Criminal Justice Act 2003 (Removal of Prisoners for Deportation) Order 2023

Lord Bellamy Excerpts

Thursday 26th October 2023 Lords Chamber

Moved by

[Lord Bellamy]

That the draft Order laid before the House on 16 October be approved.

Relevant document: 54th Report from the Secondary Legislation Committee

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

My Lords, I first thank my noble friend Lord Hunt of Wirral and the Secondary Legislation Scrutiny Committee and their staff for the expedited consideration of this draft instrument and for their report. I apologise that the Explanatory Memorandum which accompanied the order was not as full as the committee considered appropriate. I hope to deal with the points raised very briefly in a moment.

On 17 October last, I repeated the Statement made by my right honourable friend the Lord Chancellor about several measures to reduce pressure on the prison estate, including a presumption against shorter sentences. Today’s instrument deals with one of those measures relating to foreign national offenders. At present, foreign national offenders can be deported no earlier than 12 months before the end of their minimum custodial period under the early release scheme, or ERS. This order increases that period from 12 months to 18 months. All such prisoners must however serve a minimum of half their sentence. We have around 10,000 foreign national offenders in prison at the moment, but over 3,000 of those are on remand. That leaves around 6,500, and this order brings within scope of the early release scheme a further 300 annually. That was the figure that was missing from the Explanatory Memorandum, and indeed the noble Lord, Lord Ponsonby, asked me that very question in the debate following my Statement.

Therefore, we have an additional 300 prisoners within scope. That may not seem a very large number, but as the Secondary Legislation Scrutiny Committee points out, in circumstances where available prison capacity is very tight and often less than 1,000 free spaces, that is a non-negligible contribution to the problem. However, it is quite difficult to say how quickly and in what number prisoners will be deported, because that depends on consideration of individual cases, on Home Office caseworker capacity—hence the need to consult the Home Office when asked the question—and on the number of appeals. None the less, it is an important contribution.

Clearly, as the scrutiny committee points out, a measure of this kind involves making a series of balances between the possible effects on victims and the possible effect on deterrence, as against the severe constraints on prison capacity and the cost to the taxpayer of holding those prisoners. These matters are weighed very carefully by the Government. It is the Government’s duty to reach conclusions on such matters and, as part of the wider policy, this instrument strikes the appropriate balance. Therefore, I beg to move.

[Lord Dholakia (LD)]

My Lords, I am delighted to contribute to the debate on this order. Over the years, many of us have contributed to debates about the rise in our prison population and its adverse impact on the objectives of our prison service. We are told that the removal of foreign national offenders is now a government priority and that they are therefore expanding the early removal scheme. This would have been acceptable if the excuse of overcrowding were not used as the promotion of the policy.

Overcrowding has been in the headlines for many years, and successive Ministers in the Ministry of Justice have identified different solutions to the problem. They have claimed that 20,000 new prison spaces are being built, with the newest jail set to open in the spring.

We have argued, as has the Justice Secretary, that short sentences are not an appropriate punishment because those sentenced do not get the chance to reform themselves. Reliance on community sentences would be more appropriate for lower levels of crimes.

When the state sentences someone to a custodial option, it assumes full responsibility for that individual. How are we discharging those obligations?

Once removed from our prisons, individuals will not be subject to further imprisonment and are free individuals once back in their own country, but the reverse is also true: they will not be allowed to legally return here and will be liable to serve the rest of their sentences.

These measures are a piecemeal approach to penal reform and do not look at the real sources of prison overcrowding, which has ratcheted up our sentencing system. We have failed to address adequately the backlog of outstanding cases in our courts. Despite abolishing IPP sentences, the problem remains.

We welcome the intention against short-term sentences, but reconviction rates are still very high. My noble friend Lord Marks has already stated the need to concentrate on rehabilitation and greater use of community and suspended sentences. Remand in custody is still very high. The former Justice Secretary, David Gauke, has said:

“We are within weeks or days of no longer having any prison spaces.”


I tend to agree with him.

--- Later in debate ---

[Lord Ponsonby of Shulbrede (Lab)]

My Lords, we in the Opposition support this order. It is sensible, and it is one element in a raft of measures recently announced by the Lord Chancellor. It is designed to address the overcrowding crisis in our prisons.

I thank the Minister for his recent letter, which I received yesterday, which stated that, as a result of extending the early removal scheme from 12 months to 18 months, around 300 more foreign national offenders will be brought into the early removal scheme window at any one time, as he explained in his introduction. We look forward to seeing the other measures proposed by the Lord Chancellor being brought forward through new primary and secondary legislation.

However, this crisis was predicted by the National Audit Office, the Justice Committee and the Chief Inspector of Prisons, and I am sure that HMPPS has been well aware of this impending crisis for many years. Though the crisis was predicted, the proposed changes, including this one, were neither planned nor consulted on.

As the noble Lord, Lord Dholakia, said, 20,000 new prison places were promised by the Government for the mid-2020s. This target will not be met, and the Government have had to revise their timetable on several occasions. Three proposed new prisons are stuck in the planning system, and there is growing scepticism that the Government will be able to meet their revised timetable.

In some establishments, prisoners are locked up for up to 22 hours a day, and prisons are so understaffed that many of the activities so important to rehabilitation are simply not happening, such as trips to classrooms for education, to the library, or other activities, all of which aid rehabilitation. Of course, for some prisoners, these activities are a condition of their eventual release. The tragedy of the situation is that we are now seeing reoffending rates increasing: 25% of male former prisoners will reoffend within one year of their release.

I turn to today’s order to extend the early removal scheme. After 13 years of Conservative rule, the number of removals of foreign national offenders has dropped by 40%. The Government may point to Covid, but in 2022 the Government were removing around half the number of foreign national offenders that they were pre-Covid.

In the other place, my honourable friend Ms Cadbury quoted a prison governor who warned:

“I expect it will require significant numbers of new Home Office staff for this initiative to be effective”.


We understand that the Home Office already faces problems with staffing. How many additional staff will be needed to put this proposal into effect?

In last week’s Statement and in this statutory instrument’s Explanatory Memorandum, there is no clear information about the estimated costs, including those of any legal challenges to deportations.

An incoming Labour Government would recruit an additional 1,000 Home Office caseworkers to reverse the drop in removals that we have seen since the party opposite came to power in 2010. It would create a returns unit to triage and fast-track the removal of those people with no right to be here.

I do not think I am breaking a confidence when I say that last week I had a brief discussion with the noble and learned Lord, Lord Bellamy, and my noble and learned friend Lord Falconer of Thoroton about last week’s Statement. The noble and learned Lord, Lord Bellamy, fairly pointed out that the Statement was similar to that of the noble and learned Lord, Lord Falconer, when he was Lord Chancellor in 2007. While the details of the proposals are different, the overriding objective of creating some headroom in the prison estate is the same. Of course, in 2007 there were about 80,000 prisoners and now there are about 88,000.

The point that my noble and learned friend Lord Falconer made is worth repeating. He said that, notwithstanding the temporary benefits of the proposals made by the Statement, overall prison numbers will continue to go up. That is for a variety of reasons, including the lengthening of some prison sentences. I hope the noble Lord thinks it fair for me to recount that brief conversation.

It is in the light of that that I will comment on Sir Bob Neill’s speech in the other place. The gist of it was that, while he supported the Government, he was sceptical about the ever-increasing length of prison sentences. He said that, while prisoners have done wrong and need a degree of punishment, ever-increasing sentences are not the answer. He went on to say:

“We have to use prisons sensibly, and be honest about the fact that a degree of rationing is required”. [Official Report, Commons, 24/10/23; col. 774.]


I think the noble Lord, Lord Hogan-Howe, was making the same point in his intervention just now. What evidence is there that ever-increasing sentences reduce crime and reoffending? In my experience, Ministers point to public demand for ever-lengthier sentences and not the evidence of their benefit in reducing crime and reoffending.

At yesterday’s Secondary Legislation Scrutiny Committee meeting the noble and learned Lord, Lord Thomas of Cwmgiedd, questioned a policy which could be characterised as foreign prisoners potentially getting less time in prison in order to ensure that UK prisoners can continue to be sent to prison. The noble Lord, Lord Russell, mentioned other questions that came out of that scrutiny committee meeting, namely which nationalities are most likely to be impacted by this change in the regulations. He suggested it might be Romanian and Albanian prisoners. Of course, we have good relations with both those countries, and I hope the Minister will be able to say that we have well-established lines of communication for discussing that question and the impact of any increased number of removals.

In the light of the concerns raised by the scrutiny committee, can the Minister reassure me that sexual and violent offenders will not be allowed to be freed to their home country up to 18 months early? This may—I think it would—worry the victims of those offenders. They need reassurance, which I hope the Minister can give, that this will not be the case for those particular categories of offenders. I also hope the Minister can also reassure us that this scheme excludes those convicted of terrorist offences.

In conclusion, we in the Opposition support this order. It is, in a sense, an admission of failure by the Government. This is a predicted and avoidable failure. Nevertheless, for this scheme to work, to achieve the extra 300 removals foreseen, it will need to be adequately resourced and have the laser-like focus of the Ministers concerned.

[Lord Bellamy (Con)]

My Lords, I thank all noble Lords for their interventions on the matter of this order. A number of very wide-ranging points have been made. I thank particularly the noble Lord, Lord Dholakia, for his comments on sentencing more generally, and indeed the noble Lord, Lord Hogan-Howe, and just now by the noble Lord, Lord Ponsonby, for their points on where sentencing is going in general terms. It is a very important general question, which the Government are keeping under review and which I am sure public opinion will discuss. But I think today is not the time to go into detailed discussion of sentencing policy.

As far as the prison estate is concerned, we hope that the package of measures that the Lord Chancellor announced the other day, including a presumption against shorter sentences, will over time progressively reduce those pressures. It is fair to point out, as the noble Lord, Lord Ponsonby, has just mentioned, that every Government for the last 15 years or so has faced these pressures. They have been extremely difficult to deal with, particularly in the recent past because of the sharp increase in remand prisoners and severe difficulties in the planning process—but for which we would be in a very much stronger position. None the less, the Government are keeping the matter under close review.

As regards the points made by the noble Lord, Lord Russell of Liverpool, I hope that, when this league table becomes known, the ministry for which I am responsible manages to keep at the bottom of the table. It is the sort of table one wants to stay at the bottom of, rather than at the top, unlike most league tables. In relation to the specific point made about arrangements with Albania, Romania and other countries, I will, if I may, write to the noble Lord setting out the position, which is affected not only by the early release scheme but by reciprocal prisoner transfer agreements to take each other’s washing in, if I may put it loosely and inappropriately.

Respectfully, as regards the comments of the noble Lord, Lord Hogan-Howe, my understanding is that those removed are not allowed to come back. There are rearrested if they do, and if they are caught they have to serve the whole of their sentence, so there is a very considerable risk there. In relation to the number of Home Office staff needed, I cannot say. It is a matter for the Home Office how many staff it will need in precise terms. I am assured that it is recruiting the staff it considers necessary, and if I have further information that I am able to supply, I will write to the noble Lord, Lord Ponsonby, appropriately. I note the estimate put forward by the Labour Government—if there were ever to be one, which remains a totally hypothetical possibility at this stage.

In relation to prisoners who do not qualify for this, and that the reassurance the noble Lord, Lord Ponsonby, asked for, the scheme certainly does not apply to terrorists. I anticipate that it does not apply to serious sexual offenders and violent offenders, whose release under the scheme would not be appropriate. Again, I will confirm the exact position in writing so that I do not misrepresent the position while I am on my feet at the Dispatch Box.

I hope I have covered, albeit very briefly, the wide-ranging points that have been made and I commend the order.

Motion agreed.

European Court of Human Rights

Lord Bellamy Excerpts

Wednesday 25th October 2023 Lords Chamber

[Lord Foulkes of Cumnock (Lab Co-op)]

And thanks to you too, Lord Speaker. We are filled with deep sadness at losing a treasured friend and colleague—but Murray would have been the first to say, “Get on with it, George!”, so I beg leave to ask the Question standing in my name on the Order Paper.

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

My Lords, in the same spirit, I shall answer straightaway. The United Kingdom has a long-standing tradition of ensuring that rights and liberties are protected domestically and are fulfilling our international human rights obligations. The Government remain committed to a human rights framework that is up to date, fit for purpose and works for the British people.

[Lord Foulkes of Cumnock (Lab Co-op)]

I am grateful to the Minister and to the noble Lord, Lord Ahmad, who has been very helpful on this issue in the past. Only four cases have gone from the UK to the court of human rights, whereas it is vital for other countries that are not so good at giving their citizens proper human rights. As the noble Lord, Lord Ahmad, knows, we have now nominated John Howell MP, the leader of the delegation from the United Kingdom to the parliamentary assembly, to be the next European commissioner for human rights. Does not it undermine all that when Suella Braverman and Kemi Badenoch keep on talking about withdrawing from the convention on human rights, apparently in some sort of bid for leadership?

[Lord Bellamy (Con)]

My Lords, I have stated the Government’s position, which is that we are members of the convention, and that is also reflected in the Good Friday agreement and the trade and co-operation agreement with the EU. There is no change in that position, and the statements to which the noble Lord refers do not reflect the position of the Government.

[Lord Morgan (Lab)]

My Lords—amazing! There were no interruptions. I very strongly support the Question asked by my noble friend Lord Foulkes, who is in effect asking the British Government to obey the law made by Conservative Governments of which the Prime Minister was Sir Winston Churchill. Is not it extraordinary that Cabinet Ministers are flouting the law and, in effect, forcing their own Government to break their word?

[Lord Bellamy (Con)]

My Lords, respectfully I do not accept that the Government are flouting the law. The United Kingdom has the lowest per capita number of cases in front of the court of human rights. We represent 0.1% of the court’s caseload. As the noble Lord, Lord Foulkes, said a moment ago, it is very important to encourage other countries to obey the law. We continue to play a very large part in the convention and in the Council of Europe, and we support its work across the board. I just add that the situation has changed very significantly since the aftermath of the Second World War, when Sir Winston led that particular initiative. One has to bear in mind that institutions must respond to international changes and developments.

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

My Lords, now that we have thankfully seen the back of the Bill of Rights Bill, do the Government accept that the UK’s commitment to the binding undertaking in Article 46 of the convention to abide by final decisions of the Strasbourg court was in fact unquestionably threatened by that Bill? Does the noble and learned Lord also agree that that commitment is a vital safeguard for people in the UK, despite the small number of cases in the Strasbourg court affecting the UK today, against the abuse of human rights by Governments of whatever political persuasion in the future?

[Lord Bellamy (Con)]

My Lords, as long as the Government are party to the convention, of course we respect Article 46. I do not accept that the Bill of Rights Bill, subsequently withdrawn, in any way undermined our commitment to the convention; it merely rebalanced the various rights and duties as set out in the UK Human Rights Act.

[Lord Jackson of Peterborough (Con)]

My Lords, the House will know that the Minister of the Interior in France has speculated on the use of primary legislation to disapply some aspects of the European convention in the case of France, because of the immigration crisis in that country. Is it not incumbent on our own Government to at least investigate whether, in the UK’s national interest, we could do something similar?

[Lord Bellamy (Con)]

My Lords, the Government have noted the remarks by the Minister of the Interior for the French Government and we emphasise that it is important to pursue dialogue with international partners to ensure that the framework for dealing with these difficult matters is properly up to date. As my right honourable friend the Minister for Immigration said in the other place yesterday, we work closely with friends and allies to ensure that this is the case.

[Lord Watts (Lab)]

My Lords, what happened to collective responsibility in the Cabinet? Is it not appropriate that either the Home Secretary goes or the Prime Minister goes?

[Lord Bellamy (Con)]

My Lords, we are discussing the Human Rights Act and the convention at the moment, and I am not able to comment any further on collective responsibility.

[Lord Lansley (Con)]

My Lords, I declare an interest in that John Howell was my Parliamentary Private Secretary and remains a good friend. Does my noble and learned friend agree that his nomination is a manifestation of the Government’s continuing commitment to the convention and, indeed, to the principles that it enshrines?

[Lord Bellamy (Con)]

My Lords, I entirely agree.

[Lord Dubs (Lab)]

My Lords, when I visited the Strasbourg court some while ago, it was full of enthusiasm about the good co-operation between our courts and the European Court of Human Rights. I was told there that any weakening of this country’s commitment to the European Convention on Human Rights would encourage the notorious abusers of human rights to say, “If the Brits don’t go along with it, why should we?” That is why it is so damaging when Cabinet Ministers make the comments that they have done.

[Lord Bellamy (Con)]

I entirely accept that dialogue is important. We have a very productive dialogue with the European Court of Human Rights. It has touched recently on the important question of Rule 39, and it has been a very constructive dialogue which I hope will continue.

[Lord Ponsonby of Shulbrede (Lab)]

My Lords, the noble Lord, Lord Jackson, asked a question about France and how it is seeking to rebalance its relationship. I listened very carefully to the noble and learned Lord’s answer to my noble friend’s Question. He talked about an up-to-date human rights framework and went on to describe the now rejected Bill of Rights as a rebalancing of rights. Are these hints that we might see some legislation in the forthcoming King’s Speech seeking to rebalance those rights?

--- Later in debate ---

[Lord Bellamy (Con)]

It is probably no surprise to say that I am not privy to the contents of the King’s Speech but. as far as I am best aware, the answer to the noble Lord’s question is no.

[Baroness Chakrabarti (Lab)]

My Lords, I remind the noble and learned Lord that his boss, the Lord Chancellor, appeared before the Justice and Home Affairs Committee of this House just before lunchtime. I urge noble Lords to read that evidence and take heart from it, and I urge the Minister to do so too. I hope his words will be taken forward as commitment to the ECHR, and that Section 3 of the Human Rights Act will not keep being disapplied from future Bills in this House.

[Lord Bellamy (Con)]

As ever, I am happy to take the advice of the noble Baroness and read the evidence very carefully.

[The Lord Bishop of Leeds]

My Lords, does the Minister agree with me that global and regional challenges need global and regional solutions, and that individual countries seeking to disapply do not help the situation?

[Lord Bellamy (Con)]

As I have just said, ideally, international collaboration and joint solutions are far preferable to unilateral action.

[Lord Lexden (Con)]

My Lords, notwithstanding my noble and learned friend’s comments about the possible need for change due to the passage of time, should we not always remember that it was a very distinguished Conservative, David Maxwell Fyfe, later Viscount Kilmuir and Lord Chancellor in this House, who drafted much of the present convention?

[Lord Bellamy (Con)]

I entirely agree with my noble friend.

[Baroness O'Grady of Upper Holloway (Lab)]

My Lords, will the Minister undertake to educate Cabinet colleagues about the specific impact that leaving the convention would have on the Good Friday agreement, and on our trade and co-operation agreement with the EU? I refer him to the Institute for Government, which has recently published analysis that says it would have a huge destabilising and damaging impact.

[Lord Bellamy (Con)]

Not being a member of the Cabinet, I cannot give the noble Baroness that undertaking, but I am sure the Government as a whole are well aware of the implications of what we are discussing.

Joint Enterprise: Young Black Men

Lord Bellamy Excerpts

Thursday 19th October 2023 Lords Chamber

[Lord Woodley]

To ask His Majesty’s Government, further to the remarks of Lord Bellamy on 14 June (HL Deb col 1990), what steps they are taking to address concerns that joint enterprise case law operates in a harsh way against young black men.

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

My Lords, joint enterprise case law is primarily a matter for the judiciary. The CPS applies that case law and race plays no part in individual charging decisions. Recognising concerns about possibly disproportionate use of the joint enterprise case law, the CPS has piloted the collection of data on joint enterprise homicide prosecutions. Informed by the results of that pilot, published on 29 September last, the CPS aims to commence a full national monitoring scheme early next year.

[Lord Woodley (Lab)]

The new data that the Minister mentioned confirms, unfortunately, that young black men are disproportionately affected in joint enterprise prosecutions, as campaigners such as me have warned for many years. Black people are 16 times—I repeat, 16 times—more likely than white people to be prosecuted for homicide or attempted homicide under joint enterprise laws. It is absolutely shocking, as I am sure your Lordships all agree. Does the Minister therefore agree that this proves indisputably that joint enterprise is being used in a racist way by prosecutors, and basically as a dragnet to hoover up black urban youth?

[Lord Bellamy (Con)]

My Lords, if I may respectfully say so, the results so far of the pilot prove nothing of the sort. The pilot showed a high number of black males in joint enterprise cases in the 18-24 age group and a high proportion of white males in the 30-59 age group. Those figures, taken alone, do not establish discrimination; disparity on its own does not establish discrimination. That is why, to get to the bottom of this, the CPS will build on the pilot and the national monitoring scheme will commence next February, together with other measures that the CPS is taking.

[Lord Hunt of Wirral (Con)]

My Lords, given that we all believe everyone is equal before the law, there have been some troubling statistics on criminal charges against ethnic minority groups. Would my noble and learned friend the Minister like to update us on the work that the CPS is doing in that direction?

[Lord Bellamy (Con)]

I thank my noble friend for that question. The national pilot is part of much wider work by the CPS to understand the high number of charges against persons from ethnic minorities. This includes the publication of the CPS Inclusion and Community Engagement Strategy 2025 and the document CPS Defendants: Fairness for All Strategy 2025. But that is combined with statistical research being conducted by the University of Leeds, with an independent disproportionality advisory group established to advise the CPS. The first stage of the Leeds research is published on the CPS website.

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

My Lords, the pilot study sample was too small to draw any strong conclusions, as the report and the Minister accepted. However, it is clear that we need a new, wider study and we welcome the announcement of that study. Does the Minister also agree that great care needs to be taken on the evidence so far compiled with the use of the word “gang”, which may be prejudicial? Does he also agree that young black men appear to be disproportionately charged with these offences, particularly in London? Finally, does he agree that to draw meaningful conclusions, the broader study will need to gather data comparing joint enterprise cases with other cases, which was not done in the pilot study?

[Lord Bellamy (Con)]

My Lords, as I have just said, I do not accept that the study so far reveals disproportionality. I accept that this is a very sensitive subject, and we must avoid anything that could be described as inflammatory language. I take on board the noble Lord’s point that we need a proper data study bringing in relevant comparables.

[Baroness Blower (Lab)]

My Lords, the Supreme Court ruled in 2016 that courts had taken a wrong turn over three decades earlier with respect to joint enterprise. Since then, if I am not in error, only one conviction has been overturned, because it is all but impossible to be granted leave to appeal. Does the Minister agree that this appears to be a miscarriage of justice? Does he support the Criminal Appeal (Amendment) Bill put forward by Barry Sheerman to open a new path to appeal?

[Lord Bellamy (Con)]

My Lords, I am unable to agree that this indicates a miscarriage of justice. We do not have precise figures on the number of persons who successfully appealed following the Jogee case. Mr Jogee himself, who succeeded, was then retried and convicted of manslaughter rather than murder. Mr Crilly, who also succeeded on appeal, if your Lordships remember, was the gentleman who bravely and famously intervened in the Fishmongers’ Hall incident. His retrial for manslaughter was subsequently abandoned.

[Baroness Chakrabarti (Lab)]

I would like to press the Minister a little further following my noble friend’s question. The Supreme Court, no less, stated in 2016 that the law had been misapplied for 30 years. Leaving issues of race aside, that must mean that a lot of people who should not have faced life imprisonment have faced it. Will the Minister meet other interested noble Lords and campaigners, many of whom are mothers and sisters of those incarcerated, to consider whether for once legislators might assist in remedying judicial error, rather than the other way around?

[Lord Bellamy (Con)]

My Lords, it is relevant to emphasise that the Supreme Court in that case said that only if a substantial injustice could be established would the change in the law be relevant to any future appeal. Of course, I am very happy to meet anyone in the category the noble Baroness refers to.

[Lord Boateng (Lab)]

My Lords, the former Prime Minister, the right honourable Theresa May, established the Race Disparity Unit precisely to identify data and figures that give rise to concern and, on the basis of that concern, to take action. This is precisely such a case. It is to her establishment of the audit that we owe the data. Will the Minister therefore undertake to ensure that there is an understanding in the department that it is not only inflammatory language that causes problems but inaction? Can we have some action on this and on the recommendations of the Lammy report, which still have not been implemented?

[Lord Bellamy (Con)]

My Lords, to the best of my knowledge, most of the recommendations in the Lammy report have been taken well to heart by all concerned. We are discussing here charging decisions, which are a matter for the CPS. As I have explained, the CPS is taking this very seriously, with the University of Leeds advisory groups. On the pilot concerned, there are two aspects of scrutiny. There is a scrutiny panel, which met quite recently and will meet again in February. All these actions are being taken as part of the wider attempt to get to the bottom of why we have such a high proportion of persons from ethnic minorities in the criminal justice system.

[Baroness Thornton (Lab)]

My Lords, I read the report from 29 September. It would appear, even with the small sample the Minister referred to, that young black men are overrepresented. That is a cause for concern. Will the Law Commission be reporting on the merits of reforming joint enterprise law as a priority before the end of next year? Will the Government be acting promptly to introduce necessary legislation?

[Lord Bellamy (Con)]

My Lords, as far as I am aware, the Law Commission is looking at the question of reforming the law on appeal. I am not so sure—I stand to be corrected—that it is looking into joint enterprise law, the boundaries of which are for the judiciary. It is an essential part of our criminal law to have a joint enterprise doctrine. The question is: where are the edges to the doctrine?

[Lord Farmer (Con)]

My Lords, I have visited several high-security prisons since starting my reviews in 2016. On one such visit I met young black men who were secondary parties in a gang-related incident—I use that phrase advisedly—where tragically someone was murdered. Joint enterprise case law then, pre-R v Jogee, meant they were convicted as principals and facing very long sentences. As we are talking about young black men, and it is difficult to surmount the difficulties in securing justice, I ask my noble and learned friend: what are the Government doing to help young black individuals and other secondary parties to surmount those difficulties in securing justice?

[Lord Bellamy (Con)]

Prisoners in the position that my noble friend refers to would have been able to consider the Jogee case and appeal if that was the right course or refer their case to the Criminal Cases Review Commission. The Law Commission is looking into the appeal process, but those legal avenues are open to them.

Prison Capacity

Lord Bellamy Excerpts

Tuesday 17th October 2023 Lords Chamber

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

My Lords, I will respectfully repeat the Statement made yesterday in another place by my right honourable friend the Lord Chancellor:

“The first duty of any Government is to keep their people safe, and that is why those who pose a danger to society must be locked up. This Government are categorical that the worst offenders should be locked away for as long as it takes to protect the public. We have increased the sentences for offences including knife crime, causing death by dangerous driving—now a maximum of life imprisonment—and causing or allowing the death of a child. We have ended automatic halfway release for serious sexual and violent offenders, so they will serve two-thirds of their sentence behind bars and, in the most dangerous cases, all of their sentence behind bars. We are changing the law to make whole-life sentences the default for the most heinous types of murder, so that for society’s most depraved killers, life means life and murderers end their days in prison.

Today, I can announce that we will be going further. We will legislate so that rapists, as well as those convicted of equivalent sexual offences, will serve the entirety of the custodial term handed down to them by the courts. A 15-year custodial term will mean 15 years behind bars.

There are inaccurate reports in the media, claiming that judges have been told not to send rapists to prison. Let me be categorical: this is untrue. Sentencing is a matter for the judiciary acting impartially and in accordance with the rule of law. It is a fact that under this Government the most serious and dangerous offenders are being locked away for longer. In the case of rapists, average sentences are nearly a third longer than in 2010. This is the right thing to do to keep the public safe.

To continue to put the worst offenders away for longer, we must use prisons better, so that there are always sufficient spaces to lock up the most dangerous criminals. We must reform the justice system so that it keeps the worst of society behind bars, rehabilitates offenders who will be let out and gives the least serious, lowest-risk offenders a path away from a life of crime. That matters, because intelligent reform means less crime.

I have been candid from the moment I took on this role that our custodial estate is under pressure. Today, the prison population in England and Wales is greater than it has ever been—nearly double the level it was three decades ago. That is not principally because of the growth in the sentenced population: instead, it is the remand population, principally made up of unconvicted prisoners awaiting trial, which has surged in recent years, from 9,000 in 2019 to over 15,000 in 2023. That is more than 6,000 more people in our prisons, out of a total of around 88,000. Why is that? It is because in the white heat of the pandemic we took the right and principled decision not to jettison hundreds of years of British history and abandon the jury trial system. We did not do that because the jury trial system is the bedrock of our freedoms. But, because of Covid restrictions, that inevitably meant that the flow of trials slowed and, in turn, the remand population grew. This growth was exacerbated by industrial action last year. In addition, the recall population is also significantly higher than in 2018, partly because we are rightly ensuring that offenders who do not comply with their licence conditions are returned to prison.

This Government have taken unprecedented steps to meet this demand. We are building 20,000 modern rehabilitative prison places—the largest prison-building programme since the Victorian era. By doubling up cells where it is safe to do so, speeding up the deportation of foreign national offenders and delaying non-essential maintenance projects to bring cells back into use, we have freed up an extra 2,600 places since September last year alone. On top of this, we have continued to roll out hundreds of rapid deployment cells at prison sites. Altogether, we have been bringing on capacity at a rate of more than 100 places a week—the fastest rate in living memory, and possibly in 100 years.

We are going further. Today, I can announce up to £400 million for more prison places, enough for over 800 new cells. When we legislate to keep rapists behind bars for the whole of their custodial term, I will ensure that commencement is dependent on there being sufficient prison capacity. There is already an obligation to lay before both Houses of Parliament a report as to the way I have discharged my general duty in relation to the courts. To ensure public confidence, a new annual statement of prison capacity will be laid before both Houses. It will include a clear statement of current prison capacity, future demand, the range of system costs that would be incurred under different scenarios and our forward pipeline of prison build. That will bring transparency to our plans and will set out the progress that is being made. I have also already commissioned urgent work, to conclude before the end of the year, to identify new sites for us to purchase. This is backed by a down payment of up to £30 million in funding to acquire land in 2024 and launch the planning process.

We must do whatever it takes to make sure that there are always enough prison places to lock up the most dangerous offenders to keep the British people safe, to ensure that criminals can be brought to justice, and to maintain safety and decency in the prison estate. We have decided to use the power in Section 248 of the Criminal Justice Act 2003 to allow the Prison Service to move some lower-level offenders out of prison on to licence up to 18 days before their automatic release date.

Let me be clear: this will not apply to anyone serving a life sentence, anyone serving an extended determinate sentence, anyone serving a sentence for an offence of particular concern, anyone convicted of a serious violence offence, anyone convicted of terrorism or anyone convicted of a sex offence. This new power will be used only for a limited period and only in targeted areas. Every offender will be placed under strict licence conditions that provide a step down from custody to living in the community. This may include: first, being made to wear an electronic tag when needed to manage them safely; secondly, a condition not to contact a named individual, directly or indirectly; thirdly, having to live at an address approved by the probation officer; fourthly, attending appointments; and fifthly, a condition not to enter certain areas, such as particular postcodes. Breach of these conditions could lead to the offender being recalled to custody for the entire second half of their sentence.

This will be overseen by the Probation Service—a Probation Service into which we have injected £155 million a year to recruit staff to bring down case loads and deliver better supervision of offenders in the community. In addition, the HMPPS leadership will retain discretion to decide on further exemptions from release on advice of governors where concerns remain. Let me make it clear that this is a temporary operational measure to relieve immediate pressure contributed to by remand.

If we are to protect the public and reduce crime, we need to go further to use our prisons better. At the heart of the long-term plan for prison reform that I am announcing today is a simple mission: cut crime. To deliver that, there are three things we need to do. First, we need to ensure that the most dangerous offenders are locked up for longer, away from the public and unable to commit crime. Secondly, we need to ensure that prisons are geared to help offenders turn away from crime, to change their ways and to become contributing members of society. Thirdly, we need to ensure that more low-level offenders get the tough community sentences that the evidence shows cut reoffending and therefore cut crime.

To put that last point another way, prisons should not ruin the redeemable. It is clear that, all too often, the circumstances that lead to an initial offence are exacerbated by a short stint in prison, with offenders losing their homes, breaking contact with key support networks and, crucially, meeting others inside prison who steer them in the wrong direction. When they are released just a short time later, they all too often reoffend, fuelled by addiction or mental health issues that cannot possibly be addressed effectively in such a short space of time. The fact is that over 50% of people who leave prison after serving less than 12 months go on to commit further crimes. The figure is 58% for those who serve sentences of six months or less. However, the reoffending figure for those who are on suspended sentence orders with conditions is 22%.

Meanwhile, the cost of this is £47,000 per year per prisoner. The taxpayer should not be forking out for a system that risks further criminalising offenders and trapping them in a merry-go-round of short sentences, so this Government are determined to grasp the nettle and deliver a better approach. We will legislate for a presumption that custodial sentences of less than 12 months in prison will be suspended and offenders will be punished in the community instead, repaying their debt within communities, cleaning up our neighbourhoods and scrubbing graffiti off walls. We can do this more intelligently with modern solutions for a digital age.

I can announce today that we are doubling the number of GPS tags available to the courts, to ensure that offenders can be monitored, to track that they are going to work and to ensure that their freedom is curtailed in the evenings and at weekends, with robust curfews of up to 20 hours a day. We will make maximum use of new technologies such as alcohol monitoring tags. This will enable us to strengthen and expand successful step-down programmes such as home detention curfews, which we will keep under active review. If offenders breach the terms of their curfew or other requirement of their suspended custodial sentence, or commit another offence, they can be hauled back before the court and forced to serve that sentence in prison.

What we are not doing is getting rid of short sentences altogether. I know from my time as a prosecutor that sometimes that is the right and just option. Prolific offenders who are unable or unwilling to comply with community orders or other orders of the court must know that their actions have consequences, and they will continue to feel the full force of our justice system. Building on our Anti-Social Behaviour Action Plan, the Home Secretary and I are looking at what more we can do to punish those so-called lower-level offenders who are a blight on our communities. For some offenders, the proper sanction is, I am afraid, the clang of the prison gate.

We will also remove foreign offenders who should not be in the UK taking up space in our prisons at vast expense to the taxpayer. There are over 10,000 foreign nationals in our prisons. It cannot be right that some of them are sitting in prison when they could otherwise be removed from our country. That is why we will extend the early removal scheme so that we have the power to remove foreign criminals up to 18 months before they are due to be released—up from 12 months now—getting them out of the country early and no longer costing taxpayers a small fortune.

To support that, more caseworkers will be deployed to speed up removals, and the Home Office will also look at measures to do more to remove foreign nationals accused of less serious crimes more quickly. We will continue to strike new prisoner transfer deals like the one agreed with Albania, ensuring that criminals from overseas serve their time at home rather than in Britain. We will bring forward legislation to enable prisoners to be held in prisons overseas—an approach taken by Belgium, Norway and Denmark in recent years.

More must be done to stop people spending long periods waiting in prison for their trials. As I have set out, there are now more than 15,000 defendants on remand in our prisons. Remand decisions are properly for independent judges, but we will consider whether to extend the discount to encourage people to plead guilty at the first opportunity. When more offenders plead guilty, that saves time in the courts and cuts the number of people in our prisons on remand. Most importantly, it saves victims the ordeal of giving evidence in court.

We will also review the use of recall for offenders on release who infringe the terms of their licence. It is right that ex-prisoners who commit new crimes or serious breaches while on licence should be returned to prison. We want to ensure that the system is working effectively to mitigate any risk posed by offenders while not having people in prison on recall longer than necessary.

I turn to IPPs. We will take decisive action to address sentences of imprisonment for public protection. We put a stop to these discredited sentences a decade ago, but there remain around 3,000 IPP prisoners in custody despite their original tariff expiring years ago. IPPs are a stain on our justice system, so I am looking at options to curtail the licence period to restore greater proportionality to IPP sentences in line with recommendation 8 of the Justice Select Committee’s report, and I will come back to the House on that in due course. This will not compromise public safety. Those found by the Parole Board to pose a risk to the public will not be released.

In conclusion, as I have set out, we are taking decisive action to make our prisons work better in the long term. We are building more prison places than at any time since Disraeli was speaking from this Dispatch Box. We are rolling out hundreds of rapid deployment cells across the country to increase immediate capacity. We are going further and faster than ever before to remove foreign criminals from our prisons.

To govern is to choose. We choose to lock up the most dangerous criminals for longer to protect victims and their families. We choose to reform the justice system so that criminals who can otherwise be forced into taking the right path are not trapped in a cycle of criminality. This is the right long-term plan for our justice system, and I commend this Statement to the House”.

--- Later in debate ---

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

My Lords, I welcome this Statement, in part at least, and I thank the Minister for making the time to discuss it with me yesterday. However, we profoundly regret the circumstances in which it came to be made.

At last, the Government recognise the disgraceful state of our prisons—with a current population of 88,000 and only 500-odd places unfilled across the estate and with serious overcrowding within that population. It is not all down to Covid, more remand and recall prisoners and industrial action. Indeed, the Statement itself points out that the prison population in England and Wales has nearly doubled over three decades. That is made worse by serious understaffing, dismal morale and, in consequence, a failure to recruit and retain enough prison staff.

Some of these measures we have long been calling for. We welcome the presumption against damaging short sentences, which are shown to be hopelessly ineffective, with sky-high reconviction rates and no chance of addressing mental health and addiction issues or training or preparation for employment. We welcome recognition of the need to concentrate on rehabilitation and reform and greater use of community and suspended sentences, but these must be supported, as the noble Lord, Lord Ponsonby, said, by probation and community services that are fully resourced and in overall operation.

However, much of this Statement just sets out panic measures from a panicked Government who have simply run out of prison space, despite all the warnings: doubling up in already overcrowded cells; the so-called “rapid deployment cells”, which the noble Lord, Lord Ponsonby, called portakabins—read “makeshift prefab temporary cells” with, importantly, no extra supporting services; cancelling maintenance projects that are essential to improve squalid conditions; and indiscriminate 18-day early release determined by the location where the prisoner is serving, not the prisoner’s suitability. Even worse, we are still resorting to using police cells, which are totally unsuitable for housing prisoners.

This Statement talks of giving the least serious, low- risk offenders a

“path away from a life of crime”.

However, all prison sentences should offer that—and to extend the metaphor, such a path needs to be properly planned, well supported and fully paid for, not just hurriedly hacked out of the undergrowth, to find a way out of a mess.

The long-term prison building plan is now way behind schedule, so I ask the Minister some questions about the Government’s plans for the medium term. Given that sentence inflation is in part fuelled by government policy, do they have other plans to reverse the inexorable rise in the prison population? What proposals do they have to cut the backlog in the courts to reduce the overload from remand prisoners? What exactly is proposed for an urgent end to the disgraceful extended incarceration of IPP prisoners? What changes are proposed to target recall—to moderate its use, which is often unmerited and should be specific and only used when needed? How do the Government propose to avoid shuffling prisoners around the prison estate to fill every available space, without regard for prisoner needs and welfare—in particular, the need for contact with their families and communities before release?

More importantly, what greater resources are proposed for the probation services so that community sentences work? The Statement claims credit for a past increase in funding but says nothing about the extra funding that will be needed to meet the increased demand resulting from these measures.

[Lord Bellamy (Con)]

My Lords, I will deal as best I can with the points made. Hospital pass or not, the Government have to deal with the situation in which they find themselves. On the question of how we got here, the Government have embarked on the largest prison-building programme since Victorian times. To answer the specific questions, I say that Five Wells is open, Fosse Way has recently been opened, Millsike is under construction and I think three other prisons are currently embroiled in the planning process. However, we have spent £1.3 billion on prison construction and at some point the society in which we live has to ask itself, “How much money? Where is the balance to be struck between prison building and other approaches?”

In addition to the various measures I mentioned, including the so-called portakabins or rapid deployment cells, which have proved an important means of ameliorating conditions in some prisons, the Government have taken quite a number of actions and we have done our utmost to keep the available capacity to meet the need, despite the unprecedented pressure arising mainly from the remand population, without which I do not think we would have the problem that we have. Therefore I respectfully defend the Government’s record in this regard.

As regards the very important question of the Probation Service, which both noble Lords raised, it has needed additional resources and, frankly, a degree of rebuilding in the last years, which the Government have been doing their best to do. We are expending an additional £155 million a year on the Probation Service, and I am told that we have exceeded the recruitment target in each of the last three years and recruited 4,000 trainee probation officers over the last three years. Of course, recruiting a trainee probation officer does not mean you immediately have a fully fledged, experienced probation officer at hand to take on very difficult tasks. I accept that from this House, which very much knows what it is talking about, but the Government are in the process of strengthening and rebuilding the Probation Service, which—to answer the question I think from the noble Lord, Lord Ponsonby —will indeed be, and has to be, an integral partner in the new programme.

As the noble Lord pointed out, there will still be cases where there is no alternative to a short sentence of less than 12 months, in which case the presumption is rebutted. Let us hope that, in recalibrating and reorientating the culture, that really is the last resort and that the number of short sentences declines dramatically. The figures speak for themselves, with 55% reoffending on short sentences but only 22% reoffending on suspended sentences with proper conditions that are properly enforced and calibrated to that particular offender. Those are striking facts. The Government’s hope and intention is that we move towards the latter from the former. I venture to suggest that noble Lords would not disagree with the general direction of travel that I have tried to convey.

As to the question of the delay in sentencing that was reported last week, this announcement came from the judiciary. It is indeed up to the judiciary to deal with sentencing, but I anticipate that the need for any delay in sentencing will diminish fairly rapidly after our intermediate step relating to the early release from custody subject to licence, so that we can get back to normal management and the courts no longer have to worry about whether there is sufficient prison capacity. I hope that becomes a temporary problem and is no longer of concern.

As regards foreign national offenders, I cannot give the noble Lord an exact estimate of what difference the change in the period from six months to 18 months will make. We also need to uprate the Home Office team that deals with this and reorganise the relevant procedures, but it should result in at least some numbers, which I am not able to clarify. I can do further research and write to him if that would be useful. If you can imagine 10,000 out of 88,000, that is a very substantial number of foreign national offenders in our system. We should be able to do something effective to reduce that pressure, not least with agreements such as that with Albania for prisoners to serve their sentences in their home jails.

As far as the extradition cases are concerned, I am obviously not able to comment on any specific cases, whether from Germany, Ireland or elsewhere. I respectfully disagree with the idea that there is a difference between a quality issue and a capacity issue because I think capacity and quality are intertwined, especially if there is a problem with overcrowding et cetera, but the Government’s position is that our prisons are fit and decent from the point of view of our request to extradite persons to this country, and I anticipate that these reforms will enable us further to reinforce the fitness and decency of the prison estate in this country.

As far as the noble Lord, Lord Marks, is concerned, again no Government would have wished to be in this position, but we have to deal with it as it is. The measures that the Government have taken on employment and rehabilitation, which include, as I think I have said on previous occasions, employment boards in each prison with local employers—there is more or less a jobcentre in Berwyn prison in Wales—the provision of 12 weeks’ accommodation and the digital passport with a bank account, a national insurance number and so forth, have led to a substantial improvement in rehabilitation and a drop in the reoffending rate from about 32% a few years ago to just under 25% now, which is some progress in very difficult circumstances bearing in mind the kinds of prisoners one is dealing with.

We will come back to IPP. In the medium term let us progress with these reforms and keep them under review. We will now be reporting to Parliament annually, so that will give a new and more transparent opportunity to develop and share the problems, which I venture to suggest are problems that we ought to share rather than problems that are of—shall I say?—a party-political nature.

[Lord Wigley (PC)]

Is the Minister aware of the very serious problems concerning the recruitment and retention of staff at HMP Berwyn, at Wrexham, one of the newest prisons and the second largest in Europe? It is reported that the staff will not stay because working conditions are intolerable. What are the Government going to do to remedy this?

[Lord Bellamy (Con)]

My Lords, I am not in a position today to comment specifically on Berwyn. I had understood that there are many aspects of Berwyn that have been outstandingly successful. I will write to the noble Lord with more detail in response to his question.

[Lord Bradley (Lab)]

My Lords, I declare my interest as chair of NHS England’s non-custodial advisory board. I welcome the plan to significantly reduce short-term sentences and replace them with community sentences. Currently, a rollout of community sentences with mental health treatment orders is under way across the country into every court. However, to give further confidence to the judiciary, will the Minister ensure that there is a significant increase in capacity not only in the Probation Service, about which we have heard, but in mental health provision, both primary and secondary, as well as alcohol and substance misuse services, to ensure that people can successfully complete their community sentence?

[Lord Bellamy (Con)]

My Lords, it is undoubtedly the case that there are many offenders in the criminal justice system who have severe mental health problems. I very much welcome the noble Lord’s reference to the national programme in relation to mental health treatments and I fully agree that this is a matter to which we need to pay the closest attention. I will certainly discuss with colleagues in the DHSC how we increase capacity to give judges the necessary confidence.

[Lord Bourne of Aberystwyth (Con)]

My Lords, my noble and learned friend is to be congratulated on a very wide-ranging Statement. I have two very short questions to put, if I may. One relates to the prison building programme. My noble and learned friend referred to 20,000 additional places. Has there been any slippage on provision of those places, perhaps partly as a result of the Covid pandemic? I would be very grateful if he could provide some detail of when those places will come on board.

Secondly, my noble and learned friend quite rightly stressed the importance of strict sentencing with regard to crimes of violence and where there is a danger to the public. In relation to rehabilitation, which he also rightly emphasised as being important, provision by the courts of community service orders—which are the main vehicle for delivering that—has slipped by more than half in the last 15 years. What are the Government doing to make sure that that level of use increases over the coming months and years?

[Lord Bellamy (Con)]

My Lords, there has been some slippage in the prison building programme, mainly as a result of difficulties with planning. As the Lord Chancellor indicated in the Statement, there is a renewed push to find new sites and reinvigorate that programme. I am afraid that I cannot give the noble Lord any specific dates but, as the Statement indicates, it is very much part of the general package. As far as rehabilitation and the decline in community service orders over the last 10 or 15 years are concerned, that may well be connected to the problems that we have had in the Probation Service. I would not presume to say either way but, as I ventured to suggest a moment ago, we are doing our best to restore the Probation Service to its detailed place within the system. A renewed Probation Service will be an integral part of the new programme; the service is currently reconsidering its orientation and the deployment of its resources to support the Statement that the Government have just made.

[Baroness Butler-Sloss (CB)]

My Lords, I welcome what the Minister has said, so long as it is actually carried out; implementation seems to me to be the most important part. On dealing with often persistent but not particularly serious crimes by drink and drug addicts, have the Government thought of building, or creating, residential places for these offenders, along with a probation order, so that if they do not comply with it, they would go to prison?

[Lord Bellamy (Con)]

My Lords, I would need notice of that question. I will write to the noble and learned Baroness with respect to the place of residential places in the criminal justice system. Certainly, the focus on dealing with alcohol and, indeed, drugs is very much on the Government’s mind at the moment. One development in GPS tagging is that you can use it for alcohol detection as well—that is a further arrow in the quiver, as it were, to deal with this problem—but the noble and learned Baroness’s question is entirely apposite, as always.

[The Lord Bishop of Sheffield]

My Lords, nine days ago it was my privilege to lead Sunday worship at HMP Doncaster, where I was reminded by the chaplain that many faith communities and charities do excellent work supporting newly released prisoners as they resettle into their communities, with a demonstrably positive impact on reoffending rates. What more can be done to support such projects?

[Lord Bellamy (Con)]

The Government very much welcome the contribution that local agencies and other organisations make towards rehabilitation and will continue to take advantage of all the opportunities that arise. If I may trouble your Lordships anecdotally for a moment, I met a man the other day who had been a remand prisoner in Winchester prison. He had been acquitted, so he was free. I asked, “What was your experience in Winchester prison?” He said, “I did very well, actually, because I was able to take the IT course that they offered. I can now do an Excel spreadsheet and a Word document, and I regard it as having been a positive experience”. So it is not all doom and gloom.

[Lord Farmer (Con)]

My Lords, I welcome the Statement, which avoids the trap of penal populism and combines proportionality with pragmatism. However, its three crime prevention strategies are all downriver. Can the Minister explain what the Government are doing to prevent crime before people offend in the first place, especially in the area of strengthening families—a quarter of our prison population were in local authority care—and reducing father absence, since 70% of young offenders grew up in lone-parent families? Lastly, how are the Government ensuring that families of prisoners get the help they need in the community in order to reduce intergenerational crime? Some 60% of children of convicted parents go on to offend themselves.

[Lord Bellamy (Con)]

My Lords, as always, my noble friend makes a powerful point about the importance of families, both in avoiding crime in the first place and in supporting criminals who later return to the community. The Government’s general approach to supporting families is very much at the centre of our wider view of this particular landscape, particularly through the DfE’s Supporting Families programme, the family hubs, family courts and particularly the FDACs. The noble Lord’s points are well taken and will certainly be borne in mind as we continue.

[Lord Dholakia (LD)]

My Lords, the Minister rightly draws attention to the remand prisoner population, which is considerably high in this country. Has he looked at the international dimension and asked himself the simple question: why is it possible for countries such as Germany to regulate their remand population while we are looking at sky-high figures? First, does he agree that less use of remand in prison would have a tremendous impact on our prison population? Surely the courts should send to prison only those whose offending makes any other course unacceptable. Secondly, those who are sent to prison should not stay there any longer than necessary.

[Lord Bellamy (Con)]

I am not in a position to draw any comparison with Germany or any other country. However, I am bound to say that we need to learn as much as we can from the experience of other countries, so I take the noble Lord’s point on that. I fully agree that no one should be in prison for a moment longer than they need to be.

[Baroness Watkins of Tavistock (CB)]

My Lords, there appears to be a significant disparity between the fines levied on people who broke the Covid regulations, particularly for people under 30. Many of them have yet to complete paying their fine. Can the Minister indicate whether His Majesty’s Government will consider an amnesty for unpaid fines, and possibly a rebate for those over £1,000, in order to ensure that no one is imprisoned for the non-payment of fines, further increasing the population in prison?

[Lord Bellamy (Con)]

My Lords, as your Lordships will understand, I cannot comment on particular cases in which fines for Covid infringements have been levied, nor am I in a position to say that the Government are considering any amnesty in relation to any such fines.

[Lord McLoughlin (Con)]

My Lords, one of the figures that I found most disturbing in my noble and learned friend’s Statement was the increase in prisoners on remand, from 9,000 to 15,000. Bearing in mind the cost of keeping somebody in prison before they have been convicted, what action are the Government taking to bring these very disturbing figures under control and get them down substantially?

[Lord Bellamy (Con)]

The main effort in getting remand numbers down is to do everything possible to accelerate the process in the Crown Court. We have recruited over 1,000 new judges and increased legal aid. We are doing our very best to progress those cases through. As to whether particular prisoners are on remand in the first place, as distinct from being on bail, that is a decision for the judiciary.

[Lord Swire (Con)]

My Lords, in answer to a Written Question of mine, my noble and learned friend the Minister said on 27 March:

“As of 31 December … there were 9,797 Foreign National Offenders”.


He has announced today that that figure has now increased to be nearer 10,000, so I very much welcome his determination to do something about this. It should be said that in the 12 years between 2010 and 2022, 22,707 foreign national offenders were returned, which is a pretty slow rate. Does the Minister not agree that there needs to be a cross-departmental task force to deal with the return of foreign national offenders and address issues such as translators in jails, the countries of origin and particularly the legal profession, which has so often thwarted attempts to repatriate some of these prisoners?

[Lord Bellamy (Con)]

My Lords, I fully agree that there needs to be close interdepartmental co-operation in dealing with this difficult issue.

[Baroness Hamwee (LD)]

My Lords, there are many reasons why community sentences may be far preferable to custody, but they do not come without cost. They are more complex than

“cleaning up our neighbourhoods and scrubbing graffiti off walls”,

in the words of the Statement. I think the Minister agrees that services for treatments to address the mental health and addiction problems of many offenders, generally provided by the third sector, must be properly resourced, widely available and centred on each individual. The Justice and Home Affairs Committee of your Lordships’ House, which I chair, has heard evidence of their underfunding alongside the overloading of the Probation Service, which is very reliant on inexperienced staff. Can I urge the Minister and the MoJ to have consultation with the treatment providers? I commend to him the quite detailed written and oral evidence which has been given to our committee.

[Lord Bellamy (Con)]

My Lords, I am sure the evidence before and the conclusions of the committee will be borne well in mind.

[Lord Hogan-Howe (CB)]

My Lords, although I support the Government’s general bid, which is to reduce the prison population—it is too high, as the noble Lord, Lord Dholakia, said, and we could probably be safer even if some people were let out of prison—I do not think that the Statement is entirely persuasive in a couple of areas. First, it did not give an impact assessment of the compound effect of the Government’s measures. What will the prison population be in 12 months if all these measures are implemented effectively? The second thing that worries me is about the group of people who will now have to serve the full term of their prison sentence, some of which we can entirely understand. If you extend that list, how do those in the Prison Service easily do their job? They have to have some hope that the people who they are trying to control could have a shorter sentence if they behave well. If that list grows, what happens is that people who are in prison have no incentive to behave well and the only people who can control them are the prison officers, which makes a difficult life even more difficult.

My final point is that I do not entirely agree with the Minister’s analysis of the growth in the prison population. Covid has certainly played a role, but the prison population was accelerating well before Covid. The two aggravating factors have been the sentencing guidelines—which are always inflated and never reduced, because there is no public clamour for less sentencing, even if it is not effective—and the parole conditions. Those are the two things that have caused the prison population to expand. I am afraid that, if we carry on at the rate we are, it can only get worse. Although the Sentencing Guidelines Council is not a government-backed issue, it is something that they can affect.

[Lord Bellamy (Con)]

My Lords, I will take the last point first. Clearly, sentencing guidelines ought to be kept under constant review. At some point, as I said earlier, the whole approach to prison and its alternatives needs to be rethought, and perhaps fairly fundamentally. The whole debate on how much we spend on building prison capacity and how much we spend on support in the community is one that we should have together; the Government do not disagree with that.

On the noble Lord’s question about what effect these measures will have, I cannot give him any immediate figures. The short-term measures should certainly manage the short-term problem; the longer-term measures will, over time, I hope, reduce the prison population. As to it making life more difficult for some because of an increase in the number of longer sentences, I think that is an operational matter that HMPPS will, I hope, be well-equipped to deal with.

[Lord Marlesford (Con)]

My Lords, I am sure the Government are right in thinking that the expansion of community service is a very cost-effective way of reducing the prison population. The problem is in its implementation. It needs a great deal more vigour and rigour, but above all else imagination. I suggest that the Government set up an inquiry to look at world practices of community services, so that we learn from what is done throughout the world and have something much more imaginative than there is at the moment. It is not, as another noble Lord said, a matter of picking up litter. There is such scope for community service, and we are not scratching the surface.

[Lord Bellamy (Con)]

My Lords, I am sure that a comparative study of the kind my noble friend mentions would certainly be a valuable exercise. I remember some years ago the former Lord Chief Justice, the noble and learned Lord, Lord Phillips of Worth Matravers, went on a community service course. He pretended he was a convicted solicitor and turned up on a Saturday morning with other people. I think he came away somewhat perplexed by the complexity of organising community service. You need quite a lot of intensive resources, and, as the noble Baroness pointed out a moment ago, it is quite expensive and difficult to do. Everybody thinks it is a good thing, but how we deliver it is for further discussion.

[Baroness Burt of Solihull (LD)]

My Lords, in the spirit of helpfulness, I wonder if I can help the Minister with his overcrowding problem. As the Statement said, there remain about 3,000 prisoners who have been sentenced to indeterminate sentences—a sentence that was abolished over 10 years ago. The Minister’s announcement in the Statement that there will be a cutting of the licence period for IPPs—a recommendation of the Justice Committee—is very welcome. Could the Minister cut the numbers on the prison estate much further if he implemented the main recommendation of the Justice Committee report to resentence those 3,000 people who are suffering the daily torture of uncertainty, not knowing when their prison sentence will end? Could the Minister look at that during the Victims and Prisoners Bill?

[Lord Bellamy (Con)]

My Lords, it is the Government’s position, as I have set out, that the resentencing exercise is not the answer. All the prisoners of which we speak are there because the Parole Board deems them unsafe for release. The Lord Chancellor’s Statement mentions the possibility of some fairly drastic reforms to the licence period. I am sure we will return to that, and to the point of the noble Baroness, in more detail when the Victims and Prisoners Bill reaches this House.

Courts (Prescribed Recordings) Order 2023

Lord Bellamy Excerpts

Thursday 14th September 2023 Lords Chamber

Moved by

[Lord Bellamy]

That the draft Order laid before the House on 17 July be approved.

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

My Lords, this draft instrument relates to both transparency and security in our court system. Generally, and for good reason, there is a statutory prohibition on photography and audio recording within court buildings. Photography is prohibited under the Criminal Justice Act 1925, and audio recording is prohibited under the Contempt of Court Act 1981. More recently, Section 32 of the Crime and Courts Act 2013 permitted certain exceptions—your Lordships will probably have seen sentencing remarks being broadcast recently in the Crown Court and live-streaming by the Court of Appeal, and there are some other examples. This statutory instrument deals with security and transparency, and it is made under those powers, building on the existing exceptions.

There are four aspects to the statutory instrument. The first is CCTV in court buildings, which is in Articles 5, 6 and 10 of the instrument. CCTV clearly plays a most important role in the safety and security of those who work in, or visit, our courts. The instrument ensures that the continued use of CCTV cameras in court precincts—but not courtrooms—is fully authorised and lawful. Indeed, there is currently CCTV in many court precincts. That is thought to be perfectly lawful, but this statutory instrument puts the issue beyond doubt, in case any issue ever arises in that connection.

The second aspect, in Articles 7 to 9 of the statutory instrument, relates to the use of body-worn video by operational staff. This is already common practice outside court buildings, but there is a legal issue as to whether body-worn video cameras can be lawfully worn within court precincts. Of course, such cameras are worn regularly by those who have to deal with potentially dangerous and difficult situations, such as police officers and prisoner escort staff, particularly staff from the prisoner escort and custody services transporting prisoners to and from the court.

There was a pilot scheme in 2017-18 to pilot the use of body-worn video within court precincts. There was a doubt at that time over the legality of the practice, so it was paused and then the pandemic somewhat overtook events. This provision deals not only with prisoner escort and custody staff but with police officers and court and tribunal security staff. Noble Lords will be aware that wearing body-worn cameras is now common practice in the police force, including when officers are authorised to carry Tasers, in which circumstances they are mandated to wear body-worn video. These updated provisions provide for body-worn video to be worn in the court context, but I emphasise that under Article 9 of the instrument, the body-worn video is not switched on unless there is a security alert or an escape.

The third provision is, I hope, an extremely innocent one. It is the practice in adoption cases for a photograph to be taken of the judge, who robes up for the occasion, with the family. Just in case anybody were ever to challenge that practice, this instrument makes it perfectly clear that photographs taken on that occasion are fully authorised, despite the statutory prohibitions on photography in court buildings.

Lastly, the instrument corrects a small omission in the previous order, the Crown Court (Recording and Broadcasting) Order 2020, which authorised circuit judges and certain others, including High Court judges, to have their sentencing remarks filmed and broadcast. What that earlier order did not quite provide for was the situation that occasionally arises in which the judge sitting in the Crown Court is actually a Court of Appeal judge. That was the situation in the lamentable case of Wayne Couzens, who pleaded guilty to murdering Sarah Everard, which was presided over by a Court of Appeal judge, Lord Justice Fulford. The order amends the earlier instrument to make sure that we have included Court of Appeal judges.

I hope this is relatively straightforward. All stakeholders have been consulted, the Lord Chief Justice has given his assent and I commend the instrument to the House.

[Lord Ponsonby of Shulbrede (Lab)]

My Lords, I am very happy to say that we support the statutory instrument and the various changes that the Minister outlined. I will just give a couple of comments and anecdotes. The first concerns CCTV in court precincts. I sat on the case—the only time I sat with the Chief Magistrate, as a winger, a magistrate—of a tribunal judge who had been assaulted in the courtroom. Of course, there was no film of that assault, but there was CCTV of the corridors approaching the courtroom, and from that we could see people going in and out, we heard the evidence and we reached our determination. It turned out that the person we convicted of assaulting the judge questioned the CCTV and was looking for the sources of it. The CCTV was able to be provided and we went ahead and convicted the defendant.

I have another small point on which I cannot resist picking up the Minister. On his third point about adoption cases, it is not just judges who do adoptions; magistrates also do them in family courts, and I have done a number myself. They were very happy occasions, and we took many photographs for the records of the families concerned. Nevertheless, we welcome all the minor changes outlined by the Minister and, on that basis, we accept the SI.

[Lord Bellamy (Con)]

I stand entirely corrected by the noble Lord, Lord Ponsonby, in relation to magistrates, whose work I have paid enormous tribute to on previous occasions, and I do so again. We entirely depend on our extremely important lay magistrates and I apologise for the omission, which was correctly drawn to your Lordships’ attention. I comment the instrument to the House.

Motion agreed.

Lord Chancellor and Law Officers (Constitution Committee Report)

Lord Bellamy Excerpts

Thursday 20th July 2023 Grand Committee

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

My Lords, I first thank the noble Baroness, Lady Drake, for securing this debate, all noble Lords who have contributed to our discussions this afternoon and, in particular, the noble Baroness and the members of her committee for producing such a valuable report, which has been rightly praised today in this debate and by the Attorney-General recently in another place. It is refreshing to have a report that so carefully examines important questions, hears some very distinguished witnesses and concludes in several instances that the case for major change is not made out, albeit rightly stressing the need for vigilance and for incremental improvements in the system.

I shall first make some general observations about the concept of the rule of law, then comment briefly on the respective roles of the Lord Chancellor and the law officers and finally deal with some other points raised by noble Lords this afternoon. I first disclose, as I should, my own close involvement with the foundation of the Bingham Centre for the Rule of Law, which was established in 2010 within the British Institute of International and Comparative Law in honour of Lord Bingham. The first director of the Bingham Centre was Sir Jeffrey Jowell QC, who was appointed only a few days before Tom Bingham’s untimely death. That centre, which I am glad to say continues to thrive, was set up not only to honour Lord Bingham but to better articulate, defend and promote education about the rule of law. I emphasise “education” since the co-founders, including me, saw above all a constant need to better explain and educate society in the fundamentals of the rule of law. That is a mission that we should all encompass and promote, including the Constitution Committee.

As to the fundamentals, “the rule of law” is a phrase that easily trips off the tongue, but, as the committee rightly points out, the exact extent of the concept is a matter for debate. I was somewhat relieved and pleased to hear that what I am citing is exactly what the noble Lord, Lord Hennessy, referred to, namely our 16th century friend Thomas Fuller’s famous words:

“Be ye never so high, the law is above you”.


That is surely the core of the matter.

In other words, the Government and all citizens, however powerful, must obey the rule of law. The law of the land is decided by Parliament or by common law and is administered in public by a judiciary that is independent, fearless and incorruptible. Decisions will be not arbitrary but authorised by law and within powers legally conferred. In the words of the judicial oath, the judges

“will do right by all manner of people”

according to law. Those judges are appointed on merit, not on political or other suspect grounds, and they have commensurate security of tenure—a most important point. The security of tenure of the judiciary is the foundation of any legal system. Of course, the orders of the court will be as fully obeyed by the Government as by any other citizen. There should be no doubt about that, even though, formally speaking, there is no coercive power of enforcement again the Crown.

So described, as a number of your Lordships have said this afternoon, the acceptance of such a system by society depends on the people’s trust in and respect for the judiciary and the knowledge that the courts will not hesitate to find against the Government where necessary and that the Government will accept the ruling and not change the law without the authority of Parliament.

That is not in any sense a nebulous concept. Your Lordships, sadly, well know how many countries in the world struggle to get anywhere near that standard. Indeed, I venture to suggest that, in this core sense, the rule of law is at least as strongly entrenched in this country as anywhere else, and has historically been and still is a beacon to many. It is in the public consciousness, if you like, and the DNA. It is in the education and culture of the legal profession; the law officers; Treasury counsel and the many barristers who are part of the Attorney-General’s various panels of advisers; the Government Legal Service, including departmental lawyers; and indeed, it is fully in the minds of the mainstream public civil servants as well.

The crucial point is that all public authorities know that their acts are susceptible to legal challenge and to being subjected to close scrutiny by, if I may say so, judges of outstanding integrity and competence. Having over the years had the privilege of working in or alongside other legal systems in various parts of the world, I respectfully suggest that there are few if any countries where the Government and public authorities are so susceptible to prompt and effective legal challenge. I add—and many noble Lords have seen this unfolding over the years—that we have come a very long way in the past 50 years or so. To be personal for a moment, when I first started at the Bar, judicial review hardly existed. The Government’s legal adviser consisted of one Treasury devil. Former Attorney-Generals were still on the Bench, having enjoyed the sinecure that then went with the office of a nice judicial appointment at the end of your period as a law officer.

We have come a very long way since those days in the 1940s and 1950s. The then judiciary would not have challenged the Labour Government under any circumstances—but the culture of challenge to the Government has developed and extended and is in my submission alive and well. I suggest that the organisations, structures and people I have mentioned collectively represent, or closely approximate to, the bell tower to which the noble Lord, Lord Hennessy, referred. There are enormous checks and balances in the system—one sees it every day as a Minister when submissions cross one’s desk and, in every part of government, the requirement to effect the rule of law and the legal framework is in the front of mind. That is the essence of the matter.

One can debate the further content of the rule of law but it would take too long to formulate the various aspects of it, and we have the principles formulated by Lord Bingham, promoted by the committee at paragraph 33. This is not actually my signed copy of The Rule of Law but it is a copy, and it is a remarkable work of exploration and articulation of what we are talking about. However, whereas in this Room we are subject to a picture of the tablets of stone coming down from the mountain, the eight principles of Lord Bingham are not quite yet the eight commandments, if I may say so. They are articulations of principles that need to be debated and elaborated on as the years go by.

If I may, I shall say a few words on one of the most difficult issues, on the international law point—and it is a difficult issue. The Government entirely accept the principle that international obligations should be observed. Indeed, that principle is the cornerstone of a rules-based international order, and plainly in the interests of the United Kingdom. However, it does not follow that international obligations should be justiciable in the courts in the way that I have just described unless Parliament has said so, as the committee rightly recognises at paragraphs 52 and following, particularly as explained by the sadly late Lord Brown of Eaton-under-Heywood in the cornerstone case. There are many other cases to the same effect.

It follows that one cannot automatically treat international obligations not forming part of domestic law as having exactly the same status as if they did. We are dealing here with relations between states. As I think my noble friend Lord Howell pointed out, these are circumstances in which a Government must have a margin of appreciation and must in particular have regard to the views of the national electorate from which alone the Government derive their authorities. Difficulties on the international plane typically arise where: relations have broken down; dispute solving or treaty amendment mechanisms either do not exist or are ineffective; the exact content of the relevant international law is unclear or debatable; circumstances have fundamentally changed since the relevant obligations were entered into; or unforeseen difficulties have arisen and other state parties refuse to recognise or choose to take unreasonable advantage of those changes of circumstance. In those circumstances any Government must, as a very last resort, have the ability to have regard to the public interest, while recognising the need to act as far as possible within the recognised parameters generally accepted in international law.

If I may say so in passing, the difficulty is illustrated in particular in relation to circumstances such as the Iraq war. The then Attorney-General, the noble and learned Lord, Lord Goldsmith, advised the Government that it was a lawful exercise of the Government’s power. The late Lord Bingham, in his eighth principle, disagrees with that. That is a classic example of how difficult it is sometimes to know what is right, what is wrong and where the line should be drawn in the international sphere. Sometimes Governments have to act in the national interest. That is all I will say in general terms about the concept of the rule of law and the importance of it in our constitution, which is entirely recognised by the Government.

I turn to the position of Lord Chancellor. I first suggest that the 2005 reforms have been, on the whole, astonishingly successful. The key to those reforms was the creation of the Supreme Court and the separation of the functions of the legislature, judiciary and Executive. The Lord Chancellor, as the noble Lord, Lord Wallace, pointed out, was a defiant embodiment of the rejection of the doctrine of separation of powers, combining in his own person legal, judicial and executive authority. The establishment of a separate Supreme Court and the Judicial Appointments Commission was substantial progress.

The question then is whether the current role of the Lord Chancellor is satisfactory, combining the functions of the Ministry of Justice with what is described somewhat bleakly in the 2005 Act as the Lord Chancellor’s existing constitutional role in relation to the rule of law. In that context, I respectfully slightly caution against a somewhat rose-tinted view of what went on in the past. Within living memory, Lord Chancellor Viscount Kilmuir advised the Prime Minister of the time Anthony Eden that the Suez invasion was perfectly legal, in defiance of the contrary advice from the then law officers. Viscount Kilmuir then proceeded to sit as a judge so disastrously that legislation was immediately introduced to reverse his leading judgment in the case DPP v Smith. There are other examples to that effect.

I remind the Committee that, although we all admire and respect Lord Mackay of Clashfern, relations between the Lord Chancellor and the legal profession broke down entirely when he attempted to introduce legal aid reforms, replacing hourly rates with fixed fees. Relations later broke down entirely between him and the then Lord Chief Justice, Lord Lane, when he successfully introduced solicitors’ rights of audience in the higher courts, which Lord Lane thought was the beginning of a fascist state, remarking that insidious progress does not necessarily come with a swastika on the armband but by other routes. The history of this office is not entirely clear, and we need to bear that in mind.

The overriding conclusion to which the committee rightly came—and with which the Government entirely agree—is that what is important is not so much whether the Lord Chancellor is a lawyer or a senior legal figure but the character, intelligence, integrity and commitment of the individual concerned. The Government would not necessarily accept that it is desirable in all circumstances for the Lord Chancellor to be a lawyer. One of the most influential Lord Chancellors in recent years was my right honourable friend Michael Gove MP, who introduced a significant and long-overdue programme of digitisation of the court system. He was a highly practical Lord Chancellor who got things done and was not in any sense susceptible to a perception of capture by the legal profession. He was not at all conservative, which many senior lawyers tend to be, if I may say so with respect to the many senior lawyers in the Room. In the Government’s view, it is about the character of the person rather than whether in some distant stage of the past they achieved a formal qualification which now enables them to call themselves a lawyer.

On the perfectly legitimate question of how this part of government machinery should be organised—whether the Ministry of Justice and the Lord Chancellor should have responsibility for prisons and probation as well as for the courts and other aspects—the Government respectfully agree with the committee’s conclusion that the case for change is not entirely obvious, although a future Government or Prime Minister will no doubt reconsider. They are now integrated and there is a huge cost to changing political and administrative structures within government once again. There is a logic to having courts, probation and prisons together. You must have probation and prisons together because they are now integrated under one roof much more than in the past. When you have a Criminal Justice Act, it will typically deal with sentencing, prisons, court processes, rehabilitation and so forth.

There is an internal logic to doing it, but it would be for any new Prime Minister or Government to consider. With respect to the thoughtful contributions from the noble Lord, Lord Wallace of Saltaire, and other noble Lords, there is a case for considering how we do this in terms of the constitution—whether you want some external body or person and whether they are in the Cabinet or not, and what we do about the constitution in general, as the noble Lord, Lord Norton, was asking.

With an unwritten constitution, the tradition up to now has been to let it evolve. On the whole, it has evolved fairly successfully without anyone trying to sort it all out. For some, it is rather messy—but an unwritten constitution is a bit messy. The test is whether it is working well, and one should not reorganise it for theological reasons or out of tidy-mindedness; one should look very carefully for the right balance, very much bearing in mind the importance of not only the administrative efficiency of government but the best ways to protect the rule of law. In that respect, the rule of law and its associated freedoms are also protected by Parliament, the media, public debate and all sorts of other means, as well as the formal processes through which the Government take their legal advice or decide to act in any particular way.

As for strengthening the Lord Chancellor’s role—if I have understood some of the points made—as someone who is a sort of general watchdog or guardian who in some sense sits on the Prime Minister’s shoulder and whispers in his ear, “No, you can’t possibly do that”, I respectfully doubt whether that was ever genuinely the Lord Chancellor’s role. In his evidence to the committee, Lord Mackay basically said—I paraphrase—“I never advised the Government. I might say to the Prime Minister that you need to take advice on it, but I couldn’t, as Lord Chancellor, actually go into the detail of what the advice should be. There were occasions when I had to tell the Government that they needed to take advice, but the giving of advice is for the Law Officers and Treasury counsel, and holding the Government accountable is ultimately for the courts”.

Respectfully, I wonder whether it would be a useful additional element in our constitution to have a Lord Chancellor who had no other departmental responsibility other than to act as some kind of guardian of the rule of law. I suggest that that would almost certainly be unnecessary, given the very detailed structures and processes we already have to protect the rule of law in this country.

It is perfectly true, and on behalf of the Government I would be the first to accept, that one incident some years ago involving the “enemies of the people” was unfortunate. It was very concerning to the judges involved; the noble and learned Lord, Lord Etherton, is here, listening. From a personal point of view, I have always imagined it a rather frightening—that is possibly not strong enough a word—or at least very unfortunate incident. Certainly, in those circumstances, the whole Government, as well as the Lord Chancellor specifically, need to be able to defend the judiciary.

If I may say so, our experience since suggests that, on the whole, that lesson has been learned. Noble Lords will find very muted comments from the Government on subsequent cases, whether it is the judgment of the Supreme Court in Miller 2, the recent judgment on Rwanda, and so on. We now have a completely different atmosphere. That was an unfortunate lapse, which should not happen. It would be one of the duties of the Lord Chancellor to defend the independence of the judiciary, and I am sure the present Lord Chancellor would undertake it with vigour, sincerity and integrity.

Indeed, if I may say so again, as far as I can see, the current channels of communication between the Lord Chancellor and the judiciary seem to work fairly well. The present Lord Chancellor is well aware of the importance of judicial independence and the efficient operation of the court system. The noble Baroness, Lady Drake, asked whether the Government agree with the observation of the noble and learned Lord, Lord Burnett, that the position of the Lord Chancellor and the relationship with the judiciary need further reflection. Why not have further reflection on this difficult but evolving issue? There is no reason not to continue to further reflect on these matters.

In that context, one other question that I was specifically asked was whether the updating of the Cabinet Manual will clarify and more clearly define the duties of the law officers. On that point, I am not able to give a full answer today. However, I can say that the Government will review Hansard and consider the ideas that have been raised in this debate and the drafting process in the light of the committee’s report. A draft of the updated memorandum will come to the Constitution Committee and the relevant committees in the other place to consider. That matter will, I hope, be taken forward.

Of course, this becomes a little more difficult in terms of the rule of law. This is very much the case on the international plane but also domestically. Where the rubber hits the road is where the law is not entirely clear, and that is most of the time, actually. It is not the case that everything is entirely straightforward, and that is particularly so in, for example, human rights cases involving social and economic rights, as distinct from classic legal rights under contracts or criminal law. There are many cases where more than one view is tenable. I hesitate to suggest that anything is wrong with the Government’s present legal approach to that difficult situation. Thinking back over one’s career, one has several times lost cases that seemed totally winnable and vice versa. That is the nature of the beast; it is not a science.

Again, to comment briefly from a personal point of view on the suggestion about the Government not putting forward legislation deliberately in breach of international law, yes, there is great force in that. However, possibly the only case where that problem resulted in a legal judgment goes back to the early 1990s, when the Government came under enormous pressure from all parties to save the Cornish fishing industry from the depredations of what was seen as Spanish fishermen illicitly coming on to the British fishing register. This led to the Merchant Shipping Act, which was challenged by the then European Commission. I was led by the then Solicitor-General, and we defended it as best we could. We thought that we were entirely justified in so defending it on the basis of our legal arguments. We lost all down the line, but it raised very starkly the question of what a Government do if they must respond to their electorate on the one hand but find themselves constrained by other rules on the other hand. It is a difficult problem. I respectfully caution against any formal limitation on a Government putting forward to Parliament appropriate legislation in the circumstances.

Have I dealt with everything that I should have dealt with? Forgive me if I have left something out—I am sure that it will be drawn to my attention. Particularly on the thoughtful comments of my noble friend Lord Norton on the constitution, I say that there is scope for further reflection on that. We have the Deputy Prime Minister, and we have different answers and possibly a lack of transparency about exactly who does what. That is something for further reflection. Those are points well made.

Regarding the points made by the noble Baroness, Lady Anderson, it is not the Government’s position that the Illegal Migration Bill will be in breach of our international obligations. That point has been discussed at length in the main Chamber. The independence of the judiciary is not at risk in any sense and is defended quite appropriately under the present system. As I just said, I will revert when I have further and better information on when the Cabinet Manual will be available.

I have done my best to cover everything, and it only remains for me to say again that the Government congratulate the committee on its report and warmly thank not only the noble Baroness, Lady Drake, but everyone who participated in this debate this afternoon.

Illegal Migration Bill

Lord Bellamy Excerpts

Report stage
Monday 3rd July 2023 Lords Chamber

Moved by

[Lord Bellamy]

154: Clause 55, page 58, line 19, at end insert—
“(6) The Access to Justice (Northern Ireland) Order 2003 (S.I. 2003/435 (N.I. 10)) is amended in accordance with subsections (7) and (8).(7) In Article 14 (decisions about provision of funded services), after paragraph (2A) insert—“(2AA) But paragraph (2A) does not apply to a grant of representation for the purposes of—(a) proceedings before the Upper Tribunal mentioned in paragraph 2(ic) of Schedule 2 (proceedings under or for the purposes of the Illegal Migration Act 2023),(b) proceedings before the Special Immigration Appeals Commission under or by virtue of section 2AA of the Special Immigration Appeals Commission Act 1997 (jurisdiction: appeals in relation to the Illegal Migration Act 2023), or under rules under section 5 of that Act made for the purposes of that section, or(c) an appeal to the Court of Appeal or the Supreme Court in respect of proceedings mentioned in sub-paragraph (a) or (b).”(8) In paragraph 2 of Schedule 2 (civil legal services: exceptions to excluded services), after paragraph (ib) insert—“(ic) proceedings before the Upper Tribunal under any of sections 43 to 48 of the Illegal Migration Act 2023, or under Tribunal Procedure Rules made for the purposes of any of those sections,(id) proceedings before the Upper Tribunal on an application for judicial review within the meaning of the Illegal Migration Act 2023 (see section 4(6) of that Act), where the application relates to that Act,”(9) The Civil Legal Services (General) Regulations (Northern Ireland) 2015 (S.R. (N.I.) 2015 No. 195) are amended in accordance with subsections (10) to (14).(10) In regulation 2 (interpretation), in the definition of “representation (higher courts)”, in paragraph (f), after “2(ib)” insert “, (ic) or (id)”.(11) In regulation 31 (applications for advice and assistance)—(a) in paragraph (1), after “Subject to” insert “paragraph (1A) and”,(b) after paragraph (1), insert—“(1A) An application for advice and assistance may be made to a supplier by an applicant by telephone where the applicant is being detained under paragraph 16(2C) of Schedule 2 to the Immigration Act 1971 (detention under authority of immigration officer for the purposes of the Illegal Migration Act 2023) or section 62(2A) of the Nationality, Immigration and Asylum Act 2002 (detention under authority of Secretary of State for the purposes of the Illegal Migration Act 2023).”, and(c) in paragraph (3), after “except where” insert “paragraph (1A),” (12) In regulation 32 (extensions)—(a) in paragraph (1), for “paragraph (2)” substitute “paragraphs (2) and (2A)”, and(b) after paragraph (2) insert—“(2A) No extension shall be required under paragraph (1) if the advice and assistance is advice and assistance mentioned in regulation 4(1)(n) of the Financial Regulations (advice and assistance relating to removal notices under the Illegal Migration Act 2023).”(13) In regulation 41 (applications for certificates)—(a) in paragraph (2), after “Subject to” insert “paragraph (2A) and”,(b) after paragraph (2), insert—“(2A) An application for a certificate under this Part may be made to a supplier by an applicant by telephone where the applicant is being detained under paragraph 16(2C) of Schedule 2 to the Immigration Act 1971 (detention under authority of immigration officer for the purposes of the Illegal Migration Act 2023) or section 62(2A) of the Nationality, Immigration and Asylum Act 2002 (detention under authority of Secretary of State for the purposes of the Illegal Migration Act 2023).”,(c) in paragraph (3), after “The applicant shall” insert “, except where paragraph (2A) applies,”, and(d) in paragraph (3)(b), after “met” insert “(where they apply)”.(14) In regulation 43 (determination of applications for certificates)—(a) in paragraph (1), for “paragraph (2)” substitute “paragraphs (2) and (3)”, and(b) after paragraph (2) insert—“(3) But paragraphs (1) and (2) do not apply to an application for a certificate in respect of—(a) proceedings before the Upper Tribunal mentioned in paragraph 2(ic) of Schedule 2 to the Order (proceedings under or for the purposes of the Illegal Migration Act 2023),(b) proceedings before the Special Immigration Appeals Commission under or by virtue of section 2AA of the Special Immigration Appeals Commission Act 1997 (jurisdiction: appeals in relation to the Illegal Migration Act 2023), or under rules under section 5 of that Act made for the purposes of that section, or(c) an appeal to the Court of Appeal or the Supreme Court in respect of proceedings mentioned in sub-paragraph (a) or (b).”(15) In regulation 4 of the Civil Legal Services (Financial) Regulations (Northern Ireland) 2015 (S.R. (N.I.) 2015 No. 196) (exceptions from requirement to make a determination in respect of an individual's financial resources)—(a) in paragraph (1), after sub-paragraph (m) insert—“(n) advice and assistance provided to an individual who has received a removal notice, in relation to the removal notice, and such advice and assistance—(i) includes advice and assistance in relation to a suspensive claim relating to the removal notice, and an application under section 45(4) of the Illegal Migration Act 2023 as regards such a claim, but(ii) does not include advice and assistance in relation to an application for judicial review within the meaning of the Illegal Migration Act 2023 (see section 4(6) of that Act) relating to the removal notice;(o) representation in respect of—(i) proceedings before the Upper Tribunal mentioned in paragraph 2(ic) of Schedule 2 to the Order (proceedings under or for the purposes of the Illegal Migration Act 2023), (ii) proceedings before the Special Immigration Appeals Commission under or by virtue of section 2AA of the Special Immigration Appeals Commission Act 1997 (jurisdiction: appeals in relation to the Illegal Migration Act 2023), or under rules under section 5 of that Act made for the purposes of that section, or(iii) an appeal to the Court of Appeal or the Supreme Court in respect of proceedings mentioned in paragraph (i) or (ii).”(b) in paragraph (3), at the appropriate places insert—““removal notice” has the meaning given by section 37 of the Illegal Migration Act 2023;”““suspensive claim” has the meaning given by section 37 of the Illegal Migration Act 2023;”Member's explanatory statement
This amendment makes provision about legal aid in Northern Ireland for the purposes of the Bill.

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

My Lords, Clause 55 will ensure that individuals who receive a removal notice under the Bill have access to free legal advice. The clause at present applies only to England and Wales. In Committee, the noble Lord, Lord Ponsonby, properly asked what the position is regarding Scotland and Northern Ireland. The Scottish Government advise that legislative provision is not required to ensure persons issued with a removal notice can access free legal advice in Scotland. Legislative changes are required, however, in Northern Ireland. Amendment 154 ensures analogous provision in Northern Ireland to that already applicable to those seeking legal advice in England and Wales. It is simply an extension to Northern Ireland of the provisions of the Bill. That is the content of government Amendment 154. The noble Lord, Lord Bach, has an amendment in this group and I defer to him at this point. I beg to move.

[Lord Bach (Lab)]

My Lords, I will speak to my Amendment 155, which is in the same terms as it was in Committee. I am extremely grateful to the noble Baronesses, Lady Ludford and Lady Prashar, and of course to the noble Lord, Lord Carlile of Berriew, for putting their names to this amendment and adding some lustre to it. I am also grateful for a superb briefing note from Bail for Immigration Detainees, ILPA and the Public Law Project.

In my view, ensuring that those who are detained have legal advice at an early stage is of fundamental importance. Obviously and above all, it is important to the detainees themselves, but it is also important to the reputation of our much-vaunted legal system. I ask the House to think about it for a moment: the proposition that, in our country, any person, whether adult, child, pregnant woman or victim of trafficking, can be deprived of their liberty and, at the same time, of proper legal advice is horrific, unconscionable and unconstitutional.

Clause 55 provides for insufficient access to civil legal services. It is concerned with free legal advice and representation only in relation to removal notices. It makes access contingent upon receipt of a removal notice and does not ensure that the necessary services will be made available shortly after a person has been detained. I remind the House that there is no set timeframe in the Bill for the Home Secretary to serve a removal notice under Clause 7. It is therefore not unrealistic to suggest that an individual could be left to linger in detention for days and even weeks before a removal notice is served by the Home Secretary and thus before they are able to access legal aid under Clause 55. Accordingly, the Bill does not provide for people trapped in its provisions assurance of access to free civil legal services before a removal notice has been served on them.

Clause 55 also does nothing to address the reality that it is practically impossible for many people to access legal aid under existing entitlements. There are, as I think the House knows, vast numbers of unrepresented individuals seeking asylum and in detention due to the current unsustainability of and lack of capacity within the immigration and asylum legal aid sector.

Our Amendment 155 introduces a new clause—a duty to make legal aid available to detained persons, which would address this issue in England and Wales by supplementing what the Government intend to achieve in their Clause 55. It would place a duty on the Lord Chancellor to make civil legal aid available to detained persons in relation to already in-scope judicial review and immigration matters, and suspensive claims, within 48 hours of their detention. This is crucial, given that the Bill gives the Home Secretary wide powers to detain families indefinitely, to detain children who are alone and to detain vulnerable people such as pregnant women, while also placing a duty on the Home Secretary to remove them, with short timeframes to make suspensive claims with compelling evidence to prevent such removal.

I hardly need to remind this House of Parliament that the provision of legal aid is a key component of ensuring the constitutional right of access to justice—itself inherent in the rule of law. The courts have repeatedly upheld the principle that a failure to provide legal aid can amount to a breach of fundamental rights. Legal aid is essential to ensure that people without means can secure effective access to justice and redress.

So why is this amendment needed? As I think the House knows, legal aid was, in effect, decimated in this area of law by the legal aid cuts of 2013. Most non-asylum immigration matters are excluded, which has damaged the entire immigration and legal aid sector and the ability of everyone, including individuals seeking asylum and those in detention, to access reliable, quality legal aid immigration advice. Immigration law is highly complex and extremely difficult, if not impossible, to navigate without a lawyer.

It is unrealistic to believe that individuals seeking asylum, who have just arrived in the UK and who may be traumatised or vulnerable and who may speak little or no English, can understand our complex laws and make effective representations without professional legal assistance. As stated by Lord Justice Underhill in last week’s decision on the Rwanda scheme, cases where decisions are fair and where there has been no access to legal assistance are “likely to be exceptional”. I pray that in aid of this amendment. Amendment 155 would help to secure timely access to legal assistance, which is crucial to the fairness of decision-making.

--- Later in debate ---

[Lord Bellamy (Con)]

My Lords, clearly, the Government entirely accept that legal advice is fundamentally important in the present context. That is why we introduced Clause 55. The Government are well aware that, if the procedures for obtaining legal advice under the Bill are not appropriate, legal challenge will follow. That is constraint enough to ensure that those procedures are sufficient to ensure the system works as fairly as possible. That is the approach of the ministry and, as I will say in a moment, that is how we are developing procedures to ensure that appropriate legal advice is available, and why the Government, while entirely understanding the points that have been made, respectfully feel that Amendment 155 is not the correct way to achieve the desired result, which is certainly one that is shared by everyone: that there should be appropriate legal advice.

I am grateful to the noble Lord, Lord Hacking, for his comments on the importance of legal advice, and to my noble friend Lady Lawlor for the reservations that she expressed. In the longer run, the whole area of legal advice, not just on immigration, is for review, as the noble Lord, Lord Ponsonby, just said. The Government regard this as being at the heart of a fair justice system.

However, on this particular amendment, we already have established procedures, both at Manston and immigration removal centres, for individuals to access legal advice. I understand that, at Manston, there is scope for unlimited free phone calls to be made. There are notices and other bits of information about how you contact a lawyer: the names are given and the rotas change. Those procedures are there. Similarly, at immigration removal centres there is already a procedure similar to the police station procedure. It is not exactly the same, but there is the detained duty advice scheme, under which solicitors provides immigration advice on a rota system. That will be expanded as necessary. I was sorry to hear the noble Lord, Lord Carlile, say that people have sometimes been misadvised; I hope that will not happen in the future, because the Ministry of Justice is determined that the system to be introduced will be coherent, joined up and, above all, fair. That is what the House and the country would expect.

We are engaging closely with legal aid providers, and we believe that our proposed capacity-boosting measures will enable us to attract sufficient providers. As the noble Lord, Lord Bach, observed, we are out to consultation on increasing fees for this kind of immigration work. An ongoing Legal Aid Agency tender has been out since March, I think, which I understand has had an encouraging response so far. We are seeing an uptick in providers coming forward. Those procedures remain to be completed and it remains to be seen exactly how that works out, but that is at least encouraging. Other key areas of focus include the provision of remote advice—that might well go some way towards addressing the problems in Lincolnshire, Norwich or wherever it happens to be, but I am given to understand that there will be on-site advice at immigration removal centres—paying for travel times for providers, and various options for signposting and connecting up individuals to ensure that they actually receive appropriate legal advice.

The Ministry of Justice is working very closely with the Home Office on the detail of this. It is a ministerial responsibility to follow closely and ensure that these measures cut the mustard, if I may use that expression, and come up to proof—to mix my metaphors somewhat dramatically. In that regard, and for those reasons, I invite the House to accept that Amendment 155 is not necessary because we are thoroughly on the case and our objective, which the noble Lord, Lord Bach, rightly drew attention to, is shared.

Amendment 154 agreed.

Sentencing Act 2020 (Special Procedures for Community and Suspended Sentence Orders) Regulations 2023

Lord Bellamy Excerpts

Monday 26th June 2023 Grand Committee

[Lord Beith (LD)]

My Lords, I am grateful to the noble Lord, Lord Ponsonby of Shulbrede, for initiating this debate. I welcome his contribution and that of the noble Lord, Lord Jackson. I am not a million miles from either of their views either, but I emphasise that I value the progress that we are making with the three courts on the aims of the White Paper. I want to give it a fair wind, because we need to carry out these experiments.

I share some of the reservations of the Secondary Legislation Scrutiny Committee about some of the problems: the inadequacy of the Explanatory Memorandum; the failure to identify the resources that are needed, which are spread across government, so this is a pretty important question; and the failure to set out a systematic means of evaluation. What is the point in an experiment if you do not evaluate it properly and independently? Those who operated the experiment should not be the judges of its success.

I have a long-term interest in the development of problem-solving courts as an alternative to periods of imprisonment for some offenders—periods of imprisonment that did nothing to change the lives of such offenders. When I was chair of the Justice Committee in the Commons, I had the opportunity to visit a number of such courts, including the North Liverpool Community Justice Centre. Why do we not have a proper evaluation of that yet? The noble Lord, Lord Jackson, mentioned that point. Reoffending rates alone do not explain why the full potential of that experiment was not realised. I could see certain things that were working well when I looked at it, including the access it gave offenders to services that they needed and that are physically located within the court complex. When a judge can send an offender off to someone who can provide an addiction service or help them with their housing problem, it facilitates progress towards an orderly life for people whose lives are chaotic. We need to know what was lacking or what more could have been done to make that experiment more successful.

I also observed the Red Hook court in New York and problem-solving courts in Seattle; Portland, Oregon; and Houston, Texas. Texas was really interesting, because Republicans and Democrats there both agreed that they were wasting the taxpayer’s dollar on periods of imprisonment for people whose lives were not being changed by that imprisonment. The political divide fell away as the two parties and the wings of those parties agreed that the taxpayer’s dollar should be used for something that might work better. Hence there was a real political investment in developing problem-solving courts.

In observing these various courts, I was struck by some general points that proved important. One I have already mentioned: access to services—such as addiction treatment, housing, education and employment—which offenders had found it difficult to access or had not even tried to access before they were convicted. That is crucial.

The second is a review process overseen by the same judge, who often became an important authority figure in offenders’ lives and had a capacity to hold them to account for the changes that they needed to make in their lives.

A feature that is not attempted in these proposals—I have some doubts about it, but it was interesting to observe it in Texas—is a court-room full of other offenders, who would applaud an offender who had got a clean bill of health, because he was clean of drugs and had not reoffended since the last time he came before the judge. All the people waiting for their cases to be heard would clap at that point and give him encouragement. Of course, if the reverse was true and the offender had failed, they might be sympathetic, but the Texas marshals were there to take the offender away for imprisonment, which was the consequence of not keeping up with requirements that the judge had set. The cultivation of a common feeling of “let’s try to make this work and change our lives” was really valuable.

Today, we are authorising more limited experiments in two courts for men and one for women. They will not deliver improvement unless there are adequate resources available from the Ministry of Justice through the Probation and Courts Services. Then, of course, there is the hope of an eventual shift in resources from prisons to probation, for example, but also from a wide range of other departments that will need to become involved in offenders’ lives if we are going to try to change them; that includes housing, education and health services.

All this is taking place against a background of declining confidence in the courts in community sentences. I sit on the House of Lords Justice and Home Affairs Committee, which, as the noble Lord, Lord Ponsonby, pointed out, is currently carrying out an inquiry. There has been a lot of public evidence already indicating that, as a proportion of sentences, there is a decline in the use of community sentences; this suggests a lack of judicial confidence in them. That must change; it needs to change for the system as a whole, but it certainly needs to change in the context of these three courts.

This is potentially an important and valuable experiment. As well as the resourcing and valuation issues that I have mentioned, it will need judicial continuity, with the same judge dealing with individuals over the period of their sentence. It will also need confidence to be built in the quality of community sentencing, addiction services and other services. The courts need to be better informed about what services are available and how good and reliable they are, as well as how appropriate they are to the kind of offender that they may want to attach to them. It will place considerable requirements on the Probation Service, which is seriously overstretched at the moment throughout the country, and will pose challenges for local authorities, the health service and other providers of services. However, we need to do it and I wish it well. We need an effective alternative to expensive, ineffective prison sentences for some offenders.

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

My Lords, I am extremely grateful to all noble Lords who have contributed to this debate in such a constructive and thoughtful way. I am particularly grateful to the noble Lord, Lord Ponsonby, whose Motion gave rise to it.

First, I will briefly address the concerns raised, notably by the noble Lord, Lord Beith, about the Explanatory Memorandum. I am happy to acknowledge that, in this case, the Explanatory Memorandum was somewhat thin and did not meet the required standard. My officials have, I think, been able to provide answers to the committee’s satisfaction. We are working to ensure that future memoranda do not encounter a similar problem. Internal training is being undertaken and we will shortly have a meeting with the clerk of the relevant committee to understand what its requirements are. I hope that these various measures will deal with the problem, but I apologise for the fact that the committee felt it necessary to draw the House’s attention to this statutory instrument.

Let me explain briefly some of the background to this instrument; I hope also to deal with the points that have been raised. We are piloting three ISCs: two are focused on offenders with substance misuse and one is focused on female offenders. I place particular importance on the female offender court, which is at magistrates’ level in Birmingham. To take one particular point, in the earlier sentencing White Paper of 2020, the Government committed to piloting up to five schemes; we did not commit to five or more, I think. It is partly a question of resource, but the view has been taken that we should try to do three properly now rather than risk spreading resource too thinly; of course, that leaves open the possibility of the programme being expanded later if it is successful, but I hope that this is a solid and important start. I am glad to hear that, in general, noble Lords welcome this step forward.

I mention, I hope relevantly, four particular features of the programme. The first is close judicial monitoring by the same judge. The noble Lord, Lord Ponsonby, my noble friend Lord Jackson and, I think, the noble Lord, Lord Beith, raised the importance of continuity from a judicial point of view; it is crucial. I am sure that the MoJ will take away that point—it was made very forcefully by your Lordships, who collectively represent a wealth of experience in this area—and ensure that it happens. That is indeed a mainstay of the proposal.

The second feature is a particular emphasis on continuity and personal probation supervision so that there is always that particular continuity. As has been explained to me—to my personal satisfaction, I must say—it is in this respect something of a return to the old system of probation, whereby you had one probation officer who looked after you, took you all the way through the court process and was in direct touch with the judge, rather than there being, as I understand has happened to some extent in recent times, a sort of split within the Probation Service between the court team that prepares the reports and the supervisors who are out in the community, with a certain lack of communication in that process. It is very important that there should be the continuity of a single probation officer. Of course, at the same time—this is one of the reasons why the experiment is perhaps not as expansive as it might be—you do need to fully involve local authorities, other support services and so forth. We need to be sure that agencies have, as it were, signed up to and bought into the whole process for it to work.

For the substance misuse course, we have a requirement for regular drug testing so that, if there is a risk of someone falling back into such misuse, it will be picked up early.

Fourthly, as the noble Lord, Lord Ponsonby, said, there is not exactly a mixture of carrot and stick but the possibility of imposing sanctions on offenders if they are clearly not observing the rules in a way that merits a sanction.

Your Lordships know the sequence of events. There was a sentencing White Paper in 2020, then there was the 2022 Act and now there are the pilots. The ministry did not exactly invite bids but sought to explore which areas of the country would be interested in undertaking this work. I have to say, the response was not exactly overwhelming because, at the time, the courts were preoccupied with the backlog and after-effects of Covid and all those issues. So we do not, from that point of view, start from a particularly propitious situation. None the less, on each site, a local level, multiagency team has worked together, including the judiciary, probation, the police, the police and crime commissioner, the local authority, third-sector organisations and, of course, MoJ officials.

[Lord Jackson of Peterborough (Con)]

Will my noble and learned friend the Minister put on record the continuing support and importance of chaplaincy—both potentially in these schemes and in the wider prison estate—which, to my mind, is an integral part of supporting prisoners as they move away from crime and take their place in society?

[Lord Bellamy (Con)]

I am very happy to give my noble friend Lord Jackson that assurance. The Ministry of Justice and the Government share his view that effective chaplaincy is very important and part of the wider holistic approach to dealing with offenders.

[The Deputy Chairman of Committees (Lord Haskel) (Lab)]

My Lords, there is a Division in the House. The Committee stands adjourned for 10 minutes.

--- Later in debate ---

[Lord Bellamy (Con)]

My Lords, I was explaining the work with local multiagency teams to make sure that we are delivering a model and a system that will work with a ring-fenced probation resource and a judiciary that will engage in intensive supervision and provide the continuity that has been lacking so far. As I say, this resulted from the sentencing White Paper of 2020 and the 2022 Act.

Against that background, I will take up at least some of the main points raised in the debate by noble Lords. As I say, we have sought to concentrate on what is within our ability to deliver, which is why we have gone for three courts instead of five. There may well be further opportunities to expand that in the future.

It is certainly true that there is an international context, to which attention was rightly drawn. Over the years, it has been difficult to pinpoint exactly how successful some of those international experiments were or are. I regret to say that there was not a full follow-up to the Liverpool experiment of some years ago, so we do not have the data, which is why the evaluation process is so important. All noble Lords referred—and the noble Lord, Lord Ponsonby, and my noble friend Lord Jackson specifically referred—to the importance of evaluation.

There will be an interim process evaluation report next year—2024—a further evaluation report in 2025 and yet a further impact evaluation in 2027. The reason for the further impact evaluation in 2027 is to allow time to give an assessment of the reoffending rate because we want to be sure—or to have some information on—whether people have managed to stay on the straight and narrow for two or three years. That is why the 2027 date is in the evaluation.

There will be a continual process of assessment as we go along. There are governance boards across the three sites to enable local partners and the MoJ to review progress on an ongoing basis, so evaluation is critical to the success of this experiment. It is fair to add that one of the encouraging features in a parallel context, at least in some areas, is the relative success of the FDACs—family drug and alcohol courts. That parallel example is slowly catching on because, unlike this process, they involve very considerable dedication of resources by local authorities and it is has taken them a little while to buy in to the idea, particularly in some parts of the north of England.

[Lord Beith (LD)]

Will the Ministry of Justice be marking its own homework, or will we have some kind of independent basis for the evaluation?

[Lord Bellamy (Con)]

At the moment, the evaluation is an MoJ evaluation, as far as I know. I am sure that we can build in stakeholders. This is not exactly the MoJ’s homework, because the MoJ is not active in doing this; it is judges, the Probation Service, local authorities and so forth. I am sure that if your Lordships attach importance to some objective, third-party look at what we are doing—I can quite see why—that suggestion should be taken very seriously as we move forward.

[The Deputy Chairman of Committees (Lord Haskel) (Lab)]

My Lords, there is another Division in the House. The Committee stands adjourned again for 10 minutes.

--- Later in debate ---

[Lord Bellamy (Con)]

My Lords, in further answer to a question asked by the noble Lord, Lord Beith, I understand that we will be engaging external contractors to support the evaluation of these proposals. So there will be some element of external verification, but I expect your Lordships’ House—indeed, both Houses—to take a close interest in how we are getting on and to demand explanations and information. I hope that there will be a collaborative approach all the way through.

I will take some of the other points raised; I have already touched on some of them. It is very important that we have evaluations and the same judge, and that we assemble the relevant data. As emphasised by noble Lords, it is particularly important that we take a collaborative approach, which the noble Lord, Lord Ponsonby, referred to as the “scaffolding”, in which there is a truly multiagency approach and access to services.

To take up the point raised by my noble friend Lord Jackson, this is a holistic operation because we are already engaged in rehabilitation for offenders in prison. We have employment advisers in prison and local employers helping them into jobs. We even have small things such as the Friday release Bill, which enables people to access services before the weekend and further arrangements are in train to make sure that there is accommodation, a bank account, a national insurance number and all those things, and they are beginning to have an effect. That aspect is not underestimated at all. Investment in training is accepted, and we should make sure that those who engage in this kind of work have appropriate training.

As to the concern that was said to have been expressed by probation officers that this is a route to “up-tariffing”—I think that was the expression used—that is not the aim of the exercise at all. One has to be very alert to making sure that nothing of that kind occurs. The law of unintended consequences has the habit of striking when it is least expected, but this is something to keep an eye on. As I said, the rehabilitation of offenders is very much at the forefront of our minds.

My noble friend Lord Jackson marked our paper as “could do better”. I do my best to reassure your Lordships that this is a sure start. As others have said, let us hope it leads to wider things and presents a real opportunity to make a difference. With that, I commend the statutory instrument.

[Lord Ponsonby of Shulbrede (Lab)]

Before the noble and learned Lord sits down, can he explain why two Crown Courts and one magistrates’ court were chosen? The magistrates’ court is for women offenders. Of course, the vast bulk of low-level drug offences are seen in magistrates’ courts, not Crown Courts, so I would be interested to know whether there is an explanation for choosing this particular combination of courts.

Also, the noble and learned Lord just said that there was not an overwhelming response when looking for pilot courts. I suggest that the reason for that is that a number of the courts have been round this course before. In the past, similar types of arrangements have run into the sand for various reasons. I gave my own example of the drug court at Hammersmith Magistrates’ Court. I sat on that separate rota and it was discontinued because it could not demonstrate the benefit of that approach.

From what the noble and learned Lord has said, it seems that there is a more holistic approach to gathering data in order to make a proper assessment; that is a very important element of what is being suggested and piloted here. I think that we just need to acknowledge that, in the ranks of court professionals and the professional people who have advised me, there is some scepticism about this. We need to be open-eyed about that because this idea has been tried a number of times and not been fully evaluated. Good luck to it this time but there needs to be a proper approach to form a proper basis for future decisions.

[Lord Bellamy (Con)]

My Lords, I am not sure that I am able to give the noble Lord, Lord Ponsonby, a comprehensive answer to his first question as to why we did not do more in magistrates’ courts. We certainly wanted, in terms of the Crown Court, to see to what extent we could divert from custody, which tends to be the issue in the Crown Court. That is why two Crown Courts were chosen.

On the magistrates’ court, it was felt that we should give priority to the problem of low-level offending by women. That is an area where it is felt that this approach can make a significant difference. One is working to some extent with the art of the possible and the resources available.

I have more or less finished. The last thing that I want to say was that the noble Lord, Lord Ponsonby, rightly expressed scepticism. This approach has been tried before and the results have been rather depressing. The difference this time will be in the data and the evaluation. We have concrete evidence so we can convince everyone that it is working.

[Lord Ponsonby of Shulbrede (Lab)]

My Lords, I thank everybody who has taken part in this brief debate. I look forward to discussing this issue further as the pilots evolve and I commend my Motion to the Committee.

Judicial Appointments (Amendment) Order 2023

Lord Bellamy Excerpts

Tuesday 20th June 2023 Lords Chamber

Tabled by

[Lord Bellamy]

That the draft Order and Regulations laid before the House on 11 and 15 May be approved. Considered in Grand Committee on 15 June.

[Lord Davies of Gower (Con)]

My Lords, with the leave of the House and on behalf of my noble and learned friend Lord Bellamy, I beg to move the Motions en bloc standing in his name on the Order Paper.

Offenders (Day of Release from Detention) Bill

Lord Bellamy Excerpts

3rd reading
Friday 16th June 2023 Lords Chamber

[Lord Ponsonby of Shulbrede (Lab)]

My Lords, the noble Lord, Lord Bird, described the Bill as a “nugget of change”; that is a modest thing for him to say.

Although the scope of the Bill is narrow and specific, it will make demonstrable change. There have been attempts to make this change in other, larger Bills in the past, which have fallen by the wayside, so I congratulate him, as a relatively new Member of this House, on getting through this significant addition to the way we manage people who come out of prison. As he said, this is a very vulnerable group of people who are very likely to reoffend, particularly if they are released on a Friday, so every step, however little, matters to try to reduce reoffending. I congratulate the noble Lord.

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

My Lords, I too add my thanks and congratulations to the noble Lord, Lord Bird, for persevering in taking this Bill through the House and for continuing the good work of the honourable Member for Barrow and Furness, Mr Simon Fell, in the other place.

This is a simple yet effective Bill that will play an important role in supporting the Government’s drive to reduce reoffending and protect the public. It will ensure that custody leavers have a better chance to access the support they need to reintegrate into the community and turn their backs on a life of crime. The Bill achieves that by enabling the offender’s release date, where it would have fallen on a Friday or the day before a public or bank holiday, to be brought forward by up to two eligible days, so that they will be released earlier in the week. Offenders with resettlement needs will no longer need to try to access these services, under what may well be very challenging circumstances, as the weekend begins and services and support stop or fade away.

The Bill applies to both adults and children sentenced to detention. It will ensure that the relevant release provisions exist and apply in all youth settings, including the recently created secure 16-to-19 schools.

I am very grateful to the Members, Lords and officials who have worked so diligently to bring forward the Bill, and to the noble Lord, Lord Ponsonby, and his colleagues for their support and encouragement. I am once again very pleased to reiterate the Government’s support, and very much look forward to seeing the Bill on the statute book.

Bill passed.