Taking Account of Convictions (EU Exit) (Amendment) Regulations 2020

Baroness Scott of Bybrook Excerpts

Thursday 29th October 2020 Grand Committee

Moved by

[Baroness Scott of Bybrook]

That the Grand Committee do consider the Taking Account of Convictions (EU Exit) (Amendment) Regulations 2020.

[Baroness Scott of Bybrook (Con)]

My Lords, this instrument will implement the separation provision in the EU withdrawal agreement on taking account of convictions. In accordance with the separation provision, it will ensure that previous convictions in EU member states will continue to be taken into account in cases where criminal proceedings have begun before the end of the transition period. That separation provision partially preserves the application of a framework decision that established that previous convictions in EU member states are to be treated in the same way as domestic convictions during criminal proceedings.

To implement the separation provision, this instrument amends two pieces of legislation. First, it amends the Criminal Justice (Amendment etc.) (EU Exit) Regulations 2019, which were intended to address deficiencies in retained EU law in the event that the UK left the EU without an agreement. Now that we have left the EU with an agreement, this instrument modifies the 2019 regulations to give effect to the terms of the withdrawal agreement.

Secondly, this instrument amends the Sentencing Act 2020, which consolidates sentencing procedural law into a sentencing code, as a consolidation exercise. The code has been drafted on the basis of the current law. Therefore, this instrument amends the 2020 Act to also give effect to the terms of the withdrawal agreement. Therefore, the amendments made by this instrument ensure that the separation provision on taking account of convictions will be given full effect in domestic law. I beg to move.

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[Baroness Scott of Bybrook (Con)]

I thank noble Lords for taking part in this very short debate. The fact that it is a short debate is very welcome on a Thursday evening.

The noble Lords, Lord Berkeley and Lord Ponsonby, brought up a similar issue. Now that we have left the EU, there is absolutely no reason to treat EU member state convictions differently from those imposed in the rest of the world. However, the loss of taking account of convictions capability after the transition period does not affect the fact that, as we heard from the noble Lord, Lord Ponsonby, the courts will retain the discretion to treat previous convictions in EU member states as an aggravating factor during sentencing, as they can already do with convictions imposed elsewhere. I will take back the view expressed by the noble Lord, Lord Ponsonby, that, from his experience in London courts, he is not getting as much information as he should.

The noble and learned Lord, Lord Morris, asked about the extent of these regulations. They extend to the UK, subject to the exceptions set out in paragraphs (2) and (3) of Regulation 2. Paragraph (2) provides that the amendments of the Sentencing Act 2020 made in Part 2 of the regulations

“have the same extent within the United Kingdom as the provisions to which they relate.”

Paragraph (3) provides that the amendments of the Criminal Justice (Amendment etc.) (EU Exit) Regulations 2019 made in Part 3 of the regulations

“extend to England and Wales and Northern Ireland.”

I hope that that clears up that query for the noble and learned Lord, Lord Morris.

The noble Lord, Lord Thomas of Gresford, said that he could not find the draft memorandum. I am extremely sorry that it was not on the Lords website, but it has certainly been published on the legislation.gov.uk website if he wants to see it.

The noble Lord asked how the courts would obtain information about overseas convictions when we end the transition period. Our criminal justice system is well versed in obtaining such information. The process of obtaining it is a combination of law enforcement co-operation between police forces in the UK and other countries and the wider mutual legal assistance framework, or MLA, which will continue to apply between the UK and EU member states after 31 December 2020. At that point, it will be based largely on Council of Europe treaties, in particular the European Convention on Mutual Assistance in Criminal Matters and its protocols. The MLA is a method of co-operation between states for obtaining assistance in the investigation or prosecution of criminal offences. Such assistance is usually requested by courts or prosecutors and is referred to also as “judicial co-operation”. There will therefore continue to be co-operation, as I have explained.

To reiterate, the purpose of this instrument is to give effect in domestic law to the separation provision in the EU withdrawal agreement on taking account of convictions. To that end, I commend it to the Committee.

Motion agreed.