Arbitration Bill [Lords]

Debate between Kieran Mullan and Nicholas Dakin

2nd reading
Wednesday 29th January 2025 Commons Chamber

[The Parliamentary Under-Secretary of State for Justice (Sir Nicholas Dakin)]

I beg to move, That the Bill be now read a Second time.

I am pleased to be opening this Second Reading debate on the Government’s Arbitration Bill. This legislation is a direct response to recommendations made by the Law Commission of England and Wales in its report on arbitral reform, published in September 2023. If enacted, the Bill will make targeted reforms to the Arbitration Act 1996, which governs arbitration in England, Wales and Northern Ireland. Scotland has its own devolved arbitral framework under the Arbitration (Scotland) Act 2010, which this Bill will not affect.

Arbitration is a major area of business activity. For example, the Chartered Institute of Arbitrators, headquartered in London, has more than 17,000 members across 149 countries. As the House will know, arbitration is greatly valued by individuals and businesses alike as an alternative to going to court, giving parties the ability to appoint a private tribunal to resolve disputes by issuing a binding and enforceable award. For example, when parties enter into a commercial contract, it is common to find a clause that provides that any disputes will be resolved through arbitration in this great capital city of London, rather than through litigation in court. That is often true even where a contract has no other connection to the UK, such is the prestige of arbitration here. Furthermore, thanks to an international convention commonly called the New York convention, which dates from 1958, arbitration awards made in the UK can be enforced anywhere in the world. Studies suggest that such enforcement is often faster and more reliable than seeking to enforce court judgments.

The New York convention may date from 1958, but arbitration has been a feature of our justice system for centuries. Arbitration was a common way of settling disputes back in Anglo-Saxon times. It was largely a public affair, with enforcement through community pressure. By Norman times, parties could choose their arbitrator, someone known to both sides and well placed to facilitate a reconciliation. In the 14th century—[Interruption.] The Opposition spokesman, the hon. Member for Bexhill and Battle (Dr Mullan), is enjoying my little canter through the historical background, which I am sure the massed attendance this afternoon is also enjoying. In the 14th century, the mayor and aldermen of London set up, in effect, an arbitration centre here in this great city. This also provided services to foreign traders whose disputes had no other connection to England. Arbitration then grew in Elizabethan times, and by the mid-18th century arbitration clauses were very common, as were professional arbitrators.

It is said that our first arbitration Act, the Arbitration Act 1698, was single-handedly drafted by the famous political philosopher John Locke after he had been tasked by the then Board of Trade to devise a scheme that would help merchants to reach a satisfactory settlement of their disputes. John Locke’s arbitral framework fitted on one or two sides of paper, which is a real achievement, is it not? If only we could emulate that today, but things have got more complicated and therefore more precise. Arbitration has come a long way since then, though we salute John Locke and his efforts in setting us on this journey.

Today, arbitration happens in a very wide range of settings, from rent reviews through commodity trades and shipping to international commercial contracts and investor claims against states. In each instance, it enables parties to resolve the dispute at hand and move on from it. The parties can choose a neutral venue to resolve their dispute. They can choose trusted arbitrators or arbitral institutions to preside over the proceedings. I add with emphasis that some of the world’s leading trade and arbitral institutions are headquartered here in London. I may have mentioned that before, but we need to be proud of it. They range from the aforementioned Chartered Institute of Arbitrators and the London Court of International Arbitration to important specialist organisations concerned with matters such as shipping and trade in grains, oils and sugars.

Parties can tailor the arbitration process to their own needs, which results in an award that is internationally enforceable. At the same time, the process is respected for its integrity—at least, that is the position here in the UK, thanks in large measure to the regulation of arbitration through the Arbitration Act 1996. The Act ensures that arbitration is conducted in a way that is impartial, fair and without unnecessary cost and delay. The English courts, which command much respect worldwide, retain a supervisory jurisdiction.

Building on its extensive history of arbitration, and thanks to its legislative framework, London has become the world’s leading destination for international arbitration. It is highly respected as a neutral venue for resolving disputes across the world, something in which we all rightly take immense pride. In fact, the Law Commission estimates that at least 5,000 arbitrations take place in England and Wales each year, directly contributing at least £2.5 billion a year to our economy in fees alone. So arbitration and the Bill are part of our growth agenda for our great country. However, as arbitration is a largely private affair, we may speculate that its direct value is likely to be even greater than that £2.5 billion.

Arbitration is also an important offering in our country’s international business package, one that includes legal services, banking, insurance and trade. It is a great advantage of our jurisdiction that business can be done here in the knowledge that when legal disputes arise, they can be resolved swiftly and fairly. We enjoy a worldwide reputation for the quality, independence and ethics of our legal professions. It is therefore no surprise that arbitration here in London is a showcase for that, or that it is very much in demand.

Given that the Arbitration Act 1996 is approaching 30 years of age, the previous Government rightly asked the Law Commission to undertake a thorough review of the legislation back in 2021. It was tasked with determining whether the 1996 Act required amendment to reflect modern practices and maintain its effectiveness in a growing global market when competing jurisdictions had already updated their own arbitral frameworks. The Law Commission was painstaking in its review, carrying out the commission given to it by the previous Government, and I pay tribute to the members of the Law Commission for their painstaking work on this matter, from which we all benefit.

An initial consultation paper was published in September 2022. It laid out the Law Commission’s analysis of the law as it stood and proposed a small number of areas for reform. That consultation received responses from abroad and from an expert base of consultees including individual practitioners, academics, specialist bodies and international firms and institutions, as well as from our judiciary. Taking this feedback on board, the Law Commission refined its proposals and published a second consultation paper in March 2023. After yet another round of engagement, final proposals and a draft Bill were published in September 2023.

As I said, this process has been painstaking and thorough, and we need to credit everybody involved, including the Conservatives for their leadership of the process during that time. It is a testament to the longevity and flexibility of our arbitral framework that only targeted updates were recommended, with the Law Commission concluding that while some modernisation of the 1996 Act was needed and desirable, root and branch reform was not. And it is testament to the Law Commission’s thorough consultation that the Bill commands such support in the arbitral and legal sectors.

I cannot resist adding that the work has been watched carefully by our competitor jurisdictions abroad. The Law Commission’s report was cited by the Singapore court of its own initiative, and in the last few months, seeing the positive developments here, France has announced a need to review its own arbitration laws. We lead the way, and this Bill will ensure that we stay ahead.

As hon. and right hon. Members will be aware, the previous Government introduced an Arbitration Bill in 2023 that also sought to implement the Law Commission’s recommendations. That Bill had made its way through Committee in the other place when Parliament was dissolved for the general election. The legal sector was emphatic in expressing the view that the proposed reforms are vital for updating the arbitral framework and making sure that our jurisdiction remains competitive.

We are first in global class on arbitration, and this Bill will ensure that we stay first in global class. The Government agree wholeheartedly with the legal sector’s view, not least because of our commitment to fostering economic growth in our country. As such, this Bill was introduced in the other place at the very earliest opportunity in July 2024, as one of the first acts of this Government after the general election. I am pleased to see the Bill finally arrive in this House, as I am sure you are, Madam Deputy Speaker.

It is worth saying that the 1996 Act boasts some key strengths. It provides flexible procedures that allow parties to shape proceedings to best suit them. Parties can, for example, arbitrate their dispute with one of our jurisdiction’s many world-leading arbitral institutions, which have developed procedures that parties trust will deliver a fair and timely outcome.

Our current framework also permits effective recourse to our courts, where needed. Parties can request that our courts determine a preliminary matter in the arbitration, such as jurisdiction, or later challenge an award produced by arbitration. Arbitrators can similarly apply to the courts to assist their proceedings, such as by enforcing their orders. At the same time, the regime of court support is carefully balanced to prevent parties from dragging their feet and re-litigating cases. This gives parties huge confidence that arbitrations taking place in our jurisdiction are both efficient and fair.

Many of this Bill’s reforms are designed to build on the strengths of the 1996 Act. I will now go through the key clauses, because I can tell that Members are deeply interested in checking through the detail so that, should we move to a vote, we know exactly what we are voting on.

[Dr Kieran Mullan (Bexhill and Battle) (Con)]

Quite right.

[Sir Nicholas Dakin]

I am pleased to see the Opposition spokesman give me a willing eye of encouragement, for which I am duly grateful.

I start at the beginning. Clause 1 will make it much simpler to determine what law applies to an arbitration agreement. Currently, the rules for identifying the governing law are found in the common law and a recent Supreme Court decision. That decision shows both immense learning and the complexity of the current approach. The Supreme Court was split in its judgment, and its approach was different from that of the Court of Appeal, which used an approach different from that at first instance.

Instead, to make the law clearer and more predictable, clause 1 provides that the governing law will align with the legal location—that is, the seat—of the arbitration by default. This will ensure that arbitrations, where seated in England and Wales and Northern Ireland, will be fully supported by our law, which is among the most supportive of arbitration globally.

Clause 2 codifies a duty for arbitrators to disclose circumstances that may cause doubts as to their impartiality. This will codify the common law and align domestic law with international best practice, such as the United Nations Commission on International Trade Law model law, which our expert lawyers had a major hand in drafting. The model law’s influence can be found in other jurisdictions as far apart as Scotland and Switzerland. It will promote trust in arbitration by promoting trust in the integrity and impartiality of arbitrators.

Clause 3 and, in the interest of briskness, clause 4 will support arbitrators in making impartial and proper decisions by extending their immunity against liability when they resign for good reason or are removed for no fault of their own. This will support arbitrators to make robust and impartial decisions without fear.

Clause 5 clarifies the two pathways for a party that wants to challenge the jurisdiction of the arbitrators—that wants to question whether the dispute should be arbitrated at all. The party can either apply to the court for an early ruling, or it can wait until the award is issued and then go to court. Clause 5 clarifies that it cannot do both. It is either/or.

Clause 6 ensures that, where arbitrators agree that they should not be hearing a dispute after all, they can still award the costs incurred up to that point against the party that generated those costs.

Clause 7 will allow arbitrators to adopt expedited procedures to dispense with issues that have no real prospect of success. This aligns with summary judgments available in court proceedings and will make arbitrations more efficient.

We move seamlessly to clause 8, which will help emergency arbitrators. Emergency arbitrators are appointed on a temporary basis while a full tribunal is being established—that process can sometimes take weeks. They are, therefore, very important to arbitrations. They are often tasked with vital preliminary matters, such as preserving evidence or assets, and are important to ensuring that arbitrations can proceed smoothly. As the practice of emergency arbitrators post-dates the 1996 Act, our framework did not make explicit provision for them, so looking again gives us an opportunity to examine their role.

Clause 8 empowers emergency arbitrators to handle urgent matters better and ensure compliance with their directions by equipping them with final orders and court enforcement. That will give emergency arbitrators the same pathways to enforce their orders as other arbitrators, and will enhance their effectiveness.

Clause 9 provides that court orders made in support of arbitral proceedings can be made against third parties, which aligns with the position in court proceedings. For example, it would enable a party to arbitration to get an order freezing assets held by a third party, such as a bank.

Clause 10 ensures that when a party challenges an arbitral award at court, the court has the full range of remedies available, regardless of the pathway. This clause irons out discrepancies that courts and practitioners have otherwise sought to work around.

Clause 11 provides more efficient court challenges to the tribunals jurisdiction through rules of court that would prohibit repeating evidence and arguments already debated in front of the tribunal. That will avoid such challenges becoming full re-hearings, reducing costs and delays.

I can deal with clause 12 pretty quickly, you will be pleased to know, Madam Deputy Speaker. Clause 12 ensures that the time limit for challenging awards is consistent across the Act.

Clause 13 corrects a rare example of a drafting error. What the Act meant to say was that court orders could be appealed, but in some cases there would be restrictions. What it actually said was that court orders could be appealed only where there were restrictions. To its credit, the Judicial Committee of the House of Lords spotted this error and interpreted the statute as it was meant to be read. We have taken this opportunity to correct the drafting to reflect the judicial ruling, as a useful bit of tidying up.

Clause 14 streamlines the requirements for applying to court to obtain preliminary rulings from the court on questions of law, or on whether the arbitrators have jurisdiction to hear the dispute. Early rulings, such as those from expert judges, can save time and cost.

I am getting towards the end of going through the clauses. In fact, I have come to the last and final clause that I wish to comment upon, clause 15, as you had probably worked out, Madam Deputy Speaker, because that usually comes after clause 14. [Laughter.] There is no clause 16, so clause 15 is the final clause. Clause 15 repeals provisions that were never brought into force, simply to tidy up the Act. Those provisions would have meant slight differences in approach between domestic arbitrations and international arbitrations. In the event, they were never used or needed, never brought into force and there remains no demand for them. Our arbitration law is first class and applies equally to domestic and international arbitrations, so removing the provisions is a helpful way to tidy things up.

In sum, the Bill will greatly approve the arbitral process in our jurisdiction and further cement our position as a top global business destination, where legal disputes can be resolved fairly and quickly. The Bill has already gone through the other place, where it received considerable examination and support from noble and learned Members, including many experienced arbitrators. There are, apparently, a lot of experienced arbitrators in the other place, and they brought their knowledge, experience and expertise to the debate, for which we are very grateful.

Indeed, I emphasise that the Bill has been reviewed by Members of the other place not once, but twice. The first time, scrutiny was provided by a Committee, led by the noble and learned Lord Thomas of Cwmgiedd, that took further evidence from expert stakeholders. The several technical improvements made to the previous Bill because of that work are retained in this Bill. This time, the Bill was reviewed on the Floor of the other place, where the Government amended clause 13 to fix a long-standing error in our framework on arbitral appeals.

I have been quite thorough in covering the ground. I hope all Members feel they have got a good understanding of the issues behind the Bill and why we need to take the steps that I am urging the whole House to take.

To conclude, I second the remarks made by Lord Thomas on Third Reading:

“We must find a means of doing this very rapidly, as we must keep English law—I say English law deliberately—attractive and at the forefront of use internationally, for the benefit of our whole economy.”

—[Official Report, House of Lords, 6 November 2024; Vol. 840, c. 1499.]

I hope the House agrees, and will give the Bill a Second Reading.

--- Later in debate ---

[Sir Nicholas Dakin]

I am encouraged by his nodding.

We take corruption very seriously. However, we have concluded that arbitral corruption is not caused by any issue with our domestic arbitral framework. The Arbitration Act 1996 and common law already provide remedies to deal with corrupt conduct. The courts are empowered to set aside arbitral awards where there are serious irregularities, as they have done recently in the well-known case of Nigeria v. P&ID. Furthermore, arbitrators are under a statutory duty to be impartial and to reach a fair resolution of the dispute. They can issue an award that prevents the corrupt party from benefiting. Although arbitration procedures are often private, corruption can be exposed. Common law allows an exception to confidentiality when disclosure is in the public interest.

However, there is a need for arbitral practitioners and institutions across the world to ensure that their practices are continually developing to weed out attempts to exploit them. We shall support and keep track of initiatives that are under way, such as that of the International Chamber of Commerce’s anti-corruption taskforce. We will engage with the sector to adopt the very best practices as they are developed. I hope that that assures the shadow Minister and the hon. Member for Didcot and Wantage (Olly Glover).

I give my sincere thanks to right hon. and hon. Members who have contributed to the debate. It has been a measured and helpful debate, which underscores the broad support for this legislative programme. I am happy to have heard so much support for this Bill, particularly those contributions that emphasise its importance to economic growth. Our legal services are a vital element of our economy both for creating favourable domestic business conditions and for attracting investment in the UK. And this Government will continue to support them.

I re-emphasise that these reforms are very much appreciated. Many businesses will be deciding whether to designate London as their seat of arbitration versus competitors such as Singapore, Hong Kong, Sweden or Dubai, which have updated their arbitral frameworks in recent times. This decision is not just to settle disputes via arbitration now. Arbitration agreements are often pre-emptive, so these businesses will be making a decision as to where and how disputes may be settled many years in the future.

For the past quarter of a century, our Arbitration Act and our law have been a key draw, making our shores the natural choice for arbitration. In 1996, we created a truly world-leading legislative framework, which contributed to London becoming the preferred forum for arbitration proceedings across the globe. We must maintain our leading position and continue to attract businesses to ensure economic growth. It was therefore important that these measures sought only to improve the arbitral process and promote trust in arbitration. It would have been no good had these reforms created red tape—we would not want to see that.

Arbitration must remain a quicker and a more flexible means by which to resolve a legal dispute versus going to court. But also it is key to promote trust in arbitration to ensure that proceedings on our shores remain robust and respected internationally. The Law Commission needs to be commended for doing such a brilliant job—a superb job—reviewing our framework line by line and seeing where improvements can be made. This Bill contains, as I have said, the expertise and wisdom of myriad practitioners, experts, firms, judges and others.

I will, if I may, indulge in sharing some of the supportive quotes from the sector about the Law Commission’s work.

[Dr Mullan]

No!

[Sir Nicholas Dakin]

I have only a few. [Laughter.] The House would be the poorer for not hearing these quotes—[Hon. Members: “Hear, hear.”] I feel that it is important to share them. More are available, but I will restrict myself to just a few. The Bar Council said:

“We welcome the Law Commission’s characteristically careful and balanced review of the Arbitration Act, and we support the proposals for reform which it makes. It is extremely important that the government finds parliamentary time,”—

we are doing that—

“for the short bill which the Law Commission proposes. London has a well-deserved reputation as the foremost centre”—

the foremost centre—

“for international arbitration. It is important to legislate to make the modest changes to the arbitration regime which the Law Commission has recommended in order to maintain and enhance that reputation.”

The Chartered Institute of Arbitrators said that it welcomes

“the proposed changes, the majority of which are in line with our recommendations, which were informed by input from our membership… It is a sign of the Arbitration Act 1996’s strength and value that only specific changes to ensure that Act remains current have been recommended as opposed to an overhaul. As well as underpinning the attractiveness and competitiveness of London as an arbitration seat, the Act forms the basis of legislation in many other jurisdictions, lending global significance to this development.”

The Chartered Institute of Arbitrators

“worked closely with the UK Law Commission to inform the review. We support regular review of such legislation to ensure arbitration remains effective, fit for purpose, and a viable means of justice in a modern world.”

White & Case LLP said that

“we expect that the amendments proposed by the Law Commission will promote the efficiency and finality of arbitration proceedings, whilst not unnecessarily introducing drastic reform to existing legislation. The Report therefore is to be welcomed as a positive, incremental step in maintaining London’s position as a major centre for international arbitration and dispute resolution more generally.”

The last quote is one of many positive comments that have been received on what we are doing today and on the Law Commission’s work. Herbert Smith Freehills LLP said:

“There can be no suggestion that any changes are being made for change’s sake. The Law Commission has respected the importance of this legislation and sought only to make changes that are necessary…If enacted into law, they will continue to ensure that the arbitration legislation of England and Wales maintains its market-leading status.”

That is what we all want, Madam Deputy Speaker. We want this Arbitration Bill, which began under the previous Government and was completed under this Government, to maintain our market-leading status. We are determined to do that by working together across this House.

Those are, I assure the House, only a small sample of those who engage with, and support, the Law Commission’s review. However, I will also highlight that these comments were made almost a year and a half ago now on the publication of the Law Commission’s final report. Although it is indeed the case that law reform can take some time, this Government are committed to ensuring that these reforms find their way on to our statute book as quickly as possible.

We must ensure that the Bill faces no further delay. These measures must now proceed at pace through the House. Dispute resolution matters. Disputes that go unresolved are bad for the parties and have knock-on consequences for everyone else. At best, disputes distract from firms getting on with their business and individuals getting on with their lives. At worst, the slow and stressful impact of legal disputes can have much greater impacts elsewhere. Businesses may have money tied up in litigation that could and should go towards investment. Individuals may find that a protracted court battle, with its costs and delays, may lead to sickness, which of course will have its own knock-on effect on economic productivity.

Resolving disputes allows everyone to move forward—all the more so if disputes can be resolved by a process that is trusted and respected and that can be tailored flexibly to the needs of those involved. It is no wonder that arbitration has proved such a popular method for resolving disputes in the UK and why UK arbitration has proved such a popular method for resolving disputes worldwide.

I will also take a moment to compliment the other excellent forms of dispute resolution on our shores. In the construction sector, many disputes will by default go to an expedited adjudication with experts, allowing for a quick determination that enables the project to proceed without further delay. We also boast an excellent network of ombudsmen, which deal with all manner of disputes, including consumer matters. We also have a growing mediation sector, which, in both commercial and family matters, is expert at facilitating negotiation between parties to come to a truly consensual resolution to disputes.

The Bill will enact long-awaited reforms to our arbitration law framework, which will enable more efficient dispute resolution for domestic and international parties alike. It will attract international legal business and promote UK economic growth—not just directly because arbitrations happen here, but because it promotes the UK as a one-stop shop for business. Our arbitrations are respected, and so too are our lawyers engaged in arbitrations—lawyers who are then engaged for transactional businesses; business that is funded by our banks, underwritten by our insurers and mediated through our trading houses; and trading houses that also offer arbitral services in a mutually reinforcing offering.

The Bill ensures that our arbitration law is cutting edge. As I have said, it has attracted attention the world over, serving as a reminder of why the UK remains a premier destination internationally for businesses everywhere. The Bill is therefore of great importance to the legal services sector and to the Government. I commend it to the House.

Question put and agreed to.

Bill accordingly read a Second time.

Draft Home Detention Curfew and Requisite and Minimum Custodial Periods (Amendment) Order 2024

Debate between Kieran Mullan and Nicholas Dakin

Wednesday 4th December 2024 General Committees

[Dr Kieran Mullan (Bexhill and Battle) (Con)]

It is a pleasure to serve under your chairmanship, Mr Mundell.

The Minister’s remarks were to be expected; they are in keeping with the trend across Government of defending decision after decision taken by them by reference to the Conservatives’ record and actions in office. That is the nature of politics, and I imagine it will continue for some time, but I am certainly not going to write any blank cheque to the Minister and the Government, nor abdicate our duty to hold them responsible and accountable for whatever they might say about their inheritance. It is our role to deliver scrutiny—of not just the overall outcome they are seeking but how they are going about it.

Although the Government’s intent to address prison capacity pressures is clear, we must critically assess: whether these measures have been properly considered; that we can expect them to be delivered competently; and that, when looked at in detail, they match up to the Government’s pledges. Our prison system faces unprecedented strain, and all the evidence suggests that that strain has become the challenge we see today primarily because of covid. If the remand population that has spiked directly because of covid were at historical levels, we would not be here; we have been left with 7,000 more people in our prisons, compared to the historical average. Members will know that this sum is greater than the numbers that the Government have released and will be going on to release to reduce the steady-state prison population.

The previous Labour Government, like this one, sought ways to manage the challenge, including through use of the end of custody licence scheme—a scheme that, as they have criticised it, Government Members should be aware was actually created by the last Labour Government. The previous Government also had a plan to change legislation to allow us to accommodate prisoners overseas and to discourage use of shorter sentences. This Government have, of course, decided to take their own measures, beginning, as we have heard, with the SDS40 scheme, and now they proposes to extend home detention curfew eligibility from 180 to 365 days.

We are told that both measures are short-term, that the impact of the steps has been fully understood and that there should be some acceptance that the Government will deliver the mechanisms effectively. Let me begin with the proposition that these are short-term measures, or, as the Minister likes to call them, “urgent”. I make the same point I made to the Lord Chancellor in the Chamber on SDS40. If these measures are expected to be short-term, why have they not been sunsetted? If the Minister is confident that they are only short-term, he should make them short-term in the legislation.

The Government have not even gone so far as to tell us the threshold for when they will review possible withdrawal. To be fair to the last Labour Government, even they did that. When they introduced the end of custody licence scheme, they set a prison capacity target—a fixed figure—at which they would review its use, and that is what happened. This Government have not even done that. As is so often the case, the devil is in the detail, or to be more precise in this instance, in the impact assessment. Why, if this is a short-term measure, is the period measuring its benefit over 10 years? It is there in black and white on page 7 of the impact assessment. The Government cannot expect the Opposition to support measures that they say are short-term when all the evidence suggests that they are not.

Next, I turn to the question of whether we have the necessary assurance that the Government have properly considered the impact of their policy. I am afraid, again, that the Minister and Committee members will need to reflect on the Government’s own impact assessment to assist them with this. Page 4 helpfully lays out those who will be affected by the policy. Quite rightly, paragraph 13 lays out that

“Victims of those released from custody”

should be included in this group. I am sure that everyone here can agree that female victims of male violence, and people who have been burgled or mugged, are impacted when they see the perpetrator walk away from prison early.

Paragraph 56, on page 10, summarises the impact assessment, stating:

“We have taken into account the potential impact of the earlier release of some offenders on the public and, particularly, victims of the offenders released.”

I am afraid that the Minister will need to help me here. Forgive me, but where exactly between pages 4 and 10 have the Government done that? Extraordinarily, the document talks about how much better it will be for the perpetrators and their families to be reunited, but what about victims and their families? Besides a cursory mention of notifying them that this will be happening and of the impact on them, it says absolutely nothing.

Finally, we come to effective delivery. Where might we look to make an assessment of that? Of course, we did not look any further than this legislation, because as well as expanding the HDC scheme, as the Minister has said, today’s legislation is also correcting errors in the SDS40 scheme. This amendment rightly excludes six additional offences that were missing from the SDS40 scheme, ensuring that those convicted serve at least half their sentence. How did the Government initially overlook offences such as breaching restraining orders, sexual harm prevention orders and serious harassment? Those are not minor offences; they carry significant harm, particularly for victims.

[Sir Nicholas Dakin]

indicated dissent.

[Dr Mullan]

The Minister may shake his head and say that in some ways they were captured, but ultimately, as he has admitted, offenders have been released who should not have been.

Ultimately, this provision will also significantly change the number of electronic monitoring tags required. The framework acknowledges this, but fails to detail how the Government will ensure readiness. We have seen what happens when these systems fail. Under the SDS40 early release scheme, offenders were released without tags, posing a clear danger to the public. We are told that the Government are now up to date with the SDS40 scheme. Can the Minister tell us the situation with the wider backlog? I am afraid that the Government have not done enough to reassure us that yet further extensions to the use of tagging at this stage will be suitably managed. The Lord Chancellor has also committed to funding at least 1,000 additional probation officers by March 2025. The recruitment and training of probation officers takes time. What evidence do we have that that target will be met?

I am afraid that, on the three sensible tests against which we might view this policy, the result is wanting. The Government want to talk about our record. I remind them that they steered the Crown Court to a higher backlog, after we had reduced the backlog pre-pandemic.

[Sir Nicholas Dakin]

indicated dissent.

[Dr Mullan]

The Minister frowns, but he can look it up. Pre-pandemic, the backlog was lower than the backlog that Labour left us at the end of its previous time in government. The Government criticise, saying that we forced them to release several thousand prisoners early. Perhaps Government Members do not know that they released more than 80,000 prisoners early when they were last in charge.

There is no doubt that there are challenges in our criminal justice system, but the Government should not expect and will not receive a free pass when it comes to fulfilling their responsibilities to tackle that challenge with professionalism and due diligence. The public expect better than this and we will be voting against this order on their behalf.

--- Later in debate ---

[Sir Nicholas Dakin]

I thank the Liberal Democrat spokesperson, the hon. Member for Eastbourne, for recognising at the start of his speech that the Government are taking this matter very seriously. I also say to the shadow Minister, the hon. Member for Bexhill and Battle, that the official Opposition are absolutely right not to give the Government a free pass. “The public expect better”, he said, but he should bear in mind that our scheme excludes people convicted of sexual offences, while his Conservative Government did not put any exclusions in place at all. Their scheme was done hurriedly just before the election, while this is being done to take control of the prison population in response to a crisis, so that we can run the criminal justice system appropriately. If the previous Government had done their job properly, we would have inherited a situation on which we could build positively into the future, but that has sadly not been the case.

I will deal with the issues raised by the Liberal Democrat spokesman first. We take victims and victims’ voices very seriously, and we will continue to do so. Anyone convicted of offences linked to domestic abuse, such as stalking and harassment, are presumed unsuitable for HDC. Exclusions under SDS40 have to be based on specific offences, and domestic abusers are prosecuted under many powers. Our exclusions send a clear message about how seriously the Government take domestic abuse and, unlike the end of custody supervised licence scheme, we have taken specific action, and we will continue to do everything we can to ensure that victims’ voices are well represented on these issues. Victims eligible for the victim notification scheme or victim contact scheme are properly informed during the process; that is taking place. The sentencing review will look at other things, and we have made sure that there is a victims’ voice on its panel.

The shadow Minister, the hon. Member for Bexhill and Battle, rightly asked whether the electronic monitoring system is doing its job effectively. Again, we inherited a contract from the previous Government that was not performing to the level we would have wished. It is improving, but it is still not where we want it to be. It is at a point at which we are confident that it can handle the coming additional workload, but we need to continue to work hard to make sure that the contractors deliver, as they should always have been delivering; we should not have inherited a situation where they were not performing to the level that they should have been.

The shadow Minister asked when SDS40 will be reviewed. When he raised that in the Chamber, the Lord Chancellor assured him that it would be reviewed after 18 months and that it would come back to Parliament at that point.

I do hope, having had this discussion, that the Committee will support—

[Dr Mullan]

I think the Minister has only answered one of my questions. Will he address the 10-year timescale and the lack of any discussion of victims in the impact assessment? I think there were two other points he could usefully try to reply to.

[Sir Nicholas Dakin]

As he probably realises, all impact assessments have a 10-year focus. The impact assessment is nothing to do with intention; it is about the impact if things went on for that period of time. It is the normal process. The hon. Gentleman is confusing the impact assessment with the Government’s intention. The Government’s intention is not for this provision to continue for that period of time.

Question put.