegraph and the Guardian.

I know the games that these media lawyers play. They do not face up to some of the realities that we in the criminal courts perhaps have to face from time to time. But I have the highest regard for the noble and learned Lord, Lord Garnier, in his professional capacity, so nothing that I say should be taken as derogatory to him—otherwise, subject to professional privilege, I might find myself in court.

--- Later in debate ---

[Lord Bellamy (Con)]

Just to clarify, as I said, the Government’s position is that it is not appropriate to introduce a criminal offence in relation to access to justice. It is not a question of just having another offence. Access to justice is a very important area, and we are on a slippery and possibly Orwellian slope if we start saying that it is criminal for someone to go to the law on some point. It is a very difficult area—that was all I said.

[Lord Thomas of Gresford (LD)]

So, according to the Minister, it is not criminal for a person to threaten litigation, with all the expense and worry that that involves and the way that it crimps the investigation of crime. He is saying that it is not unlawful and should not be criminal. There are criminal offences that cover conduct far less morally bankrupt than that, which is what I hope we shall discuss with the Minister before Report. For the moment, I beg leave to withdraw my amendment.

Amendment 80 withdrawn.

Offenders (Day of Release from Detention) Bill

Lord Thomas of Gresford Excerpts

2nd reading
Friday 21st April 2023 Lords Chamber

[Lord Thomas of Gresford (LD)]

Your Lordships will soon gather from my croaky voice that I returned from a northerly cruise on Wednesday with something of a cold. It was 10 days without responsibility. No money was used on board; at mealtimes, all I had to do was sway my way into the restaurant, and the food was there ready cooked. There was no lock on my cabin door—but, with the North Sea all around me, I was going nowhere. I could circulate on the top deck for as long as I liked; a lot of exercise went on there, but, fortunately, it was not compulsory.

Arriving back in Dover on Wednesday was a bit of a shock. I had to check my wallet to see if I had any money. I had to get myself to Dover railway station, pay for a ticket and find a platform and a train. I had to make decisions, get used to traffic again and rush to reach your Lordships’ House in time for a committee. I was away only 10 days. The problems for a prisoner being released after a lengthy period in prison are very serious. The shock of being propelled through the prison door into the community—into a world of decision-making—must be profound. I strongly support the Bill as a very sensible means of reducing that impact, and I congratulate the noble Lord, Lord Bird, and Mr Simon Fell on bringing it forward.

The Bill gives us the opportunity to talk about the critical step of release. I have spoken about Berwyn prison near my home in Wrexham many times in this House in very negative terms—its shortages of staff, the level of violence and the all-pervasive problem of drugs—but it is largely successful on the issue of release. The unannounced report of the prison inspectorate last year found that an average of 140 prisoners were released each month and that work to support resettlement was good. A workshop area—a resettlement hub—had been set up in a large open space with separate interview booths, bringing together all resettlement staff. The inspectors found that this was an excellent initiative,

“the best of its kind that we have seen recently”.

It was yielding promising early outcomes for prisoners nearing release, including job offers and improved outcomes for accommodation on release. In the hub, there are a range of resettlement services: a job centre, work coaches and housing support. Prisoners are supported in obtaining ID and in opening bank accounts. Job fairs are a regular feature, attended by local employers. The number of prisoners who gain employment on release has risen from 6% to 20%, and employers including Greene King, the Murphy construction group and Iceland are involved. An employment adviser helps connect prisoners to job opportunities, and a firm called Novus Cambria helps the men with their CVs, so opportunities to secure a job are there before offenders even set foot back into the community.

On accommodation, the prison is also successful. Currently, on the day of release, 85% of men are getting into prepared accommodation—the 15% who do not are referred to the local authority. The prison joined a construction industry training board pilot scheme, where offenders are trained in prison in trades such as bricklaying, plastering, joinery and welding. Components are manufactured in the workshops for affordable, environmentally friendly houses being built for more than 130 families in Ruthin and Llangefni on behalf of Williams Homes, and jobs are available with that firm on release. Next month, DesignLSM, in collaboration with the actor Fred Sirieix, will transform the food hall in the prison into a high-street business run by prisoners to provide them with the opportunity to gain qualifications and experience in hospitality.

Berwyn prison is the second-largest prison in Europe and the largest in the UK. It started off with good intentions of promoting rehabilitation. Cells were called “rooms” and wings “communities”, and internet was provided. There have been some appalling teething troubles, but the prison, its governor, Nick Leader, and his staff must be given full credit for the initiatives they have taken. I am sure that the Bill will be welcomed in that community.

Prison Officers: Retirement

Lord Thomas of Gresford Excerpts

Thursday 30th March 2023 Grand Committee

[Lord Thomas of Gresford (LD)]

My Lords, I strongly support the noble Lord, Lord Balfe, in his suggestion that there should be fresh talks about this issue. That is a sensible suggestion and I hope the Minister will take it up.

My father was a policeman. He retired in his mid-50s with the rank of chief superintendent, after 30 years’ service, on full pension. He told me that throughout his police career he had drawn his baton only once: in 1933, when called upon to charge a crowd of miners on strike at Bersham Colliery, near Wrexham. The only person hurt was a reporter from the Wrexham Leader, who had foolishly stuck his head over the hedge to see what was going on and was clacked, as we say, as the PCs passed. Apropos of nothing, the pit was later the film set for “The Corn is Green”, starring Katharine Hepburn in 1979.

I mention this because in the prison inspectorate’s May 2022 report on Berwyn Prison, only two or three miles away from Bersham, it is recorded in paragraph 3.20 that

“During the previous 12 months, batons had been drawn seven times”


to control prisoners, that an

“incapacitant spray … had been drawn and used once”,

and that this was an improvement on the position in 2019, when batons had been drawn 26 times.

I have referred to Berwyn Prison on a number of occasions in this House because it is close to my home. Opened in 2017, it remains the largest prison in the UK, and is the second largest in Europe, with a capacity of over 2,000 places—although I have to say that it has always been underoccupied and understaffed. It suffers from a drug problem, to the despair of the Crown Court judges in north Wales.

Last May’s report says that, at the prison,

“The rate of violence was falling, although it remained comparatively high when set against comparator prisons.”


It continues:

“Among the key challenges facing the prison was the need to recruit and retain staff … There was some evidence … that staffing pressures were undermining local morale, but crucially, the shortage was impacting the quality of staff-prisoner relationships and the pace of regime recovery.”


There was some improvement on figures dating from 2019, which I have previously referred to in the House. At that time, 90% of the staff were less than two years in post. In this report, it is noted that there was

“a severe shortage of band 3 officers, probation and health care staff”,

which

“affected the delivery of some services.”

I have discussed this situation with a very experienced prison officer from Parkhurst prison on the Isle of Wight. He told me that a lack of experienced prison officers at Berwyn prison was to be expected. He told me, “We watch each other’s backs as prison officers, and you will not get experienced officers into a prison staffed by rookies.”

There you have the background to this debate. Violence, or the threat of violence, is always there, yet the Ministry of Justice requires a prison officer to serve into his late 60s in a job which is probably beyond his physical capabilities. Of course, if he fails his annual physical test, the prison officer is allowed to retire but does not get his full pension. That saves the MoJ money—the noble Earl, Lord Attlee, has already covered that point—but it leads to poor recruitment and retention. It is said that the pool of labour to man Berwyn prison in north Wales has been exhausted, and the Prison Service has to look elsewhere, outside of Wales. I should include women, since there have been 18 instances of improper sexual conduct between female staff and prisoners, some of which have attracted heavy prison sentences on the women.

The Ministry of Justice refuses to equate prison officers with policemen or firefighters. It says that officers in those uniformed services make a higher contribution to pensions—again, the noble Earl, Lord Attlee, has referred to this; it is 15% as opposed to 5%—but of course they are paid significantly more than prison officers. I am sure that prison officers would welcome the same pay and conditions for the risks to personal safety which they constantly run. They are in the same position as police officers and are not allowed to withdraw their labour. Consequently, their bargaining position is open to exploitation by the Lord Chancellor, and that is what has happened.

Why was the Ministry of Justice the first to accept cuts to its funding and why does it remain incapable of persuading the Treasury to fund services for which it is responsible? As I recall, it was a grand gesture by the noble Lord, Lord Clarke, who wanted to be the first in Cameron’s Government to clutch austerity to his bosom. The consequence is that we have a justice system which is starved of funds, collapsing courts and barristers on strike. The backlog of cases is a disgrace which denies victims justice. On the other side of the coin are its responsibilities. The Prison Service is failing in safety, in combatting drugs and, most importantly, in providing adequate rehabilitation, all through the lack of trained and competent staff. It is easy for Dominic Raab to say that he will not address the question of the pension age when prison officers cannot strike. His legacy, I am afraid, will be failure.

Human Rights Act 1998

Lord Thomas of Gresford Excerpts

Thursday 14th July 2022 Lords Chamber

[Lord Thomas of Gresford (LD)]

My Lords, I congratulate the noble Baroness, Lady Whitaker, not just on introducing this debate but on her lifelong attention to human rights. I am very pleased to have heard her speech today.

The ECHR, passed in 1950, set out a series of articles for the protection of human rights and fundamental freedoms. In the last 70 years, there have been just 16 protocols that have added to or amended those original articles. Unlike Parliament, which creates or amends statutes at will, it is clearly an impossible task to keep up with all the changes in the communities and societies of the disparate 45 countries represented in the Council of Europe. That this would be so was realised by the original drafters of the covenant, a team led by British lawyers. Their answer was to use the European Court of Human Rights not just to resolve human rights claims but, by its decisions, to keep the convention up to date.

From the very beginning, therefore, the European Court of Human Rights has frequently delivered decisions that were outside the original 1950 language of the articles. The technique that the judges of the court employ is called the teleological interpretation of the texts. That methodology has always been the predominant mode of interpretation in civil law jurisdictions and in public international law. No other approach is practicable if the law is to be kept up to date.

A former English judge, Sir Humphrey Waldock, who served as the president of the court for eight years, said in 1981:

“The meaning and content of the provisions of the Convention will be understood as intended to evolve in response to changes in legal or social concepts”.


That is the living instrument to which the noble Baroness, Lady Kennedy of The Shaws, referred. For example, the court in recent years—by reference to Article 2, the right to life, and Article 8, the right to family life—has developed the concept of a human right to clean air. That is the context in which the noble Baroness, Lady Jones of Moulsecoomb, presented her Bill last Friday, seeking to embed such a right as a human right expressly into the domestic legislation of the UK. The court’s judges continuously and conscientiously research the developing principles worldwide, whether from United Nations human rights committees, conventions or elsewhere, in order to establish a European consensus. There is nothing arbitrary about their method; they do not pluck things out of the air.

The purpose of the Bill that the Government have introduced is to turn the clock back. While not resiling formally from the convention, Section 3 (2) of the Bill says:

“A court determining a question which has arisen in connection with a Convention right … must have particular regard to the text of the Convention right, and in interpreting the text may have regard to the preparatory work of the Convention”.


That work was done in 1949 and 1950. That is, as the noble Baroness, Lady Chakrabarti, termed it, the originalist approach par excellence—and I suspect that the noble Lord, Lord Cashman, would not find reference to LGBTQ+ rights in the preparatory work done in 1949. Similarly, under Clause 3(3), the UK court:

“may adopt an interpretation of the right that diverges from Strasbourg jurisprudence”,

while under Section 5:

“A court may not adopt a post-commencement interpretation of a Convention right that would require a public authority to comply with a positive obligation.”


Post-commencement? It commenced in 1953.

Last October, the Lord Chancellor Mr Raab told the Telegraph on his appointment:

“I don't think it’s the job of the European Court in Strasburg to be dictating things … whether it's the NHS, whether it’s our welfare provision, or whether it’s our police forces … We want the Supreme Court to have a last word on interpreting the laws of the land, not the Strasbourg court”.


As he must know, UK courts are under no obligation to do more than take into account judgments of the European Court of Human Rights. They are not binding; the court does not dictate. What it does is set the standard of human rights for the 45 members of the Council of Europe.

It is the empty and useless rhetoric of the Tory party which lies behind this proposed British Bill of Rights, a false and dangerous belief in British exceptionalism. The Attorney-General Suella Braverman—I will not be as cruel as the noble Lord, Lord Carlile, with regard to her recent deposition—displayed her narrowness of vision and total lack of understanding when she demanded in the course of her approach to becoming premier that the UK withdraw from the European convention altogether. What understanding of the law is that in our Attorney-General?

A much nobler cause is surely to promote and support a common standard of human rights—the universal rights to which the right reverend Prelate the Bishop of St Albans referred. That is the reason why Russia has been expelled from the Council of Europe, as my noble friend Lady Ludford mentioned. It is the cause which Winston Churchill, a Conservative premier who—perhaps the noble Lord, Lord Morgan, will agree—never lost his Liberal roots, took up in the aftermath of the Second World War. This Government are turning their back on history.

--- Later in debate ---

[Lord Bellamy (Con)]

My understanding is that, in these circumstances, any necessary change to the legislation will be brought back to Parliament through the machinery of a statutory instrument, and required to be laid before the House by affirmative resolution. There is every ability for Parliament to determine what should then be done, so it is a balance between the legislature and the judiciary, and not, in the Government’s view, between the judiciary and the Executive, but let us explore that point further in due course.

Secondly, public authorities remain bound by the convention, as is set out in Clause 12. The main change here is in relation to this question of “positive obligations”; that is a conceptual issue which is being addressed in Clauses 5 and 7. Essentially, the underlying issue is: should human rights law under the convention develop a kind of de facto legislative or quasi-legislative content, with potentially serious implications for public expenditure or giving one policy objective priority over another, or are those kinds of decisions for the elected Members of the legislature? Where does the balance lie between the electorate, the whole process of elections, and democracy, on the one hand, and, as it were, judicial interventions on the other hand? That is, in my submission, a conceptual issue, which we should in due course grapple with. That is going to be, and is, the issue of the separation of powers.

Finally, in this brief response I draw attention to a third theme, hardly mentioned today, which is the reinforcement in the Bill of the Government’s commitment to freedom and human rights in the widest sense: freedom of speech under Clause 4, jury trial under Clause 9, the protection of journalists’ sources under Clause 21. There are many points that could be made, but I hope that that brief and admittedly high-level summary at least helps convey why the Government argue for the constructive balance that the Bill aims to achieve. It is not, in the Government’s view, weakening human rights; it is enhancing public confidence in the whole structure. One has to realise that not everybody is as convinced of the value of the Act as it now stands as are some of the noble Lords who have spoken today. This will, in the Government’s view, enable greater public confidence to be maintained in the human rights structure. This is not a new issue—

[Lord Thomas of Gresford (LD)]

To what would the Minister ascribe this lack of public confidence? Is it the sayings of the Lord Chancellor, or of Suella Braverman? Why is there a lack of public confidence in human rights in this country?