Queen’s Speech

Lord Brown of Eaton-under-Heywood Excerpts

Tuesday 18th May 2021 Lords Chamber

[Lord Brown of Eaton-under-Heywood (CB)]

My Lords, it is always good to follow my noble friend Lord Carlile, even though it does generally make me feel boringly understated. Before touching on judicial reviews, as I hope to have time to do, I want to say a little about the proposed penal legislation. I have time for only one or two headline points, really.

First, on the question of terrorist offenders, let me say this: I recognise that they pose particular problems. Unlike all other categories of offender, terrorists are driven ideologically; their very purpose in life is to commit murder and mayhem and on entering prison their sole wish is to be discharged so that they can resume those activities. They have absolutely no intention of being reformed or rehabilitated so their tendency is to feign reform, and we have seen an appalling illustration of that recently. In their case, therefore, life sentences and indeterminate sentences seem to be altogether more acceptable and logical than in the case of other offenders.

That said, like others, I say that the UK imposes far too many indeterminate and long sentences overall. We impose more indeterminate sentences than all the other countries of the Council of Europe put together. The most egregious of these, as I have said many times in this Chamber, are the IPP sentences. That scheme was abolished and discredited in 2012 and yet there are still nearly 2,000 people detained under it, almost every one of whom is years beyond their tariff terms, and ever larger numbers of those released are now being recalled. To those who have not read the Prison Reform Trust report No Life, No Freedom, No Future, recently published with a foreword by myself, I say please do so.

My last headline point on crime is to deplore, along with the noble Lord, Lord Carlile, and many others here, the Government’s almost invariable reaction to any public concern about some offence, which is to increase the statutory maximum. They often introduce a statutory minimum and then what follows is always inflation; the sentences and the prisons get ever more overcrowded, with all the problems that that creates. The result of all that is ever less opportunity for rehabilitation. In the longer term, these longer sentences will produce more crime, not less. What a crazy system that is.

I will say a word or two on the proposed rebalancing of the relationship between legislature, Executive and the judiciary. Although as a retired judge I am of course jealous of the judiciary’s role and independence, I take a rather less jaundiced view of the Government’s proposals following the Faulks report than some of your Lordships who spoke earlier in this debate and last Thursday. It seems somewhat absurd to regard the setting up of that review and the response to it as a power grab and revenge for Miller 2. Surely everybody accepts, as I certainly do, the two specific legislative proposals of the noble Lord, Lord Faulks: to reverse Cart—I am afraid I was one of the seven unanimously making that mistake, as shown by what has happened since—and to introduce suspended quashing orders, which are such a good idea because it is the inflexibility of judicial review that has proved a real problem over the years. The basic position has long been that if any impugned decision is found unlawful for whatever reason, then it is to be regarded as a nullity—nothing done under it has any effect. That has caused real problems.

I find nothing intrinsically objectionable in the sort of proposals that the Government are now contemplating in this consultation process, for things such as prospective-only overrulings, but that, alas, is for another day.