Victims and Prisoners Bill

Baroness Chakrabarti Excerpts

2nd reading
Monday 18th December 2023 Lords Chamber

[Baroness Chakrabarti (Lab)]

My Lords, it is an absolute privilege to follow that outstanding speech from the noble Lord, Lord Moylan. I hope he will forgive me for associating myself with every single word of it. I declare my non-pecuniary interest as a council member of both Justice and the Howard League for Penal Reform.

I am also grateful for the opportunity to speak in advance of the forthcoming maiden speech of the noble Lord, Lord Carter of Haslemere, who I had the pleasure of working for as a government lawyer in the late 1990s. He may not forgive me for saying it—and please, do not hold it against him—but I learned so much from him in those days, as a young lawyer, about law, good government and policy-making. I found him to be almost the personification of qualities in the subsequently much maligned Civil Service: independence, integrity, intellect and humanity. In a year when we have lost the noble and learned Lords, Lord Brown of Eaton-under-Heywood and Lord Judge, I think the arrival of the noble Lord, Lord Carter, on the Cross Benches must be particularly welcomed.

I now come to the Victims and Prisoners Bill, and I welcome the way that this debate has been opened by all the major groups in your Lordships’ House. In a December that will feel not quite like Christmas for too many struggling families, including those blighted by crime in this country, the Government bring us a not quite Christmas tree Bill. While I welcome its much delayed arrival, and the much delayed arrival of any Bill supposedly aimed at enhancing victims’ rights, I query, like the noble Baroness, Lady Brinton, whether it would not have benefited from a tighter focus in some places, or at least some pre-legislative scrutiny.

However, my greatest concern, perhaps, lies in the way the contradictions at the heart of the Bill represent those at the heart of the Government. I have no doubt that the Bill has been much improved by the arrival of the new Lord Chancellor—rightly, one of the more liberal and more pro rule of law members of the Cabinet. We see that reflected in the removal of what would have been a Secretary of State’s direct veto over Parole Board release decisions. I am very glad to see that that has been removed. Similarly, there has been some movement, as referred to by the noble Lord, Lord Moylan, in relation to some IPP prisoners, but not all. On the IPP point, I look forward to listening to the noble Lord’s partner in crime, if I may call him that, my noble friend Lord Blunkett.

However, one need not be the greatest Kremlinologist to divine that, just days before the publication of the Rwanda Bill, the Lord Chancellor appears to have lost a battle with No. 10 over the disapplication of Section 3 of the Human Rights Act—which of course requires legislation to be read compatibly with rights and freedoms, so far as is possible—from the parole provisions of the Bill. I am very sad about that. I am also sad about the proposals mentioned by the noble and learned Lord, Lord Thomas of Cwmgiedd, that would allow the Secretary of State to interfere with the independence and the composition of the Parole Board. I think that will be another provision that will require noble Lords’ attention in due course.

In the always affable and open spirit in which the noble and learned Lord the Minister opens these debates, I ask him to explain why this disapplication of Section 3 of the Human Rights Act was thought necessary in the case of this Bill. I ask him how it squares with his Section 19 statement—it is not quite a certificate; it is a statement of compatibility. Is it not just political signalling that if the Human Rights Act is not immediately to be repealed wholesale, it will instead suffer death by a thousand cuts, as a sop to those so-called “five families” who want their party to leave the European convention and, accordingly, the Council of Europe at next year’s general election? A little explanation of the thinking for the disapplication of human rights would be incredibly welcome.

In my experience, the convention on human rights has done more for victims’ rights in this country than, with respect, the common law ever did, and indeed more than party politics probably every did. One only needs to look at the case law to see that borne out, particularly in relation to the rights for the most vulnerable victims, including children and women, and victims of sexual crime. By contrast, the victims’ rights in this Bill, while well intended, are, to a large extent, toothless. I agree with the noble Baroness, Lady Brinton, about that. They are too much a dead letter in a sealed book, without the means to make them real or enforce them. I look forward to hearing from the noble Baroness, Lady Newlove, about whether she thinks the Bill goes far enough, because I would like to see the victims’ code in the Bill and very clear methods of accessible enforcement. Otherwise, we are in danger of letting down victims yet again, by suggesting a promised land that just is not coming. That would be a terrible mistake after the lengthy wait for this kind of legislation.

Similarly, victims of major incidents are too narrowly defined and their protections are too weak. They should have more ready access to independent advice and representation. I have seen that in other inquiries and compensation schemes, not least Windrush and Leveson—on which I served—and so on.

There seems to be a lot of common ground between different groups in this House and a very receptive Minister, so I hope that we can all work together to improve the Bill in Committee and beyond.

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[Lord Bellamy (Con)]

My Lords, my noble friend makes a perfectly fair debating point—and we are debating, so it is perfectly fair that he makes a debating point—but it is a debating point at the end of the day. The point is: are you prepared to take the risk of 1,200 dangerous people being released from prison? The Government are not prepared to take that risk. We can of course discuss it further, but I am just explaining what the Government’s position is: it is better to work with those prisoners to ensure that they are safe to release eventually.

That probably takes me on to the issue of public protection and related issues. First, perhaps I may clarify what seems to be a muddle that has arisen about the statement in the Bill that it is compatible with convention rights. The Bill is perfectly compatible with convention rights: it does not take away any convention rights at all. Section 3 of the Human Rights Act is a procedural provision only, which gives the court an—to use a neutral word—unusual power to reinterpret what Parliament has said in a manner that may not have been and probably was not Parliament’s original intention so as to render a particular provision compatible with the convention.

On the provision in the Bill disapplying Section 3, which at least one member of Sir Peter Gross’s commission thought we should get rid of, and on other parts of Section 3, Sir Peter himself recommended a rather complicated hierarchy of different ways of applying the section. It has been quite a difficult section to apply. Case law has gone all over the place over the years, although it has settled down more recently. It introduces uncertainty where the Government want to have certainty in this area: that this is the test for public protection for these prisoners, that is what Parliament has said, and that is the end of the matter.

If that was found to be incompatible with the convention in any case, hypothetically, the court would have to make a declaration of inapplicability, and Parliament would have to deal with it. But the underlying issue is the constitutional balance between the courts and Parliament. That is quite an issue, and it has not gone away, but that is how the Government understand this particular point.

As regards the question of the Parole Board and all the various provisions affecting it, it is worth making the point that when these very high-risk offenders are released, they live in the community. Who speaks for the people in the community who have to live with them? Are they represented at all in this system? The only person who can represent the interests of the community with whom released prisoners have to live is the Secretary of State. All we are doing is saying that if there is some doubt about the application of the public protection test, it is wise from the point of view of the system—

[Baroness Chakrabarti (Lab)]

I am sure that the noble and learned Lord understands the irony of that statement, set against his statement that victims’ rights should not be put on a statutory, enforceable footing.

[Lord Bellamy (Con)]

I am not sure that I entirely understood the noble Baroness’s point, but it is perfectly true that I am thinking—rather, the Government are thinking; I should not put it in personal terms—about the potential victims of people who have been released and the actual families of those who have suffered at the hands of the offender. We are simply saying that there might be some very high-profile cases where it is sensible for there to be a second judicial look. That is a very much modified position from the position originally in the Bill, but it is, I hope, a sensible one.

I have used up my time, but I hope that I have covered most things. I apologise to noble Lords whose specific points I have not met. Anyone is fully entitled to write to me or ask me questions and I will, of course, answer them. If I may just finish with the words of the right reverend Prelate the Bishop of Manchester, who was kind enough to say he was going to be kind to the Bill. Let us be kind to the Bill and—

Victims and Prisoners Bill

Baroness Chakrabarti Excerpts

Committee stage
Wednesday 31st January 2024 Lords Chamber

“like nailing jelly to the ceiling”.

[Baroness Chakrabarti (Lab)]

My Lords, it is a total privilege as always to dip my first toe into your Lordships’ Committee on this very important Bill. It is a pleasure, not for the first time, to be in support—it is always very loud at that end of the Chamber; I am just saying —of the noble Baroness, Lady Brinton, and the noble Lord, Lord Russell of Liverpool. I would say that they robbed my arguments, but they are their arguments and we share them.

I think the amendment is a no-brainer. It is not partisan and not controversial. In a previous era, the controversy would have been about cost. The argument against it in a previous era would have been, “Goodness me, we would need armies of people”, probably women, “sitting there, typing away with headphones on, to deliver these transcripts in real time”—but of course we are not in that place any more. Even in that previous era I might have argued, because I am who I am, that it was a price worth paying, but we are not in that place.

I also give respect to the noble Baroness, Lady Coussins, whose previous group I heard—she is not in her place at the moment—because in a way my argument and what we are discussing in this group is similar to what I just heard.

The cost implication is not such a problem now because of AI—there is wicked old AI but also positive AI, right? AI is already being used across public services, in the City and in financial services. I have some qualms about AI making decisions instead of humans that have a huge impact, but not when it is supporting transparency. This amendment is, in a way, about translation, just like the last group was. How can victims be part of this process if they do not have a record of what happened?

The noble Lord, Lord Russell of Liverpool, made an analogy with Hansard, and it is quite a good one. Looking at friends around the House, I ask how many times, in honesty, when the adrenaline is going and the heart is pacing, have noble Lords left the Chamber to be glared at or congratulated by friends and colleagues, and remembered word-for-word what happened. And I am talking about noble Lords who have the privilege of being legislators and being in this place. This is the point the noble Lord, Lord Russell of Liverpool, made so well. If that is a problem for us as human beings, imagine not being a noble Lord giving wisdom in your Lordships’ House, but instead a victim of crime with all the pressures we all know about. They go into the court and, in the current underfunded system, do not even know if they will bump into the defendant and the family members, or know what will be said about them or what their community think, et cetera. This applies as much to the previous group on language translation as it does to this important amendment on transcription.

How lucky are we, in this generation, with all the challenges we face, to have the technology that would now allow us to give a transcript to a victim of what happened? This is not a partisan amendment; this is not a difficult amendment. This is something that the Minister—who I know really cares, from a lifetime of public service to the rule of law—and his colleagues could deliver. I really believe that this is so deliverable. Therefore, I urge the Minister and his colleagues, hopefully with the benefit of AI so no one has to take everything down, really to think about this. It is an easy win for everyone. To have a record they could look at after the event with family, friends and lawyers could make such a difference to people who are scared, excluded, have adrenaline rushing and experience the fight or flight of being a victim—sometimes of minor crimes and sometimes very serious crimes. I look at my noble friend Lord Winston. I sometimes think we could do with this when we go into see an oncologist. In these difficult moments in life, if we could have this opportunity, with family, friends and advisers, to look at a record of what happened, it could really help people. As I say, it is not a partisan or ideological amendment, but such amazing 21st-century common sense. I support the noble Baroness.

[Baroness Newlove (Con)]

My Lords, I am listening to all of this. My brief, from my team, is to correspond with Ministers, but I will speak, I hope in a succinct way—because I do waffle at times and get so distracted because I am that passionate—and as eloquently as other speakers in the Chamber.

I have dealt with transcripts—I am showing my age here—since 1980. This is how I know we should not have to have this discussion. As a committal court assistant, I used to take evidence down and do these transcripts the old-fashioned way with headphones and typing. That got abolished because of cutbacks. I then became a legal PA where I did barristers’ briefs. Again, everything was all there for the client, the defendant and everyone else, indexed.

Then came Garry’s murder. I listened to everything at a 10-week court trial. I listened to my daughters giving evidence. They wanted to come back and sit in the court, but as a mum I advised them it was too brutal for them. I am very glad I did, because five QCs goaded by defenders is not something I want my children to see after seeing their dad kicked to death. So, I know that element of it. I did get a summary of the judge’s direction, but I do not remember that document to be perfectly honest because it is so traumatising. I found a lot more out from the media, believe it or not, because they could see the dock and they give out everything 24/7—even to this day, I check on things because my mind is a blur.

Parole hearings are where statements are made. People do not know what date the parole hearing will be, they are just asked to do it and it goes off—not into the iCloud, but into something they cannot control. In all of this, the defendants and the barristers for the offender have a copy. The offender has a right to see these copies. In parole hearings, the offender has a right to see what I say about the impact of the crime. Surely, we should be able not to pilot this scheme, but to have the decency to just give a copy. We can go to the Post Office and pay 15p for a photocopy of a document. We have a digital system now even for passport photographs; we can go in a photo booth and give a code number and it appears on GOV.UK. Surely, we can have a copy of the transcript—the direction, the sentencing, how it was all resolved—for whenever a victim decides to pick it up. It is at their discretion, but surely we should not be looking at the monetary value of their damage, of the direction of the sentence and the direction for the judge, because it is so important to victims.

I ask my noble and learned friend: could we have further discussions and make sure that every victim of crime, not just those of rape and sexual abuse, has the opportunity to have that document whether in their hand or digitally? For too long it has been the offender’s right to see everything and surely now, while we are discussing victims legislation, we could have that in this Bill, to say they have a right free of charge, and let them have that document for sound peace of mind.

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[Lord Bellamy (Con)]

I am very grateful for those interventions. I have personally seen this in operation in Manchester, but it may have been that the court had particular availability of rooms that is not generally the case.

[Baroness Chakrabarti (Lab)]

That is where Ministers are taken.

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[Lord Bellamy (Con)]

I am extremely grateful for that important intervention. As a number of noble Lords pointed out, although from various quarters adults can—sometimes quite vociferously—speak for themselves, children cannot, on the whole. They are the silent ones. We have heroines such as Poppy but on the whole, we are dealing with a cohort that does not have the ability to raise its own profile, for that fairly obvious reason. I am grateful indeed to the noble Baroness, Lady Brinton, for making that point. For myself—I cannot commit the Government—I would say that we need available a part of the code or something that is particularly child friendly, so that at least some children can themselves consult it and understand their rights. So the Government’s door is not at all closed on this point. If I may say so again— I am conscious that sometimes I sound a bit like a broken record—can we please work on the practicalities of the code and on bringing everybody up to the same sort of level, rather than getting hung up on rather dry legal points?

I think I have covered in general terms the spirit, drift and direction of the amendments. I have to make one point on Amendment 100A which it does not at all please me to have to make. The difficulty with that amendment, as the Government see it, is that it relates to cases of suspected abuse. We have in the Bill a definition that turns on the existence of criminal conduct, and if there is criminal conduct, there is a victim. The Government at the moment are reluctant to extend that to suspected criminal conduct. That is a difficulty.

[Baroness Chakrabarti (Lab)]

But that is not quite right, though, is it? I do not believe that the definition of a victim in the Bill requires there to have been even a charge of criminal conduct, let alone a conviction, so I do not quite understand the reasoning that says we are concerned about suspected criminal conduct.

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[Lord Bellamy (Con)]

We may slightly be dancing angels on a pin. It may well be that if a regulated professional says to an authority, “I suspect there is criminal conduct”, there is enough there to say that there actually is criminal conduct to enable—

[Baroness Chakrabarti (Lab)]

For clarity, it is important, given that I intervened on the Minister before, to refer the Committee to Clause 1, “Meaning of ‘victim’”, and to subsection (5) in particular, which says that

“It is immaterial … that … no person has reported the offence”


or that

“no person has been charged with or convicted of the offence”.

Therefore, if no person has even reported the offence but a victim is still a victim, I believe—with huge respect to the Minister—that victims of suspected crime are included in the definition of “victim” that is the foundation of His Majesty’s Government’s Bill.

[Lord Bellamy (Con)]

My Lords, I am not sure that we are really in disagreement on this. As I think I pointed out several times on the last occasion, criminal conduct does not depend on whether something has been reported; I had a discussion with the noble Baroness, Lady Hamwee, about that before. We are discussing what level of evidence there has to be before somebody has to say that there is criminal conduct. Somebody has to judge whether there is criminal conduct if the thing has not been reported to the police, prosecuted or charged. It may well be that, in the circumstances the noble Baroness, Lady Brinton, refers to, the fact of that kind of reference may be enough to establish criminal conduct. However, if it turns out that the suspicion is wrong, there has not been criminal conduct. That is the only point I am making: it is either covered already, or it should not be extended to the situation being envisaged. I do not think I have made myself very clear, but I was struggling to do so.

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Moved by

[Baroness Chakrabarti]

23: Leave out Clause 2 and insert the following new Clause—
“The victims’ code(1) Schedule (The victims’ code) to this Act contains the code of practice as to the services to be provided to victims by persons having functions relating to—(a) victims, or(b) any aspect of the criminal justice system.(2) In this Part, the “victims’ code” means the code of practice in Schedule (The victims’ code) as from time to time amended by way of subsection (4) below.(3) The victims’ code shall make provision for services which reflect the principles that victims—(a) must be provided with information to help them understand the criminal justice process;(b) must be able to access services which support them (including, where appropriate, specialist services);(c) must have the opportunity to make their views heard in the criminal justice process;(d) must be able to challenge decisions which have a direct impact on them.(4) The Secretary of State may amend the victims’ code by way of regulations made by statutory instrument.(5) A statutory instrument containing regulations under this section may not be made unless a draft of the instrument has been laid before and approved by a resolution of each House of Parliament.(6) But the Secretary of State may make regulations under subsection (4) only if satisfied that such amendment would not result in a significant—(a) reduction in the quality or extent of the services provided in accordance with the victims’ code, or(b) restriction in the description of persons to whom services are provided in accordance with the victims’ code.(7) The victims’ code may restrict or vary the application of its provisions to— (a) victims of specified descriptions (including those who are victims by virtue of specific conduct or conduct constituting specified offences);(b) specified persons who have functions of the kind mentioned in subsection (1).(8) The victims’ code may include provision requiring or permitting the services which are to be provided to a victim to be provided to one or more other persons—(a) instead of the victim (for example, where the victim has died), or(b) as well as the victim.(9) The victims’ code may make different provision for different purposes including different provision for—(a) victims of different descriptions;(b) persons who have different functions of a kind mentioned in subsection (1);(c) different areas.(10) The victims’ code may not require anything to be done by a person acting in—(a) a judicial capacity, or on the instructions of or on behalf of such a person; (b) the discharge of a prosecution function, if that function involves the exercise of a discretion.(11) In this section, “specified” means specified in the victims’ code.”Member's explanatory statement
This amendment places the victims’ code on a firmer statutory footing as a Schedule to the Bill, amendable by regulations subject to the affirmative procedure. Another amendment will follow to add the Schedule referred to in this clause.

[Baroness Chakrabarti (Lab)]

It is an interesting time for me to be beginning this group. I do not know whether the usual channels have had the opportunity to consider timing.

House resumed.

Victims and Prisoners Bill

Baroness Chakrabarti Excerpts

Committee stage
Wednesday 31st January 2024 Lords Chamber

Debate on Amendment 23 resumed.

[Baroness Chakrabarti (Lab)]

My Lords, now we are once again resolved into a Committee, I can say that it is particularly humbling to follow the last group. Once more, I pay tribute to the noble Baroness, Lady Newlove, and to all the other survivors and survivor advocates we have heard from this evening and will hear from again, no doubt, before this Bill is done.

In speaking to Amendment 23 I shall also speak to its consequentials, Amendments 139 and 140, with support, for which I am grateful, from my noble Fred—my noble friend Lord Ponsonby of Shulbrede—and the noble Baroness, Lady Brinton. I hope the Minister will forgive me because this may be caricatured as legalism, angels dancing on the head of a pin, et cetera, or legal weeds, but I believe that putting the victims’ code on a firm statutory footing is incredibly important and something all parties and all Members of your Lordships’ House ought to support.

My reasoning is twofold. In a later suite of amendments, I will suggest that the victims’ code needs more teeth—not the sharpest teeth, but just some teeth. We will debate that later. If we are going to create some statutory powers to enforce the victims’ code, which I think is a pretty good code, we should all think about the fact that we have it. I thank the Public Bill Office and all those who were involved in putting the code on the many pages the Committee will see. It is a code full of very positive rights for victims but, sadly, too many of them are not real in practice at the moment. So, I am grateful for that.

One of the reasons I want to put the code on a statutory footing, as I have said, is that I am dovetailing these amendments with later amendments to give the Victims’ Commissioner some modest powers to enforce this noble code when it is not put into practice by the public authorities that have that duty. But even before we get to the amendments that will come later in the Committee’s consideration, there is value in putting this code on a statutory footing in the Bill, which is supposed to be a Bill for victims.

I have been a human rights lawyer for 30 years this year. That is an admission one does not want to make for all sorts of reasons—some personal and some political, I guess—and I have so much respect for English and Welsh common law. I believe it has done so much for fair trial rights and defendants’ rights: the golden thread and so on. Ironically, it is international human rights norms that taught me most about victims’ rights. The presumption of innocence, the burden of proof and all of that is pre-ECHR in our system, and I defend it. If anyone googles me, they will find all sorts of associations—“I am a terrible person who supports terrorists and murderers” and so on. I do not, but I do really believe in fair trials. I do not believe that any victim benefits from a miscarriage of justice. When there is a miscarriage of justice, there are two victims—and many more.

It is slightly ironic that, in our contemporary politics, politicians get brownie points for saying, “Let’s lock up more people. Let’s lock them up for longer. Let’s create more criminal offences” and “Let’s put more statutory provision on the books”—not to get stuck in the legal weeds or dance on the head of a pin, but as performative politics. Yet we do not create the facilities the noble Baroness, Lady Newlove, has been campaigning for: simple things such as a separate room for the victim at a murder trial, translations, and transcripts. All the things we were debating earlier this evening just cannot happen, but what can happen is longer sentences, more crimes et cetera. We can do that legislation —the legal weeds stuff—but we cannot do the basics.

I respect fair trials, and I respect a great piece of human rights legislation that goes back to 1984. The Thatcher years’ Police and Criminal Evidence Act did so much for suspects’ rights and defendants’ rights, including in the police station—and not just in its codes, but in the Act itself. It is framework legislation that creates all sorts of precious and important rights for suspects and defendants.

I believe that victims need at least the equivalent of that. It is a modest ask. For someone who completely believes in the presumption of innocence, fair trials and suspects’ and defendants’ rights, it is time for victims to have their equivalent. Putting the victims’ code on a statutory footing to make the Bill the equivalent of the Police and Criminal Evidence Act 1984 for suspects and defendants would be the least that we can do for victims of crime.

Even without my later suite of amendments, which would give the Victims’ Commissioner some enforcement powers—modest ones, which we will discuss later—putting this on the face of the Bill would pay respect to victims. In this age once more of connectivity, it would make the code more widely known, talked about and accessible. I also propose that, because this would now be in primary legislation, it would be amendable only by affirmative resolution in both Houses. I also argue that the Victims’ Commissioner should at least be consulted alongside the Attorney-General and so on, because otherwise this is all talk.

We have been doing this talk for many years in a performative, posturing arms race. Noble Lords know what I am talking about—and there is no monopoly of vice or virtue in any part of your Lordships’ House. This is the least we can do. Do we believe in victims’ rights? Let us put them into the Bill, and then debate later what we do about them and the enforcement powers which I believe the noble Baroness, Lady Newlove, and those who follow her should have. I beg to move Amendment 23 and hope I will have the unanimous support of the Committee.

[Baroness Newlove (Con)]

My Lords, I speak in support of Amendment 23. In my previous term as Victims’ Commissioner, a government lawyer once described the victims’ code to me as “persuasive guidance”. Those two words spoke volumes to me, because they go to the very heart of what is going wrong with the treatment of victims in our criminal justice system. If the Bill is to have a substantial impact on the victim experience, the first thing we need to change is the culture of the criminal justice system. I fear that victims’ entitlements are all often viewed as “Nice to do”, “If we can”, or “How can we tick the victim box with minimum effort?” This clearly came across in the findings of the joint inspection report on the delivery of victims’ entitlements, published on 23 December.

Victims need to be seen as participants in the justice process and not as observers. For this to happen, they need more than “persuasive guidance”; they need statutory rights. We do not talk about the defendant having “persuasive guidance”. They have statutory rights, and rightly so—we would not expect anything less. Rights are to be respected and adhered to. As we have seen over the past 20 years, entitlements in the victims’ code have been viewed by many practitioners as no more than this persuasive guidance. For this reason, I support the amendment from the noble Baroness, Lady Chakrabarti, which seeks to place the victims’ code into a Schedule to the Bill.

If this amendment is successful, for the first time we will be able to say that victims have statutory rights. This would be a significant step forward for the victims and place a much greater responsibility on key agencies to deliver compliance. The amendment cannot by itself change the landscape but, if coupled with greater accountability, effective scrutiny and better public awareness, it is one of the many steps we need to take if we are to deliver transformative change for victims.

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

My Lords, I thank the noble Baroness, Lady Chakrabarti, and others, who have spoken in this part of the debate. To take up at once the challenge of the noble Lord, Lord Ponsonby, the Government’s position is that there are no specific amendments, including Amendment 108, which could or should be promoted into the Bill—they should all be dealt with in the code, in the right place. The difficulty of putting specific matters in the Bill, among other difficulties, is that you make a policy choice, irrespective of the available resources and the available situation in different areas, and so forth, as to which—

[Baroness Chakrabarti (Lab)]

My Lords—

[Lord Bellamy (Con)]

I was just going to finish my sentence, but of course I give way to the noble Baroness.

[Baroness Chakrabarti (Lab)]

I am sorry for being premature. I totally see the Minister’s point about the challenge of taking particular parts of the victims’ code and putting them in the Bill. That is why some of us are offering the suggestion that the whole victims’ code should be in statute. I hope that that would assist the Minister, because he would then not be picking and choosing particular aspects of the code, as the whole code of victims’ rights in this country would be in primary legislation, subject to amendment and so on. That would make victims’ rights a little bit closer to the appropriate rights of suspects, defendants and convicted criminals.

[Lord Bellamy (Con)]

My Lords, I am grateful for that intervention and clarification. Perhaps I could explain why the Government do not think that this is a positive way to go.

The first point is that the present code is still a statutory code. It is grounded in statute, authorised by statute, has been subject to negative resolution in Parliament and therefore has a legal status. The Government’s position is that putting the code in a schedule to the Bill does not materially increase its legal enforceability, or indeed its legal status. Therefore, there does not seem to the Government to be a compelling reason to do it in either case. The Government would consider the present code to be subject to judicial review. There could be a legal challenge; in fact, the legislation on the face of it accepts that the code is admissible in legal proceedings, and so forth. So we already have a statutory code, and we are dealing with quite a fine point—whether putting in a schedule really has any material effect. The Government’s position is that, certainly legally, it has no effect—but in practice there is a very significant downside.

The downside is that what you have on the statute is no longer user-friendly and no longer contains the information that victims want when they reach for the code and want to know what to do, where to go, what the telephone number is and what the website is that they need to consult. You cannot put that in the statute, and I invite noble Lords to compare the code as currently reproduced in the amendment we are discussing with the code as published. The latter sets out 12 rights very clearly, has boxes that explain various things, tells you where to go, elaborates on the rights, et cetera, all in very user-friendly language. Either you abandon that—in which case, you abandon the signposting and everything we were discussing in the previous group—or you have two documents. And that, in the Government’s view, is not very satisfactory. Although we all have touching faith in the interest of the general public to read long schedules in the statutes that we pass, that is not actually the way to raise awareness. You raise awareness through other means.

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[Lord Bellamy (Con)]

My Lords, I thank my noble friend for her intervention. Let me have another go at explaining it. The code is not in itself a statute. Once you go down the route of having a code and not a statute, you effectively have a framework that is still a legal framework—it is still legal guidance that gives people rights. The code says that you have 12 rights and lists them: this is what the authorities have to do and this is what you do if those rights are not observed. It is a legal framework; we are talking about degrees of legal right, but these are legal rights. If you wanted to, you could go to court and say that you have not had them.

[Baroness Chakrabarti (Lab)]

No, you could not.

[Lord Bellamy (Con)]

Well, that is not the Government’s advice.

--- Later in debate ---

[Lord Bellamy (Con)]

I think the short answer is that the purposes of those later clauses is to impose a statutory duty on the relevant bodies. The purpose of Clause 2(3) is to set out the principles. In terms of these, the Government’s view is that “should” is a more appropriate word than “must”, because the principles are very broadly expressed. Noble Lords might argue that “should” and “must” are almost interchangeable. I think we are again drawing really fine distinctions.

Perhaps I could just deal with two or three other points that arise on this part of the Bill. One is the question of the affirmative procedure as against the negative procedure. If I may say so, at the moment the code is subject to the negative procedure. Noble Lords can pray a resolution against it—of course there is going to be a debate in Parliament. I would respectfully suggest that it is more flexible than our somewhat—on some occasions at least—torrid debates in the Moses Room on affirmative resolutions. Noble Lords cannot change anything, it is very formalistic, and I respectfully suggest that making it an affirmative resolution is not a material improvement.

To keep the whole structure flexible and adaptable—I have used various words beginning with “a”, and I think I could add “adaptable” to this cohort—the Government suggest that it is not a useful move to put the code without the accompanying description in the statute itself; that in itself has no material effect on the Government’s view.

[Baroness Chakrabarti (Lab)]

I am grateful to all noble Lords who participated in this debate.

I remind noble Lords that Clause 5 makes it clear that failure to comply with the victims’ code, currently and as proposed in the Bill, does not make a person liable to criminal or civil proceedings. The code has no legal teeth.

Let us cut through a bit of the legal waffle. The noble Baroness the Victims’ Commissioner is right: this is a code without enforceability. No victim can enforce their rights in any court in the land, and even the Victims’ Commissioner appointed by the Government of the day cannot enforce the code. That is why the amendments in this group dovetail with later amendments which would give the noble Baroness, Lady Newlove, and her successors and heirs, some modest powers to issue notices to public authorities, to publish those notices and, in extremis, to take legal action.

With the greatest respect to the Minister, to say that there is no difference between the scheme that is offered in these amendments and the current position is just not accurate as a statement of law. He said that this amendment is unnecessary and unhelpful. I hope that I have dealt with that. He said he did not want to burden the legislation with a schedule. I do not want to burden victims because this Bill is supposed to be about them. I know where the balance of the argument is between a few extra pages in a schedule and this toothless, illusory, broken promise to victims.

As for the arguments about how clunky it looks to have a code in a schedule to legislation, compared with the sparkly thing that could be on the Victims’ Commissioner’s website, we have that all the time. The convention rights—which may not be totally popular with everyone on the Benches opposite—are popular with me and mean a lot to people. They are in a schedule to the Human Rights Act. They are popularised in all sorts of ways to all sorts of people. They know that this is not a code of guidance; it is a Bill of Rights.

As I have said before, parties on both sides of this House have, for many years, talked the talk about victims’ rights—more legislation, longer prison sentences, et cetera—but have not actually delivered a right to see the transcript, to have a separate room at the court, to be treated with dignity. Let us have this debate but let us not pretend that there is no legislative or legal difference between the current and proposed positions.

I am disappointed by the Minister’s response. Because I have so much respect for him as a lawyer and a former senior judge, I urge him and his colleagues to think again about this. It would not cost a penny, but it would mean so much to so many people. Putting this and the subsequent amendments that we will debate on a legislative footing would give the Victims’ Commissioner some judgment and power to give this code teeth.

For the time being—but only for the time being—I beg leave to withdraw the amendment.

Amendment 23 withdrawn.

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Moved by

[Baroness Chakrabarti]

24: Clause 3, page 3, line 28, at end insert “and the Commissioner for Victims and Witnesses”
Member's explanatory statement
This refers to the duty on the Secretary of State to prepare a draft Victims’ Code. The Victims’ Commissioner has a statutory duty to “review the operation” of the Victims Code. The amendment would put a statutory duty on the Secretary of State to consult the Commissioner when making any changes to the victims' code or issuing any statutory guidance relating to it.

[Baroness Chakrabarti (Lab)]

My Lords, at the risk of trying the Committee’s patience, we are now talking about the role of the Victims’ Commissioner. Again, the thrust of these amendments moves in a similar direction and gets more into the specifics of the role of the commissioner.

Even under the scheme as currently proposed by the Government under the various provisions of the Bill, the government-appointed Victims’ Commissioner has very little respect and power. Even in places where the Secretary of State must, for example, consult the Attorney-General, there is no similar obligation to consult the Victims’ Commissioner. I find that constitutionally odd. It seems that one does not require a statutory duty to consult the Attorney-General. One hopes that in a rule-of-law Government and with cabinet government, it would be commonplace, without statutory provision, for Home Secretaries, Justice Secretaries and Cabinets to consult the Attorney-General. Maybe I live in the past and that is another place.

The Victims’ Commissioner is a creature of statute; therefore, there should be statutory duties to consult the Victims’ Commissioner, particularly when there are the sorts of provisions that the Government are already proposing in their own scheme.

I have, perhaps, taken up too much time already. In short, wherever there are powers and duties and anything proposed in the Government’s case to protect the victims by improving the code or compliance with the code, there must be a role for the Victims’ Commissioner. The Government should not be afraid of that because they appoint the Victims’ Commissioner. One would hope that they would appoint someone whom they trust and respect and who has at least enough judgment to be the guardian of the victims’ code and of this whole approach.

Anything less is really, as the noble Baroness, Lady Newlove, suggested in her remarks earlier, a bit of an insult to victims. This is not just a toothless tiger; at the moment I wonder where even the gums are. It is embarrassing. At least in the Government’s own case, with their own scheme as currently devised, this suite of amendments, to put it shortly, is putting the Victims’ Commissioner in every place where she should be.

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[Baroness Chakrabarti (Lab)]

I am grateful to all noble Lords in the Committee, in particular the Minister. He will forgive me if I was overly animated; I hope he does not think that we have fallen out as I find it hard to envisage circumstances in which we would do so.

I am grateful for the Minister’s clarification of the Government’s intention in Clause 3(3): that the consultation will be broader than just the Attorney-General and will include the whole Cabinet or any relevant Secretary of State. I may be a fool but I always thought that, in our constitution, the Cabinet, the Government and the Secretary of State were virtually indivisible and there was no need to create statutory duties on individual Secretaries of State to consult each other. I may be wrong about that but the Minister’s argument is that he needs provision in the Bill for the Secretary of State to consult the Attorney-General, yet no similar provision is required for the Secretary of State to consult the statutory creature—the noble Baroness, Lady Newlove, does not look like a statutory creature; she is a wonderful human creature—that is the Victim’s Commissioner. I am confused about that but perhaps, in due course, the Minister and his colleagues will deliberate it; I like the noises that I am hearing about possible reflection.

Without provisions of this kind and of the kind that we will debate in the next group, this whole part of the Bill will be Conan Doyle. In particular, for fans of Conan Doyle, this is The Adventure of Silver Blaze. This is the curious incident of the victims’ code that made friends and did not always bark in the night. With that, I beg leave to withdraw the amendment and not bark in the night.

Amendment 24 withdrawn.

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[Baroness Chakrabarti (Lab)]

My Lords, this group is about giving teeth to the toothless tiger that is the victims’ code. To be clear, currently in law, and as proposed by the Government’s scheme in this Bill, the only indirect enforceability would be that if anybody has any other kind of proceedings against a relevant public authority, the victims’ code can be taken into account. That is it. That is not an enforceable right in any usual sense of the concept, because enforceable rights require duties that must be enforced.

Various options have been proffered by noble Lords in the Committee in the various amendments in this group. Mine is Amendment 31, on which I am grateful for the support of my noble friend Lord Ponsonby of Shulbrede and, once more, the noble Baroness, Lady Brinton. I propose here that the teeth, to some extent, go to the Victims’ Commissioner. As I said in the debate on the previous group, the Government appoint the Victims’ Commissioner; this is not some dangerous person who will be litigating everywhere. This is an appropriate person who has been appointed by the Government of the day.

I am not suggesting that victims should be able to sue directly in the courts on the victims’ code. Frankly, there is no legal aid for them to do so anyway, and I do not want them to be traumatised by more litigation when they have been so traumatised by the principal proceedings in which they have had such a bad experience. But I do want them to have real rather than illusory rights, which can be enforced.

The thing about enforceable rights is that they become more real just because they exist, because the public authorities concerned will take note. I believe they will take greater note when they know that down the road, in extremis, there is a potential reckoning if they continue to ignore victims in the way that they have, to deprioritise them or to do whatever it is that has led to some of the stories we have heard in Committee this evening.

My proposed scheme is to replace the current Clause 5, the toothless tiger, with the following enforcement procedure. Incidentally, this is not about specific cases. It is not about the Victims’ Commissioner doing something that she does not do at the moment and getting involved in this criminal case or that; there would be obvious problems with that. This is about general practice. When, for example, it comes to the notice of the Victims’ Commissioner that women are being treated appallingly when they report rape and have their mobile phones taken or are not allowed to speak to counsellors—clearly things that would never happen in real life; I am just hypothesising for a moment—the Victims’ Commissioner in the first instance would do what she does already, which is to try to engage with the public authorities at length and persuade them that there is a problem in general that needs to be dealt with.

However, there are measures in the proposed new Clause 5(4) for when that is not being complied with. In the first instance, in Clause 5(4)(a), the Victims’ Commissioner would be able to issue a notice of general guidance. It would not be about a specific case but would be general guidance to the relevant public authority about its practice that, in her view, was not complying with the code. Whether it is about separate rooms in the Crown Court or the information being required, the victim is not being treated according to the code, so the commissioner issues the notice, initially in private.

If that is not complied with within a reasonable period of time, under Clause 5(4)(b), the next tool in the armoury—which is still pretty modest—is that the Victims’ Commissioner would be able to publish that notice. In my view, that public notice is another tool for accountability in relation to the intransigence of public authorities that are simply not complying with the code.

There is then a further step. One would hope that it would very rarely happen, but maybe sometimes it would need to. This is not about specific cases and would not involve individual victims having to go through legal proceedings, but in extremis the Victims’ Commissioner would be able to start proceedings in an appropriate court or tribunal, defined in rules by the Government, to seek enforcement of the code. That would be only the Victims’ Commissioner, not any litigant in the land who was being mischievous with their money, or lefty human rights lawyers and all that stuff. It would be the Victims’ Commissioner, who is trusted and was appointed by the Secretary of State in the first place.

I think that is a pretty modest and balanced scheme for giving the toothless tiger not great big scary teeth but just some milk teeth so they can nudge these public authorities, which have had all this time and all these years with the current code and the current scheme, which is going to be replicated in the Bill proposed by the Government. It would get the Victims’ Commissioner a little bit more by way of a power to deliver for the victims that she serves.

[Lord Sandhurst (Con)]

My Lords, I hope I can do this in the time allotted, as they say.

I shall speak to Amendment 51 on training in relation to support for victims. Very simply, Clause 6 directs that criminal justice bodies must take reasonable steps to promote awareness of the victims’ code to victims and other members of the public, but the Bill does not mandate that professionals within these bodies receive any training in the code. There is no point in this provision in Clause 6 if those who are to carry it out—those who are acting on the ground within the agencies, under the chief constable or within the prosecution service—are not aware of their duties or trained properly to deliver them. This part of the Bill risks being a fig leaf. To make it effective, those responsible for it must be trained in delivery. Is this not just common sense?

The evidence base is that there is a need to provide training and that it is clear that there is a widespread lack of awareness of victims’ rights. I take you back to two surveys. In 2019, the London victims’ commissioner conducted a review into compliance with the victims’ code of practice. She heard from over 2,000 victims of crime. The review revealed examples of unacceptable service. It showed that a proportion of those who work in the criminal justice service lack the skills or training to understand and respond to victims’ needs effectively. Victims suffer the consequences of those problems time and again; they simply were not informed of their rights. In short, the code was not delivering.

Let me give some examples. Fewer than a third of the victims reported being told about the code of practice. Of course, some of them may have forgotten, but certainly a large proportion were not told. As a result, they did not know what their rights were—they did not know they had any rights. It is no use giving the victims rights if they do not know about them. Largely, the police and the Crown Prosecution Service are not trained to do this. It is not because they are wicked people; they just do not know about it. There are many other deficiencies. Read the review if you want to know more.

More recently, in June 2022 the office of the Victims’ Commissioner launched the Victim Survey, an online survey of victims of crime in England and Wales that asked them about their experiences as a victim of crime. I will give a few examples. Fewer than a third, only 29% of respondents, were aware of the victims’ code. The same percentage said that they were offered the opportunity to make a victim personal statement. In other words, if that is right, 71% were not offered that opportunity. Again, allowing for some people not being very capable or bright, it shows a large proportion, on any basis, were not informed of really basic information.

Data from the user satisfaction survey in London shows that only 25% of victims were made aware of the victims’ code. In the same period, the answers showed that 50% were offered victim support services—in other words, half were not; and 59% were given the opportunity to make a victim personal statement, so around 40% were not. It is the “nots” we are interested in here. Only 12% were offered information on compensation. Again, making allowances for the fact that it may not have been appropriate or necessary and that some people are forgetful, a large proportion were not told about possible compensation and how to claim it, and that is important. Even a small amount of compensation can make an individual who has been the victim of crime feel a bit less disgruntled. I speak as someone who sat as a recorder in the Crown Court for 20 years.

Those are all rights in the victims’ code. They are all failures; just read the survey for more. It is plain that there is no training. We need it and it should made part of the statute. So, I commend this amendment to the Committee.

Victims and Prisoners Bill

Baroness Chakrabarti Excerpts

Committee stage
Monday 5th February 2024 Lords Chamber

I pay tribute to the inventiveness—imagination underplays it—of the noble Baroness, Lady Chakrabarti, for thinking this up as a possible process. However, the Government are not convinced that it would be a useful process, and it would undoubtedly lead to the diversion of time and resource to legal proceedings. If there is one thing the Government are doing their best to avoid in this area, it is money unnecessarily going on legal proceedings. The Government are not persuaded that Amendment 31 would be an appropriate way to go.

[Baroness Chakrabarti (Lab)]

Perhaps the Minister can drink a bit more water at this point, though that is not the sole reason for my intervention.

I am grateful for the Minister’s clarification, but my own clarification is that no one suggested, at any point, that Clause 5 is an ouster of judicial review. Last time, I was trying to make it clear that, in Clause 5, the code does not give any right to civil proceedings, and so no individual can sue on the code. In the creative scheme that we devised, we were not suggesting that individuals should be able to sue either. We certainly agree with not wanting more litigation for people who have already had a terrible time with litigation and probably have no civil legal aid anyway.

The point was that the Victims’ Commissioner should be more than a toothless tiger. Whether or not it is through force of personality, as with the current commissioner, future commissioners should have something in their back pocket for recalcitrant public authorities which, year after year, do not respect the victims’ code. Even in the scheme that we developed, litigation should not be the first resort for a Victims’ Commissioner either today or in future. They should have to jump through hoops first—the issue of private notices followed up by the issue of public notices. Only in extremis should the Victims’ Commissioner alone—in relation not even to particular a criminal case but to systemic failure—be able, as a last resort, to sue on the code. I understand the Minister’s position, but I hope he will at least take the opportunity to reflect on what noble Lords have suggested before the next stage.

[Lord Bellamy (Con)]

I thank the noble Baroness for that intervention. I will continue to reflect on all the points made, including this one. The Government’s present position is that this “slap on the wrist” power for the Victims’ Commissioner probably does not take matters much further forward, but I may reflect on that further.

I turn to Amendments 37 to 42 from the noble Lord, Lord Russell, and other related amendments, which, as I understand it, require the Secretary of State, rather than the police and crime commissioner, to monitor code compliance for a local police area. For transparency, the Government are committed to national oversight via the ministerial task force, but there is an essential role for local accountability. There is a hierarchy here, and the police and crime commissioner is the right person to be responsible for ensuring compliance in that local area as they already play a vital role in improving and championing services for victims through commissioning support services and chairing local criminal justice courts. The Government attach importance to that local activity.

This brings me to Amendment 36, supported by the noble Lords, Lord Ponsonby and Lord Bach, which seeks to specify that criminal justice boards and PCCs may use local criminal justice boards for the purposes of local review. We entirely agree. As the noble Lord, Lord Ponsonby, said—I completely recognise this—we need a wider debate about placing local criminal justice boards on a statutory footing. The Government have expressed support for that happening in a way that reflects the full remit of the work they do. Once we find a legislative opportunity to do so, it should be taken forward. The Government are very much of the view that their often vital work should be supported.

I return to awareness and training in Amendment 51 in the name of the noble Lord, Lord Sandhurst, and Amendment 83 in the name of the noble Lord, Lord Russell, on training in support for victims of stalking. The noble Lords are quite right that there is an obvious need for more training. The Government hesitate to have a national training framework because so much will depend on the local situation. These amendments apply to a vast range of organisations and a one-size-fits-all approach will not appropriately support staff to meet the diverse needs of victims in the wide range of settings in which they operate.

However, it is very difficult to imagine guidance on Clause 11 which does not include a reference to the kind of training that should be done. If you are placing a duty on the agencies to work with victims day in, day out to promote awareness of the code, it seems implicit that the relevant persons have to be properly trained. The Government agree with that.

Victims and Prisoners Bill

Baroness Chakrabarti Excerpts

Committee stage
Wednesday 7th February 2024 Lords Chamber

[Earl Howe (Con)]

My Lords, I am the first to agree that a code of practice takes us only a certain distance. We also need to ensure that there is proper training for police and others. We had a short debate about this earlier in the week, and I hope I gave some useful information to noble Lords on that front. I am, of course, very happy to speak to my noble friends about this—as I am sure my noble and learned friend Lord Bellamy will be, once he gets better. It is not a simple matter, and I did not intend to suggest that it is.

On the amendment tabled by my noble friend Lady Bertin, as I have already said, it is vital that victims of crime can access the justice system and get the support they need without fear that their privacy will be violated. I am aware of concerns that deeply private information about victims, including notes from counselling sessions, have sometimes been used inappropriately to discredit victims—in particular, victims of rape and serious sexual offences—seeking justice through the criminal justice system. This can, as the noble Lord, Lord Marks, pointed out a minute ago, prevent victims from accessing the support they need in the first instance. That should not be the case, and I am grateful to my noble friend for raising the topic through the amendment.

My noble friend’s amendment seeks to put in place a judicial barrier for disclosure of counselling records and, with some exceptions, to create a requirement for the court not to grant access to this material where the disclosure was made in confidence by the victim to a person providing support services in a professional capacity.

Through the Bill, we are placing a new statutory duty on the police, as I have said, to request victims’ information from a third party only where necessary and proportionate in pursuit of a reasonable line of inquiry. Police must also provide information to the victim on what information has been requested, why, and how it will be used.

As I have outlined, the Government have asked the Law Commission to examine the trial process in sexual offence prosecutions and consider the law, guidance and practice relating to the use of evidence. This review will include consideration of whether a court direction should be required before accessing third-party material such as counselling records, and consideration of international examples where this system is in place.

[Baroness Chakrabarti (Lab)]

I am grateful to the noble Earl for giving way. I have not spoken in this group so far, because I agreed with everything said by the proposers and did not want to take up the Committee’s time, but, in the light of what I have just heard—in general, but also specifically about counselling notes— I feel moved to. A general obligation on necessity and proportionality is not going to cut it, I am afraid, because counselling and therapeutic notes are special. Just as legal advice is special, and subject to special protection in the courtroom, there is no reason why we cannot act to make such notes special too.

I appreciate that the noble Earl is heroically stepping into another’s brief, no doubt at short notice, but I think that it is for the department to reflect on the quality of thinking so far. Waiting for the Law Commission will take too long. There are already too many women who have not come forward to report their rapes because of the well-publicised problem with counselling notes. They are being counselled by public authorities to choose between counselling or taking their criminal case forward—this is totally unacceptable.

My goodness, the irony of relying on general principles in the Human Rights Act is perhaps the richest I have heard in a long time, given some of the positions that senior members of the Government are taking on that Act and the ECHR. I hope the noble Earl will reflect on these answers or urge others responsible to reflect.

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Moved by

[Baroness Chakrabarti]

82: After Clause 15, insert the following new Clause—
“Parental alienation in criminal domestic abuse casesIn section 1 of the Children Act 1989, after subsection (7) insert—“(8) Anyone involved in the case who is also a victim (of criminal conduct) within section 1 of the Victims and Prisoners Act 2024 (meaning of “victim”) cannot be considered by the family court as a potential perpetrator of parental alienation.””Member’s explanatory statement
This clause would seek to ensure that victims under this Bill could not be disadvantaged by considerations of parental alienation in the family court.

[Baroness Chakrabarti (Lab)]

I have recovered my calm and my optimism that we may get some more positive noises from the Government in the next group.

This large group could easily have been degrouped because it covers two fairly distinct areas. This is a very long Bill with a lot of amendments, so maybe keeping this as one group was an attempt to assist the business managers. I hope that the Committee will bear with me in separating the two principal issues covered by this long list of amendments.

Amendments 84 to 100 are about what is called Jade’s law. There are other concerns about the family court and the way in which its process has been and is being used abusively against victims within the definition in the current Bill. Amendments 82, 110, 111 and 117 refer to this.

I turn first to Jade’s law. The Committee will remember that last October the Government amended this Bill in the other place to include new Clause 16. This is what is being called Jade’s law. The intention is to ensure that a parent who kills a partner or an ex-partner with whom they have children will automatically have their parental responsibility suspended upon sentencing. The purpose is not to burden family members already in a state of some trauma with having to apply subsequently to the family court of their own volition to ask for the parental rights of the killer to be removed. Parental rights could be suspended as part of the sentencing process to take away that additional procedural burden. It is often bereaved grandparents and close family members who are in that devastating situation.

Jade’s law is named for Jade Ward, who was murdered by her former partner in 2021, with her four children sleeping in another room. Jade’s family campaigned for a change in the law after Jade’s murderer was able to continue to take part in decisions relating to the children. There are other case studies too.

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[Baroness Fox of Buckley (Non-Afl)]

My only final point is to say that the term “parental alienation” has become problematic on both sides. It seems to me that one side can use the term “parental alienation” in the way that has been described—I have made the point that the term is used in the amendment—and another side can basically say that anyone who uses the term “parental alienation” does not understand the problems of victims of domestic violence, which is usually the accusation, as is that they are on the side of men’s rights campaigners. I am not saying any of that. I want some clarification on one amendment only of this very big group, because it is unhelpful to put it in the law.

[Baroness Chakrabarti (Lab)]

I will briefly respond to the noble Baroness. I thank the noble Baroness, Lady Fox, for her constructive engagement and for everything she has said. I will respond on that specific amendment. I understand where she is coming from.

Perhaps I did not put it very well, but what I was trying to articulate before is that I fully accept, as a fact of life, that marital breakdown will, sadly, sometimes —maybe even often—create a rancour that can be passed on to the children. The children can be caught in the middle, and they may feel that they are pulled in two directions, or perhaps in one direction more than the other; it does not matter. That is a fact of life. It is a matter of evidence and fact that is not, in my view, a matter for medical experts, but a matter for the judge to deal with and cope with—I think the noble Baroness is slightly sympathetic to that point.

In many cases, it will be about encouraging the parties, whatever their pain, to reflect on their actions in the interests of the child. However, it does not require the kinds of sums of money and the sorts of diagnoses that the noble Baroness, Lady Brinton, was talking about. It has to be said again that we are often talking about some very wealthy men; it need not be, but it is usually men. These are some very wealthy individuals who pay some very expensive, slightly dodgy—and if the noble Lord, Lord Russell, can use the “B” word, I can use “dodgy”—experts, whose expertise I would query, but whose greed I would not.

I can always reflect on drafting; that is what Committee is about. Here, when we talk about being

“considered … as a potential perpetrator of parental alienation”—

as opposed to simply saying bad things to their kids about the other party—we are talking about this syndrome. That is what I was trying to reflect. As for the fact that they should not be diagnosed or considered for diagnosis for 90 days for this syndrome, frankly, if they are a victim of abuse, it is almost inevitable that they are going to have some rancour or anger towards the other partner, unless they are a saint. Judges are well capable of considering that and working out what to do on the facts.

It is really about attempting to separate facts from expert evidence. These are hard facts that judges can deal with, with other court reports. This so-called “alienation expertise”, that some of us believe has become a bit of a racket, is being weaponised against victims. If there is something in the clarity of the drafting that can be improved, that is the great benefit of Committee, but I am trying to respond with the intention behind my amendment. I am very grateful for the opportunity to do that, raised by the noble Baroness, Lady Fox.

[Lord Meston (CB)]

My Lords, having started to grow old in the family courts, I feel that I ought to address some of these amendments, some of which I would like to support and some of which I would like to qualify.

I begin by clearing up one particular point, which was possibly a slip by the noble Baroness, Lady Brinton. There is no question now of unrepresented litigants being allowed to cross-examine mothers, particularly in contested cases involving domestic abuse allegations. It simply is not tolerated. No judge would tolerate it and we all know how to deal with it when it arises.

Turning to the individual amendments, as quickly as I can, and dealing first with Amendment 82 relating to parental alienation, I am worried by the proposal to restrict the family court’s approach to cases involving allegations of so-called parental alienation by what would amount to a statutory exclusion of evidence. There are two main grounds for concern that I suggest. First, the amendment would restrict the scope of what the court might want or need to consider. Secondly, and ironically, it might tend to elevate the significance of the concept of parental alienation. Allegations of alienation, whether justified or not, have become part of the weaponry of high-conflict parental disputes. The concept of parental alienation is controversial, and, indeed, as the noble Baroness, Lady Chakrabarti, said, the idea that there is a syndrome is largely discredited. That in itself may be one reason why it should not find its way, in any way, into a statute.

I was not going to refer to what was recently said by the President of the Family Division, but in view of what I have heard, I will say that in an important recent decision, in 2023, the President of the Family Division said:

“Family judges have, for some time, regarded the label of ‘parental alienation’, and the suggestion that there may be a diagnosable syndrome of that name, as being unhelpful. What is important, as with domestic abuse, is the particular behaviour that is found to have taken place within the individual family before the court, and the impact that that behaviour may have had on the relationship of a child with either or both of his/her parents. In this regard, the identification of ‘alienating behaviour’ should be the court's focus, rather than any quest to determine whether the label ‘parental alienation’ can be applied”.


It is often said that the family court has to take a holistic view of the child’s welfare. It has to look not only at what happened in the past but at what might be possible in the future. Cases of this type have a particular complexity. The signs of parental alienation are, frankly, not difficult to identify. In my experience, Cafcass is well equipped to do that. The causes are more difficult to understand. Cases in which one parent tries to turn the child against the other parent, consciously or unconsciously seeking to punish the other parent, present differing degrees of alienation and varying motivations.

These cases are not easy to resolve. They require an understanding of the family dynamics, and an assessment of the impact of what has happened and of the harm to the child concerned. The evidential picture is not always clear-cut. Indeed, there are some cases in which there may quite well have been some level of domestic abuse by one parent, but the alleged parental alienation is wholly unrelated to it; or the persistent hostility revealed is quite out of proportion to the type of abuse that has been experienced. The Children Act and the practice direction governing cases in which abuse has been established fundamentally require the court’s assessment of harm, or risk of harm, from all sources. Those are the vital considerations.

Amendment 82 would insert the label “parental alienation” into primary legislation. It could artificially restrict—and, indeed, distort—the proper analysis of parental behaviour and attitudes in their context, and could restrict the careful handling that such cases sometimes require. I doubt that would be helpful. Indeed, it could well be unhelpful.

I turn now to Amendment 84 and others that wish to introduce the use of Section 91(14) orders. For the uninitiated, Section 91(14) orders restrict further applications to the court without leave of the court. It is a valuable power. Although Section 91(14) orders are not strictly speaking barring orders, as sometimes described, they provide a necessary protective filter to ensure that inappropriate applications will not be allowed to proceed.

In reality, a Section 91(14) order may or may not be necessary in any individual case of this type—that is to say, a case involving the application of Jade’s law. However, in these extreme cases, if there is any possibility of an inappropriate application by the convicted offender, such an order would be justified. Indeed, under current guidance there does not always have to be a risk of repeated applications, but rather the risk of any application without merit.

In the situation covered by the Bill, when, unfortunately, one parent has killed the other and the victim’s family or foster carers have stepped in to care for the child or children, they should be shielded from the prospect and distress of further court proceedings. However, in that context, and slightly tangentially, I will just qualify one observation made by the noble Baroness, Lady Chakrabarti, when she referred to parental rights. One of the great improvements brought about by the Children Act 1989 was to remove the concept of parental rights. What is being restricted here is the exercise of parental responsibility.

My only reservation about the Section 91(14) amendments relates to the question of who should be responsible for making such orders and when they should be made. From experience, I emphasise that the orders require careful, case-specific drafting. It is therefore always necessary, when making such an order, to specify its duration, which is not dealt with by Section 91 itself. That may require consideration of the age and circumstances of the child and, in these situations, the position of the surviving adults. I rather assume that those proposing these amendments would wish the order usually to run until the youngest child reaches 18 years of age, but I suggest that should be made clear, either in the statute or in the order.

However, I add that these are not orders of which most Crown Courts will have had any experience. At the sentencing stage in the Crown Court, there might not be the material on which to craft an appropriate order. Accordingly, while I do not in any way wish to oppose the principle of the amendments relating to the use of Section 91(14), I suggest that under the existing scheme of the Bill it would be better to leave any mandatory imposition of a Section 91 order to the required review hearing in the family court, for which the Bill provides in new Section 10B.

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[Earl Howe (Con)]

I am very grateful to the noble Lord for those comments and will ensure that they are fed back to my noble and learned friend Lord Bellamy, and the department as a whole.

[Baroness Chakrabarti (Lab)]

I take the opportunity of this conversation to request that, when the noble Earl feeds back to the noble and learned Lord, Lord Bellamy, the point made by the noble Lord, Lord Meston, he emphasises that the concern here was not the Crown Court versus the family court and disrespect for any court’s expertise; it was for families being dragged into another process, possibly without legal aid, and going through the trauma of that procedure when they have just lost a loved one to murder by the spouse or partner. If, somehow or other, the Government could consider—the noble Earl dropped some breadcrumbs when he spoke of the duties of local authorities—a way to relieve the burden on the families who have to spend money and go through further trauma, that would be very welcome.

[Earl Howe]

I take the point about burdens placed on families at exactly the point they should not be, and I will feed that in.

Amendments 85 and 96 seek the automatic suspension of parental responsibility in cases where a parent has been convicted of sexual offences

“against the child, or a child in the family”.

I understand the motivations behind the amendments, but there are good reasons for limiting Clause 16 to instances of murder and manslaughter. Where one parent has killed the other, the children involved will, in many cases, have no one left to exercise parental responsibility apart from the perpetrator. It is absolutely right that, in those circumstances, those caring for the children are spared the burden of commencing family proceedings to restrict the offender’s parental responsibility.

Where a parent has committed another serious offence, the situation is very different. The other parent will, in most cases, be able to exercise their own parental responsibility and, if required, apply to the family court to restrict the offender’s parental responsibility. Legal aid is available for these applications.

There is a further point here. There may, and almost certainly will, be many cases in which an offender is not seeking to abuse anyone, or even to exercise their parental responsibility, and the children and family involved therefore have no interest in going through court proceedings to see their parental responsibility formally restricted. In those scenarios, it is unlikely to be in the best interests of the child and their family to be drawn into court proceedings that would inevitably be triggered by the automatic suspension, and the further distress that this will cause. Again, these amendments have a worthy aim but there is already a clear legal route for these restrictions to be put in place, and I hope that provides some reassurance.

Amendment 110 seeks to ensure that only experts regulated by the Health and Care Professions Council can undertake psychological assessments in family court cases. As the noble Baroness knows, the instruction of an expert within the framework of Section 13 is a matter for judicial discretion. There are, however, clear rules governing the use of experts in the family court. Practice direction 25B covers the role of experts in the family court, and an annexe outlines the 11 standards that experts must comply with. Where an expert’s profession is not regulated, it details the alternate obligations to ensure compliance with the appropriate professional standards.

I have already mentioned the Family Justice Council’s draft guidance on responding to allegations of alienating behaviour. The guidance notes that only experts regulated by the HCPC should give evidence in cases where alienating behaviours are alleged. Despite the measures already in place, and the upcoming guidance, it is clear that concerns exist. Officials are considering what else can be done in this area. I am mindful that we are dealing with an existing system of judicial discretion, so I am keen that any additional action does not disrupt the safeguards already in place but addresses the legitimate concerns that have been raised.

I am grateful to the noble Baroness for what she said on this topic. I hope she is reassured that we are taking seriously the issue of unregulated experts and seeking to resolve this matter through the appropriate route.

Amendment 111 seeks to remove the presumption of parental involvement in domestic abuse cases and to prohibit unsupervised contact between any person and a child where they are awaiting trial, are under police investigation, are on bail, or are going through criminal proceedings for domestic abuse, sexual violence or a child abuse-related offence. I recognise how important the issue of parental involvement is. However, the existing legislation, namely the Children Act 1989, provides sufficient safeguards to address these concerns. Section 1(6) of that Act, first, requires courts to consider whether a parent can be involved in the child’s life in a way that does not put the child at risk of suffering harm. The presumption of parental involvement applies only if that test is met. The presumption, where it does apply, is also rebuttable where there is evidence that the involvement will not further a child’s welfare. The court must treat the child’s welfare as its paramount concern.

In addition, practice direction 12J clearly sets out the factors that the court should consider when deciding whether to make an order for a parent to have involvement with a child. The court must be satisfied that the physical and emotional safety of the child and the parent can be secured before, during and after any contact.

I appreciate the aims of this amendment, and the noble Baroness will be aware that the Government are currently reviewing how the courts apply the review of the presumption of parental involvement, which will be published in due course. However, as there is already a clear legislative route for the court to determine if parental involvement should be prevented to protect the child. I therefore believe the proposed amendment is unnecessary.

Next, I will address Amendment 117, which seeks to prevent the family court from ordering a victim of domestic abuse to disclose their medical records to their abuser, unless there are exceptional circumstances. The Family Procedure Rules give the court the power to control the disclosure of evidence. Rule 22 provides that the court may give directions about the type and nature of the evidence it can order, alongside outlining the nature of the evidence required to reach a decision. The court will also decide how any evidence should be placed before the court. Rule 4.1(3)(b) gives the court the power to make an order for disclosure and inspection, including the disclosure of documents, as it thinks fit.

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After what has been a useful debate, albeit fairly lengthy, I hope the noble Baroness will be content to withdraw Amendment 82 and not move the others in the group.

[Baroness Chakrabarti (Lab)]

I am so grateful to the Committee for the time we have spent on this lengthy but, I hope everyone will agree, important group of amendments.

I will not thank everyone or summarise their contributions because that would not assist the Committee at this late hour, given the groups that need to follow today, but I reserve particular thanks for the noble Baroness, Lady Fox, the noble Lord, Lord Meston, and the Minister. In Committee we benefit the most from detailed scrutiny of Bills and amendments, and their comments, particularly about drafting issues and the need to refine some of the ideas and amendments, were very helpful; they will allow me and those I am working with to reflect and improve amendments in areas where it is thought they should still be pursued.

I was particularly grateful to the noble Lord, Lord Meston, with his lifetime of expertise in the family courts, for the generous humility that he brought to the debate, given that I am not at all an expert while he is a very distinguished expert in the field. On the issue of psychological assessments of suspects, defendants and offenders being just as important as those of victims, I completely agree—but one was limited, as one always is, by the scope of the Bill.

I listened with great care to the points on Amendment 82 from the Minister, the noble Lord, Lord Meston, and the noble Baroness, Lady Fox of Buckley. I think the Committee understands our concern, and there may be something we can do to address that concern without naming the syndrome that we know has been discredited. I am thinking about how people are treated rather than trying to interfere with any court’s finding of fact, so I was grateful for that. I am still concerned about unsupervised contact with children by the kind of offenders we are talking about. We will have to return to that, along with some of the other concerns here. I made the point that respecting the expertise of the family court is without question, but we have to protect victims in particularly dire circumstances from being dragged from one court to another if that can at all be avoided.

It is always a pleasure to face the Minister across the Chamber. He is drafted in like a Marvel superhero by the Government because he is one of their finest advocates. It is a particular delight to be charged with attempted breaches of Article 6 or any other article of the convention, and to be reminded of the importance of not ousting the jurisdiction of the courts. If only the noble Earl could have a word with the Home Office about those values, I would be incredibly grateful. With that, I thank the Committee again and beg leave to withdraw the amendment.

Amendment 82 withdrawn.

Victims and Prisoners Bill

Baroness Chakrabarti Excerpts

Committee stage
Tuesday 12th March 2024 Lords Chamber

Amendment 152 is very simple. The Bill contains a power to change the period of three years. There are two solutions to this. The noble Earl, Lord Attlee, will address the first, which is whether we should remove the power altogether. The second—my preferred solution —is to alter “change” to “reduce”. “Change” enables you to increase, and I am sure that no one in Parliament wants to see an increase in the period. So I think it would be better to have a power but to make sure that it can be exercised in only one way. Having said that, I very much hope that this will not be controversial and that the Government can agree to this or to something very similar. I beg to move.

[Baroness Chakrabarti (Lab)]

My Lords, I have the privilege of rising on behalf of my noble friend Lord Blunkett, who is incredibly disappointed not to be here. He has a long-standing and unbreakable prior commitment. I know that he would want me to thank the noble and learned Lord, Lord Thomas of Cwmgiedd, for the kindness that he displayed and for his crystal-clear description of these amendments and of the injustices and technicalities that they address, which any lay person could understand. I am very grateful, as I know my noble friend would be. I share in the tribute to my noble friend. The fact that the former Home Secretary has asked the former director of Liberty to speak on his behalf is perhaps testament to the character of my noble friend.

My noble friend supports all the amendments in this group, most of which belong, at least in initiation, to the noble and learned Lord. He also signed Amendment 156 in the name of the noble Earl, Lord Attlee, because of this concern that no period should be increased by the Secretary of State.

For my own part, speaking for myself at this moment and not for my noble friend, of the two approaches—taking the power to alter entirely or leaving it as one only to reduce—I rather agree with the noble and learned Lord, Lord Thomas of Cwmgiedd. He has done so well in the explanation that I need say little more, other than that I also remember today our friend, his noble and learned friend Lord Brown of Eaton-under-Heywood, for whom righting this wrong, this stain on our justice system, was also incredibly important. Too many people in public life are happy to forget and ignore the mistakes of last week, let alone of two decades ago, but, if this is the House of Elders in our parliamentary system, such as it is, this is exactly the Committee to be embracing the amendments put so brilliantly just now by the noble and learned Lord.

[Baroness Burt of Solihull (LD)]

My Lords, I thank the noble and learned Lord, Lord Thomas, for his comments and endorse everything that he said, particularly about the noble Lord, Lord Blunkett, who we all wish was here today. I will address one or two of the pragmatic issues. The amendments in this group all relate to IPP licences, and I support them all. They are intended to affect the applications of licences to be fairer and speedier, so that we can release or re-release IPPs as fast and as safely as possible into the community.

Clause 48 currently removes the element of annual review in favour of one-off review every three years. However, if the Parole Board decides not to terminate the licence of this point, Amendments 149 and 150 restore the right—removed by the Police, Crime, Sentencing and Courts Act—to an annual review by the Parole Board. The Prison Reform Trust comments that having a sunset clause of a further two years might just constitute a high bar for some prisoners, and that the Parole Board should be able to terminate the licence after one year, otherwise licences could drag on for years, as before.

The circumstances described in Amendment 152 are probably quite rare, but it is worth ensuring that a person would not have to suffer if they had been recalled but the Secretary of State had revoked the recall, presumably because there had been an error of some kind and they should not have been recalled. The prisoner should not be penalised because of an error not of their making.

Amendment 153 continues in a similar vein, but this time gives the Parole Board the ability to maintain the sunset clause. However, in this case, it is slightly more complicated. Firstly, the Secretary of State can recall if they conclude on reasonable grounds that the prisoner has deliberately revoked the terms of their licence and the safety of the public would be at risk. The Parole Board can overturn the Secretary of State’s decision to recall a prisoner if on subsequent review, and if it is privy to more information than the Secretary of State, it subsequently concludes that the prisoner is not putting the public at risk.

Amendment 157 ensures that the Government use their wide-ranging powers to change the qualifying period using only secondary legislation and that they can revise it only downwards. If they want to revise it upwards, it will have to be done with primary legislation. This is within the spirit of the Bill today. This amendment ensures that a future Government would not be tempted to use this power to make the situation worse for IPP prisoners, not better.

All in all, this suite of amendments is sensible and, as the noble and learned Lord, Lord Thomas, said, pragmatic. It is offered in a spirit of helpfulness. I sincerely hope that the Minister will see this and maybe feel that it is appropriate to introduce government amendments to this effect.

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

My Lords, I thank all noble Lords who have spoken. I will first briefly recap some basic points that apply equally to the second and fourth groups of amendments that we will come to.

First, this Government recognise the highly regrettable history of this particular sentence. The Lord Chancellor himself has described IPP sentences as

“a stain on our justice system”.—[Official Report, Commons, 15/5/23; col. 592.]

As the noble and learned Lord, Lord Thomas of Cwmgiedd, rightly said, the question is what should be done. I will briefly summarise, to encapsulate our debate, what the Government think should be done.

The Government are making some very determined efforts to mitigate the situation of IPP offenders who are still subject to a sentence that was abolished in 2012. To bring noble Lords up to date, there were originally approximately 8,100 people subject to these sentences. Of those people, as of last December 1,227 had never been released, 1,625 had been released and later recalled, and there were still about 3,000 on licence in the community. Currently, as the noble and learned Lord, Lord Thomas, pointed out, an offender cannot apply to the Parole Board to have their licence terminated until 10 years after first release.

Taking the released and then recalled population first, this is a challenge because that population is slowly rising. The major statutory change in Clause 48 will reduce the qualifying period before the offender becomes eligible for licence termination from 10 years to three years from first release, with a presumption of termination after three years and an automatic termination two years thereafter—provided that the offender can pass two years in the community without further recall. That is, as I think the noble and learned Lord, Lord Thomas, said, a huge change and a major achievement for the Government to be proposing. It should substantially mitigate the problem of prisoners being released and then recalled, which we will come to in more detail as this debate continues.

Regarding the second cohort—perhaps the first, depending on your point of view—of those who have never been released, most of these people have come up before the Parole Board, which is responsible for deciding on their release. In many cases, this has happened many times and the Parole Board has decided that it is not safe to release them as the risk to the public is too great. What is the Government’s approach to that problem? Spurred on by the 2022 report of the JSC, to which I pay tribute, the Government are developing a robust, coherent and detailed action plan in consultation with relevant stakeholders, including the families, with the aim that each prisoner has a tailored sentence plan, appropriate support and clear objectives to work towards eventual release.

This last cohort is difficult, as the noble Lord, Lord Ponsonby, has just pointed out because, aside from having committed very serious offences, many suffer from trauma, mental health issues, substance issues and so on. However, the Government are determined to see this cohort further reduced and to get rid of the idea that there is no hope. In the Government’s view, no one has given up on the IPP prisoners who have never been released. They have to be worked on. That is a hard task, but one that the Government—any Government—should take on.

For example, the number of those released has been reducing over the last two years at roughly 200 per year. There are now 200 of these prisoners in open conditions who are being prepared for further release. It is not as if nothing is going on or as if things are just vegetating and no one cares. The Government are very focused on doing something about this most difficult cohort. That is the overall framework, which I hope your Lordships will view, despite the difficulties of the past, as something of a new beginning for the future.

With that background, I turn to Amendments 149 to 151 in the name of the noble and learned Lord, Lord Thomas. The effect of these would be that, if the Parole Board refused to terminate the licence at the new three-year point, the offender would have the right to apply annually to the Parole Board for a licence determination. As the Government understand it, the offender would be in the community rather than waiting out the two-year period, which results in the automatic termination of the licence. The offender would be able to apply to the Parole Board for termination after one year.

The Government recognise that released offenders in many cases need better support and have accepted all the recommendations to that effect in the recent report of the Chief Inspector of Probation on the recalls of IPP prisoners. However, the Government are not at present persuaded of the need for Amendments 149 to 151, on the following basis. If the offender has applied and the Parole Board, after three years, does not terminate the licence at that point, it does not seem to the Government unreasonable to expect the offender to spend two years in the community with the incentive of the certainty of licence termination at the end of that period. This amendment would enable the offender to make an interim application at the end of year four. That would impose further resource costs on the Probation Service and Parole Board because reports have to be prepared, hearings have to be convened and so forth. It would necessarily take the Parole Board several months to process that application.

We have come back several times in this debate to the pressures on the Parole Board and the time these applications take. It appears to the Government that, even if you could apply after year four rather than waiting until the end of year five, there is probably only a marginal gain for the offender. The Government are not at the moment persuaded on these amendments, although the Government continue to be in listening mode on this part of the Bill, as on every other part of the Bill.

Amendments 152 and 153, also moved by the noble and learned Lord, Lord Thomas, address what one could call in shorthand “questionable recalls”. I think there are two sorts of recall that we should be thinking about. The amendments suggest the possibility of the Parole Board disregarding a recall for the purpose of calculating the two-year period. Perhaps I may first clarify what is considered to be the existing position. If a recall is based on a fundamental mistake of fact—for example, the probation officer thinks that the offender has missed an appointment but the offender is in hospital because of a road accident the previous day—the Lord Chancellor considers that he already has the power in such a clear case to treat the recall as a nullity, as never having happened. That is a relatively clear case and I respectfully suggest that Amendment 152 is unnecessary.

The situation envisaged by Amendment 153 is effectively a challenge to the judgment call made by the probation officer about the recall. Technically it is a decision by the Secretary of State, but in practice of course it depends on the report by the probation officer. Amendment 153 would require the validity of that recall—the “appropriateness” of that recall, to use the word in the amendment—to be considered by the Parole Board and treated as a nullity if the board then considers that the recall decision was not appropriate. Although the Government understand the thinking behind the amendment, His Majesty’s Inspectorate of Probation found, in both 2020 and much more recently in 2023, that in practice HMPPS recall decisions are very largely appropriate.

At present, the Parole Board does not have any power to adjudicate on the appropriateness of the recall; its task is to decide on the issue of public protection and whether the offender is safe to release. For that purpose, the Parole Board will typically have much wider and more detailed information than was available to the individual probation officer faced with the recall decision. Amendment 153 would, however, turn the Parole Board process into an appeal from the recall decision and require the Parole Board, in effect, to second-guess what it would have done had it been the probation officer with the information then available to the probation officer.

[Baroness Chakrabarti (Lab)]

I am grateful to the noble and learned Lord for giving way. I should like to better understand this part of the argument. When the noble and learned Lord said he is satisfied that in most cases recall is appropriate, did he mean recall in general or recall in IPP cases in particular? Secondly, when he was discussing the difference between decisions on executive recall on the one hand and dangerousness and public protection on the other, did he not think that there was a relationship between the two? When one is considering dangerousness, one might have a rather different view of what is required in relation to public protection if one or more recalls were inappropriate because they were for non-criminal, minor conduct that at no point presented a danger to the public?

[Lord Bellamy (Con)]

I thank the noble Baroness for those questions. As to whether I was speaking of IPP specifically, I cannot off the top of my head recall whether the 2020 work was specifically in relation to IPP, but certainly the 2023 work, which is the most recent and the most valuable and which I highly recommend everyone to read, was specifically in relation to IPP when the Government were considering what to do following the JSC report when concern was expressed that recalls might be being made inappropriately. That inspector’s report took a sample of recalls, studied them very carefully; it was thought that a small number were questionable but that the vast majority were appropriate on the basis of the information that the probation officer had at the time.

Up to a point, the circumstances of the recall are part of a general picture of the dangerousness of the offender—I accept that. But the real point is that, when the Parole Board comes to consider public protection, it will have much more information, very often much more up-to-date and fuller, than the information that was before the probation officer at the time, who might well have to take a decision in an emergency on very limited information, but because of the risk, as they see it, to public protection. So it is very difficult, in the Government’s view, to give the Parole Board power to go all the way back and say, “This was inappropriate”. However, having said that, I would like to come back to the question of recall when we get to Amendments 154 and 168, to be moved by the noble Lord, Lord Carter. It is a question of executive re-release on recall, which might be another way of approaching that problem. So that is the Government’s position.

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[Lord Carter of Haslemere (CB)]

My Lords, I shall speak to Amendment 154 in my name and to Amendment 168 at the same time, as they sit together in this grouping. I declare an interest as a trustee of the Prison Reform Trust, and I thank it for its significant input and support for these amendments. I also thank the noble Baroness, Lady Chakrabarti, the noble Lord, Lord Blunkett, who, unfortunately, as we have heard, cannot be with us today, and the noble and learned Lord, Lord Garnier, for adding their support to my two amendments by adding their names.

I shall deal first with Amendment 168, since Amendment 154 is consequential on it. Amendment 168 is about executive release—that is to say, release by the Secretary of State following a recall to prison. At present, under the Criminal Justice Act 2003, the Secretary of State has a power to release a determinate sentence prisoner on licence at any time after the prisoner has been returned to prison. He must not do so unless satisfied that it is not necessary for the protection of the public that the prisoner should remain in prison. Amendment 168 addresses a lacuna, which arises in the case of IPP prisoners who are recalled to prison, since the Secretary of State has no executive power to release them, even if it is obviously safe to do so.

Why does this lacuna need correcting? Let us look at the facts. There are, as the Minister has said, 1,625 IPP prisoners who are in prison following a recall. The Justice Committee, in its third report, said that the reasons for recalling IPP prisoners vary, and it was often not because the IPP prisoner had committed any further offence but because of a minor or technical breach of licence conditions. For example, the lack of availability of approved premises, believe it or not, or other suitable accommodation, was sometimes a reason for recall, even though it might, unreasonably in the circumstances, have been a condition of a licence.

Once the IPP prisoner has been recalled, they become subject to the usual parole process to secure their release. This can take months or even years. The Justice Committee found that, between 2015 and 2021, the average number of months spent in prison by an IPP prisoner following recall and prior to re-release was 18 months—the equivalent of three years on a traditional fixed-term sentence. I believe that the average time has now increased, as I think that the Minister said, and that period in prison following a recall has risen to on average 28 months before re-release. That is a wholly disproportionate additional period to serve if the recall was for a minor or technical breach of licence conditions, or if it is apparent that the prisoner is safe to release at an earlier stage.

The Justice Committee recommended the use of executive release for IPP prisoners in such cases, as is possible for determinate sentence prisoners. In their response, the Government stated that they would not accept the recommendation because it

“falls to the Parole Board to determine whether the … release test is met”.

But that fails to explain why determinate sentence prisoners can be executively released when they, too, are otherwise subject to a Parole Board review.

Amendment 168 is therefore about ensuring that like cases are treated alike, when there is no good reason for treating them differently. It provides that the Secretary of State should have a power of executive release at any time following the recall of an IPP prisoner, if the Secretary of State considers that it is not necessary for the protection of the public that the prisoner should remain in prison. That will ensure consistency with the position of determinate sentence prisoners, while ensuring that public safety is not put at risk. There is no logical reason to treat IPP prisoners differently.

Amendment 154 is consequential on Amendment 168 because, if the IPP prisoner is executively released by the Secretary of State following an unnecessary recall, the IPP prisoner should obviously have the period unnecessarily spent in prison disregarded for the purpose of calculating the new sunset clause for IPP licences. However, as a safeguard, the amendment proposes that the Secretary of State should have the power in each case to determine whether this is appropriate. This will depend on an assessment of various factors, such as the degree to which the recall was unnecessary and whether the prisoner is safe to release.

In concluding on the two amendments, I can do no better than to refer to the truly tragic recent case of Matthew Price, who last year took his own life while on licence from an IPP sentence. I am sure that the whole Committee will join me in expressing the deepest condolences to Mr Price’s family. The coroner said that:

“Matthew’s mental well-being had been adversely affected over a significant period of time by the continuing impact of serving an”


IPP sentence, because of anxiety about the ever-present potential for recall to prison. The shocking thing is that Mr Price had been on licence for nearly 10 years. That demonstrates the devastating mental impact that an IPP sentence has. On 22 February this year, the coroner issued a so-called regulation 28 report to prevent future deaths, in which he stated that there was

“a risk that future deaths will occur unless action is taken”

urgently. My amendments would not be enough to remove that risk completely, but they would help by providing another avenue of release from a recall while, crucially, ensuring the safety of the public. I hope that the Minister will feel able to accept them, and I beg to move.

[Baroness Chakrabarti (Lab)]

My Lords, it is a privilege to rise in support of my old boss, the noble Lord, Lord Carter of Haslemere—one of the finest government lawyers I had the pleasure of working for and learning from in the late 1990s. He served Governments of both persuasions with such distinction that he went on to become the first ever counsel to No. 10, such was his expertise in these and other matters. It is wonderful to see him deploy those skills, including in the devastating way in which he has just argued for his two amendments in this group.

Victims and Prisoners Bill

Baroness Chakrabarti Excerpts

Report stage
Tuesday 16th April 2024 Lords Chamber

[Baroness Newlove (Con)]

My Lords, I am grateful to my noble and learned friend the Minister for all the conversations and meetings we have had with his officials and other Peers. In Committee I expressed my concerns about provisions in the Bill, so I am speaking in support of Amendments 46 and 47 but, having listened to the Minister, I am delighted that we have resolved this issue.

The provisions in the Bill relating to delivering code compliance are important because they must be strong enough to give effect to the level of change that we require. I have always maintained that the success of this Bill will depend on whether future victims receive their code entitlements. I am delighted that the Government have listened to our concerns and reviewed their proposals. The government amendments tabled last week are an important step in the right direction. Statutory non-compliance notices, coupled with statutory changes to ensure that future Victims’ Commissioners are able to provide rigorous scrutiny of compliance data, are important and I welcome them.

Naturally, I want to see the Government go further. It is important that details on how the Government’s compliance regime will operate are set out clearly in statutory guidance. I also want to see trigger points for non-compliance enforcement to be set out clearly. I am delighted that there will be transparency as the minutes of the task force meeting will be made public.

Of course, setting out a compliance regime is one thing but making it happen is another. I do not underestimate the challenges in building a dataset that provides us with a comprehensive understanding of exactly what is happening and what is not. Importantly, we also need to understand how well services and entitlements are being delivered. While these provisions are a step in the right direction, we still have a long way to go before we can say that all victims are getting the support they deserve.

We must not confine ourselves to compliance monitoring. We need to tackle the culture of our criminal justice system when it comes to victims. Earlier the Minister referred to training, which certainly has an important part to play, but we need to go further to understand why the victims’ code is of secondary importance in the eyes of so many practitioners.

Defendants have statutory rights; victims do not. The victims’ code was described to me by a government lawyer as “persuasive guidance”, but at times I, along with many victims, would question just how persuasive it actually is. I make no secret of the fact that I would like to see victims’ rights elevated to statutory rights as proposed by the noble Baroness, Lady Chakrabarti, in Amendment 23. I also support Amendment 16 from the noble Baroness, Lady Gohir. It is important that every victim has a right to review when there are multiple defendants in the dock. As somebody who has personally experienced that, it is so important for the victim to have that individual right to make sure they get answers and an understanding of what is going on.

[Baroness Chakrabarti (Lab)]

My Lords, it is pretty much an understatement to say that it is a privilege to follow the noble Baroness, Lady Newlove, the Victims’ Commissioner. She and my noble friend Lady Lawrence of Clarendon are very special Members of your Lordships’ House, if I may say so, for their extraordinary superpower and ability to turn experiences that no one should have to endure into a subsequent lifetime of public service, for which I think we are all very grateful.

I will take my lead from the noble Baroness, Lady Newlove. I do not think it is a secret that my many amendments in this group were tabled with her blessing and that of the London Victims’ Commissioner, Claire Waxman. I am also grateful to a number of victims’ groups and NGOs for their support of these amendments.

This is Report, not Committee, and we have had a long day, so I do not want to trouble noble Lords for too long, but I am grateful to the Minister and his team. Petty France may have shown Marsham Street that it is possible to engage just a little—half a loaf is better than no bread. Of course, the noble and learned Lord, Lord Bellamy, and I are going to disagree about the extent to which government amendments to this part of the Bill are a huge step in the right direction, but they are a step. I thank him and his team, including those who are not in your Lordships’ Chamber. This is the way, perhaps, that we ought to try to do legislation.

The motive behind my many amendments was to try to put victims’ rights on a proper statutory footing and to make them equivalent to suspects’ and defendants’ rights. Divide and rule is a really bad thing, and for decades Governments of both persuasions have sometimes been able to be in an arms race where victims’ rights are set against defendants’ rights. As the noble Lord, Lord Heseltine, put it so eloquently yesterday at Questions, if you treat a suspect badly and delay justice, that is justice denied. The same is true for victims, and for some years now we have told victims that they have rights and a code, but those rights have been totally unenforceable and that is not fair. That false expectation has caused enormous trauma and concern.

I am grateful to the noble and learned Lord, Lord Bellamy, for moving things on just a little, but I hope that a future Government of any persuasion will go further still. I hope I am not dishonouring the noble Baroness, Lady Newlove, and letting her down in saying that. I can say thank you for what has been achieved but still be more ambitious for change.

The justice department has, I think, had the biggest cuts of any department in recent years. To deliver rights for victims takes resources and investment. Sometimes with suspects’ and defendants’ rights, you can deliver something by holding back, but when it is victims’ rights you really need to invest in the different entrances—in the staff of any criminal justice agency who will be there and so on. I am so grateful and do not want to seem churlish, because this is something, but I hope that it is the building block for further reforms so that we can have a level playing field.

Finally, I remind noble Lords that suspects’ rights came from a Conservative piece of human rights legislation: the Police and Criminal Evidence Act 1984. Given that both parties often compete for the law and order agenda—forgive me, I should say all parties—it seems odd to me, as a human rights campaigner of many years, that we would entrench and codify suspects’ and defendants’ rights in a way that we have yet to do for victims.

[Baroness Brinton (LD)]

My Lords, I start by referring to Amendment 16 from the noble Baroness, Lady Gohir. I will not repeat the points she made but she emailed me just prior to us starting this evening’s debates on Report. I am interested that she notes that this is a loophole caused by us exiting the EU. I have immense sympathy with the amendment. If it is a clear anomaly caused by us exiting the EU, I remember considerable debate on the retained EU law Bill about what to do when things were discovered. Ministers said on more than one occasion that in the EU withdrawal Act there is something called the correcting power, and that that can be used to correct any anomalies, providing they are not the Government’s whim because they have changed their policy on something. I do not know the detail because I have not seen where the loophole has come from, but it seems to me, on the amendment the noble Baroness, Lady Gohir, has described, that if this is caused by our leaving the EU then there is a remedy of legislation. Perhaps the Ministry of Justice will take that away and look at it, and the Minister will write. It can be done quite simply in most cases by regulation, which is why the retained EU law Bill took such a long time to wind its way through Parliament—I worked on a lot of those amendments. It seems that if the Minister has sympathy with this, there is an easy remedy.

My own Amendment 34 seeks to ensure that each criminal justice body makes arrangements to provide adequate training regarding violence against women and girls for all personnel supporting them. The hour is late, so I will not say very much, other than that there is already a substantial amount of training in other areas but the guidance on what that training should be and how it should happen is not the same. The Domestic Abuse Act statutory guidance is clear, and at paragraph 225 provides that:

“Public agencies should invest in awareness raising, specialist training and systems … to ensure that victims receive effective and safe responses”.


Unfortunately, that is not the same in the code of practice; it is not as strong. My Amendment 34 attempts to strengthen that.

I am mindful of the amendment of the noble Lord, Lord Russell. I know that he has spoken, but his amendment is slightly broader than mine and, if he chooses to divide the House on it next week when we return, I think our Benches will be happy to support him.

I end by reflecting on the debate we have had on the Minister’s amendments and those of the noble Baroness, Lady Chakrabarti. It seems to have been the prime debate that we have had since the start of this victims Bill about its function and practice. I echo the thanks from all around the House for the steps that the Government have taken to strengthen it. I am still with the noble Baroness, Lady Chakrabarti, that it is not quite there, but I will take any change at all.

Victims and Prisoners Bill

Baroness Chakrabarti Excerpts

Report stage
Tuesday 23rd April 2024 Lords Chamber

Moved by

[Baroness Chakrabarti]

80: Clause 16, page 13, line 14, at end insert “or a sexual offence against the child or a child in the family”
Member’s explanatory statement
This amendment would remove the presumption of custody for children of offenders of child sexual abuse, requiring a Crown Court to make a prohibited steps order protecting the children of an offender on sentencing.

[Baroness Chakrabarti (Lab)]

My Lords, we are now in the family court because in the real world and in a joined-up justice system, victims are being dealt with not just in the criminal justice system but in the family system.

I have Amendments 80, 83, 84, 91 and 92 in this group. I will try to deal with them as succinctly as possible given the hour and what noble Lords across the House have had to endure in the last 24 hours. I am dealing with three issues. The first relates to Clause 16, the so-called Jade’s law. I will speak to that in a moment. That is covered in Amendments 80, 84—which is consequential on Amendment 80—and 83, which is distinct, but I am led to believe that the usual channels have agreed that Amendments 80, 83 and 84 will be treated as a package. I will wait for someone opposite to jump up and tell me if I am wrong about that.

Amendment 91 deals with “cowboy experts”—I am trying to be as succinct as I can—that is, unregulated experts giving opinions and getting paid. These unregulated opinions and expertise lead to considerable injustice in the family court, including people having to spend a lot of money and people losing responsibility for or contact with their children. Amendment 92 would ensure that those suspected of or charged with domestic abuse, sexual violence and child abuse are not permitted unsupervised access to their children.

Jade’s law is Clause 16, on which the Government are to be commended. Amendments 80, 83 and 84 attempt to tighten up loopholes in Jade’s law, and they are supported by the family of Jade Ward. On account of the time, I will not recount the details of that case. Noble Lords will know that, in its current form as proposed by the Government, Clause 16 places a parent convicted of the murder or manslaughter of the other parent under a prohibited steps order. This is so that we do not have the murderer or manslaughterer effectively controlling the family from behind bars. The Government are to be commended on responding to the campaign and taking up that issue, but we think there is a loophole in that there are sex offenders—not just murderers and manslaughterers—who are attempting the same coercive control, by way of the family courts, from behind bars.

Amendments 80 and 83 would extend Jade’s law and are supported by the family of Jade Ward, whose campaign originally led to Clause 16. We would extend the provisions of Clause 16 to those convicted of a sex offence against a child in the family.

I am aware that, in response to an amendment to the Criminal Justice Bill in the other place from my right honourable friend Harriet Harman, the Government have announced that they want to do something and give a concession in our direction in relation to those who rape a child under 13. With huge respect to the Government, that is not enough, because there are very serious sex offences that are not rape and there are very vulnerable children who are just over 13. A child is a child—not least for the purposes of the UN Convention on the Rights of the Child, if one can still talk about such instruments in Parliament—until they are 18, and certainly there are very serious sex offences that are not rape. So we wish to go further in the ambit of Clause 16, which is Jade’s law.

We also have Amendment 83. This deals with the exception to Jade’s law, as rightly constructed by the Government in the principal amendment. Understandably, and very sensibly in my view, the Government have created, from subsection (5) onwards, an exception to the prohibition in relation to the murderer or the manslaughterer, normally but not always a woman, who is a victim of domestic abuse that led to the murder or manslaughter.

We seek to include domestic abuse, as defined in legislation. At the moment there is an exemption where the offender is convicted of manslaughter and it appears to the Crown Court that this would not be in the interests of justice. We say “the interests of justice” is too vague a concept and they have to be a victim of domestic abuse, as determined by the 2021 Act. “The interests of justice” is too vague a concept to ensure proper protection for all those we seek to protect.

--- Later in debate ---

Government Amendments 81 and 82 clarify certain technical points about the operation of Clause 16, which I do not think I need explain in more detail.

[Baroness Chakrabarti (Lab)]

My Lords, I hope noble Lords will forgive me for forgetting courtesy in my brevity. I failed to mention the various supporters, some of whom have identified themselves: my noble friend Lord Ponsonby of Shulbrede, the noble Baronesses, Lady Brinton and Lady Helic, and the noble and learned Baroness, Lady Butler-Sloss. As always, I am also grateful for their expertise—including correcting an error in the explanatory note—and the expertise of the noble Lord, Lord Meston.

I am grateful to the noble and learned Lord the Minister for understanding the problem with unregulated experts. He alluded to a potentially broader, and quite possibly effective, solution by way of procedure rules and, under pressure from the noble Lord, Lord Meston, said that it would be extraordinary if this did not happen. I will hold my fire until Report and have great hope—

[Noble Lords]

This is Report.

[Baroness Chakrabarti (Lab)]

Then I have no hope. But I will take comfort from the Minister’s comments, because that would be a better, rounder solution in relation to proceedings and it could be broader than just victims. I would prefer that outcome. I hope the Government as a whole will look at unregulated psychologists more generally, in relation not just to proceedings but the public more generally. I take comfort from that and am grateful for it.

On Amendment 83, the current provision for the Jade’s law exemption is vague. If we are trying to deal with domestic abuse, let us call it what it is—it is defined in statute.

On the presumption of parental involvement, the logic of the idea that convicted sex offenders should be presumptively allowed parental involvement escapes me. Jade’s law should be extended. The Minister is almost with me. He wants to act in another Bill, but the clock is ticking for this Parliament and we have a Bill right here on Report in which we could protect children from sex offences, including very serious sex offences that are just short of rape, for reasons which the noble and learned Baroness, Lady Butler-Sloss, put more graphically and with greater expertise. We should take this opportunity to act. I wish to test the opinion of the House on Amendment 80.