Non-custodial Sentences: Public Confidence

Lord Carlile of Berriew Excerpts

Monday 22nd January 2024 Lords Chamber

[Lord Bellamy (Con)]

My Lords, the Government accept that we can do more to increase public understanding of the working of the criminal justice system. We are committed to open justice: broadcasting judges’ sentencing remarks is a notable step forward; the further availability of transcripts of those remarks is another step that we can take. It is also important to publish sentencing and other information in an accessible form, on GOV.UK and on social media. We should be ambitious to improve the data that we already publish on criminal justice statistics. The Sentencing Council website has extensive information on how sentencing works, and a number of other steps can be taken to improve public knowledge of what is happening.

[Lord Carlile of Berriew (CB)]

My Lords, does the Minister agree that public support for non-custodial sentences would be improved considerably if the Government took immediate steps to deal with the workforce gap in the Probation Service? Every probation service in the country is undermanned; there is a shortage of 400 officers in London; and 20% of new probation officers leave the service before they finish qualifying.

[Lord Bellamy (Con)]

I agree with the noble Lord that the key to public confidence in community sentences is rigorous offender management. We are investing £155 million a year in the Probation Service, which is in recovery mode. We have over 4,000 new trainees and even in London there has been a 10% increase in recruitment. The Community Payback programme, which is targeted specifically at community sentences, involves a further £93 million, and an increase in staff and resources for that programme.

Illegal Migration Bill

Lord Carlile of Berriew Excerpts

Report stage
Monday 3rd July 2023 Lords Chamber

That is where I will end my speech in moving this amendment, which goes to an essential principle of English law: that everyone who comes under the auspices of English law should have the right to have legal representation and advice at the earliest possible opportunity. The Bill does not give them that; this amendment does. I beg to move.

[Lord Carlile of Berriew (CB)]

My Lords, it is a pleasure to follow the noble Lord, Lord Bach, who moved this amendment with great skill. I am not going to make a long speech in support of him, because he does not need it. My observation, from refugees and asylum seekers whom I have met in a particular role during the last year, is that many complain that the legal advice they were able to obtain locally, wherever they were placed, was often not accurate, and they had to go through a second round of legal advice.

It is essential that people have access to competent, accurate and correct legal advice, or at least legal advice that might be correct, to enable them to challenge the case made against them. Many of the cohort of people we are talking about are numbed by the experience they have had. They did not expect to be treated as they have been by the United Kingdom. Perhaps, as the Government claim, one might argue that there are some good reasons for their being treated in that way, but to deprive them of the most basic legal advice will cause offence not only to lawyers in your Lordships’ House but to many others.

[Baroness Hamwee (LD)]

My Lords, my noble friend Lady Ludford has put her name to the amendment in the name of the noble Lord, Lord Bach, which he explained very fully, and these Benches support. One often hears that immigration law is too complex for non-lawyers to understand—I have long held the view that it should not be—but, frankly, it is too complex for many lawyers as well. You need to be a specialist, and that is recognised by the system, but one still hears some horror stories.

The realities of legal advice for anyone in detention in the immigration system have long been bleak. There may be advice sessions but they are 30 minutes long, and it takes a long time for the client to be brought to meet the solicitor, which eats into the 30 minutes. Even with the most articulate client, it can take quite a long time to take instructions. I was a practising solicitor for many years and this cohort, as the noble Lord, Lord Carlile, said, consists of individuals whose English may be inadequate. Interpretation is therefore required, which is cumbersome and difficult for everyone. In any event, they have a story that takes support to tell, and that requires a lot in the telling.

Given the relentless speed of the processes under the Bill, this amendment is very necessary. The Government have recognised that legal aid has a place here, given what they have done so far in the Bill and the consultation on the rates. Raising concerns about legal aid became even more relevant with last week’s impact assessment, which drew attention to the problems of accessing legal aid and legal aid services, especially outside London and the south-east. We are very happy to support this amendment.

Miscarriages of Justice

Lord Carlile of Berriew Excerpts

Wednesday 14th June 2023 Lords Chamber

[Lord Bellamy (Con)]

My Lords, first, on joint enterprise, it is a long-standing principle of the criminal law that persons who go together to commit a crime are jointly liable, irrespective of whoever threw the brick or fired the shot. There is a great deal of jurisprudence on this subject, and it is true that there is some concern that the existing case law does operate in a harsh way on certain young black boys and men. The CPS, to which I would like to pay tribute, is engaged in a six-month pilot, which started in February 2023, to review joint enterprise cases in several CPS areas. It has also established a joint enterprise national scrutiny panel to review the interim findings of the pilot and several finalised joint enterprise cases. At the end of September this year, the results of that review will be published. This, I understand, will also be considered in relation to the Law Commission’s investigation into the appeals process.

[Lord Carlile of Berriew (CB)]

My Lords, will the Minister assure the House that the Criminal Cases Review Commission, under its excellent new chair Helen Pitcher, will be given sufficient funding efficiently to ensure that miscarriages of justice are dealt with in a timely way? Also, will he consider allowing Professor Cheryl Thomas, who is the leading researcher into juries, to carry out more in-depth research into how juries actually reach their verdicts, in order that prosecutors can be better informed about how to prepare their cases?

[Lord Bellamy (Con)]

My Lords, the functioning of the Criminal Cases Review Commission—its resources, its governance and the test it applies—will be considered in the context of the Law Commission’s current review. The Government would like to thank the Westminster Commission in particular, in which my noble and learned friend Lord Garnier and the noble Baroness, Lady Stern, participated, for its work on that. It is of interest, and the Government look forward to hearing the Law Commission’s response to these difficult matters.

Illegal Migration Bill

Lord Carlile of Berriew Excerpts

Committee stage
Wednesday 7th June 2023 Lords Chamber

With over 100 million people displaced in the world, we need a strategy to tackle the root causes, not legislation which will do nothing to end the desperate journeys of people who are desperate to make better and safer lives for themselves and their families.

[Lord Carlile of Berriew (CB)]

My Lords, I will not repeat what has already been said. I agree with most of what has been said in the preceding speeches, particularly the remarks made by my noble friend Lord Kerr about the inadequacy of Schedule 1, and all the examples that have been given, including those given very clearly by my noble friend Lord Alton, of cases which create real dangers of injustice which are plainly contrary to the international conventions to which this country subscribes. Instead, I want to obtain confirmation from the Minister of some short propositions which relate to Clause 6 of the Bill.

Clause 6 provides that the Secretary of State may amend Schedule 1 in certain circumstances. Can the Minister confirm that if a cogent application is made to the Secretary of State to amend Schedule 1 in particular ways and he refuses, that would immediately open the gate for judicial review proceedings? I foresee a menu of 57 opportunities in Schedule 1 for 57 applications for judicial review—perhaps a few fewer—being made by well-known and well-funded NGOs for amendments to be made to that schedule because of circumstances in those countries.

Further, would not the Secretary of State face considerable obstacles if such judicial review applications were made? First, there is the weakness of the standard of proof that is set by the Government for themselves—“if satisfied”, whatever that means. Secondly, in Clause 6(1)(a), which was referred to earlier, the Secretary of State can add a country or territory if satisfied that

“there is in general in that country or territory, or part, no serious risk of persecution”.

Does that not contradict certain other legal provisions which, for example, provide guarantees of safety to a group of people we discussed earlier this week—the cohort of LGBTQ+ people who might be affected?

Thirdly, Clause 6(1)(b) states:

“removal of persons to that country or territory, or part, pursuant to the duty in section 2(1) will not in general contravene the United Kingdom’s obligations”.

Is that not pathetically weak, and contradictory to other legislation? I again take the LGBTQ+ cohort as my example.

If that analysis of Clause 6(1) and Schedule 1 is not entirely coherent, surely it is enough to persuade the Government that they should really reconsider the drafting of Clause 6 and the contents of Schedule 1. If they insist on keeping Schedule 1, it should, from the start of the Bill coming into effect, reflect all the dangers in all countries in which there are dangers for certain groups of people who could not be described as people “in general”. This is ineffective, and I am sure it will put substantial fees into the hands of my learned friends, but that is not what this place should be trying to do.

[Baroness Butler-Sloss (CB)]

My Lords, I support these amendments and the speeches that were just given. I want to make two points only. First, it is extraordinary to me that Schedule 1 shows a list of countries with which this country has no agreement. I cannot understand how one can put into primary legislation a list of countries with which the Government hope to have an agreement, when that is not yet happening.

Secondly, I spoke earlier, at greater length, about the unaccompanied child who comes to the age of 18. Your Lordships have only to think of a child of 10, and we know that some children of 10 have come through. With any luck, a child of 10 will not be kept in Home Office accommodation; he or she is likely to go into the care of a local authority under the Children Acts and will very likely be fostered. It is comparatively easy to be fostered at 10. The child would have spent eight years at an English school, would have grown into speaking English, probably forgetting his or her own language to some extent, and will be settled.

Immediately after the age of 18—subject to the Home Office’s inordinate delays in removing people, but assuming that it achieves something better in the future—he or she can be removed and will go to a country. At the moment, there is only one, unless the child is Albanian, when they would have gone back earlier. That child aged 18, just grown up, will find him or herself in a country the language of which they probably do not speak and he or she will know absolutely nothing. I hope your Lordships agree with me that that, quite simply, is cruel.

--- Later in debate ---

[Lord Bellamy (Con)]

I am grateful to the noble Baroness for her question, but I cannot answer it today at the Dispatch Box. My respectful reply is that this issue does not arise for the reasons I have given. The Bill does not envisage, at the moment, returning people to such countries. The general position is that we can continue discussing the provisions on legal requirements, trafficking, unaccompanied children and so forth, but this part of the Bill is an essential part of the Bill. I therefore beg to move—

[Lord Carlile of Berriew (CB)]

I am most grateful to the Minister and have great respect for his legal analysis. However, I will correct him on the point I made about judicial review. I was not saying that a judicial review could be taken in which the order would be for the Minister to amend the law. The Minister cannot amend the law; we in this Parliament amend the law. The application would be for a judicial review of the refusal of the Minister to take steps to amend the law. That is quite a different matter, and I do not apprehend any difficulty in making such an application for judicial review.

[Lord Bellamy (Con)]

My Lords, I apologise to the noble Lord, Lord Carlile, if I misunderstood his point. I respectfully continue to beg to differ as to both the likelihood of such judicial proceedings or the relevance of such judicial proceedings to today’s stand part debate. So, if your Lordships permit me, I beg to move—

Illegal Migration Bill

Lord Carlile of Berriew Excerpts

Committee stage
Monday 5th June 2023 Lords Chamber

[Baroness Hamwee (LD)]

My Lords, I also have various other amendments in this group. I feel I should speak very slowly in the hope that those who have the other amendments in this group arrive in time to introduce them.

Amendment 30 relates to Clause 5, which is one of the removal provisions. A number of noble and learned Lords, all learned in the sense that one generally understands it—I can see one of them in her place—have put a good deal of work into the other amendments in this group. I do not want to pre-empt what they and my noble friend Lord Paddick will say, so I will leave that support unspoken.

Clause 5(4)(b) places the Secretary of State above the law and above the courts, because the first hurdle to making a protection or a human rights claim is that

“the Secretary of State considers there are exceptional circumstances”

preventing removal to a particular country. This amendment is intended to probe what is meant by “exceptional circumstances”. I hope the Minister can expand on this. We have examples in subsection (5) which are about particular countries and not individuals. I suspect that they may include situations which are the subject of many other amendments in this group, and if so we should spell that out and not make it a matter of discretion. I am questioning the Secretary of State’s discretion, as I understand it—reasoned discretion, one hopes—or consideration that there are exceptional circumstances which prevent removal to a particular country.

It was only when I was preparing for today that I paused on the word “prevent”. Does it really mean preventing removal, which to my mind conjures up pictures of protestors preventing take-off of a plane carrying a particular individual? Or does it mean that removal is inappropriate or risky because of the reception—in the broadest sense—at the other end; or that there are circumstances which mean that removal would be unsafe? If it is about treatment at the other end, I am not sure that “prevent” is the right term.

I very much support the amendments—which we will hear about in a moment— extending the list of countries and parts of countries which are dangerous to return people to.

My amendments are directed at, and opposing, the notion that an individual can be safe in a part of a country if he is not safe in another part of the same country. Not every country is in a tidy unity, but where there are laws, they tend to apply overall. Where there are prejudices in a country, those who may be a threat to an individual will be free to travel between different parts of the country. Those are Amendments 52A to 52D, Amendment 52G and Amendment 53A.

Amendments 52B and 52D challenge the proposition in Clause 6(1) of removal if “in general” there is no serious risk of persecution or that removal will not “in general” contravene obligations under the human rights convention. What is meant by “in general”? I do not understand the term in this context. It is not fair to call it a lazy term, because I appreciate the vast amount of work that goes into drafting any Bill—however much one dislikes it—but it is not a very imaginative way to describe a situation. If you cannot give an example, you should not be trying to use generalised terminology. This seems to be another demonstration of the Government clutching at anything they can to deny obligations to asylum seekers. I beg to move Amendment 30.

[Lord Carlile of Berriew (CB)]

My Lords, I apologise for my slightly late arrival in the first minute of this debate. I rise because I am the signatory of a number of amendments tabled by my noble and learned friend Lord Etherton, and because I have some amendments in my own name: Amendments 33A, 34 and 35.

The aim of all these amendments is to ensure that something happens which I feel should not cause any differences with the Government. I think it may be a matter of interpretation or a matter of adding a few words to the Bill. Principally, it relates to the treatment in third countries of people who fall within the LGBTQ group. Section 80B of the Nationality, Immigration and Asylum Act 2002 provides that a state is a safe third state in relation to a claimant if

“the claimant’s life and liberty are not threatened in that State by reason of their race, religion, nationality, membership of a particular social group or political opinion”.

I focus on the words

“member of a particular social group”.

I am sure the noble and learned Lord, Lord Bellamy, will acknowledge that the definition of a “particular social group” has been to the courts. Indeed, government guidance has been issued which accepts that being a member of the LGBTQ+ community, subject to the facts being established—obviously, there is a consideration of the facts in every case—entitles that person to protection from Section 80B, as I quoted. The purpose of these amendments, therefore, is to ensure that people who are seeking asylum because they are a member of that social group—or another definable social group—do not lose the full protection of the law by reason of the content of Schedule 1 to this Bill, and the provisions of Clause 5 in particular.

--- Later in debate ---

[Lord Bellamy (Con)]

My Lords, in relation to the first part of the question asked by the noble Lord, it is true that there are certain countries designated for men only, and so forth, in the existing schedule. The Government do not consider that that is an appropriate precedent to extend at this stage. Circumstances change and countries change, so it is much better to deal with this on an individual basis. It is probably the case, one would have thought as a matter of common sense, that, if it arises, the Government’s travel advice to particular countries, to raise one particular point, is likely to be a highly material fact, when they come to consider the risk of serious and irreversible harm.

[Lord Carlile of Berriew (CB)]

I am grateful to the Minister for the answer he gave to a point I raised earlier. I ask him whether, before Report, he will talk to some of those organisations which have been the secondary referrals for people who have tried to make claims that they would be in danger in unspecified other countries. They face the extreme inconsistency of quality legal advice in different parts of the country, and they often obtain quality legal advice only when some well-meaning social worker or other person refers them to the Children’s Society or some other organisation, which has a proper team of lawyers, who are able to give informed advice. Around the country, where the people we are talking about tend to be dispersed, the knowledge of this part of the law is thin.

Independent Public Advocate

Lord Carlile of Berriew Excerpts

Thursday 2nd March 2023 Lords Chamber

[Lord Carlile of Berriew (CB)]

My Lords, as we speak about this broadly welcome announcement, the much-admired Sir John Saunders is literally in the process of delivering his final report on the Manchester Arena disaster. That is an inquiry that started life as an inquest. In the Statement, the noble Lord referred to the cost of inquests but not to the cost of inquiries. One of the most compelling conclusions one draws from the Manchester Arena inquiry—as I am sure Sir John Saunders would recognise—is the great skill and proper attention to detail of the solicitors and counsel who appeared for the families in that inquiry, some of whom had to be paid from funds raised by the families, not from public funds.

Can we be assured that the IPA will ensure that families remain properly and independently represented by solicitors and counsel at such inquiries as those into Manchester Arena or Grenfell? Is it recognised that what is being announced, far from being a cost-saving venture, may increase the costs of representation on the issues raised at such inquiries? It would be in the spirit of this announcement to recognise that as a proper inevitability of giving victims the correct voice.

[Lord Bellamy (Con)]

My Lords, the noble Lord, Lord Carlile, makes a very powerful point. I think it is related to all the issues we have in this particular area, in relation to legal aid, costs to the system, legal aid for inquests and other inquiries. The principle of proper representation is accepted, I am sure, on the part of the Government. How exactly we implement it and where the funding comes from is a matter for further discussion, I hope on a consensual and collaborative basis.

National Security Bill

Lord Carlile of Berriew Excerpts

Committee stage
Wednesday 18th January 2023 Lords Chamber

[The Parliamentary Under-Secretary of State, Home Office (Lord Murray of Blidworth) (Con)]

My Lords, Clause 77 allows the Secretary of State to make regulations about the publication and sharing of information provided through the foreign influence registration scheme. Amendment 105 clarifies that power at Clause 77(1)(b) and provides for the Secretary of State to make regulations about the onward disclosure of information registered or provided under the foreign influence registration scheme. The amended provision will enable the Secretary of State to provide clarity in respect of what data can be lawfully shared where necessary. I therefore ask the Committee to support this amendment. I beg to move.

[Lord Carlile of Berriew (CB)]

My Lords, we are being asked to approve something that relates to regulations that we have not seen, and we would ask the Government to review the way in which they are approaching the passage of this part of the Bill. We need to see not just draft practice or draft regulations but the regulations themselves.

The way in which this part of the Bill has been generated—and I do not want to repeat a discussion that we had two days ago—means that there is a great deal of uncertainty about what is intended. I hope that the flexibility that was indicated by Ministers on Monday will be extended to how such information is disseminated. I hope that we will get an undertaking that, before Report, and not on the day that Report begins, we will see the regulations and other documents that will indicate the architecture and detail of whatever parts of FIRS are going to be retained.

[Lord Coaker (Lab)]

My Lords, I agree with what the noble Lord, Lord Carlile, has just said, and I shall say a bit about it myself, in a few remarks on the government amendment. As the Minister said, the amendment clarifies the power in Clause 77(1)(b) and deals with the publication and disclosure of information provided by the Secretary of State under Part 3 on registration. Can the Minister say a little about what is not to be published? As the noble Lord, Lord Carlile, has just pointed out to the Committee, all this is to be done by regulations—and, I emphasise, done by regulations under the negative procedure.

Information provided by the Minister about foreign activity arrangements and foreign influence arrangements could, as the DPRRC said, be both politically and commercially sensitive. There will also be practical matters of significant political interest around these matters, given their relationship to national security. What sort of thinking is going on about what may or may not be published? Will those whose information is to be published be told in advance of publication and have any right of appeal? Again, as the noble Lord, Lord Carlile, said, why should Parliament not be able to have a more direct say in what sort of information should be published? That point was made by the DPRRC, which called for these regulations to be made, at the very least, under the affirmative procedure, to give at least some degree of scrutiny for this Parliament. I ask the Minister again to reflect on why negative procedure is being used for these regulations and not, at the very least, affirmative.

--- Later in debate ---

[Lord Murray of Blidworth (Con)]

At the moment I fear I cannot commit to providing draft regulations. It may be that there are some, but it may be that to draft regulations prior to Report would be too time-consuming.

[Lord Carlile of Berriew (CB)]

I am sorry to intervene again, but does the Minister not see that this is illustrating the whole mistake in producing important legislation arising from amendments made in Committee in the House of Commons? If this part of the Bill had been drafted in the normal way, by parliamentary counsel with time to develop it and to consult, it would have been perfectly simple to produce draft regulations in time for Report in the House of Lords, which is nearly at the end of the legislative process. Is this not really just a guilty plea to having had insufficient time to prepare a Bill that came to this House based on an idea which was not even government policy?

[Lord Murray of Blidworth (Con)]

I note the noble Lord’s views on the topic, but we are where we are. Obviously, the department will take away what he says and endeavour to meet his reasonable request.

--- Later in debate ---

[Lord Bellamy (Con)]

My Lords, perhaps I can take this point under advisement, because it is not yet spelled out in the statute and I am reluctant—on the hoof, as it were—to put words into the mouths of judges who would go about it in due course. One can imagine that one would draw inspiration from certain aspects of the existing law, but that is to go further than the statute already provides, so perhaps the Government can consider this point further.

I return to the broad thrust of the Bill and come to the stand part notices. I have tried to explain the importance of the message. Western Union is perhaps a slightly outdated way of conveying a message these days, but there are times when primary legislation is important to clarify the legal position, and this is one of those cases.

Before I pick up the specific points that have been made, in relation to the freezing and the forfeiture, the essential point is that these provisions bite at the moment the freezing order was made. You do not have to go to Horseferry Road Magistrates’ Court or Highbury Corner to get an order. It bites straightaway and is done by the same court that was dealing with the damages in the first place. It is more efficient to deal with the same court. Although there are other powers, as noble Lords rightly point out, in the Government’s view this is the right mechanism.

To come to the point made by the noble Lord, Lord Coaker, about why we do not just take the whole lot straight off, these exceptions for care costs and so forth, this is intended to be a measured structure. You start by simply freezing for the first two years, then you have another go at it after a second two years, then, finally, if after four years there is still “a real risk”—I will come to real risk in a moment—that is the moment when the forfeiture power kicks in. It is to give people time to persuade the court that there is no risk, as it were. That is thought to be a measured and proportionate approach to this problem.

The Bill provides that the freezing and forfeiture apply only in part to the damages if the court so orders, so that if, for example, medical expenses or care costs have to be met out of the damages, the court can provide for that. It does not have to take away the whole lot all at once. It can have regard to the needs of the claimant in that context.

That is the essential structure. It is to remove the risk of the money simply being spirited away at the press of a button, down a hole to an offshore haven before the courts can move to make sure that the money remains safe. Again, that is a power of the court, not of the Government or the security services. Therefore, in our view it does not lead to an undermining of the principle of access to justice or any other relevant right. To take another important point raised by your Lordships, it certainly does not take away the human rights damages. There are no circumstances in which it affects human rights damages in any event; that is a sort of entrenched position under the Human Rights Act. But that does not prevent a court taking into account circumstances in relation to other claims where the court considers that a reduction would be justified. Even in relation to human rights cases—I am sure plenty of people here will immediately put me right if I am wrong—the European Court of Human Rights reduces damages in certain circumstances when it does not think that the claimant is fully deserving of a particularly large award because of the conduct of the claimant in question.

That is the general outline and why we say that the whole structure is balanced but proportionate. It extends to involvement in terrorist-related offences. It is not limited to terrorist convictions because of the quite obvious difficulty, particularly in terms of parties that are abroad, in managing to apprehend them, bring them to this country, prosecute them and secure a conviction. Cases have been brought by persons abroad known by the security services to have been involved in terrorist activities but not subject to a conviction in this country. That is why we have to make this a little wider than people who have been convicted of terrorist offences.

For the reasons I gave in relation to the message, the provisions are not limited to circumstances in which one should confiscate the damages because of the risk of them being used in terrorist activities. One should reduce the damages because of the conduct of the claimant, which is a normal, civil law situation. I do not mean civil law in the sense of continental civil law, but it is the normal situation in the common law.

[Lord Carlile of Berriew (CB)]

I must admit that I was more favourably disposed towards some of these provisions, but the Minister has convinced me that I was wrong. He has told us that these provisions are unnecessary. They are in effect a very long text message, which apparently the public are going to consider over their breakfast tables, reminding judges of what the existing law is. Is he comfortable with using this House and this legislation for that purpose?

[Lord Bellamy (Con)]

My Lords, I feel that this is the first time that I have ever convinced the noble Lord, Lord Carlile, that he is wrong. The answer to the question is yes, the Government are entirely comfortable with the need to make explicit what to a large extent is implicit but rather undefined and diffuse in our legal system. This measure gives us a clear code in terrorism cases to provide a framework for the judge to consider what he should do about damages. I accept that the question of guidance for the judges is an open point, but let us reflect on that. The purpose is to provide a clear framework in terrorism cases.

Prison Capacity

Lord Carlile of Berriew Excerpts

Tuesday 6th December 2022 Lords Chamber

[Lord Carlile of Berriew (CB)]

My Lords, can the Minister point to any empirical evidence or analysis that demonstrates that the doubling of the prison population in the last 40 years has made this country more law-abiding and less violent? Is he able to commit the Government to a new prison policy that is based on merit and not headlines?

[Lord Bellamy (Con)]

My Lords, I am not in a position to comment on the last 40 years, but, respectfully, I would not make any link between the Government’s policy on prisons and the other matters to which the noble Lord referred. On the second part of his question, as I said just now, sentencing policy is a matter for the courts and not the Government.

Parole Board (Amendment) Rules 2022

Lord Carlile of Berriew Excerpts

Tuesday 18th October 2022 Lords Chamber

[Lord Garnier (Con)]

I apologise for intervening. I forgot to refer to my interests in the register. I am a trustee of the Prison Reform Trust and am connected to a number of other prison welfare bodies.

[Lord Carlile of Berriew (CB)]

My Lords, I speak in support of my noble friend’s regret Motion, which she moved with such clarity. She speaks with great experience and authority, as she told us at the beginning of her speech.

These regulations, already in force, feel like an attack on the Parole Board. I have been knocking around the legal system for decades, and I know many people who have been, and some who are, judicial members of the Parole Board. I think I reflect their feeling of the Parole Board being under attack from the Government, so I want to start by praising the Parole Board: for its fastidious care over the evidence in cases for which it is responsible; for its determined and proper independence, which is key; and, indeed, for its accepting the increased judicialisation that has made its processes more transparent and public. The Parole Board has moved with the times, and it perfectly understands its responsibilities.

Like others, I want to focus on paragraph (22), which provides that:

“Where considered appropriate, the Secretary of State will present a single view on the prisoner’s suitability for release.”


Even by statutory instrument standards, those are words of breathtaking vagueness. I suggest that this provision is a very unwise and unwelcome change for the following reasons. First, it is nothing less than an unwarranted interference by Ministers with what is clearly, now at least, a judicial process. Nobody can deny that the Parole Board is a judicial process; the issue goes, therefore, to the heart of the separation of powers. The previous Lord Chancellor knew perfectly well that he was attacking the separation of powers. I have, sneakingly, more confidence in his successor, who in my view has operated with some skill in bringing to an end quickly the justified strike by criminal barristers.

As I said a moment ago, the provision is vague. What are the terms of reference that would make it appropriate for a ministerial single view to be given? What does a “single view” mean in this context? Who is actually going to make these decisions? Who is going to prepare the papers to be put in the Minister’s red box? This is such an unclear procedure as to be wholly unacceptable.

Why on earth are report writers such as psychologists, an example already given, those with real knowledge of the prisoner concerned and, by definition, experts themselves to be banned from expressing a written opinion, which, of course, is not more than that—an opinion, not a decision, on the outcome of the case? This seems to me to presage a political reaction to media stories in an attempt to influence the Parole Board. That can have no legitimacy.

Furthermore, these ministerial decisions or recommendations are apparently not binding. What do they really mean? Well, they obviously mean that the Minister does not trust the tribunal, or at least he does not trust the media’s reaction to a decision that may be made by the Parole Board as a tribunal. But it certainly puts unacceptable pressure on the Parole Board.

With those comments in mind, please will the Minister tell us whether the Parole Board was consulted and, if so, whether the Parole Board welcomed these proposals and in what terms? Indeed, I think that we are entitled to know who else was consulted. What did they say? Did anyone support these proposals? If so, who were they and what reasons did they give?

Also, please will the Minister tell us how many cases this is expected to apply to? Is he, as a very experienced and eminent lawyer, comfortable with these changes? Do they accord with the ethical principles that separate Ministers from the courts and tribunals? He should be clear, when he answers, that most responsible commentators and respected NGOs see this as a slippery-slope provision to be deprecated.

--- Later in debate ---

[Lord Bellamy (Con)]

My understanding is that they are not to make recommendations. They can make their risk assessments and say whether there is a valid release plan; they can do all of those things. They can say this man or woman poses no risk to the public, or does pose a risk, or whatever it is, but they cannot express an opinion on the very question that the Parole Board is required to answer: whether the prisoner should be released. This is essentially a change that brings the decision on release back to where it belongs: the Parole Board, not the expert.

[Lord Carlile of Berriew (CB)]

Is not the noble and learned Lord confusing two quite different things? The expert does not give an opinion on whether the person should be released, as the noble and learned Lord suggested has been the case; the expert gives his opinion on whether it is safe for the person to be released. That is quite different. Can the noble and learned Lord, with all of his expertise, think of another form of expert evidence in which the expert is not permitted to give his opinion on the key matter under consideration?

[Lord Bellamy (Con)]

My Lords, I respectfully submit that we are dealing with angels dancing on pins here. What is intended by this change is to make it clear that the responsibility for the decision rests squarely with the Parole Board, and to avoid the risk, however remote, that the expert report tends to usurp the role of the decision-maker, running the risk of them delegating their decision to the expert. This amendment brings the Parole Board process in line with the rest of the justice system. I respectfully refer your Lordships to the evidence of Professor Stephen Shute to the Science and Technology Committee of the other place on 7 September. He made this very point, saying that it is for the Parole Board to make the decision, rather than run the risk of the matter being left in the hands of the expert.

Analogy has been rightly drawn with what happens elsewhere in the justice system; for example, in relation to pre-sentence reports in the criminal process. One does not find the probation officer saying that the court should impose a community sentence. One asks the probation officer to assess whether the offender is suitable for a community sentence. This change will align the practice of the Parole Board more closely with the rest of the justice system.

--- Later in debate ---

[Lord Bellamy (Con)]

My Lords, with respect, I have always understood it to be the case—I hope I have not got this wrong—that an expert should not normally give his opinion on the very issue on which the court is required to decide. The scope of the expert’s opinion is to provide the court with the factual details. It is the duty of the expert not to say whether X or Y is guilty or not guilty but to provide the court with the facts on which that decision is taken. At least, that is common practice.

[Lord Carlile of Berriew (CB)]

In the jurisdiction in which the Minister is so expert, namely competition law—as he knows, I have sat with him in the Competition Appeal Tribunal—economists and other experts giving evidence before the Competition Appeal Tribunal do give an opinion as to whether the practice under consideration is competitive or anti-competitive.

I pull the Minister back to a previous point. Time and again, those of us who have been in criminal courts for a long time have heard judges say to a probation officer, for example, “If I pass a non-custodial sentence, do you think he would comply with orders A, B and C?”. That is an opinion on exactly the issue under consideration. I am completely befuddled by that part of the argument and so, I think, are many noble friends and colleagues.

[Lord Bellamy (Con)]

Perhaps I ought to try to bring this somewhat tetchy debate to a close. The Parole Board is required to decide that it should direct release if it is satisfied that the detention is no longer necessary for the protection of the public. The provision we are discussing makes it clear that the expert should not pronounce on the prisoner’s suitability for release. In other words, the expert should not pronounce on the principal matter on which the Parole Board is being asked to decide. Subject to that, all the other material that was there before will continue to be there.

Human Rights Act 1998

Lord Carlile of Berriew Excerpts

Thursday 14th July 2022 Lords Chamber

[Lord Carlile of Berriew (CB)]

My Lords, it is a great pleasure to follow the noble Baroness. I agree with what she said and defer to her experience in dealing with matters under the Human Rights Act. The background to this debate is in six stark words in paragraph 2 of Schedule 5 to the Bill of Rights Bill:

“The Human Rights Act … is repealed.”


The noble Baroness, Lady Whitaker, opened this debate in that context, with great self-control and temperance. I thank her for keeping the subject so cool, when it could be extremely emotive. If that Bill is ever debated in this House, the Government will face a serious fight, because it is not a manifesto Bill in the form in which it has been presented to Parliament.

The noble Lord, Lord Sandhurst, is an admired legal colleague, and I hope he takes what I am about to say in good part. In my study at home, I have approximately 100 years of Criminal Appeal Reports. Let me take the first Birmingham Six appeal as an example: I could take pages from those reports and say to your Lordships, “These decisions were just wrong”, but I do not present that as an argument for abolishing the jurisdiction of the Court of Appeal Criminal Division. Courts are not perfect places and, as has just been illustrated by the noble Baroness, Lady Chakrabarti, there will be subjects on which we disagree, but they are not an argument to abolish a jurisdiction.

The quantity of cases that have come before the European Court of Human Rights in recent years is deeply connected with this argument, as Suella Braverman happens to have said this morning—I may return to that in a moment. There have been only five cases before the European Court of Human Rights against the United Kingdom since October 2017. I doubt if any Member of this House or member of the Conservative Party could present a respectable argument for disagreeing with the decision reached in those cases.

So I look forward with interest to hearing the speech of the noble and learned Lord, Lord Bellamy, in due course. I had the privilege of serving as one of his part-time chairs when he was president of the Competition Appeal Tribunal. Brilliantly knowledgeable, he was a very good teacher, and, heavens, did I need it in that jurisdiction. The House will often benefit from his great intellectual skills and persuasive voice, and I hope he will use that persuasive voice in his customarily logical way to try to persuade the Government that they are wrong about this issue. We will not blame him if he fails; we will blame him only if he does not try.

The absurdity of Her Majesty’s Government’s position was illustrated this morning by Suella Braverman who is, of course, the current Attorney-General—she is not a random Back-Bencher standing for the leadership of the Conservative Party—who said that one of the reasons why we should abolish the Human Rights Act and take no part in the decisions of the European Court of Human Rights is because that is the way we would prevent refugees crossing the English Channel. I have been struggling with that one all morning. It has absolutely no intellectual or—can I put it this way?—even political credibility. I hope at least that we will hear the Government saying that tropes of that kind will not be used in argument against the Human Rights Acts.

We will have full debates on this issue, I fear, if the new Prime Minister, whoever they are, decides to proceed with this Bill or something like it. I simply ask them to bear in mind some words of James Madison, the founding father of the American constitution, who wrote:

“Liberty may be endangered by the abuses of liberty, as well as the abuses of power”.


That proportionality test is well worth some deliberation before presenting legislation as intended at the moment to this House at least.

--- Later in debate ---

[Lord Bellamy (Con)]

Not as far as I am aware, is the direct answer to the noble Lord’s question. The original Bill of Rights was not subject to pre-legislative scrutiny as far as I know. However, I would myself like to use the extra time we now have in a process of outreach to your Lordships’ House and to other interested organisations—I saw Sir Peter Gross yesterday; I have plans to visit each of the devolved legislatures shortly—to explore and understand all these points and see how far we can narrow the differences between us. I respectfully suggest that there are issues that we need to grapple with here and we need to grapple with them sensibly. This Bill clearly arouses very strong feelings and quite a lot of anxieties, but I hope that we can resolve a lot of them and quite a lot of other problems in the course of sensible and reasoned debate.

At one end of the spectrum, there seems to be an almost entrenched view that the 1998 Act is more than perfect and that the slightest change will bring the whole edifice crashing down, or at least give rise to unacceptable risks. At the other end of the spectrum, which has been mentioned several times, there is the point of view that we should withdraw from the convention altogether. The latter is not the Government’s position, and whatever may be said by someone in their capacity as candidate for the leadership of a political party is not relevant for today’s purposes. The position of the Government is quite clear: to stay in the convention and to reconfirm the rights that flow therefrom that are clearly set out in the Bill. From the Government’s point of view—

[Lord Carlile of Berriew (CB)]

Would the noble and learned Lord be kind enough to help Members of your Lordships’ House, Members of another place and, above all, the public by informing the remaining candidates for leadership of the Conservative Party of what he has just said so that they get it right during the TV debates that will start tomorrow?

[Lord Bellamy (Con)]

With respect, I do not think that I have any channel of communication with the candidates for the leadership of the Conservative Party, but what I have just said is on the record and may be referred to. That is the Government’s position.

As your Lordships have observed, I personally find myself—as do the Government—with cannons to the left and cannons to the right. So in the valley of calm reasoned debate in this House, I would like to explore with your Lordships the centre ground to which this Bill is directed. In my repeat of the Oral Statement on the Bill on 23 June, I used the phrase “constructive balance”: balance between the roles of the legislature and the judiciary; balance between the domestic courts and the Supreme Court, on the one hand, and the Strasbourg judges, on the other, having regard to subsidiarity and the margin of appreciation; and balance between rights and responsibilities. To that theme of balance, I add three related themes: constitutional clarity, the separation of powers and reinforcing the fundamentals that underpin human rights.

I will address constitutional clarity first. After 25 years of the Act in operation, it is important, in the Government’s view, to restate certain basic principles. These include the following: that the convention rights are an integral part of the domestic law of the United Kingdom; that the ultimate judicial authority in interpreting those rights is the Supreme Court, taking into account our domestic legal traditions in particular; and that the possibility of divergence from Strasbourg is recognised—that is not in dispute; it has always been there, as has been pointed out already. Those basic principles are effectively recognised in Clauses 2 and 3 of the Bill, which are declaratory of the existing position.

It is important that the convention retains a very special and unique constitutional status: no other Act of Parliament provides a machinery where another Act of Parliament, even a subsequent Act of Parliament, can be subject to a declaration of incompatibility under Clause 10. However, when that arises, it is the Government’s view that the separation of powers must prevail. At the moment, under Section 3, we have this curious provision whereby the courts can read down the Act to have a different meaning to that which Parliament intended. The Government wish to clear up that constitutional muddle, if I may put it that way, and put the responsibility for bringing the legislation in question into line with the convention back where it belongs—that is to say, the legislature that first enacted the legislation in question.