King’s Speech

Lord Marks of Henley-on-Thames Excerpts

Wednesday 8th November 2023 Lords Chamber

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

My Lords, I too express my sorrow at hearing of the death of the noble and learned Lord, Lord Judge. He was a great lawyer, a wonderful judge, a brilliant parliamentarian and defender of liberty, and, quite simply, the kindest of men.

I will address the Government’s justice proposals in the King’s Speech and the lack of other proposals for which we see a crying need, and which are unaddressed in the Government’s programme. Others among my noble friends will address the Government’s home affairs and devolution proposals later in this debate.

I will start positively by welcoming the arbitration Bill. I declare an interest as a barrister who often appears as an advocate in arbitrations; although not sitting as an arbitrator, I am qualified to do so. England, particularly London, holds a pre-eminent position as an arbitration seat for heavy international commercial arbitrations, and it is a tribute to our arbitrators that our arbitration services are so widely respected.

London is a top choice for arbitrations, and English law is the governing law for many international contracts. Substantial foreign earnings and the enhancement of our commercial reputation follow. But our arbitration law must be kept up to date, and these targeted reforms follow extensive consultation and careful consideration by the Law Commission over the last two years. We will support that Bill’s speedy passage. However, it is a shame that other proposals from the Law Commission are not implemented as quickly. The Government often quail at the slightest prospect of controversy. I mention my Cohabitation Rights Bill, which would implement the Law Commission’s reports from 2007 and 2011, on which the Government have long deferred any action. However, now that the Labour Party is committed to such reforms, I hope for its support and have resubmitted the Bill.

The Victims and Prisoners Bill, expected from the Commons soon, could have been so much better. Giving the victims’ code the force of law would be excellent if the proposal had teeth. My noble friend Lady Brinton has been at the forefront of a long campaign for such a measure. But the Bill is insufficiently robust. There are, for example, no protections for victims of stalkers. The victims’ code is liable to be revised by the Secretary of State, and there is no redress for victims in the event of non-compliance with the code.

On Part 2, it is right that we should have independent public advocates for victims of major incidents but, again, this proposal is not tough enough. Truly independent advocates must be able to hold the Government to account. That may be uncomfortable for government, but it is all the more misguided then that the appointment of advocates by the Secretary of State is purely voluntary—and how can it be right that the Secretary of State can dismiss independent advocates at will?

Part 3 of the Bill weakens the role of the Parole Board in releasing offenders serving life and longer-term sentences and gives powers to the Secretary of State to overrule Parole Board decisions. Strangely, it also permits the board itself to refer decisions to the Secretary of State. Then there is a right of appeal from the Secretary of State to the Upper Tribunal, which is hardly a body suitably equipped to take this kind of decision. Indeed, that right of appeal appears to have been inserted to avoid the decision-making power of the Secretary of State being found in breach of Article 5 of the European Convention on Human Rights—the right to liberty and security, and in particular the right to have the lawfulness of detention determined by a court and not by a Minister. Then, disgracefully, it is proposed to disapply Section 3 of the Human Rights Act in respect of release on licence, so that there would no requirement to construe the legislation compatibly with the convention where possible. That would undermine one of the fundamental protections of the convention in our domestic law.

I turn to the centrepieces of the proposed legislation—the criminal justice Bill and the sentencing Bill, which the noble and learned Lord, Lord Bellamy, called sentencing and offender management. In both Bills, we have what Christopher Grayling, when Secretary of State and Lord Chancellor, used to call “throwing red meat” to the Conservative Party conference. The Prime Minister’s introduction to the briefing for the King’s Speech said:

“We are keeping people safe by making sure the police and security services have the powers they need and that criminals receive proper punishment”.


Frankly, that is just the Grayling formula in slightly more restrained language.

The briefing on the sentencing Bill puts it more starkly:

“This Government will make sure that the prison estate is used to lock up dangerous criminals for longer”.


But there is no evidence that longer sentences keep people safe, beyond the limited point that keeping offenders in prison keeps them out of the community while they are still in custody.

There are some redeeming features of the proposals. We have long called for a presumption against short immediate sentences, so we welcome the proposal for such a presumption. All the evidence demonstrates that short sentences are useless at preventing reoffending, proved by appallingly high reconviction rates, as mentioned by the noble and learned Lord, Lord Bellamy. Such sentences disrupt family and community ties, wreck chances of re-employment, leave no time for rehabilitation, education and training, or for addressing mental health issues or addiction, while they create damaging opportunities for low-level offenders to make criminal contacts to support a future life of crime.

Also welcome is the commitment to increase the use of home detention curfews, and technology makes that an achievable ambition, but the overwhelming direction of travel is to lock people up for longer, in many cases without hope of release, blind to the facts that hopelessness, by definition, leads to despair and that redemption then ceases altogether to be a purpose of punishment. The proposals for imprisonment without remission completely ignore the needs for recognition and reward for good behaviour in prison and for sanction for bad behaviour. Remission and the threat of its loss fill those needs.

The criminal justice Bill continues the theme. True, there are some welcome proposals. These include: compulsory reporting of sexual abuse concerns; multi-agency management of offenders convicted of coercive control; criminalising the sharing of intimate images—cruel and humiliating behaviour. But the general trend is just for tougher punishment, fortified by measures that are, frankly, purely symbolic, such as forced attendance of offenders at sentencing hearings.

This programme fails lamentably to address the crisis in our penal system. Our prisons are overflowing, even into police cells. The building programme, as the Minister acknowledged, is stalled. The Government rely on sticking-plaster pre-fab extra cells, without additional services, so that these are no more than prisoner containers. They double up cells, increasing overcrowding and violence. They bring back into service squalid cells that were supposed to have been taken out of service for the maintenance required to relieve dire conditions. The pitifully small number of available spaces are scattered around the prison estate, so prisoners are sent to where they fit and not to where they need to be, disrupting training and education, continuity of care and links with families and communities, particularly approaching release. We have desperate staff shortages, low retention rates and insufficient recruitment, all caused by low morale. The continuing plight of IPP prisoners is a stain on our penal system.

What we needed was a new approach: lower prisoner numbers; statutory minimum prison standards; a fully resourced Probation Service for prisoners, pre and post release, and to make community sentences work; a comprehensive, multi-agency approach, co-ordinating efforts to promote rehabilitation, involving prison and probation services, local authorities’ housing and social services, training providers, health and addiction services and potential employers. We must replace the mantra, “Lock them up for longer”, with a new and constructive emphasis on supporting rehabilitation and reform. I fear we will not see that change while this Government survive.

[Lord Bellamy (Con)]

My Lords, if the noble Earl, Lord Kinnoull, will permit me a brief moment, I was completely unaware when I made the opening speech of the sad death of Lord Judge. He was a personal friend, a colleague and a mentor over many years, and I associate the Government entirely with the tributes already made and say what a wonderful leader of our legal community he was while Lord Chief Justice and what an amazing job he did as Convenor of the Cross-Bench Peers. I am sure that there will be suitable tributes in due course and on behalf of the Government, we express our deep regret at his very sad passing.