Victims and Prisoners Bill

Lord Garnier Excerpts

3rd reading
Thursday 23rd May 2024 Lords Chamber

[Lord Garnier (Con)]

It is not the Oscars ceremony, but I just wanted to agree with the noble and learned Lord, Lord Thomas of Cwmgiedd, and the noble Lord, Lord Marks, in relation to the Arbitration Bill. I am precluded by the rules of the House from mentioning the other, uncontentious piece of legislation—but I quietly agree with him.

[Baroness Fox of Buckley (Non-Afl)]

My Lords, I just want to say that it is the Victims and Prisoners Bill and it is very important that we acknowledge the work that has been achieved for IPP prisoners. I thank the team for that. Even though I wanted it to go further, I understand when progress has been made.

The noble and learned Lord, Lord Bellamy, will not mind me saying that the noble Lord, Lord Roborough, and the noble Earl, Lord Howe, have also been very receptive and very helpful. For the first time since I have been here, I have had meetings with officials—it has all felt very grown up—in which I felt that they were listening and that things were being done. So, on this Bill at least, I felt that it was a very constructive engagement. Even though sometimes we have to be antagonistic and critical of the Government and the Front Bench, because they do not do exactly what we want them to do, that does not mean that we do not appreciate the work that has gone on and goes on. I for one will now be contacting the IPP prisoners who, like the people who have been mentioned in relation to the blood scandal, have been, with their families, contacting me all night, saying, “Please don’t let this drop”. Leaseholders are less happy, but that is a different story. Anyway, in this instance, I say thank you on behalf of both victims and prisoners.

Victims and Prisoners Bill

Lord Garnier Excerpts

Report stage
Tuesday 21st May 2024 Lords Chamber

[Baroness Fox of Buckley (Non-Afl)]

My Lords—

[Lord Garnier (Con)]

My Lords, I wish I could speak as eloquently as a number of those who have already spoken—I am sure that the noble Baroness, Lady Fox, will do so in a moment. We have travelled quite some way over the last few weeks, to a large extent due to the noble Lord, Lord Blunkett, the noble and learned Lord, Lord Thomas, and other colleagues of his on the Cross Benches, and my noble friend Lord Moylan, who has been our shop steward in our discussions with my noble and learned friend the Minister.

I hope I will not embarrass my noble and learned friend by repeating what others have said about him, but it is clear that without his willingness to listen and his understanding of the deeply serious problems that IPPs present, we would not be where we are today. I salute him for his patience and kindness in listening to me and in understanding the plight of IPP prisoners. As a Government Minister—particularly one in charge of the justice system and the prison system—the most important phrase that concerns you when you get up in the morning, or go to bed at night, and think about a Bill such as this is “the protection of the public”. We have heard him use that expression any number of times during our discussions. The great advantage we have had in talking to him is that we have had discussions, not rows. The whole temper of the debate this afternoon demonstrates that, across the House, we want a discussion because we want to reach a just and fair answer to this very difficult problem.

I have co-signed a number of the amendments on the Marshalled List, but I want to concentrate, reasonably briefly, on Amendment 149A, to which the noble and learned Lord, Lord Thomas, and others, have spoken. It seems to me to encapsulate the essence of what we are trying to do: yes, to ensure the protection of the public when it is necessary to do so, as the Minister wishes to do, but also to bring a degree of proportionality into the decisions that have to be taken by the Parole Board. There are no double negatives in this proposed new clause; there is a straightforward fixation upon doing what is just and fair.

Many noble Lords will have read the terms of the noble and learned Lord’s proposed new clause, but really one has to read carefully only subsection (2) of it to see that it allows for the Government—any Government—to protect the public, but also allows for our justice system to end the monstrosity which is the injustice and the unfairness of the IPP system. We have had two examples from the noble Lord, Lord Carter, and two more examples from the noble Baroness, Lady Burt, but there are many, many more. Those are the prisoners who have survived, but bear in mind that there are a number of IPP prisoners who have died by their own hand because they have run out of hope. The one thing that a justice system must provide is the ability for a prisoner to get better, to rehabilitate, to return to society and to make his or her way in the world.

Subsection (2) says that

“the Secretary of State must by order pursuant to section 128 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 … direct that, following the prisoner’s referral to the Parole Board they will not be released unless the Board is satisfied that, having regard to the proportionality of the term served to the seriousness of the offence or offences of which they were convicted”.

Come back to the 18-month tariff, come back to the two-year tariff, and see that these men are in prison 18 years after being sentenced, nearly two decades after that tariff has expired. Importantly, the subsection also refers to “any other relevant factors”. The Parole Board is not required to just open the door and release them regardless because they are still there 20 years later, well beyond their two-year or 18-month tariff. It can take into account any other relevant factors. That could be the mental instability of the prisoner concerned or any number of characteristics or behaviours that the prisoner demonstrates, which demonstrate to the Parole Board and those who advise it that this particular prisoner—albeit he has served 20 years beyond his two-year tariff—is still, none the less, unsafe to release.

The burden must surely be on us, as representatives of the state in your Lordships’ House and as makers of legislation, to do things which promote fairness and justice, in a way that is transparently sensible. If I may say so, Amendment 149A speaks nothing but common sense, justice and fairness. Even at this very late stage of the Bill, I urge the Government to have one more think. This is not a matter of Labour against Conservative, Cross-Benchers ganging up on the Government, or the Liberal Democrats ganging up with the Labour Party against the Government. It is not even a matter of a couple of lily-livered, pinko Conservative drips ganging up on their Government and trying to engender a rebellion.

[Noble Lords]

Oh!

[Lord Garnier (Con)]

It is a cross-party justice question. If I cannot stand up and speak for justice as a Conservative, I am in the wrong business. I will be voting with the noble and learned Lord, Lord Thomas, this evening.

[Baroness Fox of Buckley (Non-Afl)]

My Lords, how do I follow those words about pinko commie Conservatives? Quite easily.

Perhaps we would not start from here, but as we are here, I too warmly welcome the Government’s concessions. They show that the Minister has been listening in Committee and at all the meetings. I hope that his listening continues, because there are many very fine amendments in this group, as reflected by the many very fine speeches. Even if the amendments are not voted on, I still think that they are worth considering, and I hope that the officials and the department will take on board what is being said.

All the amendments in this group tackle very specific, and sometimes seemingly technical, matters that remain outstanding in trying to tackle the IPP issue. It strikes me that all these fiddly, piecemeal issues could have been dealt with historically in one fell swoop, and once and for all, by a resentencing amendment. Although I know that that is off the table for now, it will need to be brought back by some future Government. For all that, this group of amendments adds up to more than the sum of its parts, which is why I hope that the amendments will still have an impact, even if they will not all be voted on.

Before I speak to the amendments that I put my name to, I want to show my support for Amendment 145, which the noble Lord, Lord Moylan, said he cannot now press because of a lack of support. The notion of reversing the burden of proof when applying for parole made for one of the most important amendments in this group, not least because it would have had a material impact on the 3,000 IPP prisoners still in jail and it presents the most hope of the amendments here. A lot of people have rightly congratulated UNGRIPP and Donna Mooney on the work that they have done. She reminded us why she wanted Amendment 145 in particular to pass: she is worried that the IPP prisoners who are still incarcerated feel doubly abandoned by this Bill, because it does so little for them as a group. I concur, and I wanted to see that rectified.

That is why it was so gratifying in Committee to hear the noble Lord, Lord Ponsonby, welcome what the noble Lord, Lord Moylan, had described then as a “nudge” to the Parole Board that would make a significant difference. Indeed, as we speak, the words of the noble Lord, Lord Ponsonby, from the Dispatch Box are being echoed and cheered on widely in a clip featuring them in Peter Stefanovic’s latest short vlog, which has had over 1 million views in a matter of days. It is interesting that those words are being cited as a positive example of cross-party co-operation on an important matter of principle about criminal justice. I hear that the Labour Front Bench is now unable to support this amendment.

I want to counter something that the noble Lord, Lord Blunkett, mentioned. He said that, in the build-up to an election, this is a toxic topic. I understand the nervousness about law and order, but I will challenge that. I do not think that it is as toxic as we in this House or the other place sometimes suggest to the public. In fact, I think that public opinion can be won over—and is being won over—on IPPs. The fear that politicians have of the public and public opinion is sometimes an underestimation of the public’s sense of fairness and justice, as we have seen with the range of scandals over recent weeks and months—there have certainly been far too many.

The principle behind Amendment 145 is still important to consider, because if the state insists on retaining the power to continue incarcerating people for decades after their original tariff is spent, using a sentencing regime that the state itself has abolished as not fit for purpose, it is only right that the burden of justifying such extraordinary power should then lie with the state.

End of Custody Supervised Licence Scheme: Extension

Lord Garnier Excerpts

Monday 13th May 2024 Lords Chamber

[Lord Bellamy (Con)]

My Lords, I am not in a position to update the House at the moment on the Sentencing Bill, except to say I understand that it will indeed be progressing through the other place in early course. I will write to the noble Lord about the situation at Dartmoor, on which I am not at this moment informed.

[Lord Garnier (Con)]

My Lords, I declare my interest as a trustee of the Prison Reform Trust. Would my noble and learned friend accept that there is much of merit in the ECSL scheme, but there are not just prisoners who are going to be released early but also IPP prisoners who are still in prison 10 to 15 years after their tariff? Only last month or the month before, we heard how an IPP prisoner took his own life because he was beyond hope. There are far too many people in prison far too long. Could targeting that not be a way of reducing the prison population and emptying those cells that the Government seem so keen to fill up with other people at the other end?

[Lord Bellamy (Con)]

My Lords, the subject of the IPP prisoners will be fully discussed in the Report stage of the Victims and Prisoners Bill, now scheduled for next Tuesday. Noble Lords will be aware that extensive government amendments have been tabled with the clear intention of reducing the population of IPP prisoners.

Victims and Prisoners Bill

Lord Garnier Excerpts

Tuesday 12th March 2024 Lords Chamber

[Lord Bellamy (Con)]

I thank the noble and learned Lord, Lord Hope of Craighead, for that point. It is certainly something I will take away when we come to consider the Government’s position.

[Lord Garnier (Con)]

I apologise, because I know my noble and learned friend wants to complete his speech, but I ask this question simply because I failed to hear. The action plan has been spoken of a lot during the course of this evening. Is that an existing document, and is it published?

[Lord Bellamy (Con)]

Yes, and yes.

On the basis that I accept, on behalf of the Government, the importance of this topic, I invite the noble Baroness to withdraw her amendment.

--- Later in debate ---

[Lord Thomas of Cwmgiedd (CB)]

This is the first of three very short amendments to deal with the independence of the Parole Board. I do not think—and I hope—it is not disputed that the Parole Board is a judicial body and independent. If that is contested, we shall we be here for much longer today—so I hope it is not. I assume it is not going to be.

The second issue is that, if a body is judicial and independent, that independence must be recognised. There are three ways in which Clauses 53, 54 and 55 breach the independence position. First, in Amendment 169, the intention is to remove the power of the Secretary of State to predetermine the membership of the board. We have been very successful with judicial bodies in this country in allowing the judicial body itself, or its president, to determine who sits on panels. I can think of no good reason to change that—unless, of course, the previous Lord Chancellor had other plans for the kind of body he wanted.

The second is the business of sacking the chair. I use the word “sack” as I think it is a good, earthy word for what the previous Lord Chancellor wanted to do. We are the nation that established the idea that Kings could not sack judges, at the end of the Stuart period. We led the way forward, and virtually every proper democracy has that principle. It would be absolutely astonishing if we regressed from that, away from the rule of law. This is a pointer to it: it is quite wrong and should be removed.

The third aspect is quite disingenuous: the desire to remove the provision in the Bill that the chairman of the board should not deal with individual parole cases. It is absolutely unintelligible. Why would you want to make the chairman of a judicial body incapable of dealing with cases? The reason for this was that it could then be claimed that, if the chair of the board was not dealing with cases, the chair did not have a judicial function, and that could therefore justify the sacking. This is both disingenuous and very bad in principle. The chair is turned, effectively, into a pay, rations and hiring functionary rather than a leader.

Secondly, if you are chairing a board dealing with parole, you want to lead it, to know what is going on in the cases, and you want views. You have to sit and do the cases. From my own experience, it is quite clear that, if you have a judicial leader who does not actually understand the business of the courts, the fellow members of the judiciary—in this case, the Parole Board—will have no respect whatever for them.

These are three short points; there is no more I can really say about them. They are all bad points in the Bill. This seeks simply to remove them.

[Lord Garnier (Con)]

My Lords, I am grateful to my former neighbour, the noble Lord, Lord Bach, for permitting me to jump the queue. I want to make some equally brief points to the points made by the noble and learned Lord just now. I will start with Amendment 171. This makes as much sense as requiring the Lord Chief Justice, as head of the judiciary, not to be able to sit in individual cases, either at first instance or at appeal; to deny the Master of the Rolls, who I believe is the head of the civil appellate system, the ability to sit on cases; to deny the chancellor of the Chancery Division the ability to sit on cases; and to deny the president of the Family Division the ability to sit on cases.

These are judicial functions which may have an administrative function as well. If we were really to go down a road whereby the shadow of Dominic Raab is to spring forward into the enlightened era of Alex Chalk, I think we would be making a mistake. That is enough about that.

None of the judicial officers to which I have just referred is removable on the say-so of the Secretary of State. Equally, the constitution should not suffer the embarrassment of having the head of the Parole Board, who is a judicial officer, being removed on the say-so of the Secretary of State. I have a suspicion that if Alex Chalk had written this Bill it would not have contained these clauses.

Amendment 169

“seeks to ensure that the decision as to the composition of the Board is an independent judicial decision made by the Parole Board”.

Again, to go back to my references to the senior judiciary, it is the Lord Chief Justice who deploys the judges within the court system, it is the Master of the Rolls who decides which judges in the appellate court should sit on which particular case, it is the Chancellor of the Chancery Division who decides which of the Chancery Division judges should do what, and it is the President of the Family Division who does the same in relation to Family Division cases. It strikes me as being a perfectly normal and respectable constitutional arrangement. It would be a pity for Mr Raab, who has now moved on, to be able to continue to control the system. He is gone; these should go as well.

[Lord Bach (Lab)]

My Lords, it is a pleasure to support all three of these amendments. They were tabled by the penultimate Lord Chief Justice, and are supported by the most recent Lord Chief Justice and a distinguished recent Solicitor-General, who spoke just now. I am afraid I can only claim to have been shadow Attorney-General in what was, to use a cliché, a bad year, for a shortish time to make up the numbers. I cannot add to the arguments that have been so persuasively put.

It is wonderful to see the noble Earl the Minister in his place; I did not expect him to take this particular group. I invite him to talk to his noble friend from the Ministry of Justice, who I suspect—I hope the noble Earl does as well—privately has a lot of sympathy for these amendments, because they are commonsensical. I ask the noble Earl to ask the noble and learned Lord, Lord Bellamy, to speak to the Justice Secretary patiently and persuasively about these matters.

I start from the position that the Executive should interfere in individual sentencing as little as possible—preferably not at all. Under our constitutional arrangements, it is not the Executive’s responsibility, nor part of their functions. That is why the independence of the Parole Board is so important, as the noble and learned Lord just said. It is hard not to believe, I am afraid, that these proposals would actually have the effect of reducing that independence.

I have down on the amendment paper that I will oppose Clauses 53 and 54 standing part of the Bill. I will not press that at all tonight, but in this short speech I will talk about why I gave that notice; it may save a bit of time later on. It is really because I have two questions for the noble Earl. I asked the noble and learned Lord, Lord Bellamy, at Second Reading, but quite understandably he was so overwhelmed with the matters that he had to reply to in the minutes that he was allowed that he was unable to answer them at the time. I absolutely appreciate that.

The first question is to ask why, under the Bill, the Justice Secretary will send some cases where he has found the Parole Board has got it wrong to whichever body it is that he eventually sends them to, but not others. It was argued in this House in Committee, I think last week or the week before, that that should be not the Upper Tribunal but another body altogether. If he sends some cases where he thinks the Parole Board has got it wrong but not others, that will not make any sense at all. Surely he must send all of the case that he finds to be wrong to this judicial body or none of them. If he sends some then surely the position is not satisfactory. There may one day be a Lord Chancellor—certainly not the current one—who is less generous and would not send any that he felt was wrong to a court. If that position may develop, why on earth is this part of the Bill being proposed?

My second question is this, and the Committee deserves an answer to it: will the Justice Secretary himself make these decisions, or will they be passed down to junior Ministers or to senior civil servants? I have no objection at all to senior civil servants taking important decisions but it is not appropriate that they—or, in fact, junior Ministers in the department—should take these decisions. What is the answer: will they or will they not? If they will, the problems associated with the Executive interfering in sentencing become much more acute. Does the Minister agree? I would be grateful for an answer to both those questions.

--- Later in debate ---

[Earl Howe (Con)]

My Lords, I am very grateful to the noble and learned Lord, Lord Thomas of Cwmgiedd, for speaking to his amendments with his customary clarity. I hope I can be helpful to him and the Committee in my response.

I have heard unmistakeably the reservations expressed across the Committee about these proposals. Before saying anything else, I undertake to represent to my noble and learned friend the Minister the strength of those reservations. I do so without commitment at this stage but in good faith. It may be helpful to the Committee if I explain where the Government are currently coming from in making these proposals so that noble Lords can understand the issues as we perceive them.

Amendment 169 seeks to remove lines 35 and 36 of Clause 53, which would have the same effect as removing the clause in its entirety. Clause 53 amends Section 239(5) of the Criminal Justice Act 2003, which allows the Secretary of State to make rules with respect to the proceedings of the Parole Board. At the moment, the provision permits rules to be made about how many members deal with particular cases, or that specified cases be dealt with at specified times. This clause adds that the Secretary of State may also require cases to be dealt with by

“members of a prescribed description”.

Amendment 169 seeks to remove that addition.

I will explain briefly why we want to ensure that the Secretary of State can make rules about who sits on parole cases. In the Root and Branch Review of the Parole System, the Government committed to increasing

“the number of Parole Board members from a law enforcement background”

and ensuring that every parole panel considering a case involving the most serious offenders has a law enforcement member on it. We are talking here about murder, rape, terrorist offences and the like.

The Government of course recognise that each and every type of Parole Board member brings with them different experience and skills. That range and diversity contributes to generally effective risk assessments and sound decision-making. However, members with law enforcement experience, such as former police officers, have particular first-hand knowledge of the impact and seriousness of offending. Many will also have direct experience of the probation system, including, for example, licence conditions and the likelihood of an offender’s compliance with such conditions.

Clause 53 enables the Secretary of State to make the secondary legislation needed to prescribe that certain Parole Board panels include members with a law enforcement background. We will, naturally, continue to consider operational readiness before we lay any secondary legislation. I hope that explanation is of help.

[Lord Garnier (Con)]

Am I to draw the inference from what my noble friend has just said that, under the current arrangements, inappropriate members of the board have been inappropriately appointed to particular cases?

[Earl Howe (Con)]

No, not at all, but we think that certain Parole Boards can be strengthened usefully by having additional members with the experience that I have described. I have not implied or, I hope, made any criticisms of Parole Boards that have sat in the past or their decisions.

--- Later in debate ---

[Lord Garnier (Con)]

I am sorry that it is very late and I am being tiresome. My noble friend the Minister said that there may come a time or there may be circumstances in which it would be necessary to remove the chairman or chairwoman of the Parole Board. I wonder whether my noble friend could perhaps give me one or two examples of the sets of circumstances in which that might apply.

[Earl Howe (Con)]

A mechanism already exists for the Secretary of State to ask an independent panel to consider dismissing the chair if there are concerns about the postholder’s performance or ability to do the job effectively. That route remains our preferred approach in the unlikely event that a dismissal is required. However, as the board is a high-profile public body, making important decisions on public protection every day, it is right, in the Government’s submission, that the Justice Secretary should have the levers to change the leadership if a situation arose where it was necessary to do so in order to maintain public confidence in the work of the board. It is not a power that any Secretary of State would ever use lightly, and ideally there will never be a cause to use it at all. We are talking here about situations where, for example, there might be conflicts of interest, security issues or confidentiality issues. At the moment, my understanding is that there is no mechanism to dismiss a chair should any issue of that kind arise. The grounds at the moment are quite restrictive.

[Lord Garnier (Con)]

Just to be clear, the Government are proposing that they will need to sack somebody who could be responsible for a breach of confidence, a breach of security, or some other grievous breach; but they will already have appointed this person to that job. Surely the vetting procedure leading up to the appointment would weed out the sort of eccentric people who would leak, or breach confidence, or misconduct themselves.

[Earl Howe (Con)]

That is exactly why I said that it is not a power that it is likely any Secretary of State would use often, if at all.

Victims and Prisoners Bill

Lord Garnier Excerpts

Committee stage
Tuesday 12th March 2024 Lords Chamber

[Baroness Blower (Lab)]

My Lords, I apologise that I was unable to be in the Chamber for the entirety of the Second Reading, although I heard most of it. I will speak first to Amendment 164, which is in my name and those of the noble and learned Lord, Lord Garnier, and the noble Lord, Lord Blunkett, who sadly is not in his place this evening.

As we have heard from many noble Lords’ contributions, serving and recalled IPP prisoners need practical help and support. The purpose of this new clause would be to give effect to some of that practical help and support, which they clearly need. As we all know and have heard several times from noble Lords, these prisoners are often so over-tariff that they have lost any hope of ever being released. They therefore need to develop internal, as well as external, means of support in the build-up to a parole hearing, as well as on release and in transition into the community.

The IPP mentor and advocate scheme would assist prisoners in formulating a detailed release plan with the help of an independent, suitably qualified individual. At the parole hearing, the mentor would provide practical support to the prisoner to assist them in making a clear and articulate contribution to the proceedings, although the new clause is perfectly clear that they would not provide legal advice or make legal submissions. On release, the formulated release plan would assist former IPP prisoners to make a smoother transition into the community and act as a blueprint for successful reintegration.

The organisations that are willing and able to help offenders with resettlement in the community are often not well-known to IPP prisoners, and localised, relevant resources would be signposted to the prisoner by this scheme. While in prison, the IPP prisoner could, with the help of the IPP mentor and advocate, establish communication with organisations relevant to their risk management profile and assist them with proposed resettlement needs. On release, of course, the IPP mentors and advocates would help them to implement their release plan and provide practical support, making further recommendations relating to their specific needs to strengthen their prospects of a successful reintegration into the community. The cost of such a scheme would be modest. Moreover, it would reduce pressure on the prison population, which is at capacity, and prevent recalls to prison.

As we know, there are many ad hoc mentoring schemes in which prisoners are assigned to a mentor to help them during their prison sentence or when they get out on licence. These can help with particular risk factors and provide general support and guidance. It is very important to recognise that IPP prisoners suffer from all these same issues. Whatever the reasons that took them into prison and got them incarcerated, they still need this help and support. One particular and distinct need relates to the fact that many of them—as has been said—have lost faith in the justice system. It is therefore important to ensure that they are given access, on a voluntary basis, to a mentor and advocate who can support them with the steps needed to ensure they are prepared for life in the community.

The scheme could, of course, be subject to a pilot in the first instance and would recruit suitably qualified individuals. These might be, for example, retired probation officers, members of an independent monitoring board, retired members of the Parole Board, or other suitably qualified individuals who have knowledge of the criminal justice system. Following the successful pilot, the scheme would then build up to, perhaps, 50 mentors and advocates working on a part-time or full-time basis.

While it is anticipated that the scheme will be centrally commissioned, there may be innovative ways to fund it using cross-budget resources. Clearly, the better resourced the scheme, the more effective it will be. It is anticipated—these are not my calculations but those of people who have a much clearer understanding of the situation and the likely costs—that the fully rolled-out scheme, employing up to 50 full-time or part-time mentors, would cost less than £3 million a year for a period of three years.

There are still 1,200 IPP prisoners who have never been released, and more than that on recall. Given that it costs the taxpayer £44,000 or £45,000 per annum—my figure is £44,000, but it may be that others know better and it is £45,000—to keep one prisoner in custody, if the scheme were to free up 67 places in the prison estate each year it would pay for itself. How much better it would be if these IPP prisoners were given this extra support, given the particular injustice that they have endured.

[Lord Garnier (Con)]

My Lords, it is a pleasure to follow the noble Baroness, Lady Blower, and I was delighted to be able to co-sign her amendment. It is also a pleasure to witness a debate in the Chamber this evening which has brought us together in unity, both of purpose and of experience. All of us, in our different ways, have had different experiences of the prison system, the courts system and of prisoners, and yet we have all reached the same conclusions, the starkest of which was presented to us by the noble and learned Lord, Lord Thomas, in the first group of amendments, when he observed, entirely correctly, that there is a reluctance to be bold. I would convert his observation—if I can do so while looking at a former Lord Chief Justice—into an injunction: we must no longer be timid, we must be bold.

I have absolutely no doubt that my noble friend the Minister and all his colleagues in the Ministry of Justice, and in particular the estimable current Lord Chancellor, are entirely well motivated in what they wish to see in relation to IPPs and indeed to other pretty appalling aspects of our prison system. However, having a benign intention, walking quietly and saying nice things is really not enough; the reluctance to be bold must be got rid of, because we need action. We need it for the reason that the noble Lord, Lord Carter, and the noble Baroness, Lady Burt, highlighted of the very sad case of the man on licence who took his own life.

I was very pleased indeed that the noble Lord, Lord Carter, was able to lead on the group of amendments we are now discussing, because if ever a speech fulfilled the promise made at a maiden speech, it was his. I am very grateful to him, because we constantly need prodding and reminding that IPP prisoners are not a subject to be spoken of once every six months, with sympathy and wringing hands. They are a living, constant problem, and indeed, as the late Lord Brown, said, what has been done to them is a stain on our justice system. We should all be very grateful, as I think a number of us have already indicated, to the late Lord Brown for the work that he did.

We should also be grateful to the noble Lord, Lord Blunkett, who is absent, for his change in attitude and his admission that he got it so badly wrong when he was Home Secretary in the early part of the Tony Blair Government. It is not difficult to salute him, because you can tell when you talk to him and listen to him that his change of heart is indeed sincere. So, if he can be bold in doing that, please will the Government be bold and get on and do what is right?

Like the noble and learned Lord, Lord Hope, and the noble Lord, Lord Hastings, I have spent quite a considerable time visiting prisons. I have probably said this before, and I can never remember the precise figure, but I think I have been to about 75 prisons, young offender institutions and secure training units in England and Wales—I have not been to a prison in Scotland or in Northern Ireland. It was abundantly clear, whenever I went to an adult male prison in which there were prisoners serving IPPs, from both looking at, talking to and interacting with them but also with the governing staff, that the most impossible group to manage were the IPP prisoners. They were literally hopeless. They had no future—no boundary and no observable, touchable limit to the torture that they were going through. That is why we must be bold, that is why we cannot allow this to go on, and that is why all these amendments, in every group, deserve the support of this House and the support of the Government.

--- Later in debate ---

[Lord Clarke of Nottingham (Con)]

My noble friend is of course talking to an audience in this Chamber which agrees with every word he is most eloquently saying, and it is obvious that the Government should press on. The one thing he has not spoken of is the reason that Prime Ministers and Governments will not, and what it was that drove liberal-minded, sensible people such as Tony Blair and David Cameron to defend this IPP system. It is, straightforwardly, fear of public opinion, fear of the media—in particular of the tabloid press, but the whole of the media. The one thing even the most liberal Prime Minister, and certainly those who surround him in 10 Downing Street, is convinced of is that they must never be seen to be “soft on crime”. The only pressure that ever comes from No. 10 in response to some highly publicised crime is for longer sentences to be imposed for whatever criminal offence has currently come into fashion. In an election year, that is even more likely to apply and to be our principal problem today.

[Lord Garnier (Con)]

I am most grateful to my noble friend. I will have to check tomorrow morning the Hansard report of where I had got to in my speech; I have a suspicion I was in the middle of a sentence in which I was just about to say exactly what my noble friend said—but I am grateful to him, because he was able to say it so much more eloquently than I would have done.

We are in the position with criminal justice and sentencing that we were in the first decade of the 20th century with Dreadnought building. If the Germans have five, we must have six. If we have six, they must have 10. If they have 10, we must have 15, and so on —and guess what? You get 1914.

Here, we are dealing with adult, mature politicians who take instructions from editors and proprietors. Yet, if they bothered to ask the public—and occasionally the press do ask the public—they would find that the public are not nearly as keen on longer sentences or on IPPs as they might think. Had they been braver and bolder—as the noble and learned Lord, Lord Thomas, would have us be—perhaps we would not have arrived at where we are.

I regret that I have spoken for far too long in Committee, but over the last 25 years this issue has really annoyed me. I am so grateful to the Prison Reform Trust, of which I too am a trustee, for its assistance in trying to restrain my enthusiasm and, at times, my anger about this subject and for providing me with the information and the assistance which I hope have to some extent informed this debate. There is not a single amendment on the Order Paper this evening which does not deserve the gravest consideration of this Committee and the urgent action of this Government.

[Baroness Fox of Buckley (Non-Afl)]

My Lords, it was a real privilege to witness that exchange and I think we are getting to the heart of why we are all here and are so passionate about this. I have a couple of short clarifications, because at this point by the time I get to my amendment on re-sentencing there really will be nothing else to say; I am rewriting my speech rapidly every time everyone speaks.

When I first heard about the indefinite sentences that were associated with IPPs—when they first came out in that arms race to prove how tough we could be on law on order—I was horrified. I was delighted when the noble Lord, Lord Clarke, abolished them; I thought that was it, because I was not in Parliament and not following. I went into prisons as part of work I was doing with an educational project called Debating Matters Beyond Bars which encouraged prisoners to debate and could not believe it when I discovered that, despite the sentences being abolished, there were still IPP prisoners.

In fact, I told the prisoners in my own characteristic way that they were wrong and that IPPs had been abolished and could not still exist. So I was determined once I got in here to at least discover what on earth had gone wrong. I cannot bear it, now we are tackling the issue, that, even though the sentences have been abolished, they will still exist when we have finished dealing with this Bill. It seems abhorrent.

I wanted particularly to back up the mentoring proposals from the noble Baroness, Lady Blower. If you talk to any families of IPP prisoners, or IPP prisoners themselves, they know that they have been destroyed and damaged by this sentencing regime. They are not gung-ho about it. They do not just say, “Release us, we’ll be fine”. What they would really gain from is mentoring. It is the kind of creative solution that would help us support the re-sentencing amendments. This is the kind of support that people will need.

It was hard not to shed a tear at the very moving speech from the noble Baroness, Lady Burt, who said that many of the people whose mental health was suffering had been destroyed by IPPs. But we should also note that it could well be that their mental health is not permanently damaged by the ongoing psychological uncertainty, anxiety, torture and so on. We need a combination of the mentoring scheme and a recognition of the fact that the sentencing is, to be crude, literally driving people mad—and the sanest person would go mad. You do not necessarily need medication; you need compassionate, grown-up intervention and support. In that sense, I support all the amendments in this group and all the others, but I really think that, for want of a better phrase, we have to be the grown-ups in the room now and try and sort this out.

Criminal Jurors

Lord Garnier Excerpts

Wednesday 6th March 2024 Lords Chamber

[Lord Bellamy (Con)]

My Lords, speaking from the experience of a sometime, extreme lowly, recorder of the Crown Court, the first thing that one is taught as a criminal judge is to ensure the well-being of the jury. I am sure that all judges go out of their way to ensure that the jury is properly looked after—as do the court ushers and the jury bailiffs—and they are, generally speaking, warmly thanked for their participation. There will be occasions when further support is needed, and the Government are, as I said, planning trials and tests, later this year, to explore the options.

[Lord Garnier (Con)]

My Lords, I ask a question as an even more lowly recorder than my noble and learned friend the Minister—albeit that he and I have not carried out that role for some many years. Can I suggest to him that there is a practical way in which juries can be better appreciated, despite the good work of the court staff and so forth? Their accommodation is, frankly, hopeless. They sit for long periods, having to concentrate, on uncomfortable benches. They retire to pretty low-grade rooms, and those who are in the jury-in-waiting are accommodated in fairly poor-quality accommodation. Could my noble and learned friend see if the department can improve the jury accommodation, not just in the modern courts—they are a bit better—but in some of the older and more dilapidated courts?

[Lord Bellamy (Con)]

My Lords, I am happy to report to the House that the present Lord Chancellor secured a major financial injection from the Treasury, specifically to improve the court estate—which, in some areas, has been a problem, as my noble and learned friend has rightly pointed out. I am sure that at least some of that money will, rightly, go on improving accommodation for the jury.

Victims and Prisoners Bill

Lord Garnier Excerpts

Committee stage
Wednesday 24th January 2024 Lords Chamber

[The Lord Bishop of Manchester]

My Lords, I will speak in support of Amendment 15 in my name. I also offer my support to the other amendments, not least that in the name of the noble Baroness, Lady Gohir, which seems to be an uncontroversial proposal that simply corrects a lacuna in the Bill.

One of my abiding mantras is that there is no such thing in our society as a hard-to-reach group. What we have—and have all too often—are services that fail to make sufficient effort to ensure they reach all those they are intended to assist. It is not good enough for a service to exist; the people it is meant to support have to know it is there and be able to access it. The noble Baroness, Lady Newlove, spoke powerfully earlier this evening. I gather that she spoke at a Women and Equalities Committee oral evidence session where she emphasised that many victims are unaware of the support services available to them. I will not go any further, because I think she may want to speak in a moment; I will not steal her thunder.

The intention of the amendment in my name is to make it clear that responsibility for ensuring that victims can access services does not lie with the potential service user. We need it in the Bill because too many victims are simply not aware of what they ought to be able to look for for help—or they cannot access that help in a format that meets their needs.

I gather that in the other place the Minister claimed that the duty on criminal justice agencies to use reasonable steps to make victims aware of the code would suffice. Yet signposting is much more than enabling someone to know that a service exists. It means putting them in a place from where they can access the service. Sometimes that cannot be done by a leaflet, however good, or a few words spoken to a traumatised victim in the immediate aftermath of a tragedy. It requires enduring engagement by service providers until the message can be heard, and that may be some considerable time later.

The Women’s Aid Survivor’s Handbook provides a clear example of what practical support should be included. Such support can be a lifeline to victims of abuse who, for example, may be planning to leave their perpetrator. The ability to access thorough information on a full range of issues, with easy-to-follow guidance, is crucial. It is also imperative that black and minoritised women, deaf and disabled women and LGBT+ victims are able to access support that meets their very specific needs and is sensitive to their experiences of additional inequalities and intersecting forms of discrimination. Victims should also be made aware of the range of helplines and online support, including the Women’s Aid live chat helpline and other appropriate domestic abuse and violence against women and girls support. Simply saying that there is a code will not bridge the gap between the victim and the service they need. I hope the Minister will feel able to offer proposals to strengthen the signposting requirements in the Bill ahead of Report.

I finish by recollecting that exactly one week ago in your Lordships’ House we debated, for a good hour and a half, what makes for good signage and who is responsible for it. Specifically, we discussed changes to the requirements placed on warning signs for level crossings between private or heritage railways and farm tracks—it was more interesting than you might imagine. Surely if we can improve signage to help a farmer get his sheep across a railway track, we can properly sign victims to the services they need.

[Lord Garnier (Con)]

My Lords, I will not follow the right reverend Prelate down the byways of Manchester, or the sheep farmers and their signposts, but I support him and indeed the noble and right reverend Lord, Lord Harries, in the thrust of the amendments that they have introduced. I am part of a catholic gathering which supports the amendments tabled by the noble and right reverend Lord. I do it because I think it is a sensible, practical thing to do, but also because I have seen it work.

Many years ago, when I was the shadow Minister for Prisons in the other place and my noble friend Lord Cameron of Chipping Norton was the leader of the Opposition, I visited a huge number of prisons. I think I visited about 75 of the 145-odd prisons, secure training units and young offender institutions in England and Wales, and in a number of prisons, certainly adult prisons in London, in Wales and in other parts of England, I saw restorative justice in action.

It is a delicate process and one needs to be very careful that it is, as the amendment tabled by the noble and right reverend Lord, Lord Harries, makes clear, carried out where appropriate and that it is available where appropriate. Not every victim is ready to enter into a conversation with the person who committed a crime against them. I have been in the room when RJ took place between prisoners and the victims of murder, the victims of serious violence and the victims of domestic burglary. It takes a very strong person to go into a room and listen to the explanation, the apology, the regret of a prisoner who has killed your husband or your son or your daughter. You need to be very strong and very brave. Equally—I suppose to some extent it is easier because there is, if you like, an advantage to the prisoner to be seen to be behaving in a humane way—I think it is fair to say that for many of the prisoners, some of whom were not very articulate, who had not been educated and who had many social, economic and other disadvantages, it was quite brave of them to come to terms with the horrific things that they had done. So I think “appropriate” is the most important word in the amendment tabled by the noble and right reverend Lord, Lord Harries.

Also, tailoring the scheme, or the particular episode of restorative justice, to the needs of that particular victim is so important. It is not just a blanket answer: putting two people in a room with a presider, if you like, to make sure that it goes well. You need to think about it extremely carefully and treat the individuals concerned extremely carefully; it cannot be forced and it cannot be rushed.

But I believe that restorative justice is a hugely important factor in the reduction of crime and recidivism. It brings together people who have been perpetrators and those who have been victims in what can only be a traumatic experience—namely, the experience of the crime but also the experience of meeting the person who committed the crime against you or a loved one.

I am delighted that the noble and right reverend Lord, Lord Harries, has tabled his amendment, as I am that the right reverend Prelate and the noble Baroness, Lady Bennett, have tabled theirs. This is a subject which has been discussed many times but has never been properly resolved. It has to some extent been seen as a luxury add-on to the criminal justice system; it is not—it is vital and fundamental in the appropriate cases. I say this as someone who has looked at the practical effects of it not only as a shadow Minister but also as a trustee of the Prison Reform Trust, which has been well-invested in this aspect of the criminal justice system.

Finally, I thank the noble Baroness for tabling her Amendment 13. I thought I knew quite a lot about the criminal justice system, but I had absolutely no idea that the oddity she highlighted this evening existed. It needs correcting.

[Baroness Bennett of Manor Castle (GP)]

My Lords, it is perhaps particularly appropriate that I follow the noble and learned Lord, Lord Garnier, as a way of highlighting the fact that the amendments in this group addressing restorative justice, a number of which are in my name but have already been introduced by the noble and right reverend Lord, Lord Harries, are not party-political. This is a conviction, understanding and belief that goes right across the political spectrum and, as the noble and learned Lord, Lord Garnier, said, has arisen from practical experience. Speaking to other noble Lords in the Corridor who have seen my amendments, I have had many people who said, “I wasn’t really convinced and then I saw restorative justice in action, and now I am totally a convert to this idea”. The Government are getting a clear message from right across your Lordships’ Committee that, as the noble and right reverend Lord, Lord Harries, said, what was said in the other place—the idea that “Oh, we can put something in the code”—really is not going to do it; we need this in the Bill as a step forward.

I went through this at Second Reading, so I will not repeat it all, but if we look at what the Government are offering now, in their wording is a suggestion that restorative justice is nice when we can find the resources, so you might be lucky enough that there might be the resources available in your area or you might not. That is simply not good enough.

Briefly, I agree very much with all the amendments in this group and echo the comments about Amendment 13. The noble Baroness, Lady Gohir, has found something that the Government can surely pick up, because it so obviously needs to be sorted out.

Victims and Prisoners Bill

Lord Garnier Excerpts

2nd reading
Monday 18th December 2023 Lords Chamber

[Lord Garnier (Con)]

My Lords, I will begin with the routine: reminding the House of my entry in the register of interests, including my practice at the Bar, which covers cases that have to do with the general subject matter of the Bill.

I now move to a unique, but none the less welcome, aspect of today’s proceedings. We have just heard the maiden speech of the noble Lord, Lord Carter of Haslemere—and it was, if I may say so, worth waiting for. As the noble Lord explained, his peerage was gazetted in 2019, but he was introduced into your Lordships’ House only a couple of weeks ago. He also explained why there had to be a hiatus: for the last seven years he has been general counsel to No. 10 Downing Street, giving legal advice to four successive Prime Ministers. I am sure that he provided a much-needed element of stability at that address. Listening to the dangerously quiet advocacy that he was able to deploy just now makes me grateful that there is such a thing as the Government Legal Service and that such intellects as the noble Lord’s are deployed in its service.

It would have been difficult for a government lawyer working at the very heart of the Administration, who was not a law officer, to speak without giving the impression that he was speaking for the Government and, more particularly, the Prime Minister. But now the noble Lord is one of us: free to speak his mind from the Cross Benches and to give us the benefit of his experience and undoubted wisdom acquired over his many years in the Government Legal Service. He has worked on dozens of Bills, taking them through their entire legislative cycle, from policy formation to implementation into law, so we will rely on him to ensure that legislation leaving this House is in better shape than it was when it arrived.

Like the noble Lord, I am a trustee of the Prison Reform Trust and I particularly look forward to his reforming the law on IPPs and other aspects of the criminal justice system, as well as his analysis of Home Office and Ministry of Justice Bills—I am sure that we will not be short of them—and his contributions to our debates on international and treaty law. Today we heard the overture, and it is with eager anticipation that we await the many, I hope, successive acts of the opera. The noble Lord is more than welcome, and we all wish him well as a Member of your Lordships’ House.

I turn to what I believe to be an important omission from the Bill, which otherwise I generally support. For want of time, I will not discuss the vital question of IPPs, but other noble Lords from right across the Chamber have already done so, and I dare say that others may yet do so. My noble friend Lord Moylan and other noble Lords will table amendments in Committee, and I will join them when they do.

The omission I would like to deal with is the absence of support for overseas victims of corruption and fraud. Thanks to the Economic Crime (Transparency and Enforcement) Act 2022, the Economic Crime and Corporate Transparency Act 2023 and the Online Safety Act 2023, economic crime, bribery, money laundering and fraud are back in the news and on political agendas—although they have not really been out of the spotlight over the last 20 years.

Multinational companies have been fined more than £1.5 billion over the past decade after investigations by the Serious Fraud Office into corruption abroad, but only 1.4% of those fines, amounting to about £20 million, has been used to compensate victim countries. That is according to research carried out by Mr Sam Tate, a partner of the City of London law firm RPC. This needs to change.

Much of this corruption occurs in African countries that are already suffering terrible economic hardship from food, climate and energy crises, as well as from inflation. They are in dire need of economic support to repair the damage caused by corruption. The British Government have been vocal in their support for compensating foreign state victims of corruption, but the action actually taken to compensate foreign states tells a different story and leaves us, I fear, open to charges of hypocrisy. Most corruption cases brought before the English courts involve foreign jurisdictions. This country steps in as the world’s prosecutor and prosecutes crimes that take place in other countries, but then keeps all the fines for itself.

This is important, because corruption causes insidious damage to the poor and to the not-so-poor, particularly in emerging markets and economies. The United Nations says that it impedes international trade and investment, undermines sustainable development, threatens democracy and deprives citizens of vital public resources. The African Union estimated in 2015 that 25% of the continent’s gross domestic product was lost to corruption. Every company convicted of overseas corruption in this jurisdiction should be ordered to compensate the communities they have harmed. That would be both just and effective. Compensation should come through investment in programmes targeted at decreasing corruption and benefiting local communities by, for example, building and resourcing more schools and hospitals.

At first glance, our law encourages compensation: it is required to take precedence over all other financial sanctions. So far, so good—but, as with many noble ambitions, the problems lurk in the detail. Compensation is ordered in criminal cases only where the loss is straightforward to assess, even though the trial judge is usually a High Court or senior Crown Court judge who will deal routinely with complex issues every day.

Let me refer to two completed cases that are matters of public record. In 2022 Glencore pleaded guilty to widespread corruption in the oil markets of several African states. Although it was ordered to pay £281 million, not a single penny has been ordered to go back to the communities where the corruption happened, largely because it was held that compensation would be too complicated to quantify. The Airbus deferred prosecution agreement tells a similar story: the company was required to pay £991 million to the United Kingdom in fines, but compensation to the numerous Asian companies where the corruption took place formed no part of the deferred prosecution agreement.

The process for compensating overseas state victims needs urgent simplification so that real money can be returned to them. An answer lies in incentivising the corporations that commit these crimes to pay compensation voluntarily on the understanding that it would not increase the total amount, including penalties and costs, that they would have to pay. The company could be further incentivised by receiving a discount on the fine it would still be required to pay to the UK Treasury, or an increase to the fine if it refused or failed to make redress.

The required changes are straightforward and would cost the taxpayer nothing. We could create a standard measure of compensation that would ensure consistency and transparency, as well as avoiding the difficulty of calculating a specific amount of loss or damage in each case. The compensation figure could equal whichever is the higher of the profit made by the company from its corrupt conduct or the amount of bribes it paid to obtain the profits. This already happens when companies are sentenced, save that all the money goes to the British Treasury. The defendant company would pay nothing more, but at least some of the money would benefit the victim state and its citizens.

This could be achieved by requiring the defendant companies to enter into an agreement with the relevant state that would include obligations to comply with UN guidance on the treatment of compensation funds and to identify projects for which the funds could be used. To encourage states to enter into these types of arrangements, corporations could be permitted to donate the compensation funds to the World Bank or the IMF for projects in the region instead—or to pay down the country’s debt if an agreement cannot otherwise be reached.

The benefit of this approach is that unlike at present, where there is no disadvantage in doing nothing, it puts the onus on the corporates to take restorative action. It also addresses the difficulties in quantifying loss by creating a simple approach that gives companies early sight of the amount they will have to pay.

I am not so naive as to think that compensation paid to some foreign Governments by, for example, British corporate defendants found guilty of overseas bribery in our courts, will necessarily be spent on good causes in that state. I accept that such a scheme might encourage corruption by permitting foreign government officials to benefit from the corruption and then to benefit from the compensation, but the time has come for us to design a scheme to increase dramatically the percentage of recovered money that repairs the damage caused by corporate corruption abroad.

If the Government are serious about placing victims at the heart of the criminal justice system—and I believe they are—that should include an effective, watertight compensation regime that makes a reality of the mantra that corruption is not a victimless crime. Overseas victims of complex financial crime such as corruption are currently finding it far too difficult to be recognised and to receive support and compensation in our courts. Compensation should be returned to those affected by corruption, in line with the principles that the United Kingdom committed to at the Global Forum on Asset Recovery, a continuing by-product of the Anti-Corruption Summit initiated by my noble friend Lord Cameron of Chipping Norton in 2016.

This Bill would be enhanced if victims of complex financial crime and corruption from other jurisdictions were recognised as victims and compensated appropriately. These reforms would comfortably fit into this Bill, I suggest, but they need the political will to amend the sentencing guidelines on corporate corruption. They will need a carefully designed set of rules to implement the practical aspects of the policy. If we do this, we can hold our heads high and enhance our national reputation in the fight against international corruption.

Lord Chancellor and Law Officers (Constitution Committee Report)

Lord Garnier Excerpts

Thursday 20th July 2023 Grand Committee

[Lord Garnier (Con)]

My Lords, I am delighted to follow the noble Baroness, Lady Drake, and thank her not only for her comprehensive opening remarks and for the committee’s report but for inviting me to give evidence to the committee last year. It is a very balanced report which, if I am right, underlines the importance within our constitution of the roles of both the Lord Chancellor and the law officers in protecting the rule of law. The noble Baroness was entirely right to remind us of the recent occasions when that has broken down. I am also delighted to see the noble Lord, Lord Hennessey, in his place, because it means we can benefit from his wisdom this afternoon, and also because, I hope, it suggests that his health has been restored to him. I look forward to hearing from my noble friend the Minister and from other noble Lords speaking this afternoon.

At the risk of doing something unusual, I will talk about myself. I am by no means the only lawyer here, but I believe I am the only person here who can claim membership of the former Solicitors-General club. Long ago, an Attorney-General said that being Attorney-General was the worst job in government and being Solicitor-General was the best. Both have their upsides and downsides, but I have a certain pride that I held an office in the 21st century that was held in the 18th century by my direct ancestor William de Grey. I have inherited his gout but not his intellect: he had what we nowadays call a stellar chancery commercial practice at the Bar and, although in his final years his hands were riddled with gout, preventing him from holding a quill, he was able to give extempore judgments as Lord Chief Justice after long and complex trials that stand the test of time to this day.

Shortly after my appointment in 2010, I was showing off to the then Lord Chief Justice, the noble and learned Lord, Lord Judge, that de Grey had been successively Solicitor-General and Attorney-General from 1763 to 1771, under five Prime Ministers. After that, I told him, de Grey became Lord Chief Justice of the Common Pleas. The noble and learned Lord smiled engagingly and gently reminded me that some apparent precedents are easily distinguished upon their facts.

Before I return to the subject of law officers, I agree with the current Lord Chief Justice, the noble and learned Lord, Lord Burnett of Maldon, who said earlier this week at Mansion House—reflecting some of the remarks made by the noble Baroness, Lady Drake, a moment ago—that:

“It is my belief that a Lord Chancellor’s primary interest should lie in nurturing the long-term health of the Courts and Tribunals, the legal system and the independence of the judiciary”.


If I had my way, I would return to the Lord Chancellor’s duties doing the things that the noble and learned Lord mentioned. Some would say that the ship carrying that sort of Lord Chancellor has sailed, never to return. I disagree. If it can be changed in one way, it can be changed in another way.

Government departments are frequently repurposed. It simply requires the political will to do it. I would release the Lord Chancellor from the prisons portfolio and the expenditure responsibilities that go with being Secretary of State for Justice, save those connected with the administration of justice. The Lord Chancellor does not need to be an elderly lawyer devoid of ambition; our current Lord Chancellor is, after all, young—at least from where I am looking—but by no means the youngest there has been. He is a very able lawyer, bright and enterprising, and a member of the former Solicitors-General club. Whoever it is, they should be someone with sufficient calibre and character to hold their own in and be listened to with respect by the Cabinet—and someone who does not feel the need to ring up Downing Street for permission to support the judiciary. Elizabeth Truss’s response to the committee, as cited by the noble Baroness a moment ago, was inadequate. I agree with the assessment of the noble Baroness of what one needs in a Lord Chancellor.

In my evidence to the Constitution Committee last year, I said that one of the things I have worried about over the last several years is that the fellowship of lawyers and Members of Parliament, between the judiciary and the Government and the judiciary and Parliament, has gone. We no longer speak the same language. When I took one of the many recent Lord Chancellors to dinner in my inn, they felt like they were going into a foreign country. Not so very long ago, the Lord Chancellor not only would have known most of the people there but would have appointed many of the judges in the room. There was a shared constitutional understanding about their separate roles: the role of Parliament, the role of the Executive and the role of lawyers and the judiciary. That has gone.

It is a great pity, and it discourages members of the Bar and solicitors from entering public life. By that I mean not just those who have law degrees or those who are called to the Bar or admitted as solicitors or advocates in Scotland; I mean those with High Court and appellate practices, men and women of standing within the legal professions who command the respect, if not always the agreement, of the judges they appear before. These people are discouraged from coming into the House of Commons. Why give up a good practice? Why swap all that for the likely inability to continue your practice and, associated with that, the public obloquy that goes with being a Member of Parliament in an era of social media? I know plenty of people much younger than me who would make excellent Members of Parliament, excellent Ministers and excellent law officers, but they will not come anywhere near Parliament because they see it as poison. The consequence is that, although we may from time to time find lawyers of sufficient experience fit to be law officers, it is becoming increasingly difficult.

I was lucky enough to have a London-based practice, which required me to travel no further than the Royal Courts of Justice on the Strand, so I could maintain it to a reasonable level while a Member of Parliament. However, for a criminal barrister with a circuit practice, nowadays it is either Parliament or practice but not both. In 1992, when I first got in, the Whips kindly told me that I could not have two passports: I was either at the Bar or I was a Member of Parliament. I ignored them. But when, for example, my noble friend Lord Clarke of Nottingham was first in the House of Commons, he was in court in Birmingham during the day and in the Commons in the evenings. My late noble and learned friend Lord Rawlinson of Ewell told me that, when he entered the House of Commons in 1955, he was told by the Whips that he was not expected to be present until late afternoon and that, if he did come in, it would be assumed that he had no practice.

More than 40 years ago, Lord Rawlinson, a former Solicitor-General and Attorney-General, led me in a very long libel action that gave us plenty of time to get to know each other. He told me that, when he was appointed Solicitor-General in 1962, the then Prime Minister, Harold Macmillan, said, “Remember, you are the last of the Crown officers who remains a Member of the House of Commons”. He then gave him a learned seminar on the history and constitutional role of the law officers. It was made clear that, as Solicitor-General, his first duty was to the Crown, his second was to Parliament and his third—and it was only third—was to the Government of which he was a member. He was told that the Attorney-General is the principal agent for enforcing legal rights and is required to intervene when the public interest, not the Government’s interest, is affected. Sir Hartley Shawcross, one of the great Attorney-Generals, said that

“although the Attorney-General is a member of the government he has certain duties which he cannot abdicate in connection with the administration of the law, especially the criminal law”.

Of course, along with the DPP, the Crown Prosecution Service and other prosecution agencies such as the Serious Fraud Office, the Attorney-General and the Solicitor-General are responsible for criminal prosecutions as part of their quasi-judicial, independent role. Although Dominic Grieve and I made a point of going to court, for example to prosecute in contempt cases and to appear in criminal appeals that had nothing whatever to do with the Government or in the European Court of Human Rights and the European Court of Justice to represent the United Kingdom, we wished that we could have done so more often. I think that we appeared in court a good deal more than both our immediate predecessors and those who came after us.

More recently, the law officers have appeared in court only rarely and most often in unduly lenient appeals, but this was an important part of our duties that had nothing whatever to do with our political existence. Neither of us found it difficult to separate ourselves into our respective functions as politically aware but apolitical law officers on the one hand and party-political Members of Parliament on the other. Having a foot in both camps made us more useful advocates and advisers in a way that a Civil Service lawyer could not be.

Mr Cameron appointed me Solicitor-General in 2010 during a three-minute telephone call. Had he had the time to think about it, I am sure that he would have agreed with Macmillan. I certainly tried to keep Harold Macmillan’s advice to Peter Rawlinson in the forefront of my mind when I was Solicitor-General.

To many Ministers and Members of Parliament, the law officers are either mysterious, barely known creatures or an inconvenient reminder that the law of the land applies to them. Like lawyers in private practice, law officers cannot talk in detail about their work, which is confidential to their client—the Government. However, nor should they just say “no”; they should try to be imaginative and help the Government navigate through their difficulties. Their power, if they have any at all, lies in speaking truth unto power and in resignation. The law officers are more like submarines than the ships of the line in the Cabinet: you know that they are down there somewhere, unseen and unheard, quietly going about their business patrolling the murky waters of Whitehall, but, if they surface and their concerns or disagreements with the Government become known to the wider world, either the Government are in trouble or they are.

It is the fate of the law officers, if they behave as law officers and restrain themselves from making excessively political speeches, to be seen by their parliamentary colleagues as part of some mysterious priesthood, out of touch with the cut and thrust of political controversy. Their offices are off Central Lobby, well away from those of the departmental Ministers behind the Speaker’s Chair, and they cannot show off about their work because it is largely confidential. However, they are not vestal virgins or Trappist monks. They are active constituency MPs or legislators in one House or the other.

[Lord Davies of Gower (Con)]

Can I ask the noble and learned Lord to bring his speech to a close?

[Lord Garnier (Con)]

I am just doing precisely that. The law officers have party-political allegiances and accept collective government responsibility. Their offices and that of the Lord Chancellor are not bad because they are old; they are old because they are good. So long as we can encourage good lawyers from all parties and all three jurisdictions to come into Parliament—as we actively should—these offices should remain to serve our constitution. Let us therefore work tirelessly to restore that fellowship between the law and Parliament, which has been lost, and do both institutions a favour.

Parole Board Recommendations: Open Conditions

Lord Garnier Excerpts

Thursday 25th May 2023 Lords Chamber

[Lord Bellamy (Con)]

My noble friend makes a very fair point. That is a matter primarily for the Sentencing Council, but the Government will of course keep it under review.

[Lord Garnier (Con)]

My Lords, we long ago got rid of Home Office Ministers setting tariffs in life sentences because it permitted politics to become involved in the justice system. Can my noble and learned friend assure me that of the 76 decisions made by the Secretary of State rejecting a Parole Board recommendation, politics played no part whatever in any of them?

[Lord Bellamy (Con)]

My Lords, those decisions were all taken on the merits. I repeat that it is an operational matter which prison the prisoner should be in. That is quite distinct from the question of whether a prisoner should be released, which is the primary role of the Parole Board.