Imprisonment for Public Protection (Re-sentencing) Bill [HL]

Lord Wolfson of Tredegar Excerpts

2nd reading
Friday 15th November 2024 Lords Chamber

[Lord Wolfson of Tredegar (Con)]

My Lords, I am grateful to the noble Lord, Lord Woodley, for introducing the Bill and enabling the House again to focus again on this important topic. We have heard many insightful and well-researched speeches. This is a tragically long-standing issue—I dealt with it when I was a Minister, and I remain grateful to the noble Lord, Lord Blunkett, in particular, and others, for the time they spent with me on the matter then.

You could make two speeches this morning from the Opposition Front Bench. One would be overtly political: it would say that IPP sentences were introduced by Labour and were and remain a disaster. It would say that this problem was created by a Labour Government, and it is up to this Labour Government to sort it out. It would say that we do not need more criminals on our streets. All of that would be true, but it is not the speech I propose to give. I will instead focus on what we can actually do, practically, to resolve this problem, and on what I regard as the real issues.

As the noble Baroness, Lady Blower, reminded us, the previous Lord Chancellor, Alex Chalk, who did so much good work in this area, called the present state of the IPP issue a

“stain on our criminal justice system”.

The same phrase, cited by my noble and learned friend Lord Garnier, was used by the much-missed noble and learned Lord, Lord Brown of Eaton-under-Heywood, and they were both right. So I propose to look at the problem, look at how we can improve the position, and set out the response of the Opposition Front Bench to this Private Member’s Bill.

There are two important facts to begin with. First, IPP sentences were abolished by the then Conservative Government in 2012—the Lord Chancellor was the noble Lord, Lord Clarke of Nottingham. As the noble Lord, Lord Carter of Hazelmere, pointed out, the problem was that no transitional provisions were put in place. That happened 12 years ago, which is relevant—I will come back to that. Secondly, just under 1,100 IPP prisoners have never been released on licence and a further 1,600 or so were released on licence but have since been recalled to prison. Those two facts, taken together, remind us of the following points, which must be kept in mind as part of the debate.

First, those still in prison and who have never been released on licence were sentenced over 12 years ago. During that time, they will have been prepared for and attended several Parole Board hearings, and the Parole Board, which is independent and expert, will have concluded, on all the material before it, that it was not safe to release them. Secondly, for those prisoners and those released on licence and then recalled—again, because they were originally sentenced at least 12 years ago—unless their underlying crime was one of considerable seriousness, a resentencing exercise, even if it were possible, would likely result in their immediate release. Putting those two points together, that means that a resentencing exercise would likely result in the immediate release into the community of people whom the Parole Board had recently decided were still dangerous and should not be released. I suggest that we cannot easily contemplate that.

I will add a third point: a resentencing exercise would be logistically and practically difficult, not only because of the impact on judicial time but, more importantly, because of the fact that, in some—or perhaps many—cases, the underlying paperwork is unlikely to be available in full. Therefore, I suggest that a resentencing exercise, which is at the heart of the Bill, is not the answer—my noble friend Lord Moylan therefore correctly anticipated the position of the Opposition Front Bench. But that means that we need to identify what the answer is, because doing nothing is simply not an option.

Let me sketch out some principles. First, the focus must be on two separate groups. For the first group—those who have never been released—the focus must be to get them successfully through a Parole Board hearing. For the second group—those who have been released on licence—the focus must be to make sure that they are not recalled to prison or, if they are, to enable them to do better next time they are released: to get out and to stay out.

Secondly, we need to be clear-eyed about who we are dealing with. There is sometimes a tendency to assume that people did little more than steal a Mars bar and were just unlucky to receive an IPP sentence rather than a traditional determinate sentence. In fact, to have been sentenced to a IPP sentence in the first place, the trial judge must have concluded, under Section 229(1)(b) of the Criminal Justice Act 2003, that there was

“a significant risk to members of the public of serious harm”

were the defendant to commit further offences—and not just any further offences. There was a list of specified offences in a schedule to the Act, including rape, murder, GBH with intent and so forth. In other words, the trial judge will have found as a fact that there was a significant risk of the offender killing, raping or seriously maiming someone else. That was the statutory test of dangerousness, which was a legal threshold to being given an IPP sentence in the first place.

[Lord Moylan (Con)]

I interrupt with trepidation, because my noble friend is such an excellent lawyer, and I am not a lawyer at all. However, am I not right in saying that, while that test did exist, it existed only in the second period when IPP sentences were imposed? It was very much a point of the late Lord Brown of Eaton-under-Heywood that in the early years of the IPP sentence judicial discretion was almost nil, and the finding of fact was simply a matter of asking, “Have you committed this offence and previously committed another?”, both taken from two separate lists. I am not sure that all the prisoners who are still in jail and who have never been released would be covered by the point that my noble friend makes.

[Lord Wolfson of Tredegar (Con)]

My noble friend is absolutely right. I cannot get into all the detail because of time, but for those sentenced even earlier, in the first period, unless the underlying crime was really serious, you end up with effectively immediate release, in respect of people who have been determined by the Probation Service to still be dangerous. That is a real underlying problem.

That leads me to the third point, perhaps the most tragic in the entire debate. We have to confront the possibility, or probability—this is a terrible stain on our state—that for some people now in prison under an IPP sentence the reason they cannot effectively be released, and the reason they are failing Parole Board hearings, is because they have been in prison so long. They have become institutionalised. I am very sorry to say it, but it is a Kafkaesque situation—if Kafkaesque is the right word—and a stain on our justice system, but we have to be clear-eyed about the position that we are dealing with.

As we know, this matter was looked at by the Justice Select Committee under the chairmanship of Sir Bob Neill. I am pleased to say that he is now, and deservedly so, Sir Bob Neill KC. The committee made two main recommendations. The first was on resentencing, which I have dealt with—and, with respect, we disagree with the committee on that point. Secondly, it suggested that the licence period be reduced—and here we are in full agreement. The old position was that you could not even apply to terminate the licence until a decade had passed. The committee recommended a reduction of the licence period to five years, while Lord Chancellor Chalk reduced it to three years, and added a presumption that it would lapse at the end of three years, unless there was a good reason to extend it. For those recalled to prison, he introduced a two-year licence period for those released after that initial recall, with an automatic lapse after two years, not a presumption. That structure is the best way in which to deal with this issue.

Lord Chancellor Chalk went further. He set in place programmes to encourage prisoners to be prepared well for the Parole Board hearings, and I would be interested to hear from the Minister about the work ongoing in relation to that—because that is the key to getting someone out on licence in the first place. He also introduced automatic referral to the Parole Board so that prisoners do not need to apply for release, but rather the case automatically comes before the Parole Board.

This is about balance between protecting the public, which any Government need to have at the forefront of their mind, while making sure that those subject to an IPP sentence are fairly dealt with. That means that we need to ensure that we do not release dangerous people into the community, but it also means that those who have been released and are no longer dangerous should not live with a sword of Damocles above their heads.

It is sometimes pointed out that those released on an IPP licence can reoffend. The truth is that lots of our released prisoners reoffend, and I would be interested to hear from the Minister, either now or perhaps in a letter, with a comparison of the rate of reoffending of IPP prisoners with those released under other provisions. I would be especially keen to see the data comparing the reoffending rate of IPP prisoners released on licence to the reoffending rate of those released under the early release scheme introduced by the Government early this year, of which we have had not very much data. In due course, I would be interested to see that comparison, because I would not want IPP-released prisoners to be unfairly stigmatised when, in fact, we have a significant reoffending rate for prisoners generally.

I look forward to the Minister’s speech. We will support him in steps to ensure that those still subject to IPP sentences, those in prison, on licence, and on recall receive all the assistance they need.

Judicial Pensions (Amendment) Regulations 2024

Lord Wolfson of Tredegar Excerpts

Monday 11th November 2024 Grand Committee

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

My Lords, first, I congratulate the noble Lord on his concise and detailed opening on a complicated set of regulations. I note that the regulations were introduced by the last Government and have hardly undergone any significant change since their introduction, so it is unsurprising that they are likely to be relatively uncontroversial. There will certainly be no opposition from the Liberal Democrats to these proposals.

The most significant of what are largely tidying-up amendments are those that bring into line with other fee-paid judges a number of tribunal judges and chairs. That is completely in line with the view that we all take—that tribunal judges and chairs are a very important part of the working judiciary and that the tribunal system does the whole work extremely well. It is right that the pension arrangements for paid judges should be aligned.

The other significant point is that the pension arrangements for part-time service in the light of the O’Brien judgment are now going to be tidied up so that some of the anomalies that arose from that judgment have been eliminated, so far as they can be, although it is a difficult area—and I appreciate that the regulations have to reflect that difficulty.

I noted from the Explanatory Memorandum and the Minister’s opening that there was a consultation, which attracted no fewer than six responses, none of them critical—and, I take it, all of them raising questions that have been satisfactorily answered. In view of that, I have no further questions for the Minister on this SI.

[Lord Wolfson of Tredegar (Con)]

I am not sure whether I need to declare a formal interest, as my wife sits as a fee-paid tribunal judge but, for the avoidance of any doubt, I do. I suspect that the impact of this regulation on her will be de minimis and no doubt happen in many years’ time.

That said, I can be brief because the Minister has been so comprehensive. As we heard from the noble Lord, Lord Marks of Henley-on-Thames, these regulations emanate from the previous Government; this is not an area where, historically, there has been political controversy. Indeed, as the Minister said, we debated similar regulations when our roles were reversed. I echo his comment to me that this is probably not the last time we will come back to debate and discuss these pension regulations, because they are complex. Part of the reason for that is the history and the litigation that has arisen, but the one thing we share around the Committee is the importance of having an attractive pension scheme so that we attract the finest candidates to our judiciary—and retain them. Indeed, one of the things we did in the previous Government was to increase the retirement age to 75. The Minister referred to our outstanding and independent judiciary, and we absolutely endorse those two adjectives; it is outstanding, and it is totally independent.

I also endorse the point made by the noble Lord, Lord Marks of Henley-on-Thames: the fact that we are widening some of these pension schemes to include more tribunal judges is testament to the fact that so much of the important work of our judiciary is done by tribunal judges, both full-time and part-time—I think fee-paid is the proper term. Day in, day out, tribunals up and down the country deal with really important issues for people on the ground, so to speak. They are often unsung, and far from the legal journals and law reports, but they deal with important legal issues on a daily basis.

I have only one question for the Minister, which I ask as a matter of interest rather than in any controversial way. I note that, by these regulations, we are extending the time to enable judges to make choices between the pre-1995 and post-1995 schemes. I am interested in why we are extending time for that and why this particular period of extension has been chosen.

Other than that, I am tempted—as I think they are still debating the Budget in the Chamber—to point out that, although it is important to have attractive and gold-plated pensions in the public sector, that does not mean that we should raid private pensions in the private sector. If I say any more on that I will take this debate to places where it ought not to go, so I will stop there and make it unequivocally clear that we on these Benches are also firmly in favour of these regulations. I thank the Minister for introducing and explaining them so clearly.

[Lord Ponsonby of Shulbrede (Lab)]

My Lords, I thank both noble Lords for their support for these regulations. I will first address the question that the noble Lord, Lord Wolfson, asked about why the deadlines for member elections are being extended. The answer is that, for members to be able to make an informed decision on their member elections, we need to provide detailed, illustrative information to affected members, which requires significant data inputs from our suppliers. The extension to 31 March 2027 will ensure that we can get this information to members with enough time for them to make a decision. I think that answers the noble Lord’s question.

I wish to say how much I agree with the noble Lord, Lord Marks, about the wider judicial family, and the importance of tribunal chairs and judges feeling part of that family and of their pensions recognising that fact. Of course, the part-timers—or fee-paid judges—fall into that category as well. That point was well worth reinforcing.

I also reinforce the point that the noble Lord, Lord Wolfson, made in his conclusion, about how our judiciary is a huge asset and resource for our country. It is indeed outstanding and independent—those are appropriate adjectives. There is never any question about its independence or ability. I have never, in either my business life or my political life, heard anyone seriously question judges’ independence or capability, if I may put it like that. We need to value that fact, and do so by making good but fair pension schemes. I hope these regulations are a small step in the road to maintaining that.

Arbitration Bill [HL]

Lord Wolfson of Tredegar Excerpts

Committee stage
Wednesday 11th September 2024 Lords Chamber

[Lord Mance (CB)]

My Lords, I declare an interest as an arbitrator, including in cases involving corruption in my practice hitherto. It seems to me that there are two types of corruption that we may be talking about. One is substantive corruption affecting the transaction which is the subject of an arbitration. That is regularly arbitrated and investigated, and tribunals do their best. With respect to the noble and right reverend Lord behind me who has just spoken, I am afraid that sometimes involves trying to see into men’s minds. Arbitrators do make findings of corruption. I will come back to what might be done with those findings slightly later.

We have been talking mainly about corruption in relation to the arbitration proceedings, which is the area to which the amendment of the noble Lord, Lord Hacking, is directed. We have heard of cases in which—one hopes, remarkably—it has been found in court that both sides were involved in some sort of collusion. I am thinking not of the case which has been expressly mentioned but of a case which I believe was decided in the Commercial Court by Mr Justice Butcher, where a non-existent arbitration award endorsed by a non-existent foreign court judgment was attempted to be enforced in the Commercial Court. That could happen only by some form of collusion between those appearing in front of the court, hoping that the persons to be affected by an English judgment would not get to know of it or involve themselves in time. As it happens, they did, and of course the non-existent award was not enforced. I believe the matter was referred to public authorities who might be interested.

I agree with my noble and learned friend Lord Hoffmann that such investigations into the propriety or ethical behaviour of those appearing in front of arbitrators as a matter of standard procedure would be difficult to contemplate, given the sort of exercise that would be involved. That said, I am sure that arbitrators, if they were on notice for any reason of possible complicity in some corrupt activity by those appearing in front of them, would be very concerned to try as best they could to get to the bottom of it. I suggest that the noble Lord’s proposed amendment would, if anything, be duplicative and unnecessary if read mildly, but if read widely, as involving the sort of initial admonition which he suggested, it would be problematic and would not carry matters very far, so I, too, do not support it.

I will make a general observation about corruption, which, as I have indicated, is regularly fought in the courts in a substantive respect. Of course, arbitrators have the problem that they are confined by the agreement to arbitrate, which usually relates to a specific transaction. However, if you are talking about a widespread scheme of corruption, perhaps involving fraud on a foreign state, the state may not be party to the arbitration, and it may be quite difficult to investigate all the other ancillary transactions that form part of the web of corruption. Corruption notoriously involves complexity designed to confuse and conceal. That problem is inherent in arbitration; it seems to me that it may be one of the disadvantages of arbitration. It is a problem that can, to some extent, be alleviated by court assistance. There is a valuable clarification of Section 44 of the Arbitration Act 1996 in this Bill, which will enable that assistance to be secure when third parties are involved.

It is difficult to foresee arbitrators being made into investigators. That would be a change of role for which they are not suited. The one possible area where I suggest that legal attention might be considered—but not in this Bill, for the reasons already given by noble Lords—is where corruption is found by an award. There might be something to be said in that context for an express provision permitting disclosure, to interested public authorities, of corruption that has actually been found. One would not have or contemplate a situation where arbitrators had to disclose allegations of corruption that they were concerned to decide. But once they decided that there was corruption, disclosure might then be contemplated. It seems to me that it is probably already permitted by common law, because there is no privilege in iniquity; on the other hand, I do not believe that arbitrators at the moment would, without express legislative backing, be likely to disclose even corruption that they had found in their award. That might be a possible area where an express legislative provision—so they could at least just disclose corruption —would be valuable.

[Lord Wolfson of Tredegar (Con)]

My Lords, I begin with an apology. I could not attend Second Reading because I was having my cataracts done. The happy consequence is that I can now see the Minister even more clearly on the Government Front Bench. I take this rather belated opportunity to welcome him to that place and to wish him well.

I declare two interests: first, as a barrister working in international commercial arbitration as both counsel and arbitrator. Secondly, in 2021, when I was in government, I invited the Law Commission to undertake this review of the Arbitration Act, to burnish what is generally regarded as a gold standard for an arbitration statute. It bears taking 30 seconds to put on record that the Law Commission is an underappreciated part of our legal landscape and does sterling work. Indeed, the Minister introduced earlier today the digital assets Bill, which also emanates from the Law Commission. The Government accepted all the Law Commission’s recommendations in this context.

I also pay tribute to my noble and learned friend Lord Bellamy, who, when he was a Minister, worked very hard on this issue and introduced a previous Bill before it fell, with others, at the general election. Nevertheless, this is a good Bill, and we should get it on to the statute book.

On the amendment before the Committee, the noble Lord, Lord Hacking, kindly referred to my role as counsel in the Nigeria v P&ID case. Of course, client confidentiality applies even now, but he was kind enough not to point out that I lost that case, and I am grateful to him for not making that clear. As to the other cases he mentioned, I appeared early on in the Mozambique litigation and acted in the Steinmetz proceedings before the ICSID tribunal in Paris. I also acted for BSG in the LCIA arbitration and the subsequent litigation in London. I won a number of those cases, fortunately.

Nobody wants corruption in arbitration—we all want to root it out—but we are not persuaded that the general duty either is necessary or would achieve its aims, for the reasons set out so clearly by the noble and learned Lord, Lord Hoffmann. It is not clear what arbitrators are meant to do; under Section 33 they already have a duty to resolve cases fairly, and if corruption disentitles a right to a remedy, the tribunal can say so.

As the noble and learned Lord, Lord Mance, pointed out, there are a number of issues here. Take a case where there is a London seat but the substantive contract is governed by Ruritanian law. Ruritanian law might regard as permissible that which English law regards as impermissible. Would this clause mean that the London-seated tribunal would have to decline to enforce or to give a remedy? The Act as presently drafted provides that public policy can trump an award in some cases. Section 103(3) deals with foreign awards, substantially reflecting Article V of the New York convention, and Section 68(2)(g) deals with appeals from London-seated arbitrations—that was a provision in the Nigerian case.

Arbitration Bill [HL]

Lord Wolfson of Tredegar Excerpts

Committee stage
Wednesday 11th September 2024 Lords Chamber

[Lord Hoffmann (CB)]

My Lords, I greatly regret that the noble Lord should have cast me as his personal nemesis, particularly since it is entirely desirable that an arbitration tribunal should have the power to do what he said Lord Bingham did in the case to which he referred; that is, to distinguish between the cost of issues on which people have been successful and those on which money has been spent and on which they have been unsuccessful. However, the tribunal has such a power already.

I am sure that my friend the noble Lord, Lord Hacking, would recognise that in the end the power to award costs is entirely a matter for the discretion of the tribunal. It can take into account whether it thinks the party has spent too much or whether it has succeeded on this or that issue. All these issues can be taken into account. What it says that is salutary—this is something which attracts persons to come to London and have arbitrations under English law—is that in the ordinary way, if you have not spent too much and not lost on some issues, if you have won the case you will get your costs. That is a very attractive thing to offer to people who are about to launch an arbitration.

We have in the 1996 Act a time-honoured formula which everybody knows. They know exactly how it works and I really see no advantage in substituting a new formula, when nobody quite knows now how it is going to work.

[Lord Wolfson of Tredegar (Con)]

My Lords, I hope that I can be relatively brief because this is a short point. As the noble and learned Lord, Lord Hoffmann, said, the costs of any arbitration are in the discretion of the tribunal. I would add only a slight gloss on that. As the noble and learned Lord knows, there is provision in the Act that if the parties have agreed the result or the provisions on costs, the tribunal has to respect that agreement, with one exception in the Act. Of course, that underlines a very important point: the whole arbitral process is consensual and contractual. We should therefore tread very lightly in this area generally, and especially when we are considering making changes to the terms of the Act.

With respect to the noble Lord, Lord Hacking, I have a certain amount of sympathy with his language point because we do not use “follow the event” anymore. That phrase is no longer used in the CPR, as he pointed out, but I took the opportunity this afternoon to have a look at the DAC report. At paragraph 268, it said in terms that the intention was to follow the normal rule in this jurisdiction—that the successful party should get the costs. That is one of the reasons why people choose to arbitrate in London and not somewhere else, and certainly not to litigate somewhere else where you can win and not get your costs back. I would be reluctant to do anything which would undermine London arbitration.

We could of course change the words to track CPR 44.2(2)(a), but I suggest that would be unnecessary and ill advised. I am not aware that there is any confusion in the international arbitration community as to what “follow the event” means. Arbitrators are perfectly able to make what are effectively issues-based awards of costs, or to reflect the fact that the claimant might have won on two issues but the defendant has won on another. Although I understand the noble Lord’s language point, I suggest that we should leave matters as they are.

As for the amount of costs or recoverable costs, which is the other point that the noble Lord, Lord Hacking, deals with in his amendment, Section 63(5) of the Act already provides that the tribunal can limit its award on costs to those costs which have been reasonably incurred. As someone whose fees are often challenged on the basis that they are unreasonable, that is a provision with which I am personally familiar. We appreciate the thrust of the amendment but, certainly on these Benches, we would suggest that it is not needed.

--- Later in debate ---

[Lord Beith (LD)]

My Lords, we support this amendment and are grateful to the Government for bringing it forward. The Minister’s remarks could usefully be framed and provided as an object lesson in the fact that drafting really does matter and that, when it goes wrong, the consequences mount up in subsequent legislation. He illustrated that well.

[Lord Wolfson of Tredegar (Con)]

My Lords, I am personally grateful to the Minister for engaging with me and others on this. These are technical matters, but it is important to get them right. I acknowledge the assistance I have had from my colleague Toby Landau KC, who, as the noble Lord, Lord Hacking, said on the previous group, did a lot of work on the original DAC report. I also acknowledge members of the Law Commission team with whom the Minister and I have both engaged, especially Nathan Tamblyn.

As the Minister said in moving his amendment, in Inco Europe, Lord Nicholls of Birkenhead, with whom the rest of the Appellate Committee agreed, said:

“I am left in no doubt that, for once, the draftsman slipped up”.


He put it in those terms because, again, as the noble Lord, Lord Hacking, said on the previous group, this is an extremely well-drafted Act. It is probably one of the best-drafted Acts on our on our statute book. To pick up the other phrase that Lord Nicholls used in that case, for once, Homer had nodded. This amendment rectifies the position—I am not sure what the opposite of nodding is, but, whatever it is, it puts Homer’s head back upright. I am grateful to the Minister for bringing forward this amendment, which we support.

[Lord Ponsonby of Shulbrede (Lab)]

My Lords, I thank both noble Lords for their support for this amendment. I agree with noble Lord, Lord Beith, that drafting matters, and I agree with the points made by the noble Lord, Lord Wolfson. I note the support given to him by those individuals, including Toby Landau, who was an expert witness in the previous consideration of these matters.