Economic Crime and Corporate Transparency Bill

Lord Garnier Excerpts

Committee stage
Tuesday 25th April 2023 Grand Committee

[Lord Thomas of Gresford (LD)]

My Lords, I will speak to my Amendment 80, in my name and those of the noble Lords, Lord Cromwell and Lord Agnew, and the right reverend Prelate the Bishop of St Albans, for whose support I am most grateful.

I will give a little background to set the amendment in context. In the 2021-22 Session, I drafted and introduced a Private Member’s Bill on the issue of SLAPPs, based on the Ontario model, as endorsed by the Supreme Court of Canada. Obviously, I had modified that model to suit the procedures of the civil justice system in England and Wales. Through the noble Lord, Lord Wolfson of Tredegar, I met with the Under-Secretary of State in the MoJ, James Cartlidge MP, and his officials, and had a very positive meeting with them.

My draft Bill was basically acceptable in principle, but there was one matter, they told me, it did not deal with: the scourge of pre-action threatening letters, designed to inhibit and intimidate journalistic or academic investigation. However, I was told that the Government were proposing a consultation on the issue, and indeed there was a call for evidence on 17 March 2022. It was wide-ranging; there were 48 questions asked of respondents. As it happens, not one referred to the issue of threatening letters prior to proceedings. However, one respondent suggested that any pre-action letter should require a statement of truth, so that any false allegations in the letter could be treated as a contempt of court.

The consultation finished in May of last year, and the MoJ published a full response in July. Dominic Raab said in the foreword:

“Strategic Lawsuits Against Public Protection, or SLAPPs, are a growing threat to freedom of speech and a free press – fundamental liberties that are the lifeblood of our democracy. Typically used by the super-rich, SLAPPs stifle legitimate reporting and debate”.


This is the point that I want to draw to your Lordships’ attention—he continued:

“They are at their most pernicious before cases ever reach a courtroom, with seemingly endless legal letters that threaten our journalists, academics, and campaigners with sky-high costs and damages”.


At the Second Reading of this Bill, the noble Lord, Lord Sharpe of Epsom, said:

“The Government are committed to tackling SLAPPs”


—I am sure that is right—

“but as the first country to pursue national legislation on such a complex issue”

—he ignored all the states of the United States, Canada and Australia, where such legislation exists, but never mind about that—

“it is right that we take the necessary time to consider this carefully and make sure we get it right. We will introduce primary legislation to tackle SLAPPs—this is where I am going to upset all noble Lords—as soon as parliamentary time allows”.

Now, I have to admit, I was upset. He continued:

“We are in the process of ensuring that we have anti-SLAPPs legislation which properly and comprehensively addresses the problem”.—[Official Report, 8/2/23; col. 1317]


So when will parliamentary time allow? Certainly not in this Session: it is highly unlikely that it will feature in a programme running up to a general election. So we are looking at years before this legislation can come to pass, although I guarantee that a Liberal Democrat-led Administration would deal with the matter as a priority.

I come to the substance of my amendment. I take the view that the endless stream of threatening letters—the “most pernicious” element, as Mr Raab described it, and really he should know—can be dealt with in the context of this Bill by criminalising their use in the investigation of the crimes set out in Schedule 9. I appreciate that may not cover the whole gamut of strategic litigation, and that a wider Bill will be necessary in due course, but investigative journalism is very much involved in turning over the stones of fraud, money laundering, bribery and the rest, and it is certainly in that area that SLAPPs have most frequently been used.

So the new offence that I propose could not be simpler:

“It is an offence for a person or entity without reasonable excuse to threaten civil litigation against another person or entity with intent to suppress the publication of any information likely to be relevant to the investigation of an economic crime”.


I think that is fairly understandable. The prosecution would have to prove a threat; a solicitor’s letter will speak for itself, and it will be for the jury to decide and judge its contents. Evidence will be necessary, of course, to prove intent, but that raises no more problems than in any other case in which intent has to be proved. Again, it will be a matter for a jury. An evidential burden would be placed on the defendant to raise a reasonable excuse for the prosecution to disprove, and the ultimate burden of proof of guilt would, of course, rest with the prosecution.

I believe that an offence of this nature, simply stated, would immediately result in a change of culture among those reputation lawyers who profited from this type of litigation. Their collective response to the consultation to which I referred was, “Nothing happening here, guv. Threatening? Oh, it’s just the rough and tumble of ordinary litigation”. No longer would the young Turk in the office be able to dash out on his laptop ill-considered threats. He would know that he will have a responsibility to interrogate his client thoroughly before committing his firm to intimidating conduct which would land both him and his senior partners in the dock, with all the reputational consequences for themselves. Further, it would be a great relief to threatened investigative journalists if, instead of having to consult their lawyers at considerable expense, they could make a complaint to the police and allow the criminal law to take its course. We can make this change now and let the great stew of reform of the civil procedure system which is slowly cooking in the MoJ follow “when parliamentary time allows”.

I conclude by strongly supporting the other amendments in this group for the same reasons. These are creating the means to tackle the SLAPPs problem of imbalance, as described in paragraph 15 of the Government’s response to the consultation. This is how the Government put it:

“the extreme power imbalance and inequality of arms between, on the one hand, media organisations, advocacy groups, academics, and journalists and, on the other, Claimant corporations or wealthy individuals who typically bring these cases”.

This group of amendments is designed to do something now—action, as the noble Lord, Lord Agnew, called for on an earlier amendment. I beg to move.

[Lord Garnier (Con)]

My Lords—

[Baroness Stowell of Beeston (Con)]

My Lords, I am grateful to my noble and learned friend Lord Garnier for allowing me to speak before him. I shall speak to the three amendments I have tabled in my name. I should declare that I chair the Communications and Digital Select Committee, and I have tabled those three amendments with the full authority of the committee, because they follow the work that we have done over the past year or so inquiring into the practice of SLAPPs. We have also been in correspondence with the Solicitors Regulation Authority, and that correspondence is available on the committee’s website. 

My amendments are Amendments 87, 88 and 89. I am very grateful to the noble Lord, Lord Cromwell, for signing all three of them and to my noble friend Lord Faulks and the right reverend Prelate the Bishop of St Albans for signing Amendments 87 and 88. I add, in a personal capacity, that I support the other amendments in this group, both that from the noble Lord, Lord Thomas, and the noble Lord, Lord Cromwell.

At Second Reading, we heard a comprehensive description of the impact of SLAPPs against journalists and public bodies, and the noble Lord, Lord Thomas, has given us a taste of that in his opening remarks, so I will not go over any of that again.

In very simple terms, looking at our different amendments, the noble Lord, Lord Thomas, is tackling this from the perspective of the rich and powerful who abuse the legal system; the noble Lord, Lord Cromwell, is seeking to introduce provisions that support journalists or public bodies in mounting a defence against that action; and, in my amendments, I am trying to deter and prevent solicitors from supporting anybody, normally the rich and powerful, in bringing forward this action in the first place.

In Amendments 87 and 88, I am trying to make it explicit that solicitors cannot accept clients who want to abuse the legal system and avoid and suppress information that could be relevant to economic crime, by giving the regulator clear power to fine and sanction solicitors who breach that rule. They also make it clear that dirty money cannot be accepted for fees when the purpose of the action could prevent someone being subject to the justice system.

To unpack that a little further and focus on those two amendments, at the moment the SRA can fine traditional law firms and solicitors up to £25,000—we know how small a sum that is for some of the very large and powerful legal firms involved. Strangely, the regulator can fine different types of law firms—what are known as alternative business structures—up to £250 million, but this applies only to that kind of category of firm. There is an odd discrepancy. The Solicitors Regulation Authority recently criticised the inadequacy of the £25,000 limit and called for it to be addressed.

My amendments are very much in line with the aims of the Bill, which already removes the regulator’s fining cap for a narrow set of economic crime transgressions but does not specify that this will be applicable to SLAPP cases relating to economic crime. The SRA has said that the Bill’s tests are tightly drawn and the numbers of relevant cases that will fall within them are limited. My Amendments 87 and 88 make it clear that measures to remove the fining cap for professional misconduct also apply specifically to cases that involve an abuse of the legal process to suppress legitimate reporting on economic crime. Not all SLAPPs are about economic crime but, importantly, the regulator says that around half of its current SLAPP investigations are linked to economic crime. Amendments 87 and 88 therefore provide a sensible and proportionate change that supports the spirit of the Bill and government policy to tackle SLAPPs.

Amendment 89 is about closing loopholes that allow the rich and powerful to abuse our legal system and use criminal funds to pay for it. Throughout our scrutiny of SLAPPs as a committee, I have learned that payment for legal advice is not subject to the same type of money laundering regulation checks as other legal services. The Proceeds of Crime Act apparently does not prevent lawyers accepting dirty money to pursue SLAPP cases or require them to report suspicious activity. We have held evidence sessions on this matter and our witnesses described it as a significant issue. Addressing this is complex because—I say this in a Committee of very distinguished lawyers—everyone should have a right to use our justice system and lawyers will need to be able to represent criminals without prejudicing confidentiality. I understand the argument that I expect lawyers to make on the need for criminals to be able to seek proper support and for questions not necessarily to be asked about money.

--- Later in debate ---

With this Bill, the Government are setting out their commitment and strategy to achieve a significant reduction in economic crime and to increase corporate transparency. A number of speakers on previous days have pointed out what a unique opportunity this Bill is to tackle economic crime. To leave SLAPPs, which protect economic crime and act against transparency, on one side for an undefined “later” to deal with them would be illogical to, frankly, the point of negligence. It would also fly in the face of all the previous government declarations on tackling this issue. Could the drafting of these amendments be improved? That is very likely, but that is not unusual in Committee. The House of Lords is a unique pool of legal expertise, some of it present here today. I know that noble and learned Members and others are interested in dealing the SLAPPS issue and in, above all, getting it right. Between now and Report I would like to draw on this pool, in particular as critical friends, as well as the Minister and his officials. I therefore appeal to the Minister not, as hitherto, just to read out a bland statement but to seize this opportunity to engage with the spirit of these probing amendments so that we arrive at an amendment that is satisfactory, unambiguous and fit for purpose to introduce on Report with government support.

[Lord Garnier (Con)]

My Lords, I begin by confessing to having been at the media law Bar for the past 45 years or so, so I know a little bit, but not a huge amount, about the subject we have been discussing. I want to salute the enthusiasm of the noble Lords, Lord Thomas of Gresford and Lord Cromwell, and my noble friend Lady Stowell of Beeston. As I said at Second Reading, this is a subject that needs to be discussed. It needs a through and very comprehensive debate.

The Long Title of the Bill is:

“A Bill to make provision about economic crime and corporate transparency; to make further provision about companies, limited partnerships and other kinds of corporate entity; and to make provision about the registration of overseas entities”.


Having read that, I go on to admire the ingenuity of the drafter of these amendments to fit them into the Long Title because, whereas there is a debate to be had, and it must be had, about SLAPPs, I question whether this Bill is the appropriate vehicle for that debate. That is a procedural issue.

My second point is that when I began at the defamation Bar in the mid-1970s, the economics of the media world were entirely different. Print media were riding high. They were selling millions of copies. The Sun was selling nearly 10 million copies a day. The Daily Mail, owned by Associated Newspapers, was selling a huge number of copies a day. Social media and online media had not been invented.

I used to be instructed by newspaper groups to go to the Queen’s Bench Masters’ corridor, acting for defendant newspapers, to run up legitimate legal arguments—they were not made up—which were there to starve the claimant, in those days called the plaintiff, out of the claim. The newspapers knew very well that they had a case to answer, but they had more money, so the police officer, schoolteacher or nurse who had allegedly been defamed in the local or national newspaper, unless they had an immensely rich backer, was never going to be able to withstand the onslaught of daily interlocutory applications made against them. Sometimes the master would accede to some of the applications that we made, and sometimes they did not, but the newspaper did not care because it had the cash. The individual—the claimant or plaintiff—did care, and sometimes was frightened off by the prospect of having to spend vast sums of money to recover his or her reputation in court.

The boot is now on the other foot. The print media is impoverished and no longer as rich as it used to be; the regional press is decimated, the local press more or less non-existent, and the national press is under some considerable strain. If you want to make money in the media world, you do not do it by publishing printed newspapers—you do it through the broadcast or online media. What we are now seeing is that those who are in the legitimate, perfectly lawful and praiseworthy business of writing as journalists, and those who publish written journalism in hard copy as publishing companies, are finding it increasingly difficult to withstand the economic might of those who disagree with what they have to say in their newspapers. Do not get me wrong: I entirely sympathise with people such as Catherine Belton, who was sued by various Russians—a range of very rich people. But one would get the impression from listening to the noble Lords who have spoken so far that the courts are weak and feeble arbitrators of the disputes that are before them.

For the last 45 years, I have seen cases struck out—I like the American expression, to strike, that the noble Lord, Lord Cromwell, used a moment ago. For the last 45 years, and long before that, before I was out of nappies, Queen’s Bench judges in the High Court in the High Court in London—and I dare say in Edinburgh and Belfast as well—have been striking out cases that were abusive, vexatious or frivolous. What the courts have to deal with is not just the law but the evidence. Just because a worthy defendant complains that they are the victim in a SLAPP case, the court cannot simply take the allegation on the face of it—it has to look at the evidence. By and large, evidence is something that you get to at trial, albeit it that evidence is occasionally tested at the interlocutory stages of an action.

While saluting the enthusiasm of the noble Lords who have spoken in favour of these amendments and who have ingeniously used this Bill to run the argument, I urge the Committee to be cautious, because the number of SLAPP cases is remarkably small compared to the number of writs issued each year. It is important that this Committee does not mislead the public about the extent of the problem. Legitimate claims have repeatedly been incorrectly described as SLAPPs by the media—but of course the media has an interest in calling them SLAPPs, for the economic reason that I have described.

In the recent case of Banks v Cadwalladr, decided by Mrs Justice Steyn only last year, she said:

“Ms Cadwalladr has repeatedly labelled this claim a SLAPP suit, that is a strategic lawsuit against public participation, designed to silence and intimidate her. I have set out a summary of my conclusions in paragraph 416 below. Although, for the reasons I have given, Mr Banks’s claim has failed, his attempt to seek vindication through these proceedings was, in my judgment, legitimate. In circumstances where Ms Cadwalladr has no defence of truth, and her defence of public interest has succeeded only in part, it is neither fair nor apt to describe this as a SLAPP suit”.


Despite this, Mr Banks’s claim continues to be referred to as a SLAPP by large sections of the media. Of even greater concern is the reference by some journalists to individuals taking out what they call SLAPP orders—whatever they might be—echoing the media’s disingenuous campaign against privacy rights, including by pejoratively referring to privacy injunctions or agreed confidentiality clauses as gagging orders.

I do not want to be misunderstood. SLAPPs are a problem, but their prevalence is wildly overstated, and it seems to me—after 45 years of jogging around this racecourse—that solicitors are unlikely to be complicit in many of them. I rather suspect that more solicitors are dealt with by the Law Society, the SRA or the police for stealing client money than for running SLAPP cases.

Let us please just settle down a bit and not get overexcited by the one, two or three Russian oligarchs who have made an allegation that they have been defamed and who, on the evidence, have sometimes been proven right and sometimes wrong. The essential point is that a dispassionate judge, dispassionately looking at the evidence, will make a dispassionate ruling on what he or she has found, as Mrs Justice Steyn did in the Banks case, and the world goes on.

Being sued is indeed expensive and annoying, and it enables lawyers to be instructed and charge fees—I am afraid that is part of the way we do things in this country—but to suggest that SLAPPs are a plague and a menace just on the say-so of one, two or three cases, of which a number of us may or may not disapprove, does not prove the case. There is much work to be done to look into the question of SLAPPs and much debate to be had, but this Bill is not the place to have that debate. I applaud the noble Lord, Lord Thomas, and other noble Lords who have brought forward these amendments because the matter needs to be discussed, but it is not properly discussed within the confines of this Bill.

[Baroness Wheatcroft (CB)]

My Lords, the noble and learned Lord, Lord Garnier, speaks as a lawyer. I speak as a journalist, with a long career in newspapers. I declare my interest as chair of the oversight committee at the Financial Times. I assure the noble and learned Lord that the very presence of the possibility of SLAPPs weighs very much on the minds of journalists. As he explained, newspapers no longer have the sort of money that might have funded the types of cases that he described and indeed worked on, but now there are some very important cases that they do need to pursue, and for that reason I very much support all the amendments in this group.

I will give just one example: the case of Wirecard, which was company fraud on a massive scale that cost a lot of people a lot of money. One brave journalist on the Financial Times had pursued the case for a long time, against huge opposition from the company and those around it who were making money from it. His editor was prepared to allow him to continue to pursue the case, at which point the German company hired a well-known London law firm which threatened all sorts of litigation and also criminal proceedings. It accused him, without any base, of having been interested in manipulating the share price of Wirecard in order to make a great deal of money. At that point, the Financial Times was risking a great deal of money and a huge hit to its reputation. The law firm bombarded the company and the journalist with letters threatening all sorts of things, but the Financial Times decided to stick with it. In the end, as we all know, that was the right decision and some people were able to salvage some honest money that would otherwise have been lost to an almighty fraud.

A lot of organisations, not just media organisations, do not have the wherewithal even to contemplate being put in that position. A lot of small NGOs investigating fraud—in many cases financial fraud—do not have the funds to risk getting to the stage where a court might well say that there was no basis to the litigation and throw it out. It is the intimidatory effect of the very existence of this sort of legislation that causes the problem. Therefore, we need to get this legislation on the books as quickly as possible. As noble Lords have said several times, we cannot afford to wait. Here is the perfect piece of legislation to make these few amendments. As the noble Lord, Lord Cromwell, said, improvements could be made to them, but the principle must be right. We should go ahead.

[Lord Garnier (Con)]

Before the next contribution, I apologise to the Committee but I must be in two places at once. I hope the Committee will forgive me for not being here when other speeches are made and the Minister winds up. If that is thought to be very rude, I shall sit here, and there we are, but if I may, would it be—

[Lord Thomas of Gresford (LD)]

It is unprecedented.

[Lord Garnier (Con)]

It is unprecedented and very rude of me, but there seems to be rather a lot going on at the moment.

[Lord Cromwell (CB)]

I will take 30 seconds to respond to a couple of the noble and learned Lord’s comments while the rest of the Committee decide whether they are happy. Apart from trying to remove from my mind the image that the noble and learned Lord planted earlier of him in his nappies and thanking him for his kind words, I say that he is exactly the kind of critical friend that we need to get this right. However, to suggest that it does not belong in this Bill, which is about economic crime and transparency, which SLAPPs directly impinge on, is disingenuously playing with words. SLAPPs are embedded in our system and directly relate to economic crime and transparency.

On his reference to there being very few cases, I made the point earlier that most cases never see the light of day because people are intimidated. That is exactly the point here. Our courts need defined tests to examine potential SLAPPs and sometimes say “That is not a SLAPP”, and sometimes say, “That is a SLAPP”. Some egregious cases will get that treatment. As my colleague to my left said, it is the threat of the sheer cost of getting to trial, along with all the other intimidatory tactics, such as of truckloads of documents turning up at your house on a Friday night, that we need to dissuade law firms pursuing.

Parole Board (Amendment) Rules 2022

Lord Garnier Excerpts

Tuesday 18th October 2022 Lords Chamber

[Lord Garnier (Con)]

My Lords, I support the noble Baroness, Lady Prashar. Because she set out the arguments so well and so fully, there is very little more that I need to say—save that, in standing, I want to demonstrate that this is not a party-political issue; this is a matter of constitutional propriety, and I think it is a matter of justice.

I suppose this is a smallish point, but I think that the negative procedure is the wrong way to deal with a statutory instrument of this nature. According to the notes attached to the statutory instrument, this regulation has been in law since the summer, and this is the first time that your Lordships’ House has had an opportunity to discuss it. As we have learned from the noble Baroness’s remarks, this statutory instrument carries with it matters of huge importance which should not just be lightly passed into law.

The second point I draw from her remarks is that, long ago, we got rid of political decision-making in the tariff-setting of life sentences for prisoners, and yet we are now introducing political input into questions which should be dealt with by the Parole Board by a “single view” of the Secretary of State. I suppose there was a time when the Secretary of State for Justice might be expected to know something about the law, but that is no longer the case. Therefore, it seems to me all the more extraordinary that a political Minister should have the power, passed by this little-discussed measure, to have a single view which trumps all others—indeed, shuts out all others.

In essence, I entirely support what the noble Baroness had to say, and I am reasonably certain that most other speakers will as well.

[Lord Dholakia (LD)]

My Lords, I am pleased to support the Motion in the name of the noble Baroness, Lady Prashar, and to reinforce her concerns about recent changes to the parole process.

When it considers a prisoner’s case, the Parole Board has two decisions to make: first, whether to direct the prisoner’s release; and, secondly, whether to recommend that the prisoner should be transferred from a closed prison to an open establishment. The board carries out these functions to an extremely high standard. Its members include current and former judges, police officers, Crown prosecutors, probation officers, psychiatrists, psychologists, lawyers and members of other professions.

All Parole Board members receive thorough training on risk assessment, which is regularly reinforced by risk-focused in-service training. In every case which goes to an oral hearing, the board assesses whether a specialist member—such as a psychiatrist, a psychologist or a member with particular training in terrorism issues—should be on the panel. As a result of this strong focus on effective risk assessment, the proportion of prisoners released on parole who commit a further serious offence is less than 0.5%, which is a remarkable record of the success of the Parole Board in its work. It is difficult to see how any system based on human judgment could produce a significantly better result.

An essential part of the parole process is the provision to the board of reports from specialists working for His Majesty’s Prison and Probation Service—including prison staff, probation officers and psychologists—as well as other specialist reports commissioned by the service. These reports contain a detailed assessment of the prisoner’s risk. They include information about the prisoner’s progress in custody, their sentence plan, their risk of reoffending, their risk of serious harm and the arrangements and licence conditions which would be in place if they were released.

In the past, these reports also contained recommendations for or against release on parole and for or against a transfer to open conditions. The Parole Board was not bound to accept these recommendations, as it has a duty to make its own independent assessment of the prisoner’s suitability for release or open conditions. However, it was obviously helpful for the board to receive recommendations from professionals who had particular knowledge of the prisoner because they had worked with him or her on a regular basis during the prisoner’s sentence.

These recommendations have now been prohibited. This decision is totally illogical, since professionals who are commissioned by the prisoner’s legal representatives will not be prohibited from making recommendations. If a prison psychologist assesses the prisoner and believes that he or she is not safe to release, they are prohibited from saying so. However, if an independent psychologist is commissioned by the legal representative to assess the same prisoner and concludes that they are safe to release, they can make a recommendation for release to the Parole Board. In this case, the board would receive only one recommendation from a psychologist, a recommendation in favour of release, as even though the prison psychologist considers that the prisoner remains too dangerous to be released on licence, they are prohibited from saying so to the Parole Board.

This approach is patently nonsensical. It is difficult to see what it has to do with protecting the public or promoting sound decisions. The decision to prohibit these professionals from making recommendations seems to have arisen from the desire of the previous Secretary of State, Dominic Raab, to reject recommendations for open conditions in certain cases, specifically cases where he argued that a move to an open prison would

“undermine public confidence in the criminal justice system”.

This phrase seems to be shorthand for refusing recommendations in high-profile cases because of a fear of adverse media publicity, even when there is strong evidence of the prisoner’s suitability for open conditions.

The former Secretary of State may well have feared that it would look embarrassing if he refused a recommendation for open conditions when his own professional employees in the Prison and Probation Service recommended this. This does not seem to be a very grown-up way of making decisions. ln any organisation, senior leaders are entitled to overrule the recommendations of subordinates if they consider that there is a good reason for doing so. But no sensible leader would prohibit their staff from making recommendations in the first place in areas where the subordinate has particular knowledge and expertise.

The Secretary of State has always been able to reject recommendations for open conditions made by the Parole Board. But it makes no sense for him or his officials and the Parole Board itself to make their decisions in the absence of recommendations from those who have close knowledge of the prisoner. The new Secretary of State should review this change in the parole procedure and reverse it. This would be by far the least of the U-turns which the Government have undertaken in the last few weeks. None of us would be inclined to crow over a sensible reversal of policy of this kind. On the contrary, we would welcome a readiness to change direction after considering reasoned arguments from those with knowledge and experience of the parole system.

I believe strongly that future parole decisions should continue to be based on the accumulated experience and expertise of the Parole Board, informed by reports and recommendations from professionals with close knowledge.

[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)]

In a sense, this is an inter partes procedure, with the Secretary of State on one hand and the prisoner on the other. The Secretary of State, like a party, is putting his view to the board. That is the single view that, in my submission, he is entitled to put.

While I am on the single view, this is likely to refer simply to the very top tier of cases, probably 150 to 200 cases a year out of the many thousands that the Parole Board deals with. It refers to very dangerous, highly sensitive cases of prisoners involving murder, serious violence and so forth. In those cases, it is thought right that the Secretary of State, through his representative before the Parole Board, should be able to present a single overarching view. That is a sensible approach which avoids confusion and uncertainty.

Nothing in any of these reforms prevents or limits the ability of the Parole Board to make the right decision or the ability of the relevant members of staff, whether psychologists, probation officers or whatever, to make the risk assessments or to put in whatever observations they wish within the assessment that they are required to make, except to make the relevant recommendation.

It is not a change that should in any way undermine the system. HMPPS staff will continue to provide reports to the Parole Board. Their reports will still contain the same detailed evidence and assessment of risk as before. The only omission will be a recommendation on what decision the report writer thinks the Parole Board should make. Far from undermining the Parole Board, the intention of these reforms is to draw a sharp distinction between the roles of those who provide evidence and those whose duty it is to assess the evidence and reach a decision. That is the essential background.

[Lord Garnier (Con)]

Does my noble and learned friend think it appropriate that a political Minister should be the conveyor of a single view—the only view—on a matter for quasi-judicial discussion?

[Lord Bellamy (Con)]

The Secretary of State has an overriding duty to protect the public. In that context, as the guardian of the safety of the public, he is entitled to present his view to the Parole Board, which then decides.

On the second point made by the noble Baroness in relation to the implications for the progression of offenders, the Government’s position is that there is no change. The rules by which prisoners progress through the system and their opportunity for release will continue to be assessed by the Parole Board, as they are at the moment.

On this occasion, I will not go into the open prison/closed prison issue, because that is not the subject of what we are discussing today. On the point we are discussing, this change in the rules about the recommendations, it is a very limited change and is fully in accordance with general principle. HMPPS will continue to provide comprehensive evidence to the Parole Board and factual evidence for the assessment of risk, as before.

Prisoners: Imprisonment for Public Protection Sentences

Lord Garnier Excerpts

Tuesday 8th March 2022 Lords Chamber

[Lord Wolfson of Tredegar (Con)]

My Lords, I cannot go now into details of the action plan which will be published. What I can say is that we are absolutely focused on the sword of Damocles nature of the licence hanging over the prisoner. That is why we brought in the automatic referral. What I can say, though, is that prisoners are recalled from licence only when they exhibit behaviour which makes their risk unmanageable in the community. Over 40% of recalls are in relation to fresh offences committed when on licence.

[Lord Garnier (Con)]

My Lords, I, too, refer to my trusteeship of the Prison Reform Trust. Some years ago, Dame Anne Owers, the former prisons inspector, said that there was a link between humanity and effectiveness. Do the Government have their own view on the link between humanity and effectiveness in relation to the IPP regime? Why do we have to wait for them to be told what to say by the Justice Committee?

[Lord Wolfson of Tredegar (Con)]

My Lords, I think the link between humanity and effectiveness might lie beyond a short answer to a question. What I can say is that quick fixes—such as retrospectively abolishing the IPP sentence or resentencing IPP offenders—would expose the public to unacceptable risk. We have to recognise that people were given IPP sentences because they were considered dangerous. Having said that, we are working towards making sure that all prisoners subject to an IPP sentence are properly reviewed and their sentences are progressed.

Judicial Review and Courts Bill

Lord Garnier Excerpts

2nd reading
Monday 7th February 2022 Lords Chamber

[Lord Garnier (Con)]

My Lords, my public law experience as a member of the Bar is not as extensive as that of other noble and learned Lords or other noble Lords who are lawyers. However, alongside the noble Lord, Lord Pannick, who is in his place, I appeared in Miller 2, the prorogation case, which was decided unanimously against and which, it seems, encouraged the current Prime Minister, the defendant in that case, to demand that access to judicial review be severely curtailed. In any event, the Independent Review of Administrative Law, chaired by my noble friend Lord Faulks, followed not long after and published its report in March last year. It is a pleasure to follow him in this debate.

I suspect that my noble friend’s and his fellow panellists’ recommendations were not wholly to the Prime Minister’s liking as they did not go nearly far enough for him. However, I have lost no sleep whatever over that. It was a measured and thoughtful report that suggested some limited and specific changes to the law relating to judicial review. As the Prime Minister goes through a period of intense political Sturm und Drang, the report wisely states that while the reviewers understood the Government’s concern about recent court defeats, they considered that disappointment with the outcome of a case or cases was rarely sufficient reason to legislate more generally. The report is rational and evidence-based and, I am happy to acknowledge, Part 1 of the Bill is surprisingly restrained in its objectives as regards judicial review. If that is a consequence of anything done by the Minister he is to be congratulated, because at times like this a cool head and a steady hand are essential in government.

The change in the law set out in Clause 2 reversing the Cart decision, will, I hope, enable the tribunal system in immigration cases still to do justice without unfairness to applicants. I agree with what my noble friend Lord Faulks just said on Clause 2. Paragraph D16 on page 162 of the report notes that in 2019, the number of immigration judicial review cases was

“higher by nearly a factor of four to the number of immigration cases in 2000. Proportionately, immigration used to be about half of all judicial reviews … and it now makes up the vast majority of all judicial reviews (82%).”

Further relevant detail is set out in Appendix D of the report.

Despite what the noble Lord, Lord Anderson, said about his experience in the European Court, and what the Minister described, in that delightful way, as remedial flexibility, as well as his wider arguments, I am a little more sceptical about the proposal in Clause 1 which provides for prospective quashing orders. I accept that Clause 29A(9) of the new clause to be inserted into the Senior Courts Act 1981 gives the court some slight leeway not to make a prospective order and, in their response to the consultation, the Government said that prospective orders are likely to be rare. They may be, but we need to guard against the predicted and predictable unfairnesses that may come with prospective quashing orders. No doubt we will discuss this further in later debates on the Bill, as we will the other technical and less controversial provisions in Part 2.

That said, I welcome the proposal flowing from Clause 43 for a new combined courthouse on Fleet Street to deal with economic and financial crime cases. It will be a valuable addition to the court estate.

Police, Crime, Sentencing and Courts Bill

Lord Garnier Excerpts

3rd reading
Tuesday 25th January 2022 Lords Chamber

[Baroness Burt of Solihull (LD)]

My Lords, I am grateful to the Minister for the amendment. He has followed through on a commitment he made on Report, which is greatly appreciated. However, like all the other noble Lords who have spoken, I wish the Government had gone further. Indeed, our little cross-party team put several other amendments forward, a number of which have been alluded to by the noble Lord, Lord Moylan.

This is one small improvement to a system that needs to be abolished for this group of prisoners caught on the wrong side of history. It is, however, a movement in the right direction. When the Minister spoke to me on the day that he made the commitment to bring the amendment forward, he quoted Newton’s second law. For noble Lords who, like me, do not have a clue what Newton’s second law is, it says that it is easier to move an object already in motion than one at rest. Well, the object is in motion and we—and, I believe, he—will try to push it along as far and as fast as we can whenever the opportunity arises. The ball is rolling and we will keep on pushing for justice and fairness for those whom the law has left behind.

[Lord Garnier (Con)]

My Lords, I appreciate that Third Reading is not the time for long and ponderous speeches, but I wanted to place on record—as someone who tabled amendments on Report and in Committee to deal with IPPs and the injustice that remains—that I wholeheartedly support the remarks of the noble and learned Lords, Lord Brown and Lord Judge, my noble friend Lord Moylan, and the noble Baroness, Lady Burt.

This is just the beginning and must be seen as something that will continue to be looked at, both by the Select Committee in the other place and the Ministry of Justice. I also place on record my personal thanks to my noble friend the Minister, who has dealt with this question with sensitivity and within the bounds of possibility that being a Minister in this House places on him. I thank him for what he has done and look forward to hearing more that will undo the injustice that the IPP regime is still visiting on a number of people.

[Lord Clarke of Nottingham (Con)]

My Lords, I feel very guilty that I was unable to arrange my diary to take any part in the Bill as it went through because this is the part of the Bill in which I would otherwise have taken an active part. I have already apologised to the noble Lord, Lord Blunkett, outside this House for the fact that in the end I was not able to offer him any assistance.

I add only, as my noble and learned friend just has, my support and simply record that I was the Lord Chancellor who abolished indeterminate sentences in 2011 with the wholehearted support of the noble Lord, Lord Blunkett, who was then in the House of Commons with me and defused any attempts to preserve this stain on the statute book, which he had accidentally introduced without any expectation that it would be used as it was and resolve into a problem.

If you had told me when we abolished this sentence that there would be thousands of people in the position that they are now, 11 years after abolition, because they were left over to be dealt with, I would not have believed it. What I proposed was simply a change to the burden of proof that the Parole Board had to apply when deciding whether it was safe to release somebody, but that was never implemented. The fact that all these years later we face these problems is something of a disgrace. I thank the Minister for making this modest move, but I certainly agree with what everybody has said about the modesty of it. It needs urgently to be addressed by the Select Committee in the other place.

Police, Crime, Sentencing and Courts Bill

Lord Garnier Excerpts

Lords Hansard - Part 1 & Lords Hansard - part one & Report stage
Wednesday 15th December 2021 Lords Chamber

[Lord Pannick (CB)]

My Lords, I have added my name to the amendment proposed by the noble Lord, Lord Marks, and I agree with everything that he said and, indeed, what has been said by the noble Viscount, Lord Hailsham. There is no doubt that there is a real difference, both in principle and in practice, between exceptional circumstances and what is required in the interests of justice. It seems to me that, whether or not the circumstances are exceptional, it is essential that the court has a power not to impose a sentence that the judge believes to be contrary in the circumstances of the particular case to the interests of justice.

I am surprised and disappointed to hear from the noble Lord, Lord Marks, that a Minister of Justice, particularly one as wise and fair as the noble Lord, Lord Wolfson, should resist an amendment that confers power on the courts to avoid imposing a sentence that the judge believes would be contrary to the interests of justice. How can that possibly be right? If we are to have more minimum sentences—and I share the concerns as to whether we should—it is absolutely essential that the judge has a discretion to impose a sentence that he or she thinks is in the interests of justice.

[Lord Garnier (Con)]

My Lords, I entirely agree with the noble Lords, Lord Marks and Lord Pannick, and my noble friend Lord Hailsham.

[Lord Faulks (Non-Afl)]

I have had the opportunity on a number of occasions, sitting as a recorder, to pass sentence in cases where, in one case after another, advocates have suggested that I take an exceptional course—and sometimes I have been persuaded to take an exceptional course. It seems to me that the word “exceptional” provides an opportunity for a judge in the interests of justice to depart from the minimum sentence. But this is a decision taken by the Government in response to a particular set of offences, and the general public would perhaps agree with that policy; it requires judges to think long and hard before deciding that there are exceptional circumstances. I note that the noble Lord, Lord Marks, suggested that there may be many cases where they consider it in the interests of justice not to pass a minimum sentence. It seems to me that that is a question of policy that the Government have identified and, although naturally I favour as much judicial discretion as possible, it seems to me a policy decision that they are entitled to take.

--- Later in debate ---

So, although I am grateful to the noble Lord, Lord Pannick, for his generous adjectives, which I hope to retain despite our disagreement on this issue, I would say that this matter is properly one for Parliament because it is a question of setting out the ambit of judicial discretion. In our system, sentencing is a mixture of parliamentary legislation and judicial application. I therefore agree with the description given by the noble Lord, Lord Faulks: Parliament can properly decide what the ambit is of departing from a minimum sentence, as a matter of policy.

[Lord Garnier (Con)]

I hate to disagree with the Minister on this matter of policy, but of course Parliament can do what it likes. The question is whether that is wise.

[Lord Wolfson of Tredegar (Con)]

We must distinguish carefully between whether it is wise, which is a point we can make about any legislation, and whether it is proper. When the point is put against me that this is an attack on judicial discretion and a case of not trusting judges, I hear it as a matter of policy and constitutional propriety first and a matter of wisdom second. So far, I have addressed the point on constitutional propriety. My noble and learned friend is right to say that Parliament can do what it likes; my point is that, here, Parliament is doing what is constitutionally proper as well. As to whether it is wise, I set that out earlier.

In these circumstances, it is proper to endorse the exceptional circumstances test. A system in which 50% of people are not being given the minimum sentence is, I suggest, one in which something is going seriously wrong. Although I pay great respect to anything said my noble and learned friend, the point put briefly but clearly and firmly by the noble and learned Lord, Lord Hope of Craighead, ought to carry serious weight with the House.

--- Later in debate ---

[Lord Judge (CB)]

We all know that IPPs are a failure. They were abolished years ago. They are not available. Why on earth do we continue to keep people subjected to them, incarcerated, unless they are indeed dangerous.

May I take a completely trivial example? My daughter is in South Africa. She hit the red line four days after the new virus appeared. If she comes back, she is subjected—or was—to 11 days’ incarceration in a hotel, which is trivial compared to anybody in prison. That has changed and the red lines have gone. Is it really being suggested that those who were in a hotel, in quarantine, should now continue to be in quarantine although people coming in from South Africa will no longer be subjected to it? Of course not; it is completely daft.

I regret to say that I think the current situation is daft. We really must try to help the Government get rid of this absurdity and—can we also remember?—enable justice to be done to a large number of individuals.

[Lord Garnier (Con)]

I think the last point made by the noble and learned Lord, Lord Judge, needs to be said often and loudly. The noble Lord, Lord Blunkett—I praised him in Committee—was brave enough to admit that this form of sentence was wrong. My noble and learned friend Lord Clarke of Nottingham abolished it when he was Secretary of State for Justice, but we are left with what I may call the detritus of this admitted mistake. What we must do now is clear it up. We have got rid of the sentence. As the noble and learned Lord said, it is no longer available. We are left with, as the noble and learned Lord, Lord Brown, just pointed out in a highly effective speech—and in Committee —hundreds of people remaining in prison long beyond their punishment tariff and others, as my noble friend Lord Moylan pointed out, on licence well beyond any sensible period.

I am a signatory to my noble friend’s amendment but, as I said in Committee, I could have signed any of the amendments to do with reforming IPPs. I say, as both a Member of this House and as a fellow trustee of the Prison Reform Trust with the noble Lord, Lord Bradley, that we have got to the stage now where nobody who has sense of justice or common sense could defend what we now have. All we are looking for is a way in which the Government can complete the task that my noble and learned friend Lord Clarke began when he was Secretary of State for Justice and which for some reason has not been completed in the eight or so years since the sentence was abolished.

Now is the time. If we are to have a Bill as huge as this, let us make good use of it by adding into it just provisions that do justice and which prevent men and women being incarcerated or on licence still for no very good reason. If I may say so, let us also get rid of this provision that is not doing the victims of their crimes any good either. Victims of criminal activity want justice both for them and for the defendant, but this is not justice for either the defendant or the victim.

[Viscount Hailsham (Con)]

My Lords, I rise briefly to support all three of the proposed new clauses, most particularly those proposed by Amendments 79 and 80. Looking back on my time in Parliament—nearly 40 years now—I think this was the most unfortunate decision taken in the criminal system. I pay tribute the noble Lord, Lord Blunkett, for coming to this House and putting before us his proposed new clause. Indeed, I pay tribute to the noble and learned Lord, Lord Brown, for his proposed new clause as well. A huge injustice has been done; as a parliamentarian, I view our contribution to it with a great sense of shame and embarrassment.

At the end of last week, a prisoner wrote to me to tell me that he had a tariff of two years imposed on him and has now served 14 years. I do not know the detail of his case but it is deeply troubling that that happened. In fact, I have referred his letter to the chairman of the Parole Board; I very much hope that she will look into it carefully. I can do no more. However, the truth is that the proposed new clauses before this House give us an opportunity to move forward. My belief is that they do not go anything like far enough, but we have to take the steps that are available.

I hope that my noble friend the Minister will respond sympathetically to the issues raised. I must say, if the opinion of the House is sought on any of these proposed new clauses, I will support them.

Police, Crime, Sentencing and Courts Bill

Lord Garnier Excerpts

Lords Hansard - Part 1 & Report stage
Wednesday 8th December 2021 Lords Chamber

[Baroness Lister of Burtersett (Lab)]

I apologise for not being here at the outset, but I have listened very carefully to what has been said and it seems to me that it would be wrong simply to steamroller this amendment through now when virtually everyone who has spoken has done so very eloquently against it. Would it be possible to take it away, talk to learned Members of this House and come back at Third Reading with something that might be more acceptable ?

[Lord Garnier (Con)]

Like the noble Baroness, Lady Lister, I, too, apologise for not being here at the outset when my noble friend Lord Hailsham began. I know that next week we are going to talk about IPPs. That subject carries with it all the problems that this subject will bring with it. We now know that IPPs went wrong and have created injustices, and that there are people who have IPPs but short tariffs well past their expiry date and who are still in prison 10 or 15 years after their sentencing. Could we not learn the lessons from the IPP problem and, in order to help us learn those lessons, postpone a decision on this clause until after we have had the IPP debate, so that together we can draw a united conclusion about how best to move forward with justice?

[Lord Wolfson of Tredegar (Con)]

My Lords, the joys of the IPP debate are ahead of us. That raises very different points. The IPP sentence has different characteristics and the problems that it has given rise to are entirely different. I listened very carefully to the debate in Committee on IPPs, when a number of noble and noble and learned Lords expressed disquiet and tabled various amendments. They will know that I have had conversations with them about it. So I am entirely alive to the IPP issue, but that is completely separate from this issue. We consider that this measure is an appropriate response to this form of offending.

Police, Crime, Sentencing and Courts Bill

Lord Garnier Excerpts

Lords Hansard - Part 1 & Committee stage
Monday 15th November 2021 Lords Chamber

We have heard clearly tonight why this appalling situation cannot continue. We must set the direction of travel tonight, and I hope that the Government will recognise that action needs to be taken. However, in the short term, people with mental health problems need proper assessment in prison so that their issues can be addressed effectively on their road to release from prison.

[Lord Garnier (Con)]

My Lords, because of the quality and content of the speeches already made this afternoon, I hope I can be quite brief. I begin by declaring an interest as a trustee of the Prison Reform Trust and by commending the report that the noble Lord, Lord Bradley, just mentioned: No Life, No Freedom, No Future, the title of which brilliantly encapsulates the Kafkaesque state of affairs that we see when we consider IPPs. I also briefly thank Frances Crook, the retiring director of the Howard League, for all the work she did and for trying over the years to improve and inform the debate about what goes on in our prisons.

Our prisons are a secret world. When I was a Member of Parliament I once explained to a local journalist that I thought that all prisons should of course have walls to keep the prisoners in and to protect the public from the prisoners. However, all these prison walls should have windows in them so that the public could see in and learn what is being done on their behalf inside these prisons, but also so that the prisoners could see through those windows out into the world and into society, to see that if things went well for them and if their life, educational and employment prospects were improved by what they were doing and learning in prison, there was a world out there waiting to welcome them back. The journalist said, “Have you considered the public expenditure implications of building all these windows in those walls?” It is occasionally possible to lose the will to live when discussing something as complex as the state of our prisons.

Where it is not necessary to lose the will to live is when one listens to the noble Lord, Lord Blunkett, explaining and accepting—very publicly and bravely—that he got it wrong in the early part of his time as Home Secretary. I congratulate him. Most former Home Secretaries—most politicians—spend their post-government life rewriting history. This former Home Secretary has accepted that he got it wrong—I thank him for it—and he is now trying to assist us in getting it right again. I also congratulate the noble and learned Lord, Lord Falconer, on following on that particular train of thought. It behoves all of us in this Chamber, whether we are interested in this subject directly or indirectly, to mend this problem, and it is a problem that needs mending. The noble and learned Lord, Lord Brown, describes IPPs as the greatest stain on our justice system, and he is entirely right. However, it is a stain that we can remove.

I tabled Amendment 208E and have co-signed Amendments208F and 208G, but I could have co-signed any of these amendments. I simply want to see IPPs abolished. I want to see all those who are on IPPs at the moment either released under supervision or transferred to some other form of more humane sentence which gives those people hope, a life, an aspiration of freedom and a future which they can aspire to. At the minute, they are literally hopeless.

Some 14 or 15 years ago, when I was shadow Minister for Prisons in the other place when the Conservative Party was in opposition, I made a point in that job of visiting as many of the prisons in our system in England and Wales as I possibly could. There were then about 140 or 145 institutions—adult male prisons, adult female prisons, YOIs and secure training units—and I think I managed to get to about 70 or 75 of them. On a number of occasions I visited prisons where there were IPP prisoners, and the governors universally said, “This cohort of prisoners is the most difficult to manage because they have no hope.” They did not know when they were going to be released or whether they were going to be there for ever or whether they might be released in a year or two’s time. They had no idea which it was going to be.

One of the reasons I tabled Amendment 208E is that proposed new subsection (2) of that amendment describes the things within prison which are hopeless and entirely damaging to a fair justice system. Amendment 208E is one of several “six month report” amendments—I say in parenthesis that Amendment 208F is the one to go for if we are to do anything of a positive nature this evening. Amendment 208E, along with others of these “six month report” amendments, describes what is wrong with the system as it currently is. It asks

“whether there are sufficient places available for prisoners serving sentences of IPP on offending behaviour programmes”.

No, there are not. It asks

“whether prisoners serving sentences of IPP are able to complete offending behaviour programmes in appropriate time to aid progression milestones such as parole or recategorization”.

No, they cannot do that. You may be queuing up for a course while you are in, let us say, Maidstone Prison, and then you are churned—moved to another prison—so you will go to the back of the queue, or moved to a prison which does not have the relevant people to lead you on that particular course. Your mental and physical health records take months to follow you to your prison, and when they arrive and when the new governor or the new teaching staff of that prison to which you have been sent catch up with your request—guess what? You are moved to a prison in Bristol, Leeds, Liverpool or somewhere else. It is a hopeless state of affairs, and we should have done something about it years ago.

It follows that there are not sufficient places available for prisoners serving sentences of IPP in prisons providing progression regimes, for the practical reasons I have just pointed out. Is there availability of other opportunities for prisoners serving IPP sentences to enable them to progress and demonstrate reduced risk, particularly for those who have completed opportunities afforded to them by offending behaviour programmes and progression regimes? Of course not; it is a shambles—a cruel shambles.

Even on what I call ordinary life sentences, prisoners can do a particular course to demonstrate that, before long, they may become suitable for release on licence. However, if they do them within the first two or three years of their imprisonment, then remain in prison for another 14 or 15 years, all that they may have learned on that course all that time ago has long been forgotten, and all the people who have supervised them in prison have no corporate memory of what prisoner A, B or C learned all those years ago. So when they are reassessed after having completed the tariff, they fail the assessment. Can they get on a course again? Of course not. They are told, “You’ve been on one already. You’ll have to wait your turn, after all the other people”. The simple, practical organisation in our prisons is not fit to cope with this troubled and troubling group of prisoners on IPPs.

I will end on this point. The thing that a convicted defendant on sentence wants to hear is not a moralising judge telling them that they have behaved very badly and must never do it again, but the number—that is, how long they are going inside for. When they are sentenced to an IPP and hear the tariff of two or five or 10 years, that is the number that sticks in their mind among all the noise and clatter that is going on in their heads and in the courtroom. It is only when they get into the prison van—the sweat box—or get to the prison for their first reception that it dawns on them that the sentence does not mean two years; it means for ever unless they can do something to help themselves. Of course, because of the lack of availability of the factors that I have just addressed, it is almost impossible for that prisoner to help himself to improve, to see some chance of release and to come out as a better citizen again.

This obscenity must now end. I am sure that my noble friend the Minister and his government colleagues have it within them to do that, and I am sure that they will.

[The Lord Bishop of Gloucester]

My Lords, I add my voice to those who have already spoken in favour of these amendments. I declare my interest as Anglican Bishop to Her Majesty’s Prisons.

All the detail I was going to mention has already been carefully and expertly explained; again, I pay tribute to the organisations that have been named, including the Howard League, the Prison Reform Trust and UNGRIPP, for their excellent briefing reports and research. It resonates strongly with all the conversations I have with people in prison and family members who write to me or send me emails. The thing I am struck most by is the sense of hopelessness; many noble Lords have mentioned that. I am a proud patron of Prison Fellowship, whose motto is:

“We believe no one is beyond hope.”


We really need to listen to that in this debate.

The indefinite IPP licence goes against all the evidence about what enables people to move away from offending. As we have heard, people need to feel hopeful about their future. They need to have a plan to work at. As we have heard, the IPP licence stops people being able to look forward to a different future. It disrupts relationships and breeds anxiety, despair, hopelessness and alienation. Much more could be said, but I think it has all been said; I am heartened by the strength of feeling so apparent in your Lordships’ House.

I agree that this Bill provides a timely opportunity to address this enormous injustice of IPP sentences. I stand with those seeking to make these changes.

Police, Crime, Sentencing and Courts Bill

Lord Garnier Excerpts

Lords Hansard - part one & Committee stage
Monday 8th November 2021 Lords Chamber

Moved by

[Lord Garnier]

150: Clause 63, page 62, line 22, at end insert—
“(11A) After section 68(3) insert—“(3A) In proceedings for an offence under this section it is a defence for the accused to show—(a) that they were not trespassing on the land, or(b) that the activity in response to which the aggravated trespass was committed was unlawful activity.””

[Lord Garnier (Con)]

My Lords, I am grateful to my noble friend Lord Shrewsbury and to the noble Baroness, Lady Bakewell of Hardington Mandeville, for signing my Amendment 150 to Clause 63. Unfortunately, he is unable to be here today because of an unforeseen medical appointment, but has read my speech in draft and has told me that he agrees with it. Whether it comes out as I wrote it is entirely a different matter. In any event, it comes with the usual caveat—the mistakes are mine; the support is his, and I am grateful for it.

The amendment is simple and straightforward. There is no reason in principle or justice why it should not be accepted. That said, I am not so naive as to think that, just because I am arguing for it, it is perfectly drafted or that the Government or the majority of the Committee will agree with me. I will not press it to a Division, but I shall listen carefully to what my noble friend the Minister says in response before deciding whether and how to take the matter forward beyond Committee.

Clause 63 of the Bill amends Section 68 of the Criminal Justice and Public Order Act 1994. I have nothing to say about the policy behind Clause 63 but, since it is there, as I indicated at Second Reading, it gives me an opportunity to right a wrong contained in Section 68 of the 1994 Act. That section defines the offence of aggravated trespass. In so far as it is relevant to my amendment, it provides, first, that:

“A person commits the offence of aggravated trespass if he trespasses on land and, in relation to any lawful activity which persons are engaging in or are about to engage in on that or adjoining land, does there anything which is intended by him to have the effect—


(a) of intimidating those persons or any of them so as to deter them or any of them from engaging in that activity,

(b) of obstructing that activity, or

(c) of disrupting that activity.”

Section 68(2) says that:

“Activity on any occasion on the part of a person or persons on land is ‘lawful’ for the purposes of this section if he or they may engage in the activity on the land on that occasion without committing an offence or trespassing on the land.”

--- Later in debate ---

[Lord Garnier (Con)]

Many things could be added to the Bill and many could be taken away but the general thrust of the law, as my noble friend well understands, being a barrister of considerable experience, is that where a burden is placed upon a defendant in a criminal matter, it is set to the civil standard of proof.

[Baroness Brinton (LD) [V]]

My Lords, I am grateful to the noble and learned Lord, Lord Garnier, for explaining his amendment in such helpful detail. However, my focus is on suggesting that Clause 63 should not stand part of the Bill. The principal reason—much of which we debated the other day, so I will not go into it in great detail—is the effect on the Gypsy, Roma and Traveller community. It is particularly about the use of the vague and expansive provisions of significant “disruption” and “distress”. “Damage” may be easier to define, but there are perhaps some issues about that as well.

Clearly, a range of provisions is already on the statute book which criminalise committing criminal damage. Section 1 of the Criminal Damage Act 1971 allows courts to grant injunctions against people engaging in antisocial behaviour—I could go on. The real concern is that this is clearly targeted at the Gypsy and Traveller community. To repeat a point that I made the other day, the definition of “significant” is not clear in the Bill. The Supreme Court recently characterised “significant” as follows:

“like the skin of a chameleon, the adjective takes a different colour so as to suit a different context.”

However, “disruption” itself has also been controversial in the context of public order legislation and is hugely open to interpretation. Part 4 directs authorities to focus exclusively on disruption caused by roadside camps, rather than inviting this to be balanced against the relative disruption caused by evicting Gypsy and Traveller families, to ensure that the response is proportionate.

“Distress” is also a broad and highly subjective category. The National Police Chiefs’ Council asked, in its evidence to the Joint Committee on Human Rights,

“whose distress? Is it the landowner’s? Is it a perception?”

This nebulous term may, in this context, also be informed by stereotypes and prejudices against Gypsy, Roma and Traveller communities. We heard noble Lords last week making assumptions about the distress that the presence of camps alone may cause—of having an encampment nearby—and that this was also the source of crimes. Most noble Lords who said this also said that they could not prove it, but certainly among the community there is considerable distress already.

As I said, there are existing powers to address this. Section 61 of the Criminal Justice and Public Order Act 1994 gives the police the power to remove people from land where the landowner or occupier takes reasonable steps, and Section 62A allows the police to direct trespassers to remove themselves and their vehicles and property from land where a suitable pitch or relevant caravan site is available within the same local area. This is particularly important in terms of the data that we heard about the other day—that there are fewer authorised encampments available. There are more unofficial ones, but it is a real problem for people travelling from one area to another and intending to carry out their lawful business if they cannot find somewhere to go. The difficulty with Clause 63 is that it heaps further problems upon them but uses terms which are not well defined and are utterly nebulous, and which put this community at further risk of having their way of life criminalised.

--- Later in debate ---

[Baroness Williams of Trafford (Con)]

My Lords, I have said all along, and the proponents of the amendments that we have discussed have underlined, that the absolute majority of the Gypsy, Roma and Traveller community are law-abiding people, so this is not something that disproportionately impacts on them. It is about people who cause destruction to other people’s land and property.

[Lord Garnier (Con)]

My Lords, I am grateful to all those who have spoken in this debate. I am particularly grateful to the noble Lords, Lord Paddick and Lord Rosser, for their qualified support for the principle behind my Amendment 150.

The noble Lord, Lord Paddick, gently chided me—or if not me then a class of people—for being unsophisticated. It may well be that it was my lack of sophistication that annoyed the noble Baroness, Lady Chakrabarti, who, not for the first time—we saw it again last Wednesday—tilted at a windmill. I thought I had made it clear in the course of my speech that proposed new Clause 68(3A)(a) in my amendment was there in error and we should concentrate on proposed new paragraph (b). She is of course perfectly entitled to make whatever remarks she wishes, but the gravamen of my amendment was to reverse the burden of proof in relation to the unlawful activity point in paragraph (b) and not, as I think I had accepted, in relation to who should prove the trespass. Having cleared up that point, I think we can make a lot more progress.

I am also grateful to my noble friend Lord Hailsham for his support. Beyond that, I have nothing to say because, as I said in my opening remarks, the policy behind Clause 63 is for the Government to defend and to persuade this House and the other place about. However, there is some room for discussion. I know the Minister has had an enormous amount of work to do in dealing with the Bill, and indeed has a lot yet to do, so she has my every sympathy. However, if she can find time perhaps to have a quiet discussion with me and others of like mind about proposed new Clause 68(3A)(b) in my Amendment 150 regarding the unlawful activity point, I would be most grateful. That having been said, this debate has now reached its natural conclusion for today’s purposes and I beg leave to withdraw the amendment.

Amendment 150 withdrawn.

Police, Crime, Sentencing and Courts Bill

Lord Garnier Excerpts

Lords Hansard - part one & Committee stage
Monday 1st November 2021 Lords Chamber

[Lord Bradley (Lab)]

My Lords, I rise to make a short contribution to fully and strongly support the amendments. I declare my interests in the register, particularly as a trustee and vice-chair of the Prison Reform Trust. I first compliment the opening address by the right reverend Prelate the Bishop of Gloucester and fully associate myself with the arguments she made in opening this debate.

I will briefly give some background to these amendments. Following the publication in 2009 of my independent report to government on mental health, learning disabilities and the criminal justice system, a programme to establish liaison and diversion services across the country was commenced. This has continued to this day, supported by all Governments, with 100% geographical coverage of the country now achieved.

These services are based in police stations and courts and are made up of multidisciplinary teams comprising mental health nurses, learning disability nurses, speech and language therapists and other disciplines working together with drug and alcohol staff to assess the needs of the arrested person to determine whether it is appropriate to divert them away from the criminal justice system, depending on the nature of the offence, or to help and support the police in determining whether they should be charged. If they are charged, this assessment information passes through to the courts and, in partnership with the court staff and probation staff, they try to ensure that a more comprehensive picture of the often complex needs of the individual is available in the magistrates’ courts and the Crown Court at first appearance.

However, one crucial piece of information that is not necessarily available—for a variety of reasons that we have already heard in this debate—is whether the offender, most often when it is a woman offender, is a primary carer. In January 2021, I asked a Parliamentary Written Question about

“how many children were taken into care because their mother was given a custodial sentence in each of the last five years”.

Extraordinarily, the answer was that the data requested is not something that Her Majesty’s Prison and Probation Service records. It went on to say:

“In practice, it is Local Authorities overseen by the Ministry for Housing, Communities and Local Government … who are responsible for delivering operational support to families on child safeguarding, including for children affected by parental imprisonment.”


It further stated that the Ministry of Justice

“acknowledges that parental separation due to imprisonment disproportionately affects women. Individual women’s prisons”—

I have visited all of them over the recent past—

“collect information on caring responsibilities at the point of reception”

into prison.

There are many problems with this reply, but it essentially confirms the siloing of the information on primary carers away from the criminal justice system, and that first knowledge of such caring responsibilities is at prison reception. That is simply too late, as the damage to the family is already in train; we know that about a third of women in the prison population are on remand, and that, on 2019 figures, 33% of women remanded by magistrates’ courts and 40% by Crown Courts, did not receive a custodial sentence. We also know that about 50% of women were sentenced as we have already heard this evening, to fewer than six months in prison. Surely, therefore, as this group of amendments makes clear, by collecting this information on whether the offender is a primary carer—predominantly women, but also sometimes men—and ensuring that the judiciary properly considers this information and the best interests of the child, the damage to the family that remand and short custodial sentences inflict can be mitigated against.

Each of these five amendments contributes to this outcome, particularly pre-sentence reports, but it is important to stress that it is essential that pre-sentence reports are available to the court for all offenders, as this is a primary means through which sentencers can be informed of dependent children. This is clearly not the case at the moment, but sentencing legislation directs that sentencers must obtain a pre-sentence report for all cases unless they deem it to be unnecessary and are transparent in that decision.

As the charity Women in Prison identified in its supplementary evidence to the Justice Select Committee, the evidence from Her Majesty’s Prison and Probation Service showed that there was a decline in pre-sentence report volumes over the past decade. For example:

“In 2010, pre-sentence reports were received for 62% of all court disposals reducing to 53% in 2018. Therefore, almost half (47%) of sentences which result in a custodial or community order have no new PSR prepared to inform the sentence.”


Furthermore:

“There is a lack of data to disaggregate these figures according to gender and in answer to a parliamentary question in 2019, the Government could not say how many women in England and Wales had been imprisoned without a PSR.”


This is totally unacceptable. I hope that the new focus on this issue by the reconstituted national probation service will quickly achieve better results.

As a committed member of the Government’s advisory board on female offenders, I am pleased that the agreed strategy, which we have heard something about already today, includes strongly advocating for effective community sentences with continued investment in local women’s centres, as recommended by my noble friend Lady Corston in her groundbreaking report some years ago. Such an approach would help to ensure the successful completion of the community sentences and, crucially, would also ensure that children are not unnecessarily taken into care, that the primary carer does not lose their home or their employment, and that family responsibilities and commitments are protected.

I believe that the role of the liaison and diversion services can play a real part in helping to collect this information about primary carers, with agreed protocols on information sharing and confidentiality. Its timely presentation at first appearance in the courts will facilitate the reduction in the use of remand, the better use of bail and an increase in the use of community sentences, with the interests of the child and the role of the primary carer transparently considered by the judiciary. I therefore ask the Minister if he would clearly explain the Government’s position regarding primary carers and their children, and I urge the Minister to accept these invaluable amendments.

[Lord Garnier (Con)]

My Lords, it is a great pleasure to follow my fellow trustee of the Prison Reform Trust, the noble Lord, Lord Bradley. The whole House could agree with everything that he said. I thank the right reverend Prelate for introducing these amendments because, again, I do not think that they are, in their thrust, controversial at all.

I have stopped being a sentencer. I was a Crown Court recorder from 1998 until 2015, with a short gap when I was a Minister, and it became an increasingly difficult part of my judicial life. With the greatest respect to the noble and learned Lord, Lord Thomas, I suspect that he may once have been a recorder, but he spent most of his judicial life as a High Court judge, a Court of Appeal judge and the Lord Chief Justice. Essentially, when you get to that great height within the judicial system, you are dealing with life sentences and trying to work out the tariff that a murderer should get. You are not dealing with what a woman, probably in her late teens or early twenties, with a child should receive for her 10th offence of shoplifting—unless, of course, it came to the Court of Appeal Criminal Division. I have absolutely no doubt that the noble and learned Lord will have dealt with those sorts of cases on appeal with the attention, intellectual rigour and humanity that we would all have expected of him.

It may only be the noble Lord, Lord Carlile, and possibly the noble and learned Lord, Lord Falconer, who, like me, have sentenced what I might call “ordinary” criminals in the Crown Court. The noble Lord, Lord Carlile, is of course too modest to mention that his wife, Judge Levitt, now deals with these matters on a daily basis in the Crown Court. But one of the things that recorders and amateur judges like me, who perhaps do four or five weeks in a Crown Court during the course of a year, have to cope with is the sad people—be they men, women, young teenagers or adults—who come before us for repeated low-level but very annoying criminal offences, such as shoplifting in order to fund a drug habit and so forth.

The one thing that we were determined to do—I do not think that this is controversial—is not send people to prison when it would cause more damage than benefit, both to them, as individual defendants, and their children. Remarkably, the older teenagers and young people in their early twenties who had not just one but two or three children were our daily bread and butter, and we were anxious not to send them to prison if we could possibly help it because of the effect that it would have on their children.

I hugely thank two people, one of whom is in this Chamber, for their influence on my coming to understand the difficulties of sentencing and putting people in custody, particularly women. One was James Jones, the former Bishop of Liverpool, who was the right reverend Prelate’s predecessor but one—perhaps her immediate predecessor. The other is the noble Lord, Lord Ramsbotham, who, for me, is the source of information about the prison system. If you read his book about it, and the opening chapter, which concentrates on Holloway—now shut, thank God—you will begin to understand just a bit of the difficulties that amateur sentencers, magistrates and Crown Court recorders, but also the equivalent of Judge Levitt, have to cope with, day in, day out. These are anxious decisions about what to do with women and children whose offences are sufficient to cross the threshold for custody—but, if they are sentenced to prison, what collateral damage does that cause to others?